R v LT (No 2)
[2020] ACTSC 18
•28 January 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v LT (No 2) |
Citation: | [2020] ACTSC 18 |
Hearing Date(s): | 5 July, 21 August, 17 October 2019, and 28 January 2020 |
DecisionDate: | 28 January 2020 |
Before: | Murrell CJ |
Decision: | The offender is resentenced to one year and nine months’ imprisonment, fully suspended for participation in a drug and alcohol treatment order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Resentence – Breach of good behaviour order – Rehabilitation a central sentencing consideration – Drug and alcohol treatment order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) s 12A |
Cases Cited: | R v LT [2017] ACTSC 343 |
Parties: | The Queen (Crown) LT (Offender) |
Representation: | Counsel C Wanigaratne / J Hiscox (Crown) B Shelton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Number(s): | SCC 265 of 2016 |
Murrell CJ
Introduction
The offender came before the court on 5 July 2019 for breach of a good behaviour order associated with a suspended sentence that I had imposed on 26 October 2017, when I sentenced the offender for the offence of aiding and abetting the reckless infliction of grievous bodily harm on 9 July 2016.
On 26 October 2017, I imposed a sentence of two years and three months' imprisonment. Despite the objective seriousness of the offence, I suspended the whole of the sentence on the offender entering a good behaviour order for a period of two years and three months, from 26 October 2017 to 25 January 2020. Under the good behaviour order the offender was subject to supervision, required to undertake recommended treatment, and required to perform 50 hours of community service work.
The offender performed 50 hours of community service work. However, in other respects, there was significant non-compliance.
The offender breached the good behaviour order in June 2018 by committing the offences that, as a repeat offender, she drove with a prescribed drug in her oral fluid and drove while unlicensed. On 27 March 2019, the Magistrates Court sentenced the offender to a good behaviour order for a period of 12 months, to 26 March 2020, and imposed no additional conditions on the order. The drug found in the offender's oral fluid was methylamphetamine.
It will be apparent from my reasons of October 2017 that a co-offender had been a very negative influence on the offender but as at October 2017, the offender had dissolved her relationship with the co-offender: see R v LT [2017] ACTSC 343. She commenced a new relationship in November 2017, although I understand that there is an issue of domestic violence in connection with that relationship.
In any event, the separation of the offender and the co-offender was a significant factor in my decision to suspend the offender's sentence because I felt that it would enable her to make a new start. Further, I took into consideration that the offender was the sole carer for the couple's six-month-old daughter and was significantly involved in the child's life. Now, the offender has two children, who are two years old and three months old. She is very deeply committed to her children and would like to be a positive role model in their lives.
A pre-sentence report that was before the Court on 5 July 2019 stated that the offender's compliance with supervision had been poor. The offender had denied substance use but the offences of June 2018 placed the denial in contention. When the matter came before me on 5 July, there was very little support for the proposition that the offender had rehabilitated in relation to drug abuse. Assertions by her that she was in contact with Corrections ACT were unverified.
On the other hand, but for the offence of June 2018, since the suspended sentence was imposed in October 2017, the offender had not committed further offences.
On 5 July 2019, the breach matter was stood over to 21 August 2019 to enable further drug testing of the offender to determine whether she was continuing to abuse drugs.
In the interim period, between 5 July and 21 August 2019, the offender returned a clean test on 18 July 2019 but, on 16 August 2019, there was a positive indicative result for amphetamine and methylamphetamine. Coincidentally, on the same day a separate agency had also tested the offender for drugs and received positive results for amphetamine and methylamphetamine.
Further, on 31 July 2019, the offender had been directed to attend for supervision. There was a dispute about whether the direction had indicated that she would be subjected to urine testing at the appointment. Even if that was not spelt out, it should have been very clear to the offender that she may well have been urine tested because that was the point of the adjournment.
Consequently, on 21 August 2019, I considered that her failure to attend for supervision on that day was equivalent to a failure to provide a urine sample and was further evidence of ongoing drug use.
However, as at 21 August 2019 she had begun to attend appointments with her psychologist; she attended an appointment on 13 August 2019. She had (extremely belatedly) applied for admission to Toora, an establishment that provides residential rehabilitation and can sometimes accommodate children. I was not told the outcome of the application.
When the matter was before me in October 2017, I had an assessment report in relation to an intensive correction order. The report observed that the offender was motivated to meet the obligations of an intensive correction order, but suggested that, as a matter of practice, she may fail to attend appointments and meet the requirements.
At that time, I formed the view that, if I imposed an intensive correction order, I might be setting the offender up for failure, particularly having regard to the length of the sentence and the fact that supervision would be entirely under the control of Corrective Services. Therefore, I adopted the more flexible alternative of imposing a fully suspended sentence and subjecting the offender to a conditional good behaviour order.
The history of the matter demonstrates that the good behaviour order provided the offender with insufficient motivation to exercise self-discipline.
The offender is yet to demonstrate that she can translate positive thoughts into positive action.
Prima facie, a significant breach of a good behaviour order associated with a suspended sentence will result in the sentence being activated. If the position were otherwise, a suspended sentence would be a hollow threat. In October 2017, I told the offender that, should she breach the good behaviour order associated with the suspended sentence, she should expect to serve two years and three months' imprisonment.
However, on 21 August 2019, I indicated, somewhat reluctantly, that I was prepared to revisit the option of resentencing by way of an intensive correction order. I was not prepared to adjourn the matter on the basis that the offender remained in the community; she needed to clearly understand that, until she was capable of remaining in the community relatively drug-free and compliant, I would not return her to the community. I adjourned the proceedings, bail refused, and requested an assessment for an intensive correction order.
On 2 December 2019, I referred the offender to an eligibility screening assessment for the Drug and Alcohol Sentencing List (DASL).
On 3 December 2019, Walker AJ granted her bail to undergo a suitability assessment for the DASL.
The offender’s DASL suitability assessment indicates that she first used methylamphetamines when she was 21 years old, and thereafter she regularly used those drugs. At the peak of her use, she used one gram of the substance daily.
While at the AMC, she attended fortnightly appointments with a counsellor and attended one SMART Recovery Group and the ADAPT program.
Since her release on bail on 3 December 2019, she has undertaken at least six urinalysis tests, each of which was negative for illicit substances. Since 3 December 2019, she has punctually attended all appointments with the Alcohol and Drug Service.
The offender has been assessed as suitable for a drug and alcohol treatment order.
Resentence
I find that the breach is established and I cancel the good behaviour order.
Having regard to the above considerations, the period spent in custody from 29 August to 17 December 2019, the 50 hours of community service work that have been undertaken, and the fact that, while only intermittently compliant with supervision, apart from the offence of June 2018 the offender has committed no additional offences, the appropriate resentence is a period of one year and nine months' imprisonment.
The offender is resentenced to one year and nine months' imprisonment, from 28 January 2020 to 27 October 2021.
I am satisfied on the balance of probabilities of the matters referred to in s 12A(2)(a) of the Crimes (Sentencing) Act 2005 (ACT). I consider the making of such an order to be appropriate, having regard to the matters referred to in s 12A(2)(b). I note that the offender has given informed consent in accordance with s 12A(2)(c).
Consequently, I make a drug and alcohol treatment order.
The treatment order will relate to the offence of aiding and abetting the reckless infliction of grievous bodily harm on 9 July 2016. The order will record that the offender was convicted of the offence on 16 August 2017.
The custodial part of the order is set out above.
The treatment and supervision part of the order will be for a period of 12 months from today and such further period as the supervising judge or judges may direct.
I require the offender to sign an undertaking to comply with the order and other obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that the order is in force.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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