R v Malizani

[2015] ACTSC 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Malizani

Citation:

[2015] ACTSC 41

Hearing Date:

12 February 2015

DecisionDate:

12 February 2015

Before:

Murrell CJ

Decision:

Good behaviour order cancelled and suspended sentence of six months imprisonment imposed

Category:

Sentence

Catchwords:

CRIMINAL LAW – Sentence – repeated breach of good behaviour order

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT) s 110

Crimes (Sentencing) Act 2005 (ACT) s 33

Parties:

The Queen (Crown)

Willie Malizani (Offender)

Representation:

Counsel

Mr G Mansfield (Crown)

Mr C Lynch (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Lynch Solicitors (Offender)

File Number(s):

SCC 199 of 2010

Murrell CJ:

1. The offender is before the Court for breach of a good behaviour order imposed by former Chief Justice Higgins on 21 September 2012. The history of the matter is that on 17 October 2009 the offender, then 19 years of age, committed an assault occasioning actual bodily harm. That matter was a serious offence of its type. At the time the offender was under the influence of alcohol. Higgins CJ described the assault as "an unprovoked and sustained beating."

1. His Honour was impressed by the offender's subjective circumstances; the fact that he had a supportive family and no prior convictions. It was recognised at that stage that he had a problem with alcohol abuse and it was hoped that he would address that problem. The opportunity was afforded to him by means of a six month suspended sentence upon compliance with an 18 month good behaviour order. The good behaviour order commenced on 11 August 2010 and was said to run until 10 January 2012. However I am not sure that the maths is correct. I think it would have been February.

1. During the term of that good behaviour order the offender breached the order by reoffending on 27 September 2011. The offence in question was attempting to use a false document, being a fraudulent script, to obtain a non-prescribed drug.

1. Other offences of common assault and damage to property were committed in March 2012. Both offences were committed in the context of domestic violence. As a consequence of the breaches by further offending, on 21 September 2012 the matter was returned to Higgins CJ.

1. On 21 September 2012 his Honour resentenced the offender for the breach to six months' imprisonment. This was fully suspended with a nine month good behaviour order from 21 September 2012 to 12 June 2013. Having been afforded this further opportunity, the offender regrettably did not take advantage of it. He committed further offences on three occasions.

1. On 18 December 2012 he failed to appear in accordance with bail undertaking. On 28 February 2013 he committed three offences of a domestic violence nature. The offences were contravene a protection order, common assault and cause minor damage to property. The third offending incident occurred on 26 March 2013 when he failed to appear in accordance with a bail undertaking.

1. The Magistrates Court sentenced him in relation to all matters. In relation to the contravene protection order he received a sentence of four months' imprisonment. Other sentences were made concurrent with that sentence. He was incarcerated from 15 August 2013 to 14 December 2013. There was a delay in the matter being returned to this Court to consider the breach of the good behaviour imposed by his Honour on 21 September 2012. That delay has been caused by the offender. The offender failed to appear before the court on 5 May 2014.

1. The offender submitted to the Court that when he was released from custody in December 2013 he determined to change his ways and he had started to do so. He enrolled in a diploma course and later transferred to a degree. Unfortunately his commitment to change has not been sustained. He has deferred his degree and is now unemployed. There is really no material before the Court that would suggest that the offender has actually changed since his release from custody in December 2013. The Court is empowered to proceed in one of two ways under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act). Having cancelled the good behaviour it may either impose the suspended sentence originally imposed or resentence the offender.

1. There is no doubt that the breach has been established and the good behaviour order should be cancelled. I find that the good behaviour order has been breached, and I cancel the order.

1. Section 33 of the Crimes (Sentencing) Act 2005 (ACT) lists the matters that the Court must consider when sentencing an offender. In relation to the manner in which I should proceed, as submitted by the Crown, there is a need for denunciation and general deterrence in relation to breaches of good behaviour orders. Suspended sentences are a sentence of imprisonment and the severity of such sentences will brought into question if Courts do not make it plain that a breach of conditions of a good behaviour order will result in a person being sent to prison. The operation of the general proposition depends on the circumstances, the nature of the breach and matters of that type. In this case there is nothing that can be said in favour of the offender. This is the second occasion of breach. There were multiple breaches and the breaches involve committing offences in the nature of violence. These are offences of the same type as caused the imposition of the good behaviour order back in 2009. Moreover they are of the same nature as that which brought the offender back to Court on a previous occasion.

1. Pursuant to s 110 of the Sentence Administration Act I impose the sentence that was originally suspended. The sentence of six months is imposed to run from today, 12 February 2015 to 11 August 2015.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

Associate:

Date: 25 February 2015