R v McLeish (No 3)
[2023] ACTSC 107
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v McLeish (No 3) |
| Citation: | [2023] ACTSC 107 |
| Hearing Dates: | 9 November 2022; 13 December 2022; 20 February 2023; 1 May 2023; 10 May 2023 and 12 May 2023 |
| Decision Date: | 12 May 2023 |
| Before: | Mossop J |
| Decision: | See [42] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – breach of good behaviour order – failure to comply with community service work condition – failure to engage with ACT Corrective Services – good behaviour order cancelled – offender resentenced to period of |
| imprisonment | |
| Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 102, 110 Crimes Act 1900 (ACT), s 32(2) |
| Parties: | The Queen (Crown) Mark Ian McLeish (Offender) |
| Representation: | Counsel |
| S Janackovic (Crown) [9 November 2022; 13 December 2022; 20 February 2023; 1 May 2023 and 10 May 2023] C Wanigaratne (Crown) [12 May 2023] S McLaughlin (Offender) | |
| Solicitors | |
| Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
| File Numbers: | SCC 188 of 2021 SCC 189 of 2021 |
| MOSSOP J: | |
| Introduction |
1. On 28 April 2022 I sentenced the offender, Mark Ian McLeish, who had pleaded guilty to one count of making a demand with a threat to endanger health (SCCAN 2021/140), contrary to s 32(2) of the Crimes Act 1900 (ACT). The maximum penalty for this offence
is 10 years’ imprisonment.
2. The sentence was one of imprisonment for 10 months, suspended after having served 56 days (which had been fully served at the time of sentence), on the condition that the offender enter into an undertaking to comply with his good behaviour obligations for 24 months, and subject to the following additional conditions:
(a) That he be on probation subject to the supervision of the Director-General for a period of 24 months or such lesser period as determined by the
Director-General and obey all reasonable directions of the Director-General.(b) That he report no later than 2 May 2022 to ACT Community Corrections at level 1, 249 London Circuit, Canberra. (c) That he perform 100 hours of community service within 12 months. 3. On 5 August 2022 an ACT Community Corrections officer reported, under s 102 of the
Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), that she believed that the offender was in breach of his good behaviour order, because he had failed to comply with the additional conditions (a) and (c).
4. On 23 September 2022 a warrant was issued for the arrest of Mr McLeish and he was first before the court on 12 October 2022 when he was granted bail.
Hearing on 9 November 2022
5. On 9 November 2022 breach proceedings involved the reading of the affidavit of Carol Aldridge and Mr McLeish gave evidence and was cross-examined.
6. The offender reported to ACT Community Corrections on 2 May 2022 as required, however, he had attended without an appointment. On that day, his rights and obligations
were explained to him and he signed his good behaviour order obligations form. He was provided with options in relation to the type of community service work that would be available to him. He was directed to report to the office on 5 May 2022 to complete a
community service work induction and to advise his preference of placement.
7. The offender failed to report on 5 May 2022 and did not notify ACT Community Corrections of any inability to report.
8. On 17 and 23 May 2022 ACT Community Corrections were unable to contact the offender on his mobile number and the offender failed to return a voicemail and text message directing him to contact the service.
9. On 2 June 2022 ACT Community Corrections left a voicemail and text message directing
the offender to attend the office on 6 June 2022. A “Direction to Attend” letter was also
emailed to his nominated email address. On 6 June 2022 the offender attended and completed the community service work induction, along with signing his community service work obligations form. Verbal agreements were made for him to attend St Vincent
de Paul’s Mitchell agency weekly on Tuesday, to commence on 21 June 2022. He was
directed to return to ACT Community Corrections within the following fortnight and, prior
to 21 June 2022, to sign the final documentation. He was directed to attend the Community Corrections Office for supervision on 28 July 2022. Text messages were sent on 6 June and 15 July 2022 reminding him of that appointment.
10. The offender failed to attend ACT Community Corrections between 6 June 2022 and
21 June 2022.
11. On 20 June 2022, the offender advised ACT Community Corrections via telephone that he had hit a kangaroo with his vehicle and would not be able to attend St Vincent de Paul on 21 June 2022 as agreed. He agreed to commence on 28 June 2022.
12. On 28 June 2022, the offender emailed ACT Community Corrections saying he was unable to attend his community service work on that day because his car had not been
repaired and because he was attending a court appearance. He also noted that he had
not returned his signed “CSW Work Instruction” as required.
13. The offender failed to return the signed CSW Work Instruction and failed to report for work on 5 and 12 July 2022 and failed to notify of his inability to do so.
14. On 15 July 2022, ACT Community Corrections attempted to contact the offender, and
left a direction for him to report on 28 July 2022.
15. The offender failed to report to St Vincent de Paul on 19 and 26 July 2022 and failed to notify of his inability to do so. He then failed to report to ACT Community Corrections on 28 July 2022.
16. The offender had, as at 5 August 2022, completed none of his 100 hours of community service work.
17. On 9 November 2022 he was unrepresented. He did not cross-examine the author of the
affidavit. He did not put any contrary version of events to the author.
18. Notwithstanding that, he gave evidence seeking to excuse the failures alleged. That evidence was to the effect that either on the 21 or 28 June he reached an agreement with the corrections officer that because of other matters going on in his life he would not
be required to perform community service. The other matters were that he was resolving issues with his ex-partner and that his new partner was pregnant. He denied having received emails about any breach of his obligations or phone calls about it. He said that he had a new telephone number which he had notified to the corrections officer. He said that the address disclosed in the affidavit was incorrect as the relevant street number should have been 13 rather than 3 as stated in the affidavit.
19. The evidence was vague and non-specific. It involved a version of events which had not been put to the corrections officer who gave evidence of the breach. Notwithstanding that the evidence was unimpressive, I cannot reject beyond reasonable doubt the
possibility that as a result of a change in phone number messages and text messages were not received by him or that following his non-attendance on 21 and 28 June 2022 there was understood by him to be some change to the agreement that he attend for
community service work weekly. The issue of possible confusion as to his residential
address is not significant as the corrections officer’s evidence of breach does not rely
upon communication by letter.
20. However, I am satisfied of the following matters beyond reasonable doubt:
(a) That the offender failed to comply with the direction to report to the ACT corrections office on 5 May 2022. (b) That the offender received a voicemail and/or text message directing him to attend on 6 June 2022.
(c) That on 6 June 2022 an agreement was made for him to attend the St Vincent de Paul Mitchell agency weekly on Tuesday, commencing on 21 June 2022 and he was directed to attend for his next supervision appointment on 28 July 2022. (d) He failed to attend for his supervision appointment on 28 July 2022. 21. Although I think it is likely that he failed without reasonable excuse to attend the
community service work and that there was no agreement with his supervising officer
otherwise, I cannot make that finding beyond reasonable doubt.22. I am therefore satisfied beyond reasonable doubt that the offender breached his obligations by failing to attend supervision on 5 May and 28 July 2022.
Hearing on 13 December 2022
23. Having heard the evidence on 9 November 2022 I adjourned the proceedings until 13 December 2022 in order to permit Mr McLeish an opportunity to reengage with ACT Corrective Services and make progress with his obligations under the good behaviour order.
24. On 13 December 2022 ACT Community Corrections officer Talia Backhouse gave
evidence that he had attended appointments with her on three occasions. He had attended the two scheduled appointments either late or early. He had tested positive to methamphetamine and amphetamine as a result of a test administered on 11 November 2022. He had claimed that this was because he was taking prescribed medication for ADHD. Yet he failed to respond to three requests for proof of a prescription for such medication. Arrangements were put in place for him to complete community service work
and to be directed to attend certain programs, but those were not yet finalised. The options for completion of community service work were narrowed by the fact that he was a former corrections officer and there were safety issues relating to performance of such
work with certain categories of persons. It was, however, likely that the arrangements for
committee service work would be in place relatively soon.25. Mr McLeish denied any illicit drug use and indicated a willingness to comply with his obligations. He indicated that he had his own business as a telecommunications
technician. He said that his wife was due to give birth on 6 March 2023.
26. In those circumstances, I adjourned the proceedings until 20 February 2023 in order that he be able to demonstrate compliance with his obligations in more than an equivocal way. He was clearly advised of the benefits of cooperating with the requirements of his community corrections officer, including provision of prescriptions if indeed they were
available to explain his positive test results.
Hearing on 20 February 2023
27. Following the December hearing, further breaches were reported. I declined to have a summons issued based on those breaches because the proceedings were listed on
20 February 2023 in any event and because the address disclosed in that material as
his last known address was inconsistent with his bail address.28. The proceedings were listed on 20 February 2023 at 9:30am. At 9:07am Mr McLeish made the telephone call to my chambers which was answered by my associate. He said
that his partner had gone into labour and that he had to take her to hospital. He was asked to contact the Director of Public Prosecutions to advise the Director of those matters.
29. When the matter was called upon he did not appear. Counsel for the Director was unaware of the circumstances that had been communicated to my chambers.
Ms Backhouse was in court available to give evidence about what had happened since the last hearing. On the assumption that what my associate had been told was true, the proceedings were adjourned until 1 May 2023. That date was selected because it was
after the date by which the 100 hours of community service were required to have been completed. It would then be clear whether or not Mr McLeish was in breach of the requirement to complete the hours within the 12-month period. The Director undertook to send the earlier breach material at his bail address and notify him of the orders made.
Hearing on 1 May 2023
30. Shortly prior to the commencement of the hearing on 1 May 2023 the offender sent an
email to my associate indicating that he had COVID-19, had had it for over a week and was feeling extremely unwell. He said he would contact his doctor for a phone appointment and send a medical certificate shortly. He had not communicated that to the
Director.
31. When the matter was called on that date there was no appearance. Having regard to the very unsatisfactory history of apparent non-compliance and non-attendance I issued a warrant for his arrest. He was arrested on 9 May 2023 and was granted bail by me on 10 May 2023.
Hearing on 12 May 2023
32. The affidavit and oral evidence of Ms Backhouse indicates further multiple opportunities to properly engage with the supervision and the community service process but a failure
on Mr McLeish’s part to do so. He failed to report on at least 21 December 2022,
22 December 2022, 4 January 2023, 9 March 2023, 4 April 2023 and 28 April 2023. He did attend on 23 March 2023 and signed a direction in relation to performance of community service work. However, he did not perform any community service work. He
was credited with one hour of community service work which involved the general
induction process undertaken with Ms Backhouse.
The offender’s family circumstances have changed since he was sentenced. He now has
a young son with his new partner who was born in March. There were some difficulties
with the pregnancy. The child spent nine days in the intensive care unit and suffers from digestive issues. He is also in the process of selling a house which he owned with his ex-partner which he anticipates will assist in dealing with a mortgage default on the part of his current partner. His current partner does not drive and relies on him both for that
and the obvious emotional and physical support in dealing with their young child.
Consideration
34. The position is that initially the relatively minor breaches were brought to the court’s
attention and notwithstanding that Mr McLeish was very explicitly given an opportunity
to rectify his breach by re-engagement with ACT Corrective Services, he failed to do so and after 12 months has failed to complete any more than one of the 100 hours of community service. I am satisfied beyond reasonable of his breach of that obligation.
35. Having found the breaches I am required under s 110 of the CSA Act to cancel the good behaviour order and either impose the balance of the suspended sentence or resentence the offender. In the present case, I reject the submission made on behalf of the prosecution that the suspended sentence should merely be imposed. This is not a case
where further offending has been proved, rather it is a case where there has been substantial non-compliance with a condition of the suspension of a sentence. It appears to me that the consequences of non-compliance should be tailored to the nature of that
non-compliance in the context of the original sentence of imprisonment, the current circumstances of the offender and the need to ensure that the institution of suspended sentences is not brought into disrepute.
36. While there has been no overt defiance of the conditions of the good behaviour order, it
is clear that Mr McLeish has not approached his obligations with the degree of gravity which they deserve. He has allowed himself to fall into substantial non-compliance with the order. He has been given an opportunity to avoid further custodial punishment through the performance of community service. He has not taken up that opportunity
despite the opportunities given to him over many months after he first fell into breach of his obligations and was on notice of the fact that he could be dealt with for that non-compliance by the court.
37. I deal with him on the basis that he has demonstrated an unwillingness or inability to
comply with the requirement of community service. In order to ensure that he receives appropriate punishment for his offending and in order to ensure that consequences are seen to flow from his failure to comply with the obligations associated with the suspended sentence of imprisonment, it is appropriate to resentence in a manner that involves a
further period in custody. Having said that, it is not a case in which the failure to comply
with the terms of the original sentence puts the offender’s prospects of rehabilitation in a
completely different light and hence warrants a significantly more severe sentence to be
imposed. In my view, the appropriate approach is to impose a sentence in which the additional custodial portion of the sentence bears some relationship to the unserved period of community service.
38. In reaching the conclusion that a further period of custody is required, I take into account
that because of his previous occupation referred to in the earlier sentencing decision, his conditions in custody will be more onerous than would otherwise be the case. That was a factor which influenced the leniency of the earlier sentence and ought to have provided a specific incentive for him to comply with the requirements of the good behaviour order.
39. I have also taken into account the obvious impact that a disposition involving a further
period in custody will have upon his partner and young child. Those impacts are likely to be significant but given that the additional custodial portion of the sentence will bear a relationship to the unserved period of community service it will not be very long.
40. Having regard to the original sentence which involved the service of 100 hours of community service, only one of which has been completed, it is appropriate to add an additional 14 days to the period required to be served in custody. He spent a period in
custody on 12 October 2022 as a result of being arrested in order to get in before the court in relation to the breach proceedings. He was also arrested again on 9 May 2023 and spent part of 9 and 10 May in custody. This time in custody will be taken into account
as part of the backdating of the sentence. The head sentence will remain ten months but that will be suspended after 70 days. The effect of the sentence is that he will be required to spend a further 11 days in custody.
41. There will be a good behaviour order for a further year. That will not include any
requirement for supervision because, having regard to his regrettable history, that would be setting him up to fail and may reasonably be dispensed with in circumstances where he will be occupied with and motivated by the need to participate in his new family.
| Order | ||
| 42. | The order of the Court is as follows: | |
|
The offender is sentenced to imprisonment for 10 months commencing on 14 March 2023 and ending on 13 January 2024 which is to be suspended after the offender has served 70 days upon him entering into an undertaking
to comply with his good behaviour obligations for a period of 12 months.
I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
Associate:
Date: 28 June 2023
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