R v Mena (No 2) - [2020] ACTSC 351

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Mena (No 2)
Citation:	[2020] ACTSC 351
Hearing Date:	18 December 2020
DecisionDate:	18 December 2020
Before:	Mossop J
Decision:	See [49]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach of good behaviour order – failure to adhere to reporting requirements – fresh driving offences – resentenced – aggravated burglary – assault occasioning actual bodily harm – recklessly inflicting grievous bodily harm – intensive corrections order not appropriate – suspended sentence with good behaviour order
Legislation Cited:	Crimes (Sentence Administration) Act2005 (ACT), ss 86, 107(2), 110
Cases Cited:	R v Mena [2018] ACTSC 92
Parties:	The Queen (Crown) Sugimatatihuna Mena (Offender)
Representation:	Counsel M Howe (Crown) B Shelton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender)
File Number:	SCC 303 of 2017

MOSSOP J:

Introduction

The offender, Sugimatatihuna Mena, was sentenced by me on 9 February 2018 for the offences of aggravated burglary, assault occasioning actual bodily harm and recklessly inflicting grievous bodily harm: R v Mena [2018] ACTSC 92. He was sentenced to an aggregate sentence of 31 months’ imprisonment which was suspended after having served 10 months in prison, upon entry into a good behaviour order for a period of two years. The good behaviour order commenced on 7 December 2018 and expired on 6 December 2020.

In addition to the core conditions of the order under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), I imposed the following conditions:

(a)that he be subject to supervision on parole for a period of two years or such lesser period determined by the Director-General and obey any directions of the Director-General;
(b)that he supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer; and
(c)that he attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General.

On 11 December 2018 I amended the condition under paragraph (a) by deleting the word “parole” and inserting “probation”.

The offender has breached the good behaviour order on multiple occasions throughout 2020.

Procedural history

Dealing with the breaches has a long procedural history. The matter was before me and adjourned on numerous occasions. This was initially so that the offender could obtain a place in residential rehabilitation but was subsequently for the purpose of obtaining an intensive correction order (ICO) assessment. The offender was ultimately assessed as suitable for an ICO although the author identified that this assessment was “with hesitation”.

Breach Reports

On 11 May 2020 an alleged breach of good behaviour order report was prepared by ACT Corrective Services which detailed numerous breaches of the offender’s good behaviour order, relating to the offender’s failures to comply with the probation condition.

While under the supervision of ACT Corrective Services the offender had reporting requirements and was referred to Everyman Australia to undertake the Preventing Violence Managing Anger Program. He attended…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mena (No 2)

Details

AGLC: R v Mena (No 2) [2020] ACTSC 351
Case: [2020] ACTSC 351
Decision Date

CaseChat Overview and Summary

The case of R v Mena (No 2) involved the offender, Sugimatatihuna Mena, who was originally sentenced by Mossop J on 9 February 2018 for the offences of aggravated burglary, assault occasioning actual bodily harm, and recklessly inflicting grievous bodily harm. Mena was sentenced to an aggregate sentence of 31 months’ imprisonment, which was suspended after having served 10 months in prison, upon entry into a good behaviour order for a period of two years. Mena has breached the good behaviour order on multiple occasions throughout 2020, and additional driving offences were committed while subject to the good behaviour order. The court was required to determine the appropriate sentence for Mena, considering the breaches of the good behaviour order and the new charges.

The legal issues before the court were whether to reimpose the balance of the term of imprisonment, or to impose an intensive correction order (ICO), or to adopt a suspended sentence combined with a simple good behaviour order. The court considered Mena's motivation to get free of drugs, his mental health issues, drug use history, and difficulties dissociating from antisocial people. The court also took into account that Mena had not committed any serious offences since the original offences in May 2017 for which he was sentenced.

The court decided that it was not appropriate to reimpose the balance of the term of imprisonment or to impose an ICO, as doing so may set Mena up to fail. Instead, the court chose the approach involving a suspended sentence with a simple good behaviour order. The court considered this to be the appropriate course, as Mena had not committed any further serious offences of the type for which he was originally sentenced, and he had partially succeeded in serving the period of his good behaviour order.

In conclusion, the court ordered that the good behaviour order entered as a result of the court's orders on 9 February 2018 is cancelled, and Mena is resentenced as follows: on the charge of recklessly inflicting grievous bodily harm, Mena is sentenced to imprisonment for six months, wholly suspended upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months; on the charge of aggravated burglary, Mena is sentenced to imprisonment for six months, also wholly suspended upon the offender entering into an undertaking to comply with his good behaviour obligations for a period of six months; and on the charge of assault occasioning actual bodily harm, Mena is required to enter into an undertaking to comply with his good behaviour obligations for a period of six months.

Orders