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 six of the 12 sessions. The breach report indicated that prior to December 2019, the offender had a positive response to supervision. At the time, he engaged well with treatment, had stable accommodation and employment.
The breach report details a series of incidents in December 2019 and early 2020 in which the offender was the victim of a shooting and a stabbing, was asked to leave his accommodation and his relationship broke down. He advised ACT Corrective Services that he had been using illicit drugs and abusing prescription medication and that he had been struggling with his mental health since a friend of his committed suicide in December 2019.
The details of the breaches are as follows.
Failure to report and to attend Everyman Australia appointments
10. On 8 January 2020 the offender advised that he had ceased employment and was directed to attend supervision on 10 January 2020. He failed to report as directed and did not advise ACT Corrective Services of his inability to do so. He was contacted on 13 January 2020 and advised that he had fallen asleep and missed the appointment.
11. On 23 January 2020 the offender reported late for supervision. If his appointment with ACT Corrective Services went ahead, he would miss his Everyman Australia appointment so he was directed to attend that instead.
12. On 30 January 2020 he failed to report as directed.
13. On 20 February 2020 he failed to report as directed.
14. On 17 March 2020 he failed to report as directed. He advised that he was unable to get a lift to his appointment.
15. On 30 March 2020 he failed to report as directed and failed to notify ACT Corrective Services of his inability to do so.
16. On 15 April 2020 he failed to report as directed. He later advised that he had forgotten the supervision appointment was that day.
17. On 23 April 2020 the offender failed to attend an Everyman Australia appointment.
18. On 20 November 2020 he failed to report as directed.
19. These breaches put the offender in breach of the probation condition of the good behaviour order.
New charges
20. The offender has also been charged with several offences in the Magistrates Court while subject to the good behaviour order.
21. On 31 December 2019 he was charged with one count of driving a motor vehicle with a prescribed drug in his oral fluid (as a repeat offender) and one count of being an unlicensed driver. On 1 January 2020, while on bail for those offences, he was charged with one count of driving a motor vehicle with a prescribed drug in his oral fluid (as a repeat offender) and one count of being an unlicensed driver. On 12 February 2020, while still on bail, he was charged with one count of failing to provide an oral fluid sample as a driver of a motor vehicle and one count of being an unlicensed driver.
22. He has pleaded guilty to all of those offences and on 6 August 2020 all of those offences were committed to the Supreme Court under s 107(2) of the Crimes (Sentence Administration) Act. The offender is next in the Magistrates Court for these offences on 11 February 2021. He has yet to be sentenced.
23. In accordance with the core conditions of the good behaviour order, offences punishable by a term of imprisonment put the offender in breach of the good behaviour order: see Crimes (Sentence Administration) Act s 86(1)(a). These are the two charges of driving a motor vehicle with a prescribed drug in his oral fluid as a repeat offender (CC2020/507 and CC2019/13700). At the time of offending, the offender had been subject to the good behaviour order for approximately one year of the two year good behaviour period.
24. Section 107(2) of the Crimes (Sentence Administration) Act appears to require the Magistrates Court to commit the offender to the Supreme Court in relation to any offence committed during the term of the offender’s good behaviour order. That does not sit well with the fact that only offences carrying a sentence of imprisonment amount to breaches of the core conditions of the good behaviour order: see s 86(1)(a). Section 110 makes it clear that it is only where there is a breach of the good behaviour obligations that the good behaviour order associated with a suspended sentence must be cancelled and the sentence imposed or the offender resentenced. It appears to me that the obligation to commit charges under s 107(2) needs to be read down so that it only applies to offences that constitute breaches of the good behaviour obligations.
The offender’s circumstances
Pre-sentence reports
25. The offender’s personal circumstances are set out in R v Mena [2018] ACTSC 92 at [18] - [27] which describe the influence of the offender’s drug use on his offending.
The offender’s circumstances in the period after he was released from custody in December 2018 are detailed in two pre-sentence reports dated 19 March and 3 August 2020, which were prepared in relation to the driving offences. Similar detail is provided in the ICO assessment report dated 16 December 2020. Prior to December 2019, the offender appeared to be responding well to supervision. He was employed, in a relationship and had accommodation.
In December 2019, he resigned from his employment. The offender reported that this was because the employer and other employees were known to be members of an outlaw motorcycle gang (OMCG) and he was attempting to distance himself from such people. In December 2019 the offender was the victim of a shooting and in February 2020 he was stabbed. The offender suggested to the author of the pre-sentence report that this may be in relation to his attempts to distance himself from the OMCG. He told the author of the second pre-sentence report that he has been struggling since the sudden death of a friend from the OMCG and the suicide of another friend, both in December 2019.
28. In early 2020 his relationship broke down and he was required to leave the apartment he shared with his partner. He obtained accommodation in April 2020 but later was required to leave the address because of a Personal Protection Order.
The pre-sentence reports also detail the offender’s history of substance abuse. He indicated that he wanted to attend residential rehabilitation and that he had completed a referral and risk assessment for admission to the Triple Care Farm. On 21 September 2020 the offender advised the court that he had been accepted into the Triple Care Farm program but that he needed to complete a detoxication program at the Canberra Hospital first. The pre-sentence report records that he accepted responsibility for his offending behaviour and advised that he is committed to undertaking treatment to address his drug use.
30. The author of the first pre-sentence report concluded that while the offender previously had stabilising factors in his life such as accommodation, employment and family support, his life now appears somewhat chaotic. The author stated that the offender’s “illicit drug use appears to have spiralled out of his control over the past twelve months which has culminated in the loss of his accommodation, relationships and employment.”
31. By the time of the second pre-sentence report, the offender had obtained new employment as a casual labourer. He now resides with friends, although he does not have long-term stable accommodation. Although he has remained compliant with supervision since the first pre-sentence report in March 2020, as at the date of the second pre-sentence report, he continued to struggle with illicit drug use.
32. The offender is assessed as at a high risk of reoffending. The report indicates that he may be suitable for an ICO assessment and is suitable for a high level of intervention by ACT Corrective Services as part of a good behaviour order. He is not suitable for a community service work condition.
Intensive correction order assessment report
The ICO assessment report detailed a similar history to that in the two pre-sentence reports. It noted that the offender’s compliance with ACT Corrective Services in relation to supervised bail since 5 June 2020 has been inconsistent. The offender occasionally fails to report for supervision on time, however, he generally calls ahead to notify the supervision officer.
34. In relation to drug use, the offender breached his bail during the assessment period in November 2020 by testing positive for methylamphetamine, amphetamine and cocaine. The author reported that, to his credit, the offender then returned two negative urinalysis drug tests in December 2020.
The offender had a current referral with the Alcohol Drug Services Inpatient Withdrawal Unit, after being referred on 22 September 2020. His last contact with a triage nurse was on 23 October, however, an admission was not booked.
36. The offender’s counsellor from Everyman Australia reported concerns about the offender’s capacity to stay engaged with the service. The offender indicated to the author of the report his intention to re-engage with the service and his belief that he has gained a benefit from counselling with Everyman.
37. The offender’s records indicate previous diagnoses of bipolar type 2 and post-traumatic stress disorder. The bipolar diagnosis had not been confirmed. During the assessment period, he alleged that he had undiagnosed attention deficit hyperactivity disorder (ADHD), for which he was unable to fund the medical assessment for a diagnosis and treatment. He reported his prior methamphetamine use was a means of self-medicating for his ADHD symptoms.
38. He reported that he remains employed and his financial situation is stable.
39. The author determined that the offender’s companions appear to be antisocial associates, notwithstanding that the offender maintains that he has friendships with many prosocial people in the community. He appears to be aware of the potential impact that ongoing association with a negative peer group could have on his life.
40. His proposed accommodation appears to be suitable.
41. He expressed to the author of the report that he has “come a long way” since the commission of the earlier offences.
42. The offender was considered to be assessed as at a high risk of re-offending. That arises from his criminal history, illicit substance use, mental health issues and antisocial associates. ACT Police reported that they consider it unlikely that the offender will be able to comply with the terms of an ICO and the author of the report suggested a curfew condition may be considered appropriate.
43. The author ultimately assessed the offender as suitable for an ICO. The conclusion of the report is as follows:
This service holds concerns relating to [the offender’s] untreated mental health issues, his significant drug history and his demonstrated difficulty with maintaining engagement with interventions.
Conversely, [the offender] appears to have made a considerable effort to attend appointments with this Service and refrain from drug use throughout the latter portion of the ICO assessment process. Therefore, with hesitation, the offender has been assessed as suitable for an Intensive Correction Order and has verbally agreed to comply with all of the obligations of an Intensive Correction Order.
44. The ICO assessment recommends various conditions.
Consideration
45. Under s 110(2) of the Crimes (Sentence Administration) Act it is necessary to either impose the suspended portion of the sentence or to resentence the offender.
46. The evidence discloses a complex picture in relation to the offender. He appears to be motivated to get free of drugs. However, it is clear that this is not a straightforward process, he still has problems with his mental health, he has a long history of drug use and there have clearly been lapses this year. While he appears to have motivation to deal to finality with his court matters, he has a difficulty with organisation and attendance at court or supervision appointments and this gets him into trouble. He appears to have been able to maintain employment which is a positive sign. He has had difficulties dissociating from antisocial people and has only minimally disclosed the problems that he has had with members of the outlaw motorcycle gang. However, to the extent that there has been any disclosure, it appears that he is trying to escape from that world.
47. The offending for which the offender was sentenced was, as the earlier reasons disclosed, very serious. The offender served 10 months of his 31 month aggregate sentence. He then complied with his good behaviour order for a period of approximately 12 months. In the balance of the period up until the expiry of the good behaviour order, while he has had drug related breaches at about the time when his life was going off the rails in late 2019 and early 2020, and other breaches due to failing to comply with his reporting conditions, he appears to be attempting to rehabilitate himself although the path to that rehabilitation is very clearly a rocky one. He has not committed any serious offences since the offences in May 2017 for which he was sentenced by me.
48. In these circumstances, I do not consider that it is appropriate to reimpose the balance of the term of imprisonment. It is clearly an option to impose an ICO. Such an order would have the benefit of providing a very disciplined framework in which the offender was required to continue with his rehabilitation. However, as counsel for the Crown and counsel for the accused both submitted, adopting this approach may be setting the offender up to fail. Counsel for the Crown noted the absence of any further serious offending of the type for which he was originally sentenced and the partially successful service of the period of his good behaviour order. In those circumstances counsel for the Crown said he would not be heard against a simple suspended sentence combined with a simple good behaviour order. While in my view the matter is a finely balanced one, I consider that the approach involving a suspended sentence with a simple good behaviour order is the appropriate course, rather than an ICO which although providing greater structure also provides greater potential for failure, arising out of relatively minor non-compliance.
Orders
49. For those reasons, the orders of the Court are:
1. Under s 110 of the Crimes (Sentence Administration) Act2005 (ACT) the good behaviour order entered into as a result of the orders of the court on 9 February 2018 is cancelled. The offender is resentenced as follows.
2. On the charge of recklessly inflicting grievous bodily harm (CC2017/11250) the offender is sentenced to imprisonment for six months.
3. On the charge of aggravated burglary (CC2017/11248) the offender is sentenced to imprisonment for six months.
4. Each of those sentences is 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.
5. On the charge of assault occasioning actual bodily harm (CC2017/11249) the offender is required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act2005 (ACT) for a period of six months.
| I certify that the preceding forty nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date: 1 February 2021 |