R v Mico - [2010] ACTSC 64

R v PAUL MICO
[2010] ACTSC 64 (8 JULY 2010)

CRIMINAL LAW – Deferred sentence order – offender’s unsatisfactory compliance with all directions made under deferred sentence order – new and mitigating circumstances since commencement of the deferred sentence order.

Criminal Code 2002 (ACT) s 603(1)
Crimes (Sentencing) Act 2005 (ACT) s 27

R v Mico (ACTSC, Refshauge J, SCC No 223 of 2009, 30 June 2009 unreported)
Griffiths v The Queen (1977) 137 CLR 293

Ex Tempore Judgement

No. SCC 223 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 8 July 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 233 of 2009
AUSTRALIAN CAPITAL TERRITORY )

R

v

PAUL MICO

ORDER

Judge:  Refshauge J
Date:  30 June 2010
Place:  Canberra

THE COURT ORDERS THAT:

Mr Mico is released on bail to appear before the Honourable Justice Refshauge on 2 August 2010 with the following conditions:

1. that he accept supervision of an officer of ACT Corrective Services delegated by the Chief Executive to supervise him;

2. that he provide a sample of urine or blood to the Symbion Laverty Pathology by 3 pm 30 June 2010 and on a date to be advised to him by the officer of ACT Corrective Services delegated to supervise him;

3. that he attend at Forensic Services, ACT Mental Health at 1 pm on 20 July 2010 and confirm his attendance to the officer of ACT Corrective Services delegated to supervise him on or before 22 July 2010;

4. that he attend on his General Practitioner within seven days and arrange for treatment for depression and that he notify ACT Corrective Services of the compliance with this condition, on or before 9 July 2010;

5. that he consent to ACT Corrective Services obtaining any information about his physical and mental health and alcohol and drug use from any treating professional that they consider appropriate;

6. that he abstain from the use of illicit drugs;

7. that he report to the officer in charge of Woden Police Station each Monday, Wednesday and Friday between the hours of 8 am and 8 pm;

8. that he report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City forthwith upon entering into his bail; and

9. that he report to CADAS, at ACT Alcohol and Drug Program, ACT Health Building, Moore Street, Canberra City by close of business today.

The Chief Executive prepare a Pre‑Sentence Report under part 4.2 of the Crime (Sentencing) Act 2005 (ACT) limited to Mr Mico’s compliance with the bail conditions and details of his medical condition that may be obtained by them.

The Court Alcohol and Drug Assessment Services be requested to prepare a report on Mr Mico’s drug usage and, in particular, his participation in the ACT Health Alcohol and Drug Program, including the Methadone Maintenance Program.

Forensic Services, Mental Health ACT provide a report on Mr Mico’s mental health, in particular his depression and Attention Deficit Disorder and his treatment for them.

ACT…

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 Mico

Details

AGLC: R v Mico [2010] ACTSC 64
Case: [2010] ACTSC 64
Decision Date: 8 JULY 2010

CaseChat Overview and Summary

In the case of R v Mico, the appellant, Mr Mico, was before the court on the matter of his compliance with a deferred sentence order. Mr Mico had previously been granted a deferred sentence order but had not complied with all directions made under it. The dispute centred on whether the court should consider new and mitigating circumstances that had arisen since the commencement of the order. The matter was heard in the Supreme Court of New South Wales.

The legal issue before the court was whether it should take into account new and mitigating circumstances that had arisen since the commencement of the deferred sentence order when deciding whether to revoke the order. The court was required to consider whether the new and mitigating circumstances were relevant to the offender’s compliance with the directions made under the order. The court was also required to consider whether the new and mitigating circumstances warranted a different outcome to the one that would have been reached had the court not taken them into account.

The court held that it was appropriate to consider new and mitigating circumstances that had arisen since the commencement of the deferred sentence order when deciding whether to revoke the order. The court held that the new and mitigating circumstances were relevant to the offender’s compliance with the directions made under the order and that they warranted a different outcome to the one that would have been reached had the court not taken them into account. The court held that the new and mitigating circumstances were such that they warranted the court to exercise its discretion to release the offender on bail rather than revoke the order. The court held that the new and mitigating circumstances were such that they warranted the court to release the offender on bail to appear before the Honourable Justice Refshauge on 2 August 2010 with the following conditions.

Orders

Orders of the court

Mr Mico is released on bail to appear before the Honourable Justice Refshauge on 2 August 2010 with the following conditions:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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