R v Ngerengere (No 4)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Ngerengere (No 4)

Citation:

[2016] ACTSC 300

Hearing Dates:

7 October 2016

DecisionDate:

Reason Date:

7 October 2016

11 October 2016

Before:

Refshauge ACJ

Decision:

1.    It be declared that Mr Ngerengere has not breached the Good Behaviour Order made on 28 September 2016.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Good Behaviour Order – Good Behaviour Order conditions – suspension from rehabilitation – inflexibility of Good Behaviour Order conditions – no breach of Good Behaviour Order

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT), s 110
Crimes (Sentencing) Act 2005 (ACT), s 12

Cases Cited:

R v Ngerengere (No 3) [2016] ACTSC 299
R v BO (No 3) [2016] ACTSC 175
R v McGrail [2016] ACTSC 142

Parties:

The Queen (Crown)

Michael Ngerengere (Defendant)

Representation:

Counsel

Ms S McMurray (Crown)

Ms J Vogel (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Defendant)

File Number:

SCC 66 of 2015

REFSHAUGE ACJ:

1. The progress of a person heavily addicted to drugs is unlikely to go smoothly and while some persons using illicit drugs manage to complete rehabilitation without major incidents, others meet obstacles that cause difficulties along the way.

1. The challenge for the courts is to support genuine attempts to address drug addiction but not to be so flexible that the law is neither enforced nor respected.

1. On 28 September 2016, I re-sentenced Michael John Ngerengere to 18 months imprisonment for an offence of aggravated burglary and to 12 months imprisonment for an offence of theft committed during the burglary.  I directed that both sentences be served concurrently.  The sentences were directed to commence on 7 May 2016 to take account of pre-sentence custody.

1. I suspended the sentence on that day and, as required under s 12 of the Crimes (Sentencing) Act 2005 (ACT), made a Good Behaviour Order for 18 months with conditions requiring Mr Ngerengere to enter and remain in the Bridge Program conducted by Canberra Recovery Services. See R v Ngerengere (No 3) [2016] ACTSC 299.

1. In R v Ngerengere (No 3) at [69], that Mr Ngerengere, who has been admitted to the Bridge Program on 24 August 2016, had become entitled to weekend leave.

1. That privilege was a blessing and a curse. It is important that persons undergoing drug rehabilitation learn to meet the challenges and temptations of living again in the community, which can only be done in the community, but until they have the resources and strategies to do so, that can lead back to drug use and the end of rehabilitation.

1. That was the fate of Mr Ngerengere. On weekend leave he consumed cannabis and was, on 6 October 2016, suspended from the Bridge Program.  Subject to certain criteria, he was able to be re-admitted to the Program on 13 October 2016.

1. The Good Behaviour Order I made contained the following conditions:

d.the offender is to accept the supervision of ACT Corrective Services and obey all…