R v Ngerengere (No 5)
[2016] ACTSC 388
•13 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ngerengere (No 5) |
Citation: | [2016] ACTSC 388 |
Hearing Date: | 5 December 2016 |
DecisionDate: | 13 December 2016 |
Before: | Refshauge J |
Decision: | 1. The Good Behaviour Order made on 28 September 2016 be cancelled. 2. The conviction for aggravated burglary committed on 18 July 2014 be confirmed. 3. Michael Ngerengere be sentenced to 18 months imprisonment to commence on 3 July 2016. 4. The conviction for theft committed on 18 July 2014 be confirmed. 5. Michael Ngerengere be sentenced to 12 months imprisonment to commence on 3 July 2016, to be wholly concurrent on the sentence for aggravated burglary. 6. The sentence be suspended from 10:30am on 14 December 2016 for a period of 18 months. 7. Michael Ngerengere be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months with the following conditions: (a) a probation condition that he accept the supervision of the Director-General or her delegate for a period of 18 months or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him; (b) a condition that he accompany officers at Canberra Recovery Services when released from custody and admit himself to the Bridge Program of Canberra Recovery Services; (c) a condition that, if for any reason he leaves or is discharged from the Program before he has completed it, he present yourself in person to the Registrar of the Supreme Court of the ACT within two working days for a review of this Good Behaviour Order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – suspended sentence – Good Behaviour Order to allow for drug rehabilitation – administering a Good Behaviour Order in a way that the Sentence Administration Board might administer parole – specific deterrence |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110 |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 R v McGrail [2016] ACTSC 142 |
Parties: | The Queen (Crown) Michael Ngerengere (Defendant) |
Representation: | Counsel Ms S McMurray (Crown) Mr H Jorgensen (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number: | SCC 66 of 2015 |
REFSHAUGE J:
On 7 August 2015, I convicted Michael Ngerengere of offences of aggravated burglary and theft committed on 18 July 2014. I made a Deferred Sentence Order under s 27 of the Crimes (Sentencing) Act 2005 (ACT): R v Ngerengere [2015] ACTSC 224.
The intention was that Mr Ngerengere undertake drug rehabilitation. He had generally conducted himself well in such programs previously and wished to enter the Karalika Therapeutic Community. I gave him that opportunity.
Unfortunately, he encountered problems, largely because of his tobacco addiction which was an unfortunate added pressure to the other challenges that inevitably face a drug addict seeking rehabilitation.
I permitted him to remain at large on bail until 13 October 2015 when I varied his bail to provide for him to undergo a detoxification program and then enter the drug rehabilitation program at Canberra Recovery Services (CRS).
He entered that program but was arrested and charged with an assault, following which he was remanded in custody.
When those charges were ultimately dismissed, he continued on bail that I had granted, but, on 13 January 2016, breached the conditions of that bail by providing a sample of urine which detected methylamphetamine on urinalysis. I subsequently revoked his bail.
He remained in custody awaiting re-admission to the CRS program. It is a matter of great concern to this Court that, although found suitable for residential rehabilitation, Mr Ngerengere spent many months in gaol because the access to such facilities is so limited.
Nevertheless, after waiting until June 2016, Mr Ngerengere finally invited me to proceed with sentencing.
I indicated that, in the circumstances, I intended to impose for the offences a sentence of imprisonment totalling approximately 18 months. I was requested to make an Intensive Correction Order and, accordingly, requested an assessment. See R v Ngerengere (No 2) [2016] ACTSC 155.
Unfortunately, Mr Ngerengere was found unsuitable and, although I can make such an order notwithstanding that assessment (s 78 (7) of the Crime (Sentencing) Act), I concluded that I should not do so. Instead I proceeded to sentence Mr Ngerengere but suspended the sentence to allow him to continue in the Bridge Program at CRS: R v Ngerengere (No 3) [2016] ACTSC 299.
Mr Ngerengere continued his rehabilitation at CRS, but, on weekend leave on 6 October 2016, he consumed cannabis and was suspended from the Bridge Program. In the circumstances, I considered that this did not breach the Good Behaviour Order: R v Ngerengere (No 4) [2016] ACTSC 300.
Unfortunately, following weekend leave on 19 and 20 November 2016, Mr Ngerengere returned a positive drug screen because of some methylamphetamine (Ice) he had consumed provided to him by his nephew.
On 24 November 2016, he was discharged from the Program. He told me frankly about the meeting with his nephew and the Ice that he had consumed.
As a result I remanded Mr Ngerengere in custody.
In R v Ngerengere (No 3) at [77], I noted that he had already spent a long time in custody; indeed, I backdated the sentence by nearly five months to take into account pre-sentence custody and periods spent in rehabilitation.
While that is probably too short for a non parole period, I considered that, were I to make a non parole period, Mr Ngerengere may remain in custody beyond that period because of the time it takes to arrange and prepare for a bail hearing. It was for these reasons that I decided not to make a non parole period but instead to suspend the sentence with a Good Behaviour Order, as I did.
The Crown supported that further structured and conservative attempt to allow Mr Ngerengere to complete drug rehabilitation.
When Mr Ngerengere breached the Good Behaviour Order by consuming Ice, I remanded him in custody.
I was told, however, that CRS would be prepared to have him back although, at that stage, no date had been set for that readmission.
It seems to me that because of the way that I have been sentencing Mr Ngerengere, I am now administering the Good Behaviour Order in a way that the Sentence Administration Board might administer parole. This takes it a little out of the usual approach to the breach of a Good Behaviour Order that I discussed in Guy v Anderson [2013] ACTSC 5 at [83]-[87]. That said, the procedure is still the same as that required for any other breach of a Good Behaviour Order made when a sentence of imprisonment is suspended.
I have received a number of items of assistance in the lengthy period during which I have been dealing with Mr Ngerengere’s matter. I appreciate the assistance I was provided, including the Report for the Intensive Correction Order.
After remanding Mr Ngerengere in custody, I adjourned for the purposes of obtaining some further information. In particular, I received a report from the Court Alcohol and Drug Assessment Service (CADAS), which was a positive Report. The CADAS Report said that Mr Ngerengere had enjoyed his time at CRS and felt that he had progressed well within the Program. He expressed remorse and disappointment at himself for consuming drugs as he had done.
He had also been subject to a psychiatric review on 28 November 2016, though nothing was reported to me as a result of that review.
While Mr Ngerengere wished to return to CRS, nevertheless he explored other options. An option of release into the community was explored. That would involve two principal aspects: attendance at the Smart Recovery Program, a Program that is well described in R v McGrail [2016] ACTSC 142 at [78]-[80]. That would be supplemented by attendance at Alcoholics Anonymous. There are other counselling options but all have waiting lists. I am not satisfied that Mr Ngerengere should be in the community without an actual program of support and counselling in play.
The other aspect of the proposal was ongoing assistance through the Detention Exit Community Mental Health Outreach Program (DECO), a partnership between Wellways Australia (formerly the Mental Illness Fellowship), Karalika Alcohol and Drug Programs, and Mental Health, Justice Health and Alcohol and Drug Services facilitated by ACT Health. Mr Ngerengere had participated in that Program between 15 June and 6 September 2016 and made progress towards having a greater insight into his mental illness.
While the CADAS Report suggested that there could be some ongoing support in the community, I decided that it was not appropriate at that stage and, until Mr Ngerengere was able to be re-admitted to the CRS Program, he should remain in custody. This is consistent with the kind of approach that might be taken by the Sentence Administration Board were they administering parole in the same circumstances.
I have now advice from CRS that Mr Ngerengere has been offered a place on Wednesday, 14 December 2016. He can be collected from the Alexander Maconochie Centre by staff from CRS. He will receive a drug test on arrival, and if the test is positive, his admission will be in jeopardy.
Having reviewed the progress of Mr Ngerengere, his general commitment, although regrettably marred by examples of continuing drug use, I am satisfied that it is appropriate to release him back to CRS.
It is unfortunate that I cannot simply amend the Good Behaviour Order because there has been a breach. I am required under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) to cancel the Good Behaviour Order if satisfied that there has been a breach. I am so satisfied.
Having done so, I may either impose the sentence that was suspended or re-sentence Mr Ngerengere.
Given the period he has spent in custody and the agreement by CRS to re-admit him, and in the light of the attitude of the Crown, I considered that re-sentencing is appropriate. It is clearly to the community’s benefit that Mr Ngerengere is able to manage his drug addiction by successfully completing a program such as CRS. He remains committed to that Program and his regret and disappointment at himself leads me to believe that there is a basis for a further opportunity. In the re-sentencing, however, I have to conduct a genuine review of the sentencing.
Given the history of this matter and the times during which Mr Ngerengere has been before me in the past, I do not need to repeat the matters that I have set out in the earlier decisions to which reference has been made earlier in these reasons.
I have had regard to that material as well as the other material that I have discussed in these reasons. That earlier material includes an assessment of the facts, the seriousness of the offending behaviour, and the subjective circumstances of Mr Ngerengere. That includes the matters to which I am required to have regard under s 30 of the Crimes (Sentencing) Act.
I also have regard to the additional period of custody that Mr Ngerengere has served.
Accordingly, I will re-impose the sentence, with appropriate adjustments, and require Mr Ngerengere to complete the Program at CRS.
Mr Ngerengere, please stand:
1. I cancel the Good Behaviour Order made on 28 September 2016.
2. I confirm the conviction for aggravated burglary committed on 18 July 2014.
3. I sentence you to 18 months imprisonment to commence on 3 July 2016.
4. I convict you of theft committed on 18 July 2014.
5. I sentence you to 12 months imprisonment to commence on 3 July 2016.
6. I suspend that sentence from 10:30am on 14 December 2016 for a period of 18 months.
7. I require you to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months with the following conditions:
(a) a probation condition that you accept the supervision of the Director-General or her delegate for a period of 18 months or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising you;
(b) a condition that you accompany officers at Canberra Recovery Services when released from custody and admit yourself to the Bridge Program of Canberra Recovery Services;
(c) a condition that if for any reason you leave or are discharged from the Program before you have completed it, you present yourself in person to the Registrar of the Supreme Court of the ACT within two working days for a review of this Good Behaviour Order.
[His Honour then spoke directly to Mr Ngerengere]
Mr Ngerengere, you probably understand what I have just said because of our long history. But to reiterate, what I have said is you can get out of gaol tomorrow at 10:30am as long as you are going to the Canberra Recovery Services. Someone from there, and I hope Mr Jorgensen will let them know, will be there to pick you up and take you to CRS. You will be given a drug test, and if you fail that drug test, then you will be back in custody. But if your urinalysis is clear, then you will be re-admitted into the CRS Program and hopefully this time you will be able to manage it without using drugs. You really have to be strong and committed to this because I cannot keep giving you further chances. You have to work really hard because if you are successful, then you are going to be a useful member of the community again. But if you are not, then you are just going to be sent back to gaol for the remainder of your sentence and that is no use to anyone, especially you, but also to the taxpayers of the community and those people against whom you commit crimes.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 9 January 2017 |
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