R v Ross
[2011] ACTSC 211
•21 December 2011
R v DYLAN ROSS
[2011] ACTSC 211 (21 December 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – deferred sentence order – approach of the court on partial completion of rehabilitation.
CRIMINAL LAW – evidence – sentencing proceedings – tender of reports – role of the prosecution.
Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 27, 33, 37, 46,116, 118, 126, 127, 128, Ch 8
Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
Crimes (Sentence Administration) Act 2005 (ACT), s 110
R v DR (ACTSC, Refshauge J, SCC 245 of 2010, unreported)
Winch v The Queen [2010] VSCA 141
Ross v Mothersole [2010] ACTSC 125
Seymour (1983) 5 Cr App R(S) 85
Saga v Reid [2010] ACTSC 59
The Queen v Weaver (1973) 6 SASR 265
Duca v The Police (1999) 73 SASR 15
R v Ashman [2010] ACTSC 45
Whitehorn v The Queen (1983) 152 CLR 657
R v Palu (2002) 134 A Crim R 174
Griffiths v The Queen (1977) 137 CLR 293
R v Huat Phay [2009] ACTSC 130
R v Trindall (2002) 133 A Crim R 119
Channon v The Queen (1978) 33 FLR 433
EX TEMPORE JUDGMENT
No. SCC 245 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 21 December 2011
IN THE SUPREME COURT OF THE )
) No. SCC 245 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
DYLAN ROSS
ORDER
Judge: Refshauge J
Date: 21 December 2011
Place: Canberra
THE COURT ORDERS THAT:
Dylan Ross be granted bail to appear before the Court for sentence on 3 February 2012 at 9.30 am on the following conditions:
(a) he accept supervision of the Director General or her delegate and obey all reasonable directions of the officer delegated to supervise him;
(b) he reside at 52A Finniss Crescent, Narrabundah ACT 2604;
(c) he abstain from the use of illicit drugs and alcohol;
(d) he submit to breath analysis when requested by any officer of the Australian Federal Police of the officer delegated to supervise him and he submit to urinalysis when requested by the officer delegated to supervise him; and
(e) he report to the officer in charge of Woden police station every Wednesday between the hours of 8.00 am and 8.00 pm.
This matter has raised some important issues of procedure and principle and so I have taken the trouble to consider the issues carefully overnight. The judgment I am now delivering is what is usually termed as an “ex tempore judgment” and has not had the thought that I would have liked to put into all the issues.
The prisoner, Dylan Ross, was committed by the Magistrates Court on 5 July 2010 for sentence on a charge of assault occasioning actual bodily harm that occurred on 14 May 2010. When the matter came on for sentence, after the usual pre-sentence procedures, I convicted Mr Ross on his plea. The offence was a serious one and a proper sentence would be a severe one, moderated by appropriate account of his subjective circumstances.
In brief, Mr Ross was moderately affected by alcohol in the evening in question and was walking through Civic in the late evening when he came across some other pedestrians. Mr Ross says that he asked them for a cigarette and they said they did not have any. He says he remembers being hit by one of them. This was not included in the agreed statement of facts, but does not appear to have been challenged by the prosecution.
In any event, the agreed statement of facts continued that Mr Ross became aggressive, pushing one of the pedestrians and saying words to the effect of “Asian cunt” to one of them, who may have been the victim. That man then pushed Mr Ross out of his personal space and this may be what Mr Ross remembers as being hit.
The two pedestrians retreated into a nearby bar and sought refuge from its staff. Mr Ross was outside, yelling out to the two men. The two were allowed to sit down, but a short time later Mr Ross ran into the bar and pushed a broken bottle into the victim’s face, causing a deep cut below his left ear and another cut to the side of the head. Mr Ross did not leave, but was then detained by bar staff, who had called the police and an ambulance.
Mr Ross was then spoken to by police. He admitted finding the bottle outside the bar, breaking it and bringing into the bar, as he said, “To get the victim. They started it.” He then burst into tears and said he was really sorry.
A pre-sentence report was tendered, setting out the personal circumstances of Mr Ross. I do not need to detail them. They are set out in my remarks on sentence,
R v DR (ACTSC, Refshauge J, SCC 245 of 2010, unreported). It was clear, as I found, that Mr Ross was addicted to alcohol and drugs. He had made some desultory attempts at rehabilitation, though after his arrest he went to the rehabilitation agency Triple Care Farm operated by Mission Australia, graduating from its program on 27 September 2010.
He maintained contact with what was called After Care. A report from that agency was very positive, stating that Mr Ross “applied himself to completing set tasks and to constantly work towards achieving his goals.” He was described as “a great role model” and it was said that “he worked extremely well with other students and encouraged and motivated them.” In summary, it was said that overall he “participated exceptionally well with the program”. His After Care worker spoke encouragingly of his continuing commitment.
Mr Ross had also seen a counsellor about anger management, clearly another important component of the factors contributing to his offending behaviour. His counsellor wrote of “being impressed by the prisoner’s willingness to attend counselling and deal instructively with the issues.” A further problem was that Mr Ross had a gambling addiction, though that was only being addressed through his work on addiction generally.
Mr Ross was employed and had also joined a gym and had taken up boxing. While his first offence as an adult, Mr Ross had five offences of violence on his record. The statement of facts for some of these offences was tendered. One of them also involved Mr Ross using a broken beer bottle to slash the victim.
The victim impact statement made sobering reading. As well as the physical injuries, which included a scar that affected his appearance permanently, he suffered pain, emotional distress and ongoing psychological problems. He was also disadvantaged because, as an international student, he could not access Medicare assistance, suffering considerable financial loss.
I referred to the seriousness of “glassing”, that is, using broken glass to assault victims and the serious way in which the courts have said it should be treated. I referred to Winch v The Queen [2010] VSCA 141 and what I had said earlier in Ross v Mothersole [2010] ACTSC 125 (at [88] – [89]) about such assaults.
Mr Ross was a youthful offender and there was an opportunity to provide him with a less severe sentence if he was prepared to address the matters that contributed to his offending behaviour. I referred to Seymour (1983) 5 Cr App R(S) 85 where May LJ said (at 87):
A sentence other than a custodial one is perhaps justified, however, particularly in the case of a young offender, if there is any indication that he is beginning to realise the extent of his past criminality and the situation to which offences of a similar nature will take him if they are persisted in.
In summary, I was impressed by the commitment Mr Ross had made to rehabilitate himself and I considered he should, before I pass sentence, have the opportunity to address further the factors that have contributed to his offending behaviour (see s 116(1)(a) of the Crimes (Sentencing) Act 2005 (ACT)). Since his risk of re-offending would be substantially reduced were he to address these issues, then the fact of his age would combine with the opportunities to impose a less severe sentence (see s 116(1)(b) of that Act).
Accordingly, I made a deferred sentence order under Ch 8 of that Act, with conditions as to supervision, including a requirement that he comply with any reasonable direction as to treatment and counselling for alcohol and drug addiction, anger management and gambling. As I was required to do under s 118 of the Crimes (Sentencing) Act, I set out the penalties which might apply were Mr Ross to comply or not comply with the order and bail conditions.
I said:
I consider that in the circumstances no other penalty but a sentence of imprisonment is appropriate. I indicate that if you do not comply with this order and the bail conditions, I consider that you should be sentenced to a term of immediate imprisonment of approximately 18 months with a non-parole period.
I indicate that if you comply with this order and the bail conditions, I consider that you should be sentenced to imprisonment for a period of approximately 18 months which would be either served by way of an initial period of periodic detention, or alternatively, a wholly suspended sentence with a good behaviour condition. More likely, I think, periodic detention and then a good behaviour order.
Regrettably, things did not proceed smoothly. That is often the experience when dealing with human beings, their foibles, weaknesses, vulnerabilities and impetuosities or stubbornness. In that respect, but in respect particularly of drug addiction, I have commented in Saga v Reid [2010] ACTSC 59 (at [89]):
In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it.
The deferred sentence order required Mr Ross to appear before me on 20 April 2011, some five months later. He did so. He had continued his employment and his employer wrote an impressive reference, describing him as “reliable, always appeared very keen, and was an effective addition... to our team”. He was prepared to continue to employ him.
The problem was, however, continued drug use. Mr Ross has continued on occasions to use drugs. He went for detoxification to Arcadia House operated by Directions ACT and then returned to Triple Care Farm. He remained engaged with the officer delegated to supervise him, with whom he was very largely open and honest. He had organised his own admission to Arcadia House and had entered the Salvation Army’s Canberra Recovery Services program shortly before appearing before me. A report showed he had begun counselling there and engagement in the program.
I considered whether I could extend the deferred sentence order. The legislation is not clear. On a review under s 128 of the Crimes (Sentencing) Act, I can “amend any of the deferred sentence order’s conditions”. The order to appear before me for sentence (s 27(2) of the Crimes (Sentencing) Act) is probably not a condition: see, for example, s 27(5).
I considered, however, that I could make a further deferred sentence order, which I did. This included a condition that Mr Ross remain at the Canberra Recovery Services and undertake its Bridge Program. I then deferred sentence to 3 February 2012.
Things, however, got worse. On 24 May 2011, Mr Ross appeared before me as he had breached the bail condition because he had returned a urine sample positive to amphetamine, methamphetamine and cannabis. He had also been discharged from Canberra Recovery Services on 21 April 2011 for “a breach of the code of conduct”. I remanded him in custody.
The discharge appeared to relate to some mental issues that had been identified, so I caused Mr Ross to be examined by Dr G George, consultant forensic psychiatrist. Dr George found no impairment or mental illness, but nevertheless reported:
[Mr Ross] would profit by a residential drug and alcohol program over an extended period of time. He would profit by some psychotherapeutic input through a men’s group. He would profit by being under the care of an alcohol and drug counsellor through Community Mental Health ACT.
His prognosis is guarded due to his substance abuse and the fact that he has not been able to sustain a commitment to a residential program for substance abuse to date.
I noted at the time:
He has now been assessed as suitable for admission to the Odyssey House program of 12 months’ rehabilitation. That program has the particular advantage that it has a specific component for methamphetamine users and also an anger management program.
I expressed some concern that this was the third program that Mr Ross had sought in his claim for rehabilitation. I then referred to what I had said when giving him the chance to undertake the program at Canberra Recovery Services on 20 April 2011. What I had said in April was:
If you leave [the Canberra Recovery Services] program, then you may as well assume that you are going to jail. I do not give you any guarantees, that would be silly, but you should be under no illusion that that is where you are aiming if that is what happens. If you stick at it, you keep going at it, and you come out at the other end, then the court is entitled to give you some leniency.
I noted then on 20 June 2011:
While that does not in terms state that that was his last chance, it is as close to it as a cautious judicial officer should probably go. Mr Ross has now spent nearly a month in custody. He has made it clear that this has been a wake-up call that he does not intend to spend more time in custody if he can help it. This is a motivation for him to work really hard to address his addiction, but also now his anger.
I gave careful consideration to how I should proceed. I was affected by what the Full Court of the Supreme Court of South Australia said in The Queen v Weaver
(1973) 6 SASR 265 when it articulated the well known principle that whenever a young person is before the court and this does not only mean a minor, that is a person under the age of 18 years, rehabilitation should be a prominent consideration in any sentence.
I noted that, in applying that principle, Lander J had said in Duca v The Police (1999) 73 SASR 15 (at [38] – [39]):
Of course, his previous convictions as a juvenile are important and of course they must be taken into account in determining whether or not it would be appropriate to suspend the period of imprisonment.
However, I think because the appellant has been previously convicted as a juvenile he is not necessarily disqualified from the considerations expressed in The Queen v Weaver.
I said that Mr Ross had had a chance but had not progressed far enough to justify leniency but that he had, after more than a month in custody, thought more carefully about his needs. I added:
I [am] prepared to give him one last chance, and really it is the last chance, but I emphasise that this time unless there are exceptional circumstances, a failure to complete the Odyssey House program can have no consequence but immediate full-time in custody.
Accordingly, I amended the conditions of the order to permit Mr Ross to complete the second deferred sentence order at Odyssey House in Sydney.
In the bail I granted him, I included the following conditions:
· he be released into the company of his parents...;
· he remain in their company until admitted to Odyssey House;
· he remain in the Odyssey House program until completion of that program and consent to the staff of Odyssey House providing any information that might be reasonably required by the officer delegated to supervise him and by an officer of CADAS;
· if not admitted to, or discharged from the program before its completion he is to report to the Registrar of the Supreme Court within 24 hours with a view to having his bail reconsidered...
I needed to monitor progress and so granted the bail only until 31 August 2011, though the deferred sentence order required Mr Ross to appear on 3 February 2012.
On 31 August 2011, Mr Ross appeared. A bail progress report was provided by ACT Corrective Services as well as two CADAS reports, one of 20 July 2011 and one of 30 August 2011.
The first CADAS report was very detailed, setting out the drug and alcohol history reported by Mr Ross and of his alcohol and other drug treatment history. I do not need to outline them, though it was of significant assistance in my consideration.
It confirmed that Mr Ross had identified appropriate and achievable goals and that he wanted “to become free from drugs and alcohol both for his friends and family but especially for himself”. It confirmed, unsurprisingly, that the time he had spent in custody “may have improved his motivation to remain in the community and abstinence [sic] from alcohol and other drugs”.
It reported he was no longer looking for drugs and appeared remorseful. It reported contact with Odyssey House, where Mr Ross remained, at that stage, in the assessment stage of the program. The report strongly recommended that he remain in the program.
The bail progress report stated that Mr Ross had successfully completed level 1 of the four-level program. His therapist was reported as saying that he had “clearly begun to demonstrate a willingness to engage in the Program and... was generally ‘doing a great job’”. The recommendation was that he would benefit from a 12 to 18 month residency, “acknowledging his current good progress”.
The report concluded that he had “reportedly been well engaged with the Odyssey House program” and that his parents were pleased at his progress and had noted significant improvement in his physical and mental health.
I continued his bail until the conclusion of the deferred sentence order on 3 February 2012.
On 9 December 2011, Mr Ross appeared before me again. There was no formal process, so that there was some dispute about what was the nature of the proceedings.
I understood that the listing had been sought by Mr Ross, who wished to have the order reviewed and bail varied, as he had voluntarily left Odyssey House the day before and, in compliance with condition (d) of his bail, was reporting to the Court for reconsideration of that bail.
Mr A Williamson, who appeared on that day for the prosecution, submitted that I should deal with the matter as a breach of bail and that I should review the deferred sentence order and, in his words, “revoke it”.
It is helpful for the court to have formal process so that there is no uncertainty about what is being sought and by whom. Indeed, there may even be cross-applications by both parties.
Given that Mr Ross had left Odyssey House the day before and was before me on 9 December 2011, he was, at the very least, in compliance with the fourth condition of his bail (see [31]).
His access to the Court should not be impeded by any risk that his mere appearance in compliance with that bail regime will result in revocation of his bail and a return to custody, unless there are good reasons for that.
Mr Ross should be entitled, if there is a good reason to exercise his legislative right under s 126 of the Crimes (Sentencing) Act, to seek a review of the deferred sentence order without automatically being returned to custody, for I may simply refuse the variation, which would require him to return to Odyssey House, subject, of course, to that facility agreeing to take him back.
Mr Williamson tendered a copy of an email he had received from Odyssey House. It read:
Hello Anthony. I write this email with the [sic] intention of formally informing you that on Thursday, 8th of December at approximately 8 pm Dylan Ross’s mother picked him up from our grounds and left the programme. Dylan had a tumultuous Odyssey[sic], and at many different times wanted to leave our care but we managed to talk him around for his own good. Dylan was discharged on two separate occasions for threats of violence, and on both occasions was offered re-induction on the spot.
Dylan at times did very well, but he had a very poor and aggressive attitude when things did not go his way, often reverting to threats and abuse to relay his [sic].
I hope this e-mail will assist you in your deliberation, in short Dylan at very brief times, did very well, but was never truly committed.
Regards, Michael Powe
Odyssey House Mcgrath Foundation
I adjourned the proceedings to 13 December 2011 so that I could more carefully consider the bail variation. I sought a CADAS report.
On 13 December 2011, the CADAS report was tendered. It noted that an appointment had been made for Mr Ross to be assessed on Monday 19 December to review his treatment plan. It noted that:
Mr Ross appeared willing to engage in AOD counselling and CADAS had referred him to Alcohol and Drug Services Counselling and Treatment Services to enable ongoing counselling to occur.
Also tendered were certificates Mr Ross had received from Odyssey House:
· certificate of completion of the assessment stage, dated 12 August 2011, certifying that he had satisfactorily met the treatment objectives of the stage;
· certificate, dated 4 August 2011, certifying that he had completed the anger management groups; and
· certificate, dated 3 December 2011, certifying that he had successfully completed the “Better Relationship in Every Family Program” comprising 12 hours of workshops over six weeks.
Also tendered was a letter from his former employer, confirming that he would employ him if he was available for the work of a storeman.
Mr Ross had also written a letter to me explaining why he wished to return to Canberra. He stated that he understood the harm he had caused to the victim of the assault. He said:
From the moment it happened I felt regret, just not as much as now. No one deserves that done to them under any circumstances. I understand that the victim would still be going through emotion due to my actions. I have put myself in his shoes many times while being at Odyssey House.
He further said that he valued the time at Odyssey House. He said:
Other rehabilitation centres did not test me as much as Odyssey House. I have completed an anger management course which has helped me immensely with the issues around my anger, especially free from drugs.
He described the program and his participation in it. He referred to two incidents when he was discharged. Both appeared to be from inappropriate interactions with other residents. He said that he had a plan to move forward. He had full-time employment and plans to undertake a part-time course at the Canberra Institute of Technology. He has a plan to undertake the After Care Program at Odyssey House and continue counselling through the Alcohol and Drug Service.
He said:
I understand that I have come before you prematurely, but have put in place this plan for my future free of drugs. My plan is to continue to progress within the Canberra community. The upper levels of the Odyssey program are structured within the Campbelltown community and I would like the opportunity to do further counselling in Canberra, which is my home.
One of the most difficult parts of Odyssey House was being so far away from my family and other supports and being unable to speak to them regularly. I am also recovering from scabies over the past 3 months, I currently have a staph skin infection and recovering from viral gastroenteritis and would welcome the opportunity to see my doctor here in Canberra.
Mr C Lynch, who appeared for Mr Ross, noted that Mr Ross had been at Odyssey House for nearly six months, he wished to return to Canberra and obtain employment and be with his family.
Mr Williamson said that I had made it clear that Mr Ross’ last chance was to complete the Odyssey House program, that he had not done so, and so I should cancel the deferred sentence order and impose the sentence I had outlined for non-compliance with the order.
Accordingly, I set the matter down for review, gave a direction that the Director-General should be notified and sought further assistance from CADAS and ACT Corrective Services, especially with urinalysis.
When the matter was before me on 20 December 2011, reports had been received from ACT Corrective Services and CADAS. I asked Mr T Jackson, who now appeared for the prosecution, to tender them. He initially declined, apparently on the ground that he was not supporting them, as he relied on the email from Odyssey House.
I rejected that rationale. It is, of course, regular practice and, in my view, quite appropriate for the prosecution to tender such reports. That in some way this compromises the prosecutor’s ability to challenge the contents is quite wrong.
In R v Ashman [2010] ACTSC 45, I said (at [28] – [29]):
... I note that while the prosecution tenders the Pre-Sentence Report and is bound to do so in discharge of its obligation to ensure that the court is properly informed of relevant matters, especially as to suitability for certain sentencing options, the prosecution has a statutory right to cross‑examine the author of the report. This is similar to the situation in New South Wales where in R v Palu [2002] NSWCCA 381 Howie J said (at [39]):
The suggestion made at one time by the sentencing judge that the Crown was bound by the material contained in a Pre‑Sentence Report because the Crown had tendered the document, cannot stand scrutiny. It is enough to refer to the fact that an application for the preparation of such a report is almost inevitably made by the defence and a report will not be prepared without an order of the court. The report is merely tendered by the Crown as a matter of procedural formality. What weight is to be given to the contents of the report so far as any factual material is concerned is, of course, a matter for the court to assess in the light of the other material before it. But the Crown is clearly entitled to make submissions on the contents of the report including asking the sentencing court to reject some assertion of fact contained in it.
I would merely add to this comment that in recent times, it has been common for the prosecution to seek an order for preparation of a Pre-Sentence Report in this jurisdiction.
The obligation I there referred to is really a reference to the prosecutor’s duties, as outlined in many decisions of the High Court, perhaps adequately summed up in the following passage from Whitehorn v The Queen (1983) 152 CLR 657 where Dawson J said (at 674):
All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses, notwithstanding that they give accounts inconsistent with the Crown case.
Although his Honour was there referring to the trial stage of proceedings rather than the sentencing phase, the principle remains the same. These reports are material evidence which should be before the court and as produced from the Executive Government, in the case of Pre-Sentence Reports, under statutory remit, it is the prosecution’s responsibility to tender the Reports and have the author of them available for oral evidence and cross‑examination if necessary.
If, as implied by Mr Jackson, other judicial officers consider that by tendering the Reports the prosecution is somehow bound by their contents I respectfully but forcefully state that in my clear and strong opinion they are wrong.
Not only do I rely on what the New South Wales Court of Criminal Appeal said in R v Palu (2002) 134 A Crim R 174, cited above, but reinforce that by the legislative direction given in s 46 of the Crimes (Sentencing) Act which expressly permits both prosecution and defence to cross‑examine the author of the Pre-Sentence Reports.
Though there is not a statutory regime of a similar kind for CADAS reports, I am firmly of the view that they fall within the same category.
The reports were, at my urging, then tendered. The CADAS Report noted that Mr Ross was on a waiting list for counselling with Alcohol and Drug Services for ongoing counselling and that an appointment should be made in January 2012. It mentioned the possibility of counselling through Directions ACT and this should be explored. Mr Ross had also been referred to Canberra Men’s Centre and had accepted the referral.
It further reported that Mr Ross is receiving psychological support from a private practice community-based counsellor and recommended an appointment before the Christmas/New Year shutdown. It also reported that Mr Ross had enrolled in the Marymead four week Anger Management Group scheduled for 2012.
The report continued:
CADAS originally recommended long term residential rehabilitation followed by community based intervention. CADAS is satisfied with Mr Ross’ completion of almost 6 months at Odyssey House as he appears willing to engage with several forms of community based treatment (therapeutic group and counselling) has accepted all of CADAS’ referrals and reports on going abstinence.
The report from ACT Corrective Services outlined that Mr Ross had been directed to attend urinalysis screening on 15 and 19 December 2011. The result of the first screening was that no illicit drug use was detected. The result of the second screening was not then available. That second report was received on the morning I delivered this decision and tendered by Mr A Doig, who now appears for the prosecution, and it also shows no illicit drug use.
The author of the report had independently contacted Odyssey House and stated:
On 16 December 2011 an Odyssey House treatment therapist reported that Mr Ross had attended approximately six months of the Odyssey House Program and had reasonably participated in all aspects of the rehabilitative program. Most recently he had been temporarily moved back into a ‘Prodigal’ phase of the program where a resident is required to contribute a number of hours work to the Odyssey community as a consequence of misdemeanour or non-compliance with program regulations.
It was further reported by the treatment therapist that Mr Ross would be eligible to return to participate in the Odyssey House program after reapplying to that Service and stating a good case for his readmission. He would continue with the program from the stage he recently left.
The report noted that Mr Ross was assessed as suitable for periodic detention and for a Community Service Work condition.
I am very grateful for the very efficient and responsive way in which these reports were able to be provided to the Court at very short notice and with helpful comments, especially at a difficult time of the year. The courts are well served in this regard.
Mr Jackson nevertheless submitted that Mr Ross had not completed the Odyssey House program and thus he had failed to fulfil the condition I had set as that needed to justify a sentence other than the primary sentence I had proposed, namely a term of full time imprisonment for 18 months with a non-parole period.
He submitted that to impose anything less would undermine the integrity of the system for deferred sentence orders and permit offenders to escape proper punishment because of the delay in sentence.
He submitted that there was no certainty, only vague possibilities of Mr Ross returning to Odyssey House and so even were I to refuse any variation of the bail conditions there is no certainty that Mr Ross could comply and I should not make any variations with which he cannot be certain of being able to comply.
Mr Jackson then renewed the application that Mr Williamson had earlier made that the deferred sentence order be revoked. In terms of the legislation, s 128 of the Crimes (Sentencing) Act, the appropriate application is for the deferred sentence order to be cancelled and that requires the Court to be satisfied that Mr Ross has breached any of the obligations he has under the deferred sentence order.
Since one of the conditions of the Order was that Mr Ross remain at Odyssey House for the period of the order, I can be satisfied that the condition has been breached.
Nevertheless, I can review the Order on the application of Mr Ross or of the Director of Public Prosecutions and under s 126 of the Crimes (Sentencing) Act, though s 127 of the Act requires that written notice be given of the review to the offender, the Director of Public Prosecutions and the Director-General. I did direct on 13 December 2011 that such notice be given to the Director-General.
I note, however, that the notice must set out the reasons for the review, as well as the time and place fixed for it. Curiously, written notice must be given to all those referred to; that is, the offender, the Director of Public Prosecutions and the Director-General, even though, as in this case, two of them are before the court and, indeed, arguably both seek the review.
There is, in my mind, a real question as to whether there has been compliance with this section, though it is not at all clear that non-compliance would render the review invalid, especially if, as here, the relevant parties all participated in the process and were well aware of it.
On a review, there are a range of options available, set out in s 128 of the Crimes (Sentencing) Act which is in the following terms:
After reviewing the offender’s deferred sentence order, the sentencing court may do any of the following:
(a) take no further action;
(b) give the offender a warning about the need to comply with the offender’s deferred sentence obligations (including any bail conditions);
(c) by order, amend any of the deferred sentence order’s conditions;
(d) by order, cancel the deferred sentence order if –
(i) the offender has applied for its cancellation; or
(ii) the court is satisfied that the offender has breached the offender’s deferred sentence obligations.
Mr Jackson submitted that I should impose the sentence I had foreshadowed that I would be likely to impose should Mr Ross not comply with the order. That I should articulate such a sentence is an obligation under s 118 of the Crimes (Sentencing) Act. It is a unique provision in Australia, even though there are similar provisions for deferring sentences elsewhere, such as in s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and at common law by what have become known as “Griffiths Bonds” or “Griffiths Remands” following the High Court’s decision in Griffiths v The Queen (1977) 137 CLR 293.
While this process can be criticised as an artificial exercise in sentencing, dissecting the components of the instinctive synthesis, as Rares J has criticised the obligation to identify the effect of a plea of guilty under s 37 of the Crimes (Sentencing) Act in R v Huat Phay [2009] ACTSC 130 (at [25]), it is an obligation to be undertaken by the courts.
While the equivalent process in New South Wales has been suggested in R v Trindall (2002) 133 A Crim R 119 to be only rarely appropriate where a custodial sentence will ultimately be imposed and that there must be a good reason for concluding that it is likely to assist the court in determining whether an offender should be sent to jail or in fixing the length of a non-parole period, or, I interpolate, whether another form of custody, such as periodic detention or a suspended sentence with or without a community service condition, should be imposed, the deferred sentence order is more widely used in this Territory, possibly because of the wide and creative use of its predecessor, the Griffiths Bond by Gallop J, especially in the case of those subject to drug addiction where rehabilitation was a realistic option.
Mr Jackson seemed to suggest that if the conditions were not fulfilled, then the only option available to the Court must be to impose the sentence that was foreshadowed for non‑compliance.
I reject that for the following reasons:
(a)That is not in accordance with the Act. Thus, s 128 only refers to cancellation of the order, not, as, for example, under s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) of the imposition of the sentence. It also refers to a number of other options. In addition, s 118 of the Crimes (Sentencing) Act in its terms refers only to the penalty that the offender “might receive”, quite a weak verb.
(b)Once the Order is cancelled or spent, the Court’s original sentencing discretion is revived and must be exercised in accordance with the other provisions of the Crimes (Sentencing) Act, including:
· s 7: the purposes of sentencing;
· s 10: that imprisonment only be imposed if no other penalty is appropriate; and
· s 33: setting out relevant sentencing considerations, including s33(1)(t), whether the offender is voluntarily seeking treatment for any condition that may have contributed to the commission of the offence and s33(3) other relevant matters.
Thus, the court must take into account the progress to rehabilitation, if any, that the offender has made since the deferred sentence order was made.
(c) It would offend justice and fairness if progress that an offender had made was not taken into account in setting the ultimate sentence even if the offender had not reached the completion of a program or other success that the deferred sentence order contemplated.
It was suggested that to erode the sanction of the more severe penalty as a driver for rehabilitation by not imposing it if complete success is not achieved would undermine the regime of the deferred sentence. I reject that. It is, of course, important that the courts not react too leniently when an offender capriciously chooses not to complete rehabilitation that has been offered in this way. Nevertheless, any genuine and successful rehabilitation is an important part of the protection of the community, which is the end of the criminal law. See Channon v The Queen (1978) 33 FLR 433 (at 439).
In this case, Mr Ross has made progress. The certificates from Odyssey House attest to this. The comments in the email are somewhat inconsistent with these certificates, the most recent dated this month, and also the reports and assessments contained in the CADAS and Bail Progress Reports. Given the urinalysis results and his return to court for the review of his bail, I prefer these to the email.
They do suggest that I was correct in making the order to have a real expectation founded on solid grounds that reform was likely to occur, as was said by Barwick CJ in Griffiths v The Queen (at 206).
There is, however, more to do. In a sense, there is a real test when Mr Ross leaves the relative security of a residential rehabilitation facility and returns to the community where his drug, alcohol and gambling addiction was fed and developed. This is an important test of the success or otherwise of the apparent successful reform he has achieved.
Having carefully considered the matter, I am satisfied that Mr Ross has made good progress in managing his addiction and in addressing the behaviours that contributed to his criminal behaviour. I consider that he has made out a reasonable case for a change in the relevant regime for further rehabilitation. I note that Mr Doig, who now appears for the prosecution, has, in the light of the material that is now before the court, including the further bail progress report tendered today, supported that approach.
I consider that Mr Ross should still be sentenced on 3 February 2012, when I can receive full reports from Odyssey House, CADAS and ACT Corrective Services.
I will, therefore, amend the deferred sentence order to remove the condition that he attend and remain in Odyssey House. I will retain the supervision condition. I will not make it a direction, but I consider that the officer delegated to supervise Mr Ross might consider it desirable to conduct perhaps weekly or bi-weekly urinalysis.
I will hear the parties as to the conditions of the bail that should now be granted to Mr Ross.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 12 January 2012
Counsel for the Crown: Mr A Williamson (9 and 13 December 2011)
Mr T Jackson (20 December 2011)
Mr A Doig (21 December 2011)
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the offender: Mr C Lynch
Solicitor for the offender: Craig Lynch and Associates
Date of hearing: 9, 13, 20 and 21 December 2011
Date of judgment: 21 December 2011
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