R v Sarlija
[2016] ACTSC 174
•29 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sarlija |
Citation: | [2016] ACTSC 174 |
Hearing Date: | 29 June 2016 |
DecisionDate: | 29 June 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to six months’ imprisonment. Sentence suspended after three months upon entering a good behaviour order for six months. See [26]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – breach of bail conditions – repeated failures to submit to supervision |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 |
Parties: | The Queen (Crown) Benjamin Sarlija (Offender) |
Representation: | Counsel Mr M Reardon (Crown) Mr J Robertson (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch (Offender) | |
File Number: | SCC 257 of 2014 |
MURRELL CJ:
The offender is before the Court for the Court to decide what course should be adopted under s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT).
Procedural history
On 22 September 2015, the offender was found guilty of the offence that on 29 June 2014 at Canberra he trafficked in the controlled drug heroin. On 18 December 2015 I sentenced him to eight months' imprisonment, the first two months to be served by way of full-time imprisonment and the remaining six months to be suspended upon him entering into a 12-month good behaviour order.
The suspended part of the sentence commenced on 17 February 2016, and the offender undertook to comply with good behaviour conditions from that date. On the following day, 18 February 2016, he reported to Corrective Services as directed. However, he failed to attend subsequent appointments on 25 February 2016, 16 March 2016, 7 April 2016 and 11 April 2016.
He was summonsed to appear before the Court on 19 May 2016 and he did appear. On that occasion, he was told to report directly to Corrective Services, but he said that he did not intend to do so. Because I was concerned about his appearance, I warned him about taking drugs (without making any finding about whether he had or had not done so).
A week later, the matter came back before the Court. By that stage the offender had legal representation. The Court was reminded that the offender had a history of depression and had been receiving antidepressant medication. The Court was advised that he had recently attended a general practitioner who was formulating a mental health plan. It was anticipated that he would be referred to a psychiatrist. He was working casually as a furniture removalist. This was advanced as part of the reason that he had been reluctant to attend Corrective Services appointments.
On 26 May, the breaches were found to be established and the good behaviour order was cancelled. The offender was bailed to appear on 16 June. The bail conditions required that he accept the supervision of Corrective Services during the bail period, submit to any drug testing requested by them, engage with his general practitioner to develop a mental health plan as soon as possible and present the plan to the Court on the next occasion.
The next occasion was 16 June. On that occasion, the Court was told that, as instructed, the offender had reported to Corrective Services following the appearance on 26 May. He had reported later on that day. He had been told to report to Corrective Services on Friday, 13 June, but he had not done so. He had telephoned and the appointment had been rescheduled to 16 June. The offender was bailed to today, 29 June.
The 16 June bail conditions
The bail conditions imposed on 16 June required the offender to accept the supervision of Corrective Services and report on that day, attend all appointments scheduled by Corrective Services, and submit to any request by Corrective Services for drug testing. I requested that Corrective Services require drug testing on at least one occasion during the bail period. It was a further bail condition that the offender should, as soon as possible, rectify the position regarding his problematic health care card, attend his general practitioner, develop a mental health plan and ensure that the plan was available to present to the Court today. I requested a bail progress report for today.
The offender was informed that he must comply with the bail conditions, and that failure to do so would very likely see him imprisoned. Referring to the bail orders, the bench sheet was noted, "No excuses will be accepted regarding those orders." .
Following the proceedings on 16 June the offender did report to Corrective Services on that day.
He was required to report on 20 June, but failed to do so. In Court today he said that he was sick on that occasion, but he agreed that he did not telephone Corrective Services to advise them, and the Court has not received any independent confirmation of his alleged illness.
Corrective Services sent him a letter by express post on 21 June directing him to report on 23 June, last Thursday. The offender says he did not receive that letter.
I find that very difficult to believe, given that the letter was sent on 21 June and, as it was an express post letter, there was plenty of time for it to be received prior to 23 June. The offender agrees that he did see it on the evening of 23 June, but says that it was too late as the letter required him to report that morning. He had been at work on that day.
On the afternoon of 24 June, the offender left a voice message with Corrective Services, saying that he would attend on Monday, 27 June. He did not attend on that day. The offender says that the nonattendance was because he was detained at work. According to his evidence, he normally worked until beyond business hours. It does not appear that he worked any longer on 27 June than was normally the case.
On 27 June Corrective Services telephoned the offender’s home and his partner confirmed her understanding that he would be reporting that day.
The offender says that on 28 June he was detained at a doctor's appointment. In any event, since 16 June he has not attended at Corrective Services.
Subjective circumstances
The Court has a report from a general practitioner dated 28 June, which is a referral to a psychologist in relation to presenting issues of anxiety and depression. It states that he has no issues with intravenous drug use, but he smokes marijuana "some time". He is also said to be "a bit depressed with getting a job." It states that he lives with his mother and his brother. The offender suggested that he had a partner. I am unsure how that relates to living with his mother and brother. The letter states that he suffers from anxiety and depression and has suffered from that condition since 2007. He is medicated with an antidepressant.
Earlier material indicated something that is now blindingly obvious: that the offender has minimal motivation to comply with Corrective Services supervision and a history of chronic failure to comply.
In evidence, the offender suggested that lack of compliance was partly related to feelings of anxiety associated with many activities, including attending Corrective Services. There may be some anxiety. However, having regard to the pressure that he was under to comply, it is very difficult to attribute his failure to comply over the past two weeks to anxiety and depression, which is apparently not so extreme as to prevent him from working as a furniture removalist, often working a 10-hour day.
Offender’s failures to comply
There is a clear pattern of failing to comply with Corrective Services supervision, regardless of the amount of pressure applied to the offender. Since February 2016 the offender has attended Corrective Services on three occasions and failed to attend on about seven occasions. He attended on the day after he was released from custody, and on two other afternoons, following a Court appearance in the morning. In other words, he is compliant only immediately after receiving a pointed reminder of the need to report. I am not optimistic that this position will change.
The Court has not been presented with a mental health plan as required by the bail conditions. This is a topic that has been discussed in Court over the last two or three appearances, but still there is no clear mental health plan. The offender said that he understood that the letter from his doctor of 28 June amounted to such a plan. It is not headed “mental health plan”. Even if the offender though that it was a plan, I find it unacceptable that he left it until the eleventh hour to consult his doctor for the purpose of obtaining the plan.
A consequence of the offender's failure to report to Corrective Services is that the Court has no record of drug testing. As one of the reports states, it is very difficult to obtain drug test results if a person fails to attend appointments. I would have been greatly reassured by a favourable drug test result, given the offender's physical appearance and the emotional lability on the last few occasions when he has appeared before me.
I accept the submission that there is no evidence that the offender has committed any offence since he was released from custody in February 2016. There is also no evidence of drug use. On the other hand, there is no acceptable evidence about lack of drug use. But I put that consideration to one side. The bottom line is that when a person receives a suspended sentence, prima facie, if they fail to comply with the conditions of the associated good behaviour order they can expect that the sentence will be activated.
In this case, there has been repeated failure to comply with the central condition of the good behaviour order and the bail conditions that echo that central condition, ie, accepting the supervision of Corrective Services. There is no indication that there will be any change. It is convenient to resentence the offender by imposing a sentence that, in effect, sentences him to the unexpired portion of the former sentence.
Resentence
In resentencing the offender, I have regard to the matters referred to in the original sentence of December 2015, which I have re-read. I have regard to the evidence before the Court in relation to the recent breaches of good behaviour order and bail. I have considered relevant sentencing purposes. Accountability and general deterrence are important in the case of resentencing for a consistent failure to comply with a good behaviour order condition requiring submission to the supervision of Corrective Services.
I have already cancelled the good behaviour order. Pursuant to s 110(2)(b) of the Crimes (Sentence Administration) Act 2005, I now resentence the offender to a sentence of six months' imprisonment. The first three months of that sentence will be served by way of full‑time imprisonment from 29 June to 28 September 2016. The remaining three months will be suspended from 28 September 2016, and I make an associated good behaviour order for a period of six months from 28 September 2016. In relation to that good behaviour order, I see no utility in imposing a supervision condition. The valuable time of Corrective Services officers should not be wasted on attempting to supervise the offender.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 20 July 2016 |
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