R v Siosaia Tupou

[2018] NSWDC 399

District Court

New South Wales

Medium Neutral Citation:	R v SIOSAIA TUPOU [2018] NSWDC 399
Hearing dates:	16 October 2018 and 30 November 2018
Decision date:	30 November 2018
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 18 months to be served by way of an Intensive Correction Order with 3 additional conditions to the 2 mandatory conditions.
Catchwords:	CRIME - SENTENCE - supply prohibited drug greater than indictable quantity - imprisonment for 18 months - unsatisfactory Sentencing Assessment Report - Intensive Correction Order.
Legislation Cited:	Drug Misuse and Trafficking Act 1985; Crimes (Sentencing Procedure) Act 1999, s.66; and Crimes (Administration of Sentences) Regulations 2014, Reg. 189I.
Category:	Sentence
Parties:	Regina (Crown) Siosaia Tupou (Offender)
Representation:	Mr Sutherland (ODPP Parramatta) Mr Mitchell (Offender)
File Number(s):	2018/1832
Publication restriction:	Nil

Judgment

1. On 16 October 2018 Siosaia Tupou appeared for sentence in relation to the offence of supplying a prohibited drug greater than the indictable quantity for that particular drug.

2. On that occasion, taking into account the early plea of guilty, I sentenced Mr Tupou to a term of imprisonment of eighteen months. I refer generally to my Remarks on Sentence delivered that day.

3. It was my inclination at that time that he should serve the term of imprisonment by means of an intensive correction order. I did not make such an order at the time because the Pre-Sentence Report then available said that he was unsuitable for community work because of what were described as “occupational health and safety fatigue considerations”. I ordered that a Sentencing Assessment Report be prepared and, amongst other things, I directed that the report take into account my determination that there was a need for formal drug and alcohol rehabilitation counselling. The sentence proceedings were consequently adjourned to today.   

4. The court file records that the next day, 17 October 2018, the court registry sent an ICO assessment request to the Mount Druitt Community Corrections Office. Amongst other things, the request was endorsed:

“Any special instructions: ICO assessment report - the report is to take into account the offender’s need to formally address his alcohol and illicit drug use.”

5. There can be no doubt therefore that Community Corrections were specifically informed of my specific direction in this regard.    

6. A Sentencing Assessment Report was prepared and dated 28 November 2018. It is in many respects an unsatisfactory document.

7. First, the report was unable to confirm the offender’s assertion that he had been abstinent of drug use since the offence. No explanation was provided in the report as to why no form of testing was undertaken.

8. Secondly, the report noted that the offender continued to consume alcohol “on a social basis” without providing the court with any explanation as to what that expression meant.

9. Thirdly, contrary to the express direction of the court, the report contained no proposal to formally, or otherwise, address the offender’s alcohol and illicit drug use.

10. Fourthly, whilst finding that the offender was suitable for community service, arrangements had been made for him to work only on Sundays - notwithstanding that the offender’s employer was “in a position to support the offender to complete a community based order”. Given that the offender otherwise works six days a week, the proposal that he do community service only on a Sunday involved no engagement with the employer at all.

11. Fifthly, the community service work proposed for the Sundays were only “up to twenty-one hours per month” (my emphasis). This means no more than 378 hours for the term of the sentence or, put another way, no more than five and a quarter hours a day. That proposal is inadequate.

12. Sixthly, Community Corrections proposed suspending supervision entirely. No reasons were offered as to why that was thought appropriate. In particular, the Sentence Assessment Report does not identify which paragraph of Regulation 189I of the Crimes (Administration of Sentences) Regulations 2014 has been purportedly relied upon. The court regards supervision as highly desirable.

13. Finally, all of the above defects are to be understood in the context of the author of the report concluding that the offender is at a low to medium risk of re-offending (my emphasis).

14. The Sentencing Assessment Report is, as I have said, most unsatisfactory - but it is not unique in the new regime which has recently come into force, particularly with respect to the (unexplained) deletion of supervision.    

15. Fortunately for the offender he has independently engaged specialist addictive assistance. I have been told by the offender’s solicitor that the details of this proposed program were in fact communicated to Community Corrections. It is disappointing, to say the least, that there is no mention of that in the Sentencing Assessment Report prepared only a few days ago.

16. Except for engagement of that specialist addictive assistance, and because of the deficiencies in the Sentence Assessment Report I have identified, the offender would have served the sentence by way of full-time imprisonment – i.e. not because of any default on his part, but because of the inadequate Sentencing Assessment Report. That would have been a most unfortunate outcome.    

17. Pursuant to s 66 of the Crimes (Sentencing Procedure) Act, I am satisfied that community safety, being the paramount consideration, will be served more fully by the offender serving his sentence by means of an ICO.

18. I order that the sentence of eighteen months imprisonment be served by means of an Intensive Correction Order which commences today.

19. There are two standard and mandatory conditions to any and every Intensive Correction Order. They are: first, that the offender must not commit any offence; and secondly, that he must submit to supervision by a Community Corrections officer. The court expresses in this regard its strong opinion that the offender be supervised and that the proposed suspension of supervision be reconsidered; regrettably the court does not have power to order that supervision to occur.

20. In addition to those two mandatory conditions, there must be at least one additional condition unless there are exceptional circumstances (which is not this case).

21. I impose the following additional three conditions. First, the offender is to perform five hundred hours of community service. Secondly, he is to attend Dr Graham Roberts at the Mount Druitt Centre for Addiction Medicine,15 Cleeve Close, Mount Druitt, on 7 December 2018 and to continue to attend that centre and to accept and follow all the advice of Dr Roberts, or his nominee, for as long as Dr Roberts or that nominee, sees fit. Thirdly, he is to abstain entirely from all illicit drugs, all lawful drugs not prescribed, and alcohol.

22. Mr Tupou if you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services, or the State Parole Authority. Those sanctions may include a formal warning; the imposition of more stringent conditions; or it may involve the revocation of this order. If the order is revoked, you may be required to serve all or some of the period of your sentence in full time custody.    

23. You are now directed to attend the court registry where a copy of this order will be further explained and given to you.

24. Finally, I order that you report to Mt Druitt Community Corrections before 4pm 3 December 2018.

Decision last updated: 17 December 2018