R v Thomas (No 2) - [2021] ACTSC 73

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Thomas (No 2)
Citation:	[2021] ACTSC 73
Hearing Date:	27 April 2021
DecisionDate:	27 April 2021
Before:	Mossop J
Decision:	See [26]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of good behaviour order – further offending – common assault – escape from lawful custody – fail to appear after bail undertaking – failure to complete residential rehabilitation program and failure to report discharge from the program – high risk of reoffending – chronic schizophrenia diagnosis – resentenced – suspended sentence with good behaviour order imposed
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 86, 110
Cases Cited:	R v Thomas [2019] ACTSC 306
Parties:	The Queen ( Crown) Scott Thomas ( Offender)
Representation:	Counsel N Deakes ( Crown) T Cobden ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number:	SCC 225 of 2019

MOSSOP J:

Introduction

The offender, Scott Thomas, was sentenced by me on 31 October 2019 for the offence of arson: R v Thomas [2019] ACTSC 306. He was sentenced to 18 months’ imprisonment, suspended after six months and 16 days, upon entry into a good behaviour order for a period of 12 months. The good behaviour order commenced on 5 November 2019 and expired on 4 November 2020.

In addition to the core conditions of the order under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), I imposed the following conditions:

(a)Upon release at 9.00am on 5 November 2019 from custody he travel in the company of Troy McColl to the premises of Wayback Ltd, [address redacted] by the most direct route.
(b)That he be admitted to the Wayback Four Phase Program (the Program).
(c)That he complete the Program.
(d)That he provide evidence of completion of the Program to ACT Corrective Services within seven days of completion of the Program.
(e)That if discharged from the Program for any reason, he present himself to ACT Corrective Services, Level 1, 249 London Circuit within seven days unless readmitted to the Program within that period.

Facts

The offender was admitted to the Wayback program on 5 November 2019 but was discharged on 13 January 2020 for a variety of reasons. They included non-compliance with a curfew, drug use, having drug paraphernalia, failing to attend counselling, failure to attend program activities and failure to supply a urine sample. Following the discharge from the program he failed to report to ACT Corrective Services.

In July 2020 the offender committed three further offences while subject to the good behaviour order. On 3 July 2020 he was charged with one count of common assault (CC2020/8071), committed against his partner.

As a result of that charge, the offender appeared in the ACT Magistrates Court on 4 July 2020 and entered into a bail undertaking which included a condition not to be within 100 metres of his partner’s address. Police attended his partner’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thomas (No 2)

Details

AGLC: R v Thomas (No 2) [2021] ACTSC 73
Case: [2021] ACTSC 73
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v Thomas (No 2) was presided over by Mossop J. The defendant, Scott Thomas, faced sentencing for multiple breaches of a good behaviour order, which originated from a previous arson conviction. Thomas had been released on bail with conditions, one of which was participation in a rehabilitation program, but failed to complete it and subsequently engaged in additional criminal activities. The court was tasked with determining the appropriate sentence for Thomas's breaches of the good behaviour order, considering his mental health issues and history of non-compliance.

The legal issues before the court were whether to impose the remaining balance of the suspended sentence or to resentence Thomas. The court considered the nature of Thomas's breaches, his history of mental health issues, and the likelihood of reoffending. The Crown argued for imposing the balance of the suspended sentence, while the defence contended for a sentence that would not involve additional time in custody. The court had to balance the need for consequences for breaching the good behaviour order with the understanding that Thomas's chronic schizophrenia and ongoing drug use posed significant challenges to his rehabilitation.

Mossop J determined that a resentence was more appropriate, given the nature of Thomas's breaches, his mental health condition, and the lack of motivation to address his drug use. The court decided to increase the custodial period required to be served by 30 days, acknowledging the consequences of his actions while recognising the limitations of incarceration in addressing his underlying issues. The court found that a more lenient disposition was warranted, taking into account the chronic nature of Thomas's schizophrenia and the potential for periods of non-compliance with his medication regime.

The court's orders included cancelling the original good behaviour order and re-sentencing Thomas to imprisonment for 18 months for the arson charge, suspended after serving seven months and 16 days, with an 11-month good behaviour order. This decision aimed to provide some consequences for Thomas's breaches while also recognising the need for a sentence that addressed his specific circumstances and challenges.

Orders