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 address later that day to speak to her and were greeted at the door by the offender. Police informed the offender that he was now in their custody for breach of bail, and he agreed to not run from them. Police accompanied the offender to a nearby police vehicle and upon arriving at the vehicle, the offender quickly changed direction and fled from police. The offender was later found and arrested and was subsequently charged with escaping lawful custody (CC2020/8100).
On 6 July 2020 the offender entered into a bail undertaking to appear before the ACT Magistrates Court on 21 July 2020 in relation to the common assault and escape from custody charges. On 21 July 2020 the offender failed to appear and a warrant was issued for his arrest. He was arrested on 22 August 2020 and charged with failure to appear after a bail undertaking (CC2020/10007).
On 10 February 2021 he pleaded guilty to the common assault, escape from lawful custody and fail to appear charges. He was convicted and sentenced to three months’ imprisonment for the common assault charge, which was backdated with the time fully served. He was convicted and sentenced to two six-month good behaviour orders for each of the other two offences.
In accordance with the core conditions of the good behaviour order that I imposed, offences punishable by a term of imprisonment put the offender in breach of the order: Crimes (Sentence Administration) Act s 86(1)(a). Each of the three offences fell into this category and therefore put the offender in breach of the good behaviour order.
The parties agreed that the period spent in custody on remand as a result of the three fresh charges exceeded the three month backdated sentence imposed for the common assault offence by 30 days.
Subjective circumstances
Pre-sentence report
The offender’s personal circumstances are set out in R v Thomas at [6]-[12] which describe the impact of the offender’s schizophrenia on his offending.
An updated pre-sentence report dated 22 April 2021 was also tendered, which detailed the offender’s circumstances in the period after he was released from custody in November 2019.
The offender told the author of the pre-sentence report that there was regular drug use occurring among the participants of the Wayback program, and this meant he was unable to resist the temptation of using drugs. He advised that he did not report his discharge from the program to ACT Corrective Services in accordance with the conditions of his good behaviour order because he was afraid of returning to prison.
In relation to his family background, the offender stated that his mother was a problem gambler and that this contributed to a disrupted childhood. He advised that he remains in a relationship with his partner. He is not currently party to any active protection orders.
He currently resides with a friend in an ACT Housing property, although he intends to reside with his partner in the near future. He advised that he spends his time with friends and attending mental health appointments. He admitted to having limited prosocial connections in the community.
The offender stated that he has been a long-term daily cannabis smoker and smokes approximately 1 g per day. He does not have any intention of ceasing his cannabis use. He has used methamphetamine since he was a teenager and currently consumes 0.1 g of methamphetamine once or twice a week. He also drinks once or twice a week. He completed an assessment for an alcohol and drug day program with Directions ACT and was referred to the Arcadia House in March 2021. ACT Corrective Services did not have any further information about his status in the program. The offender was last seen by the ACT Alcohol and Drug Service in April 2019.
On 29 March 2021 the offender provided a urinalysis sample which tested positive for methamphetamine, amphetamine and cannabis. He declared recent use of cannabis and amphetamine prior to the test.
The offender has a current diagnosis of paranoid schizophrenia which is comorbid with methamphetamine use disorder. He accesses treatment on a voluntary basis with Belconnen Mental Health. As a result, he receives a fortnightly antipsychotic injection, however, he regularly needs reminding to receive his medication and he cannot be compelled to do so under the current regime. The offender has a review with a doctor every four to six weeks and the doctor advised no current major concerns in relation to the offender’s mental health.
The author of the pre-sentence report assessed the offender as having a high risk of reoffending due to his mental health, alcohol and drug use, negative peer associations and lack of prosocial activities. The author was of the opinion that, despite his recent assessment with Directions ACT, “it does not appear he is genuinely motivated to address or cease his drug use”, citing the offender’s stated intention to continue using cannabis. He was assessed as not suitable for community service work or an intensive correction order.
Defence material
The documentary material tendered on behalf of the offender demonstrated that his schizophrenia remains an ongoing issue. It gets worse when he fails to have intramuscular injections of antipsychotic medication. It also demonstrates his ongoing drug use involving methamphetamine and cannabis.
There was some evidence of an application either made, or to be made, to the National Disability Insurance Scheme for assistance arising from his suffering from schizophrenia, although nothing that would affect his underlying condition of schizophrenia or the need for regular depot injections.
Consideration
The breach of the good behaviour order that led to the matter being brought back court is the further offending in July 2020. There were, however, earlier breaches involving the failure to complete the Wayback program and the failure to report once discharged from the program. Under s 110 of the Crimes (Sentence Administration) Act it is first necessary to decide whether to simply impose the balance of the suspended sentence or alternatively to resentence the offender.
The Crown’s submission was that the balance of the sentence should be imposed. The submissions on behalf of the offender were that the matter could be disposed of without the offender spending additional time in custody.
Mr Thomas presents as someone whose mental health condition and ongoing, but relatively low level, illicit drug use gives rise to a high risk of general reoffending. I accept the opinion of the author of the pre-sentence report that this arises from his mental health, alcohol and drug use, negative peer associations and lack of prosocial activities. Given his failure to complete more than a small portion of the Wayback program, the prospects of rehabilitation in the form of reduction or elimination of his ongoing illicit drug use appear low. His mental health appears to be managed on a voluntary basis and his condition means that such a course carries with it the risk of non-compliance. That risk of non-compliance increases the risk that his schizophrenia will worsen and result in further offending behaviour.
The nature of the further offending in this case was relatively minor. Having regard to the nature of the offending, the period spent free of offending both before and after the July 2020 offences, the chronic nature of his schizophrenia and the lack of motivation to address his drug use, I consider that the appropriate course is to resentence the offender, rather than simply impose the balance of the suspended sentence.
In my view, the purposes of sentencing will be adequately served if, upon a resentence, the custodial period required to be served is increased by a period of 30 days, which corresponds to the additional period that he spent in custody on remand beyond that which was imposed on the common assault charge. This ensures that there are some consequences from his failure to comply with the terms of the suspended sentence but also recognises the lack of utility in sending him to prison for a much longer period in circumstances where the real difficulty that he faces is his ongoing chronic schizophrenia and the likelihood that, within the scope of the current medication regime, there will be periods of non-compliance with that regime and hence deterioration in his condition. This is undoubtedly a lenient disposition, however, I do not consider that the nature of the earlier offending which, although much more serious, was contributed to by his schizophrenic condition, compels a more severe response in the context of the present breaches.
Orders
The orders of the Court are:
1. The good behaviour order imposed by orders of the Court made on 31 October 2019 is cancelled.
2. The offender is resentenced as follows:
(a) On the charge of arson (CC2019/4623) the offender is sentenced to imprisonment for 18 months from 11 September 2020 to 10 March 2022.
(b) The sentence is suspended after the offender has served seven months and 16 days (which period has been fully served) upon entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 11 months.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 7 May 2021 |