R v Troselj (No 2)
[2022] ACTSC 234
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Troselj (No 2) |
Citation: | [2022] ACTSC 234 |
Hearing Date: | 30 August 2022 |
DecisionDate: | 30 August 2022 |
Before: | Norrish AJ |
Decision: | 1. I cancel the earlier ordered good behaviour order. 2. In lieu, I sentence the offender to one year and two months' imprisonment, 14 months' imprisonment, commencing today, 30 August 2022, and expiring on 29 October 2023. 3. The sentence I impose is wholly suspended pursuant to s 12 of the Crimes (Sentencing) Act 2005 on the condition that the offender enter a good behaviour order for a period of 14 months commencing today, 30 August 2022, expiring on 29 October 2023, with core conditions pursuant to s 86 of the Crimes (Sentence Administration) Act 2005, particularly requiring the offender to comply with reasonable directions as to mental health treatment as advised by Canberra Health Services and/or Justice Health Services. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour order – where breach admitted – where offender complying with mental health treatment orders |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 86, 110 Crimes (Sentencing) Act 2005 (ACT) s 12 |
Parties: | The Queen ( Crown) Zoran Troselj ( Offender) |
Representation: | Counsel D Swan ( Crown) J De Bruin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 115 of 2020 |
Norrish AJ:
On 3 March 2022, I sentenced this offender in relation to an offence of assault occasioning actual bodily harm to a term of imprisonment of 20 months' commencing on 3 March 2022 and expiring on 2 November 2023.
That sentence of imprisonment was ordered to be wholly suspended pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) on the condition that the offender enter a good behaviour order for a period of 20 months commencing on that date, 3 March, and expiring on 2 November 2023 with core conditions pursuant to s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), including a condition of supervision by the Director of Corrective Services, particularly requiring the offender to comply with reasonable directions in various respects.
The Court was advised by affidavit on 24 May 2022 that the offender may be in breach of the orders that I made for failing to satisfactorily comply with the requirement of supervision by the ACT Corrective Services. The officer for ACT Corrective Services set out in detail a range of matters occurring up until 24 May 2022 that would support a conclusion that there had been a breach of the orders that I made.
Subsequently, there has been a further affidavit sworn on 24 August 2022 by the same officer of ACT Corrective Services setting out some updated details of the alleged failure to comply with the probation condition.
The offender has been subject to mental health treatment orders over the period of time since I dealt with him on 3 March and I am advised that he has been complying with these orders, but only sporadically complying with the requirement of supervision by ACT Corrections . Of course, these issues that I am required to consider now in the context of the admission of the breach by the offender are to be considered in the context of the mental health issues to which I referred and detailed in the judgment I gave when I sentenced the offender on 3 March of this year.
The offender, as I have said, has admitted the breach of the good behaviour order but interestingly, in light of the further developments set out in the second affidavit from the officer from ACT Corrections, it is noted that whilst there has in the past been non-compliance, an adjustment to the offender's medication has led to less aggression on his part. He has not provided sufficient information for a formal risk assessment to be made of him and has declined assessments offered to him so far as his housing situation, as well as through the NDIS.
However, the officer recommends that the good behaviour order should be left in place but the requirement for probation be removed on the basis that it is not productive at this point. But to be understood as being not productive in the context of the offender not committing further offences and, as I said, apparently responding well to the medication that has been provided to him.
The learned Crown prosecutor prepared very helpful written submissions written before the second affidavit was sworn and referred the Court to the particulars of the first affidavit reflecting a breach that, in the Crown's submission at that particular point, would require consideration of the revocation of the order to be of good behaviour and the enforcement of the term of imprisonment..
The Crown's position however has changed. I have raised with learned counsel, appearing under some difficulty for the offender, that there were three options available to the Court, the last of the three options being revocation of the good behaviour order and revocation of the suspension of the term of imprisonment, the imposition of the term of imprisonment and the fixing of a non-parole period, if it was appropriate to do so.
The Crown does not urge the last alternative as I have just outlined it in some detail but supports the conclusion that notwithstanding the breach being proven, that the Court should pursue the matter pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005. That is, cancel the existing good behaviour order but re-impose the suspended sentence with a variation to the prior good behaviour order deleting the requirement for supervision by the ACT Corrections.
In the circumstances of the matter, having regard to all the evidence, including of course the evidence that was before me when I sentenced the offender on 3 March, I am prepared to take that course.
I make the following orders:
I cancel the earlier ordered good behaviour order.
In lieu, I sentence the offender to one year and two months' imprisonment, 14 months' imprisonment, commencing today, 30 August 2022, and expiring on 29 October 2023.
The sentence I impose is wholly suspended pursuant to s 12 of the Crimes (Sentencing) Act 2005 on the condition that the offender enter a good behaviour order for a period of 14 months commencing today, 30 August 2022, expiring on 29 October 2023, with core conditions pursuant to s 86 of the Crimes (Sentence Administration) Act 2005, particularly requiring the offender to comply with reasonable directions as to mental health treatment as advised by Canberra Health Services and/or Justice Health Services.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish. Associate: Date: |
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