R v Wilkins (No 3)
[2016] ACTSC 148
•30 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wilkins (No 3) |
Citation: | [2016] ACTSC 148 |
Hearing Dates: | 3 December 2015, 12 February, 6 and 7 June 2016 |
DecisionDate: | 30 June 2016 |
Before: | Refshauge J |
Decision: | 1. The Good Behaviour Order made on 5 June 2015 is cancelled. 2. The conviction of possessing methylamphetamine for the purpose of sale or supply to another person on 9 December 2013 is confirmed (XO 15/30184). 3. Rhys Wilkins is sentenced to 12 months imprisonment to commence on 2 April 2015, to take into account pre-sentence custody. 4. The conviction of possessing methylamphetamine for the purpose of sale or supply to another person on 10 October 2014 is confirmed (XO 15/30185). 5. Rhys Wilkins is sentenced to 16 months imprisonment to commence on 2 June 2016, that is to be cumulative as to 6 months on the first sentence I have imposed. 6. The sentence is suspended today, 30 June 2016, for a period of 18 months. 7. Rhys Wilkins is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a probation condition that he be under the supervision of the Director-General or her delegate for 18 months or such lesser period as the person supervising him decides is appropriate and that he obey all reasonable directions of the person supervising him. 8. Rhys Wilkins is fined $500 to be paid within 6 months. 9. Rhys Wilkins is required to attend at ACT Corrective Services, Eclipse House, London Circuit, Canberra City, by 4:30pm today, 30 June 2016, to make arrangements for supervision. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Breach of Good Behaviour Order – failure to comply with directions – failure to undertake community service work – community service work now completed – no further offending – rehabilitation completed – suspended sentence |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 91(5), 102, 110, 110(4) |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 |
Parties: | The Queen (Crown) Rhys Wilkins (Defendant) |
Representation: | Counsel Mr K Lee (3 December) (Crown) Mr D Sahu-Khan (12 February) (Crown) Ms A Mifsud (6 June) (Crown) Mr T Hickey (7 June) (Crown) Mr M Reardon (30 June) (Crown) Self-represented (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Self-represented (Defendant) | |
File Numbers: | SCC 224 of 2014 SCC 305 of 2014 |
REFSHAUGE J:
On 5 June 2015, I convicted Rhys Wilkins of two charges of possessing methylamphetamine for the purpose of sale or supply to another person on 9 December 2013 and 10 October 2014. I sentenced him to a total of 18 months imprisonment to commence on 8 March 2015 for 2 years, having served approximately 3 months pre-sentence custody. I suspended the sentence for 2 years from the day of sentence and made a probation condition and a community service work condition to the Good Behaviour Order required to be made on the suspension of a sentence of imprisonment. See R v Wilkins [2015] ACTSC 145 (Wilkins (No 2)).
On 1 December 2015, a breach of the Good Behaviour Order was reported to the court because Mr Wilkins had failed to undertake community service work as directed. He had, of course, until 4 September 2016 within which to complete the mandated hours of community service work. On the other hand, he had not attended when directed to do so. An offender must comply with a direction (s 91(5) of the Crimes (Sentence Administration) Act 2005 (ACT)) and a failure to do so would, therefore, breach an obligation under the Good Behaviour Order, requiring a report to the sentencing court (s 102 of the Crimes (Sentence Administration) Act).
The report to the court accordingly described the breach as follows:
He [Mr Wilkins] has failed to perform community service work as directed.
Mr Wilkins admitted the breach on 12 February 2016.
Despite this, Mr Wilkins had, when attended, satisfactorily completed those periods of community service work he did perform. He had not committed any further offences and no breach was alleged of his probation condition.
He has now completed the community service work and, despite the Court’s intervention, it has been completed within the time allowed, namely before 4 September 2016.
It is, however, appropriate to set out, briefly, the history of the matter.
Facts
On 9 December 2013, police executed a search warrant at the residence of Mr Wilkins. They found and seized two small plastic bags containing a clear crystal substance which, on analysis, was proved to be 6.348 grams of a substance containing 4.81 grams of pure methylamphetamine. Other paraphernalia associated with drug dealing, including a reasonably large amount of cash, was also found and seized. He was later summonsed to attend the Magistrates Court on 27 June 2014 to answer a charge that he trafficked in methylamphetamine.
Later, however, on 10 October 2014, police executed another search warrant on his residence and again located some plastic bags with a white crystalline substance which, on analysis, was found to weigh 8.418 grams and to contain methylamphetamine, but I had no evidence of its purity. Another small amount of substance weighing 0.174 grams and also containing methylamphetamine was found. A smaller amount of cash was also found.
Mr Wilkins was arrested and remanded in custody until 7 January 2015, when he was granted bail: R v Rhys Wilkins [2015] ACTSC 8 (Wilkins (No 1)). That was granted so that he could undertake a residential drug rehabilitation program, which he did. I described that program in Wilkins (No 2) at [41].
He had a positive outcome and had remained abstinent: Wilkins (No 2) at [42]-[43].
As a result of this success and the other matters mentioned in Wilkins (No 2), especially at [55] to [64], I imposed a sentence of imprisonment but suspended it, as noted above (at [1]), despite the serious nature of the offences and his offending, making the required Good Behaviour Order with the relevant conditions as also noted above (at [1]).
Mr Wilkins, however, had some difficulty with the completion of the community service work condition. Part of this came from his employment.
On 3 December 2015, a summons was issued because of his failure to attend as directed for community service work on various occasions between June and October 2015.
He did not attend for induction into the community service work program on three occasions but finally attended on 23 July 2015. He then attended to perform community work on two occasions, completing 8 hours of community service work on the first occasion and only 5 hours on the second, because he left early, but he failed to attend on another occasion. After that, he failed to attend on 7 occasions, failing to provide a reasonable excuse.
On 8 October 2015, he resigned from his work and stated that he wanted to complete his community service work. He then attended on 14 October 2015, failed to attend on 15 October 2015 and attended on 16, 17 and 20 October 2015 but failed to attend thereafter. By that time, he had completed 41 of the 150 hours of work required.
It was as a result of this lack of performance that breach action was commenced. He explained to me when he appeared to answer the breach that he did wish to complete the community service work.
It appears that, breach action having been commenced, the view is taken by ACT Corrective Services that the obligation to continue with supervision and performance of community service work is suspended or terminated. This may be because a proved breach requires a cancellation of the Good Behaviour Order where it is made in connection with a suspended sentence order: s 110 of the Crimes (Sentence Administration) Act. That, apparently, does not prevent the community service work due under the Order being completed where its completion is made a condition of bail pending a final decision on the breach action. I have not investigated the precise basis of this approach. It seems sensible to me and I am aware that it has been done in other cases.
Accordingly, I granted Mr Wilkins bail with a condition that he complete the community service work under the Good Behaviour Order. I adjourned the proceedings on the breach to 6 June 2016 so that he could complete the community service work.
He continued to perform the work and attended thereafter, though with some failures. He attended on 9, 13 and 27 February 2016, but not on 20 February 2016 saying he was ill, but not providing a certificate or other evidence.
He then attended on seven occasions between 5 March and 14 May 2016, but failed to attend on three occasions during this period and not thereafter.
A breach of bail, because of these failures, was reported to me when I heard the matter on 6 June 2016. Mr Wilkins, however, while admitting that he had not attended, explained that he had found it difficult to complete the work recently because of employment commitments.
Mr Wilkins explained that he had been required to work for a period of about three weeks for 7 days a week from 7.00 am to 7.00 pm and deployed in different parts of Australia. He also said that he had told someone at ACT Corrective Services of this problem but did not have a name or a precise date. He understood that this was a reasonable discharge of his obligation to keep that agency informed and that it would be a reasonable excuse, especially as he had plenty of time to complete the work within the time specified in the Order.
At this stage, he had 31 or 32 hours of community work remaining.
I adjourned the proceedings so that he could provide some evidence of his work commitments and the Crown could seek a response to the statement that he made the telephone call advising of his work commitments.
On the next day, Mr Wilkins provided some documents which satisfied me that he had, for the period 12 to 25 May 2016, been required to work 12 hours a day, 7 days a week. Unfortunately, there was no record of his claimed contact with ACT Corrective Services.
In the circumstances, I adjourned to allow Mr Wilkins time to complete the community service work. He has now done so.
Consideration
Under s 110 of the Crimes (Sentence Administration) Act, a Good Behaviour Order made when a sentence of imprisonment has been suspended must be cancelled if the court is satisfied that the offender has breached any of the offender’s good behaviour obligations.
I am satisfied that Mr Wilkins had an obligation to obey any reasonable directions given to him and that these included any directions about when to perform the community service work, subject to reasonable and proper allowances for employment commitments, which can be appropriately accommodated within the obligation to perform the community service work within the relevant time period, and health problems and emergencies.
Accordingly, I am satisfied that Mr Wilkins has breached his obligations under the Good Behaviour Order. I am not satisfied that every occasion of failure has breached the obligations because, for example, I consider that, between 12 and 25 May 2016, he had a reasonable excuse for failing to comply with any directions to perform community service work.
Nevertheless, having found the breach, I am bound to cancel the Good Behaviour Order. Under s 110 of the Crimes (Sentence Administration) Act, I can then either impose the suspended sentence imposed for the offence or re-sentence Mr Wilkins.
I have considered the approach to such matters in a number of cases and concluded as follows:
· The failure of the courts to act on a clear breach of the conditions of a conditional release order, such as a Good Behaviour Order, is likely to bring such sentences into disrepute: Saga v Reid [2010] ACTSC 59 at [99]-[100];
· There is, however, no presumption in this Territory in favour of imposing the sentence that has been suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87];
· A court may, therefore, simply re-impose the same sentence or extend the period of the Good Behaviour Order: R v Curtis (No 2) [2016] ACTSC 34 at [16];
· Included in the considerations that the court will take into account as relevant to the determination of what action to take are: the proportion of the term of the Good Behaviour Order that had been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender’s rehabilitation: R v Curtis (No 2) at [18].
· The sentencing considerations under the Crimes (Sentencing) Act 2005 (ACT) applies to any re-sentencing: s 110(4) of the Crimes (Sentence Administration) Act.
· Thus, I need to consider not only the facts of the breach but the personal circumstances of the offender, including the offender’s response to the Good Behaviour Order and the seriousness of the offending: R v Curtis (No 2) at [20].
In this case, while Mr Wilkins has failed to comply with directions, he has completed his community service work and well within the time limited for that under the sentence.
He is employed and this has also been a significant factor in his failure to comply with directions, constituting the breach of the Good Behaviour Order. He has committed no further offences and not breached the probation condition of the Order.
I have set out above (at [8]-[9]) a brief outline of the facts of the offences. I described them in Wilkins (No 2) at [47], as serious. I found Mr Wilkins (at [51]) not to be a low-level street dealer but “not high up in the chain of supply”. The amount of the drug was relatively small. Mr Wilkins was a drug user. The second offence was more serious than the first as it was committed while he was on bail.
As to Mr Wilkins’ subjective circumstances, he appears to have benefitted from his period of drug rehabilitation and there is no suggestion that he is still using illicit drugs.
Mr Wilkins had a normal and uneventful childhood. He has, since school, furthered his education and has been generally employed, though he has experienced periods of unemployment. His most recent period of employment seems to have required particular competence.
He has no physical health issues but has had some problems with anxiety that caused him to consult a psychologist and a counsellor.
While he has a criminal record, until these offences it consisted largely of traffic offences. They are criminal offences but usually less serious.
He has had a relationship with a woman who was, at the time, a user of methylamphetamine. He has more recently been in a more healthy relationship but that ended some time ago, not amicably but apparently without him reverting to drug use.
Disposition
I am satisfied that the really patchy compliance with his obligations requires a somewhat more serious response to sentencing then originally imposed. That he has, however, completed the community service work condition of the Good Behaviour Order does mean I do not have to re-impose that. I take it into account, in rather the same way that pre-sentence custody or extra curial punishment can be taken into account. See R v Kekalainen (No 2) [2015] ACTSC 369 at [48].
I consider that in the circumstances I have outlined, it is not appropriate nor necessary to impose the sentence that was suspended but I shall re-sentence Mr Wilkins.
Mr Wilkins, please stand:
1. I cancel the Good Behaviour Order made on 5 June 2015.
2. I confirm the conviction I entered of possessing methylamphetamine for the purpose of sale or supply to another person on 9 December 2013.
3. I re-sentence you to 12 months imprisonment to commence on 2 April 2015, to take into account pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
4. I confirm the conviction I entered of possessing methylamphetamine for the purpose of sale or supply to another person on 10 October 2014.
5. I re-sentence you to 16 months imprisonment to commence on 2 June 2016, that is to be cumulative as to 6 months on the first sentence I have imposed. Had you not pleaded guilty, I would have sentenced you to 2 years imprisonment.
6. I suspend the sentence today for a period of 18 months.
7. I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a probation condition that you be under the supervision of the Director-General or her delegate for 18 months or such lesser period as the person supervising you decides is appropriate and that you obey all reasonable directions of the person supervising you.
8. I fine you $500 to be paid within 6 months.
9. I require him to report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City, by 4.30 pm today to arrange supervision.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 1 July 2016 |
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