R v Williamson (No 2)
[2022] ACTSC 213
•23 August 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Williamson (No 2) | ||||
| Citation: | [2022] ACTSC 213 | ||||
| Hearing Date: | 23 August 2022 | ||||
| Decision Date: | 23 August 2022 | ||||
| Before: | Elkaim J | ||||
| Decision: |
| ||||
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND | ||||
| PROCEDURE – Judgment and Punishment – Sentence – Intensive Correction Order (ICO) – where the offender has | |||||
| committed an offence while serving an ICO | |||||
| Legislation Cited: | Crimes Act 1900 (ACT) s 24 Crimes (Sentencing Administration) Act 2005 (ACT) s 65 | ||||
| Cases Cited: | R v Banks [2022] ACTSC 202 R v Gunner (No 2) [2021] ACTSC 300 R v Rhodes [2022] ACTSC 182 R v Williamson [2021] ACTSC 58 R v XXL [2022] ACTSC 24 | ||||
| Parties: | The Queen (Crown) | ||||
| Jade Harley Williamson (Offender) | |||||
| Representation: | Counsel | ||||
| J Melloy (Crown) | |||||
| E Chen (Offender) | |||||
| Solicitors | |||||
| ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |||||
| File Number(s): | SCC 192 of 2022 | ||||
| Elkaim J |
1. On 13 April 2021 I sentenced the offender to 18 months’ imprisonment to be served by
way of an Intensive Correction Order (ICO): R v Williamson [2021] ACTSC 58.
2. On 18 January 2022 the offender pleaded guilty in the Magistrates Court to an offence of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). The matter has now been committed to the Supreme Court in order for me to determine whether to cancel the ICO pursuant to s 65 of the Crimes (Sentencing Administration) Act 2005 (ACT).
3. If the ICO is cancelled, the parties have agreed that the offender should serve the balance of his term of imprisonment taken from the date of the cancellation. Thus, the cancellation occurring on 23 August 2022, the balance of the term of imprisonment of 51 days will also commence on 23 August 2022 and end on 12 October 2022.
4. If I do not cancel the ICO, it will continue. There are no other options.
5. I set out the slightly unusual facts of the original offending in the above reasons. The offending which has led to the current hearing occurred on 22 November 2021. The offender and a female person were seated in a motor vehicle. They were having an argument.
6. The offender, apparently in frustration, threw a coffee cup at the steering wheel. It broke
into pieces one of which flew into the female person’s face, cutting her alongside her
right eye. She fled from the scene.
7. The police were called. The offender was arrested and taken into custody. He was charged with assault occasioning actual bodily harm. He is due to be sentenced on 30 August 2022.
8. Of some significance is that while the offender had initially complied with the demands of his ICO, he had in the period before his arrest been misbehaving. He returned a positive urinalysis sample and he had acted inappropriately towards custodial and medical personnel.
9. I, and others, have recently stressed that while an ICO might be more lenient than a fulltime prison sentence, it is nevertheless a stern punishment in appropriate circumstances (R v Rhodes [2022] ACTSC 182 at [34]; R v Banks [2022] ACTSC 202 at [71]). The consequence however of the built-in leniency, is that if the ICO is breached it will take a good deal of subjective circumstances in order for it not to be cancelled.
10. Persons receiving an ICO must know that they have the benefit of the degree of leniency at the cost of facing the consequences of a breach.
11. In this matter, while the circumstances of the recent offending may, as the Crown puts
it, fall “towards the lower end of objective seriousness for offences of that type”, and
there will no doubt be an appropriate sentence imposed for the offending, the breach must be taken seriously. To ignore it would be to condone criminal conduct notwithstanding that the conduct amounted to a breach of an ICO.
12. One of the difficulties facing a court in current circumstances is that the options are limited. For example it might have seemed appropriate to impose a short term of imprisonment (less than the 51 days remaining) or some other continuing supervisory order. But there is no such option.
13. Section 65 provides a simple choice; either cancel the ICO or make a finding that to do so would not be in the interests of justice. In R v Gunner (No 2) [2021] ACTSC 300 I found that progress in rehabilitation rendered cancellation of an ICO to be not in the interests of justice. A distinguishing feature of Gunner was that the period of the ICO had expired by the time the matter was being considered. Cancellation of the ICO would thus have not returned the offender to prison and could perhaps have been viewed as a somewhat academic exercise.
14. In R v XXL [2022] ACTSC 24, Mossop J gave lesser weight to rehabilitation. He said, at [39]:
At the time of the earlier sentence imposed upon the offender, I was persuaded that it was
appropriate to make an ICO. Factors influencing that approach were the offender’s youth,
the correlation between his methamphetamine use and his offending and his prosocial supports. The ICO gave him an opportunity to achieve rehabilitation. That opportunity has been missed. I accept that the offender recognises the need to address his illicit drug use and recognises the association between his illicit drug use and his offending. I also accept that his long-suffering parents remain willing to support him. However, having regard to his criminal history and the gravity of the present offending, the sentencing goal of rehabilitation must, in my view, be subordinated to other purposes of sentencing, in particular: deterrence of the offender from further offending, general deterrence of this kind of offending, making the offender accountable for his actions, denunciation of his conduct and, significantly, recognition of the harm done to the victim of his offending.
15. Nevertheless, his Honour did not cancel the ICO because, as in Gunner, “there is no remainder of the sentence that may be imposed”. His Honour did however impose a
substantial prison sentence for the offence that had breached the ICO.
16. The parties in this matter agreed that the ICO should be cancelled. I also agree.
17. I have no doubt that when the offender is sentenced by the magistrate on 30 August, the magistrate will take into account the cancellation of the ICO and will have as an option, in order to avoid any element of double punishment, the period of imprisonment that constitutes the remainder of the ICO. Accordingly, I make the following orders:
(i) The ICO imposed on 13 April 2021 is cancelled;
(ii) The offender is to serve the balance of his prison sentence commencing today and ending on 12 October 2022.
I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.
Associate:
Date:
0
4
2