R v Wright (No 2)
[2019] ACTSC 46
•29 January 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wright (No 2) |
Citation: | [2019] ACTSC 46 |
Hearing Date: | 29 January 2019 |
DecisionDate: | 29 January 2019 |
Before: | Mossop J |
Decision: | See [15] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – reparation order – limitation of period for compliance with reparation order made a condition of good behaviour order – no evidence of assets or liabilities – resentence |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 116ZQ, ch 6A Crimes (Sentencing) Act 2005 (ACT), ss 19, 109(a), 134, ch 7 |
Cases Cited: | R v Wright [2018] ACTSC 58 |
Parties: | The Queen (Crown) Alison Wright (Offender) |
Representation: | Counsel P Dixon (Crown) J Ong (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 241 of 2017 SCC 242 of 2017 SCC 343 of 2017 |
MOSSOP J:
On 27 July 2017, the offender Alison Wright, committed two arson offences, one count of damaging a building by fire (CC2017/8371) and one count of damaging a vehicle by fire (CC2017/8372). There was also a further charge of drink-driving (CC2017/8373). Following her arrest, a personal protection order and family violence order were made. She breached the family violence order on 17 December 2017 (XO2018/31275).
On 6 March 2018, Penfold J sentenced the offender in relation to each of these four charges: see R v Wright [2018] ACTSC 58.
She was convicted on each charge. She was ordered to make reparation to Heather Drew in the sum of $1733.16 and to Cathy Lenaghan in the sum of $12,093.67. She was given sentences of imprisonment as follows:
(a) damage to a building by fire 12 months imprisonment;
(b) damage to a vehicle by fire 14 months imprisonment;
(c) driving under the influence of alcohol three months imprisonment; and
(d) breach of a family violence order four months imprisonment.
As a result of concurrency between the sentences, the total sentence was 16 months imprisonment which was backdated to take into account the 14 days that she had spent in custody. The sentence was suspended from the date of sentencing. She was required to sign an undertaking to be of good behaviour for a period of two years with security in the amount of $1000 for her compliance with the order and various other conditions. As a result of the drink-driving charge she was disqualified for a period of two years and three months.
On 11 April 2018, that is, just over a month after being sentenced, she breached the good behaviour order that was imposed as a condition of the suspension of the sentences of imprisonment. She did so by committing a level 4 drink-driving offence (CC2018/7775) and driving while disqualified (CC2018/7774). The Statement of Facts in relation to the offences indicated that she was travelling to a friend’s house. There was nothing in her manner of driving which drew her to the attention of police. Breath analysis indicated that she had 0.168g of alcohol per 210L of breath.
On 7 November 2018, she was sentenced on the drink-driving charge to four months imprisonment and disqualified for three years. On the drive disqualified charge she was sentenced to a good behaviour order of 12 months and a fine of $800.
The offending conduct has as a common feature with the offences for which she was sentenced by Penfold J, the abuse of alcohol which, as the reasons given by Penfold J indicate, is an ongoing and substantial problem for the offender. Having said that, the offending conduct in the present case is of a different nature to the arson offences. Counsel for the offender tendered letters from a treating clinical psychologist relating to her treatment between August and November 2018 which reflect positively on her progress to deal with issues underlying her alcoholism including childhood trauma. She is also receiving treatment from a general practitioner in relation to her mental health issues and a condition described as “chronic myofascial pain”.
The pre-sentence report prepared for the Magistrates Court proceedings indicates that her main criminogenic risks are abuse of alcohol and her mental health. It indicates that a low level of intervention by ACT Corrective Services would be commensurate with her assessed low risk of future offending.
Counsel for the Crown submitted that in any resentence the reparation order that was made should be time limited so that it was clear whether it had been complied with. Such specification appears to be possible because s 109(a) of the Crimes (Sentencing) Act 2005 (ACT) permits a further order that “the amount be paid by stated instalments”. A time limitation would be impliedly imposed if compliance with the reparation order was made a condition of a good behaviour order which itself was time‑limited.
Counsel for the offender submitted that the offender’s financial circumstances were such that any order requiring payment of the reparation amount would be unlikely to be complied with. Although there was no evidence of the fact, I was told that the offender was a disability pensioner receiving $560 per fortnight. She lives with and cares for her mother. At the time of the sentencing before Penfold J the position was as follows:
42.There is evidence that replacing Ms Drew’s garage door cost her around $2000 all up, and that both doors had to be replaced, although only one door was damaged in the fire, because the same style of door is not available. The evidence valuing Ms Lenaghan’s car at something over $12,000 was considerably less straightforward, involving evidence of the rather informal transaction in which she obtained it and of what she had since then spent on repairing and renovating it. However I note that Ms Wright does not oppose the making of reparation orders.
…
68.Ms Wright has no income while she is not working. She owns a car and a house, and has a mortgage; she is currently living on her savings. However, as I have already mentioned, she did not oppose the making of reparation orders in the amounts claimed by Ms Drew and her new partner.
Amongst the material tendered today was an alcohol interlock program assessment report dated 7 November 2018 which records that the offender is presently on leave from her position as a nursing assistant at an aged care facility. The pre-sentence report prepared for the Magistrates Court proceedings indicated that although she was presently residing with her mother, she may move back to the south coast once legal matters are finalised and that she has been on leave from work since June 2017.
Reparation orders are governed by s 19, ch 7 and s 134 of the Crimes (Sentencing) Act as well as, in some circumstances, the provisions of ch 6A of the Crimes (Sentence Administration) Act2005 (ACT). The effect of these provisions appears to be that unless made a condition of a good behaviour order or subject to an agreement pursuant to s 116ZQ of the Crimes (Sentence Administration) Act, reparation orders are not enforceable. Counsel for the Crown tentatively suggested that they may be enforceable as a judgment debt however legislation does not say so. In those circumstances, and having regard to the fact that the submissions of the parties were very limited and undeveloped, I proceed on the basis that unless made a condition of a good behaviour order or the subject of an agreement under s 116ZQ, the reparation order will be ineffective. Further, there was no evidence (and I am unaware) as to whether or not the relevant Director-General does in fact make agreements with beneficiaries of reparation orders that would permit them to be enforceable under ch 6A of the Crimes (Sentence Administration) Act as a fine.
In my view, if a reparation order is to be made it should, to the extent that the legislation permits, be one which has, by reason of its enforceability, a consequence. In the present circumstances, that appears only to be able to be achieved by making it a condition of a good behaviour order. Whilst the submission was made that the financial circumstances of the offender were such that she would not be able to comply with such an order, that was not supported by evidence. There was no evidence about her assets and liabilities. Further, the material that was in evidence was consistent with there being some present or future vocational capacity which might generate an income. Whilst a manifest incapacity to make a payment pursuant to a reparation order may, in some cases, provide a basis for declining to make an order, the evidence in the present case is not such as to demonstrate that the offender fits into that category. I therefore propose to make a reparation order as a condition of the good behaviour order and, if that order is breached, then proper evidence about the offender’s financial circumstances may be put before the court.
I consider it appropriate to cancel the good behaviour order imposed by Penfold J. I will however, for the reasons given by Penfold J, resentence the offender in a manner similar to that done by her Honour. In other words, I will impose sentences but suspend them from today, subject to good behaviour orders and in relation to the two arson offences I will make reparation orders. I will make a relatively short good behaviour order without a requirement for further supervision. This takes into account the period since the offending conduct which gave rise to the breach. It also gives a defined and limited period in which the reparation must be made. I do not consider it appropriate to make an instalment order. In the absence of proper evidence before me, I consider it appropriate to simply make the reparation order and it is for the offender to work out the means by which she is to comply with that order. If she fails to do so then there will be consequences not only in relation to the security given for compliance with the relevant good behaviour order, but also the prospect of imposition of the suspended sentences or resentencing. I consider it appropriate that the offender forfeit the $1000 given as security for compliance with her good behaviour order. I consider it appropriate that there be separate good behaviour orders in relation to each offence and that they be shorter in relation to the less serious offences. Having regard to the limited assistance that I received from the parties I will give liberty to apply within 24 hours in case there is any error in the orders that I pronounce or any matter that I have failed to deal with.
The orders of the Court are:
1) The offender is to forfeit the sum of $1000 given as security for compliance with the good behaviour order entered into as a result of the orders of Penfold J on 6 March 2018.
2) The good behaviour order imposed by Penfold J on 6 March 2018 is cancelled and the offender resentenced as follows.
3) On the charge of damaging a building by fire (CC2017/8371) the offender is convicted and sentenced to 12 months imprisonment from 15 January 2019 until 14 January 2020.
4) The sentence is suspended forthwith upon the offender signing an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months with security in the sum of $500 with the following conditions:
(a) That she comply with the reparation order made on 29 January 2019.
5) Pursuant to s 19 of the Crimes (Sentencing) Act the offender is to make reparation to Heather Drew in the sum of $1733.16.
6) On the charge of damaging a vehicle by fire (CC2017/8372), the offender is convicted and sentenced to imprisonment from 15 January 2019 until 14 March 2020.
7) The sentence is suspended forthwith upon the offender signing an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months with security in the sum of $500 with the following condition:
(a) That she comply with the reparation order made on 29 January 2019.
8) Pursuant to s 19 of the Crimes (Sentencing) Act the offender is to make reparation to Cathy Lenaghan in the sum of $12,093.67.
9) On the charge of driving while under the influence of alcohol (level 4 PCA, first offender) (CC2017/8373), the offender is convicted and sentenced to imprisonment from 15 February 2020 until 14 May 2020.
10) The sentence is suspended forthwith upon the offender signing an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of six months with security in the sum of $500.
11) The offender is disqualified from holding or obtaining a driver’s licence for a period of two years and three months from 6 March 2018.
12) On the charge of breach of a family violence order (XO2018/31275), the offender is convicted and sentenced to four months imprisonment from 15 December 2019 until 14 April 2020.
13) The sentence is suspended forthwith upon the offender signing an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of six months with security in the sum of $500.
14) Each party has liberty to apply to the Court within 24 hours if there are any errors in the orders pronounced or any other matter I have failed to deal with.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 26 March 2019 |
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