R v Wsol
[2014] ACTSC 320
•14 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wsol |
Citation: | [2014] ACTSC 320 |
Hearing Dates: | 4 September 2014, 10 November 2014 |
DecisionDate: | 14 November 2014 |
Before: | Burns J |
Decision: | See [17] – [18] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW AND PROCEDURE – Breach of Good Behaviour Order – failure to comply with bail conditions – failure to comply with community service order – further offences committed – sentence |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
Parties: | The Queen (Crown) Kimberly Wsol (Offender) |
Representation: | Counsel Mr Mansfield (Crown) Mr Sharman (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch (Offender) | |
File Number(s): | SCC 181 of 2011 |
Burns J:
Background
Kimberley Wsol, on 1 June 2012 I sentenced you for an offence of aggravated robbery to imprisonment for two years and four months, backdated to 21 April 2012 but suspended from 1 June 2012 with a Good Behaviour Order for a period of two years from that date with the following conditions:
(a)First, that you were to accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or that person’s delegate;
(b)secondly, that you were to reside as directed by the Director-General;
(c)thirdly, that you were to undertake such counselling, courses, programs or treatment as directed by your supervising officer especially in relation to substance abuse; and
(d)finally, that you were to complete a period of 400 hours of community service within a period of two years.
On the same date, I sentenced you for an offence of burglary to 12 months’ imprisonment commencing on 1 June 2012, which sentence was suspended upon you being subject to a Good Behaviour Order for a period of 18 months.
On 24 July 2013 I dealt with you for a breach of the community service condition of the Good Behaviour Order imposed as part of the sentence for the offence of aggravated robbery. I cancelled the Good Behaviour Order which I had imposed on 1 June 2012 and resentenced you to a period of two years and four months’ imprisonment, being the same sentence that I had earlier imposed backdated to the 21 April 2012 and, again, suspended that sentence from 24 July 2013. I imposed a further Good Behaviour Order for a period of two years in the same terms as that which I had imposed on the 1 June 2012.
A community service condition required you to complete 243 hours of community service within that period of two years. The decreased number of hours of community service was imposed to reflect community service you completed before the cancellation of the order that I had made on 1 June 2012.
The very next day, 25 July 2013, you committed an offence of minor theft. On 12 June this year, you were convicted of that offence in the ACT Magistrates Court and sentenced to two months’ imprisonment fully suspended with a 12-month Good Behaviour Order and 24 hours of community service. As required by the provisions of the Crimes (Sentence Administration) Act 2005 (ACT), the Magistrate also committed you to this Court to be dealt with for breaching the Good Behaviour Order which I had imposed on the 24 July 2013 with respect to the offence of aggravated robbery.
I also note that by committing the offence of minor theft on 25 July 2013 you also breached the Good Behaviour Order I imposed on 1 June 2012 for the offence of burglary.
On 4 September 2014 I adjourned the present breach proceedings to 10 November this year to enable your legal representatives to obtain all relevant materials to place before the court. At that time I continued your bail but imposed further conditions requiring you to report to Corrective Services and to CADAS and to undergo random urinalysis at least once a week between 4 September and 10 November this year.
On 10 November this year I received a Bail Progress Report which indicated that you attended for urinalysis on five occasions and provided a medical certificate to exempt you on two other occasions. The results of all of the drug screening tests indicated that you continued to use illicit substances, including heroin, methylamphetamine, cannabis and benzodiazepines.
During the bail period you also failed to continue with your community service condition despite opportunities being afforded to you. You were directed to attend for supervision by Corrective Services on 24 October at 2.00 pm but you attended at 10.40 am that day and failed to return for your community service appointment.
You attended the Court Alcohol and Drug Assessment Service (CADAS) on 1 October this year following two missed appointments. In a report from CADAS dated 5 November 2014 that service indicated that its ability to assist you was severely restricted by your failure to engage with it.
Consideration
It appears that neither you nor the community has achieved any significant benefit by the opportunities that I have given you to avoid imprisonment. You have returned to illicit drug use, which to my mind places you at significant risk of reoffending.
When I dealt with you by way of suspended sentences on 1 June 2012 and again on 24 July 2013 for the offence of aggravated robbery, I took a very lenient course because it appeared to me that you had good prospects for rehabilitation. I am now satisfied that my confidence in you was misplaced.
If an offender does not comply with the terms of a good behaviour order imposed as part of a suspended sentence of imprisonment, ordinarily they should expect to serve a term of imprisonment. This may be either the term that was suspended or some other term imposed by the court.
Where a good behaviour order imposed as part of the suspended sentence of imprisonment is breached, the court is obliged to cancel the good behaviour order and may then adopt one of two courses: it may impose the suspended sentence as a sentence of full time imprisonment; or, it may resentence the offender.
In my opinion, I should proceed to resentence you rather than simply impose the suspended terms of imprisonment. In coming to this decision, I have taken into account the hours that you have completed pursuant to the community service order I imposed and the fact that there has been some compliance with the other terms of the order since they were imposed.
As this will be the first sentence of imprisonment that you have been required to serve by way of full time imprisonment, I will impose a shorter than usual non-parole period and I will make the sentences largely concurrent.
Sentence
I cancel the Good Behaviour Order I imposed on 24 July last year for the offence of aggravated robbery and you are sentenced to a term of 20 months’ imprisonment commencing on 14 October 2014. I select that date for the commencement of the sentence to allow for the time that you have spent in custody prior to sentence being imposed when I dealt with the matter on 1 June 2012, and also to reflect the time that you have spent in custody since I revoked your bail on 10 November this year. That sentence will expire on 13 June 2016.
I cancel the Good Behaviour Order I imposed on 1 June 2012 for the offence of burglary and I sentence you to six months’ imprisonment commencing on 14 February 2016 and expiring on 13 August 2016. I impose a non-parole period of 10 months commencing on 14 October this year and expiring on 13 August next year.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 3 December 2014 |
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