R v YT
[2015] ACTSC 76
•19 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v YT |
Citation: | [2015] ACTSC 76 |
Hearing Date: | 19 February 2015 |
DecisionDate: | 19 February 2015 |
Before: | Penfold J |
Decision: | See [20] to [22] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour order constituted by further offending only six weeks after release on partly suspended sentence – good behaviour order cancelled and outstanding sentence imposed – imposed sentence to be served in full-time custody but backdated to run largely concurrently with sentences being served for the further offending – after completion of imposed sentence, offender still subject to Magistrates Court suspended sentence and good behaviour order for 18 months. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), s 65(4) |
Parties: | The Queen (Crown) YT (Offender) |
Representation: | Counsel Mr K Lee (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 128 of 2013 |
On 23 May 2014, I sentenced YT for three offences, being theft, take motor vehicle without consent and burglary. He was sentenced to a total of 19 months imprisonment backdated to 16 May 2013 to account for time in pre-sentence custody, and the remaining nearly seven months of the sentence was suspended subject to an 18-month good behaviour order, expiring on the 22 November 2015.
The good behaviour order applied only to the burglary and take motor vehicle offences, the theft sentence having already been served as a result of the back-dating.
YT has now been committed to this court from the Magistrates Court, where he has been sentenced for a new series of offences, all of which were committed in breach of the good behaviour order I made in May last year.
Those offences were committed on two separate occasions. First, on 8 July 2014, less than two months after I had released him, YT and a co-offender stole a small amount of alcohol, apparently valued at roughly $100, from a supermarket. He was charged with minor theft. About six weeks later, YT was arrested after climbing the outside fence of the AMC and throwing packages over the inside fence to an inmate who was waiting for them. YT was observed on prison security cameras, and the packages were seized. They were found to contain cannabis, methylamphetamine, cocaine, mobile phone chargers, a cigarette lighter, and two mobile phones.
For the offences arising out of those incidents, YT was sentenced to a total of nine months imprisonment. The total sentence of 11 months imprisonment reflected also the imposition of a two-month prison sentence that had previously been suspended. Of that 11 months, six months was to be served in full-time custody, a period which will expire on 24 February this year. The remaining five months of that sentence was to be suspended from 24 February subject to a new 18-month good behaviour order.
In my sentencing remarks last year, I referred to YT’s substantial criminal record as follows:
[YT], who is now 19, has been offending since he was 14. He has been dealt with for over 30 thefts and over 30 burglaries (although I should note that about two-thirds of those burglary and theft charges were dismissed in the Childrens Court under s 334 of the Crimes Act which relates to mentally impaired offenders). There are also on his record several drug possession offences and car theft offences, as well as two aggravated robberies, one assault and two charges of possessing a knife without reasonable excuse. Counsel pointed out, however, that the current offences were [YT]’s first as an adult and that his remand to an adult prison had shocked him.
I also noted that YT had a troubled childhood and a significant history of substance abuse, but had also been diagnosed with a variety of significant mental health disorders, not all of which could be blamed on substance abuse. A detailed report from Dr Danny Sullivan, a consultant forensic psychiatrist, informed my comments about YT’s mental health as follows:
[YT] has never had a job, and efforts to find a job have been unsuccessful, perhaps partly because of his mental health problems and what is described in Dr Sullivan’s report as “slow cognitive processing”. Dr Sullivan noted that an examination of [YT]’s medical records shows that he has been diagnosed with schizophrenia, Pervasive Developmental Disorder, Autism Spectrum Disorder and a mild intellectual disability, as well as Attention Deficit Hyperactivity Disorder. Dr Sullivan also noted a severe substance abuse disorder. There have been psychotic episodes, including in custody, in 2010 and 2012 and [YT] has been subject to a Psychiatric Treatment Order, apparently for at least 12 months.
There was evidence before me indicating that [YT]’s mental health and development had been concerning his mother and the doctors from when he was a baby – whatever negative effects may be related to illicit drug use, it cannot be said that [YT]’s difficulties have been entirely caused by such illicit drug use.
Both Dr Sullivan and the Pre-Sentence Report author recognised that YT would need significant and multi-faceted support if he was to achieve any kind of rehabilitation in the community.
It is apparent that if YT was offered and accepted that kind of support, it was not immediately helpful, given how quickly he began re-offending after I released him in May.
Material relating to the new offences, and to proceedings in the Magistrates Court, were in evidence before me. It is clear from the Pre‑Sentence Report before the Magistrate in January this year that YT’s drug abuse remains a major factor in his offending, although other factors are also significant. The author of that Pre-Sentence Report concluded:
It is considered that unless [YT] addresses significant issues around mental health, illicit drug abuse, negative peer influences, lack of skills and unemployment, he [is] likely to reoffend and remain institutionalised despite his mother’s ongoing support. Any lasting changes to [YT’s] entrenched anti social lifestyle and poor decision making may hinge on his capacity to recognise the need to respond positively to intensive case management.
It seems that YT, after some period during which he has not made any particular rehabilitation efforts, has begun the Smart Recovery Program in the AMC, which I understand he can continue in the community. He has been prescribed a different medication for his schizophrenia, which he says has far less troubling side-effects than his previous medication, and has also been referred to the Detention Exit Community Mental Health Outreach Program. That program provides three months support after release from prison, aimed at preventing illness relapse and reducing the risk of the participant returning to custody. Ideally planning begins four to six weeks before release, but I am told that a shorter planning period is not an obstacle to participation.
YT, who read a letter to the court and was then cross-examined on it, described his problems “fitting in” with other members of the community, and how much of his life he had spent feeling confused and scared. No doubt this is partly attributable to his mental health problems, particularly his schizophrenia, although it seems highly likely that his problems are made worse rather than better by regular and significant use of mind-altering illicit drugs. YT said in evidence that he now understands properly how much his drug use affects his life and puts him at risk of committing offences.
YT said that his rehabilitation prospects are also improved by the fact that he now has a girlfriend who is a stabilising influence, and who has been visiting him regularly in the AMC. The relationship began shortly before YT threw the drugs and other contraband in to the AMC, and I accept that the relationship clearly didn’t effect any miracle cure, but I do not underestimate the positive value for YT of having not only the emotional comfort of such a relationship but a friend with whom he might be able to pass his time in non-criminal activities. I note that YT has also expressed a recognition that he needs to distance himself from criminal associates if he is to stay out of trouble in the future.
Under the Crimes (Sentence Administration) Act 2005 (ACT), I must cancel the good behaviour order made in May last year and decide what to do about the remaining six months and three weeks of the burglary and drive motor vehicle sentences. The options are to re-sentence YT, or to impose the original sentence, thereby requiring YT to serve that time in full-time custody starting today. That is an unattractive option, if only because the end result would be that at the end of the six months and three weeks, YT would have completed not only the Supreme Court sentences but also the Magistrates Court sentences (assuming he was advised not to sign his Magistrates Court good behaviour undertaking at the point when the Magistrates Court sentences could be suspended), and would be back in the community at that stage with no Corrective Services or other supervision or support. It is clear that YT is the last person who should be released from prison and expected to rehabilitate himself alone.
It is unnecessary to canvas all the advantages and disadvantages of the various options arising if I am to re-sentence YT, except to note that it is almost unavoidable, even if one wanted to avoid it, that much of the outstanding Supreme Court sentences will be served effectively concurrently with the newer Magistrates Court sentences. What I can do, however, is to require YT to serve some further custodial time after he would be able to be released under the Magistrates Court sentence. That will still enable him to serve more of the Magistrates Court sentence at the same time, but the requirement to remain in custody for a further period should go some way to reinforcing with YT the message that a breach of a suspended sentence will have consequences of some kind.
After YT is released from custody, he will be subject to the Magistrates Court good behaviour order until at least August 2016, and on conditions the same as those I set in May last year. I cannot see any benefit to the community, to the administration of justice, or indeed to YT, in constructing a sentence so as to leave YT, after his release, subject to two identical good behaviour orders imposed by two different courts.
Accordingly, in re-sentencing YT, I propose to backdate the Supreme Court sentence so that it will be completed at the point when, under that sentence, YT is released. He will still be subject to roughly three months of the Magistrates Court sentence which will hang over his head for the 18-month term of the Magistrates Court good behaviour order, and he will have access under that good behaviour order to all the available supervision and support.
YT, please stand.
I note that the convictions, for offences committed on 8 July and 25 August last year, that were recorded in the Magistrates Court in January this year put you in breach of the good behaviour order I made, on 23 May 2014, in connection with the suspension of part of the sentences for burglary and riding a motor vehicle that were imposed that day.
Accordingly, I cancel that good behaviour order and I shall re-sentence you for those two offences.
Next, I note the convictions recorded on 23 May last year for the burglary and ride motor vehicle offences, and I now sentence you to 15 months imprisonment for the burglary and 8 months imprisonment for ride motor vehicle, the second sentence to be concurrent with the first as to 4 months and accumulated on the first as to 4 months. That gives a total sentence of 19 months, which I backdate to 8 September 2013 to take account of 372 days that you had already served in pre-sentence custody before I released you (16 May 2013 to 23 May 2014) and also to take account of the period since 15 September last year during which you have been in custody on the Magistrates Court offences. Thus the 19-month sentence will expire on 7 April this year, and in order to allow you to finalise that sentence, I set no non-parole period for that sentence. That means you will be released on 7 April 2015.
For the purposes of s 65(4) of the Crimes (Sentencing) Act 2005 (ACT), I consider that it would be inappropriate to set a non-parole period in this case having regard to your antecedents, although there are two quite different aspects to that conclusion:
(a)first, given your offending history, it is reasonable to require you to spend a further period in custody specifically related to the original sentence I imposed, given that you re-offended within six weeks of the original sentence having been suspended; but
(b)secondly, it is in my view sensible to reduce the complexity of your legal position by finalising the Supreme Court sentences in circumstances in which that can be achieved by requiring you to spend an extra six weeks in custody at the end of the custodial part of your current sentences.
What that means YT, as I said, is that you will now be eligible for release from prison on 7 April this year, so about another six weeks away, and when you are released, you will have finished with the sentences for the burglary and related offences that you committed in May 2013.
After that, of course, the Magistrates Court sentences will still have some three months to run, and if you breach the Magistrates Court good behaviour order, as you know, you could easily be back in full-time custody for that three-month period. So you really do need to make the most this time of the various kinds of support that are available to you and that you have been offered, and you need to make sure that this time you don’t let your mum and your girlfriend down.
You may sit down.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 13 April 2015 |
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