The Queen v Agostino
[2015] ACTSC 395
•4 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Agostino |
Citation: | [2015] ACTSC 395 |
Hearing Date(s): | 4 December 2015 |
DecisionDate: | 4 December 2015 |
Before: | Walmsley AJ |
Decision: | See [13]-[15] |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – re-sentence – Deferred Sentence Order – aggravated robbery – failure to complete mental health treatment program – Solaris program – effectiveness of program – offender seeking treatment |
Parties: | The Queen (Crown) Aubrey Agostino (Defendant) |
Representation: | Counsel Mr D SahuKhan (Crown) Mr K Archer (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitor (Defendant) | |
File Number(s): | SCC 164 of 2014 |
WALMSLEY AJ:
Mr Aubrey James Agostino, who was born on 7 January 1990, has come before me today to be dealt with for breach of the terms of a Deferred Sentence Order. The order was imposed by her Honour Ashford AJ on 8 September 2015. On that day, the offender appeared before her Honour for sentence, having pleaded guilty to an offence of aggravated robbery. There were two victims of that robbery. They were men of whom he was jealous, whose presence in his girlfriend’s home in Phillip he had earlier noted and not approved of. The offence occurred shortly after the men left his girlfriend’s home.
Her Honour set out the full facts of the offence and in her reasons, and there is no need for me to repeat them or refer to them otherwise, except to say that I have read them and taken account of them in making the orders that I am about to make. Her Honour imposed a Deferred Sentence Order along the following lines. The offender was convicted. He was sentenced to 20 months imprisonment from 8 September 2014 to 7 May 2016.
I pause to say that, although her Honour dealt with him on 8 September 2015, he had by then served a considerable period of custody and her Honour took that into account, either to a total or a substantial degree, in imposing the sentence she did. Thus, there was backdating involved in the orders that her Honour made.
Her Honour deferred the sentence, however, until 5 September 2016 upon certain conditions, including that the offender be released from custody on condition that he undergo a mental health treatment program. The offender, unfortunately, failed to comply with the condition of release and he was taken back into custody, as a result of which he served an additional 51 days in custody.
Mr K Archer of counsel, who appeared for the offender, submitted that I ought now impose the sentence her Honour said would be imposed if he failed to comply with that order. That sentence is two years and six months imprisonment as a head sentence. With the additional time served and appropriate backdating to reflect that time, the head sentence would accordingly date from 20 July 2014 to 19 January 2017. Mr Archer drew my attention to an indication given to the offender by her Honour that if he failed to comply with her order he would probably have to serve some additional time in custody.
Mr Archer submitted that I ought order Mr Agostino’s release after he had served the sentence imposed by her Honour of 20 months, and then suspend the remainder of the two and a half‑year sentence upon his entering into a Good Behaviour Order, including a condition that he undergo rehabilitation of the kind referred to in Pre-Sentence Reports including, in particular, an updated Pre-Sentence Report dated 26 November 2015, which was prepared, I assume, for the purpose of today’s proceedings.
Mr Archer submitted that were I to impose a non‑parole period instead of a Good Behaviour Order, the prison or the parole authorities, or both, would probably require him to undergo a drug program before he could be released. That is a program which lasts at least six months, and if he were selected to take part in it, it would not commence until January 2016.
Thus, if he took part in it, his release date would be some months beyond what would otherwise be the position. That is beyond the expiration of the 20‑month period. Mr Archer submitted further that the program, which is apparently known as the ‘Solaris’ program, is unlikely to be as effective as that available in the community. The Crown was not in a position to disagree with that assessment of the Solaris program, but submitted an alternative that I should consider is to impose a non‑parole period, thus having the effect that he would have the treatment inside the prison system, before his release.
Mr D SahuKahn, who appeared for the Crown, informed me that his enquiries had shown that it would take about a week before it could even be known whether Mr Agostino would be selected for the program to start in January. Having regard to all of the matters put to me, and having regard to the updated Pre-Sentence Report, the view that I formed is that I should accept Mr Archer’s submissions.
Notwithstanding the Crown’s position, which I thought an entirely appropriate submission, it seems to me that it would be in Mr Agostino’s interests, and the community’s, for him to be released into the community where I consider he will have a great incentive to do well in the rehabilitation available to him. He had a childhood of squalid deprivation and abuse. He has had none of the privileges in his childhood that members of our community are entitled to expect. In my view, he should have an opportunity to achieve some rehabilitation of the type which is available in the community and not have it in the prison system.
Thus, I propose to impose a sentence of two and a half years and then suspend it upon his entering into a Good Behaviour Order for two years on the condition that he have the rehabilitation detailed in the updated report. So I make these orders.
Mr Agostino is sentenced to a term of imprisonment of two and a half years from 20 July 2014 to 19 January 2017.
The sentence is to be suspended after he has served 20 months, that is on 19 March 2016, subject to his entering a Good Behaviour Order of two years, including a condition that he undergo rehabilitation as directed by ACT Corrective Services as detailed in the Pre-Sentence Report of 26 November 2015, in particular, for violent behaviour, for illicit substance use and for antisocial attitudes.
That supervision by the ACT Corrective Services is to be for as long as is deemed necessary by ACT Corrective Services.
He is to report to ACT Corrective Services at Eclipse House, London Circuit, Canberra City within 48 hours of entering in to the Good Behaviour Order.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley. Associate: Date:15 February 2016 |
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