The Queen v Alice-May Kane
[2015] ACTSC 46
•19 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Alice-May Kane |
Citation: | [2015] ACTSC 46 |
Hearing Date(s): | 19 February 2015 |
DecisionDate: | 19 February 2015 |
Before: | Refshauge J |
Decision: | 1. The Court finds that Alice-May Kane has breached the good behaviour order made on 20 November 2012. 2. The Court orders that the good behaviour order made on 20 November 2012 be amended by: a. An extension of the order for a further 12 months to 19 November 2015; and b. The addition of a further condition that Alice-May Kane admit herself to the Karralika Therapeutic Community and remain in the program conducted by that community, obeying all reasonable directions of the officer in charge of that program until she has completed the program. If she leaves the program, or is discharged from it, before completion, she must report to the ACT Supreme Court within 48 hours with a view to reconsidering the terms of this order. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Breach of good behaviour order – Failure to report for supervision – Offender seeking rehabilitation |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | R v AM (Unreported, Australian Capital Territory Supreme Court, SCC 122 of 2012, Refshauge J, 20 November 2012) |
Parties: | The Queen (Crown) Alice-May Kane (Accused) |
Representation: | Counsel Mr C Wanigaratne (Crown) Ms K Bolas (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kim Bolas Criminal Law (Accused) | |
File Number(s): | SCC 122 of 2012 |
Refshauge J:
In mid-February 2012, Alice‑May Kane smashed a window at the home of her ex‑partner's mother, who was then minding her son. She climbed in and assaulted her son's grandmother by grabbing her hair and pounding her head into the wall, which also damaged the wall. She picked up her son and then left the premises, but was later arrested. She was charged with damaging property, and I was asked to take into account the common assault.
On 20 November 2012 I convicted Ms Kane of intentionally causing damage to the property on 14 February 2012, and I made a good behaviour order for two years with a probation condition. On 8 August 2014 an information under s 102 of the Crimes (Sentence Administration) Act 2005 (ACT) was laid, alleging that Ms Kane had breached conditions of her good behaviour order.
The breach was constituted by her failing to report and accept probation supervision in April 2014, when she was directed to report but failed to do so. Thereafter, attempts to contact her were made on 13, 19 and 21 May, 24 June and 9, 15, 29 and 30 July, and 1, 4 and 8 August 2014. Her probation officer did not manage to contact her.
On 15 August 2014, I issued a summons for her to attend on 18 September 2014 to answer the allegation of the breach of the good behaviour order. That summons was served on 19 August 2014, but on 18 September 2014 Ms Kane did not appear. I then ordered that a warrant be issued and she was subsequently arrested.
On 22 September 2014 she appeared before me and I adjourned the matter so that she could obtain legal representation. On the adjourned date, 2 October 2014, Ms Kane did not appear and a further warrant was issued. She was arrested on 11 December 2014 and the proceedings adjourned further. She was allowed bail. I was told that Ms Kane wished to enter the Karralika Therapeutic Community to address her drug addiction and I sought a forensic mental health report and a report from the court Alcohol and Drug Assessment Service, CADAS, as well as a Pre‑Sentence Report.
Ms Kane clearly has a number of challenges with her mental health and drug abuse. I have set these out in my remarks on sentence, R v AM (Unreported, Australian Capital Territory Supreme Court, SCC 122 of 2012, Refshauge J, 20 November 2012) and I do not need to repeat them. On 12 January 2015 Ms Kane attended Arcadia House for the purpose of detoxification so she could transfer to Karralika. She exited the program on 23 January 2015 because she said she missed her partner.
She has, however, negotiated another admission for her return to Arcadia House to coincide with her direct transfer to Karralika, planned for 2 March 2015. I am told she will enter Arcadia House on 23 February 2015, and I had a letter from Karralika confirming her place there on conditions that it seems to me she will be able to meet.
She is assessed as committed to addressing issues that have led Care and Protection Services to remove her son from her care and protection and appears to be committed to undertaking the Karralika program. The forensic mental health report notes that she is "[e]arly in recovery from a severe and protracted psychotic illness." That illness appeared to commence and worsen through 2014, exacerbated by the abuse of illicit drugs, specifically amphetamines and cannabis.
Given the dates of her failures to report for supervision, it does appear that she has been compliant with her good behaviour order for about 16 months of the two years of the order. It also appears that her failures coincided with the onset of her psychotic illness and her further abuse of drugs. To her credit, she has committed no further offences for which she has been charged. That is not to excuse her drug taking which may constitute an offence, but for which she has not been charged and certainly not convicted.
The forensic mental health report indicated that the illness "[d]eveloped on the background of psychological problems that were longstanding and date back to her teenage years, that were also complicated by her illicit substance abuse." It is clear that addressing her illicit substance abuse would make significant progress for her, although there must, at the same time, be concern about her mental illness. The forensic mental health report concludes:
For her best chance of sustained and full recovery Ms Kane will require intensive community support and follow-up. This would address both her mental illness and her drug use as priorities. In addition, she will require support in managing the challenges of repairing her fractured relationships with her mother and children and build on social functioning, such as her hopes to return to study and employment. This would have the best results of both reducing further offending and improving her prognosis for mental health and addiction diagnosis. I believe the supports she currently has available to her are sufficient to achieve these goals, but will very much depend on the maintenance of these supports for the next few years at least.
Probation supervision has two purposes. On the one hand, there is the degree of control necessary to ensure that a person who has been released on conditional liberty maintains the obligations they are required to meet and to give directions to ensure that prosocial behaviour is emphasised and continued and that lapses into antisocial behaviour and crime are, to the extent possible, prevented.
There is also a support role, where experienced probation officers can provide advice and support and often have knowledge of agencies which can assist offenders when, as is frequently inevitable, their often chaotic lives lead to further problems. If those problems are not addressed, then relapse into criminality often occurs.
Nevertheless, while failure to comply with supervision is a breach of a good behaviour order and must be treated seriously, the absence of further offending means that it can be treated as less serious. In this case, while the relapse into illicit drug use is of concern, the psychotic illness with which Ms Kane struggles means that there is an explanation for her failure to comply with probation supervision that, while not entirely exculpatory, entitles her to some leniency.
Ms Kane's commitment to responding to the concerns expressed by Care and Protection Services, causing them to take her son from her care and protection, as well as her commitment to the return of her son, are important motivators. They appear to have led her to recognise that a substantial period of residential rehabilitation is required, though there have been false starts to date.
Under s 108 of the Crimes (Sentence Administration) Act there are a number of actions I can take if I am satisfied that Ms Kane has breached any of her good behaviour obligations. I note that the good behaviour order was not made in conjunction with a suspended sentence order, and so s 110 of that Act does not apply. I may:
(a) take no further action;
(b) give the offender a warning about the need to comply with the offender's good behaviour obligations;
(c) give the Director‑General directions about the offender's separation;
(d) amend the good behaviour order; or
(e) cancel the order.
There is another option, had I required Ms Kane to give security under the order, but I did not do that.
In the circumstances, it seems to me that the appropriate approach is to amend the order by extending it for a period of time and adding a condition that she attend the Karralika Therapeutic Community. I take into account all the matters set out in my earlier sentencing remarks, R v AM. I take into account the information in the CADAS report and the forensic mental health report.
Alice-May Kane, please stand.
I find that you breached the good behaviour order I made on 20 November 2012.
I amend that order by
(1) extending it for a further 12 months to 19 November 2015; and
(2) by adding a further condition that you admit yourself to the Karralika Therapeutic Community and remain in the program conducted by that community, obeying all reasonable directions of the officer in charge of that program until you have completed the program. If you leave the program, or are discharged from it, before you complete it, you must report to the ACT Supreme Court within 48 hours with a view to reconsidering the terms of this order.
[His Honour then spoke directly to Ms Kane]
That is the formal order I have made, Ms Kane. Basically what it means is that you are still under supervision until November this year and if Corrective Services require you to attend on them, then you must do so. If you do not do that, you can be brought back before me and I can deal with that, with the option of sending you to gaol. If you commit any further offences, and you have not, and I do not see why you would, but if you do between now and 19 November this year, and those offences are ones that require or provide for a sentence of imprisonment, then that is also a breach of the order and you can be brought back before me and I can deal with that also.
I have added a further condition, and so now your going to Karralika is not just you wanting to do so, it is also an order of the Court so you must do that. If you go to Karralika and are admitted there, but you leave before the program has finished, then you must come back to the Court. If you are discharged from the program, you must come back to the Court. Speak to Ms Bolas about that and she will arrange it for you and we will review the situation and work out what we have to do.
I hope that you will be able to address your problems in Karralika. Karralika has a good reputation and a number of the people that I have sent there have done very well. But it is hard; it is not easy. I know that drug addiction is a very tenacious addiction and it is very difficult to manage. It is not easy with your mental health challenges, but you seem to be addressing those now. The Court wants you to succeed. We want you to be back in the community, we want you to have your son back, and we want you to be able to live a life where you can pursue your studies and do what you want to do. But if you continue to disobey the law and to flout the orders of the Court, then unfortunately the Court is increasingly left with few options but to get serious about the matter.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Higgins. Associate: Date: 2015 |
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