Kent v Wilson [2000] VSC 98

Kent v Wilson [2000] VSC 98 - VSC 2000 case summary — Zoe

[38]

On 3rd August 1999 a charge was laid and filed by the appellant alleging contravention by the respondent of s.18W(1) of the Act, constituted by the breaches previously referred to. The affidavit of the appellant in support of that application identifies the charge, laid in the form of Form 5 of the Magistrates' Court General Regulations, alleging a contravention by the respondent of s.18W1 of the Act in that he failed to comply with the conditions of a C.C.T.O. imposed by the Court in Geelong and annexing to it a schedule in respect to the breaches of the Order. This (Exhibit AKJ1 to the appellant's affidavit) was a key part of the presentation of the matter to the Court. The schedule set out all of the offences (not all described by me) of which the Magistrates' Court at Geelong on 27th November 1998 convicted the respondent. It set out, seriatim, the breaches and failures by the defendant to attend. This involved eight breaches constituted by non-compliance with directions to attend sent to the address of the defendant (3 Maple Street, Bell Park) provided by him as a point of contact after his release, to have the treatment part of the combined custody and treatment order administered upon his release into the community. That schedule asserted that he had been directed to attend the Geelong Community Correctional Services by 28th May 1999, that he did not attend and failed to make contact thereafter with the Service until 2nd June 1999. The rules relating to his release were read to and acknowledged by him, according to that schedule. Wilson later said he had missed the 28th May 1999 appointment because he had been charged with other offences and was then being held at the Geelong Police Station. Other material filed indicated that no charges were raised with respect to those matters. But by 2nd June 1999 Wilson was contacted to attend for supervision on a weekly basis commencing on 9th June and every Wednesday thereafter. The schedule indicated that his mother had made some contact, saying that he had gained paid employment and would not be able to attend and would have to make alternative arrangements. On one occasion the office was left open for him to attend following a telephone call (unaccompanied by any notification of his real address) from him. Without going into further detail, the schedule indicated a series of contacts, often fielded by the mother, and his failure to return calls or attend. Ultimately on 6th July 1999 Wilson attended, claiming that he had not come to scheduled appointments due to employment. On being asked to provide documentation from the employer to explain missed appointments, with detail, he conspicuously failed to comply or thereafter attend. He had not attended arranged appointments with Barwon Health Drug Treatment Services. The respondent was contracted to attend at testing on a weekly basis on every Wednesday commencing on 9th June to coincide with his supervision appointments. As he missed the supervision appointments, he avoided testing. The summary of this is that Wilson had accrued eight missed attendances and, on the allegations set out in the schedule, had demonstrated an unwillingness to comply with the community component of the order of the C.C.T.O. He attended for supervision only twice within nine weeks.

[53]

A C.C.T.O. sentence is a sentence of imprisonment, (see 18Q(1) of the Act). There was some argument as to whether or not there was a difference between this sentence and a sentence of the Community Based Order (a C.B.O.) under which a court is given the power to vary, confirm, cancel and re-sentence: see s.47(3A) of the Act. Similarly it was put that in relation to Intensive Correction Orders (I.C.O.) there is no equivalent provision because it is only for breaches constituted in whole or in part by the offender committing another offence punishable by imprisonment during the period of the I.C.O. that the issue of whether the statutory norm should be displaced by exceptional circumstances arises: see s.26(3B) of the Act. One of the first propositions advanced by Mr. Shepherd therefore was that the differences in treatment within the Act of a C.C.T.O. indicates that the statutory intention was such that it was irrelevant whether the breach was constituted by re-offending. This was put on the basis that failure to comply with the conditions will give rise to the activation of the statutory norm, unless exceptional circumstances exist. This, it was said, shows how seriously a breach of a C.C.T.O. order is treated, so that "the thumbing of the nose" at the system (which includes submission to the post-release treatments that are a substantial underpinning of the reason for this part of the Act) must be regarded as attractive of full punishment. That punishment is said to be the return to prison. Another way in which it was put was that it was logical to say that a prisoner who breaches a C.C.T.O. by failing to attend is in effect escaping from lawful custody during the community part of the sentence. At the time that the magistrate acted (14 September 1999) no power to vary the C.C.T.O. was given, that is, the sentence had to be confirmed or the prisoner was to serve the whole of the community part of the term in custody. By the introduction on 1 January 2000 of an amendment to the Act in s.18VA, the Court is given the power to vary the order or cancel it. However, the proposition was put, which I accept, that that amendment should be read as assuming an application under s.18VA(3) was made at a time before a prisoner has breached the C.C.T.O., that is that the amendment is directed to pre-breach activity. Thus the contrast is made to s.47(3A) of the Act which gives the court the power to vary the sentence on the hearing of a charge of breaching a Community Based Order. Even at this time, on the hearing of a charge of breaching a C.C.T.O., the court is still left in the position of either confirming the order or ordering the whole of the term ordered to be served in the community to be served in incarceration.

[64]

The appellant's submission was that the magistrate fell into error at the outset by mis-instructing himself that "exceptional circumstances" meant circumstances that were "not typical" of the behaviour of the respondent, thus concluding that exceptional circumstances had been demonstrated. One has only to think about that proposition to perceive its essential flaw in this context in that an offender who is released to serve the community component of a C.C.T.O. and acts in a manner, if not to the contrary of his pre-order behaviour at least untypical of it, might be relieved from the obligation to conform with the conditions that the Act imposes and therefore avoid the effect of the statutory requirements of s.18W(6). The paradoxical consequence of this proposition would be that the worse the pre-C.C.T.O. history was, the easier it would be to establish that "exceptional circumstances" exist. The comparison by the Court of the prior history and the current presentation, the latter being shown to be contrary to and therefore "untypical", would invite the dispensation. This is, in my judgment, an absurd approach to construction and must be rejected. I conclude therefore that the magistrate selected an insupportable definition or construction of the meaning of the words "exceptional circumstances". These circumstances cannot be construed to be exceptional because such a construction strips the Act in the relevant context of its ability to promote the purpose and object underlying it. One might commence by noting that s.1D(2) of the Act provides as one of the purposes of it to prevent crime and promote respect for the law by "(i) providing a sentence so as to facilitate the rehabilitation of offenders". This laudable generality must be given point by focussing on realities. The fact is that before a court may select a C.C.T.O. as a sentencing option, it must be satisfied that drunkenness or drug addiction contributed to the commission of the offence (s.18Q). The sentencing option specifically includes a Treatment Order. Thus, the employment by courts of a C.C.T.O. as a sentencing option involves the expectation that, after release from prison, rehabilitation will be facilitated by closely supervising the treatment of offenders within the community instead of within the gaol. This is impossible if offenders be permitted to avoid both treatment and supervision upon their release into the community without their offending behaviour being addressed. In this case, of course, drug treatment was never embarked upon. The magistrate approached his task as though he were exercising a general sentencing discretion as to what would be an appropriate sentence.

[69]

It was argued that the plea of guilty to the charge under s.18W admitted all of the elements of the offence breaching the C.C.T.O. This, it was said, ex hypothesi included the admission that the respondent had failed "without reasonable excuse to comply with the conditions" of the C.C.T.O. One must remark that at least as a commencing point there seems to be something unusual about the conclusion that there was no reasonable excuse not to comply with the conditions of attendance and treatment, and in the same breath to say there were exceptional circumstances and a reasonable excuse not to do so. This is not to deny that the existence of an exceptional circumstance causing a breach might provide a defence to the charge, if it establishes reasonable excuse beyond reasonable doubt. It must be recalled that for circumstances to be "exceptional" it is not sufficient they were antecedently a breach of the order. They must be circumstances that have arisen since the C.C.T.O. was made: (see s.18W(6).) The respondent, of course, contended that the circumstances here did arise since the order was made. As a consequence, he is driven to rely upon the essential human normality of the behaviour, but saying there was something exceptional, that is, that it was an exceptional circumstance to get a job, leave home and live with a woman independently. These are, to my judgment, merely changed circumstances. Not only are they not exceptional but, if not normal, at least commonplace. It cannot have been the legislative intention, nor is it the Act's reasonable construction, that an exceptional circumstance was one that with respect to the relevant offender amounted to no more than a change of lifestyle from abnormal to normal. This is not to say that subsequent events cannot amount to exceptional circumstances within the meaning of s.18W(6). One might postulate an offender being in a coma and unable to notify of his situation or other serious illness: (see the instance I gave in Owens v. Stevens). The Act in fact makes provision for administrative dealing with after gaol circumstances that would justify suspension of the time which include illness and other circumstances. In such a situation, the Secretary of the Department of Justice may under s.18V of the Act suspend a C.C.T.O. Without condescending to detail, generally speaking, causes beyond a prisoner's control that would prevent him from complying with a C.C.T.O. would provide a reasonable excuse as a defence. Being in a coma or the loss of mental capacity would be such conditions. I do not overlook the fact that if the Secretary suspended a C.C.T.O. on good grounds, the period of suspension does not count during any period for which the order is to remain in force. Put another way, the clock is stopped. The respondent may apply for suspension of the C.C.T.O. under s.18V of the Act on the basis of exceptional circumstances. However, in the respondent's argument here, the mere feature of failing to comply without seeking exemption, permitted the clock for the three months period to continue to run. It is not, perhaps, a point of major significance in the construction of the Act but it would seem to me to be an unusual construction that produced a consequence that a substantial failure to comply during the term should be rewarded by the Court with confirmation, the effect of which would permit the time during which the respondent was in breach of the order to count as service of the three months' period in the community. This can hardly have been the object of the legislation. It does not appear to have been a matter of argument before the magistrate that the Operating Procedures of Court (see Ex. AJK5, procedure in 5(1)), referring to paragraph 32 of the procedure, identifies exceptional circumstances for special needs offenders. One would be inclined to think that the drive of this aspect is that a person undergoing a C.C.T.O. who has "special needs" is probably a person in respect to whom exceptional circumstances exist, because it would be inhumane to return a person with such special needs, so long as they arose subsequent to admissions back to the community, to return to prison. See, too, ss.18R and 18S with respect to treatment and reporting.

[75]

The Court is not relieved of this exercise of power because there are circumstances which might, in the exercise of an ordinary sentencing discretion, be capable of being into account in deciding that it was appropriate to select the less severe option from possible range of sentencing options. The circumstances must be exceptional. That is a conclusion to be reached on considering post-release events. An Appeal Court is virtually in the same position as a magistrate (once the fact of the circumstances have been found to be identified) to conclude whether or not those circumstances are exceptional, in the sense that it is determined the statute intends. The magistrate was aware that there had to be a finding of exceptional circumstances. When the Court order was amended to give its "reasons", the magistrate stated that the exceptional circumstances were to be found in the behaviour of the defendant because his release from custody which was not typical, that is, exceptional compared or contrasted to previous behaviour. These facts were (i) employment, (ii) learning a trade, (iii) working six days a week, and (iv) different mode of living. It was specifically stated that he found that the progress made by the defendant since his release has been exceptional. This can mean no more than improvement in his behaviour in society. This must mean, if it were correct, that a person being released from custody to complete a balance of a term of imprisonment in the community instead of in custody would be free of the obligations imposed upon him or her, when released, to co-operate with the authorities charged with the management of the released person free of the obligations to be tested and treated, and helped, so long as their post-release behaviour was a distinct improvement on previous behaviour. It is, as counsel for the appellant suggested, the mirror image of McLachlan. In this case the releasee has not been found to have committed any criminal act constituting an offence in the relevant three month period but has completely failed to comply with the conditions of release. In my view, it must be thought that the legislature intended and desired that persons imprisoned under a C.C.T.O. would on release not only be required to observe the law but to undergo counselling, monitoring and treatment. This is because the C.C.T.O.s are made in the case of persons found to have been alcohol or drug dependent or addicted. But if that person does not abide by the conditions and/or commits offences, they are to go back to gaol unless there are exceptional circumstances. In my view, it could not have been intended by the legislature that the living of life in an ordinary way, neglecting the obligation to comply with the conditions, could constitute something exceptional, even though to do so may be considerably different from the pre-sentence behaviour.

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Judgment (84 paragraphs)

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