R v BO

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Alleged breach of Good Behaviour Order - alleged failure to comply with directions - onus on prosecution to prove breach - beyond reasonable doubt - appropriate fault element - whether breach of conditions is subject to proof strict liability.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Breach of obligations of Good Behaviour Order - no statutory capacity to excuse breach or ignore for triviality - desirability of reform.

Crimes (Sentence Administration) Act 2005 (ACT), ss 86(1)(d), 102, 106, 110

Crimes (Sentencing) Act 2005 (ACT), ss 12, 12(3), 64

Crimes (Sentencing Procedure) Act 1999 (NSW), s 98(3)

Court Procedures Rules 2006 (ACT)

Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379

Guy v Anderson [2013] ACTSC 5

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536

R v Judge Leckie; ex parte Felman (1977) 18 ALR 93

R v Marlow Justices; Ex parte O'Sullivan [1984] QB 381

R v McGarry (1945) 30 Cr App R 187

R v Smith [1925] 1 KB 603

R v Southampton Justices; Ex parte Green [1976] QB 11

Sherras v De Rutzen [1895] 1 QB 918

Sweet v Parsley [1969] UKHL 1; [1970] AC 132

David Lanham et al, Criminal Laws in Australia (Federation Press, 2006)

1. On 16 September 2014, following a trial by jury, the offender, BO, was convicted of one offence of engaging in sexual intercourse with a young person under the age of ten years and eight offences of committing an act on or in the presence of a young person under the age of ten years.

2. On 13 November 2014, I sentenced BO to a total of two years and six months imprisonment from 16 September 2014 to 15 March 2017.

3. I directed that the sentence be suspended after twelve months, on 15 September 2015, for a period of eighteen months.

4. In accordance with s 12(3) of the Crimes (Sentencing) Act 2005 (ACT), I made a Good Behaviour Order for a period of two years from 15 September 2015, with a probation condition that BO be under the supervision of the Director-General or her delegate for a period of two years or such lesser period as the person supervising him considers appropriate and that he obey all reasonable directions of the person supervising him, especially as to engagement with a mental health service provider, engagement with vocational training, work experience or other employment activities and engagement with his therapist.

5. Section 102 of the Crimes (Sentence Administration) Act 2005 (ACT), provides that if a Community Corrections Officer believes, on reasonable grounds, that an offender has breached any of the offender's good behaviour obligations under a Good Behaviour Order, the Community Corrections Officer must report the belief to the sentencing court.

6. On 10 November 2015, a Community Corrections Officer laid an information under that section and it was referred to me. The information deposed to the following matters.

7. It appears that, prior to BO's release from Bimberi Youth Justice Centre, he was contacted by a Community Corrections Officer who discussed with him various documents and, presumably, the obligations in them and a written direction "to attend all appointments as directed". BO was also directed to attend three appointments for psychological counselling and supervision. He attended those appointments.

8. At the last of those appointments, BO was directed to attend for weekly supervision and fortnightly psychology appointments and was given psychology and supervision appointments on 7 October 2015.

9. It is alleged, and not contradicted, that on 7 October 2015 BO failed to attend his appointments as directed but did make telephone contact to state that he was not feeling well. He was requested to provide a medical certificate for his absence and he did so.

10. BO reported for supervision on 13 October 2015 and was given a further supervision appointment on 21 October 2015 and reminded about his psychology appointment on 14 October 2015.

11. He failed to report for his psychology appointment on 14 October 2015 and failed to provide any explanation. He was unable to be contacted but a further appointment was re-scheduled on 21 October 2015.

12. On that day, he telephoned to say that his transport was unavailable because his youth support and transition worker had been unable to assist. He was reminded that his attendance at supervision was his responsibility and not to be reliant on anyone else to get him to his appointments but was provided with a further supervision appointment on 22 October 2015 when he did report as directed and, apparently for the first time, was provided with bus tickets so that he could report to future appointments.

13. He was provided with a further supervision and psychology appointments on 28 October 2015, which he did attend, and was directed to attend a further supervision appointment on 5 November 2015. He failed to attend but, on 6 November 2015, perhaps as a result of an earlier attempt to contact him, he did contact the service to inform them that he was unaware of his appointment as he believed he was now reporting on a fortnightly basis.

14. As a result, it was asserted that BO had failed to accept supervision as required and failed to comply with written directions.

15. When sentencing young offenders such as BO to a term of imprisonment, unlike the case of an adult sentenced to imprisonment, the court cannot set a non parole period: s 64 of the Crimes (Sentencing) Act 2005 (ACT).

16. Instead, the option available to the court, and frequently used, is the suspension of the sentence after the period which would equate to the non parole period. That suspension, of course, requires the making of a Good Behaviour Order: s 12(3) of the Crimes (Sentencing) Act. That is the structure of the sentence imposed on BO in this case.

17. As noted above (at [4]), the Good Behaviour Order included a probation condition which requires BO to be under supervision and to obey "all reasonable directions from the person supervising him". Accordingly, a term of the Good Behaviour Order was that BO comply with such directions. That mirrors a statutory obligation under s 86(1)(d) of the Crimes (Sentence Administration) Act 2005 (ACT) which requires an offender to comply with any direction given by the Director-General (or, presumably, a person delegated by the Director-General to exercise those functions).

18. Once a Good Behaviour Order is made, consequent upon the suspension of a sentence of imprisonment, the procedure in relation to breaches is as follows. As noted above (at [5]), s 102 of the Crimes (Sentence Administration) Act requires a Community Corrections Officer to report to the court any belief that he or she has that an offender has breached any of the offender's good behaviour obligations. On that report, a judge or magistrate may issue a warrant under s 104 of that Act or a summons under s 106 of that Act for the appearance of the offender before the court to be dealt with for the breach.

19. When an offender is before the court, the powers of the court, in the case of a Good Behaviour Order made when a sentence of imprisonment was suspended, are set out in s 110 of the Crimes (Sentence Administration) Act which is in the following terms:

110 Cancellation of Good Behaviour Order with suspended sentence order

(1) This section applies if -

(a) an offender's Good Behaviour Order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender's conviction for an offence; and

(b) a court is satisfied the offender has breached any of the offender's good behaviour obligations.

(2) The court must cancel the Good Behaviour Order and either -

(a) impose the suspended sentence imposed for the offence; or

(b) re-sentence the offender for the offence.

(3) If the offender has given security under the Good Behaviour Order, the court may also -

(a) order payment of the security to be enforced; and

(b) order the Good Behaviour Order to be cancelled on payment of the security (if the term of the order has not already ended).

(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.

Example

The Magistrates Court convicted Desmond of an offence. The court sentenced Desmond to imprisonment for 6 months for the offence and made a suspended sentence order for the entire sentence of imprisonment. The court also made a Good Behaviour Order for the 6-month period. Desmond breaches the order. In re-sentencing Desmond, the court may impose a sentence of imprisonment to be served by intensive correction.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(5) To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the offence.

20. Those statutory provisions probably overtake the concern expressed by the High Court in R v Judge Leckie; ex parte Felman (1977) 18 ALR 93 at 99-100, about the judge who made the Good Behaviour Order issuing the warrant or directing the issue of a summons to bring the offender before the court to answer the breach. In any event, despite those concerns, Gibbs J, with whom Stephen J agreed and with whom Aickin J substantially agreed, held that such a process as provided for in this case would not breach the rules of natural justice.

21. When the hearing commenced, however, it was submitted that there had been no breach of the Good Behaviour Order.

22. This raised a factual issue and an issue about what constitutes a breach of an order. No procedural guidance is given in either the statute or the Court Procedures Rules 2006 (ACT) about how this matter is to be resolved.

23. There is, of course, no difficulty in the court resolving a dispute of this kind. The court will hear evidence and make a decision. That, however, is not the issue.

24. There are two issues: what is the onus and burden of proof and what is necessary to constitute a breach?

25. As to the first, it seems clear that the prosecuting authorities who assert the breach bear the onus of proving it. There seems no difficulty also in assuming that the proof of a breach must be proof beyond reasonable doubt.

26. In R v Smith [1925] 1 KB 603, the English Court of Criminal Appeal held at 606:

Where a defendant is brought up on an allegation that he has broken his recognisance, he cannot properly be sentenced unless the allegation of fact is proved, and it must be proved as any other allegation of fact is proved in the criminal court. It must be supported by the sworn evidence of witnesses for the prosecution and the defendant must be allowed to cross-examine these witnesses and also to give evidence himself and to call witnesses to give evidence on his behalf.

27. In R v McGarry (1945) 30 Cr App R 187 at 189, Humphreys J, delivering the judgment of the English Court of Criminal Appeal, said that a court should

...see that when a prisoner is brought up for sentence because a recognisance previously entered into is alleged to have been broke, those facts are proved just as they would be proved if the allegation were that the prisoner had committed a crime.

28. The civil standard, however, was applied in R v Marlow Justices; Ex parte O'Sullivan [1984] QB 381 at 385. In that case, however, the earlier decisions were not doubted. That case concerned a breach of a recognizance by which the defendant was bound to keep the peace. In that case, it was held that the civil standard applied because the only liability for breach was forfeiture of a recognizance.

29. The court held that forfeiture or estreatment of a recognizance is a civil and not a criminal proceeding, as had been held in R v Southampton Justices; Ex parte Green [1976] QB 11. Further the court held that certain statutory procedures are required for that purpose.

30. This distinguished the case from R v Smith and R v McGarry where the breach of the recognizances rendered the defendant liable to be sentenced for the offence of which he had been convicted when he entered into the recognizance.

31. As Murphy J pointed out in R v Judge Leckie; ex parte Felman at 106, these cases show that the proof of a breach must be beyond reasonable doubt and, it seems to me, that this standard applies in Australia and in the Territory in the case of a breach of a Good Behaviour Order (or recognizance), at the very least one made when a sentence of imprisonment is suspended.

32. The next question, however, is what is the content of what has to be proved. Clearly, the conduct, in this case the failure to comply with the direction, must be proved. The conduct can include an omission, such as the failure to attend for an appointment as directed. That is the conduct of which complaint is made in this case.

33. The question is, however, what in addition, if anything, has to be proved.

34. It seems to me that there is no reason to believe that the general approach to the criminal law should not be followed. That is to say, that mens rea or an appropriate fault element is also required to be proved.

35. The common law requires that for proof of commission of an offence an appropriate mental element is required, unless that requirement is displaced by the clear or necessary implication of other provisions in a statute creating the offence. See He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 528, 530 and 566.

36. Given that an offender who breaches a Good Behaviour Order is likely to be sentenced or re-sentenced for the offence, there seems every good reason why it would be necessary to prove appropriate mens rea or fault element to the conduct to answer the question of whether the person subject to the Good Behaviour Order has committed a breach.

37. In my view, this is confirmed in a case such as this because s 110 of the Crimes (Sentence Administration) Act makes no provision for any breach to be excused because the breach was trivial or there are good reasons for excusing the offender's failure to comply with the conditions of the order. Indeed, upon proof of a breach, no matter of what kind, the Good Behaviour Order must be cancelled under the current legislative provisions. This is to be contrasted with the provisions permitting the excusal of a breach in New South Wales: s 98(3) Crimes (Sentencing Procedure) Act 1999 (NSW).

38. Indeed, it may be time that the legislature considered whether it should make a provision for the court not to be required to cancel a Good Behaviour Order where the breach is trivial or excusable. The absence of such a provision does cause some risk of injustice. While a trivial or excusable breach is highly unlikely to result in the sentence that was suspended being imposed (Guy v Anderson [2013] ACTSC 5 at [88]), there is the problem that the alternative is to re-sentence the offender.

39. Re-sentencing requires the imposition of a sentence that is appropriate for the original offence and, while the same sentence may be imposed, the making of a further sentence does often increase the actual penalty. For example, it is not possible to pre-date the commencement of a Good Behaviour Order and the suspension again of the sentence of imprisonment originally imposed and suspended may be still appropriate to the offence and, therefore, must be imposed. If so, s 12 of the Crimes (Sentencing) Act requires the making of a Good Behaviour Order for the period during which the sentence is suspended or longer and this will almost always add to the period under which the person is subject to such an order, no matter how trivial or excusable is the breach.

40. Thus, I incline to the view that there needs to be proof of intention. The circumstances of the consequences of a particular interpretation and the relevant context of a statutory provision in the criminal law can be used to help inform the construction of the provision. See Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379 at 386; [20].

41. The intention required to be proved of the conduct constituting the breach, however, should not merely be that the act is intentional but that it would constitute a breach of the Good Behaviour Order. Thus, illness of a relevant kind might mean that the offender decides not to report for supervision, but does not intend to disobey the direction to reporting; he or she is unable, through illness, to perform the necessary conduct and is not intending to avoid the obligation but is just unable reasonably to comply.

42. I did not, however, hear detailed submissions on this issue and I accept that there is a respectable argument that the breach need not require a relevant fault element and that it may require an approach similar to those relevant to regulatory offences, namely the imposition of strict liability on the breach.

43. Breaches of the criminal law subject to strict liability do not require, for their proof, a mental or fault element of intention or even recklessness. The conduct itself, if proved, constitutes the breach whatever was intended or thought.

44. While there is no mental or fault element that must be proved in the case of strict liability breaches of the criminal law, a breach will be excused if the person accused of the breach made an honest and reasonable mistake as to facts, which, if they had existed, would excuse the breach. See Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536.

45. Thus, if a person honestly believed, on reasonable grounds, that he was not required to report for supervision, even though he was actually required to report, once a person has adduced an evidential basis for such a belief, the prosecution authorities bear the onus of proving that the mistaken belief should not be accepted and the breach not excused.

46. In David Lanham et al, Criminal Laws in Australia (Federation Press, 2006) at 383-4, the authors helpfully identify six factors that might assist to determine whether an offence is a strict liability offence or not. These are:

• the wording of the offence in comparison to other offences;

• the provision of defences which would be unnecessary were the usual fault element to be implied;

• the gravity of the harm the offence is designed to prevent;

• whether the defendant is able to do anything to comply with the legislation, that is whether the offence criminalises conduct that an individual has no capacity to avoid.

47. See Sherras v De Rutzen [1895] 1 QB 918, Sweet v Parsley [1969] UKHL 1; [1970] AC 132 and He Kaw Teh v The Queen.

48. In my view, these options, when applied to this situation, point two ways. Some considerations, such as the gravity of a breach, seem to support an approach that would hold that a breach is subject to strict liability.

49. Other considerations, such as criminalising conduct that an individual cannot avoid, where an ill person may simply be unable to report for supervision, support the requirement for a fault element.

50. The final determination as to what exactly is required will have to await another day. I have been unable to find any helpful authority on the subject.

51. In the end, this debate and uncertainty does not matter in this case. BO could have challenged the alleged breaches on the grounds of lack of a mental or fault element - lack of mens rea. Alternatively, he could have challenged the breaches on the grounds that he made an honest and reasonable mistake as to facts which if they had existed would have made the conduct not culpable.

52. I considered that, applying either of these approaches, the breaches were not proved beyond reasonable doubt. The Crown did not demur.

53. Accordingly, I took no action, for I was not satisfied that BO had breached any of his good behaviour obligations. As a consequence, I found that s 110 of the Crimes (Sentence Administration) Act did not apply.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.