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[2017] ACTSC 101
Supreme Court of the ACT
2017-04-27
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(a) a probation condition that he be under the supervision of the Director-General or her delegate for 12 months or such lesser period as the person supervising him considers appropriate and that him obey all reasonable directions of the person supervising him;
(b) a community service condition that he perform 30 hours of community service work within 12 months; and
(c) a condition that he contact Debra Howell, ACT Corrective Services by 4:00pm on 27 April 2017 to make arrangements for completion of the community service condition.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - assault occasioning actual bodily harm - breach of a Good Behaviour Order - failure to complete community service induction or ordered hours - suspended sentence - new Good Behaviour Order made - community service condition
Crimes (Sentencing) Act 2005 (ACT), ss 7, 12
R v BO (No 3) [2016] ACTSC 175
R v Curtis [2013] ACTSC 291
R v Curtis (No 2) [2016] ACTSC 34
R v Harrington [2016] ACTCA 10; 11 ACTLR 215
R v Kekalainen (No 2) [2015] ACTSC 369
R v Ngerengere (No 4) [2016] ACTSC 300
R v Ogilvie (No 2) [2016] ACTSC 265
R v Thorn [2016] ACTSC 217
R v White (No 3) [2016] ACTSC 285
Saga v Reid [2010] ACTSC 59
Legal Aid ACT (Defendant)
1. It is well-known that the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) overlap, and the imposition of a sentence is the balancing of these purposes to achieve a just and adequate decision.
2. A sentence, however, is often not the end of the process, for most sentences require that an offender undergoes some period of incarceration, participates in rehabilitative programs, or complies with other obligations that form part of the sentence. Even a fine can take some time to pay, on occasion by mandated instalments.
3. During this period, a sentenced offender may not complete the sentence without some breach or failure of compliance: further offences may be committed even while an offender is in custody (e.g. R v Thorn [2016] ACTSC 217) or the obligations under a conditional release order may be breached (e.g. Saga v Reid [2010] ACTSC 59).
4. The responses of the court will, of course, depend very much on the circumstances of what has occurred, but must deal with the issue objectively without any sense of affront that the sentence has not led to a Damascene conversion of the offender, nor that it shows that there is no hope of preventing recidivism. See, for example, Saga v Reid at [89].
5. It can be a challenge to deal with such situations objectively and dispassionately but, of course, that is what a human rights compliant criminal justice system requires.
6. Now appearing before me to answer a breach of a Good Behaviour Order is Matthew Curtis who was, on 16 December 2013, convicted of assault occasioning actual bodily harm. See R v Curtis [2013] ACTSC 291.
7. The offence took place on 1 June 2013 when Mr Curtis assaulted the victim, a woman with whom he was then in a relationship. He became agitated and aggressive, making accusations of the victim and then suddenly punching her in the upper right leg with his closed fist. He then punched her upper right arm and upper left arm about five or six times with both his closed fists and then, despite her calling on him to stop, continued to punch her on the upper arms, torso and stomach. He punched her wrists two or three times. The victim suffered bruising, swelling of her wrists and numbness.
8. Mr Curtis had a criminal history as a minor, some of a serious kind. This was, however, his first offence as an adult.
9. While a serious assault in a family violence context, Mr Curtis was 18 at the time and thus a young offender, and the injuries suffered by the victim were not grave. Mr Curtis had a somewhat problematic childhood but had good prospects of employment. He had also spent nearly six months in custody prior to sentence.
10. As a result, I sentenced Mr Curtis to 12 months imprisonment to commence on 5 June 2013, to take into account pre-sentence custody. The seriousness of the offence required this. Nevertheless, because it was not a very grave version of the offence, and because of Mr Curtis's subjective circumstances, I suspended the sentence. As required by s 12 of the Crimes (Sentencing) Act, I made a Good Behaviour Order for two years with a probation condition.
11. On 4 April 2015, however, Mr Curtis was found in possession of a number of electronic and other items reasonably suspected of having been stolen. He pleaded guilty to that offence, which is contrary to s 324 of the Criminal Code 2002 (ACT), and was sentenced in the ACT Magistrates Court to a Good Behaviour Order with a condition that he complete 80 hours of community service work within 12 months.
12. The conviction for that offence breached the Good Behaviour Order that I had made and, on 26 February 2016, I cancelled the Good Behaviour Order, as I was required to do under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), but instead of imposing the sentence that was suspended, which is more likely when the breach is constituted by further offending, I re-sentenced him. I again sentenced him to 12 months imprisonment, backdated the start of that sentence to take into account pre-sentence custody and again suspended it with a further Good Behaviour Order, this time for 18 months. That took account of his general prior compliance with the earlier Good Behaviour Order, but extended the period during which he would be subject to conditional release obligations, and, as well as a probation condition, made a condition that he perform 40 hours of community serve work within 18 months. See R v Curtis (No 2) [2016] ACTSC 34.
13. Because there had been some difficulties with Mr Curtis performing the community service ordered by the Magistrates Court, Mr Curtis was also required, as a condition of the Good Behaviour Order, to complete the induction for the community service work within two weeks from 26 February 2016, that is, on or before 11 March 2016, which he told me in his evidence that he could do.
14. In R v Curtis (No 2) at [41]-[44], I set out the issues and difficulty, but granted him some indulgence; indeed, the remarks were in accordance with what he had told me. I said at [44]:
Nevertheless, I heard Mr Curtis's evidence in which he has informed me that, were I to require him to undertake the induction within a period of two weeks, he would be able to approach his employer and is confident that he would be able to undertake to attend the induction service at one of the times stipulated by ACT Corrective Services.
15. He was required to attend ACT Corrective Services on 26 February 2016 to make appropriate arrangements. Mr Curtis attended at ACT Corrective Services on that day. He was then reminded that he had failed to respond to three letters which had directed him to attend an induction for his community service work imposed by the Magistrates Court.
16. Debra Howell, the Corrective Services Officer who prepared the documents for the breach of the Good Behaviour Order, deposed in an affidavit in support of the breach report that Mr Curtis:
became aggressive and stated that he would not take a further letter to attend a new induction with a new induction date and left the room.
17. There was no challenge to this and it is consistent with the presentation of Mr Curtis before me when he appeared surly, passive-aggressive and intransigent. He did not attend an induction before 11 March 2016, or indeed at all.
18. Not only did his assurance prove unable to be fulfilled, Mr Curtis made no attempt to negotiate some resolution with ACT Corrective Services, nor to return to Court to seek an appropriate variation of the Good Behaviour Order. Instead, he just let the breach of the condition that he complete the induction by 11 March 2016 occur and apparently ignored the obligation.
19. Ms Howell further deposed Mr Curtis had been sent three further dates for his induction in September 2016, thus clearly breaching the Good Behaviour Order. This also was not challenged.
20. Mr Curtis attended at ACT Corrective Services on 13 October 2016 and had a discussion with Ms Howell about his employment and how his shift work made attendance for performance of community service work difficult.
21. He was, however, directed to attend an induction program on 20 October 2016 but failed to do so and, despite Ms Howell leaving a voicemail and text message on his mobile phone, he did not thereafter contact ACT Corrective Services. The breach was, accordingly, reported.
22. Mr Curtis originally appeared before me on 16 February 2017. He was unrepresented and, as it was within the range of action to be taken by the Court to sentence Mr Curtis to prison for the balance of the term of imprisonment that had been suspended, I adjourned the proceedings to enable him to obtain legal advice.
23. He finally appeared on 17 March 2017 with Mr H Jorgensen from Legal Aid ACT appearing for him on a duty basis. The Court is indebted to the assistance that Mr Jorgensen had been able to provide at some inconvenience to his other work.
24. Ms Howell and Mr Curtis both gave evidence and Ms Howell confirmed the details of the breach as I have outlined above. She also gave evidence about the problem Mr Curtis had in fitting together his employment and his community service obligations. She said that she had discussed with Mr Curtis his employment. The difficulty was that inductions are a necessary precondition for community service work, especially for work health and safety reasons, and were conducted at specific times, which conflicted with the shift work in which Mr Curtis was engaged.
25. Ms Howell said that she had made enquiries of the employer of Mr Curtis and was told that he worked Monday to Friday and only on Saturday or Sunday occasionally if his employer was very busy.
26. She indicated that community service could be completed on a Sunday. She also offered that, although inductions were held at set times that conflicted with the shifts that Mr Curtis worked, it might be possible for her to arrange a special induction for Mr Curtis to fit in with his shift work.
27. Ms Howell showed commendable flexibility within the not unreasonable constraints under which ACT Corrective Services must operate.
28. This was clearly a contrast with Mr Curtis, who seemed unwilling to entertain any option that he considered interfered with his priorities, which were his work and his family. He was reluctant to the point of obstinacy to forego shifts or the time he spent with his family between them. These are, of course, commendable priorities which are likely to reduce the risk of his recidivism and should not be set aside too readily.
29. On the other hand, it is necessary to balance all the purposes of punishment, and while rehabilitation is important, the denunciation of crime and its punishment are also important. It is, for example, important to make it clear by appropriately severe punishment, that domestic violence will not be tolerated in our community. To reduce the severity of a sentence because Mr Curtis wishes to work all the shifts he is given by his employer and wishes to spend time with his family, no matter how commendable those activities are, is to risk setting a sentence that is too lenient and will not meet the statutory purposes.
30. This is especially so when the Court already had extended Mr Curtis's leniency by suspending the sentence. The Good Behaviour Order then made had only a probation condition in addition to the core conditions set by statute. Mr Curtis failed to meet his obligation of the Good Behaviour Order, when that leniency was extended by the Court by further offending, though of a different kind and a less serious offence. The community, however, expects the Court to respond to such a situation by making it clear that such a breach of trust is unacceptable and that there must be consequences.
31. After hearing evidence, I consider that an opportunity should be given to Mr Curtis to see whether he could take appropriate advantage of the flexibility offered by Ms Howell, and I adjourned the hearing for a short time to give them an opportunity to confer.
32. On resuming the proceedings, I was told that it was agreed that Mr Curtis would perform his community service obligation for four hours each second Friday from 24 March 2017.
33. Given the lacklustre commitment shown by Mr Curtis in the past, however, it seemed to me that I should not simply accept this arrangement at face value but should review it in about a month to see how it progressed. Accordingly, I adjourned to yesterday to see how it had gone. There was some misunderstanding and the matter was relisted today.
34. I have now a report from ACT Corrective Services which states that Mr Curtis has attended on four occasions to complete community service work. He has, in that time, completed 10 hours and now has 30 hours left. The agency with whom he was working was closed between 10 and 17 April 2017. He was to work yesterday, but as at 11:00am had not attended. That may be because of his work commitments, or it may be because of his Court commitments. While he has not quite delivered on his promise of four hours per fortnight, he has, in fact, completed more work than would have resulted from his actual promise. The Report does state also that his attitude has improved and he worked well in completing the community service work that he was given.
35. The fact is, however, that he has breached a condition of the Good Behaviour Order by not completing the induction as required. The Order, however, required him to perform the community service work within 18 months from 26 February 2016 and this period has not yet expired. Thus, the breach is certainly a less serious one than the earlier breach and, since he is performing community service work, it is not, in my view, a serious one. It was one more of administration than of failure to meet the obligations of sentence, although of course the induction is, as I have mentioned earlier, a matter of significance.
36. Nevertheless, because of the breach, I must cancel the Good Behaviour Order made on 26 February 2016. Section 110 of the Crimes (Sentence Administration) Act gives me no choice. That I have no choice is despite the fact that I have suggested, and on a number of occasions, that there is room for reform so that trivial or excusable breaches may permit amendment of an Order or no further action being taken without a need for actual cancellation of the order. See R v BO (No 3) [2016] ACTSC 175 at [38]; R v Ogilvie (No 2) [2016] ACTSC 265 at [30]; R v White (No 3) [2016] ACTSC 285 at [15], and R v Ngerengere (No 4) [2016] ACTSC 300 at [13].
38. I have already set out in R v Curtis (No 2) at [13]-[19], the approach to be taken by a court responding to the breach of a Good Behaviour Order. I do not need to repeat what I there said, but I apply the approach I described.
39. In this case, considerable effort has been expended both by this Court and by ACT Corrective Services in having the terms of the Good Behaviour Order earlier made actually carried out. There have been five Court appearances.
40. In certain circumstances, the intransigence and failures of Mr Curtis could lead a court to find that he has failed to take advantage of the leniency that was offered to him and the trust placed in him by making the order I did, and so to respond with a more severe penalty, not disproportionate to that appropriate to the original offence, but appropriate in the circumstances.
41. Certainly, it has required time and effort to come to the present position.
42. Given that Mr Curtis has now completed 10 hours of community service work, I consider that I should not impose the sentence that was suspended, and I should
re-sentence him. The re-sentence is, of course, a sentence for the offence originally committed, but having regard to the intervening events, both the further offending and also the achieved compliance, including the periods of time without further offending. See my discussion of these issues in R v Kekalainen (No 2) [2015] ACTSC 369 at [48]. Therefore, I propose to make a further suspended sentence with an extended Good Behaviour Order. I propose to proceed as I have indicated, in part because Mr Curtis has now completed some of the sentence; namely, a reasonable amount of the community service work, which justifies the further suspension of the sentence.
43. The extension of the order is justified by the fact that since being sentenced by me, Mr Curtis has been convicted of a further 13 offences. Thus, Mr Curtis is not to be further punished for these offences, but the leniency that can be extended to someone with a limited or no prior record is generally not available to those who have offended. See R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at 234; [113]- [115]. Three of those further offences were, in fact, taken into account in re-sentencing him in 2016. The other 10 were traffic offences of a regulatory kind; that does not mean that they are not criminal offences, nor that they are trivial, though their importance is largely to ensure the integrity of the regulatory regimes which, however, are important to secure the safety of our roads. Nevertheless, the most recent was committed on 4 August 2016, over seven months ago.
44. I have thought carefully about whether any other action is required and have concluded that it is not. To do so may well be seen as an expression of the frustration in having to spend the time in getting this matter to the present position rather than being proper punishment which is the only basis on which to take such further action.
45. Mr Curtis will, by the conditions I impose, be on notice that further offending or
non-compliance will result in a real risk of further action, including the possibility of imprisonment, and he will be on probation for some time and, as well, will have to complete his community service work.
1. I confirm the conviction entered on 16 December 2013 for the offence of assault occasioning actual bodily harm.
2. I cancel the Good Behaviour Order made on 26 February 2016.
3. I sentence you to 12 months imprisonment to commence on 13 October 2016 to take into account pre-sentence custody.
5. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from today with:
(d) a probation condition that you be under the supervision of the
Director-General or her delegate for 12 months or such lesser period as the person supervising you considers appropriate and that you obey all reasonable directions of the person supervising you; and
(e) a community service condition that you perform 30 hours of community service work within 12 months; and
(f) a condition that you contact Debra Howell, ACT Corrective Services by 4:00pm today to make arrangements for completion of the community service condition.
6. I request that ACT Corrective Services regard the community service condition as a continuation of the condition under the cancelled Good Behaviour Order and not require Mr Curtis to undertake any further induction.
47. Mr Curtis, you probably understand what I have said, but I am obliged to explain it to you. What I have done is continue the original sentence of 12 months imprisonment which was what was justified for the offence that you committed of assault occasioning actual bodily harm. I have suspended that sentence today, taking into account the period of pre-sentence custody being the amount of time you spent in the Alexander Maconochie Centre before you were originally sentenced.
48. I have then made three conditions to be attached to that. I have made a Good Behaviour Order for 12 months; that is half of what was the original period because you have complied with a significant part of that earlier period of good behaviour already and there is no point in just extending it for the purpose of extending it or looking to repeat what was earlier done. I take into account that period even though there has been some non-compliance and some further offending, albeit of a traffic kind, as I have described, since then, which undermines any entitlement to leniency. Nevertheless, I think that is fair in all the circumstances.
49. I require you to complete the 40 hours, which only 30 hours of that are left, of the community service, and I require you to contact Debra Howell today in order to make arrangements to get that on track. You can do that by ringing her up or going over there; whichever you are required to do, but you must contact her. And you have to do your 30 hours. Once you do, that is it. I have made a recommendation that you do not have to do another induction or anything associated with that. I cannot, however, bind Corrective Services to that. I imagine, though, that your relationship with Ms Howell is now such that you will be able to approach her if there are any problems, and I can only hope that my recommendation will be of some assistance to ensure that you do not find yourself in that position again.
50. Do the community service and pay your debt to society, and get on with your life. I hope that you continue in your employment in a satisfactory way both for you and for your employer, and that you continue to enjoy the company of your family in the way that you wish to do so. Hopefully this will then be the end of it and you will not be back in the criminal justice system again.
I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Curtis