R v Eyles [2015] ACTSC 271

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentence - sexual intercourse with a person over the age of 10 years but under the age of 16 years - guilty plea - offender seeking rehabilitation

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 51(3)

Crimes Act 1900 (ACT), s 55(2)

Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372

Clarkson v The Queen (2011) 32 VR 361

Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447

R v Barker [2014] ACTSC 115

R v Bloomfield (1998) 44 NSWLR 734

R v Carney (No 2) [2014] ACTSC 61

R v CV [2013] ACTCA 22

R v Stevenson (Unreported, Australian Capital Territory Supreme Court, Gray J, SCC No 333 of 2008, 30 September 2009

R v Sulemanov [2007] VSCA 288

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

Saga v Reid [2010] ACTSC 59

Legal Aid ACT (Offender)

1. On 5 May 2014 the offender, Troy William Eyles, had penilevaginal sexual intercourse with the complainant, born on 19 May 1998. She was, therefore, still 15 years old. Some days later the complainant approached police, visibly upset. As a result, a warrant was issued and Mr Eyles was arrested on 13 June 2014.

2. He appeared in the ACT Magistrates Court charged with engaging in sexual intercourse with the complainant, who was then a person above the age of 10 years but under the age of 16 years, namely, 15 years. He was granted bail and after a number of adjournments was, on 18 September 2014, committed for trial to this Court.

3. On 30 October 2014, an indictment was filed containing two counts: the count on which Mr Eyles was committed to this court for trial and also an ex officio count that he engaged in sexual intercourse with the complainant without her consent and being reckless as to whether she was consenting. On 17 November 2014, the proceedings were listed for trial to commence on 7 April 2015.

4. On 30 January 2015, I directed that the recording of the evidenceinchief interview of the complainant by police be edited and adjourned the proceedings to 4 February 2015. On that day, Mr Eyles pleaded guilty to the first count on the indictment, namely, the count on which he had been committed to this Court, and the matter was then listed for sentence on 21 April 2015. I assume that, after sentence, the Crown will file a notice declining to prosecute for the remaining count on the indictment, R v DF (No 2) (2012) 6 ACTLR 105.

5. Engaging in sexual intercourse with a person over the age of 10 years, but under the age of 16 years, is an offence against s 55(2) of the Crimes Act 1900 (ACT) and attracts a maximum penalty of 14 years imprisonment.

6. As pointed out in Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-2, while the statutory maximum is an important indicator of the seriousness of the offence, offences such as this can be committed in a wide variety of circumstances, and the heinousness of the conduct in a particular case depends not so much on the statute defining the offence, but on the facts of the case. In such cases the sentencing judge has to consider where the facts of the particular case stand in the spectrum, at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration on such a child.

7. Mr Eyles was an acquaintance of the occupant of an apartment in Northbourne Flats, Braddon. In late April or early May 2014 the complainant ran away from home and initially lived on the streets. On 4 May 2014, she met Mr Eyles' acquaintance and told her that she had been kicked out of home and needed somewhere to stay. Mr Eyles' acquaintance invited her to stay in the spare room of her apartment. It appears that the acquaintance was involved in the drug scene; not an appropriate environment for the complainant.

8. The next day, between 6:00 pm and 8:00 pm, the complainant was watching television in the living room with Mr Eyles, his acquaintance and some other acquaintances. They were drinking wine and smoking cannabis and were intoxicated, although Mr Eyles indicated later that he did not believe that he was intoxicated or had consumed drugs.

9. Mr Eyles and the complainant got along quite well, until Mr Eyles grabbed her arm tightly, causing her pain. She told him to let go, which he did, but she became somewhat scared of Mr Eyles. Later, the complainant cooked dinner, but while she was doing this Mr Eyles kept trying to hold her around the waist and resting his head on her breasts. The complainant tried to get away from him by sitting down to eat her dinner.

10. Later that evening, the complainant went into the bathroom and had a shower. Mr Eyles followed her, sitting on the toilet seat, and again holding her around the waist and resting his head on her breasts. She told him to leave and that she had to go to bed because she had school the next day. That comment, it was submitted, should have led Mr Eyles to be aware of the likely age of the complainant, though, of course, children over the age of 16 years still commonly attend schools in Canberra. Indeed, the complainant was to reach her sixteenth birthday in a fortnight.

11. While the complainant was having her shower the other people in the apartment left. The complainant finished her shower and walked into her bedroom to see Mr Eyles lying on the floor near the bathroom. They walked into the spare bedroom and got into bed and proceeded to have sexual intercourse. Mr Eyles was not wearing a condom and at some point ejaculated. The Statement of Facts, tendered without objection, says: "Whilst the complainant reluctantly consented, the accused believed that she was a willing participant." It is on this basis that I must decide on the seriousness of the offence.

12. Later Mr Eyles went to sleep and the complainant put on her underwear and tights and went into the living room to sleep on the couch.

13. About a week later, police were patrolling the Northbourne Flats when the complainant ran towards them, visibly upset. As a result, police seized a bed sheet and other items of clothing and bedding, which were analysed. Police forensic biologist found semen on a blanket which, on further analysis, showed very strong evidence that the DNA was from Mr Eyles.

14. Mr Eyles was later arrested and charged with the offence of engaging in sexual intercourse with a person over the age of 10 years but under the age of 16 years and appeared in court on 13 June 2014; and he was released on bail.

15. I have set out the circumstances of the proceedings above (at [2]-[3]) and the indictment which was filed, including the count on which Mr Eyles was committed for trial, as well as the further count preferred ex officio. The Crown, however, ultimately did not proceed with the ex officio count when Mr Eyles pleaded guilty to the earlier account.

16. The proceedings have unfortunately had a rather lengthy path in this Court. After the plea of guilty was entered on 4 February 2015, the proceedings were adjourned for sentence on 21 April 2015. They were then further adjourned, and on 13 May 2015 Mr Eyles made an application for an adjournment so that he could admit himself to the drug rehabilitation program at Odyssey House.

17. On 5 June 2015, I varied the bail conditions so as to permit Mr Eyles to participate in that program. As referred to below, he was later discharged from the program and I set a date for sentence. He applied for re-admission to the program, I declined to adjourn further for that purpose but I indicated that, were he to be re-admitted, I would take that into account. I invited his legal representations to advise me if he was re-admitted and today I have received evidence that he is to be re-admitted, though a particular date for re-admission has not been set.

18. I had a helpful PreSentence Report and a psychiatric report from Dr Stephen Allnutt, consultant psychiatrist. I also heard oral evidence from Mr Eyles' brother and from Mr Eyles himself. I had counsel's submissions. From this material I make the following findings.

19. Mr Eyles was born in Canberra in 1987, making him now 27 years old. He had an unconventional and chaotic childhood. Both his parents were regular users of illicit substances and there was a positive family history of depression and psychosis. Mr Eyles was aware of his parents' drug use from about four or five years of age.

20. The family moved from Canberra to Byron Bay, to Sydney and to Orange, which was clearly destabilising for Mr Eyles. His parents separated during his teenage years and he has since then had minimal contact with his father. He has four younger siblings. His parents were, during his formative years, not his main carers and he is said to have been brought up by "everyone"; his grandfather, father and mother. He was exposed to domestic violence and was physically abused.

21. At the age of 12, he moved out of home to live with his grandfather because he could not cope with the domestic difficulties. Nevertheless, as an adult, he has developed a close relationship with his mother. His relationship with his father, however, appears to have broken down more recently, though it had been reactivated for some time. One of the consequences of the chaotic parenting he experienced was that he missed a good deal of school. He had learning problems in primary school in Canberra where he was bullied.

22. He subsequently went to school in Sydney and performed much better. He completed Year 10. There were some differences in the reports he made to the author of the PreSentence Report and to Dr Allnutt as to whether or not he had completed Year 11. He appears then to have decided to pursue a career with the Australian Defence Force but, after initial interviews, he did not proceed with that process due to a family crisis.

23. He seems to have remained abstinent from drugs while in Sydney but relapsed on his return to Canberra. His drugs of choice appear to be ice, or methamphetamine, and heroin. It appears that around the age of 18 he left home and lived on the streets for some time. He was taken in by a couple who spiked his drink and sexually assaulted him. He has had a number of shortterm jobs in labouring. He has also worked for the Canberra Institute of Technology and in a carwash. He has worked for the fast food chain, Hungry Jack's, and for a wedding decorator.

24. He has had some significant physical injuries. He suffered a head injury and had a plate inserted and two operations. He also was attacked and assaulted, in which his kneecap was injured and which required an operation in 2009. As a result of his physical and mental health issues he has not been working since 2012. He is currently in receipt of a Centrelink pension but he finds difficulty in managing his financial obligations. He has recently been sleeping on the streets or wherever he can find some shelter. At the time of sentencing he had been sleeping at a church for three nights a week for about four weeks and on the streets the other nights. This has also exposed him to some violence.

25. He drinks alcohol and his consumption gradually escalated from his late teens until his mid-20s. He did, however, realise the adverse effects this was having on him and he significantly reduced his consumption. An alcohol screening assessment in 2015 showed that his alcohol use was a low risk factor. He has, however, used illicit drugs from a young age. He has abused amphetamines and, more recently, started using heroin. He has commenced on a methadone program but at the time of the offence had consumed illicit substances and alcohol. A recent drug screening tool administered to him indicated that his use of illicit substance was substantial and required further investigation and intervention.

26. While his childhood experiences have provided him with significant disadvantage, which is an important factor to take into account in sentencing, his drug use is an important factor, too, but one he clearly developed as a result of his upbringing. It is important to remember that the effect of his childhood disadvantage is not only an important factor but that it does not diminish over time. See Bugmy v The Queen (2013) 87 ALJR 1022 at 1031, [37]; 1032, [43]-[45].

27. Mr Eyles has participated in some rehabilitation efforts for his drug addiction. His brother said that he had taken Mr Eyles to two rehabilitation agencies, one in Sydney and one in Orange. He completed the two-week detoxification program in Orange and stayed abstinent for a while but he was not ready for treatment. He stayed less than a week at the William Booth Centre in Sydney. He has more recently been participating in the methadone program for over six months.

28. As noted above (at [17]), I amended his bail conditions so that he could attend at Odyssey House rehabilitation program. This was partly chosen because it would get him out of Canberra, where the temptation for him to relapse would be too strong. His brother was reasonably confident that Mr Eyles was ready for the experience but, of course, drug rehabilitation is hard. Drug addiction is pernicious and a very deep-seated addiction.

29. As I have said in Saga v Reid [2010] ACTSC 59 at [89], it is necessary often to make a number of attempts at rehabilitation and the courts should support that, although only on the realistic assessment that it is continuing to make some contribution to rehabilitation. It was clear from the challenging crossexamination of Mr Eyles that he has a serious drug problem.

30. He did attend at Odyssey House and was admitted on about 8 June 2015. He found it hard. No doubt the experiences and his current lifestyle made it difficult to adapt to a strict regime of discipline. He committed three breaches of discipline but, while significant in the context of the program, they were not such as to cause me concern that he was neither genuinely attempting to address his addiction nor relapsing into criminal behaviour. For example, he was disciplined for having a cigarette at a time when it was prohibited. On the final occasion he was waiting for a treatment group and he took himself off for 10 minutes to rest. He was dismissed from the program on 21 July 2015.

31. He had completed over six weeks of the program which, despite rule infractions, is to his credit. He told me that he had learned a number of things and appreciated the opportunity to participate. He would wish to participate further. I have now been informed that he has been accepted to return to Odyssey House, and that while no date has been given, a bed is expected to be available shortly, perhaps within days.

32. Mr Eyles has had little experience with women. He had one girlfriend for two months. His first sexual experience was at age 14 but he has never had an ongoing sexual partner and has had limited sexual experience. He denies sexual fantasies involving children, violence or fantasies or urges or behaviours involving voyeurism or exhibitionism. His arrest has made him significantly rethink "the whole sex thing". Dr Allnutt indicated that he did not consider that he was a paedophile or had paedophilic tendencies.

33. His mental health is problematic. Following a serious assault in 2013 he exhibited symptoms which Dr Allnutt considered were consistent with chronic posttraumatic stress disorder and which symptoms have been active since the assault. Dr Allnutt felt that there was some amelioration of these symptoms prior to the offending but an aggravation since the arrest. This is relevant to the offending because of the immaturity Mr Eyles developed from his upbringing and social isolation.

34. He has been diagnosed with depression and anxiety, for which he has received prescribed medication. He has, however, a major depressive episode, which includes intermittent suicidal thoughts. He has been referred to a psychiatrist and a psychologist for treatment. Dr Allnutt considered that Mr Eyles' functioning was impaired, particularly in the area of social functioning secondary to his posttraumatic stress, depression and current legal circumstances. He is also affected by people making derogatory comments about him, in particular, referring to him as "a rock spider", a term apparently usually used to mean a paedophile.

35. He has a criminal history involving 12 offences and a breach of a Good Behaviour Order. Three of the offences are offences of violence and also an offence of resisting police. He has two offences of damaging property on his record, a breach of bail for traffic offences and an offence of trespass on premises. He has, however, committed no prior sexual offence. This offence is by far the most serious of the offences he has committed. Prior to this offence, his most recent offending was in June 2010.

36. A matter of some concern is that, in discussing the offence with the author of PreSentence Report, he said that he disagreed with the Statement of Facts and appeared frustrated that his version of the offences differed from that presented to the Court. He became very emotionally distressed and was obviously upset about the situation in which he now finds himself. He was said to have demonstrated no victim empathy. His reflection was on the negative impacts on him. He has been assessed as at a medium to highrisk of re-offending, primarily due to his criminal history, illicit substance abuse, lack of stable employment and accommodation and his minimal pro-social support. He is assessed as displaying poor judgment and a lack of impulse control.

37. Finally, I had a character reference from a close family friend of 10 years. She was aware of his heroin addiction and homelessness. Her view was that Mr Eyles would not be in the present situation had he received appropriate support and assistance. That is a complex matter, for his brother and sister have clearly tried to provide much of that, and Mr Eyles has not always been cooperative. Nevertheless, her perspective, which is entitled to be respected, is that he desperately needs rehabilitation. She stated that Mr Eyles would not cope well in gaol.

38. There is no doubt that sexual offences against minors are regarded very seriously by the community. The community rightly expects that severe sentences will be imposed for such offending. The authorities are clear.

39. There were two immediately significant factors here. In the first place, the complainant was in a vulnerable position, having effectively run away from home and seeking refuge with Mr Eyles' acquaintance, though obviously not a very desirable destination. Her apparent protector had also left her alone in the flat with Mr Eyles.

40. The second is that the age difference was not inconsiderable. The complainant was 15, though very close to 16, and Mr Eyles was 27. This distinguished it from the situation where the parties are relative contemporaries. This, however, usually bespeaks a power imbalance, which is often associated with predatory behaviour. In this case, I do not see those elements strongly represented.

41. Mr Eyles was an immature individual and rather ineffectual. His perception of the situation does not seem to me to show predatory behaviour but rather a spectacular miscommunication and misinterpretation of the situation. While this does not reduce the gravity of the offence, it does mean that the culpability of Mr Eyles is not at the highlevel that the gravity of the offence itself suggests.

42. The perceived consent of the complainant is, I accept, not a mitigating factor. See Clarkson v The Queen (2011) 32 VR 361 at 371; [36]. Nevertheless, any absence of consent here is a complex issue, for the Statement of Facts actually refers to her consent, though suggests it was reluctant. That cannot ordinarily be an aggravating factor unless her consent was improperly obtained, and there is no suggestion of that. I do not regard the circumstances of the engaging in sexual intercourse itself as providing any aggravating factor.

43. The complainant was obviously distressed, and her distress was later quite severe, but there is no reference to that occurring until nearly a week later. The only mention in the Statement of Facts is that the next morning she told Mr Eyles' acquaintance that she had slept with him, and she appears to have remained in the premises until the following Sunday, when she complained to police, then obviously in distress. It is also the case that while the complainant was only a fortnight less than 16 years old, this is, on the authorities, not a mitigating factor. See R v Sulemanov [2007] VSCA 288 at [20]. On the other hand, this case is much less heinous than were the complainant to have been younger, especially much younger. It was, accordingly, a serious offence, but without many of the aggravating features that are often seen in such offences.

44. The complainant did not make a victim impact statement, but her mother did, and, as required by s 51(3) of the Crimes (Sentencing) Act 2005 (ACT), the complainant consented to its tender. It was read out at the sentencing hearing and Mr Eyles appeared to me to listen to what was said.

45. The complainant's mother said that the complainant had suffered severely from the incident and that this had made it difficult for her family to communicate with her in order to assist her. The incident had left her distrusting people and gave her a fear of going into Civic and difficulty in communicating with adult males.

46. The complainant had, at the beginning of 2014, commenced her Year 10 studies and was doing reasonably well, though there were "a few hurdles along the way". The crime had taken away her concentration and her enthusiasm for her school work. She became "quite cranky and irritated" at the time. She appears, however, to have regained her commitment to her school work but, as her mother noted, she has effectively lost 12 months of her life.

47. The complainant's brother was also affected and he has taken it very personally. It is to be hoped, and the Court certainly wishes, that the apparent signs of some recovery will progress and that the complainant and her family will be able to overcome the ill effects of the incident, as they seem committed to achieving.

48. I have access to the ACT Sentencing Database. It is, of course, quite problematic to place too much reliance on bare statistics, since most crimes have a wide range of seriousness and the relevant circumstances of an offender also range widely. See the comments of Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 at 739. Nevertheless, the raw information has some relevance. Thus, of the 30 cases recorded, 20 per cent (six cases) were sentences of fulltime imprisonment. Twenty per cent (eight cases) were partially suspended sentences and 33 per cent (10 cases) were fully suspended sentences, while 26.7 per cent (eight cases) were simply sentences of a Good Behaviour Order.

49. I also note that the case on which the Crown relied, R v Sulemanov [2007] VSCA 288, involved a very similar situation, where a 15-year-old complainant was taken by three males to a suburban flat and raped by one of the young men and then the offender was invited to have sexual intercourse with her. The complainant was described as being "out of her depth" and "isolated and vulnerable". The offender was acquitted of rape but convicted of the same offence as Mr Eyles. He said that he understood the complainant to have been consenting. The Crown appeal against the sentence imposed of 15 months imprisonment, suspended after nine months for two years, was dismissed.

50. My attention was also drawn to R v CV [2013] ACTCA 22 which sets out some helpful general principles, but is otherwise such a different case as to provide little guidance. In R v Stevenson (Unreported, Australian Capital Territory Supreme Court, Gray J, SCC no 333 of 2008, 30 September 2009), the offender, who committed the same offence, was sentenced to nine months imprisonment, which was fully suspended with a Good Behaviour Order for two years. The sentencing remarks do not provide much assistance, though it is clear that the plea of guilty was properly taken into account, and the complainant there did "not appear to have suffered some of the consequences that otherwise occur" from such offending.

51. I was also referred to R v Carney (No 2) [2014] ACTSC 61, where an act of digital penetration attracted a sentence of six months imprisonment, fully suspended. Mr Carney had a good criminal record. He was 21 years old and he did have some psychosocial deficits.

52. Finally, in R v Barker [2014] ACTSC 115, Mr Barker was sentenced for various counts of sexual offending, including five counts of engaging in sexual intercourse with a person under the age of 16 years. He was released with a Good Behaviour Order for three years. He was 20 at the time but the complainant was only 13 years old. The sexual activity was consensual. Mr Barker was found guilty of those offences after a trial. He did not plead guilty. Mr Barker exhibited limited remorse.

53. These cases are not particularly comparable and there is little by way of sentencing principles to be gained from them (see Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 at 378; [35])), other than that a term of immediate custody is not inevitable for this offence. Indeed, if anything, these cases reinforce the trend of the statistics in the sentencing database.

54. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. In this case, general deterrence is a prominent consideration, moderated to some extent by the mental health issues that Mr Eyles suffers. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276; [32]. Given the criminal history of Mr Eyles and the circumstances of the offending, I do not consider that specific deterrence is especially prominent. Rehabilitation must play a significant part, as must recognition of the harm, apparently not overwhelming or longlasting, to the complainant.

55. I have regard to Mr Eyles' plea of guilty. It did not come at the earliest time but it did save the administration of justice and was entered before the complainant was crossexamined.

56. I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act so far as I know them. They are set out above.

57. I note that Mr Eyles has been assessed as unsuitable for a community service work condition to a Good Behaviour Order because of unaddressed substance dependency issues, but suitable to serve a term of imprisonment by periodic detention. If Mr Eyles were to complete the program at Odyssey House then the reason for his unsuitability would no longer be determinative.

58. Having regard to the seriousness of the offence, however, I consider that no other sentence but a term of imprisonment is appropriate. The question is how it should be served. The matter is finely balanced.

59. The absence of prior sexual offending, the immaturity that Mr Eyles displays and the effect of his childhood disadvantage lead me to consider that the opportunity for rehabilitation is more significant than the punitive aspects of the sentencing, notwithstanding the gravity of the offence and the need to recognise the harm done to the victim. Because of the quite indirect relationship between Mr Eyles' drug use and the particular offence I do not consider that a Deferred Sentence Order is appropriate.

61. I convict you of engaging in sexual intercourse with a person under the age of 16 years but above the age of 10 years.

62. I sentence you to 12 months imprisonment. Had you not pleaded guilty I would have sentenced you to 15 months imprisonment.

64. 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 two years with the following conditions:

(a) a probation condition that you be subject to the supervision of the DirectorGeneral or her delegate for a period of two years or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of those supervising you as to treatment and counselling for drug and alcohol issues and mental health issues;

(b) that you admit yourself as soon as a bed is available to the residential program at Odyssey House and that you complete the program and obey all reasonable directions of the person in charge of the program;

(c) that, if you leave or are discharged from the program before you complete it, you present yourself to the Registrar of the Supreme Court personally, within two working days after you leave or are discharged, with a view to this Good Behaviour Order being reviewed;

(d) a community service work condition that you perform 100 hours of community service work within two years;

(e) that you report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City, by 4:00 pm on 26 August 2015.

65. I recommend that the community service work condition not commence until you have completed the Odyssey House residential rehabilitation program.

66. Mr Eyles, that is the formal orders that I have made. It is now important that I explain to you what I have done. I have said that, ordinarily, this offence, in the context of your plea of guilty, would require you to serve 12 months in prison. I am suspending that today and not requiring you to serve any time in prison unless you fail to comply with the conditions that I have imposed.

67. I have made a Good Behaviour Order which requires you not to commit any further offences punishable by imprisonment for the next two years. If you commit any such offences you can be brought back to the Court and you can be re-sentenced, and that includes possibly being sentenced to imprisonment, including the 12 months imprisonment that has been suspended.

68. Secondly, the probation condition requires you to obey reasonable directions of your probation officer, and the two areas that I have particularly mentioned are in relation to your drug and alcohol use, or mainly your drug use, and your mental health issues. A probation officer is there for two reasons. One is a degree of control to address issues that you need to address in order to avoid you committing any further offences, but also so that there is someone who, when things get tough, and things will get tough, particularly if you are genuinely committed to rehabilitating yourself from your drug addiction, knows of and can point to some supports and agencies that may be able to assist you through those tough times.

69. If, however, you do not comply with any directions that are given to you, then again, that is a breach of the order and you can be brought back before the Court and you can be re-sentenced, including sentencing you to prison.

70. I have required you also as a condition to go to Odyssey House. It seems to me that that is the only basis on which I should not require you to spend some time in prison. You know how tough Odyssey House is. You have had an opportunity to do that. I have not set a specific date but you need to ensure that you enter the program. If you do not do that promptly then your parole officer will give you a direction and if you do not do it then you will be back before the court and the likelihood is that you will spend some time in prison.

71. You have been to Odyssey House, you know what to do. It is going to be hard for you. Your background will lead it to be challenging to accept that discipline but you must do so. You really are at a turning point now. There is an opportunity for you to address what is causing you to act in a criminal way and to understand the circumstances of social situations where you have got to exercise appropriate restraint.

72. The period at Odyssey House, which I hope will be successful for you, will hopefully give you a basis on which you can come back into the community and you can be out of the criminal milieu. Your brother and your sister have done a lot to assist you and, no doubt, if you put your effort into achieving some success at Odyssey House they will continue to support you, as will your probation officer, in giving you a new start.

73. Now, I do not think this is a magic wand. It is going to be tough and there is no guarantee that it will work. If you really put an effort into it and show that you are really trying, then the Court will support you, but if you do not, then there is no alternative and the community needs to exact an appropriate response, a sanction, a consequence, for you in the circumstances.

74. Finally, to repay the community some of what you have done by breaching the law, I have required you to do 100 hours of community service work. That obviously comes after you have completed the Odyssey House program, although, if you cannot get into Odyssey House quickly, then you may do some community service work. That will get you back into the workforce to some extent. It will get you back working and hopefully it will be a useful part of your rehabilitation at the end of the day.

75. Again, if you do not comply with the condition to do the community service work, you can be brought back to Court and you can be dealt with.

76. If things go wrong, particularly at Odyssey House, then the worst thing you can do is run away from it. The best thing you can do is come back to the Court and explain what has gone wrong and how it has gone wrong. The Court will assess that and, if it is appropriate, will give you a chance, and if it is not appropriate, then you need to take the consequences and need to do that quickly and finally, rather than running away. If you run away, there will not be any further chances. There is only one option, and that is gaol.

77. Now, I do not want to put the fear of God in you, but I want to put a fear in you that you really must address these issues, and you must put your efforts into meeting the obligations that I have indicated, otherwise you will be in and out of gaol, and that will be no good for anyone.

I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge.