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[2016] ACTSC 373
Supreme Court of the ACT
2016-11-17
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - bail variation - residential drug rehabilitation - multiple breaches of bail and Good behaviour Orders - discharge from drug rehabilitation for a positive urinalysis test result - rehabilitation an important factor in sentencing - stringent bail conditions - compliance of conditions - specific deterrence - general deterrence
Crimes (Sentencing) Act 2005 (ACT), ss 7, 12, 27
Fabian (1992) 64 A Crim R 365
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
R v Eyles [2015] ACTSC 271
R v Ngerengere (No 3) [2016] ACTSC 299
Saga v Reid [2010] ACTSC 59
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
1. The purposes for which a sentence may be imposed are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). They are, as is well-known, not always easy to apply consistently. As so high an authority as the High Court has commented in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 475, the purposes not only overlap but sometimes point in different directions. The various purposes cannot be considered in isolation, but must be balanced in the instinctive synthesis, which that Court pointed out in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611; [25], is the sentence.
2. On 26 August 2015, I sentenced Troy William Eyles for an offence of engaging in sexual intercourse with a person under the age of 16 years. There were, as is inevitably the case, some aggravating features, an absence of frequently occurring aggravating features, and some particular subjective circumstances which were all considered to lead to the sentence imposed. See R v Eyles [2015] ACTSC 271. I sentenced Mr Eyles to imprisonment for 12 months but suspended it and, as required under s 12 of the Crimes (Sentencing) Act, made a Good Behaviour Order for two years with certain conditions, including a condition that Mr Eyles undertake residential drug rehabilitation at Odyssey House, being a residential drug rehabilitation facility in Sydney.
3. Mr Eyles entered the Odyssey House Program on 2 October 2015, but that agency decided that he was, despite him engaging well with the Program, considered unsuitable because of the nature of the offence for which he had been sentenced; he was discharged on 19 November 2015. The Program, as a measure of its assessment of him, had, nevertheless, facilitated his entry into an alternative program, the Bridge Program, conducted by Canberra Recovery Services (CRS), an agency of the Salvation Army. However that Program also considered that the nature of the offence resulted in him being assessed as unsuitable.
4. The discharge of Mr Eyles from the Odyssey House Program meant that he could no longer comply with the conditions of his Good Behaviour Order, but he presented himself to Court as required and I granted him bail pending determination of a suitable placement.
5. When CRS assessed him as unsuitable, I continued his bail pending a resolution of a suitable rehabilitation facility for his continuing rehabilitation. Regrettably, such facilities are not readily accessible and waiting lists are long. Despite the relatively satisfactory rate of success that they have, the resources available do not allow the supply of places in such facilities to meet the demand and this places problematic pressures on the criminal justice system. This is such a case.
6. The pressure for rehabilitation is obviously reduced if, as would have happened here, Mr Eyles were, while awaiting a bed in a rehabilitation facility, to serve out all or most of his sentence in custody. The regrettable comparative recidivism statistics for those incarcerated compared to those undertaking drug rehabilitation would suggest that, at least from a criminological perspective, that is not in accordance with the overarching purpose of the criminal law which is, as has often been pointed out, the protection of the community. See Davey [1980] FCA 134; (1980) 2 A Crim R 254 at 261. That, it must be accepted, is partly achieved through deterrence and punishment, though the criminological evidence of its effectiveness is not entirely clear. It is also achieved through rehabilitation, which is, as French CJ pointed out in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 537; [32], the surest guarantee of such protection.
7. After a lengthy period on bail, Mr Eyles secured a place at the Arcadia House residential rehabilitation facility, a program conducted by the respected drug rehabilitation agency, Directions. On 27 October 2016, I varied his bail to permit him to enter that program and adjourned the sentencing proceedings to 22 February 2017 to consider his progress.
8. On 12 November 2016, however, he was stood down from the Program because of a breach of the facility's discipline. He was, on urinalysis, found to have consumed opiates. He admitted this but gave an explanation.
9. He was, he said, visited by his father, who currently has a terminal illness, which is managed by morphine based medication. Mr Eyles complained to his father of having difficulty sleeping and his father gave him one of his prescribed tablets for that purpose. Mr Eyles frankly admitted that he knew what the tablet was.
10. Prior to discharge, Mr Eyles appeared to have been engaging well with the Program and the staff and residents at Arcadia House agreed that he could be re-admitted in the first week of January 2017. This, it was said by staff of the Program, would be "the best outcome for Troy and the community."
11. Since his discharge, Mr Eyles had not consumed any illicit drugs and had attended alcohol and other drug meetings; he was remorseful and apologetic for his actions.
12. This is, regrettably, not the first breach of bail or good behaviour conditions committed by Mr Eyles. On 19 April 2016, it was reported to the Court that, contrary to a bail condition that he accept supervision to the Director-General or her delegate, he had failed to attend for urinalysis as directed and had subsequently failed to attend for supervision. He was granted further bail by Penfold J on 27 April 2016.
13. On 30 May 2016, it was reported that he was not residing at the residence at which a bail condition required him to reside, making it difficult for his supervisor to contact him. That appeared to have resulted from an error in the address given on the bail undertaking and his bail was continued but varied to comply with the current living arrangements.
14. On 5 August 2016, a further report of a bail breach was submitted to the Court. It was somewhat more serious than the previous two breaches for it stated that urinalysis had detected illicit drugs consistent with use of cannabis and heroin. Justice Elkaim declined to revoke Mr Eyles' bail and that bail was continued by Murrell CJ on 24 August 2016.
15. By 22 September 2016, there was a real prospect of Mr Eyles being admitted to the Arcadia House Program, though no definite date was still available. Problematically however, Mr Eyles had been charged with a further offence of failing to report personal details, namely his possession of a mobile phone, as required under the Crimes (Child Sex Offenders) Act 2005 (ACT). This was, while a criminal offence, quite unrelated to the question of drug rehabilitation.
16. It is important to evaluate these matters carefully, although all are breaches of bail or the Good Behaviour Order I made when sentencing him. As such, they impinge on the trust that the Court needs to have if it permits him to be in the community at the relevant time. The first breach, namely his discharge from Odyssey House, however, was not one for which Mr Eyles was responsible - he was, initially, assessed as suitable and admitted to the Odyssey House Program but later, through no action of his, the assessment was changed. Such a breach did not show either that Mr Eyles was likely to re-offend or that he was likely to be a risk to the community.
17. Similarly, the failure of him to live at the address given on his bail undertaking, though it was the wrong address, was also not a matter that was likely to show a risk of
re-offending. One could, of course, create a story that did show that, but none of the evidence pointed in that direction. Again, it did not show that he was likely to be a risk to the community.
18. The failure to accept supervision was of concern, for the failure to comply with the direction to undergo urinalysis is consistent with an attempt to avoid detection for taking illicit drugs. Indeed, the later breach for his doing just that may justify that assumption.
19. These were, however, two occasions in a period of over 12 months. While serious and not to be condoned, I do not consider that they justify a finding that Mr Eyles is likely at this time to re-offend or put the community at risk.
20. The commission of the further offence is of some concern. Rehabilitation is designed to prevent recidivism. The actual offence and the circumstances of its commission do not suggest that it is something that, on the evidence, shows that Mr Eyles is likely to offend against the child sex laws or otherwise re-offend. There was no suggestion that the mobile phone he did not disclose had been used by him for any improper purpose.
21. These evaluations are not intended to minimise the fact that Mr Eyles has, by his behaviour, breached obligations that he had to the Court to comply with its orders and requirements, nor to minimise the fact that he had breached an important requirement of the Child Sex Offenders' Registration regime.
22. Nevertheless, he presented himself voluntarily to the Court following his discharge from the Arcadia House Program as, indeed, he did when discharged from the Odyssey House Program. This shows some insight and acceptance of responsibility, good signs for the success of rehabilitation.
23. He was also frank in his instructions to his lawyer, admitting that he knew that the tablet he took from his father was morphine and that it had not been prescribed for him.
24. When he appeared, however, I remanded him in custody until I could make a decision about how to proceed. This will make it clear that conduct of this kind is not acceptable and that the stakes are high if he is to retain the trust of the Court and be permitted to continue with his rehabilitation.
25. Given his criminal history, which is relatively short for a 28-year-old drug dependent person, and with, apart from this offence, no serious offences on his record, the prospect of rehabilitation seems to me to remain a matter of public interest.
26. I have set out in Saga v Reid [2010] ACTSC 59 at [89], the challenge for a person seized of the pernicious addiction to illicit drugs and the inevitable failures along the way to rehabilitation. While, as I said there, past failures do not automatically deny an offender a further opportunity to reform, there needs to be a rational basis for such opportunities.
27. Thus, a consideration of this involves a recognition of what Kirby P described in Fabian (1992) 64 A Crim R 365 at 367 when he referred to:
that minority of drug offenders who are endeavouring to escape addiction with the tremendous physiological, psychological and social problems that such escape entails.
28. In this regard, I note that the Arcadia House Program has agreed that Mr Eyles can be re-admitted, but has imposed compulsory conditions on his re-admission as follows:
• Attend SMART at Directions on Tuesdays at 10:30am;
• Attend ADAPT at Directions on Fridays at 10:30am;
• Attend weekly appointments with continuum of care worker/intake and assessment worker;
29. The Crown opposed the continuation of his bail. It raised three matters:
• it said this was the 13th time he had been before the Court on these charges;
• it said that the continuation of bail pays insufficient regard to the victim in this case; and
• it said that this matter had been too long in the Court.
30. Having carefully considered these matters, I am not satisfied that they do justify the course proposed. I am aware that the Crown has from the outset of these proceedings strenuously maintained that only a sentence of full-time custody was appropriate for the offending.
31. In the first place, while there have been multiple appearances of Mr Eyles before the courts, indeed more than 13, there have, as I have raised them above (at [12]-[21]), been, including this matter, five not thirteen breaches of Court orders or conditions. The second was, as I also pointed out above (at [13]), not a result of his conduct and, indeed, that may apply to the mis-statement of his residential address which caused another. Even adding the commission of the further offence, I do not consider that his record over the whole period is such as to take the matter outside the general approach I have identified in Saga v Reid.
32. As pointed out by Mr R Davies, who appeared for Mr Eyles, most of the other appearances in Court have been for what may be termed case management, particularly while he located, and then awaited placement for, admission to a suitable drug rehabilitation facility.
33. As to the length of time that these proceedings have been on foot, I accept that it is not to anyone's benefit for proceedings to be unnecessarily delayed. Nevertheless, having properly determined that rehabilitation is an important factor in the sentencing of Mr Eyles, the Court is to some extent locked into the need to await a placement in the overstretched drug rehabilitation sector with its chronic under resourcing. There can be problems and unfairness were such a wait to be served in custody. See R v Ngerengere (No 3) [2016] ACTSC 299 at [15].
34. That Mr Eyles has not relapsed into regular drug use nor committed offences which directly prey on the community, such as offences of dishonesty or personal violence, means that the Court supervision has had some beneficial effect. The period of time, excluding the wasted time arising out of the failed Odyssey House episode, is not more than is often encountered with a Deferred Sentence Order under s 27 of the Crimes (Sentencing) Act and this process has much in common with that.
35. Finally, the victim must not be ignored. Section 7 of the Crimes (Sentencing) Act expressly envisages that the sentence will recognise the harm done to the victim. That, however, does not mean that the victim can determine the appropriate penalty or, indeed, even the appropriate charge that is originally laid.
36. The Victim Impact Statement suggested that the victim was getting on with her life at the time of sentencing and was able to do so, despite the completely unacceptable harmful effects she suffered, including, as her mother described it, loss of 12 months of her life. I had no information to suggest that the victim was aware of the continuation of these proceedings, had been consulted, had expressed a view, or was further harmed or distressed by them.
37. Often a victim gains most closure by the acknowledgement, through conviction and the denunciation that a sentence effects, that she has been harmed and that such harm is entirely unacceptable.
38. There is a victim here; that must be acknowledged, but application of proper sentencing principles cannot be distorted by reference to the victim without a proper foundation for how the victim's interests are improperly adversely affected by the sentencing process and, even then, a proper evaluation of the proper consequences of that.
39. In my view, the compulsory requirements imposed by the Arcadia House Program and the offer of re-admission in the first week of January 2017 constitutes, fairly considered, a continuation of Mr Eyles' rehabilitation such as to justify him being released on bail.
40. I have already set 22 February 2017 as the date for re-sentencing Mr Eyles, consequent upon the variation to his sentence required by the discharge of him from Odyssey House. I see no reason why I should not retain that date and continue his bail until then.
41. I will include in the bail conditions additional requirements that mirror the Arcadia House Program requirements and also direct him to re-admit himself in January if accepted.
42. Depending on his progress, I shall then impose a proper and just sentence in accordance with proper sentencing principles, on or following the hearing on 22 February 2017.
(1) I direct that the listing for 22 February 2017 at 9:30am be confirmed;
(2) Mr Eyles be granted bail to appear on that date with the following conditions:
(a) that until he is admitted to the residential rehabilitation program at Arcadia House in accordance with condition (d) he reside at [redacted for legal reasons];
(b) that he accept supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him;
(c) that he accept monitoring by the Court Alcohol and Drug Assessment Service (CADAS);
(d) that he admit himself to the Residential Rehabilitation Program at Arcadia House, Villa A, Hennessey House, Mary Potter Circuit, Bruce ACT, as soon after 1 January 2017 as the person in charge of the Program permits;
(e) that he obey all reasonable directions of the person in charge of the Arcadia House program, including but not limited to submitting himself to urinalysis when required;
(i) he submit to urinalysis whenever reasonably required by the person supervising him under condition (b);
(ii) that he attend the SMART Recovery program at Directions each week as directed by Directions;
(iii) that he attend the ADAPT program at Directions at 10:30am on each Friday on which it is conducted;
(iv) he attend weekly appointments with continuum of care workers/intake and assessment worker at Directions; and
(v) he attend meetings of each of Alcoholics Anonymous and Narcotics Anonymous at least once a week;
(g) that if he is not admitted to the Arcadia House program by 13 January 2017, or if he is discharged at any time after his admission, he present himself to the Registrar of the Supreme Court of the ACT within two working days for reconsideration of his bail;
(h) that he authorise the officer in charge of the Arcadia House Program to provide to any officer of CADAS or to the person supervising him under condition (b), any information reasonably required by that person about his participation in the Program and his conduct; and
(3) He report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4:30pm today to make appropriate arrangements for monitoring and supervision.
44. Time runs out after a while. I am satisfied at the moment that you are committed to your rehabilitation. I hope that your illness was not a result, as might be thought by some, to the use of illicit drugs, because that would result in serious consequences for you. You are now at risk because you are in the community between now and January, and not in Arcadia House, and you have to be strong to avoid the use of drugs in that period.
45. Arcadia House has said that they will re-admit you, but they have made some strict conditions about compliance in the meantime, including attendance at programs. But you are also not to use illicit substances, and that includes cannabis, even though it is of a different kind of illicit substance than the heroin you have been using.
46. If it gets too difficult, then come back and we will just get rid of the sentence and put you in gaol and it is all over, but if you are really committed to your rehabilitation, then you have to stop making poor decisions; and, while it is criminal, it was also really stupid to have accepted your father's morphine medication. You are putting him at risk because that could well be a breach of the criminal law by him, as well as a criminal breach by you, and of your bail conditions, including your continued participation in the Arcadia House Program.
47. I clearly understand, as the progress of these proceedings show, the difficulty that people like you have, but if you want the opportunity to address that and to resolve your rehabilitation and your drug addiction, then you have to join with me in being strong about resisting the return to drugs and actively participating with the agencies that can assist you.
48. The fact that Mr Byrne is here in Court shows that you have a strong supporter who is willing to assist you, but he, like me, can only do it with your participation and your co-operation. He is someone who can assist when things get tough. Before going off and having a hit, you have to think about what you can do to stop that, and talking to him may be one of the options that is available to you.
49. The other programs that are there will, I hope, give you skills, tactics, and strategies to avoid falling back into those problems, but there comes a time when the opportunities cannot be extended any further and you are close to that.
50. There is a further risk. We are coming into the festive season when people want to party, and partying is often associated with drugs. You have to display extraordinary restraint over that period and make it to January, back into Arcadia House, and hopefully I will not see you until 22 February 2017.
51. If there are any problems, come back to the Court. Speak to Mr Davies, speak to Mr Byrne. There are people available to help you. If you have difficulty sleeping, you speak to your doctor, not your father.
I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Eyles
(2011) 243 CLR 506
(1988) 164 CLR 465
(2001) 207 CLR 584