Supreme Court of the ACT|2017-01-03|Before: Refshauge ACJ

R v Eyles (No 3) [2017] ACTSC 1 (3 January 2017)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The conviction of Troy William Eyles for engaging in sexual intercourse with a young person on 5 May 2014 be confirmed.

2. The Good Behaviour Order made on 26 August 2015 be cancelled.

3. Troy William Eyles be sentenced to 12 months imprisonment to commence on 18 August 2016.

4. That sentence be suspended on 4 January 2017 for 18 months.

5. Troy William Eyles be required 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 18 months with the following conditions:

(a) a probation condition that he be subject to 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 he obey all reasonable directions of the person supervising him;

(b) that he accept monitoring by the Court Alcohol and Drug Assessment Service (CADAS) for 12 months from 4 January 2017;

(c) that he admit himself by 12:00pm on 4 January 2017 to the Arcadia House Transition Program and obey all reasonable directions of the person in charge of the Program;

(d) that he complete the Arcadia House Transition Program and not leave it without the prior express consent of the person in charge of the Program until he has completed it. If he is discharged from the Program for any reason, or he leaves the Program without the express consent of the person in charge, he present himself in person to the Registrar of the Supreme Court of the ACT within two working days for a review of this Good Behaviour Order;

(e) That he consent to the person in charge of Arcadia House providing to the person supervising him and any member of the staff of CADAS any information about his progress and participation in the Transition Program that either of them may reasonably require.

6. Troy William Eyles be convicted of being a registrable sex offender and failing to report his personal details to the chief police officer as required.

7. Troy William Eyles be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 for a period of nine months from 4 December 2017.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - engaging in sexual intercourse with a person over the age of 10 but under the age of 16 years - failing to report personal details as a registrable sex offender - guilty plea - multiple breaches of Good Behaviour Obligations and bail - residential drug rehabilitation - rehabilitation an important factor in sentencing - sentence of imprisonment suspended to re-enter residential drug rehabilitation on a Good Behaviour Order

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Clarkson v The Queen (2011) 32 VR 361

Rees v The Queen [2012] ACTCA 6

R v Curtis (No 2) [2016] ACTSC 34

R v DF (No 2) [2012] ACTSC 3; 257 FLR 31

R v Elphick (No 2) [2015] ACTSC 23

R v Evans [2011] QCA 135; 2 Qd R 571 at 580

R v Eyles [2015] ACTSC 271

R v Eyles (No 2) [2016] ACTSC 373

R v Goboly [2016] ACTSC 322

R v Kekalainen (No 2) [2015] ACTSC 369

R v Lawson [2014] ACTSC 285

R v Liddy (No 2) [2002] SASC 306; 135 A Crim R 468

R v McGrail [2016] ACTSC 142

R v McGrail (No 2) [2016] ACTSC 143

R v Ngerengere (No 3) [2016] ACTSC 299

R v Ngerengere (No 4) [2016] ACTSC 300

R v Reeves [2011] ACTSC 140

R v Sordini [2015] ACTSC 45

R v Spencer [2014] ACTSC 364

R v Wilkins [2015] ACTSC 145

Weston v Arley [2012] ACTSC 138

EJ Cone et al, "Forensic drug testing for opiates: I. Detection of 6acetylmorphine in urine as an indication of recent heroin exposure; drug and assay considerations and detection times" (1991) 15 Journal of Analytical Toxicology 1

Legal Aid ACT (Defendant)

1. Troy William Eyles appeared before me for sentence on two charges, the first being that he engaged in sexual intercourse with a person over the age of 10 years but under the age of 16 years and the second that being a registrable child sex offender, he failed to take reasonable steps to report a change of his personal details as required. He has pleaded guilty to both offences.

2. 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.

3. Failing, as a registrable child sex offender, to take reasonable steps to report a change in personal details is an offence against s 54(1) of the Crimes (Child Sex Offenders) Act 2005 (ACT) which attracts a maximum penalty of 500 penalty units (that is, at the time, a fine of $75 000) and imprisonment for five years.

4. The proceedings involving Mr Eyles have been long and protracted and it is, regrettably, necessary to have some regard to the course of those proceedings for the purpose of this sentencing. Indeed, I have set out in a briefly annotated chronology as a schedule to these published reasons so that I do not need to refer to all of the matters mentioned in it in the course of these remarks. I turn first, however, to the facts of the two offences.

5. The facts of the offence of engaging in sexual intercourse with a person over the age of 10 years but under the age of 16 years are set out in full in my original sentencing remarks in R v Eyles [2015] ACTSC 271 at [7]- [13]. I rely on what I there set out.

6. In brief, the complainant was temporarily living in an apartment in Northbourne Flats on 5 May 2014 where Mr Eyles was visiting. She had left home because she said she had been "kicked out of home" and needed somewhere to stay. Her mother said that she had "run away from home". I did not and do not need to resolve any difference between these explanations.

7. Mr Eyles and the complainant got along quite well until Mr Eyles grabbed her arm and then continued to try to have some kind of romantic contact with her.

8. Later, the complainant had a shower and she told him that she had to go to school the next day, a reference that should possibly have alerted Mr Eyles to the likelihood that the complainant was not 16 years of age or older.

9. After the shower, the complainant walked into her bedroom where Mr Eyles was lying on the floor. Both walked into the spare room and got into bed where Mr Eyles had sexual intercourse with her. The Statement of Facts, tendered without objection, stated, "Whilst the complainant reluctantly consented, the accused believed that she was a willing participant." The complainant was to turn 16 on 19 May 2014, literally 14 days later.

10. On 26 August 2015, I convicted Mr Eyles of that offence. As a consequence, he became a registrable offender in accordance with the Crimes (Child Sex Offenders) Act and that required him to report personal details to the chief police officer which responsibility had been delegated to the Child Sex Offender Registry team. Personal details include the details of any telephone used by the offender.

11. On 2 September 2015, Mr Eyles was served with a document entitled, "Notice of Reporting Obligations" which detailed the requirements he had to observe as a registrable offender. He participated in an initial interview on 4 September 2015 when he provided his personal details and was reminded of his obligations.

12. At that time, Mr Eyles reported that he did not have or use a mobile phone. That is certainly consistent with the information available to me.

13. On 3 July 2016, however, Mr Eyles was a passenger in a vehicle which was involved in a motor vehicle collision. He was spoken to by uniformed police officers at the scene and told them that he "[g]ot proactive straight away and took down the guy's details," meaning the other driver. He pulled out a mobile phone and provided the details of the other party to police, which he had stored on the phone. He provided to police the number of the phone as his contactable number. This otherwise helpful and

civic-minded act disclosed the offence, as at no time did Mr Eyles notify the Child Sex Offender Registry team of his possession of a mobile phone or his use of it.

14. As noted above (at [4]), these proceedings have had a long and tortuous history.

15. I refer to the chronology which is scheduled to these reasons, especially as to the course of the proceedings.

16. Some of these matters have been the subject of more extensive description in R v Eyles (No 2) [2016] ACTSC 373. Insofar as it is relevant, I do not repeat but incorporate here what I there said.

17. Initially, Mr Eyles pleaded not guilty to the original charge. He was committed for trial to this Court on 18 September 2014. The trial was listed for hearing commencing on 7 April 2015. On 4 February 2015, however, Mr Eyles pleaded guilty to the first count on the indictment which the Crown accepted in full satisfaction. I note, however, that no Notice Declining to Proceed has yet been filed in relation to the other count on the indictment. See R v DF (No 2) [2012] ACTSC 3; 257 FLR 31 at 38; [45]. I assume that the Crown will do so as soon as possible.

18. On 5 June 2015, I adjourned the sentencing proceedings to allow Mr Eyles to enter the Odyssey House Residential Rehabilitation Program, as Mr Eyles had a significant drug habit and was using drugs at the time of the offence. He did so. He was, unfortunately, discharged from the Program for what was described as "bad behaviour" but not for further use of illicit drugs.

19. He appears to have progressed reasonably well, however, for he was eligible for

re-admission and, in fact, was re-admitted when I ultimately sentenced him on 26 August 2015. I then sentenced him to 12 months imprisonment, suspending the sentence that day for two years and, as required, I made a Good Behaviour Order which required him to admit himself to Odyssey House and continue there until he completed the Program. There was also a community service work condition that he perform 100 hours of community service work within two years: R v Eyles.

20. He did enter the Odyssey House Program on 2 October 2015 but that agency decided, despite his previous admission and the good progress that he had made, that he was unsuitable because of the nature of the offence for which he had been sentenced and he was discharged from the Program on 19 November 2015. He was, nevertheless, regarded as having progressed sufficiently satisfactorily in the Program and, as a result, that agency sought to facilitate his entry into an alternative program, namely, at Canberra Recovery Services (CRS), a Canberra residential drug rehabilitation program conducted by the Salvation Army, a Program I have described in R v Ngerengere

(No 3) [2016] ACTSC 299 at [68], [70].

21. Unfortunately, that alternative program also considered that the nature of the offence rendered him unsuitable and later advised Mr Eyles and his lawyers.

22. As he was not apparently using drugs and certainly had committed no further offences, I continued his bail with a view to ascertaining another suitable rehabilitation agency.

23. After a lengthy period on bail, Mr Eyles, on 12 September 2016, secured a place at the Arcadia House drug rehabilitation facility, a part of the well-respected drug and alcohol rehabilitation agency, Directions. He was initially admitted to the Day Program; a program I described in R v Spencer [2014] ACTSC 364 at [25]- [28].

24. In late October 2016, however, he secured a place in the Arcadia House Residential Rehabilitation Program; a Program I have described in R v Wilkins [2015] ACTSC 145 at [41]. He entered the Program on 27 October 2016.

25. Because of the breach of the Good Behaviour Order constituted by his discharge from the Odyssey House Program, I was required to consider, under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) whether to impose the sentence that had been suspended or to re-sentence him. I chose to re-sentence him, again suspending the sentence of imprisonment and making a condition of the required Good Behaviour Order that he admit himself and complete the Arcadia House Residential Rehabilitation Program: R v Eyles (No 2).

26. Unfortunately, on 12 November 2016, he was stood down from the Program because of a breach of the facility's discipline, namely disclosing on urinalysis use of opiates.

27. He admitted the use but explained that he was visited by his father who currently has a terminal illness which is managed by morphine based medication.

28. Mr Eyles complained to his father of having difficulty sleeping. His father gave him one of his prescribed tablets for that purpose. Mr Eyles frankly admitted that he knew what the tablet was.

29. Mr Eyles presented himself to Court on discharge in accordance with his bail conditions. I remanded him in custody on 15 November 2016, but, on 17 November 2016, permitted him on further bail. Arcadia House had agreed that he could be

re-admitted in the first week of January 2017. I was told that Mr Eyles had not consumed any illicit drugs in the meantime and that he had attended alcohol and other drug rehabilitation meetings. He was remorseful and apologetic for his actions.

30. Mr Eyles appeared before me on 24 November 2016 to vary his residential address. He was no longer willing to live with his partner and had moved back to live with his mother. At that stage, however, the Crown expressed some concern at this change because of his mother's antecedents that would risk Mr Eyles falling back into drug use. Accordingly, I listed the matter for mention on 30 November 2016 to see whether some alternative accommodation could be arranged.

31. On that day, the Crown submitted that Mr Eyles had further breached his bail by consuming heroin on 12 November 2016. That was contested by Mr Eyles and, accordingly, I listed the matter for hearing on 5 December 2016. Mr Eyles did not attend initially but did attend later during the day.

32. I heard evidence from a Community Corrections officer who provided a copy of the pathology report that had been obtained on a drug analysis conducted on Mr Eyles. It showed the presence of 6-acetylmorphine which the evidence was is a unique metabolite of heroin; its presence in urine confirming that heroin has been used and in about the previous six to eight hours. See EJ Cone et al, "Forensic drug testing for opiates: I. Detection of 6acetylmorphine in urine as an indication of recent heroin exposure; drug and assay considerations and detection times" (1991) 15 Journal of Analytical Toxicology 1.

33. Accordingly, on the basis of this analysis, it seemed unarguable that Mr Eyles had consumed heroin.

34. Mr Eyles gave sworn evidence, however, that he had not done so. Nevertheless, despite a vague suggestion from his counsel that he might have consumed something containing heroin inadvertently, a suggestion unsubstantiated by any evidence, it seemed to me that this constituted a breach of his bail, and in the circumstances, I remanded him in custody.

35. In a brief hearing on 8 December 2016, I continued Mr Eyles' remand in custody and listed the matter for sentence on 16 December 2016. I heard further submissions on that day.

36. Whilst Mr Eyles has been in residential and other rehabilitation or on bail since his arrest on 3 June 2014, almost exactly 30 months, in that time, he has been charged with only one other offence, which was described by the Crown as not a serious offence which he himself disclosed, though inadvertently.

37. More recently, he has, it seems, started to use cannabis again and even more recently used heroin, though it appears to have been possibly a single use.

38. I mention that on 5 August 2016 a breach of bail was reported, inter alia, for use of illicit drugs. The drugs disclosed were cannabis and an opiate. I note that the opiate was not more precisely particularised, though it could have been codeine, which may well be prescription medicine as Mr Eyles had some medical problems at around that time. In any event, no 6-acetylmorphine was detected, so it was not heroin that he had used.

39. During this period, he breached his bail or Good Behaviour Order on nine occasions. The first one was the discipline breach at Odyssey House to which I have already referred and which led to his discharge but he was re-admitted later.

40. The next breach was his discharge from Odyssey House because of the nature of the offence. While in form a breach, it was not in substance as there was no responsibility of Mr Eyles for the breach. Unfortunately, there was no occasion for the variation of the Good Behaviour Order as the legislation did not allow for that. A variation of the order is what it should have been and there is a need for legislative reform to permit that. See R v Ngerengere (No 4) [2016] ACTSC 300 at [13].

41. Of the remaining seven breaches, three were failures to report as directed for mandated supervision, though one included a failure to undertake urinalysis which, of course, leads to a suspicion that he may be avoiding that because the result will disclose drug use. That, however, cannot be concluded beyond reasonable doubt.

42. Of the other four, the first of which was that committed on 5 August 2016, over two years after he was first charged, and the next was for use of cannabis disclosed on urinalysis.

43. While cannabis is an illegal drug, it is recognised, in my view rightly, as less serious an illicit drug than heroin or amphetamine, ecstasy or cocaine. It is not often seen in these Courts as a cause or contributor to crimes of dishonesty or violence, unlike the others.

44. The final two breaches, on 12 November 2016 and 15 November 2016, were for more serious drug use; the first caused his discharge from Arcadia House, to which I have already referred, namely for use of his father's morphine medication, and the final one, the use of heroin, to which I have also already referred.

45. While baldly stated, nine breaches, even in 30 months, is a bad record, but carefully analysed it does not show a descent into further offending or significant drug use. In any event, Mr Eyles has experienced, in the remand in custody since 5 December 2016, consequences of the most serious of the breaches, namely, the use of heroin.

46. This is also to be placed in the context that Mr Eyles has continued to seek drug rehabilitation but restrictive admission policies and a chronic shortage of places has meant that it took over 12 months after his discharge from Odyssey House until he was able to find a place at Arcadia House. The discharge, of course, was because, despite good progress, it was unwilling to accept him on the basis of his offence.

47. He has, during that time, remained committed to residential drug rehabilitation though he clearly has had some difficulty in making the most of it when he finally accessed it.

48. It is unsurprising that, if residential rehabilitation is required, a period in the community prior to that would be a challenge and the pressure of having the sentencing proceedings hanging over his head would lead to challenges which, given his history, would be difficult to manage.

49. I do not suggest that any breach of a court order is to be ignored, but it is important that regulatory breaches which do not show anti-social tendencies or put the community at risk must be, and in this jurisdiction are, viewed in a different light to breaches that are more serious and which represent a risk to the community.

50. Thus, as I pointed out in R v Lawson [2014] ACTSC 285 at [7], a court must be careful that, while supervision is an important matter for controlling an offender and addressing those matters that contribute to criminal behaviour, those compliance requirements must not set an offender up to fail and should not be allowed to become net widening, a term I discussed in R v McGrail (No 2) [2016] ACTSC 143 at [36]- [37]. See also R v RM [2013] ACTSC 289 at [2] and R v Reeves [2011] ACTSC 140 at [19]- [25].

51. In my view, the record of breaches is a matter of concern and cannot be ignored, but in a sentencing exercise, it is not a matter of the number, but a careful analysis of the type of breaches and the circumstances of their commission.

52. Doing the best I can, they do not seem to me to disentitle Mr Eyles to an opportunity to participate in appropriate rehabilitation.

53. Over the period, apart from the Breach of Bail Reports, I had the following reports:

• seven Reports from the Court Alcohol and Drug Assessment Service (CADAS).

54. For the purposes of these reasons and the sentence I must impose, I have re-read and carefully considered all those reports.

55. The Pre-Sentence Report is a detailed and helpful compendium of the matters about Mr Eyles, his history and circumstances, to which I must have regard under s 33(1) of the Crimes (Sentencing) Act 2005. It is a more comprehensive and, therefore, more useful report than many of the reports that are now being provided to the Court as

Pre-Sentence Reports. See, for example, my comments in R v Sordini [2015] ACTSC 45 at [9] and R v Elphick (No 2) [2015] ACTSC 23 at [31].

56. I have set out in R v Eyles much of the material in the Report and do not need to repeat it but take it all into account.

57. The Updated Pre-Sentence Report was also helpful. Again, much of it is set out in R v Eyles (No 2) and, again, I do not need to repeat it but take it all into account.

58. The Bail Progress Reports were useful, but limited. They reported the attendances and non-attendance of Mr Eyles for supervision and the directions given for urinalysis and the results. They did not, however, give any information about, for example, his engagement with his supervisor when he did attend and any qualitative assessment of the progress he was making while on supervision. That is unfortunate.

59. It is, no doubt, unfair, but the impression I got from reading the reports is that it was a matter of mere attendance and that there was no engagement or valuation of the progress being made by Mr Eyles or, if not, what the impediments to such progress are and what assistance or directions were given to address those impediments and the challenges Mr Eyles faced. These are the issues that are important for sentencing and they could not be gleaned from the reports.

60. I do not have the view of supervision that it is merely a matter of attendance either on bail or under a good behaviour order. I commonly point out to those, whom I require to enter a Good Behaviour Order, the advantages to them of supervision. For example, in R v Goboly [2016] ACTSC 322 at [103], I said:

Probation has two aspects. One is the degree of control. That is there for an officer of the government to try and ensure that you do not commit any further offences. Secondly, it is also someone who is independent and has knowledge about resources and so on, so if things are getting tough for you, if you are not travelling well and things happen such as you go back to using drugs, then there is someone you can talk to who is independent but knows of agencies that might assist you or provide support to ensure that you get back on the straight and narrow and that is important.

61. Thus, I do not view supervision or probation in that rather administrative light, though failure to attend is important because then there is no possibility of any interaction or engagement that might have prevented recidivism.

62. While the record of attendance and, in particular, non-attendance is important for the court on sentencing to know, it is, in my view, only the start of what a sentencing court needs to know in order to craft a sentence that addresses the issues that the Crimes (Sentencing) Act requires it to consider.

63. In this sense, that CADAS Reports were a distinct contrast and gave a helpful picture of the journey Mr Eyles had made. They showed distinct progress and then slipping back with a helpful notification of what assistance was suggested and, indeed, arranged as well as its results and effects.

64. If the two approaches are indicative of the services provided by the two agencies, ACT Corrective Services and CADAS, there is no surprise that Mr Eyles has responded to and engaged with CADAS better and more enthusiastically. It may be, therefore, that this gives a clearer and more accurate picture of his progress and situation.

65. It is accepted that ACT Corrective Services is a criminal justice organisation and supervision, which it is expected to provide, has a regulatory dimension with, of course, as amply demonstrated here, a punitive aspect in the Breach Reports which are to be taken seriously by the courts and often result, as here, in the deprivation of liberty. ACT Corrective Services is, also, I am aware, stretched for resources.

66. On the other hand, CADAS comes from a therapeutic model located, as it is, in ACT Health and this is a different perspective. Nevertheless, it is expected that ACT Corrective Services will provide to offenders support and direction for their reform and rehabilitation, while CADAS should also bring a professional distance and assessment to the conduct and attitudes of offenders without in any sense being captive to their subjective wishes or perceptions. I do not suggest it does the latter; indeed, to the contrary, I found it to be very professional in this regard. My perspective about ACT Corrective Services is hampered by an ignorance of the work that it may well do but which is not necessarily reflected in the reports that it provides to the courts.

67. Thus, the picture I gained of Mr Eyles from the initial Pre-Sentence Report and the Updated Pre-Sentence Report and the CADAS Reports was as follows.

68. It is important initially to confirm that Mr Eyles comes from a quite dysfunctional family. That does not prevent a person from overcoming such disadvantage; that the brother of Mr Eyles has done so, shows it can be done.

69. That, however, does not mean that those who do not overcome that childhood disadvantage have somehow failed or should be punished or censured for that. The High Court has made it clear in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 592-3; [37], 594-5; [43]-[44], that this is not so and that such disadvantage is not only relevant to mitigate severe punishment but also does not diminish over time.

70. Both of the parents of Mr Eyles were drug addicts and he was subjected to frequent relocation, changing schools, and home invasions. Despite this, he performed reasonably well at school and completed Year 10. He then decided to enter the Army but a family crisis intervened and he did not pursue that option. He gained a number of short term jobs in labouring and completed Workplace Health and Safety as well as general construction courses.

71. He also experienced significant trauma, being drugged and seriously assaulted when he was 19, a trauma that led to him having plates inserted in his head for the head injuries he sustained. This led to him remaining out of the workforce.

72. Mr Eyles presented to CADAS as "disorganised, depressed and vulnerable" and this has characterised his progress. It is also unsurprising, in the light of that history, that he had more recently also experienced bullying and harassment because of the nature of the original offence he had committed.

73. He started using alcohol and cannabis when he was 15, though alcohol has not been a problem for him. His use of amphetamines started when he was 20, but only experimentally, and he last used it when he was 22.

74. His drugs of choice are cannabis, which he seems to have continued to use, and heroin which he started using when he was 25, leading up to use of about half a gram daily, and, until recently, he seemed to have ceased using it, his last use prior to recently being in May 2016.

75. He has had a number of drug rehabilitation interventions. He was prescribed methadone for about six months in 2015 but unfortunately ceased using it because it was an entry requirement for the Odyssey House Program. He has had five referrals to the ACT Health and Alcohol Drug Service Withdrawal Services between December 2011 and September 2013. He has also had a variety of pharmacotherapies, including methadone, as mentioned, and buprenorphine.

76. He has also regularly attended meetings of Narcotics Anonymous and more recently has engaged with the Canberra Alliance for Harm Minimisation (CAHMA). A policy, advocacy and support worker from CAHMA, who had been assisting him, gave evidence before me. For a time he was seeing Mr Eyles at least weekly and was addressing life skills and support. He, in conjunction with CADAS, was involved with efforts to arrange a residential drug rehabilitation program for Mr Eyles.

77. Mr Eyles has also been attending the SMART Recovery Program, a drug rehabilitation program I described in R v McGrail [2016] ACTSC 142 at [78]- [80]. While his attendance has not been constant, he is described as committing to the Program when he does attend.

78. There was one significant challenge identified by the CADAS Reports; namely that Mr Eyles had great difficulty in attending appointments that had been made for him, probably a difficulty caused by his depression, disorganisation, and chaotic lifestyle.

79. During his wait for a residential rehabilitation program, however, he had attended on a counsellor arranged by CADAS staff and had a psychiatric assessment which led to him being prescribed medication for his depression. It was also identified that he needed trauma focused therapy.

80. Mr Eyles engaged with CADAS staff well. He, however, also missed appointments with that agency from time-to-time and he would normally attend while in crisis, however, CADAS staff noted a distinct improvement in his mood and self-care over time.

81. The long wait for a residential rehabilitation program, however, clearly took its toll and an incident on 22 June 2016, when he was assaulted and robbed, led to some deterioration in his mood and behaviour which caused further unreliable attendance.

82. His commitment was rewarded, however, with a place at the Arcadia House Day Program from 12 September 2016, as I have reported above (at [23]). The arrangement also resulted in improved mood and reduction of suicidal ideation.

83. He commenced that Program and was later admitted to and commenced the Arcadia House Transition Program, a part residential, part day Program, and appeared to be progressing well, as he had at Odyssey House, until he used his father's medication and was discharged.

84. He has been assessed as suitable to re-enter the Transition Program and he has an offer of admission on 4 January 2017.

85. Mr Eyles has suffered from mental health challenges. He has been diagnosed with depression and anxiety and, as has been pointed out above, was placed on medication, and, through the good officers of CADAS staff, he had a psychiatric examination.

86. His mood has been affected deeply by the terminal illness of his father which has caused emotional stress and personal pain.

87. He has also experienced suicidal ideation from time-to-time.

88. His mental impairment, as well as the bullying and harassment he has suffered, has also led to a withdrawal from his social networks which compounds the situation.

89. This aspect of his situation requires monitoring with ongoing support and medical treatment.

90. Mr Eyles has, as noted, a criminal history. It is much shorter than that of many drug addicts who appear before these courts. Subject to interpreting the New South Wales history correctly, and this is very difficult, he has 12 offences on his record, to which are now added the two for which I must sentence him. Apart from two drink driving offences, none relate to drugs nor are they dishonesty offences and, apart from one offence of damaging property, none are offences punishable by imprisonment for more than two years. He has not previously committed any sex offences. He has not been sentenced to a period of imprisonment before.

91. As noted in R v Eyles (No 2) at [35], a victim must not be ignored. It is important, as s 7 of the Crimes (Sentencing) Act makes plain, to recognise the harm done to the victim.

92. I set out a summary of the Victim Impact Statement in R v Eyles at [44]-[47]. I do not have to repeat that, but take it into account. I have re-read the Victim Impact Statement. It was, as noted, made by the victim's mother. It is a matter of regret that neither I nor Mr Eyles have, therefore, heard the voice of the victim. Nevertheless, as required, I conscientiously considered it fairly and assessed its contents with care: R v Evans [2011] QCA 135; 2 Qd R 571 at 580; [31].

93. There were some glimmers of hope for the victim in the Victim Impact Statement and it is, of course, the Court's hope that the victim will have continued with the progress to recovery that it implied.

94. The suggested need for further information about the victim made in R v Eyles (No 2) at [36], was clearly too opaque to result in any further information being placed before me and, indeed, apart from the Crown Prosecutor's reminder that "there is a victim here", I was not even told whether the prosecutor had had any contact from or with the victim or at all.

95. Given the passage of now more than 31 months since the incident, further information would have been helpful.

96. On the other hand, I accept that further contact can be distressing and bring back memories, otherwise satisfactorily dulled by time and support. I am also aware that the courts are expected to accept that such offences can have ongoing and serious effects. See Clarkson v The Queen (2011) 32 VR 361 at 371; [33].

97. Naturally, even a severe sentence cannot resolve the harm done to a victim, but may promote some solace and at least by the statutory obligation of recognising the harm. Many victims, also, appreciate that reform of an offender is more likely to prevent further offending which is, in this court's experience, an important concern of many victims.

98. I do not need to repeat the matters that I discussed in R v Eyles when considering the sentence to be imposed for the offence of engaging in sexual intercourse with a young person.

99. There is no occasion to reconsider the sentence afresh, but only by being informed of the matters that require me to consider the options I now have.

100. That is to say, I must consider, under s 110 of the Crimes (Sentence Administration) Act, whether to impose the sentence that was suspended or to re-sentence Mr Eyles.

101. In that sense I take into account everything I said in R v Eyles at [54]-[59].

102. I note that Mr Eyles has now spent time in custody. He was in custody when he appeared in breach of bail proceedings on 27 April 2016 (1 day), 9 August 2016 (1 day) and 17 October 2016 (1 day). I remanded him in custody for two days on 15 November 2016. He was again remanded in custody on 5 December 2016, which today makes 34 days in custody. These periods of imprisonment should be taken into account and I heard no contrary submission from the Crown.

103. This Court also regularly recognises that time spent in specialist residential drug rehabilitation and other confinement, can be wholly or partly taken into account. See R v Elphick (No 2) at [86]-[90].

104. Including the time in Odyssey House (91 days in total) and Arcadia House (Day Program apparently approximately 20 days, Transition Program 16 days) there are 107 days of full-time rehabilitation. I did not have complete details of the participation in the Day Program and that, of course, is deserving of lesser consideration.

105. The courts have variously allowed from one-half to the full amount of time spent in full time residential rehabilitation, especially with programs that are more rigorous such as, for example, the Odyssey House Program, to count as relevant to sentence.

106. I must also take into account that Mr Eyles has, not without some significant prompting, completed the 100 hours of community service work which must also be taken into account as it was part of the sentence when the term of imprisonment was suspended.

107. Mr Eyles had completed a little less than 11 months of his Good Behaviour Order before he committed the further offence and, until he was remanded in custody on 5 December 2016, 27 months of the Good Behaviour Order. See R v Curtis (No 2) [2016] ACTSC 34 and R v Kekalainen (No 2) [2015] ACTSC 369 at [48].

108. In my view, the matters to which I have referred show that it is reasonable to accept that Mr Eyles should be given credit for between four and six months of the 12 months sentence for the prior custody and other matters.

109. I also note that the nature of the offence he committed means that Mr Eyles had served and would serve his term of imprisonment in strict detention. This may prevent his access to rehabilitation opportunities. This is relevant, though the precise application is, perhaps, controversial. See R v Liddy (No 2) [2002] SASC 306; 135 A Crim R 468.

110. Mr Eyles has maintained his commitment to residential rehabilitation, as I have already noted. I am reasonably confident that had he been able to access treatment at an early stage, he is likely to have progressed well. Indeed, he seems to have managed the delay remarkably well given his drug addiction, cessation of pharmacotherapy for a long time, which he did later resume, the stressors of his family situation, the personal harassment, and uncertainty of his future.

111. This commitment is important. The Pre-Sentence Report noted that Mr Eyles had consumed illicit substances and alcohol at the time of the offence. It also noted that the risk factors which led to an assessment of his risk of re-offending as being medium to high. The first was his criminal history, though that is, I suspect, a relatively minor contributor, especially given the lack of serious offending and the fact that his most recent offending before this offending was committed on 27 June 2010. That gap is significant. See Rees v The Queen [2012] ACTCA 6 at [2].

112. The next factor, lack of stable employment and accommodation is one over which he has limited control. The minimal pro-social support is partially due to his mental health, his drug use, and lack of employment. The final factor is his illicit substance abuse, which he can address, and in the course of so doing, as the engagement with CADAS shows, address some of the others.

113. It seems to me that the period of custody that he has now experienced is likely to be a significant motivator for Mr Eyles to conduct himself diligently in the pursuit of drug rehabilitation.

114. It also seems to me that sending him to prison for six to eight months is unlikely to add to that commitment or provide as much punishment as the period in the Transition Program of eight weeks of residential rehabilitation and four weeks that a Day Program would. This would bring the period of custodial deprivation up to between six to 10 months.

115. While in custody, Mr Eyles would have the chance of rehabilitation in the Solaris Therapeutic Community (as to which, see R v JM [2014] ACTSC 380 at [26]) but there is no guarantee that he would be eligible, as noted above (at [20]), nor that he would, in fact, be able to access it in the short time left of his imprisonment.

116. Further, upon release, there would be no ongoing supervision; even if I were to make a non parole period, he would be on parole and so under supervision for a few months at most.

117. In my view, the just and appropriate sentence is to re-sentence Mr Eyles to the term of imprisonment that I had already imposed but to suspend it and to require Mr Eyles to undertake the Arcadia House Transition Program from tomorrow, 4 January 2017.

118. The offence of failing, as a registrable child sex offender, to report the change in personal details is, in principle, a serious offence for it is, as identified in Weston v Arley [2012] ACTSC 138 at [84]- [85], significant for the important mechanism needed to ensure the integrity of the Sex Offenders Registration Scheme and because of the importance of the information gathered by such reporting.

119. It would be a serious version of the offence were the offending to have been contumacious as explained in Byrne v Mingay [2014] ACTSC 126; 242 A Crim R 9 at 17-18; [74]- [77]. It was as, indeed, the Crown Prosecutor agreed, not a contumacious example of such offending. Indeed, it was a less serious version of the offence.

120. It is further very relevant that Mr Eyles was, in fact, assisting police to deal with quite another matter when he apparently unconsciously disclosed the offence.

121. Mr Eyles has no prior convictions for the offence: see Byrne v Mingay at 18; [78].

122. In all the circumstances, the Crown Prosecutor very properly accepted, it does not require severe punishment.

1. I confirm the conviction for engaging in sexual intercourse with a young person on 5 May 2014.

2. I cancel the Good Behaviour Order made on 26 August 2015.

3. I sentence you to 12 months imprisonment to commence on 18 August 2016, to take into account pre-sentence custody and the other matters to which I have referred in my remarks on sentence.

4. I suspend the sentence on 4 January 2017 for 18 months.

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 18 months with the following conditions:

(a) a probation condition that you be subject to 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;

(b) that you accept monitoring by the Court Alcohol and Drug Assessment Service (CADAS) for 12 months from 4 January 2017;

(c) that you admit yourself by 12 noon on 4 January 2017 to the Arcadia House Transition Program and obey all reasonable directions of the person in charge of the Program;

(d) that you complete the Arcadia House Transition Program and not leave it without the prior express consent of the person in charge of the Program until you have completed it. If you are discharged from the Program for any reason, or you leave the Program without the express consent of the person in charge, you present yourself in person to the Registrar of the Supreme Court of the ACT within two working days for a review of this Good Behaviour Order;

(e) That you consent to the person in charge of Arcadia House providing to the person supervising you and any member of the staff of CADAS any information about your progress and participation in the Transition Program that either of them may reasonably require.

6. I convict you of being a registrable sex offender and failing to report your personal details to the chief police officer as required.

7. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 for a period of nine months from 4 December 2017. That is to be cumulative as to two months on the earlier good behaviour order.

124. Mr Eyles, you have been here often enough before this. You probably know what I have just talked about. Basically, this is a further, but probably the last opportunity, for you to do what you keep telling me that you want to do, which is to undertake drug rehabilitation on a residential basis to give you an opportunity to get your life back in order and to address those issues that have prevented you being a useful member of the community. I will give you that opportunity but it is almost the last. When I say "almost" it really is the last unless there are some exceptional circumstances.

125. If it does not suit you, you will have to come back and we will have to deal with that. If, however, you do, as you did at Odyssey House and for the first part of the Transition Program, perform well and progress and engage then you ought to be able to do it on your ear. That will hopefully give you the skills and the support and the ability to get back into the community and to perform well as an ordinary social member of the community.

126. There is a Good Behaviour Order connected to that and that is for 18 months. In fact it is for 20 months because I have added two months at the end for the other offence of breaching the Sex Offender's Program. You know what that means but there are conditions. The first is that you are under supervision, a probation order.

127. Now, you have had some problems with Corrective Services in the past. You have really got to try and get yourself organised and attend to that obligation. It is important and that is both a protection for the community and a support for you, but I have moderated that by requiring CADAS to monitor you for that 12 month period also.

128. You have got to attend Arcadia House by 12:00pm tomorrow, and I understand that some arrangements may have been made for that and I will speak to Mr Jorgensen in a moment about that. You have to stay there for the whole of that Program. That is the eight weeks of residential, followed by four weeks of the day program, where you will go back to some kind of residence. That will probably not be with your mother but that is a matter for you. You will have to assess the risk. At some stage you have to grow up and be responsible for yourself as you cannot have the courts continuing to take that responsibility. You have to also consent to Arcadia House giving any information that either Corrective Services or CADAS may require about how you are progressing so that they can fulfil their own reporting obligations.

129. If there are any problems come back to Court. You do that normally and you get credit for that. That is not to say that, as you have seen, if it is appropriate I may have to send you back to gaol but if you do your best then you should be able to use this as an opportunity to put your criminal history behind you.

I certify that the preceding one hundred and twenty-nine [129] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

SCC 220 OF 2014; SCC 191 OF 2016

First offences, driving with more than the prescribed alcohol in his blood and unlicensed driver

5 May 2014 Committed offence of engaging in sexual intercourse with a person between 10 and 16 years

18 September 2014 Committed for trial before the Supreme Court

30 October 2014 Indictment filed containing two counts: sexual intercourse with a young person and sexual intercourse without consent

17 November 2014 First listed for trial to commence on 7 April 2015

R v Eyles

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (240 paragraphs)

R v Eyles (No 3) [2017] ACTSC 1 (3 January 2017)

Parties

Legislation Cited (3)

Cases Cited (1)