R v Ingram [2016] ACTSC 199

[2016] ACTSC 199

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - initial offence of recklessly inflicting grievous bodily harm - good behaviour order made when sentence of imprisonment suspended - offending through contraventions of domestic violence order in breach of good behaviour order - second breach of good behaviour order since original sentencing - unaddressed alcohol abuse relevant to commission of initial offence and breach offences - good behaviour order cancelled - offender re-sentenced - intensive correction order made.

Crimes (Sentencing) Act 2005 (ACT), s 29(1)(b)

Legal Aid ACT (Offender)

1. On 13 May 2015 I re-sentenced Michael Ingram after a breach of a good behaviour order made in conjunction with suspending a sentence of 18 months for an offence of recklessly inflicting grievous bodily harm committed in November 2012. That breach was constituted by Mr Ingram's failure to complete the 320 hours of community service that I ordered him to complete as a condition of his good behaviour order. The failure had occurred in the context of Mr Ingram's ongoing mental health difficulties, his resulting loss of employment, and various other factors complicating his life. By the time I re-sentenced Mr Ingram, he seemed to be making progress dealing with his mental health problems, and I had received a fairly positive bail progress report from Corrections. I re-sentenced Mr Ingram to 18 months imprisonment, again fully suspended subject to an 18-montrh good behaviour order, and reduced his total community service hours to 277, of which he had already performed 147 hours.

2. Mr Ingram has now breached that new good behaviour order, this time by twice breaching a protection order made in September 2015 in favour of a former partner. The breaches took place in early October 2015 - they involved Mr Ingram sending a number of text messages to the former partner over two days. The text messages were not threatening, and recognised that there should be no further contact between Mr Ingram and his former partner, but in one of them Mr Ingram asked her to reduce the term of the protection order so that he did not need to be "looking over [his] shoulder for two years". Mr Ingram has been assessed as almost certainly alcohol-dependent, and seems to have been intoxicated at the time he committed the two breach offences.

3. Before these breaches, there had been no offending since an earlier breach of a protection order about six weeks after the November 2012 incident. I also understand that before these recent offences, Mr Ingram had completed the full 277 hours of community service ordered under the good behaviour order.

4. For the 2015 breaches, Mr Ingram was convicted in the Magistrates Court in January this year and sentenced to concurrent 18-month good behaviour orders with a probation condition providing for up to 12 months Corrections supervision and requiring him to submit to drug and alcohol testing.

5. The breach of the 2015 good behaviour order came before me on 20 May 2016. The following material was received at the hearing:

(a) the statement of facts for the original grievous bodily harm offence;

(b) my sentencing remarks from October 2013;

(c) my sentencing remarks from May 2015;

(d) the statement of facts for the offences committed in breach of the 2015 good behaviour order;

(e) a pre-sentence report dated January 2016 and prepared for the original listing of these breach offences in the Magistrates Court;

(f) a pre-sentence report dated May 2016;

(g) Mr Ingram's criminal history; and

(h) a CADAS report dated May 2016 stating that CADAS had not been able to make contact with Mr Ingram;

6. As well, the defence tendered two letters, one from the mother of Mr Ingram's two children and the other from Mr Ingram himself.

7. The most recent pre-sentence report says that Mr Ingram is currently living with his mother. He has two children who live with their mother, but whom he cares for after school each day and sometimes overnight. The mother of his two children, a woman who holds a responsible job in a Commonwealth Government department, wrote a letter to the Court describing Mr Ingram as a good man and a good father, and noting Mr Ingram's contribution to looking after the children and the significance of his help in allowing her to maintain her employment.

8. When he was briefly in custody in October last year, Mr Ingram tested positive for benzodiazepines, but it seems that alcohol is his main problem as far as substances are concerned.

9. Mr Ingram's mental health problems involve anxiety. He has sought referrals to psychological services, but the pre-sentence report author concluded that "he would benefit from ongoing engagement with support services and completion of recommended intervention programs to address both his mental health and alcohol abuse issues". In the report concerned, Mr Ingram was assessed as not suitable for a community service order due to unresolved alcohol and mental health issues.

10. Mr Ingram's own letter to the Court sought to explain the protection order breaches and the problems that he had been struggling with after he resumed drinking heavily in the context of a new relationship. He also said that his two weeks in the Alexander Maconochie Centre in connection with those breach offences had been "absolutely horrible" and he would do anything to avoid going back there.

11. In May this year I granted Mr Ingram bail and ordered an intensive correction order assessment, because Mr Ingram seemed to me to be a person who had the wish and the capacity to address the factors leading him to offend but who needed substantial, possibly day-to-day, support and supervision for an extended period to ensure that he gave effect to his good intentions.

12. Mr Ingram has now been assessed as suitable for an intensive correction order and, for the reasons just mentioned, I accordingly propose to make one.

13. I note first that since an intensive correction order cannot be made for a sentence that includes any full-time custody (s 29(1)(b) of the Crimes (Sentencing) Act 2005 (ACT)), which seems to include a sentence backdated to take account of time served in pre-sentence custody, I am not in a position to recognise Mr Ingram's two weeks in remand custody in relation to the protection order breaches. However, I consider that making the intensive correction order has the potential to benefit Mr Ingram, as well as the community, far more than the benefit that would accrue to Mr Ingram by giving him credit for two weeks in custody.

15. First, I cancel the good behaviour order I made in May 2015 in conjunction with suspending a sentence of 18 months imprisonment for the 2012 grievous bodily harm offence. I note the conviction recorded on that offence and re-sentence you to 18 months imprisonment, to run from today until 21 January 2018. I order that you serve that sentence by way of intensive correction. The intensive correction order is subject only to the core conditions, but I note that under the intensive correction order, Corrections officers propose to target your alcohol use, your tendency to domestic violence, your employment needs and the management of your mental health.

16. I understand that the people who assessed you for the intensive correction order would have explained to you how it would work and the expectations placed on you under the order, but there are a few things I need to say to you as well about how the order will work.

17. The first thing the intensive correction order means is that if you successfully complete your intensive correction order, then on 21 January 2018, you will have served your sentence and you will finally be free of it.

18. There are a number of core conditions of an intensive correction order, and you will be told about them by Corrections and you will be given paperwork setting them out, but I mention several of the most important ones now, being that during the term of the order:

(a) you must not commit any offence that is punishable by imprisonment - and the only safe way to keep out of trouble on that one is not to commit any offences;

(b) you must tell your Corrections supervisor if you are charged with an offence outside the ACT, and also if you change your contact details at any point;

(c) you must do as you are told by your Corrections supervisor in terms of attending appointments and turning up to counselling and whatever else they require you to do;

(d) you will be asked to submit to drug and alcohol tests, and you will be in breach of your order if those tests show drug or alcohol use (although that does not include prescription medication that you are taking on a doctor's prescription, and I know you do have some of that); and

(e) you are also restricted from leaving the ACT without permission. Now, as far as I can see, that means that you need to get your supervisor's permission, and you may well be able to get an ongoing permission, for instance, if you need to go to Queanbeyan for your work, and certainly you should get permission if you, at any stage, plan on going to Sydney or down the coast or anywhere else like that.

19. So those are the important conditions and, as I say, you should have a proper discussion with your supervisor about all of the conditions.

20. Finally I should tell you what might happen if you do breach your intensive correction order.

21. First, you can be given a warning, but you can't be given more than three warnings in any year.

22. You can be sent to prison for a short period, being three days or seven days depending on whether you admit the breach of the order or not, the idea of that presumably being to remind you how important it is to keep complying with your intensive correction order conditions if you want to stay out of prison.

23. Then the Sentence Administration Board can also suspend your intensive correction order and send you into custody for a limited period, and you may have just heard the discussion about whether that is the three and seven days or whether that's a further suspension power.

24. Alternatively, the Sentence Administration Board can cancel the intensive correction order and if that happens, then you simply serve the rest of your sentence in full-time custody; that is equivalent to, well, in fact it is probably more serious than, getting parole cancelled.

25. Those are the ways that breaches can be dealt with by the Sentence Administration Board.

26. If you breach the order by committing another offence, then you will be brought back to Court, and I will be obliged to cancel your intensive correction order and send you into full-time custody for the rest of your sentence, unless that would not be in the interests of justice. So in that case, the expectation is that if you are brought back to Court, you will go to prison for the rest of your sentence, and I suspect it will be hard to avoid that.

27. So you can see, Mr Ingram, that in a sense you are taking a bit of a gamble with this intensive correction order. It is a real opportunity for you, not only to serve out your sentence in the community and with no more time in custody, but also, and perhaps even more importantly, it is an opportunity to get the help you need to get your life back on track and, with luck, to set you up to keep right out of the criminal justice system after you have finished that.

28. On the other hand, if you don't take all these obligations seriously, if you don't make a real commitment to it, then you stand a good chance of serving at least some of that sentence in custody, and I know you really don't want to do that.

29. So I wish you luck with the intensive correction order, and I really hope you can make the necessary commitment this time and that you find yourself in a much better place at the end of the next 18 months.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.