Crimes (Sentence Administration) Act 2005 (ACT), s 110

Guy v Anderson [2013] ACTSC 5

R v Lawson (Unreported, ACT Supreme Court, Refshauge J, 14 March 2013)

R v Lawson (Unreported, ACT Supreme Court, Refshauge J, 19 September 2013)

1. In July 2010, Joseph Lawson assaulted a person living at Ainslie Village when he burst into their room because he believed that the victim had assaulted a woman. Mr Lawson was, at the time, in a disturbed mental state. He was charged with burglary with intent to assault. Mr Lawson was evicted from Ainslie Village and when staff cleared out his room, they discovered explosives there which led him to him being charged with possession of a prohibited dangerous substance. For reasons set out in my remarks on sentence, R v Lawson (Unreported, ACT Supreme Court, Refshauge J, 14 March 2013), I made a deferred sentence order.

2. Those reasons also set out the facts of the offences (at pp 2-4) and the subjective circumstances of Mr Lawson (at pp 4-7). At the end of the period for which I deferred sentence, I took into account the progress Mr Lawson had made and sentenced him to a total period of eighteen months' imprisonment to be served initially by three months as periodic detention and then suspended. I made a good behaviour order for two years from 19 September 2013, see R v Lawson (Unreported, ACT Supreme Court, Refshauge J, 19 September 2013), where I set out details of the progress he had made and his then personal circumstances.

3. The Good Behaviour Order contained a probation condition which required him to be subject to supervision and to obey the reasonable directions of the person delegated to supervise him. On 25 June 2014, an information was sworn that Mr Lawson had not complied with the probation condition in that, on three occasions in May 2014, he failed to report as directed and, though he reported on 28 May 2014, but without an appointment and so could not be supervised as required, he then failed to report on 3 June 2014 as he had been directed on 28 May 2014. This was said to be a breach of the probation condition. I agree. Mr Lawson admitted the breach.

4. I am now required to respond appropriately. Section 110 of the Crimes (Sentence Administration) Act 2005 (ACT) requires a court, which finds that an offender has breached a good behaviour order made when a sentence of imprisonment is suspended, to cancel the good behaviour order and then either impose the period of imprisonment that had been suspended or re-sentence the offender. Unlike some other jurisdictions, there is neither a requirement to impose the period of imprisonment that was suspended, nor is it a statutory default position.

5. Nevertheless, as many cases have pointed out, generally a breach of such an order will result in the offender serving the sentence that was suspended, and indeed, the integrity of the penalty of conditional release of this kind requires that to be so. I have collected a number of the decisions in Guy v Anderson [2013] ACTSC 5 at [87].

6. Nevertheless, as I also said in that decision, the court, especially in this jurisdiction, where there is no mandatory requirement or default position of imposing the sentence of imprisonment that was suspended, must consider the nature and seriousness of the breach. It also seems to me that it is important to take into account the conduct of the offender under the good behaviour order and any progress made towards rehabilitation and reform.

7. In this case also it is very relevant that the breach does not involve any behaviour that is antisocial, and in particular, Mr Lawson is not alleged to have committed any further criminal offences. Indeed, while supervision is an important matter for controlling Mr Lawson and his behaviour to prevent further offending, a court must be careful that compliance requirements such as this do not set offenders up to fail so that the undesirable consequences of net widening occurs where no breach of the law or unacceptable behaviour has occurred.

8. Many offenders are disorganised, impecunious or suffer from mental disorders, all of which can contribute to a failure to comply with obligations of a formal nature, such as requirements to comply with a probation condition or to keep appointments. None of this excuses a breach of good behaviour order. Breaches, even of the kind with which I am now dealing, are serious, and not to be encouraged, minimised or ignored. Nevertheless, individualised justice requires a precise nature and circumstances of the breach to be assessed so that an appropriate response can be made.

9. In considering how to proceed, I received a report from St Vincent de Paul Society which administers Samaritan Services which Mr Lawson had accessed. It had provided significant support to Mr Lawson during the period of his deferred sentence order. The author reported:

Once Joe's legal matters were resolved, his engagement with Samaritan Services decreased significantly (from March 2014) despite the efforts of the team to maintain contact by phone, home visits and written means. His engagement has been via occasional drop-ins to the on-site community room, but failing to engage in case management or link in with his original goals of re-engaging with mental health or drug and alcohol counselling. When setting these goals, Joe had advised he did not feel mentally healthy and would like the support of ACT Mental Health, including a medication review.

It is my opinion that Joe demonstrates good insight, capacity and positive intentions to have a meaningful and fulfilled life; and that his intentions seemed to be derailed by drug and alcohol use. Joe is easily distracted and appears to have a busy social life which he puts ahead of reaching his goals.

Joe is well liked and very much cared for within Samaritan Services; however, with little engagement, it is very difficult to advise in any great detail of his wellbeing at this present stage.

10. Although that Report was broadly supportive, there were worrying aspects of it, in that obviously Mr Lawson requires some support and assistance and he was no longer getting that from Samaritan Services. In the circumstances, it seemed to me that I should have more information from Corrective Services, and I adjourned the matter so that a bail progress report could be provided. I have that Bail Progress Report which now states:

Since 1 July 2014, Mr Lawson has positively re-engaged with this service and had attended appointments on 1 and 21 July 2014 and 19 August 2014, as directed. Information was also obtained for Mr Lawson by telephone conversations on 13 August 2014 and 4 September 2014. Mr Lawson did not appear to be intoxicated on these occasions, although he had consumed some alcohol.

Mr Lawson stated he had not attended drug and alcohol interventions at this time and continues to consume alcohol daily.

On 1 September 2014, Mr Lawson re-engaged with ACT Mental Health. Following that review and further assessment with ACT Mental Health, a medical appointment was organised for 1 October 2014.

11. It seems to me that Mr Lawson is getting back on track. There are some matters of concern, such as his continued consumption of alcohol, although if he has it under control and is not getting intoxicated, then that is not a particularly worrying concern. He is now, it would appear, able to receive the kind of support through ACT Corrective Services which is likely to keep him pro-social.

12. I do not need to set out the facts of the original offences, though I take them into account, nor his personal circumstances, though I take them also into account. They are set out in my earlier reasons, to which I referred earlier, and which relevantly are to be incorporated in these reasons. In my view, the need for some control requires that I extend the period of supervision by, when resentencing Mr Lawson, making a fresh good behaviour order which extends beyond that of the present period. Other than that, I do not consider any further action is required. Neither counsel submitted to the contrary.

1. I am satisfied that you breached the Good Behaviour Order that I made on 19 September 2013.

2. I cancel the Good Behaviour Order I made on 19 September 2013.

3. I note the convictions for the offences of burglary, possessing a dangerous prohibited substance entered on 14 March 2013. For the offence of burglary, I sentence you to fifteen months' imprisonment to commence on 11 June 2014, to take into account the period of periodic detention that you've already served. Had you not pleaded guilty, I would have sentenced you to eighteen months' imprisonment.

4. For the offence of possessing a prohibited dangerous substance, I sentence you to six months' imprisonment to commence on 11 June 2015. That is to be cumulative as to three months on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to eight months' imprisonment.

5. I suspend those sentences today and 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 eighteen months from today with a probation condition that you be subject to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise you for eighteen months or such lesser period as the person delegated to supervise considers appropriate.

14. [His Honour then spoke directly to Mr Lawson]

15. Mr Lawson, I am not going to lecture you. You understand the situation. You do well when you have some support. Corrective Services can provide some of that support. Mental Health can, also. I think myself that you should look at perhaps some drug and alcohol counselling. You can manage that, but that is a matter between you and your probation officer. If you comply, if you do not commit any further offences, broadly, I do not want to see you again. And I do not want to see you again, so do not fail to comply. Do not commit any further offences.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Refshauge.