R v Mico [2010] ACTSC 64

4. that he attend on his General Practitioner within seven days and arrange for treatment for depression and that he notify ACT Corrective Services of the compliance with this condition, on or before 9 July 2010;

5. that he consent to ACT Corrective Services obtaining any information about his physical and mental health and alcohol and drug use from any treating professional that they consider appropriate;

7. that he report to the officer in charge of Woden Police Station each Monday, Wednesday and Friday between the hours of 8 am and 8 pm;

8. that he report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City forthwith upon entering into his bail; and

9. that he report to CADAS, at ACT Alcohol and Drug Program, ACT Health Building, Moore Street, Canberra City by close of business today.

2. The Chief Executive prepare a Pre-Sentence Report under part 4.2 of the Crime (Sentencing) Act 2005 (ACT) limited to Mr Mico's compliance with the bail conditions and details of his medical condition that may be obtained by them.

3. The Court Alcohol and Drug Assessment Services be requested to prepare a report on Mr Mico's drug usage and, in particular, his participation in the ACT Health Alcohol and Drug Program, including the Methadone Maintenance Program.

4. Forensic Services, Mental Health ACT provide a report on Mr Mico's mental health, in particular his depression and Attention Deficit Disorder and his treatment for them.

5. ACT Corrective Services to notify the Honourable Justice Refshauge forthwith of any breach of bail conditions two, three or four, that is, Mr Mico's attendance at Symbion Laverty Pathology (ii), his attendance on Forensic Services, ACT Health on 20 July (iii) and his attendance on his General Practitioner (iv).

1. On 30 June 2009, I accepted a plea of guilty by Paul Jeffrey Mico to a charge of trafficking in a controlled drug, other than cannabis, namely heroin, contrary to s 603(1) of the Criminal Code 2002 (ACT). That is an offence which rendered him to a penalty of 1000 penalty units, (a $100,000 fine) or imprisonment for 10 years, or both.

2. Following acceptance of that plea and after hearing a plea in mitigation, I formed the view that Mr Mico had made some good progress in coming to terms with his extensive history of offending and polysubstance abuse. In my remarks on sentencing, see R v Mico (ACTSC, Refshauge J, SCC No 223 of 2009, 30 June 2009 unreported), I noted that the Pre-Sentence Report suggested that he still had a lack of insight into his offending behaviour and its ramifications. I assessed his prospects of rehabilitation as sufficient to justify a deferred sentence order under s 27 of the Crimes (Sentencing) Act 2005 (ACT). I noted further that Mr Mico was an intelligent and articulate man. I said that he:

knows that this is an important chance for him. If he wants to have an ongoing relationship with his daughter make a useful and satisfying contribution to the community he needs to accept the opportunity I am giving him.

3. I indicated that if he were to comply with the deferred sentence order and the bail conditions I then set,

I would impose a sentence of two years imprisonment, with a portion to be served by periodic detention and the balance suspended with a good behaviour order or possibly a community service order. If he did not comply, then I would be likely to sentence him to the same period of imprisonment with a significant period to be served in full-time custody and the balance to be served by periodic detention or suspended subject to a good behaviour order and a community service order.

4. I directed that he accept intensive supervision and undertake treatment, counselling or programs directed by his supervisor to address his alcohol and drug use, and his mental health.

5. I also imposed, as bail conditions, a requirement that he abstain from the use of illicit drugs and submit to urinalysis when and as required.

6. I directed that a Pre-Sentence Report as to his compliance be provided and a Forensic Mental Health Report be prepared.

7. A Forensic Mental Health Report has not been prepared as he failed to attend a scheduled appointment on 8 June 2010. The next available appointment is on 20 July 2010. Forensic Services of Mental Health ACT reported that they have had difficulty contacting Mr Mico.

8. I have no information as to what, if any, treatment or counselling he has received for his depression and Attention Deficit Disorder.

9. A Pre-Sentence Report has been prepared. It is not at all positive. It reports that Mr Mico has attended on 18 occasions, but has failed to attend, or has rescheduled appointments, on 14 occasions, although that was described by Mr Simon Palamountain, who appeared on behalf of ACT Corrective Services, as being reasonably compliant. Many of the 14 occasions were simple reschedules and not "no shows".

10. He has, however, not complied with directions to attend for urinalysis on all but one occasion, and on that occasion, illicit drugs (without prescription) were detected. He has not produced a prescription for those drugs.

11. There was no reference in the Pre-Sentence Report about any directions made in regard to his mental health or any compliance or non-compliance with them at all. He has, however, continued his involvement with the Methadone Maintenance Program of ACT Health Alcohol and Drug Program where he attends daily to collect his dose of 120 milligrams. I had no report of his progress there, but his attendance has been confirmed by the clinic at The Canberra Hospital.

12. Has also been charged with four counts of Obtaining Financial Advantage by Deception and three counts of attempting to Obtain Financial Advantage by Deception. His first appearance for these offences was on 25 January 2010 in the ACT Magistrates Court. The matter has been listed before that court on 8 July 2010 for hearing.

13. While I am told that he is contesting those charges, the prosecution has formed the view that it has a strong case to present.

14. According to the most recent Pre-Sentence Report and attachments, Mr Mico was directed to attend urinalysis on 12 occasions and did not attend on any of those occasions.

15. While it cannot be assumed that this means he is still using illicit drugs, it is strongly suggestive of that. In any event, it is a direct and flagrant breach of the bail conditions. He has, however, indicated that there is a medical reason why he has not attended in that he is embarrassed by the possibility of attendance. He has, however, not disclosed that to the author of the Pre-Sentence Report and it only came out in evidence today.

16. Mr Mico maintains that he does not use illicit substances, but he has provided no independent evidence of that. He has explained his failure to comply with directions, as I have said above (at [15]), but he has not provided any direct information of this, although I have some evidence from his stepfather, who corroborated the diagnosis of his medical condition.

17. The assessment of the author of the Pre-Sentence Report tendered at his sentencing on 30 June 2009, was that Mr Mico lacked insight into his offending behaviour and the ramifications of this behaviour, and that remains very problematic.

18. This is reinforced when account is taken of his history of non-compliance with court orders, his failure to comply with conditions or explain non-compliance (until now) and to provide independent evidence as required. It is even more problematic if he is, in fact, convicted of the offences with which he has been charged.

19. Although deferred sentence orders were introduced by the Crime (Sentencing) Act 2005 (ACT), the process they now formalise has been available to the Court in other ways, usually known as "Griffiths bonds" after the decision of the High Court in Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293. In that case, Barwick CJ noted (at 306) that such a process:

must be reserved for proper cases, cases in which the guilty person will accept the delay and the determination of the sentence and submit to the compulsion towards reformation which that delay and the terms of a recognizance may involve: and in which there is a real expectation founded upon solid ground and not on mere sentimentality that such reform is likely to occur. It is a course which one would expect to be taken only by those who have had experience in this field and who have heard and evaluated the convicted person.

I am unable to accept the view expressed by the Court of Criminal Appeal in their solicitude for the prisoner that it was unfair to leave him uncertain as to his fate. It is enough to dispose of that suggestion to say that the applicant under the terms of the bond into which he voluntarily entered could have ascertained at any time what his fate would be by terminating the period of remand. Indeed, he could have preferred to be dealt with and know his fate immediately by refusing to enter into a recognizance: but, evidently motivated by a desire to reform which his subsequent conduct appears to have confirmed, he chose to accept the opportunity made available to him by the trial judge.

20. While that is not all entirely true to this case, it is a salutary reminder that courts should not make a deferred sentence order without the consent of the offender because of the delay and obligations it imposes.

21. This becomes important in this case because, after 12 months, I would be entitled to find that Mr Mico has not taken the opportunity I have given him and to sentence him to a significant period of immediate full-time custody. If he is still using drugs or has committed further offences I would be entitled, and probably expected, to do so.

22. Indeed, if the integrity of the process established by the deferred sentence order is to be upheld, then failure to comply should result in the proposed sentence being imposed almost as a matter of course, subject to the proper consideration of intervening events, or it will become an empty and discredited sentencing option.

23. Nevertheless, the purpose of the order, as set out in the legislation, is to allow Mr Mico, "to address his...criminal behaviour and anything that has contributed to the behaviour." If, as he has protested, he is not using illicit drugs and he is either not convicted of the fresh offences, or they were not committed for the purpose of him obtaining drugs, though he cannot presently prove either of those in the way that I prescribed, then he has come some way to achieving that purpose. That should properly be taken into account.

24. Accordingly, it is probably appropriate to give him a small opportunity to produce the evidence that would be necessary to show that he has taken the opportunity offered.

25. I was urged to revoke Mr Mico's bail because of his non-compliance. I have carefully considered that option. He certainly has not been able to do much outside of a custodial institution and the evidence seems to be that he made more progress inside the Alexander Maconochie Centre. He certainly obtained some mental health care, which he seems to have totally failed to access outside the present environment.

26. In all the circumstances, I do not yet think his behaviour is so egregious that I should revoke bail, but further non-compliance will result virtually automatically in that option.

27. Thus, before sentencing Mr Mico it seems to me that in fairness I should have a report from Forensic Services, Mental Health ACT and about his participation in the ACT Health, Alcohol and Drug Program. The former can be available by 27 July 2010, the latter can be facilitated by the Court Alcohol and Drug Assessment Service (CADAS).

28. I also consider that he should have at least two reports of drug testing between now and when I sentence him, the first of which should be done as soon as possible.

29. Accordingly, I will release Mr Mico on bail to appear before me on 2 August 2010 with the following conditions:

(1) that he accept supervision of an officer of ACT Corrective Services delegated by the Chief Executive to supervise him;

(2) that he provide a sample of urine or blood to the Symbion Laverty Pathology by 3 pm 30 June 2010 and on a date to be advised to him by the officer of ACT Corrective Services delegated to supervise him;

(3) that he attend at Forensic Services, ACT Mental Health at 1 pm on 20 July 2010 and confirm his attendance to the officer of ACT Corrective Services delegated to supervise him on or before 22 July 2010;

(4) that he attend on his General Practitioner within seven days and arrange for treatment for depression and that he notify ACT Corrective Services of the compliance with this condition on or before 9 July 2010;

(5) that he consent to ACT Corrective Services obtaining any information about his physical and mental health and alcohol and drug use from any treating professional that they consider appropriate;

(7) that he report to the officer in charge of Woden Police Station each Monday, Wednesday and Friday between the hours of 8 am and 8 pm;

(8) that he report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City forthwith upon entering into his bail; and

(9) that he report to CADAS, at ACT Alcohol and Drug Program, ACT Health Building, Moore Street, Canberra City by close of business today.

30. I direct the Chief Executive to prepare a Pre-Sentence Report under part 4.2 of the Crime (Sentencing) Act 2005 (ACT) limited to his compliance with the bail conditions and details of his medical condition that may be obtained by them.

31. I request CADAS to prepare a report on Mr Mico's drug usage and, in particular, his participation in the ACT Health Alcohol and Drug Program, including the Methadone Maintenance Program.

32. I direct that Forensic Services, Mental Health ACT provide a report on Mr Mico's mental health, in particular his depression and Attention Deficit Disorder and his treatment for them.

33. I direct ACT Corrective Services to notify me forthwith of any breach of bail conditions two, three or four, that is, his attendance at Symbion Laverty Pathology, his attendance on Forensic Services, ACT Mental Health on 20 July and his attendance on his General Practitioner. Upon receipt of such notification I will issue a warrant for Mr Mico's arrest so that he may be brought before me to reconsider how I should proceed.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Prosecution: Director of Public Prosecution (ACT)