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[2016] ACTSC 299
plaintiff. The Court confirmed the convictions, imposed concurrent prison sentences of 18 months for aggravated burglary and 12 months for theft commencing 7 May 2016, suspended the sentence for 12 months...
The judge considered imprisonment necessary for the burglary and theft but was persuaded by the defendant's rehabilitation efforts and recent progress in residential treatment to suspend the sentence. An Intensive Correction Order was considered but not made. The suspended sentence came with supervision, a requirement to stay in the rehabilitation program, and an order to repay the value of the stolen tools over four years.
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2,202 words · generated 28/09/2026
In R v Ngerengere (No 3) [2016] ACTSC 299, Refshauge ACJ sentenced Michael Ngerengere for aggravated burglary and theft after he had pleaded guilty to both offences. The judgment says the offences were committed on 18 July 2014 ([3]). Its introductory decision summary describes the convictions as entered on 7 August 2015, and the sentencing reasons later confirm those convictions ([11], [75]).
16 cited instruments linked from this judgment.
The offences carried substantial maximum penalties. Aggravated burglary under s 312 of the Criminal Code 2002 (ACT) carried a maximum of 20 years’ imprisonment, while theft under s 308 carried a maximum of 10 years ([4]-[5]). The judge treated those maximum penalties as a yardstick for relative seriousness, referring to Oliver ([6]).
The case had an extended sentencing history. After pleading guilty, Mr Ngerengere was convicted and given a Deferred Sentence Order in August 2015, with a requirement to enter residential rehabilitation at Karralika and return for sentence later ([10]-[13]). His rehabilitation did not proceed smoothly. Bail was revoked in March 2016, and he returned to custody ([14]). In June 2016, the Court proceeded to sentence, having indicated that imprisonment was required, but then considered whether an Intensive Correction Order could be appropriate ([15]-[16], [29]-[31]).
An assessment report considered him unsuitable for an Intensive Correction Order. It cited his criminal record and past non-compliance, a major psychiatric disorder and a major problem with controlled drugs ([33]). The judge questioned aspects of that conclusion. Mr Ngerengere had attended most supervision appointments, complied with medication, engaged in treatment and avoided methylamphetamine and heroin, although cannabis use remained a concern ([34]-[39], [49]-[53], [65]-[67]).
By the time of the decision, he had entered the Canberra Recovery Services Bridge Program. The reports described his progress positively, including completion of induction, work duties and clean breath and urine samples ([68]-[70]). The judge regarded the program as central to his rehabilitation ([71]).
The final orders imposed 18 months’ imprisonment for aggravated burglary and 12 months for theft, to be served wholly concurrently. The imprisonment was suspended for 12 months. An 18-month Good Behaviour Order required supervision and continued participation in the Bridge Program. If he left or was discharged from that program before completion, he had to present to the Supreme Court Registrar within two working days for review of the order. The Court also ordered $2,213 reparation to Mr Cain, payable within four years ([75]).
The judge started from two linked propositions. The criminal law’s overriding purpose was community protection, and rehabilitation could be an effective means of achieving that protection where offending was associated with drug addiction ([1]). But rehabilitation did not displace the other statutory purposes of sentencing: the judge emphasised the need for a proper balance under s 7 of the Crimes (Sentencing) Act 2005 (ACT) ([2]).
The judge had already concluded that imprisonment was the appropriate sentencing option and that an 18-month term was warranted ([29]-[30]). The remaining question was whether it could be served through an Intensive Correction Order. The Court explained that the order was a sentence of imprisonment served in the community, and described it as both punitive and rehabilitative ([17]-[22]). It referred to a three-stage approach in Douar: determine whether imprisonment is required, fix the imprisonment term without regard to its mode of service, then consider whether a non-full-time mode would meet the seriousness and sentencing purposes ([23]).
Sections 78 and 79 governed the Intensive Correction Order assessment. The Court set out the statutory assessment matters, including drug dependence, psychiatric or psychological condition, medical condition, criminal record and response to previous orders, personal circumstances, compliance with assessment, and household consent ([25]-[26]). It observed that the ACT table did not explain how those matters were to indicate unsuitability, unlike the New South Wales regulation it discussed ([27]-[28]).
The assessment report troubled the judge because several identified concerns appeared to be the very problems rehabilitation was meant to address. The judge considered that a serious criminal record might be common among people facing imprisonment and should not, by itself, make the order unavailable ([49]). The psychiatric condition appeared controlled through medication, and the defendant was engaging in support services ([50]-[51]). His drug problem also had to be viewed alongside participation in treatment and commitment to residential rehabilitation ([52]-[57]).
However, the judge stated that s 78(7) meant the adverse assessment should not be overridden without good reason ([58]). The judgment does not say that the assessment was formally set aside or that Mr Ngerengere was found suitable. Instead, it says the judge decided not to make an Intensive Correction Order ([63]). That distinction matters: the judge’s concerns about the assessment were part of the reasoning, but the final sentencing outcome was a suspended prison sentence, not an Intensive Correction Order.
The decisive sentencing consideration was the defendant’s recent and sustained rehabilitation effort. The Court considered his custody, earlier attempts at rehabilitation, participation in CADAS and recovery programs, medication compliance, and entry into the Bridge Program ([64]-[71]). The program addressed substance use alongside emotional, practical and social functioning, according to the description reproduced in the judgment ([70]). The judge concluded that imprisonment should be imposed but suspended on condition that Mr Ngerengere continued the program ([72]).
Reparation was addressed separately. Mr Ngerengere had limited employment history and received a Disability Support Pension, but the judge considered that successful rehabilitation could reduce drug-related spending and eventually leave some capacity for repayments ([73]). The Court allowed four years so payments could be made at a reasonable rate ([74]-[75]).
The judgment describes the legal position as it stood in 2016. It does not provide a complete account of the law before the introduction of Intensive Correction Orders, nor does it explain later legislative changes. Any account of the law before or after this decision must therefore be confined to what the judgment itself states.
As described by the Court, the ACT Intensive Correction Order replaced periodic detention and was a sentence of imprisonment served in the community ([17]). The judge referred to the legislative history discussed in R v Samani and noted that similar orders operated in other jurisdictions ([17]-[19]). The Court used decisions from New South Wales and Victoria to discuss the punitive and rehabilitative character of those community-based imprisonment orders ([18]-[22]).
The statutory process described in this judgment required the Court to consider a pre-sentence report and then an assessment by the Director-General about the offender’s suitability, addressing the matters in s 79 ([25]-[26]). The judge considered the lack of clarity in the ACT suitability table a practical problem because many listed matters, particularly addiction and mental health needs, might also identify areas for intervention ([27]-[28], [48]-[57]).
A separate statutory difficulty concerned pre-sentence custody. The Court said s 29(1)(b) prevented an Intensive Correction Order for a sentence that included full-time custody, and noted another ACT decision’s view that this might include a sentence backdated for remand time ([59]). The judge considered that this could exclude people who might otherwise be suitable and said reform was called for ([60]-[61]). He also recognised the countervailing concern: ignoring custody merely to make an Intensive Correction Order could produce an excessive total period of imprisonment ([61]). The judge did not decide that statutory issue in this case ([63]).
The sentence actually imposed illustrates the available alternative used here: imprisonment suspended on conditions, including supervision and a rehabilitative program. It does not establish that an Intensive Correction Order must be made whenever treatment needs are present. The Court’s final approach depended on the statutory constraints it identified and its assessment of this defendant’s circumstances.
At [1], the judge said the overriding purpose of criminal law was community protection, and that reform and rehabilitation could be the surest guarantee of that protection. In plain English, the judge viewed treatment not simply as leniency, but as potentially relevant to reducing future offending and protecting the public.
At [2], the judge qualified that view by requiring rehabilitation to be balanced against the other purposes of sentencing under s 7. This means that a rehabilitative approach did not automatically determine the sentence.
At [58], the judge said, “I must not override that assessment without good reason.” In context, this referred to the adverse Intensive Correction Order assessment and s 78(7). It explains why the judge’s criticism of the report did not itself result in an order being made.
At [71], the judge described the residential program as “key” to reform. That view was based on the program’s role and the defendant’s perseverance in trying to access it.
At [72], the judge explained the sentence: imprisonment was appropriate, but it would be suspended on condition that the defendant continued in the program. In ordinary terms, the Court imposed a prison sentence but did not require the defendant to serve it immediately, subject to compliance with the order.
At [75], the formal orders set out the consequences and conditions: concurrent imprisonment terms, a 12-month suspension period, an 18-month period of Good Behaviour Obligations, supervision, continued program participation, and the reparation amount and deadline. Those formal terms should be distinguished from the judge’s explanatory remarks to the defendant at [76]-[86].
This decision is most relevant as an example involving sentencing after guilty pleas where the offender’s offending was discussed in the context of drug dependence and rehabilitation. It addresses an offender who had already spent time in custody, had a complex history of treatment and compliance, and was showing recent progress in residential rehabilitation ([14]-[16], [33]-[39], [64]-[71]).
It may be useful when examining the relationship between an Intensive Correction Order assessment and the sentencing judge’s own evaluation of the evidence. The case records that the judge questioned whether psychiatric illness and drug dependence should count against suitability where they were being managed or addressed through treatment ([49]-[57]). But the result also demonstrates that criticism of an assessment does not necessarily lead to an Intensive Correction Order, particularly where the judge considers the statutory limits and chooses a different sentencing form ([58]-[63]).
The decision is also relevant to cases where rehabilitation progress informs whether a prison sentence is suspended and whether program participation is made a condition. Here, the Court focused on the particular evidence of engagement and recent progress at Canberra Recovery Services, rather than treating an intention to rehabilitate as sufficient by itself ([68]-[72]).
It should not be read as a general rule that a person with drug dependence, mental illness, or a poor record will qualify for a community-based order. The judgment presents a fact-specific sentencing decision, and its statutory discussion is tied to the ACT legislation as it stood at the time.
The supplied judgment does not contain decisions from later courts applying, distinguishing or otherwise treating Ngerengere (No 3). It therefore does not support a statement about the case’s later precedential history.
The judgment itself refers to earlier cases and explains how they informed the reasoning. It uses Douar as a guide to the sequence for considering a custodial sentence and alternative modes of service ([23]); it refers to Samani, Pogson, Boughen, Whelan and Karazisis in discussing the character and purposes of Intensive Correction Orders ([17]-[22]); and it relies on Steen when considering reparation ([74]). Those are relationships with authorities considered in this judgment, not evidence of later treatment of this judgment.
For research purposes, the judgment’s own account can be separated into statutory observations, its application of the sentencing considerations to Mr Ngerengere, and broader comments about reform. Later treatment would require sources beyond the judgment supplied here.
The judgment leaves open how the ACT statutory suitability table should be applied when the listed matters, such as drug dependence or psychiatric condition, are also the focus of rehabilitation. The judge said the table did not specify how the listed factors should indicate unsuitability, and noted that relevant considerations might be inferred but might not be ([27]-[28]).
It also leaves open the practical effect of s 29(1)(b) where an offender’s sentence is backdated to account for pre-sentence custody. The judge described the issue as problematic and said reform was called for, but expressly did not decide it because an Intensive Correction Order was not made in this case ([59]-[63]).
The reasons do not set out the complete statutory text or resolve every question about how an adverse assessment can be overcome. The judge said there must be good reason to override such an assessment, but did not need to determine whether the concerns he identified would have met that test in a case where an Intensive Correction Order was ultimately sought and made ([58], [63]).
Finally, the judgment does not determine how the particular Good Behaviour Order conditions would operate in every possible case of non-compliance. The judge explained to Mr Ngerengere that a breach could result in his return to court and that the consequences would depend on what had gone wrong ([78]-[84]). The formal order and the individual circumstances would matter.
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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
1. Michael Ngerengere be convicted of aggravated burglary on 7 August 2015.
2. Michael Ngerengere be sentenced to 18 months imprisonment to commence on 7 May 2016.
3. Michael Ngerengere be convicted of theft on 7 August 2015.
4. Michael Ngerengere be sentenced to 12 months imprisonment to commence on 7 May 2016.
5. The sentence be suspended for a period of 12 months from 28 September 2016.
6. Michael Ngerengere 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 accept the supervision of the Director-General or her delegate for 18 months or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him;
(i) he continue in the Bridge Program at Canberra Recovery Services until he has completed it; and
(ii) if for any reason he leave or is discharged from the Bridge Program before he has completed it, he present himself in person to the Registrar of the Supreme Court within two working days for a review of this Good Behaviour Order.
7. Michael Ngerengere pay to the Registrar of the Supreme Court of the ACT within four years the sum of $2213, to be paid out to Mr Peter Cain, at the address provided by the ACT Director of Public Prosecutions.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - aggravated burglary - theft - guilty plea - assessment for an Intensive Correction Order - suitability for an Intensive Correction Order - reasons for not proceeding with an Intensive Correction Order - sentencing procedures - suspended sentence - sentence back-dated to take into account
pre-sentence custody and residential drug rehabilitation - wholly concurrent sentence - reparation - Good Behaviour Order
Crimes (Sentencing Procedure) Regulations 2013 (NSW), reg 14
Court Procedures Rules 2006 (ACT), r 4733
Boulton v The Queen [2014] VSCA 342
Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634
Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154
Hawkins v Hawkins [2009] ACTSC 148; (2009) 3 ACTLR 210
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Oliver (1982) 7 A Crim R 174
R v Boughen [2012] NSWCCA 17; (2012) 215 A Crim R 476
R v EL [2016] ACTSC 241
R v Elphick (No 2) [2015] ACTSC 23
R v Ingram [2016] ACTSC 199
R v JM [2014] ACTSC 380
R v Kristiansen [2015] ACTSC 159
R v Ngerengere [2015] ACTSC 224
R v Ngerengere (No 2) [2016] ACTSC 155
R v Pikula [2015] ACTSC 380
R v Pogson [2012] NSWCCA 225; (2012) 82 NSWLR 60
R v Ryan [2006] NSWCCA 394; (2006) 167 A Crim R 241
R v Samani [2016] ACTCA 48
R v Steen [2015] ACTSC 259
R v West [2014] NSWCCA 250
Whelan v The Queen [2012] NSWCCA 147
Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT)
Legal Aid ACT (Defendant)
1. Many of the dishonesty offences committed in this community are committed by persons who are suffering from the pernicious addiction to illicit drugs. While the Court must make it clear that such offences are unacceptable in our community, the overriding purpose of the criminal law, as noted in Davey [1980] FCA 134; (1980) 2 A Crim R 254 at 261, is the protection of the community. It is also clear that reform and rehabilitation is the surest guarantee of that protection, as pointed out by French CJ in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 537; [32].
2. Where the cause of criminal behaviour can be addressed, and to do so is likely to achieve this purpose, there must also be recognition that this requires a proper balance with the other purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT).
3. In this context, I have now to sentence Michael Ngerengere, who has pleaded guilty to offences of aggravated burglary and theft committed on 18 July 2014.
4. Aggravated burglary is an offence contrary to s 312 of the Criminal Code 2002 (ACT) which provides for a maximum penalty of 2000 penalty units (that is, at the time, a fine of $280 000) and imprisonment for 20 years.
5. Theft is an offence prohibited by s 308 of the Criminal Code which attracts a maximum penalty of 1000 penalty units (that is, at the time, a fine of $140 000) and imprisonment for 10 years.
6. These statutory penalties are a yardstick by which the courts are expected to assess the relative seriousness of the offences as pointed out in Oliver (1982) 7 A Crim R 174 at 176. They are, by that yardstick, serious offences.
7. This matter has a rather convoluted history and it is appropriate to set it out briefly so that the context in which the sentence is imposed by me is clear.
8. Mr Ngerengere was arrested on 30 July 2014 and the next day released on bail by the police. He appeared in the Magistrates Court on 11 August 2014 representing himself. He subsequently obtained representation from Legal Aid ACT and entered a plea of not guilty to both charges on 9 September 2014. He remained on bail when he was committed for trial on 30 March 2015.
9. The matters were first mentioned in this Court on 9 April 2015, when the usual orders for pre-trial preparation were made. See r 4733 of the Court Procedures Rules 2006 (ACT).
10. On 28 May 2015, however, he indicated that he would plead guilty to the two charges. At that stage, no date had been set for the trial. He was arraigned on 24 June 2015 and entered pleas of guilty to both counts. A date for sentencing of 30 July 2015 was set and a Pre-Sentence Report and a report from the Court Alcohol and Drugs Assessment Service (CADAS) were ordered.
11. On 30 July 2015, the sentencing proceeded and, on 7 August 2015, I convicted Mr Ngerengere of the two offences and made a Deferred Sentence Order, requiring him to admit himself to the residential drug rehabilitation program conducted by the Karralika Therapeutic Community and appear for sentence on 9 March 2016. See R v Ngerengere [2015] ACTSC 224.
12. As required by s 118 of the Crimes (Sentencing) Act, I explained the penalty that Mr Ngerengere might receive were he to comply with the Deferred Sentence Order and what sentence he might receive if he did not. I said at [86]:
I indicate that if you do not comply with this Order and the bail conditions, I consider that you should be sentenced to a term of immediate imprisonment for a period of approximately eighteen months with a non-parole period. I indicate that if you comply with this order and the bail conditions, I consider that you should be sentenced to imprisonment for a period of approximately eighteen months which would be wholly or partially suspended with a Good Behaviour Order which may include a community service condition.
13. Mr Ngerengere did enter the Karralika Program, which I have described in R v Kristiansen [2015] ACTSC 159 at [12]- [14].
14. His rehabilitation, however, did not proceed smoothly. I have set out the course of the proceedings thereafter in R v Ngerengere (No 2) [2016] ACTSC 155 at [10]- [17]. I do not need to repeat what I said there and I incorporate that into these reasons. He was returned to custody when his bail was revoked on 23 March 2016.
15. Because of the uncertainty of no bed being available at Canberra Recovery Services (CRS) and languishing in the Alexander Maconochie Centre, with, as a remand prisoner, less access to programs, and although he had enrolled in the Solaris Therapeutic Community, Mr Ngerengere requested that I proceed with sentence. I did so on 10 June 2016. I indicated that a gaol sentence was, in the circumstances, required but I was requested to seek an assessment for an Intensive Correction Order as a result.
16. I did so on 15 June 2016: R v Ngerengere (No 2) at [64]-[76].
17. The Intensive Correction Order sentencing option replaced the sentencing option of periodic detention: R v Ngerengere (No 2) at [65]. I have referred to the legislative history in R v Samani [2016] ACTCA 48 at [30]- [32] and I do not need to repeat it. It is a sentence of imprisonment, but served in the community: R v West [2014] NSWCCA 250 at [4].
18. Thus, it is punitive while still incorporating elements of rehabilitation: R v Ngerengere (No 2) at [66]. In a Press Release issued on 2 March 2016, the Attorney-General, Simon Corbell MLA, described the aims of the order as being "to combine supervision and strict conditions while providing an opportunity for an offender to change their behaviour". As a similar order was described in Boulton v The Queen [2014] VSCA 342; 46 VR 308 at 335; [115], it will "promote simultaneously, the best interests of the community and the best interests of the offender and those who are dependent on him/her."
19. The Explanatory Statement to the Bill which inserted the provisions introducing the Intensive Correction Order in the Crimes (Sentencing) Act expressly noted that the order was "used in other jurisdictions". The similarity is re-inforced by the fact that in New South Wales, the Intensive Correction Order was also introduced in that State when it abolished periodic detention: R v Pogson [2012] NSWCCA 225; (2012) 82 NSWLR 60 at 68; [43]. That order was introduced by s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
20. The "principal focus" of that order in NSW was described by Simpson J, with whom Hislop and Latham JJ agreed, in R v Boughen [2012] NSWCCA 17; (2012) 215 A Crim R 476 at 497-8; [109], as "rehabilitation". Even though rejecting the decision in R v Boughen that an Intensive Correction Order is not appropriate where there is no need for an element of rehabilitation in a sentence, a specially convened Court of five judges in R v Pogson at 76; [66], accepted that the option was "designed to meet the particular need for rehabilitation in a particular offender", though, in part, reaching that conclusion from that State's specific statutory regime.
21. The NSW Court of Criminal Appeal has also made plain that an Intensive Correction Order is "a substantial punishment" though with a significant degree of leniency: Whelan v The Queen [2012] NSWCCA 147 at [120]. This recognition that such an order is "a significantly punitive disposition" is also accepted in Victoria: Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634 at 669; [184]; Boulton v The Queen at 330-2; [89]-[98].
22. In R v Samani at [43]-[47], I accepted that the Intensive Correction Order was a sentence of imprisonment to be served in the community and that it was significantly punitive, with a deterrent aspect.
23. Given the similarity between the Intensive Correction Order to the equivalent sentence in NSW, the approach to making such orders as set out in Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154, may be appropriate as a guide, namely:
• the Court must first be satisfied that, having considered all other relevant alternatives, no penalty other than a sentence of imprisonment is appropriate: at 165; [70];
• then the Court should determine the period of imprisonment without regard to the manner in which it will be served: at 165-6; [71];
• finally, the Court must consider whether the service of the sentence other than by way of full-time imprisonment, such as by a suspended sentence or an Intensive Correction Order, would result in a sentence that reflects the objective seriousness of the offence and fulfils the statutory purposes of punishment: at 166; [72].
24. See also R v Ryan [2006] NSWCCA 394; (2006) 167 A Crim R 241 at 242-3; [1].
25. Section 78 of the Crimes (Sentencing) Act requires that before a Court can make an Intensive Correction Order, the Court must first consider any Pre-Sentence Report made under Pt 4.2 of that Act and, after that, consider an assessment by the
Director-General about whether an Intensive Correction Order is suitable for the offender. That assessment must address the intensive corrections assessment matters set out in s 79 of that Act. These are set out in the Table to s 79 as follows:
26. Table 79: Assessment of suitability - intensive correction order
degree of dependence on alcohol or a controlled drug
potential unfitness to comply with an intensive correction order
criminal record and response to previous court orders
serious criminal record or substantial noncompliance with previous court orders
potential impracticability of compliance with intensive correction order
participation and degree of compliance with intensive correction assessment
member of offender's household does not consent to living with the offender while the offender is serving intensive correction
someone with parental responsibility or guardianship for a person who is a member of the offender's household does not consent to the person living with the offender while the offender is serving intensive correction
27. Regrettably, there is no indication in the Table as to the effect of the matters set out in it, as to a finding of unsuitability. That is unfortunate, for the matters listed are generally the very matters that need to be addressed if rehabilitation is to be achieved. Thus, the Table is to be contrasted with a very similar list in reg 14 of the Crimes (Sentencing Procedure) Regulations 2013 (NSW), where the matters are expressly linked to the relevant considerations for unsuitability, such as:
(a) any criminal record of the offender, and the likelihood that the offender will re-offend,
(b) any risks associated with managing the offender in the community (taking into account the offender's response to supervision in the community on previous occasions),
...
(h) any dependency of the offender on alcohol or drugs, or other substance abuse, that would affect the offender's ability to comply with the offender's obligations under an intensive correction order,
(i) any physical or mental health conditions of the offender that would affect the offender's ability to comply with the offender's obligations under an intensive correction order.
28. These matters might be inferred, but they might not. Indeed, in this case, as I set out below, it is arguable that they were not.
29. Having heard evidence and submissions, I made it clear in R v Ngerengere (No 2) at [59] that a period of imprisonment was the only option available in this case. I indicated at [70] that the period (including pre-sentence custody) of imprisonment should be 18 months.
30. I was then asked to consider an Intensive Correction Order and I agreed. It did not seem to me that the seriousness of the offences, the circumstances of their commission, his pre-sentence custody, and Mr Ngerengere's personal circumstances, required that only a period of full-time custody was warranted.
31. Thus, I ordered an assessment, as noted above (at [16]). I understand that ACT Corrective Services have indicated that it is preferable if an assessment is conducted while the offender is on bail so that the level of response of the offender in the community can be better judged. I noted that Mr Ngerengere had been on bail before and, with limited risk to the community, I granted him bail. See R v Ngerengere (No 2) at [73]-[75].
32. An assessment was undertaken. I also had an updated report from CADAS.
33. The Intensive Correction Order Assessment Report assessed Mr Ngerengere as unsuitable. The reasons given were that he had:
34. Mr Ngerengere had, however, attended 13 of 15 supervision appointments in the assessment period and had provided a medical certificate for one of the missed appointments. He was said to have been generally punctual and notified the assessor if he was going to be late. This was noted to be "an improvement in his compliance compared to his previous attendance record".
35. He undertook urinalysis but tried to conceal his continued cannabis use by drinking excess fluids, providing a "diluted sample" on four occasions. It was not, however, suggested that he failed to attend for urinalysis when required. I was not told whether such "dilution" could distort the analysis.
36. As a result of the drug testing, he was twice reported for breaching the bail condition that he not consume illicit drugs. On each occasion, cannabis was disclosed on urinalysis. While cannabis is an illegal drug, it is given special treatment in legislation and its use is generally regarded as less serious than that of other drugs more commonly associated with other illegal conduct. Nevertheless, its use is not to be condoned. It was, however, important that he had not relapsed into use of methylamphetamine, which had caused his bail to be revoked in March 2016, and was directly related to his offending.
37. The Assessment Report set out Mr Ngerengere's background, family circumstances, education, employment, financial situation, and companions. I do not need to repeat or summarise what was there set out as it is similar to what I have already described in R v Ngerengere and R v Ngerengere (No 2). I adopt what I said in those decisions.
38. The Assessment Report also addressed his alcohol and other drug use, much of which has again been described earlier. It suggested, however, that he had minimised his alcohol use. It described his drug of choice as cannabis which he had used for over 30 years. He told the author that he ceased using heroin in 2001 and methylamphetamines in 2010, but re-commenced use of the latter in 2014. He said his current offending was the result. Mr Ngerengere was assessed, by a drug assessment tool, as having a substantial level of drug use.
39. Mr Ngerengere had, however, engaged well in the Solaris Therapeutic Community Program and was said to have benefitted from it. I have described that program in R v JM [2014] ACTSC 380 at [26]. He continued, as required, to participate also in the SMART Recovery Program, a program I have described in R v Pikula [2015] ACTSC 380 at [39].
40. The Assessment Report then referred to Mr Ngerengere's mental health issues and the diagnosis of a Schizoaffective Disorder for which he receives fortnightly medication. He is compliant with his medication. For some unexplained reason, it was nevertheless recommended that he "may benefit from a Psychiatric Treatment Order in the community". Such an order, under s 58 of the Mental Health Act 2015 (ACT), can only be made where a person refuses treatment or refuses to consent to treatment and as a result is likely to harm himself or others. None of that seems to apply here. The recommendation was otherwise unexplained.
41. A thorough assessment was made of Accommodation Factors. There seemed no problematic issues. Case Management Factors were also addressed. Mr Ngerengere was assessed as at a high risk of re-offending which required him to address "his substance dependence, mental health and anti-social attitudes and beliefs". It was not clear what more was required other than his clear intention of entering residential rehabilitation, and taking his current mental health medication.
42. It was also said that a curfew would be appropriate to "limit his opportunity to access illicit substances and commit further offences".
43. So far as availability of suitable programs was concerned, the Assessment Report was difficult to understand. A test, the Corrections Victoria Treatment Readiness Questionnaire, was administered and he was assessed as "not treatment ready, in relation to undertaking programs to address his criminogenic risk factors". It was not explained what this meant.
44. Further, despite this implicitly suggesting a basis for him not proceeding to admission for such programs, for example, as it might set him up to fail, the Assessment Report expressed the view that the CRS program "would be a suitable intervention". I find it unclear how it can be said to be suitable if he is not "treatment ready". Indeed, the Assessment Report noted that, before being granted bail, Mr Ngerengere had participated in the Solaris Therapeutic Program and has "been engaging well and benefitting from [it]". The reservation that he was "not treatment ready" was not explained in the Assessment Report in the context of these findings.
45. In any event, Mr Ngerengere has been committed to the CRS Program now for nearly a year and has persevered in his attempts to be admitted.
46. The Assessment Report also reported that he had been assessed for suitability for the ACT Corrective Services Cognitive Self-Change Program. That Program was described as aiming "to change the offender's behaviours and problematic thoughts using cognitive behaviour therapy principles". He was said to be "able to undertake" that Program also.
47. Mr Ngerengere was further assessed as able to continue with the SMART Recovery Program, though, before starting the Cognitive Self-Change Program and the SMART Recovery Program through ACT Corrective Services rather than where he was currently participating, he would have to undertake the ACT Corrective Services "Readiness Program" to enable him "to attain skills to participate in the Program". This was also not further explained.
48. I found the assessment helpful but somewhat problematic. The reasons for finding Mr Ngerengere unsuitable seemed odd in the light of the declared focus of the Program on rehabilitation.
49. As to the first concern, his serious criminal record, it seems to me that this is very likely to be an inevitable situation with someone who is to be sentenced to imprisonment for up to four years. That, of itself should not render an offender unsuitable, else the sentencing option would be of very limited utility. I accept, however, that his past
non-compliance with previous court orders is a matter of concern, though he appeared to be generally much more co-operative during the assessment period with only his problematic cannabis use proving a difficult obstacle. I refer to that below.
50. As to the second matter, his mental health, I found it surprising that this prevented him from being found suitable as this was clearly under control with appropriate medication. Further, he has been accepted into the Everyman Australia Counselling Program.
51. The Forensic Mental Health Report admitted earlier in these proceedings, while confirming the diagnosis of a psychotic illness, but that he was fit to plead, reported that he had been attending regularly to receive his fortnightly medication, and had only "low grade ongoing symptoms". He had "for some time relative stability and fair control of his illness".
52. As to the third matter, his "major problem with controlled drugs", I was unsure why that made Mr Ngerengere unsuitable when he was already participating in a number of drug interventions and committed to residential rehabilitation.
53. It seemed to me that the participation of Mr Ngerengere in these programs was a good indicator of suitability as these were the very kind of interventions that would be likely to be rehabilitative and would presumably be likely to form a part of the Intensive Correction Order program.
54. Indeed, I was reminded of the comment of Penfold J in R v EL [2016] ACTSC 241 at [42]- [43]:
55. Her Honour there did proceed to make an Intensive Correction Order, despite the assessment of EL as unsuitable. That is available under s 78(6) of the Crimes (Sentencing) Act.
56. Indeed, the Assessment Report I had received foreshadowed that possibility. Rather curiously, it suggested that, should I proceed in that manner, the following factors would be targeted:
57. It is not clear to me why the availability and suitability of these matters would not have been the very reasons why Mr Ngerengere would be suitable and benefit from an Intensive Corrections Order.
58. Nevertheless, he was assessed as unsuitable and I must not override that assessment without good reason: s 78(7) of the Crimes (Sentencing) Act.
59. One problem, however, is that under s 29(1)(b) of the Crimes (Sentencing) Act, an Intensive Correction Order cannot be made for a sentence that includes full-time custody. As Penfold J pointed out in R v Ingram [2016] ACTSC 199 at [13], that seems to include a sentence backdated to take account of pre-sentence custody.
60. That is immensely problematic and calls for some reform. It is quite likely that a person suitable for an Intensive Correction Order will have been refused bail and remanded in custody, given the fact that he or she would be likely to be sentenced not merely to imprisonment but a term of up to four years.
61. To exclude those persons from access to an Intensive Correction Order would reduce its reach to even fewer orders than the current number of Orders (especially compared to assessments) that have now been made. It would, of course, be unfair to ignore
pre-sentence custody. To do so simply to be able to make an Intensive Correction Order does not seem justified when the order is a term of imprisonment and may well be served, such that the extra period of imprisonment for a proper sentence but without backdating would arguably be too long. See R v Elphick (No 2) [2015] ACTSC 23 at [86]- [90].
62. Of course, as I pointed out in Hawkins v Hawkins [2009] ACTSC 148; (2009) 3 ACTLR 210 at 224; [65], the Court could simply reduce the sentence by the period of pre-sentence custody, thus, as required, "taking it into account".
63. In my view, however, I do not have to wrestle with this problem in this case. I have determined for the reasons below, not to proceed to make an Intensive Correction Order.
64. I do not need to repeat the considerations to which I had regard when proposing the sentence of imprisonment in R v Ngerengere (No 2). I take them into account, as if they were incorporated into these reasons.
65. I have regard to the Intensive Correction Order Assessment Report. In particular, I accept that Mr Ngerengere has, unlike his previous lack of engagement, attended or provided a proper reason for not attending all but one of 15 supervision appointments. I note that he has been compliant with his medication for his mental impairment. I note that he has continued to consume cannabis but has not apparently consumed methylamphetamine or heroin.
66. I also have had regard to the two most recent CADAS Reports. The first states that Mr Ngerengere has engaged well with CADAS. I accept that, while he still has been using small amounts of cannabis, he has been abstinent from methylamphetamines. He is said to be "working very hard" to prevent relapse into further drug use.
67. He is also reported to be participating, not without some absences, in the SMART Recovery Program and has been accepted into the Everyman Australia Counselling Program for his significant trauma and abuse history. He has, as a small but significant sign of reform, made improvements in his diet through savings from not needing to purchase methylamphetamines.
68. Finally, I note that Mr Ngerengere's perseverance was rewarded when he entered the CRS Program on 24 August 2016. This Program "draws on the principles and practice of the Alcoholics Anonymous, Narcotics Anonymous and Gamblers Anonymous and involves individual, group and work therapy".
69. The second of those CADAS Reports confirms that Mr Ngerengere entered the CRS Program and that, as at 27 September 2016, staff had "spoken very positively of Mr Ngerengere's progress in the Program. The Report continued:
It was reported by CRS that Michael has completed his induction and has been moved to Level one in the CRS Program. He has been allocated to a work crew and is sorting clothes in the Salvation Army shop. It was further reported that Michael is displaying a very good work ethic.
CRS has advised that Michael is now entitled to weekend day leave. They have said that Michael is required to provide a breath and urine sample on his return and that he has provided clean samples.
70. Advice from Mr Ngerengere's care worker described the Bridge Program conducted by CRS as follows:
Clients present with a wide range of problems, of which their drug, alcohol and gambling abuse is both a symbol and a part. The Program attempts to address not only these abuse problems, but also the related problem of living and dealing with emotions and feelings. In this context, clients are given the opportunity to develop a variety of skills for living, and dealing constructively with the difficulties that ordinary living gives people.
The Program also offers opportunity for participants to engage in pre-employment training and education. In the later stages of the Program, participants are encouraged to develop a network of social support and where appropriate, to seek gainful employment. All participants are provided with one on one case management sessions and daily group work. They participate in work duties at the Centre and attend 12-step meetings regularly.
71. That Residential Program seems to me to be key to Mr Ngerengere's reform. His perseverance in his efforts to access it should be recognised.
72. In my view, with the prior efforts at rehabilitation and the periods already spent in custody, an appropriate sentence is a sentence of imprisonment but suspended on condition that he continues at this Program.
73. I was also asked to make a reparation order in favour of the individual whose tools Mr Ngerengere stole in the burglary. Mr Ngerengere has a limited employment history and is in receipt of a Disability Support Pension. He will, of course, be spending no money on drugs if his rehabilitation is successful and will have some funds then available over and above necessary living expenses.
74. I have regard to the principles relating to such orders set out in R v Steen [2015] ACTSC 259 at [51]- [52]. In applying them, I consider that I should make a reparation order but with a sufficient time to allow Mr Ngerengere the ability to meet repayments at a reasonable rate.
1. I confirm the convictions for aggravated burglary and theft entered on 7 August 2015.
2. For the burglary, I sentence you to 18 months imprisonment to commence on 7 May 2016 to take into account pre-sentence custody and rehabilitation. Had you not pleaded guilty, I would have sentenced you to two years imprisonment.
3. For the theft, I sentence you to 12 months imprisonment to commence on 7 May 2016, that is to be wholly concurrent on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to one year and four months imprisonment.
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 accept the supervision of the Director-General or her delegate for 18 months or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising you;
(i) you continue in the Bridge Program at Canberra Recovery Services until you have completed it;
(ii) if for any reason you leave or are discharged from the Bridge Program before you have completed it, 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.
6. That you pay to the Registrar of the Supreme Court of the ACT within four years the sum of $2213, to be paid out to Mr Peter Cain at the address provided by the ACT Director of Public Prosecutions.
[His Honour then spoke directly to Mr Ngerengere]
76. Mr Ngerengere, that is the formal order I have made and I am obliged to explain that to you now. What I have said is that aggravated burglary is such a serious offence that ordinarily you would go to gaol for 18 months. That would be the period that you would be locked up for subject to parole and so on.
77. For theft, one year imprisonment would be appropriate, but that would be concurrent and served at the same time as the sentence for aggravated burglary, so that the whole sentence would be 18 months. But I have had regard to the period that you have already spent in custody, the rehabilitation you have already undertaken at Karralika, and the fact that you are now at CRS, and although it is a short period of time, you appear to be doing very well. Therefore I have suspended that sentence; that is, you do not have to go back to prison at all unless you breach the order that I have made.
78. That Order has three elements to it. The first is that you do not commit any further offences punishable by imprisonment. That means no more drugs. That means no more burglaries, no more thefts, no more assaults, no more offences for which you could go to gaol, so your rehabilitation becomes really important. If you can learn the skills that will help you stay off the drugs and keep out of the way of people who encourage you to do bad things in the community then nothing will happen, and that is the end of it. But if you commit any offence punishable by imprisonment, and that can include using drugs in certain circumstances, then you can be brought back to the Court and you can be dealt with, and that includes sending you back to gaol.
79. The second thing is that you remain under supervision with probation. That will probably be minimal because of your residential rehabilitation at CRS, but you are still under supervision to ensure that your rehabilitation is going well.
80. There are two elements to that. One element is a degree of control, to regulate that you are addressing the things that you need to address, and if things get out of hand, that it can be nipped in the bud as early as possible. But secondly, so that there is someone who is independent that you can turn to, has knowledge of the services and support that might be available to you. So there is no issue going to your parole officer and saying, "Look, I am really in difficulty. I have been led astray by my friends" or "I am desperate to get back on drugs" or "I have no money". They can assist you and point to resources in the community, people who might be able to help you with those problems. That is the first thing. However, if they give you directions, then you have to obey them. If you breach your Order they will bring you back to Court and, again, if you come back to Court, you could be sentenced again.
81. The third aspect is the CRS program and that, to my mind, is critical for you. If you are successful, you will be taught the skills to prevent you relapsing into drug use. I am really happy and delighted to read that you have been tested on urinalysis and it came back clean. I know that avoiding cannabis was really difficult for you and you have managed to overcome that problem thus far. If you can manage to remain abstinent from cannabis and, of course, methylamphetamine and heroin, but particularly cannabis, then you should be able to be strong enough to go back into the community when you have ended that Program.
82. Now, I note that you are eligible for weekend leave. That is a dangerous time for you. That is when you are able to get into mischief, able to use drugs, able to knock about with your criminal mates again. If you can show that you are strong enough not to do that and return to CRS with a clean urinalysis, then that is a very important marker that you are on the way to rehabilitation, and that will be very pleasing to them. But I can also tell you, it would equally be very pleasing to me.
83. You are not out of the woods yet, Mr Ngerengere. It is still going to be hard work for you to get through the 10 month program and come out the other end with the strength to be able to put your drug use and criminal behaviour behind you. But if things go wrong, the most important thing - well, the most important thing is not to let things go wrong - but if they do go wrong, the most important thing is to come back to Court. To run away, to put your head in the sand and to try to disappear, you will still be found. You will be brought back before the Court and then it is very difficult for any leniency to be given to you. But as I have said, if things do go wrong, come back to Court and we will try and see what can be done.
84. I do not say that you will not go back to gaol. That depends on what went wrong, how it went wrong, and what the consequences have been. But if you do not come back to Court then it is very difficult not to say, "Well, he has to go back to gaol." But there may be other alternatives, such as Karralika again. There were fair reasons why you could not complete Karralika and instead you went to CRS. You are there now and that is working well for you, but there are always other possibilities.
85. I have also said that Mr Cain, whose tools you stole and used to fund the means to obtain drugs, should be compensated, but that is to be done over a period of four years. That is about $50 a month. You probably cannot pay that for the immediate time and then you will need to pay a bit more than $50 a month in the future, but you can make an arrangement to that end. Mr Davies will explain how you can do that and what you can do to try to get that paid off. It is $2213 in four years. That is a long time to have that hanging over your head and, if you are able to get some employment, like labouring or whatever, then you may be able to pay it off earlier.
86. Mr Ngerengere, it has been a long road between us. You have had to spend a lot of time in prison. I am really delighted that we are able to allow you to return into the community in rehabilitation, and you are showing some genuine commitment and strength to be able to do that. The Court supports you in doing that and I wish you very good luck. But you will need more than good luck, you will need hard work. I personally wish you good luck and I hope that the criminal courts will not see you again.
I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Ngerengere
(2010) 31 VR 634
(2009) 3 ACTLR 210
(2011) 243 CLR 506
(2012) 82 NSWLR 60
The Court confirmed the convictions, imposed concurrent prison sentences of 18 months for aggravated burglary and 12 months for theft commencing 7 May 2016, suspended the sentence for 12 months subject to an 18-month Good Behaviour Order with supervision and Bridge Program conditions, and ordered $2,213 reparation within four years.