1. It be declared that Mr Ngerengere has not breached the Good Behaviour Order made on 28 September 2016.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Good Behaviour Order - Good Behaviour Order conditions - suspension from rehabilitation - inflexibility of Good Behaviour Order conditions - no breach of Good Behaviour Order

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

Crimes (Sentencing) Act 2005 (ACT), s 12

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

R v BO (No 3) [2016] ACTSC 175

R v McGrail [2016] ACTSC 142

Legal Aid ACT (Defendant)

1. The progress of a person heavily addicted to drugs is unlikely to go smoothly and while some persons using illicit drugs manage to complete rehabilitation without major incidents, others meet obstacles that cause difficulties along the way.

2. The challenge for the courts is to support genuine attempts to address drug addiction but not to be so flexible that the law is neither enforced nor respected.

3. On 28 September 2016, I re-sentenced Michael John Ngerengere to 18 months imprisonment for an offence of aggravated burglary and to 12 months imprisonment for an offence of theft committed during the burglary. I directed that both sentences be served concurrently. The sentences were directed to commence on 7 May 2016 to take account of pre-sentence custody.

4. I suspended the sentence on that day and, as required under s 12 of the Crimes (Sentencing) Act 2005 (ACT), made a Good Behaviour Order for 18 months with conditions requiring Mr Ngerengere to enter and remain in the Bridge Program conducted by Canberra Recovery Services. See R v Ngerengere (No 3) [2016] ACTSC 299.

5. In R v Ngerengere (No 3) at [69], that Mr Ngerengere, who has been admitted to the Bridge Program on 24 August 2016, had become entitled to weekend leave.

6. That privilege was a blessing and a curse. It is important that persons undergoing drug rehabilitation learn to meet the challenges and temptations of living again in the community, which can only be done in the community, but until they have the resources and strategies to do so, that can lead back to drug use and the end of rehabilitation.

7. That was the fate of Mr Ngerengere. On weekend leave he consumed cannabis and was, on 6 October 2016, suspended from the Bridge Program. Subject to certain criteria, he was able to be re-admitted to the Program on 13 October 2016.

8. The Good Behaviour Order I made contained the following conditions:

1. the offender is to accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate for a period of 18 months or such lessor period as considered appropriate the supervising officer;
2. the offender is to continue in the Bridge Program at Canberra Recovery Services until the offender has completed it;
3. the offender is to present himself in person to the Registrar of the Supreme Court within two working days for a review of this Good Behaviour Order if for any reason the offender leaves or is discharged from the program before the offender has completed it.

9. Mr Ngerengere did contact ACT Corrective Services on 7 October 2016. He was argumentative and somewhat aggressive. He was directed to attend this Court but suggested he could do so on Monday as he had two working days in which to do so.

10. In the end, through the good offices of the Registrar of this Court, ACT Corrective Services, Legal Aid ACT, and the Director of Public Prosecutions, he appeared before me later that day.

11. While appreciative of the efforts of ACT Corrective Services in referring Mr Ngerengere back to the Court, I did not consider that he had yet breached the Good Behaviour Order. The Order required him to report if "discharged" from the Program. It is reasonably clear to me that he had been suspended or "stood down" and was to be, subject to urinalysis, re-admitted on 13 October 2016.

12. As a result, I formed the view that I did not have to proceed under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT).

13. This shows up again the inflexibility of the present provisions which do not permit an option other than cancellation of such a Good Behaviour Order if there is a breach. In R v BO (No 3) [2016] ACTSC 175 at [38], I raised the need for consideration of some flexibility in a court being able to take no action because the breach is trivial or excusable for good reason. I re-iterate the need for such flexibility and urge consideration to such reform.

14. In any event, that did not arise directly in this case but it seemed to me that it was desirable that I ascertain what arrangements were in place for Mr Ngerengere during the period of suspension.

15. Mr Ngerengere gave evidence before me of the circumstances under which he smoked cannabis and the plans he had until Thursday 13 October 2016.

16. He explained that his son had been using methylamphetamine (Ice) and that had made him very stressed on his weekend leave. He turned to cannabis to relieve that stress.

17. I emphasised to him that he was at risk of serving the suspended term of imprisonment being activated if he did not complete the Bridge Program and that this meant that he had to abstain from consuming cannabis.

18. He explained that he had a "safety plan". He was to live at his apartment and attend Narcotics Anonymous as often as he could. He had been directed by ACT Corrective Services under condition (d) referred to above (at [8]) to attend for urinalysis on Monday. He agreed to do so. He also planned to attend a SMART Recovery Program on Tuesday. I have described that Program in R v McGrail [2016] ACTSC 142 at [78]- [80].

19. He said his son was not living at the apartment at the moment but was living with the son's mother. It seemed to me that this was desirable.

20. Mr Ngerengere confirmed that he would do his best to stop consuming cannabis or mixing with anti-social associates.

21. The Crown prosecutor helpfully suggested that he seek a sponsor from Narcotics Anonymous or at least someone from that group with whom he could make contact when he was tempted to use cannabis or otherwise in need of help. Mr Ngerengere said that he was not yet entitled to a sponsor as he was just at Stage 1 but he would try.

22. I recorded that Mr Ngerengere's behaviour towards the officers of ACT Corrective Services was unacceptable. They were still required to supervise him and were entitled to give him reasonable directions which he was required to obey. That is available to manage Mr Ngerengere until he is re-admitted to the Bridge Program.

23. There was, then, nothing further required of me. If Mr Ngerengere is not re-admitted to the Bridge Program that is likely to constitute a discharge from the Program which would breach his Good Behaviour Order.

24. I appreciated the assistance provided by officers of ACT Corrective Services, Legal Aid ACT, and the Director of Public Prosecutions in dealing with this matter on an urgent basis.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.