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R v Pelecky [2020] ACTSC 246 | Case summary | Zoe

ACTACTSC

R v Pelecky [2020] ACTSC 246

[2020] ACTSC 246

Supreme Court of the ACT|2020-08-21|Before: Refshauge AJ

View on the ACT Courts

At a glance

Source facts

Court

Supreme Court of the ACT

Decision date

2020-08-21

Before

Refshauge AJ

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Judgment and Punishment – burglary – theft – obtaining
property
by deception – driving a motor vehicle dishonestly without the

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment and Punishment – burglary – theft – obtainingpropertyby deception – driving a motor vehicle dishonestly without theowner’s consent – aggravated dangerous driving –failing tostop for police – escaping from arrest – damaging Commonwealthproperty – 10 transfer charges –pleas of guilty –consideration of whether a community corrections order is a sentencing order– referral for suitabilityassessment for Drug and Alcohol TreatmentOrder

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Pelecky

Citation: [2020] ACTSC 246

Hearing Date: 21 August 2020

Decision Date: 21 August 2020

Reasons Date: 28 September 2020

Before: Refshauge AJ

Decision: 1. Mr Pelecky be referred for an assessment by the Forensic Mental Health section of ACT Health to determine his suitability for a drug and alcohol treatment order per s 46J of the Crimes (Sentencing) Act 2005, and that the Director- General for ACT Health provide a copy of the assessment to the court by 4pm on Friday 18 September 2020. 2. Mr Pelecky be referred for an assessment by the Alcohol and Drug Services of ACT Health to determine his suitability for a drug and alcohol treatment order per s 46J of the Crimes (Sentencing) Act 2005, and that the Director- General for ACT Health provide a copy of the assessment to the court by 4pm on Friday 18 September 2020. 3. Mr Pelecky be referred for an assessment by ACT Corrective services to determine his suitability for a drug and alcohol treatment order per s 46J of the Crimes (Sentencing) Act 2005, and that the Director-General for ACT Health provide a copy of the assessment to the court 4pm on Friday 18 September 2020.

On his plea of guilty, Patrik Pelecky was, on 13 August 2020, committed by the ACT Magistrates Court to this Court for sentence on 17 charges, namely 1 count of burglary, 1 count of theft, 2 counts of obtaining property by deception, 5 counts of driving a motor vehicle dishonestly without the owner’s consent, 3 counts of aggravated dangerous driving, 2 counts of failing to stop for police, 1 count of escaping from arrest, and 2 counts of damaging Commonwealth property. A further 10 charges were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).
The intention of Mr Pelecky in proceeding as he did was to seek an order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), namely a drug and alcohol treatment order (a treatment order).
The criteria for eligibility and suitability for the making of a treatment order in respect of an offender are set out in ss 12A, 80S, and 80T of the Sentencing Act. Relevantly for these reasons is the requirement under s 12A(1)(c) of that Act, that “the offender is not subject to a sentencing order for another offence”.
Mr Pelecky, however, appeared in the Queanbeyan Local Court on 6 December 2019 to answer 10 charges. He was fined for 5 charges and released on a Conditional Release Order on one. That order expired on 5 August 2020; he is not, therefore currently subject to that order. The Learned Magistrate made Community Correction Orders on the remaining charges. Those orders expired on various dates, namely one each on 5 August 2020, 5 September 2020, 5 November 2020 and 5 February 2021. Thus, he is currently subject to three Community Corrections Orders, though one will expire before he is sentenced for the current ACT offences, which are to be dealt with on 28 September 2020.
The question is, therefore, whether a Community Corrections Order is a sentencing order which would prevent a treatment order being made against Mr Pelecky.
I have had comprehensive and thoughtful submissions from Ms K Reardon, who appeared for the Crown. They were adopted by Mr J Sabarwhal, who appeared for Mr Pelecky. These submissions have been very helpful and I have relied significantly on them.

The Community Corrections Order (the CCO) is a sentence available to New South Wales’ courts under the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) and was introduced as a sentencing option into New South Wales on 24 September 2018 by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW).
Under Pt 2 Div 3 of the Sentencing Procedure Act, it is a “non-custodial alternative” sentence. Such alternative sentences include conditional release orders, dismissal of charges, conditional discharges, convictions with no other penalty, and deferral of sentencing for rehabilitation, as well as the CCO. In this, the CCO, and those other alternative sentences, are contrasted with custodial sentences, which include not only immediate full-time imprisonment, but also sentences which do not require immediate full-time imprisonment, such as compulsory Drug Treatment Orders and Intensive Corrections Orders. Fines are subject to separate provisions.
The CCO replaced previous sentencing options, the Good Behaviour Bonds and Community Service Orders, neither of which required an offender to serve any immediate full-time imprisonment. The Explanatory Note for the Amending Bill, which became the Act, described the CCOs as “intended to be less strict than those for intensive corrections orders but stricter than those for conditional release orders”: Explanatory Note for Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW, 2017) at p 3.
While the Attorney-General, the Hon Mark Speakman MLA, in introducing the Bill to the NSW Legislative Assembly on 11 October 2017, did not expressly describe a hierarchy of the sentences in the Sentencing Procedure Act, it is clear from his remarks that the CCO fell between the more serious Intensive Corrections Order (“offenders sentenced to up to two years imprisonment”) and the less serious new Conditional Release Order (“for the lowest level of offending”): NSW Parliament, Hansard (NSW, 11 October 2017).
Three additional matters about CCOs are relevant to this issue. In the first place, they are imposed without the imposition of a term of imprisonment. Indeed, they can be imposed where no term of imprisonment is available for the offence.
This distinguishes the sentence from the custodial sentencing alternatives, which requires a sentence to a term of imprisonment, even where such a term of imprisonment might not mean a term of imprisonment immediately served by full-time custody, but where it is suspended or served by an Intensive Corrections Order or by a Compulsory Treatment Order. Indeed, s 8 of the Sentencing Procedure Act expressly states that a CCO may be imposed “[i]nstead of imposing a sentence of imprisonment”.
Relevantly, there are, in the second place, conditions that must be imposed with the CCO, such as that the offender not commit any offence during the currency of the order and that the offender must appear before a court when called upon during the currency of the order. Additional possible conditions that might be imposed with the CCO include a curfew condition (not exceeding 12 hours in any period of 24 hours), a community service condition, a rehabilitation or treatment condition, or a supervision condition: s 89(2) of the Sentencing Procedure Act. Importantly, however, custodial-type conditions, such as a home detention condition or an electronic monitoring condition, must not be imposed: s 89(3) of the Sentencing Procedure Act.
Thirdly, the response of a court to a breach of a CCO is specified. It does not mandate a custodial response, which cannot be imposed without a re-sentencing. Set out in s 107C of the Crimes (Administration of Sentences) Act 1999 (NSW), it provides that a court dealing with a breach of a CCO may decide to take no action, to vary, revoke or add to any of the conditions of the order, or to revoke the order itself. If the court revokes the order, then, under s 107D of the same Act, the court may re-sentence the offender for the original offence and this would involve the same approach to sentence as applied to the offender on conviction for the offence.

As the CCO is an order under a law of Australia, I need to determine whether it “corresponds” to any of the orders mentioned in paragraphs (a) to (e) of the definition.
It is clear from its description in the Sentencing Procedure Act, but also from its very nature, that a CCO is not a custodial sentence. It may, nevertheless, be imposed on an offender who has committed an offence punishable by imprisonment, though not limited to such situations, but does not include any power to order custodial detention. A CCO, therefore, clearly does not “correspond” to an order for imprisonment by full-time detention. Similarly, since it does not require the imposition of a sentence of imprisonment, and which logically cannot therefore be suspended, it does not “correspond” to a suspended sentence order.
It seems clear, too, that a CCO does not “correspond” to an Intensive Corrections Order. An Intensive Corrections Order under s 11 of the Sentencing Act, was introduced as a sentencing option in the ACT in 2016 and replaced periodic detention. It was based on academic research which, in particular, included a review of the similar order in New South Wales: Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT) (ACT Parliamentary Counsel, 2015) at p 3. It was described there as sitting “just below a sentence of full-time imprisonment in the sentencing framework”. It is intended as a sentence of “‘last resort’ for offenders before full-time imprisonment”.
Though some of the conditions that may be made for an Intensive Corrections Order are the same as those that may be made for a CCO, there are others which are only appropriate for its more serious status: see ss 73 and 73A of the Sentencing Procedure Act.
It is clear to me that a CCO does not “correspond” to an Intensive Corrections Order.
A Deferred Sentence Order under s 27 of the Sentencing Act is a more complicated order to compare with a CCO. It is, however, clear that, in the strict sense, it is not actually a sentence which finally imposes a penalty on an offender for an offence, for it is expressly to be made before a court sentences the offender: s 27(1)(d) of the Sentencing Act. It is, in many ways, a statutory regulation of the “Griffiths bond”: see Griffiths v R (1977) 137 CLR 293. In fact, this was the genesis of the order. The intention is to give “an offender an opportunity to address his or her criminal behaviour, and anything that has contributed to that behaviour, before the court sentences the offender”: s 27(1)(c) of the Sentencing Act. This is quite different from a CCO, which does not “correspond” to that.
Finally, a Parole Order is an order under ss 126 and 129 of the Crimes (Sentence Administration) Act 2005 (ACT) by which an offender is released from full-time imprisonment, before his or her term of imprisonment has expired, and permitted to reside in the community under specific conditions, compliance with which entitles him or her so to reside, and breach of which may result in his or her return to prison. Although, at a superficial level, a CCO may have a similarity with a Parole Order, where a CCO is made for an offender who has been remanded in custody prior to sentence, this similarity is very superficial and there is no substantive similarity. I am therefore satisfied that a Parole Order does not “correspond” to a CCO.
Accordingly, I am satisfied that the fact that Mr Pelecky is subject to a CCO does not render him ineligible to be subject to a treatment order.

One final issue has arisen. Section 12A (2)(a)(iii) of the Sentencing Act requires a court considering making a treatment order to be satisfied that the offender “will live in the ACT for the term of the sentence”.
I have been informed that a warrant has been issued in New South Wales for Mr Pelecky’s arrest, presumably to face a charge or charges in that State. I do not have any information about the offence or offences with which Mr Pelecky has been charged nor, of course, of the likelihood that, if the warrant were to be executed, that Mr Pelecky’s intention and ability to live in the ACT would be compromised.
I have, however, been informed that no application has been made for the execution of the warrant and for Mr Pelecky’s extradition from the ACT to New South Wales. Such extradition would be effected under Pt 5 of the Service and Execution of Process Act 1992 (Cth) (the Service and Execution of Process Act). A person who is in prison may not be arrested under such a warrant: s 82 (2) of the Service and Execution of Process Act.
I note, further, that in such an extradition the Court would have to hear from the authorities in a jurisdiction where such a person is “under restraint” in a jurisdiction other than that to which extradition is sought: s 84 of the Service and Execution of Process Act. It seems unlikely that the person under restraint would then be extradited. It appears from s 3 of that Act that a person subject to, inter alia, bail or a community based order is a “person under restraint”. I am satisfied that a treatment order is a community based order within the meaning of that provision.
Accordingly, while Mr Pelecky remains in custody, he is unlikely to be subject to extradition and, if he is released on bail in the meantime or a treatment order is made when he is sentenced, then he is unlikely to be extradited. Accordingly, I can be satisfied on the balance of probabilities that, if a treatment order is made against Mr Pelecky, he will live in the ACT for the term of his sentence, and that, as a result, Mr Pelecky is not ineligible to be an offender against whom a treatment order may be made.