R v Portelli [2000] VSCA 248

Court of Appeal (Vic)|2000-12-12|Before: WINNEKE, P., BROOKING and PHILLIPS, JJ.A.

Criminal law - sentencing - breach of intensive correction order - breaches constituted by failure to comply with "work attendance conditions" - judge failing to consider nature of breaches and sentencing on basis of what he had told the appellant he would do if she breached the order - miscarriage of discretion invested by s.26(3A) Sentencing Act 1991.

The breach of the intensive correction order, which the appellant admitted, was constituted not by the commission of any further offence punishable by imprisonment but by a failure to comply with attendance and community work conditions attached to the order. Accordingly, the provisions of s.26(3B) of the Sentencing Act did not apply and the judge, in punishing for the breach, had a discretion available to him under s.26(3A) of the Act. That sub-section reads as follows:

"(3A) If on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a level 10 fine and in addition must - (a) vary the intensive correction order; or (b) confirm the order originally made; or (c) cancel the order (if it is still in force) and, whether or not it is still in force, commit the offender to prison for the portion of the term of imprisonment to which he or she was sentenced that was unexpired at the date of the offence under sub-section (1)."

The judge in this case exercised that discretion by opting for the third alternative, thus cancelling the intensive correction order and sentencing the appellant to prison for 254 days, which he was told (incorrectly, as it now appears) was the unexpired portion of the intensive correction order. She has now served something like 106 days of that term.

The case has a strange history. The appellant is a young woman 31 years of age. She is an unmarried mother of four young children, the youngest of whom are twins aged two. Her life, to say the least, has been an unfortunate one; it has been dysfunctional. Although she has never been to prison before, she has had a number of prior convictions reflecting, so it would seem, an addiction to both drugs and alcohol.

The sentence of 12 months' imprisonment ordered to be served by way of intensive correction was imposed following a plea of guilty to an offence of unlawfully imprisoning a taxi driver. The circumstances of that offence were bizarre. It appears that the appellant held the taxi driver against his will by threatening him with a plastic gun. She was wholly drunk and, as the judge said in his reasons for imposing sentence, her behaviour was "deranged". Eventually she gave the gun to the taxi driver. He offered to transport her to a hospital, which she declined. He then drove her home. She invited him into the home for a cup of coffee, which the taxi driver accepted, before leaving her premises and reporting the matter to the police.

In ordering the sentence to be served by way of an intensive correction order the judge imposed reporting conditions which were part of the core conditions and also directed attendance at the Frankston Community Corrections Centre for 12 hours per week to perform community work. This, too, is a core condition pursuant to s.20 of the Act. He told her that if she breached the order she would go to gaol.

When the appellant came before the judge on the breach application, a number of matters were put before him on her behalf. Firstly, it was suggested that there had been a conflict between the appellant's capacity to report, as the conditions required, and at the same time comply with the requirements imposed by the Department of Human Services in looking after her children. Secondly, his Honour was urged to regard the breaches of conditions as "low level" and, as it were, minor, although unacceptable, breaches of the order. Thirdly, his Honour had before him the evidence of a clinical psychologist, a Mr Milligan, who had been giving assistance to the appellant but who, as it appears, somewhat unfortunately because of other pressures, had not been able to continue his counselling of her at the times of the breaches. He nevertheless expressed the opinion to his Honour in evidence that he considered that there was hope for the appellant.

There is, I think, some ground for thinking that the judge may have been unduly influenced on this hearing by the warnings he had given the appellant when he imposed the sentence of 12 months' imprisonment and ordered that it be served by way of an intensive correction order. In very short sentencing reasons, His Honour said:

"When I last saw you I admitted you to an intensive correction order and told you very clearly what would happen if you breached it. Do you remember that?"

That appears to refer back to what his Honour had told the appellant at the time when imposing sentence in the first place. His Honour said:

"In the end, I am of the view that while this offence richly merits imprisonment I should afford you the opportunity of serving that imprisonment in the community by way of intensive correction order if you are found fit for it. If you do not comply with the terms of it you will be immediately required to serve in gaol the sentence I would impose, which is, in order that you may benefit from an intensive correction order, an extremely low one of 12 months' imprisonment. (my emphasis).

"So if you offend again you are likely to go to gaol."

In my view, his Honour's discretion in punishing the applicant for breach of this order has miscarried. He has not given, so far as I can see, any or any sufficient weight to the low-level nature of the breaches which were alleged to have constituted the breach of the intensive correction order; nor does he seem to me to have given any real attention to options other than the immediate service of imprisonment. That seems to me to be the inference which arises from the passages to which I have referred in his Honour's reasons, and his failure to mention the nature of the breaches. In so far as his Honour considered other options, he appears to have considered them cursorily and only in the context of his statement that he saw no real prospect of the intensive correction order succeeding. In concluding that he was making the order which he in fact made on the basis that he had clearly told the appellant what would happen if she breached the order, namely that she would

go to gaol, his Honour seems to me to have been overlooking the essential distinction between a breach constituted by committing an offence punishable by imprisonment and breaches of attendance conditions imposed as core conditions to such an order. None of the reasons suggest that he has taken into account, as I say, the low-level nature of the breaches of conditions which had occurred. Those breaches of conditions, when properly viewed, in my opinion, suggest that there had been substantial compliance with the intensive correction order.

Accordingly, in my view, the appeal should be allowed and the sentence below set aside. In lieu thereof I would order that the intensive correction order be varied by directing that the community-based work order requirement cease as from 24 August 2000. The appellant will, of course, be given credit for the period of days spent in prison. By the time of the sentence below on 24 August 2000 the intensive correction order had 247 days to run, and not 254 days, as his Honour was told. Since then the appellant has served 106 days in prison. That is the amount of credit which she is to be given, and it is noted that there are 141 days of the intensive correction order still to run.

The appeal is allowed. The sentence imposed by his Honour on 24 August 2000 is set aside. In lieu thereof we order that the intensive correction order be varied by directing that the community-based work order requirement cease as from

We note that at the time of the sentence below the intensive correction order had 247 days to run. We further note that since 24 August the appellant has served 106 days in prison. Those 106 days will be credited to the service of the term of imprisonment pursuant to the order, and we note that there are now 141 days of the intensive correction order to run.

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