R v Pumpa [2015] ACTSC 177

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2015] ACTSC 177

Under s 61(3)(b) of the Crimes (Sentencing) Act 2005 (ACT), Mr Pumpa's original sentence is corrected so that, instead of running from the date the original sentence was handed down, the good behaviour order is to run for three years from the date on which the sentence is suspended.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - good behaviour order required by suspension of remainder of sentence expressed to run from start of periodic detention period - offences committed during periodic detention period - periodic detention cancelled for non-attendance - offender in full-time custody - proceedings for breach of good behaviour order - interaction of full-time custody resulting from cancellation of periodic detention order and requirement to impose suspended sentence or to re-sentence - scope of re-sentence - good behaviour order attached to suspension of sentence not to commence before suspension takes effect - original sentence re-opened for correction - good behaviour order to commence only when remainder of sentence suspended - no breach of corrected good behaviour order.

Crimes (Sentence Administration) Act 2005 (ACT), ss 40, 42(2)(c), 110

Crimes (Sentencing) Act 2005 (ACT), ss 11(5), 12, 12(3), 13, 13(3)(d), 61, 61(3)(b)

1. On 22 August 2014, I sentenced Tyran Pumpa for a particularly unpleasant offence of recklessly inflicting grievous bodily harm. It involved an apparently gratuitous one-punch assault, causing serious injuries, committed by Mr Pumpa while he was extremely intoxicated.

2. The sentence was imprisonment for two years and eight months, the first 12 months to be served by periodic detention and the rest of the sentence suspended. I made a good behaviour order to operate for three years from the date of sentence.

3. The relative leniency of that sentence reflected Mr Pumpa's youth, his very troubled childhood and adolescence, his mental health problems, and the evidence before me that he had already made real efforts to avoid some of his major risk factors for re-offending. However, in sentencing Mr Pumpa, I gave him a detailed warning about his obligations under the sentence, and the risks of him finishing up in full-time custody. I shall quote from that warning as appropriate.

4. In fact Mr Pumpa breached his periodic detention obligations quite quickly, and on 20 January this year the periodic detention was cancelled and the Sentence Administration Board ordered that he serve a period of 10 months, 3 weeks and 8 days [sic, from 20 January 2015 to 18 December 2015, in full-time custody. That order reflected that Mr Pumpa had been credited with having served just over a month of the periodic detention period, although it is not clear to me whether he actually completed any periodic detention weekend or whether the period credited reflected the fact that he had been in full time custody since 29 November 2014 in respect of other offences.

5. Mr Pumpa was dealt with in the Magistrates Court on 31 March this year for those other offences, and sentenced or re-sentenced to terms of imprisonment that kept him in custody until 30 April this year.

6. Those offences were committed during the term of the good behaviour order that I had made, so on being convicted of those offences, Mr Pumpa appeared to be in breach of the good behaviour order, and last month he appeared before me, referred from the Magistrates Court, to be dealt with under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) for those breaches. That section requires that I cancel the good behaviour order and either impose the suspended sentence or re-sentence Mr Pumpa.

7. The good behaviour order was deliberately expressed to commence at the beginning of the sentence. That was because concerns had been expressed about the gap left by the common practice of commencing a good behaviour order associated with a suspended sentence only at the point when the sentence was suspended, often leaving a person without Corrective Services supervision and support during the term of the periodic detention (except for the direct supervision provided during each periodic detention weekend), a time when proper supervision and support may be at least as important as it would be when the offender has finished the periodic detention but remains subject to the suspended sentence and attached good behaviour order.

8. However, this case has raised real questions about the making of good behaviour orders expressed to come into force before the sentence suspension, and about the legal consequences of such an approach. There is a question whether the power exists to commence the good behaviour order before the suspension and various issues about the operation of any such good behaviour order.

9. The particular issue that was raised in this matter was whether any re-sentencing under s 110 could relate only to the suspended part of the sentence or could extend to varying the first part of the sentence which had originally been ordered to be served as periodic detention but which was currently being served as full-time imprisonment under an order made by the Sentence Administration Board.

10. As it happens, my view of the proper outcome of this matter would have been implemented however I determined the legal issues raised, but, given the significance of the questions raised, counsel were given leave to make brief submissions about the various issues, and I shall deal with those issues further in due course.

11. First, however, it is useful to review the circumstances that have brought Mr Pumpa back before me. Mr Pumpa's periodic detention was cancelled after repeated breaches of the periodic detention order. I do not have full details of those breaches before me but the pre-sentence report says that the periodic detention was cancelled "following frequent episodes of failing to report". As already mentioned, in sentencing Mr Pumpa I warned him about his periodic detention obligations, as follows:

Periodic detention will require you to spend Friday and Saturday nights for the next year at the correctional centre in Symonston. You need to know, and this is very important, that if you turn up affected by alcohol or other drugs you will be sent away, that if you miss a weekend it will have to be made up, and that if you miss more than a couple of weekends for any reason, you will be at risk of having to serve the rest of that periodic detention in full-time custody.

12. This, as it turns out, is exactly what happened. I am satisfied that Mr Pumpa, in failing to perform his periodic detention obligations, had no basis to expect another chance to serve the first 12 months of this sentence otherwise than in full-time custody. There is no doubt in my mind that the Sentence Administration Board's decision was appropriate.

13. The breach of the good behaviour order, however, raises a slightly different set of questions. Mr Pumpa has re-offended during the period covered by the good behaviour undertaking that he gave in accordance with the order that I made. However, that re-offending consists of one offence of possessing a prohibited thing while a detainee, committed in September 2014 during a periodic detention weekend, and one offence of failing to appear after a bail undertaking, committed on 14 November 2014. The first offence involved being in possession of cannabis while he was in the periodic detention facility. The second offence involved Mr Pumpa's failure, in breach of a bail undertaking, to appear in the Magistrates Court on 14 November 2014 in respect of a minor theft charge relating to events in April 2014, well before I sentenced him.

14. In sentencing Mr Pumpa I also explained the significance of his good behaviour order saying, among other things:

The most important thing you need to remember about the good behaviour order is that if you commit another offence during the next three years, you could find yourself back before this court to be re-sentenced for this current offence, as well as possibly losing the $1,000 security amount. You need to know in particular that, especially if you commit another offence of violence, you could easily find yourself serving some of the sentence I have just imposed in full time custody.

I think you should assume that you are now being given your last chance to stay out of gaol.

15. Mr Pumpa was thus well aware that breaching his good behaviour order could lead to spending time in custody beyond the periodic detention period. On the other hand, as I said to him, the thing that was most likely to get him further time in custody was a further offence of violence, and it is comforting to find that there appears to have been no violent offending in the last 18 months.

16. There is no doubt that an offender who suffers under the burdens of mental health difficulties and substance abuse habits will struggle to achieve rehabilitation, and will rarely move from serious offending straight to a pro-social and crime-free life with no setbacks. The question is whether such setbacks reflect only that the offender's journey will be long and hard, or whether they suggest that the offender is either incapable of or uncommitted to rehabilitation.

17. The two offences that are currently before me certainly indicate that Mr Pumpa was struggling to stay out of trouble, but they do not raise any concerns that he is still at risk of engaging in gratuitous violence, and nor has any of his other behaviour since I sentenced him in August last year raised such concerns. I note also that, although the drug possession offence was not apparently part of the reason for the cancellation of the periodic detention, Mr Pumpa has certainly been given a firm lesson in the importance of taking his periodic detention obligations seriously in general, and I would see no need to reinforce that lesson with further custodial time.

18. On this re-sentencing, the Crown has put before me material relating to my original sentencing in the matters that have brought Mr Pumpa here for re-sentencing, as well as an updated pre-sentence report. That report indicates drug testing which suggests that since entering the AMC, Mr Pumpa has given up cannabis use and has also been engaging in drug and alcohol counselling and programs, as well as receiving psychological counselling. It seems, however, that although Mr Pumpa now accepts that alcohol abuse puts him at risk of violent behaviour, he still has some way to go in recognising the impact of drug and alcohol abuse in getting him into trouble more generally.

19. The defence provided a new report from psychologist, Dr Michael Barry (who had previously provided a report for the original sentencing), letters of support from Mr Pumpa's partner and his father, and an offer of employment from his father's civil engineering company. Importantly, those materials indicate that Mr Pumpa's partner has recently given birth to their daughter, and that when Mr Pumpa is released from custody the family will be able to live in a cottage on his father's property just outside Canberra. They also indicate that the birth of his daughter has given Mr Pumpa a new focus on creating a stable family life for her. These materials confirm my view that at this stage there would be no need to require Mr Pumpa to serve more custody than the 12 months reflecting the cancellation of his periodic detention, and indeed that there would be good reasons for enabling him to return to his family and to stable accommodation and employment when that 12 months is completed.

20. In summary then, if I had found a breach of the good behaviour order I would have considered that it was appropriate to re-sentence Mr Pumpa to the same sentence as originally imposed, but with the requirement that the first 12 months was served in full-time custody instead of as periodic detention. However, as already mentioned, this case raises real questions about the interaction between the Sentence Administration Board order converting periodic detention into full-time custody and the good behaviour order expressed to cover the periodic detention period as well as the suspension period.

21. The questions originally raised were, in effect, whether my power to re-sentence was constrained by the Sentence Administration Board's cancellation of Mr Pumpa's periodic detention or whether I could, if I had wanted to, re-sentence in such a way as to reduce the period of full-time custody to be served by Mr Pumpa before the sentence handed down on re-sentence was suspended. As already noted, counsel have provided submissions on this question and they have been very helpful.

22. Defence counsel noted that s 110 of the Crimes (Sentence Administration) Act says that if the court is satisfied that the good behaviour order has been breached, it must cancel the good behaviour order and either impose the suspended sentence or re-sentence the offender. Defence counsel submits that a re-sentencing must involve imposing a new, although not necessarily different, penalty for the offence, not simply adjusting or even re-imposing particular parts of the original sentence but not others.

(a) that if the court, instead of re-sentencing, simply imposed the suspended sentence, then the Sentence Administration Board order would become irrelevant because Mr Pumpa would be required to serve the whole term of the sentence in full-time custody and not just the first 12 months;

(b) that if the Sentence Administration Board order would become irrelevant if the suspended sentence were imposed, then the Board's order should also be irrelevant in a re-sentencing.

(c) that therefore the court in re-sentencing is not bound by the Sentence Administration Board's decision to cancel periodic detention or by Mr Pumpa's resulting obligation to serve the first 12 months of his sentence in full-time custody.

24. I note that there are certain points at which this argument, in my view, breaks down. Among other things, it assumes the proposition that a re-sentencing involves re-setting the whole sentence and not just the suspended portion but this is, in fact, one of the questions to be determined (this is a genuine example of begging the question).

25. The Crown's submissions said that s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) simply does not permit the court to make a good behaviour order that starts to run before the sentence suspension takes effect. Section 12 of that Act is relevantly as follows:

(b) the court sentences the offender to imprisonment for the offence.

(2) The court may make an order (a suspended sentence order) suspending all or part of the sentence of imprisonment.

(3) If the court makes a suspended sentence order, the court must also make a good behaviour order for the period during which the sentence is suspended or for any longer period that the court considers appropriate.

Note A suspended sentence order may be part of a combination sentence together with other sentencing options (see pt 3.6).

(a) that the reference in s 12(3) to a good behaviour order being able to be made for a longer period than the period of the sentence that is suspended only permits a good behaviour order to run beyond the period when the suspended sentence, if not suspended, would have been fully served; and

(b) that there is no need for the court to make a good behaviour order running simultaneously with the periodic detention period in order to ensure that the offender is supervised during his or her periodic detention period because, under s 11(5) of the Crimes (Sentencing) Act, a condition requiring supervision, or any other condition that could be included in the good behaviour order, could be recommended in imposing periodic detention.

27. Section 13 deals with good behaviour orders, and s 13(3)(d) specifically refers to a probation condition, which seems to describe a supervision condition of the kind commonly included in a good behaviour order (although rarely, if ever, referred to in a pre-sentence report as a probation condition, nor considered in the context of assessing a person's suitability for periodic detention).

28. Next, the Crown says, under s 40 of the Crimes (Sentence Administration) Act, a condition recommended by a court is an additional condition of the periodic detention, and under s 42(2)(c) of that Act, serving periodic detention includes, among other things, complying with any additional conditions (this obligation is included in the offender's periodic detention obligations).

(a) on the one hand there is no need to make a good behaviour order to cover a periodic detention period; and

(b) on the other hand such an approach gives rise to issues like the current question, namely whether the court's power to re-sentence after a breach of the good behaviour order includes a power, in effect, to set aside the Sentence Administration Board's decision to cancel periodic detention;

the legislation should not be interpreted to permit the making of good behaviour orders to run during the term of any periodic detention to be served before a sentence is suspended.

30. Defence counsel responded to the Crown's submissions by pointing out that the effect of the submissions, if accepted, would be that if, in this case, Mr Pumpa had committed a serious violent offence during his periodic detention period, that would not have any effect on the suspension of a large part of his total sentence. At most, it would have led to the cancellation of the periodic detention in favour of full-time custody, even in the absence of all the other breaches that in this case have already resulted in cancellation of the periodic detention.

31. I acknowledge the force of this last submission made by the defence counsel and agree that this might seem to be a perverse result, although it is a result that is, in any case, always possible whenever a good behaviour order attached to a suspended sentence is expressed to commence only when the sentence is suspended after part of the sentence is served in some other way. That would routinely be done when the sentence is suspended after a period in full-time custody, and certainly can be done if it is suspended after some periodic detention.

32. I have, however, concluded that the Crown is correct in its arguments and that, in summary, there is no good reason to conclude that the Crimes (Sentencing) Act is intended to allow good behaviour orders attached to suspended sentences to commence before the suspension takes effect, and good reason to conclude that such an approach introduces unnecessary complexity, including arguably a constitutional uncertainty, into the sentencing process and accordingly should be rejected.

33. In reaching this conclusion, I should say that I accept defence counsel's submission that a re-sentencing under s 110 of the Crimes (Sentence Administration) Act is a full re-sentencing, and not just a re-sentencing in relation to the suspended part of the sentence.

34. One would expect that any part of the original sentence served in any form of custody before the good behaviour order took effect would, in general, be accounted for in such a re-sentencing, presumably usually by way of backdating, but there would be no question whether a re-sentence could override or would be constrained by a Sentence Administration Board decision that had not been fully effected, because there should be no such outstanding decision by the time the good behaviour order takes effect.

35. On the other hand, one implication of the conclusion I have reached about the co-existence of a good behaviour order and a periodic detention order is that, as pointed out by defence counsel, there would be no breach of a good behaviour order until after any full-time custody or periodic detention has been completed in whatever way required.

36. The more significant implication for the current matter is that the order I initially made, which began the good behaviour order from the day of sentencing rather than from the day of suspension of the sentence was, on the current analysis, not available to me and should be corrected under s 61 of the Crimes (Sentencing) Act as a sentence-related order made contrary to law.

37. Once that order is corrected to commence the good behaviour order on the day on which Mr Pumpa completes the periodic detention part of his sentence, which will now be the day he completes the full-time custodial part of his sentence, it will be clear that, since the good behaviour order has not yet taken effect, Mr Pumpa cannot have breached it by any of the offences referred from the Magistrates Court. There is, therefore, no basis for re-sentencing Mr Pumpa, and no issue about the status of the Sentence Administration Board's determination that he is to serve the remainder of his periodic detention in full-time custody.

38. Accordingly, under s 61(3)(b) of the Crimes (Sentencing) Act, I now correct Mr Pumpa's original sentence by specifying that instead of running from the date on which I originally sentenced him, the good behaviour order is to run for three years from the date on which the sentence is suspended, which will be immediately after Mr Pumpa has satisfied the obligation imposed under the original sentence to serve the first 12 months of the sentence by periodic detention.

39. I note, but without making this part of my order, that as currently advised I understand that date to be 19 December this year. If that turns out to be the correct date then the good behaviour order will run until 18 December 2018.

[After hearing further submissions from counsel, I note the following matters:

(a) that the criminal proceeding in which I originally sentenced Mr Pumpa was re-opened under s 61 of the Crimes (Sentencing) Act 2005 (ACT) on the Court's initiative (s 61(3));

(b) that the parties had the opportunity to make submissions about the operation of the Crimes (Sentencing) Act and the Crimes (Sentence Administration) Act 2005 (ACT) before I dealt with the matter referred from the Magistrates Court;

(c) that the possible significance of s 61 of the Crimes (Sentencing) Act was canvassed in those submissions;

(d) that after submissions were exchanged, the parties were given a further opportunity to make oral submissions before this judgment was delivered and the original sentence was corrected; and

(e) that because, under Mr Pumpa's sentence as corrected, no good behaviour order binding Mr Pumpa has yet taken effect, there has been no breach by Mr Pumpa of any good behaviour order arising from Mr Pumpa's current sentence.]

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.