Fleet v Leeson (No 4)

[2023] ACTSC 225

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Fleet v Leeson (No 4)

Citation: 

[2023] ACTSC 225

Hearing Date: 

15 August 2023

Decision Date: 

15 August 2023

Before:

McCallum CJ

Decision: 

Vacate the orders made on 1 August 2023 and in lieu thereof I make the following orders:

(1) In respect of each good behaviour order imposed by me on 20 June 2022, I cancel those orders and resentence the offender to a term of imprisonment for a period of 12 months to be served by way of an intensive correction order for each charge for a period of 12 months from 1 August 2023 to 31 July 2024, subject to the core conditions listed in s 42 of the Crimes (Sentence            Administration) Act 2005 (ACT) and the following            additional conditions:

(a)  That the offender undertakes any counselling, treatment and programs as directed by the Director-General of ACT Corrective Services or their delegate particularly regarding drug relapse prevention and mental health.

(b)  Within 7 days the offender contact the EveryMan Program and further that he undertake any course of treatment or counselling recommended by the officer in charge of that program.

(c)   That within 7 days the offender contact his general practitioner and make an appointment to resume his mental health care plan if so recommended.

(d)  The offender inform the Director-General of ACT Corrective Services or their delegate within 2 days in the case that his Fenway Public House employment comes to an end.

(2)       Cancel suspended sentence order imposed by            Magistrate Lawton on 17 March 2023.

(3)       Resentence the offender to a term of imprisonment for 2            months to be served concurrently by intensive correction            order, commencing 1 August 2023.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – amending previous orders imposed  

Legislation Cited: 

Crimes (Sentence Administration) Act2005 (ACT) s 42

Crimes (Sentencing) Act2005 (ACT) s 80

Cases Cited: 

Fleet v Leeson (No 3) [2023] ACTSC 206

Parties: 

Eliott John Fleet ( Appellant)

Dean Leeson ( First Informant)

Keira Seton (Second Informant)

Representation: 

Counsel

T Crispin (Appellant)

D Swan (Respondents)

Solicitors

InPrivate Law ( Appellant)

ACT Director of Public Prosecutions (Respondents)

File Number:

SCA 16 of 2021

McCALLUM CJ:

1․On 1 August 2023 I dealt with the offender, Eliott Fleet, for breach of good behaviour orders.  I published my reasons ex tempore that day: see Fleet v Leeson (No 3) [2023] ACTSC 206.

2․In the process of correcting the ex tempore judgment I realised that, due to an omission in the form of the orders, I had failed to deal with the offender according to law.  I relisted the proceedings this morning to correct the error. 

3․The Crown has helpfully drawn my attention to an additional requirement imposed by s 80 of the Crimes (Sentencing) Act 2005 (ACT) and both parties have addressed me as to the requirements that flow from the application of that section.

4․The changes do not affect the course I proposed to take with the offender, but only the form of orders. However, the additional requirement under s 80 also requires that I cancel the previous suspended sentence imposed by Magistrate Lawton and deal with that together with my orders.

5․For those reasons, I vacate the orders made on 1 August 2023 and in lieu thereof I make the following orders:

(1)In respect of each good behaviour order imposed by me on 20 June 2022, I cancel those orders and resentence the offender to a term of imprisonment for a period of 12 months to be served by way of an intensive correction order for each charge for a period of 12 months from 1 August 2023 to 31 July 2024, subject to the core conditions listed in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions:

(a)That the offender undertakes any counselling, treatment and programs as directed by the Director-General of ACT Corrective Services or their delegate particularly regarding drug relapse prevention and mental health.

(b)Within 7 days the offender contact the EveryMan Program and further that he undertake any course of treatment or counselling recommended by the officer in charge of that program.

(c)That within 7 days the offender contact his general practitioner and make an appointment to resume his mental health care plan if so recommended.

(d)The offender inform the Director-General of ACT Corrective Services or their delegate within 2 days in the case that his Fenway Public House employment comes to an end.

(2)Cancel suspended sentence order imposed by Magistrate Lawton on 17 March 2023.

(3)Resentence the offender to a term of imprisonment for 2 months to be served concurrently by intensive correction order, commencing 1 August 2023.

6․Counsel for the offender also raised a concern in respect of the intensive correction order that, in accordance with the core conditions, the detection of any cannabis would constitute a breach of the core conditions.  In that respect, the core conditions imposed by the Crimes (Sentence Administration) Act have not caught up with the current state of the criminal law in the Territory, which is that the use of cannabis is not an offence.  No doubt any court dealing with any allegation of breach of the intensive correction order will have regard to that legislative anomaly.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum

Associate:

Date: 22 November 2023