R v AX (No 4)

[2023] ACTSC 47

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v AX (No 4)

Citation:

[2023] ACTSC 47

Hearing Date:

15 March 2023

DecisionDate:

15 March 2023

Before:

Norrish AJ

Decision:

Pursuant to s 20A(5) of the Crimes Act 1914 (Cth) I extend the term of the Recognisance Order ordered by Burns J for a period of 6 months to commence on 28 February 2023 expiring on 27 August 2023.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Recognisance Order – Recognisance extended

Legislation Cited:

Crimes Act 1914 (Cth) s 20A

Cases Cited:

R v AX (No 3) [2020] ACTSC 334

Parties:

The Queen ( Crown)

AX ( Offender)

Representation:

Counsel

S Hoad ( Crown)

T Lee ( Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Legal Aid ACT ( Offender)

File Number:

SCC 114 of 2020

NORRISH AJ:

1․The offender, AX, is called up in relation to a breach of a Recognisance Release Order, the call up by summons dated 19 October 2022. The summons identifies the fact that the offender was on 16 November 2020 convicted in the ACT Supreme Court on two counts, one count of possessing or controlling child abuse material and another count of using a carriage service to access child abuse material. In respect of those offences, he was sentenced to 12 months’ imprisonment to be released after four months’ imprisonment, then agreeing to be of good behaviour for a period of two years and to comply with various conditions including that he accept the supervision of the ACT Corrective Services. He was to obey all reasonable directions of officers of that service.

2․It is alleged in the summons that between 1 April 2022 and 20 June 2022 he failed to comply with the condition of accepting supervision from ACT Corrective Services and obey all reasonable directions of the officers of that service.

3․Details of that breach are set out in an affidavit sworn 1 February 2023 by Robin Gibson. Particular details of the failure to comply with the conditions of the recognisance are set out in paragraphs 6 to 10 of that affidavit. I note in his favour that his engagement with the supervision of the service was satisfactory until March 2022. Euphemistically it is said that after that date his engagement “declined”. That is a euphemism for basically saying that he failed to comply with what was required of him.

4․I do note, however, that he maintained contact with the Child Sex Offender Registry Team (CSORT) up until December 2022. He provided an address in New South Wales which was the address of his parents where he did live. There is no evidence of any further offending by the offender.

5․I note the recommendation that the order that was originally made in relation to this matter be extended, in terms of the requirement for him to be of good behaviour be extended by six months.  I have read the judgment of Burns J (R v AX (No 3) [2020] ACTSC 334). I am mindful of the seriousness of the offending with which his Honour was concerned. But it is to be borne in mind that, as far as my actions are concerned, I am constrained by the parameters of the sentencing order made by his Honour which was not the subject of Crown appeal. The terms of the order made by his Honour was to fix a recognisance to commence on his release from custody on 28 February 2021 to expire on 27 February 2023.

6․I have noted the evidence of the offender. I understand him to be a frank witness and there is some explanation for some confusion in his mind as to whether the ACT Corrective Services supervision was to continue for more than a year. I note that he has a settled domestic circumstance in Albury. He has employment and his own accommodation and I also understand from his evidence that the complication in his personal life has been the illness of his mother and that has been a matter weighing upon his mind.

7․Noting all that is available to me and noting the submissions made by the learned Crown prosecutor and having regard particularly to the fact that offender has not committed any further offences since his release from custody, I do not propose to revoke the recognisance that was ordered. Notwithstanding the fact that it has expired, I am entitled to do that, bearing in mind the breach which was admitted by the offender occurred during the time that he was subject to a recognisance to be of good behaviour. However, I am prepared to extend the period of the recognisance for a period of six months to commence on 28 February 2023 expiring on 27 August 2023.

8․The learned Crown prosecutor indicated to me I have no power to extend the period of supervision. I would not have done that in any event because it seems to me that there is no purpose to him being supervised by the ACT Corrective Services given his settled domestic circumstances and the fact that it is quite clear that he is now living in Albury where he has family connections.

Orders

9․Thus, the orders I make are these:

(1) Pursuant to s 20A(5) of the Crimes Act 1914 (Cth) I extend the term of the Recognisance Order ordered by Burns J for a period of 6 months to commence on 28 February 2023 expiring on 27 August 2023.

10․The court file should also note that the address of the offender is a residence in North Albury.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish..................

Associate:

Date: