R v Figura (No 2)

[2019] ACTSC 222

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Figura (No 2)

Citation:

[2019] ACTSC 222

Hearing Date:

9 August 2019

DecisionDate:

9 August 2019

Before:

Mossop J

Decision:

See [17]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – whether sentence should be served by intensive corrections order – offending conduct driven by offender’s use of methamphetamines – offender has spent substantial period in custody attributable to present offences

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), ss 11(3), 11(6)

Cases Cited:

R v Figura (No 1) [2019] ACTSC 149

Parties:

The Queen (Crown)

Ashley Figura (Offender)

Representation:

Counsel

K Reardon (Crown)

K Musgrove (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

McKenna Taylor (Offender)

File Numbers:

SCC 69 of 2019

SCC 132 of 2019

MOSSOP J:

1. I gave my decision in this matter on 6 June 2019 (R v Figura (No 1) [2019] ACTSC 149). At that stage I indicated that I would impose a total aggregate sentence of 48 months. The issue that I deferred was how this sentence should be served.

1. The options were: full-time detention, a partially suspended sentence or intensive correction.  I directed that an intensive correction assessment be prepared.  That has now been done.  The report is dated 31 July 2019.  It assesses Mr Figura as suitable for an intensive correction order.  It also includes the following relevant information.

1. He was released on bail on 19 June 2019 to participate in the Arcadia House 12 week transition program.  He was exited from the program and failed to comply with conditions of bail and was returned to custody on 27 June 2019.  He was subsequently released and participated in the transition program, as well as being assessed for suitability for an intensive correction order.

1. His current partner is expecting their first child together.  The offender remains a parental figure for his two children from previous relationships.

1. The offender claimed that he had been offered full-time employment to commence upon completion of the Arcadia House transition program. This was not verified by the authors of the pre‑sentence report. I was told that he had been offered employment with a fencing contractor.

1. Staff at Arcadia House indicate that he remains a participant in the 12 week transition program and continues to demonstrate a willingness to address his illicit substance use.

1. There remain a number of weeks prior to the offender being eligible to transfer to the Arcadia House day program.

1. The authors of the ICO report were unable to make an assessment of his proposed accommodation. However this did not prevent him from being assessed as suitable for an intensive correction order. The absence of a full assessment of his accommodation rules out a curfew condition on any intensive correction order because it is not possible to be satisfied that each adult who is living at the curfew place or has parental responsibility for a person who is living at the curfew place consents to the curfew: see Crimes (Sentencing) Act 2005 (ACT) s 11(6).

1. He was assessed as unsuitable for community service work.

1. The overall assessment in the assessment report is as follows:

Mr Figura is a 25 year old Aboriginal man assessed as a medium to high risk level of general reoffending.  He appears to have supportive and positive relationships with his mother, siblings and partner and has demonstrated motivation to address his offending behaviour by participating in Arcadia House’s Transition Program.  He has successfully complied with the ICO assessment and demonstrated his willingness to comply with the conditions of an ICO should he be found suitable [for] one.

Whilst Mr Figura has been assessed as suitable for an ICO, this is based on his engagement in the targeted program to date.  It is noted that he has not had opportunity to demonstrate his capacity to comply with an ICO while in the community due to his breach of Bail conditions and subsequent period of remand before returning to Arcadia House.

1. The circumstances in which the offender left the Arcadia House involved a breach of the rules.  He was subsequently arrested as a result of failing to present himself to police when he was subject to a curfew and required to do so.  Whilst I have taken these failures into account, I do not consider that they tend strongly against the making of an intensive correction order.

1. The offender also successfully participated in restorative justice with the owners of the motorcycle that he took.

1. The time that the offender has spent in custody has changed since I gave my reasons.  Now the total period spent in custody is 173 days or five months and 23 days.  This gives a backdate date of 19 February 2019. 

1. Counsel for the Crown submitted that the gravity of the offending was such that no sentence other than one which involves a period of full-time custody would be appropriate in the circumstances.  She made particular reference to the need to be satisfied that the purposes of sentencing would be adequately met by a sentence served by way of intensive correction.  She noted the mixed compliance with community-based orders, in particular the failure to comply with the bail conditions which led to the offender’s arrest for breach of bail.  She emphasised that the purpose of rehabilitation should not be inappropriately elevated above the other purposes of sentencing.

1. Two features of this case are particularly significant in terms of the manner in which the custodial sentence should be served.  First, the offending conduct appears to have been driven by the offender’s methamphetamine use.  He was using the substance daily prior to his admission to the Alexander Maconochie Centre and the offending is consistent with someone who was fuelling a drug habit.  The second point which is relevant to note is that the offender has spent in excess of five months in custody attributable to these offences.  That means that even if an intensive correction order is imposed the offender will have spent a substantial period in custody attributable to the offending.  Because of the inflexibility surrounding the imposition of intensive correction orders, it is not possible to combine a sentence of full-time imprisonment with a sentence served by way of intensive correction.  However, the service of a substantial period of full-time custody is a matter which must be taken into account in sentencing and serves, to some extent, the purposes of deterrence, denunciation and accountability in relation to the offending.

1. I consider that the purposes of sentencing will be best achieved by a requirement that Mr Figura serve the sentences of imprisonment by way of an intensive correction order. In reaching the conclusion that an intensive correction order is appropriate I have taken into account the matters referred to in s 11(3) of the Crimes (Sentencing) Act.  A sentence served in this way will provide maximum opportunity and incentive for the offender to rehabilitate himself and remain free of further drug use.  I propose to backdate the sentence so as to reflect the period of full-time custody which he has served attributable to this offending.  One can only hope that for the sake of his two children and the third that he is expecting, the offender is able to free himself of methamphetamine use, is able to live a law-abiding life and, as a consequence, provide appropriate parental support to them.

1. The orders of the Court are:

1.     On the charge of theft by joint commission (CC2019/3169) the offender is convicted and sentenced to imprisonment for a period of 23 months starting on 19 February 2019 and ending on 18 January 2021.

2.     On the charge of damaging property by joint commission (CC2019/6376) the offender is convicted and sentenced to imprisonment for six months starting on 19 August 2020 and ending on 18 February 2021.

3.     On the charge of dishonestly driving a motor vehicle (CC2019/1335) the offender is convicted and sentenced to imprisonment for six months starting on 19 September 2020 and ending on 18 March 2021.

4.     On the charge of dishonestly driving a motor vehicle (CC2019/1337) the offender is convicted and sentenced to imprisonment for six months starting on 19 October 2020 and ending on 18 April 2021.

5.     On the charge of damaging property (CC2019/6377) the offender is convicted and sentenced to five months imprisonment starting on 19 February 2021 and ending on 18 July 2021.

6.     On the charge of theft (CC2019/3170) the offender is convicted and sentenced to imprisonment for 18 months starting on 19 October 2020 and ending on 18 April 2022.

7.     On the charge of dishonestly taking a vehicle without consent (CC2018/14895) the offender is convicted and sentenced to imprisonment for 18 months starting on 19 July 2021 and ending on 18 January 2023.

8.     On the charge of theft (CC2019/3171) the offender is convicted and sentenced to four months imprisonment starting on 19 October 2022 and ending on 18 February 2023.

9.     On the charge of trespass (CC2019/6378) the offender is convicted and fined $500 and allowed 12 months to pay.

10.   On the charge of trespass (CC2019/6379) the offender is convicted and fined $500 and allowed 12 months to pay.

11.   On the charge of trespass (CC2019/6380) the offender is convicted and fined $500 and allowed 12 months to pay.

12.   Each of the custodial sentences is to be served by way of intensive correction in the community.

13.   The intensive correction order shall include the following additional conditions:

(i)    the offender is to undertake medical treatment and supervision as directed;

(ii)    the offender is to supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer;

(iii)   the offender is to attend educational, vocational, psychological, psychiatric or other programs or counselling as directed; and

(iv)   the offender is to not consume illicit drugs.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop.

Associate:

Date: 5 September 2019