Aboriginal Legal Service (NSW/ACT)

ALS News

Escaped 14 years inside with a good behaviour bond - result of good legal work

02 Feb 2017

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Despite having a difficult childhood Matt* aged 19 had never been to court.

That changed one afternoon after Matt and his mate took the drug ice.

They chased a couple of young people through the Northern NSW bush, then caught and attacked them with a piece of timber, causing head wounds which required multiple stitches.

Matt was charged with Reckless Wounding. 

An ALS solicitor assisted Matt in court, where he pleaded guilty to the offence.

The solicitor told the court that since being charged, Matt had shown high motivation to get help and connect with service agencies.

The Magistrate ordered a pre sentence report (PSR). PSR’s are prepared by Community Corrections to assist Magistrates ‘select the most appropriate sentence for offenders who have pleaded guilty to, or have been found guilty of, an offence… A PSR may involve interviews with the offender and significant family or social contacts.’

As the PSR report was favourable, Matt received a 400 hour Community Service Order (CSO) as an alternative to a prison sentence. This meant that Matt had to do 400 hours of unpaid community work and/or participation in personal development, educational or other programs as guided by Corrective Services NSW.

Two days later however Matt got into trouble again, this time under the influence of marijuana. He and his mate entered a house by removing a flyscreen, then took an iPad, charger, $45, a cheap watch, and jewellery, including a silver necklace. They used $25 to buy marijuana and then hung about on the street, watching police arrive at the break and enter scene. 

The police found the stolen goods on them and arrested Matt and his mate. They were charged with serious offences:

  • Possess Prohibited Drug: s10(1)- Drugs Misuse and Trafficking Act 1985
  • Aggravated Break and Enter (in company): s112(2)- Crimes Act 1900 (SI)
  • Goods In Custody: s527C(1)(a)- Crimes Act 1900
  • Possess Housebreaking Implements: s114(1)(b)- Crimes Act 1900

The break and enter charge alone carried a maximum penalty of up to 14 years imprisonment!

They were bailed by the Registrar at the local court later that day.

Five weeks later, despite continuing with his Community Service Order, Matt got into trouble for a third time. He was arrested for shoplifting and held overnight.

The next day an ALS solicitor travelled the 260 km round trip on court circuit and got Matt released on bail from his local police station. The court awarded Matt with a section 9 good behaviour bond for a nine month period. This meant Matt couldn’t get into any trouble for nine months. The court also committed Matt to sentencing for the previous charges in three months time at the regional District Court, 130 kms from his home town.

As he didn’t have a car, and no family able to support him through the court process, Matt’s solicitor got on the phone and asked the local Aboriginal Medical Service and the “Linking Together” Centre if they could help with Matt’s transport to and from the District Court – a total journey of 260 km’s, and also support him through the court process. They agreed.

Three months later Matt was picked up by local services and driven to the regional District Court for ‘call over’. This means setting the date for him to be sentenced and ensuring all parties to the case are organised in terms of things such as:

  • the filing and service of any additional pleadings
  • the allocating of a return date for any subpoena (if necessary)
  • the filing and service of evidence; and
  • listing the matter for trial and pre-trial review.

Once that was done, Matt got a lift back home.

A week later, with the help of the same local services, Matt was again required to travel the long distance to the District Court. Unfortunately, the court did not have time to get to his matter that day, other than to defer it for another two weeks. Matt got a lift back home.

Two weeks later, for the third time, Matt received a lift to the District Court.

The ALS had briefed a barrister who spoke up in court on behalf of Matt.

The barrister told the court that Matt was charged before - but was being sentenced after - the incoming 8A provisions concerning tabling of previously strictly indictable break and enter matters. The barrister was referring to an amendment to the Sentencing Act where on 4 November 2016 the previously strictly indictable charge of aggravated break and enter where the circumstance of aggravation was being in the company of another offender, was now a table one offence which could be dealt with summarily in the Local Court by the police. 8A of the Criminal Procedure Act states that breaking and entering in the company of another person is an offence where:

  • the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property, and
  • the value of the property stolen or destroyed, or the value of the damage to the property, does not exceed $60,000, and
  • the only circumstance of aggravation is that the alleged offender is in the company of another person or persons.

His Honour emphasised the 8A provisions were not retrospective, which meant they could not apply back in time.

The barrister told the court about the principle encapsulated by the Crimes (Sentencing Procedure) Act 1999 - Sect 19 - Effect of alterations in penalties. This principle could infer that Matt should attract a reduced penalty because extra more lenient provisions came in after the offence was committed.

The barrister also reminded the court about Dinsdale v The Queen [2000] where the power to suspend a prison sentence is confined by reference wholly, mainly or specially to the effect of rehabilitation of the offender.

The barrister then talked to the court about reducing the severity of sentencing, and the court accepted this and pegged the seriousness of the offence toward the lower end of that scale.

His Honour agreed to cap sentencing at two years.

The barrister talked to the court about Matt’s Community Service Order which was in place at the time the serious offences were committed. His Honour suggested this was an aggravating factor to the case, particularly in relation to Section 21A(2)(j) factors “in addition to” any Act or rule of law where an offence is committed while the offender is on conditional liberty in relation to an offence or alleged offence. His Honour however did nothing further with this in the absence of any input from Probation and Parole.

The barrister told the court about Matt’s lack of any significant record, which the court accepted.

The barrister told the court about Matt’s early guilty plea, his remorse, his acceptance of wrongdoing and the fact that he had taken responsibility for his actions, and his very good prospects of rehabilitation.

The barrister also provided the court with letters from local service organisations that had been working closely with Matt, including the Linking Together Programme (Crossing the Divide), the local Aboriginal Medical service, and the local TAFE. Matt’s pre sentence report also reflected his initial commitment to completing his hours with the Community Service Order, with only some glitches in attending appointments.

The barrister told the court that all property found in Matt’s possession had been recovered and returned. He told the court there was no damage to the house apart from a displaced flyscreen. The court learned that Matt had spent $25 purchasing marijuana. Despite this being canvassed His Honour still accepted there had been little or no loss suffered by the victims.

The barrister talked to the court about the relevance of immaturity as highlighted in KT v R. In this it is allowed that a person’s immaturity can contribute to their breaking the law, and that allowance be made for an offender's youth and not just their biological age.

Bugmy vs The Queen [37]-[44] principles were also outlined by the the barrister, and accepted and applied by the court. These include recognition that Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, and that an offender’s disadvantage does not diminish over time.
Matt could have received quite a severe sentence and term of imprisonment.

Instead, in company with his co-accused, Judge King SC gave Matt a s12 bond for 12 months, which is a suspended sentence (Section 12 good behaviour bond) for the break and enter, and an s10A Conviction with no other penalty for all the other charges.

A great result!

Matt was extremely happy with this result. The ALS and the barrister were happy with the result. And all of his support staff – the services that had been driving Matt back and forth - were happy as well.

Matt continues to do well and has stayed out of trouble.

 

* Names have been changed to protect identity

 

Image gratefully sourced from http://bzfd.it/2kviRFv

 


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