The Queen (Crown) v Rhys Wilkins

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 30 June 2016
• Docket Number: File Numbers: SCC 224 of 2014
• Date: 30 June 2016

[2016] ACTSC 148

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Numbers: SCC 224 of 2014

SCC 305 of 2014

The Queen

(Crown)

and

Rhys Wilkins

(Defendant)

Representation:

Counsel

Mr K Lee (3 December) (Crown)

Mr D Sahu-Khan (12 February) (Crown)

Ms A Mifsud (6 June) (Crown)

Mr T Hickey (7 June) (Crown)

Mr M Reardon (30 June) (Crown)

Self-represented (Defendant)

Cases Cited:

Guy v Anderson [2013] ACTSC 5

R v Curtis (No 2) [2016] ACTSC 34

R v Kekalainen (No 2) [2015] ACTSC 369

R v Rhys Wilkins [2015] ACTSC 8

R v Wilkins [2015] ACTSC 145

Saga v Reid [2010] ACTSC 59

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT), ss 91(5), 102, 110, 110(4)

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Breach of Good Behaviour Order — failure to comply with directions — failure to undertake community service work — community service work now completed — no further offending — rehabilitation completed — suspended sentence

Decision:

• 1. The Good Behaviour Order made on 5 June 2015 is cancelled.

• 2. The conviction of possessing methylamphetamine for the purpose of sale or supply to another person on 9 December 2013 is confirmed (XO 15/30184).

• 3. Rhys Wilkins is sentenced to 12 months imprisonment to commence on 2 April 2015, to take into account pre-sentence custody.

• 4. The conviction of possessing methylamphetamine for the purpose of sale or supply to another person on 10 October 2014 is confirmed (XO 15/30185).

• 5. Rhys Wilkins is sentenced to 16 months imprisonment to commence on 2 June 2016, that is to be cumulative as to 6 months on the first sentence I have imposed.

• 6. The sentence is suspended today, 30 June 2016, for a period of 18 months.

• 7. Rhys Wilkins is required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a probation condition that he be under the supervision of the Director-General or her delegate for 18 months or such lesser period as the person supervising him decides is appropriate and that he obey all reasonable directions of the person supervising him.

• 8. Rhys Wilkins is fined $500 to be paid within 6 months.

• 9. Rhys Wilkins is required to attend at ACT Corrective Services, Eclipse House, London Circuit, Canberra City, by 4:30pm today, 30 June 2016, to make arrangements for supervision.

Refshauge J

1 On 5 June 2015, I convicted Rhys Wilkins of two charges of possessing methylamphetamine for the purpose of sale or supply to another person on 9 December 2013 and 10 October 2014. I sentenced him to a total of 18 months imprisonment to commence on 8 March 2015 for 2 years, having served approximately 3 months pre-sentence custody. I suspended the sentence for 2 years from the day of sentence and made a probation condition and a community service work condition to the Good Behaviour Order required to be made on the suspension of a sentence of imprisonment. See R v Wilkins [2015] ACTSC 145 ( Wilkins (No 2)).

2 On 1 December 2015, a breach of the Good Behaviour Order was reported to the court because Mr Wilkins had failed to undertake community service work as directed. He had, of course, until 4 September 2016 within which to complete the mandated hours of community service work. On the other hand, he had not attended when directed to do so. An offender must comply with a direction (s 91(5) of the Crimes (Sentence Administration) Act 2005 (ACT)) and a failure to do so would, therefore, breach an obligation under the Good Behaviour Order, requiring a report to the sentencing court (s 102 of the Crimes (Sentence Administration) Act).

3 The report to the court accordingly described the breach as follows:

He [Mr Wilkins] has failed to perform community service work as directed.

4 Mr Wilkins admitted the breach on 12 February 2016.

5 Despite this, Mr Wilkins had, when attended, satisfactorily completed those periods of community service work he did perform. He had not committed any further offences and no breach was alleged of his probation condition.

6 He has now completed the community service work and, despite the Court's intervention, it has been completed within the time allowed, namely before 4 September 2016.

7 It is, however, appropriate to set out, briefly, the history of the matter.

Facts

8 On 9 December 2013, police executed a search warrant at the residence of Mr Wilkins. They found and seized two small plastic bags containing a clear crystal substance which, on analysis, was proved to be 6.348 grams of a substance containing 4.81 grams of pure methylamphetamine. Other paraphernalia associated with drug dealing, including a reasonably large amount of cash, was also found and seized. He was later summonsed to attend the Magistrates Court on 27 June 2014 to answer a charge that he trafficked in methylamphetamine.

9 Later, however, on 10 October 2014, police executed another search warrant on his residence and again located some plastic bags with a white crystalline substance which, on analysis, was found to weigh 8.418 grams and to contain methylamphetamine, but I had no evidence of its purity. Another small amount of substance weighing 0.174 grams and also containing methylamphetamine was found. A smaller amount of cash was also found.

10 Mr Wilkins was arrested and remanded in custody until 7 January 2015, when he was granted bail: R v Rhys Wilkins [2015] ACTSC 8 ( Wilkins (No 1)). That was granted so that he could undertake a residential drug rehabilitation program, which he did. I described that program in Wilkins (No 2) at [41].

11 He had a positive outcome and had remained abstinent: Wilkins (No 2) at [42]–[43].

12 As a result of this success and the other matters mentioned in Wilkins (No 2), especially at [55] to [64], I imposed a sentence of imprisonment but suspended it, as noted above (at [1]), despite the serious nature of the offences and his offending, making the required Good Behaviour Order with the relevant conditions as also noted above (at [1]).

13 Mr Wilkins, however, had some difficulty with the completion of the community service work condition. Part of this came from his employment.

14 On 3 December 2015, a summons was issued because of his failure to attend as directed for community service work on various occasions between June and October 2015.

15 He did not attend for induction into the community service work program on three occasions but finally attended on 23 July 20He then attended to perform community work on two occasions, completing 8 hours of community service work on the first occasion and only 5 hours on the second, because he left early, but he failed to attend on another occasion. After that, he failed to attend on 7 occasions, failing to provide a reasonable excuse.

16 On 8 October 2015, he resigned from his work and stated that he wanted to complete his community service work. He then attended on 14 October 2015, failed to attend on 15 October 2015 and attended on 16, 17 and 20 October 2015 but failed to attend thereafter. By that time, he had completed 41 of the 150 hours of work required.

17 It was as a result of this lack of performance that breach action was commenced. He explained to me when he appeared to answer the breach that he did wish to complete the community service work.

18 It appears that, breach action having been commenced, the view is taken by ACT Corrective Services that the obligation to continue with supervision and performance of community service work is suspended or terminated. This may be because a proved breach requires a cancellation of the Good Behaviour Order where it is made in connection with a suspended sentence order: s 110 of the Crimes (Sentence Administration) Act. That, apparently, does not prevent the community service work due under the Order being completed where its completion is made a condition of bail pending a final decision on the breach...