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District Court 30 November 2018

R v SIOSAIA TUPOU

[2018] NSWDC 399

Drugs
CRIME SENTENCE IMPRISONMENT FOR 18 MONTHS INTENSIVE CORRECTION ORDER.

Citation: R v Siosaia Tupou [2018] NSWDC 399
Court: District Court of New South Wales
Date: 30 November 2018
Judge: Colefax SC DCJ

Background

The offender pleaded guilty to supplying a prohibited drug in a quantity greater than the indictable quantity under the Drug Misuse and Trafficking Act 1985. On 16 October 2018, the court sentenced him to 18 months' imprisonment, with an inclination to have that term served by way of an Intensive Correction Order (ICO), which allows an offender to serve a sentence in the community under strict conditions rather than in full-time custody.

At the October hearing, a Pre-Sentence Report assessed the offender as unsuitable for community work due to "occupational health and safety fatigue considerations." The court adjourned sentencing and directed that a fresh Sentencing Assessment Report be prepared, specifically requiring it to address the offender's need for formal drug and alcohol rehabilitation.

When the matter returned on 30 November 2018, the court received the new Sentencing Assessment Report and found it to be seriously deficient in multiple respects.

  • Whether the sentence of 18 months' imprisonment should be served by way of an Intensive Correction Order under s 66 of the Crimes (Sentencing Procedure) Act 1999
  • Whether community safety, as the paramount consideration under that provision, would be better served by an ICO than by full-time custody
  • What additional conditions should be imposed on the ICO, given the deficiencies in the Sentencing Assessment Report

Decision

The court expressed strong criticism of the Sentencing Assessment Report prepared by Community Corrections. The report had failed to address the court's express direction that the offender's drug and alcohol use be formally dealt with. It could not confirm the offender's claimed abstinence from drugs, offered no explanation of what "social" alcohol consumption meant, and made no provision for any rehabilitation program. The court noted these failures were consistent with a broader pattern it had observed in the new ICO assessment regime.

The report's operational proposals were also found wanting. Community service had been scheduled only on Sundays, with no engagement with the offender's employer despite that employer being available to assist. The proposed hours, capped at "up to" 21 hours per month, were described as inadequate. Most significantly, Community Corrections had proposed suspending supervision entirely, without identifying any applicable regulatory basis under Regulation 189I of the Crimes (Administration of Sentences) Regulations 2014 or providing any reasons, despite the offender being assessed as low to medium risk of reoffending.

Despite these deficiencies, the court was satisfied under s 66 of the Crimes (Sentencing Procedure) Act 1999 that community safety would be better served by an ICO than by full-time imprisonment. This conclusion was largely made possible by the offender having independently arranged specialist addiction treatment with a named practitioner at the Mount Druitt Centre for Addiction Medicine, details of which had apparently been communicated to Community Corrections but were not mentioned in the report.

The court observed that, absent the offender's independent initiative in arranging that specialist treatment, the deficiencies in the report would effectively have forced a sentence of full-time custody through no fault of the offender. The court described that potential outcome as "most unfortunate."

Orders Made

  • The sentence of 18 months' imprisonment to be served by way of an Intensive Correction Order (ICO), commencing 30 November 2018
  • Mandatory ICO conditions: no commission of any offence; submission to supervision by a Community Corrections officer
  • Additional conditions imposed:
  • 500 hours of community service
  • Attendance at the Mount Druitt Centre for Addiction Medicine on 7 December 2018, with ongoing attendance and compliance with clinical advice for as long as directed
  • Complete abstinence from all illicit drugs, all non-prescribed lawful drugs, and alcohol
  • Report to Mount Druitt Community Corrections before 4:00 pm on 3 December 2018

Key Takeaways

  • The District Court found that a Sentencing Assessment Report may be so deficient that, without other mitigating factors, it could inadvertently result in full-time custody for an offender for whom an ICO would otherwise be appropriate.
  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when determining whether an ICO is appropriate, and the court must be satisfied it is served more fully by the ICO than by full-time imprisonment.
  • Where Community Corrections proposes to suspend supervision under Regulation 189I of the Crimes (Administration of Sentences) Regulations 2014, the report must identify the applicable paragraph of that provision and provide reasons; an unexplained proposal to suspend supervision is insufficient.
  • A court's express directions in ordering a Sentencing Assessment Report bind the preparing officer, and failure to comply with those directions will be noted and may affect the weight given to the report.
  • Colefax SC DCJ noted that the unexplained deletion of supervision from ICO conditions was not an isolated problem, describing the deficiency as not unique in the newly commenced ICO regime.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 66
- Crimes (Administration of Sentences) Regulations 2014 (NSW), Reg 189I

Cases cited: No cases were cited in this decision.