Friday, 4 June 2010

R v Halligan (No 2) [2010] VSC 232: Breach of a CBO can lead to gaol

Edit: Another example of comparatively harsh treatment is Matthews v The Queen, where a breach of CBO led to the imposition of twelve months imprisonment with a minimum of six.

Unlike Intensive Correction Orders, it's rare for an offender who breaches a Community Based Order to be resentenced to immediate imprisonment. There are several sentencing options between the two that courts will employ if possible.

It depends very much on the original offence(s) for which the CBO was imposed, of course. In the case of Halligan, the offence was one of robbery. The full facts are set out in R v Halligan [2008] VSC 279.

After failing to justify his non-attendance at appointments with the Office of Corrections, Halligan was re-sentenced for the original robbery. He was given twelve months imprisonment, six months to be served immediately.

Harper J:

22 Indeed, the history of your conduct since your sentence indicates that there is very little reason to be confident that any undertaking presently given to comply with a fresh community-based order would be fulfilled. It is true that you completed 48 and a half hours of community work pursuant to the original order. It is also true that in the 18 months allowed to complete the 150 hours of community work required, you failed to complete 101 and a half hours. That seems to me to be another indication of your dismal failure to make any real attempt to comply with the requirements of the order.

23 I also take into account the fact that after July last year you lost contact, or failed to renew contact, with your community corrections officers. That, in my view, is an inexcusable failure on your part. The corrections officers are in a position to assist a person subject to a community-based order to comply with the requirements of that order. They are not draconian in the exercise of their powers unless compelled to be so. Thus, it was not until you had failed on 14 occasions to attend when required, that any action at all was taken to bring your failure to the attention of the Court.

24 In other words, the community corrections officers bent over backwards to ensure that you did not come to the notice of the Court, despite your failure to obey the order. It was only when they lost contact with you after July 2009 that the action which brings you before the Court today was instituted.

25 In all these circumstances, I have, in my opinion, no option but to deal with you as if the robbery was an offence for which you had just been found guilty, and to sentence you to a term of imprisonment.

This case struck me as a useful example for practitioners to give their clients (particularly the younger ones) that demonstrates the importance of compliance with sentencing orders.