Director of Public Prosecutions v Allred (No 2)
[2024] ACTSC 243
•30 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Allred (No 2) |
Citation: | [2024] ACTSC 243 |
Hearing Date: | 18 June 2024, 1 July 2024 |
Decision Date: | 30 July 2024 |
Before: | Christensen AJ |
Decision: | See [37]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 63, 80O, 80W, 80ZD, 80ZE |
Cases Cited: | DPP v Allred [2023] ACTSC 184 |
Parties: | Director of Public Prosecutions ( Crown) Jackson Cory Allred ( Offender) |
Representation: | Counsel G Meikle ( DPP) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 314 of 2022 SCC 315 of 2022 SCC 48 of 2023 SCC 49 of 2023 |
CHRISTENSEN AJ:
Introduction
1․Jackson Allred comes before the Court for finalisation of review proceedings following cancellation of his Drug and Alcohol Treatment Order (Treatment Order) that was imposed for his offending in July and August 2022.
Background
2․On 7 July 2023, Mr Allred was convicted and sentenced for offences of dishonestly driving a motor vehicle without consent, aggravated dangerous driving, driving at police, and two offences of driving while disqualified (repeat offender): DPP v Allred [2023] ACTSC 184 (Allred). A total sentence of 3 years and 10 months imprisonment was imposed, with a period of 3 years and 4 months of that term to be served by way of a Treatment Order.
3․Mr Allred commenced on the Treatment Order from the date of the imposition. He initially participated in the Canberra Recovery Hub day program. There were issues of compliance with the order, which will be detailed further below, and which led to Mr Allred being admitted to the Canberra Recovery Services (CRS) residential rehabilitation program from 13 March 2024.
4․Issues with compliance of his obligations under the Treatment Order arose again while Mr Allred was in CRS, leading to the cancellation of the Treatment Order on 18 June 2024, pursuant to s 80ZE(1) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
5․The Court is to now determine whether to impose the sentence of imprisonment that was suspended under the custodial part of the Treatment Order, or to resentence: s 80ZE(2) of the Sentencing Act.
Impose or resentence?
6․As observed in R v Cook (No 2) [2024] ACTSC 27 at [10] as to a cancellation pursuant to s 80ZE –
[A] preliminary consideration is the extent to which there was compliance with the treatment and supervision part of the order. Having considered that, the court then turns to consider if it is appropriate in the circumstances to resentence. If it is not, the suspended portion is imposed.
7․The prosecution submitted that imposition was the appropriate order. The prosecution set out the numerous opportunities afforded to Mr Allred, which, it is relevant to observe, stem back to the imposition of the Treatment Order itself which was for offending that occurred while on conditional liberty.
8․The prosecution did also acknowledge Mr Allred’s apparent deeply entrenched substance addiction and abuse, the non-linear journey of rehabilitation, and that there were periods of positive engagement during the Treatment Order. It was submitted though that imposition was appropriate, having regard to the overall extent of
non-compliance, and that the deterrent effect of a significant term of imprisonment was an inadequate incentive to rehabilitate.9․The prosecution submission was that the Court should take into account Mr Allred’s journey of rehabilitation to date, and that it may be that Mr Allred would be better suited to a lengthy period of supervision by Corrective Services through a parole order.
10․On behalf of Mr Allred, it was submitted that the Court should resentence him, having regard to his compliance with the requirements to attend court, the family support available to him, and the fact that he has not re-offended during the Treatment Order.
11․The period of positive engagement was emphasised, as was the period which Mr Allred did spend in residential rehabilitation. It was submitted that the Court should have regard to the underlying reasons that led to his relapses, a circumstance that was made known to the Court throughout the term of the Treatment Order and which is unnecessary to set out for current purposes.
Compliance with Treatment Order
12․Mr Allred’s compliance with the Treatment Order can be described, overall, as disappointing.
13․At the time of original sentence, it was observed by Refshauge AJ that “Mr Allred has been abstinent from illicit drugs from time to time but now appears motivated and committed to seek assistance”: Allred at [87].
14․Further, his Honour said that Mr Allred has shown commitment to rehabilitate, and that “that commitment, of course, needs to be translated into action”: Allred at [125]. In speaking directly to Mr Allred, his Honour said at [132] –
Given much of the cause of this [offending] behaviour … and much of the efforts that you have made and appear to wish to continue to make … I am prepared to make a Drug and Alcohol Treatment Order. That is not a get out of jail free card. Yes, you do not have to spend any more time in prison, but you have to put your shoulder to the wheel and address the pernicious drug dependency that you have got and try to manage it.
15․Within 10 days of the imposition of the Treatment Order, Mr Allred was first sanctioned. He admitted to substance use and missed a scheduled case management appointment. He did, though, admit the use, and the Court recognises that there is typically non-linear progression to rehabilitation.
16․The extent of non-compliance that followed thereafter is, however, beyond what will typically be tolerated by the court. There was again use of substances, of various forms, on multiple occasions, as well as sanction points imposed for disrespectful behaviour, non-engagement, and being late to appointments. This led to Mr Allred’s order being provisionally suspended on multiple occasions.
17․Nonetheless, there were occasions for optimism. Mr Allred described having achieved the longest period of sobriety since he was a child; he graduated from the day program, and he engaged positively in aspects of family and home life, and in prosocial activities. He also engaged with mechanisms to address causes of underlying trauma. The period of positive engagement with treatment and supervision occurred from 27 October 2023 to 19 January 2024.
18․Reflective of Mr Allred’s ability to make some positive steps towards rehabilitation, in March 2024, an opportunity was again granted to demonstrate the commitment that he had promised. Mr Allred was continued on the order with a requirement that he complete the CRS residential rehabilitation program.
19․There was again some positive progress, with solid engagement with aspects of the program. There were, though, some negative behaviours, including reports of not adhering with program guidelines, and observations made of suspected substance use. Such contended substance use was denied by Mr Allred.
20․As a result of these reported and observed negative behaviours, Mr Allred was discharged from the program on 31 May 2024. The program provides that if Mr Allred is committed to his recovery from alcohol and drugs, “there needs to be some honesty and taking responsibility for his actions for him to successfully engage in treatment”.
21․As Mr Allred had almost completed the program, he was given an opportunity to return to his residence and progress his rehabilitation in the community. This was not achieved, with substance use, that Mr Allred admits, observed on 4 June 2024. This led to the further provisional cancellation of the suspension of the custodial part of the order and his return to custody.
Appropriate to resentence?
22․As to circumstances said to enliven the Court’s discretion to resentence rather than impose the suspended term, in addition to those already observed (above at [10] and [11]), it was submitted during the review proceeding that Mr Allred was willing to commit to further rehabilitation. Mr Allred was described as willing to engage with a residential rehabilitation program that involves more onerous requirements; he would engage with a high-volume urinalysis testing regime, and he would continue to have the strong support of his aunt.
Consideration
23․I am not satisfied that it is appropriate in the circumstances to resentence.
24․While there was not reoffending, this is not determinative, nor significantly informative, as any reoffending would instead enliven s 80ZD considerations under the Sentencing Act. The reason for Mr Allred’s relapses is also not a compelling circumstance. If anything, this factor tends towards imposition as it highlights the unaddressed trauma that Mr Allred has that is necessary for him to address if he is to progress in his rehabilitation. In the absence of this being addressed, there is little prospect of Mr Allred achieving freedom from his drug dependency and for the objects of the Treatment Order being achieved: s 80O of the Sentencing Act.
25․While there was a period of, and occasions of, positive engagement, there was, overall, a high degree of non-compliance despite numerous opportunities being given. There was also, throughout the term of the Treatment Order, numerous warnings given as to the consequences if there was not compliance. This began at the imposition of the Treatment Order, with Refshauge AJ saying directly to Mr Allred (Allred at [135]) –
If it gets too bad and you are just not performing, then I can cancel the Order and send you back to spend the rest of the three years and 10 months in custody. I am not saying this to frighten you, that is not a blackmail. That is simply the fact, and you are smart enough, intelligent enough, to know what is at stake.
26․Thereafter, on occasions of non-compliance, Mr Allred sought further opportunities to engage with the Treatment Order, and he was, after being reminded of his obligations, given such opportunities. Despite this, he did not engage with the Treatment Order in a way demonstrative of sustained commitments to rehabilitation. What is offered now, in terms of promises to now engage with rehabilitation, amount to empty promises in the circumstances.
Period of imprisonment
27․The sentence of imprisonment that was suspended under the custodial part of the Treatment Order is to be imposed, being a period of 3 years and 4 months. This was reduced from 3 years and 10 months for eligible offences incorporated into the Treatment Order, taking into account of time in custody prior to the original sentence.
28․During the term of the Treatment Order, Mr Allred has spent varying periods in custody, which will be taken into account in determining the commencement date of the sentence to be served: ss 63, 80W(4), 80W(5), 80ZE(3) of the Sentencing Act.
29․For clarity, these periods total 266 days, reflecting periods in custody of:
(a)16 January 2023 to 7 July 2023: pre-sentence custody prior to original sentence imposition (182 days);
(b)4 August 2023 to 18 August 2023: provisional suspension (14 days);
(c)19 January 2024 to 28 January 2024: provisional suspension (10 days);
(d)15 March 2024 to 19 March 2024: provisional suspension (5 days);
(e)4 June 2024 to 17 June 2024: provisional suspension (13 days); and
(f)18 June 2024 to 30 July 2024: remanded in custody following cancellation
(42 days).
Nonparole period
30․The Court is to then determine whether any further order is appropriate pursuant to s 80ZE(3) of the Sentencing Act. This section contemplates, essentially, a determination as to whether, and for what period, a nonparole period is to be set: DPP v Stewart
(No 2) [2024] ACTSC 163 at [35].31․Having considered Mr Allred’s subjective circumstances (see Allred at [67]-[87]) and the periods when there was engagement and progress towards rehabilitation during the Treatment Order, I am satisfied that it is appropriate that there be a nonparole period. This decision, and the period of nonparole to be imposed, also contemplates the minimum period of imprisonment that justice requires to be served: R v Ruwhiu [2023] ACTCA 18 at [20] (Ruwhiu).
32․As observed in Allred at [123], Mr Allred has shown in the past that he can be abstinent and that he can achieve periods without reoffending. He has shown this again during the Treatment Order, albeit for a relatively short period.
33․These prospects are such that it is appropriate that there be a lengthy period of community supervision, which the Sentence Administration Board may consider be utilised in part with a rehabilitation program that addresses both substance abuse and underlying traumas.
34․It is also appropriate that the setting of the nonparole period gives some recognition to the time spent in residential rehabilitation, which is typically regarded as quasi-custody, and which, in circumstances of imposition, is not able to be reflected pursuant to s 63 of the Sentencing Act. Here, that is a period of 70 days, from 13 to 15 March 2024, and from 25 March to 31 May 2024.
35․I am satisfied that it is appropriate to take this into account, having regard to the principles relating to the imposition of a nonparole period as provided in Ruwhiu, and that
s 80ZE(3)(b) of the Sentencing Act contemplates a discretion to reduce an imposed sentence by any period served in custody, taking into account the extent to which the offender complied. Here, where there were some periods of satisfactory compliance with residential rehabilitation, it is appropriate to set the nonparole period at a date that has regard to this aspect of compliance and quasi-custody. Accordingly, the nonparole period imposed will be 55 per cent of the total term of the imprisonment, being two years, one month, and 10 days.36․Despite the Court having little trust in Mr Allred’s current promises, there is reason for guarded optimism that, after a further period in custody, Mr Allred will finally commit to the promises he makes to himself, his aunt, and the community.
Orders
37․For those reasons the following orders are made:
(1)The cancellation of the Drug and Alcohol Treatment Order be confirmed.
(2)Under s 80ZE(2) of the Crimes (Sentencing) Act 2005 (ACT), the sentence of imprisonment suspended under the custodial part of the Drug and Alcohol Treatment Order be imposed.
(3)The conviction of Jackson Cory Allred of driving at police (CAN 7995/2022) be confirmed and the sentence of 13 months imprisonment be imposed to commence on 7 November 2023 and end on 6 December 2024.
(4)The conviction of Jackson Cory Allred of dishonestly driving motor vehicle without consent (CAN 750/2023) be confirmed and the sentence of 12 months imprisonment be imposed to commence on 7 December 2024 and end on 6 December 2025.
(5)The conviction of Jackson Cory Allred of driving while disqualified (repeat offender) (CAN 2106/2023) be confirmed and the sentence of 6 months imprisonment be imposed to commence on 7 September 2025 and end on 6 March 2026. It be noted that the automatic driving disqualification period of 24 months imposed in relation to this offence commenced on 17 July 2023.
(6)The conviction of Jackson Cory Allred of aggravated dangerous driving (SC CAN 3/2023) be confirmed and the sentence of 15 months imprisonment be imposed to commence on 7 December 2025 and end on 6 March 2027. It be noted that the automatic driving disqualification period of 12 months imposed in relation to this offence commenced on 17 July 2023 and has concluded on 17 July 2024.
(7)The conviction of Jackson Cory Allred of driving while disqualified (repeat offender) (CAN 7990/2022) be confirmed and the sentence of 9 months imprisonment be imposed to commence on 7 December 2026 and end on 6 September 2027.
(8)The total sentence imposed be 3 years 10 months imprisonment, commencing from 7 November 2023 and ending on 6 September 2027.
(9)A nonparole period be imposed to commence from 7 November 2023 and end on 16 December 2025.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: M McPherson Date: |
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