Director of Public Prosecutions v D'Elboux

[2024] ACTSC 122

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v D’Elboux

Citation: 

[2024] ACTSC 122

Hearing Date: 

16 April 2024

Decision Date: 

16 April 2024

Before:

Christensen AJ

Decision: 

(1)    It be noted that Shane Dion D’Elboux has been found not eligible to progress to a drug and alcohol treatment assessment.

(2)    The Court declines to make a Drug and Alcohol Treatment Order in this matter.

(3) The matter be remitted to the Magistrates Court pursuant to s 80U of the Crimes (Sentencing) Act2005 (ACT).

(4)     The matter be listed for mention on the Family Violence List in the Magistrates Court on 19 April 2024 at 9:30am.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Drug and Alcohol Treatment Order – where the offender assessed as not eligible to progress to a drug and alcohol treatment assessment – s 80U – declines to make –
s 80U remittal

Legislation Cited: 

The Supreme Court of the Australian Capital Territory, Notice to Practitioners: Drug and Alcohol Sentencing List, 19 December 2019

Crimes (Sentencing) Act 2005 (ACT) ss 46J, 80T, 80S, 80U

Cases Cited: 

DPP v Ryan [2024] ACTSC 75

Parties: 

Director of Public Prosecutions ( Crown)

Shane D’Elboux ( Offender)

Representation: 

Counsel

G Meikle ( DPP)

S Hamon ( Offender)

Solicitors

ACT Director of Public Prosecutions

Aulich ( Offender)

File Number:

SCC 65 of 2024

CHRISTENSEN AJ:

EX TEMPORE REASONS (REVISED)

1. The offender, Shane D’Elboux, pleaded guilty to offences of aggravated common assault (Family Violence) and contravention of a family violence order. He was committed to the Supreme Court in the Drug and Alcohol Sentencing List (DASL) for the purposes of a threshold eligibility screening process (threshold eligibility): see the Supreme Court of the Australian Capital Territory, Notice to Practitioners: Drug and Alcohol Sentencing List, 19 December 2019.

2. Threshold eligibility is initially an administrative process to assess whether an offender is recommended to proceed to assessment pursuant to s 46J of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act): see also, e.g., DPP v Ryan [2024] ACTSC 75 at [7] (Ryan).

3. The threshold eligibility report for the offender found that he had a moderate substance misuse disorder and that therefore he did not fit the criteria for progression to a drug and alcohol treatment assessment.

1. The offender applies pursuant to s 80U of the Sentencing Act to remit the proceeding to the Magistrates Court. Section 80U provides:

   80UCourt may remit proceeding

   (1)This section applies if –

   (a)the court declines to make a treatment order for particular offender; and

   (b)the offence for which the offender is to be sentenced could have been dealt with summarily by the Magistrates Court; and

   (c)the offender was committed to the court only because the offender refused consent to the offence being dealt with summarily by the Magistrates Court.

   (2)The offender or the director of public prosecutions may apply to the court for an order to remit the proceeding for the offence to the Magistrates Court.

   (3)The court must make the order if it is satisfied that the offender refused consent to the offence being dealt with summarily for the purpose of seeking assessment for a treatment order.

   (4)The court may otherwise make the order if it is satisfied the order is in the interests of justice.

   (5)If the court makes an order under this section, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to –

   (a)the offender; and

   (b)any other person who the court considers should receive the notice.

   (6)Failure to comply with subsection (5) does not invalidate the order.

2. This proceeding is at a stage that is earlier than the circumstance that arose in Ryan. There, the resolution of this similar, but distinct, issue required engagement with s 80T of the Sentencing Act given the stage at which that proceeding had reached. It was concluded in Ryan that a finding of unsuitability pursuant to s 80T, and a decision declining to make a treatment order in those circumstances, were such that s 80U was enlivened.

3. Here, the issue is whether the court declines to make a treatment order with reference to s 80U(1)(a) such that the power to remit is enlivened. There are any number of circumstances that might lead to a decision by the court at an early stage of the proceeding to decline to make a treatment order for a particular offender. Those circumstances do not necessarily involve a progression to consideration of eligibility under s 80S or suitability under s 80T of the Sentencing Act.

4. In this matter, the relevant circumstance was the finding that the matter not progress beyond threshold eligibility. Neither party submitted against a conclusion that it was appropriate for the court to decline to make a treatment order in such circumstances.

5. Section 80U of the Sentencing Act is then enlivened. The criteria in s 80U(1)(a)-(c) have been met in this matter. This includes that, helpfully, the Magistrates Court bench sheet reflects that the offender withdrew consent to jurisdiction in the Magistrates Court only because of a refusal to consent in circumstances where it was sought to have an assessment for a drug and alcohol treatment order.

6. In those circumstances, s 80U(3) applies and it is mandatory that the Court makes the order having been satisfied that the offender refused consent to the offence being dealt with summarily for the purpose of seeking the assessment for a treatment order.

Orders

1. For those reasons, the following orders are made:

   (1)It be noted that Shane Dion D’Elboux has been found not eligible to progress to a drug and alcohol treatment assessment.

   (2)The Court declines to make a drug and alcohol treatment Order in this matter.

   (3)The matter be remitted under s 80U of the Crimes (Sentencing) Act2005 (ACT) to the Magistrates Court.

   (4)The matter be listed for mention on the Family Violence List in the Magistrates Court on Friday 19 April 2024 at 9:30am

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen

Associate: J Liu

Date: 27 June 2024