Director of Public Prosecutions v Eichmann (No 2)
[2024] ACTSC 260
•19 August 2024, 20 August 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Eichmann (No 2) |
Citation: | [2024] ACTSC 260 |
Hearing Date: | 13 August 2024 |
Decision Date: | 19 August 2024, 20 August 2024 |
Before: | Christensen AJ |
Decision: | (1) The application for cancellation under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) be refused. (2) The parties are to be heard as to submissions on the application of s 80ZH of the Crimes (Sentencing) Act 2005 (ACT), including whether it be appropriate to add a condition in the Drug and Alcohol Treatment Order requiring Kiran James Eichmann to engage in restorative justice in respect to the aggravated robbery and obtain property by deception offences. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – review of the Drug and Alcohol Treatment Order – cancellation – breach by exiting from residential rehabilitation facility – submit to jurisdiction while s 80ZJ warrant outstanding – demonstration of commitment and willingness towards rehabilitation – prosocial support for rehabilitation – lack of further offending while warrant outstanding – objects of the Treatment Order – cancellation application refused and Treatment Order continued |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 80ZE, 80ZH |
Cases Cited: | DPP v Eichmann, unpublished, Supreme Court of the Australian Capital Territory, Refshauge AJ, SCC 338, 339 of 2022, 21 November 2023 |
Parties: | Director of Public Prosecutions ( Crown) Kiran James Eichmann ( Offender) |
Representation: | Counsel G Meikle ( DPP) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 338 of 2022 SCC 339 of 2022 |
CHRISTENSEN AJ:
Introduction
1․This matter comes before the Court during a review process under s 80ZH of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). By way of application on 13 August 2024, the prosecution applies for cancellation of Mr Eichmann’s Drug and Alcohol Treatment Order (Treatment Order): ss 80ZE(1)(b)-(d), (f) of the Sentencing Act.
Background
2․On 21 November 2023, Mr Eichmann was sentenced for offences of –
(a)aggravated robbery;
(b)dishonestly driving a motor vehicle without consent;
(c)failing to stop in accordance with a police direction;
(d)driving whilst disqualified as a repeat offender;
(e)driving with a drug in his oral fluid;
(f)obtaining property by deception; and
(g)possessing an offensive weapon with intent to use it.
3․The aggregate sentence imposed was 3 years and 11 months imprisonment. The custodial portion of the Treatment Order was suspended for that period, and the treatment and supervision part of the order was for one year. A good behaviour order was ordered to commence at the conclusion of the treatment and supervision period, on 21 November 2024, until the end of the sentence on 20 October 2027: see DPP v Eichmann, unpublished, Supreme Court of the Australian Capital Territory, Refshauge AJ, SCC 338, 339 of 2022, 21 November 2023.
4․The offending occurred in May and July of 2022. At that time, Mr Eichmann was dependent on heroin and methamphetamine.
5․As at the time of sentence for these matters in the Supreme Court, Mr Eichmann had spent a total of 61 days in pre-sentence custody for the sentence offences. He had been in custody from the date of the later in time offending since 11 July 2022, serving a sentence for other offences committed in June 2022.
Compliance with Treatment Order
6․The court records show that Mr Eichmann initially engaged well with the Canberra Recovery Service residential program. However, this was not maintained, with Mr Eichmann exiting the program after illicit substance use and a positive result from urinalysis. At the time of exiting, Mr Eichmann had been with the rehabilitation program for a period of some five weeks.
7․Thereafter, Mr Eichmann did not return to the court as directed. A warrant was issued for his arrest on 3 January 2024. On 2 August 2024, Mr Eichmann attended at court, handing himself in after some eight months of absconding.
Application
8․The prosecution application for cancellation is primarily reliant on a submission that Mr Eichmann is unwilling or unlikely to comply with a condition of the offender’s Treatment Order, that continuation of the order is not likely to achieve the objects of the order, and that Mr Eichmann poses an unacceptable risk to the safety or welfare of the community. Further, the prosecution submits that Mr Eichmann’s circumstances have materially changed such that he will not be able to comply with the order.
9․Mr Eichmann gave evidence for the purposes of the review. He explained the circumstances of his departure from residential rehabilitation, and that after some time, he reconnected with his family in Queensland. He became abstinent from drugs and has the support of his family and a new partner. His partner has children and, wanting to ensure Mr Eichmann will be a good role model for them in the longer term, she supported him to return to the Australian Capital Territory (ACT) to address his outstanding court matters. He disclosed that he did use illicit substances upon his return to the ACT, in the context of his concern of what would occur once he surrendered to the court.
10․Mr Eichmann expressed that being in custody is not assisting him to continue his rehabilitation, and that he has “had enough” of his previous life and wants to be the person that his family and partner believe him to be. He is currently engaging in the Solaris program while in custody,
11․He is concerned by the time he will need to spend away from his family supports, but has an intention to maintain close contact with them during the time he will be required to remain in the ACT. He said that he has “got more to lose now than ever”.
12․What Mr Eichmann has to lose is explained in letters tendered on his behalf from his parents and his partner. His parents speak of the “mental motivation” they have observed in their son for him to “realise that he is worthy of having the life we as his parents have wanted so desperately for him and that he genuinely deserves”. His partner speaks of Mr Eichmann’s “unwavering commitment to living a clean and sober life” and his intention to secure employment and contribute positively to society.
13․In addition, on behalf of Mr Eichmann, information was placed before the Court that the Canberra Recovery Service are willing and able to offer him a place with their residential rehabilitation program. It was submitted on behalf of Mr Eichmann that he demonstrates a commitment to rehabilitation, and he is motivated to return to his prosocial life once he completes a Treatment Order.
14․The prosecution cautioned as to the real extent that there was a commitment to engage with a rehabilitation program, in circumstances where Mr Eichmann had previously “absconded spectacularly”, and there was an admitted use upon his return to Canberra. Further, it was submitted that there is plainly a motivation to avoid a lengthy period in custody. It is apparent from the sentence decision that Mr Eichmann had, before the Treatment Order, opportunities to engage with rehabilitation programs that he did not embrace. It was submitted that continuation on a Treatment Order should not be viewed as the best option now available for Mr Eichmann.
Consideration
15․The decision whether to cancel Mr Eichmann’s Treatment Order is a finely balanced one. There are factors that weigh in favour of an opportunity to continue on the order – there has been no reoffending, there has been progress with abstinence, and Mr Eichmann has a renewed intention and a strong motivation to comply with the Treatment Order.
16․But there are factors that weigh against an opportunity for continuing on the order. Mr Eichmann committed a serious breach of the order, he initially did little to address the consequences of this breach, and his action in using substances shortly before he handed himself in gives pause as to the extent of his motivation to remain abstinent.
17․Further, there must also be a level of concern given his housing situation in the ACT, and his intention to eventually return to Queensland. As to the last of this, it is relevant that Mr Eichmann, of his own accord, travelled to the ACT and submitted to the Court’s jurisdiction. This is strongly in his favour when considering, as he himself described, that the prospect was “daunting”, with “four years hanging over [his] head”.
18․While the period of non-compliance with the Treatment Order has relevance in the decision to be made, it seems to me that the Court’s focus at this stage should be on the circumstances as they now arise. That is, with reference to the legislated considerations in s 80ZE(1) of the Sentencing Act, being the section pursuant to which the cancellation application was brought and is to be considered. Section 80ZE(1) provides –
80ZE Cancellation of treatment order—unsatisfactory circumstances
(1) The court may cancel a treatment order if it is satisfied on the balance of probabilities that—
(a)before the order was made, inaccurate or misleading information about the offender or the offender’s circumstances was given to the court or an assessor who prepared a drug and alcohol treatment assessment in relation to the offender, and as a result of the information, the making of the order was inappropriate; or
(b)the offender will not be able to comply with a condition of the offender’s treatment order because the circumstances of the offender have materially changed since the order was made; or
(c)the offender is unwilling or unlikely to comply with a condition of the offender’s treatment order; or
(d)the continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order; or
(e)the offender withdraws the offender’s consent to the treatment order; or
(f)the offender poses an unacceptable risk to the safety or welfare of a person.
19․What the Court has before it is a participant who is willing to engage with the onerous requirements of a Treatment Order, with the full understanding of what that involves, and who is strongly motivated to finally address his substance abuse.
20․The original intent in the making of the Treatment Order at sentence remains, as does achieving the legislative intent for the availability of such an order: DPP v Baudinette [2024] ACTSC 157 at [68].
21․Having regard to the information before the Court, including the evidence of Mr Eichmann, I am not satisfied on the balance of probabilities that a basis for cancellation is established pursuant to ss 80ZE(1)(b), (c), or (d).
22․Further, I do not find there to be any greater risk to the safety or welfare of the community at this time, beyond what was considered at the time of the original sentence and the decision to impose a Treatment Order. If anything, the lack of re-offending and the demonstrated ability to be abstinent gives the Court more comfort in this regard than was available at the time of the original sentence. I am not satisfied on the balance of probabilities that Mr Eichmann poses an unacceptable risk to the safety or welfare of the community: s 80ZE(1)(f) of the Sentencing Act.
Orders
23․For those reasons the following orders are made:
(1)The application for cancellation under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) be refused.
(2)The parties are to be heard as to submissions on the application of s 80ZH of the Crimes (Sentencing) Act 2005 (ACT), including whether it be appropriate to add a condition in the Drug and Alcohol Treatment Order requiring Kiran James Eichmann to engage in restorative justice in respect to the aggravated robbery and obtain property by deception offences.
[Her Honour then spoke directly to the participant]
Mr Eichmann, as you have probably picked up, you will be able to enter CRS from 10am tomorrow. I am going to continue the suspension of your Treatment Order until 9am tomorrow and we will come back, and then I will make the order that amends the Treatment Order and you will be released.
I hope you take the opportunity tonight to think about it being your last night ever in custody because that is the intention with this order. We will see you at 9am tomorrow.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen Associate: Date: |
1
1