Director of Public Prosecutions v Mapiou
[2024] ACTSC 7
•2 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Mapiou |
Citation: | [2024] ACTSC 7 |
Hearing Date: | 17 May 2023 |
Decision Date: | 2 February 2024 |
Before: | Refshauge AJ |
Decision: | 1. That the application be allowed. 2. That Drug and Alcohol Treatment Assessments be directed to be prepared for Mon Gabriel Mapiou and submitted to the Court and the parties. 3. That a date for the sentence of Mon Gabriel Mapiou be set and directions given for preparation of the matter for sentence. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – Drug and Alcohol Treatment Assessment – Eligibility Assessment – assessments for Drug and Alcohol Treatment Order – substance use disorder – dishonesty during assessments – Suitability Assessments ordered |
Legislation Cited: | Criminal Code 1992 (ACT), s 310 Crimes (Sentencing) Act 2005 (ACT), ss 12A, 46J, 80S Supreme Court of the Australian Capital Territory, Notice to Practitioners: Drug and Alcohol Sentencing List, 19 December 2019 |
Cases Cited: | DPP v D’Jerke [2023] ACTSC 313 DPP v Rand [2023] ACTSC 408 Fleury v DPP [2023] ACTCA 46 R v Antonovic (No 3) [2021] ACTSC 338 R v Bower (No 2) [2022] ACTSC 388 R v Chandler [1999] NSWDRGC 6 R v Hoang [2015] ACTSC 138 R v Kelly [2021] ACTSC 143; 16 ACTLR 81 R v McHughes (No 3) [2021 ACTSC 344 R v McHughes [2021] ACTSC 92 R v Smith [2022] ACTSC 288 R v Tonna (No 2) [2020] ACTSC 362 R v Watson [2021] ACTSC 339 R v Watson [2022] ACTSC 95 |
Texts Cited: | American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5(R)) (5th ed, 2013) D K Knight et al, ‘TCU Drug Screen 5: Identifying Justice-Involved Individuals with Substance Use Disorders’ (2018) 57(8) Journal of Offender Rehabilitation 525 Deborah S Hasin et al, ‘DSM-5 Criteria for Substance Use Disorders: Recommendations and Rationale’ (2013) 170(8) American Journal of Psychiatry 834 M B Horowitz and D Taylor, “Addiction and Physical Dependence are not the same thing” (2023) 10(8) The Lancet Psychiatry 23 Magistrate Anne Thacker, ‘Implementing Drug Court Jurisprudence into “Mainstream” Drug Treatment Orders’ (Conference Paper, Tasmanian Magistrates Conference, Hobart, 20 June 2008); [2008] Queensland Judicial Scholarship 69 National Association of Drug Court Professionals (Alexander, Virginia, USA), Adult Drug Court Best Practice Standards (1st ed, 2013, rev ed 2018) National Association of Drug Court Professionals (Alexander, Virginia, USA) Adult Treatment Court Best Practice Standards (2nd ed, 2023) |
Parties: | Director of Public Prosecutions ( Crown) Mum Gabriel Mapiou ( Offender) |
Representation: | Counsel C Muthurajah ( DPP) P Edmonds ( Offender) |
| Solicitors ACT Director of Public Prosecutions Paw Edmonds & Assoc. ( Offender) | |
File Number: | SCC 345 of 2022 |
REFSHAUGE AJ:
Introduction
1․Mun Gabriel Mapiou has pleaded guilty to one count of aggravated robbery contrary to s 310 of the Criminal Code 1992 (ACT). He has sought that any sentence of imprisonment imposed for the offence be served by a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
2․As a result, he was assessed for eligibility to progress to the first stage of the process required for consideration of whether, after sentence, a Treatment Order should be made, namely the preparation of Drug and Alcohol Assessments (Suitability Assessments) under s 46J of the Sentencing Act. This process has been described in R v McHughes [2021] ACTSC 92 at [6]-[7].
3․That initial assessment for eligibility, called Eligibility Assessments, are prepared by Forensic Mental Health of Justice Health Services and by the Alcohol and Drug Services, both of Canberra Health Services, after a relatively short consultation with the offender.
4․In this case, Forensic Mental Health found that there was no evidence of such mental health issues that would render Mr Mapiou ineligible to proceed to be subject to preparation of a Suitability Assessment and recommended it be prepared. On the other hand, Alcohol and Drug Services found no evidence of a substance use disorder and so found that he did not meet the criteria to justify him progressing to being the subject of the preparation of a Suitability Assessment.
5․As noted in R v McHughes at [6], the Eligibility Assessments are prepared under a procedure in this Court’s Drug and Alcohol Sentencing List (List) established not under legislation, but under a Notice to Practitioners issued by the Registrar dated 19 December 2019: see the Supreme Court of the Australian Capital Territory, Notice to Practitioners: Drug and Alcohol Sentencing List, 19 December 2019. The List administers the assessment for, and managing the administration of, the Treatment Orders. The Eligibility Assessments are not binding on the Court: R v McHughes at [16].
6․Mr P Edmonds, counsel for Mr Mapiou, has requested that, notwithstanding the finding and recommendation of Alcohol and Drug Services, the Court proceed to order preparation of Suitability Assessments. Ms C Mutharajah, counsel for the prosecution, opposed that course.
Background
7․Treatment Orders, as managed in the List, are sentencing alternatives based on the model of a Drug Court or an Alcohol and Drug Court, which dates back to the establishment of what is generally regarded as the first such Court in Dade County, Florida, USA, in 1989: see R v Antonovic (No 3) [2021] ACTSC 338 at [2]-[5].
8․In general terms, the Treatment Order is a sentencing alternative to full-time imprisonment for an offender to whose offending a dependency on drugs and alcohol has substantially contributed. It consists of an intensive therapeutic program, such as residential drug rehabilitation or rigorous and comprehensive counselling, strict case management, monitoring with urinalysis and judicial supervision. All of this is designed to address the primary criminogenic risk of the offender, namely his or her drug dependence. Accordingly, it is a resource intense program and, clearly, should be available for those most likely to be able to benefit from it and, where appropriate, not for those who are unlikely to do so.
9․The statutory criteria for eligibility for a Treatment order are set out in ss 12A and 80S of the Sentencing Act. which are in the following terms:
12A Drug and alcohol treatment orders
(1)This section applies if—
(a)an offender pleads guilty to an eligible offence; and
Note A reference to an offender in this section does not include a young offender (see s 8 (1) (b)).
(b)the Supreme Court convicts the offender of the eligible offence and sentences the offender to a term of imprisonment for—
(i) if the offender is convicted of 1 eligible offence only—at least 1 year but not more than 4 years; or
(ii) if the offender is convicted of more than 1 eligible offence—a total period of at least 1 year but not more than 4 years; and
(c) the offender is not subject to a sentencing order for another offence.
(2) The court may make an order (a drug and alcohol treatment order) that suspends a sentence of imprisonment for an eligible offence on condition that the offender agrees to complete a treatment program, but only if—
(a)the court is satisfied on the balance of probabilities that—
(i) the offender is dependent on alcohol or a controlled drug; and
(ii) the offender’s dependency substantially contributed to the commission of the offence; and
(iii) the offender will live in the ACT for the term of the sentence except as directed by the court; and
(b) the court considers the order appropriate, taking into account—
(i) the relevant sentencing considerations applying to the offender; and
(ii) any information given to the court relating to the concerns of a victim about the victim’s safety or welfare; and
(iii) the matters set out under section 80O; and
Note Section 80O sets out the object of a drug and alcohol treatment order.
(c)the offender gives informed consent to the order being made after the offender is given—
(i) a clear explanation of the treatment order that contains sufficient information to enable the offender to make a balanced judgement about whether or not to consent to serve the sentence under the order; and
(ii) an opportunity to ask any questions about the order, and those questions have been answered and the offender appears to have understood the answers.
(3)A drug and alcohol treatment order, in suspending a sentence of imprisonment, must—
(a)if the sentence is taken to have started on a day before the day the sentence is imposed—suspend the remaining part of the sentence beginning on the day the sentence is imposed; or
(b) in any other case—fully suspend the sentence.
(4)To remove any doubt––
(a)the offender must not be subject to more than 1 treatment order at any particular time; and
(b)a treatment order may apply to more than 1 eligible offence dealt with in the same sentencing proceeding; and
(c)sentences for multiple offences may be served concurrently or consecutively (or partly concurrently and partly consecutively), subject to subsection (1) (b).
Note Words in the singular number include the plural (see Legislation Act, s 145 (b)).
(5)The court must not impose a lesser sentence of imprisonment on the offender than the circumstances of the offence would ordinarily require only to allow the court to make a treatment order.
(6)If the court makes a treatment order, 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 the offender.
(7)Failure to comply with subsection (6) does not invalidate the treatment order.
(8)This section is subject to part 5.4A (Drug and alcohol treatment orders).
Note A treatment order may not be made in relation to an offender who is under 18 years old (see s 46I).
(9)In this section:
eligible offence means an offence that is not—
(a) a serious violence offence; or
(b) a sexual offence.
sentencing order means any of the following:
(a) an order for imprisonment by full-time detention;
(b) a suspended sentence order;
(c) an intensive correction order;
(d) a deferred sentence order;
(e) a parole order;
(f) an order under a law in force in Australia that corresponds to an order mentioned in paragraphs (a) to (e).
serious violence offence means an offence against any of the following provisions of the Crimes Act 1900:
(a) section 12 (Murder);
(b) section 15 (Manslaughter);
(c) section 19 (Intentionally inflicting grievous bodily harm);
(d) section 20 (Recklessly inflicting grievous bodily harm).
sexual offence means an offence against the Crimes Act 1900, part 3.
treatment program—see section 80Z (1) (a).
80S Drug and alcohol treatment orders—eligibility
The court must not make a treatment order for an offender unless satisfied that—
(a)a treatment order is suitable for the offender under section 80T; and
(b)it is appropriate for the offender to serve a sentence suspended in accordance with a treatment order; and
(c)appropriate arrangements for the administration of a treatment order are practicable.
Note A treatment order may not be made for a young offender (see s 8 and s 12A).
10․Thus, these sections of the Sentencing Act require the following, without which a Treatment Order cannot be made:
(a)the offender must plead guilty to an offence or offences;
(b)the offence or offences must be eligible offences;
(c)the Court must convict the offender of the offence or offences;
(d)the sentence for at least one of the offences must be of at least twelve months imprisonment;
(e)the sentence in total must be no longer than of four years imprisonment;
(f)the offender must not be, at the time, subject to another sentencing order within the meaning of s 12A of the Sentencing for another offence or other offences Act (as to which, see R v Kelly [2021] ACTSC 143; 16 ACTLR 81);
(g)the offender must, on the balance of probabilities, be dependent on drugs or alcohol;
(h)the offender’s dependency must, on the balance of probabilities, have substantially contributed to the offending;
(i)the offender must, on the balance of probabilities, be going to live in the ACT for the term of the sentence, subject to any contrary direction of the Court;
(j)the Court must consider that the making of a Treatment Order is appropriate;
(k)the offender must give informed consent to the making of a Treatment Order to which he or she will be subject;
(l)the Court must consider that a treatment Order is suitable for the offence or offences;
(m)the Court must consider that it is appropriate that the sentence or sentences of imprisonment be suspended subject to a Treatment Order; and
(n)there are appropriate arrangements for the administration of the Treatment Order.
11․Aggravated robbery is an eligible offence and Mr Mapiou has pleaded guilty to committing that offence. He is not subject to any other sentencing orders so far as the Court is aware.
12․Many of the other of these matters then are addressed directly or indirectly in the Suitability Assessments which the Court is required to consider before making a Treatment Order: see s 80T(1)(b) of the Sentencing Act. Hence the importance of the Suitability Assessments.
13․As noted above (at [4]), Mr Mapiou was assessed as unsuitable by Alcohol and Drug Services to proceed to the Suitability Assessment process. It was reported that, while he had used 1 g of cocaine at the time of the offending, he reported “only occasional use in a social setting” and denied that “substance is problematic”. Based on these answers, he was assessed as not having a substance use disorder. It was reported that he said that “his substance use did not concern him and had not impacted another [sic] areas of his life”. He clearly did not meet the criteria of having a dependency on drugs.
14․Mr Edmonds submitted that Mr Mapiou had lied to the assessor and that he did, in fact, have a dependence on cocaine and that it did affect his life. He sought that, despite the finding, Suitability Assessments be prepared. Accordingly, a hearing had to be convened to address that issue.
Evidence
15․Mr Mapiou gave evidence. He said that he was working in the construction industry and had been doing so for about eight years. He admitted that his answers to the questions asked of him by the assessor from Alcohol and Drugs Service “weren’t fully true”. He said that he used cocaine “[p]robably weekly … mainly from Friday on, just the weekend … Friday, Saturday”. On Sunday, he would “get himself clean” and would be “ready for work Monday”. He would use an “eight ball”, namely about 3.5 grams, each weekend. He said that he would spend between $300 and $600 per week on cocaine, but could spend up to $1200 for “a big weekend”. He had a regular supplier, for whom, he said, he had committed the aggravated robbery.
16․It appears that he had begun using cocaine regularly from about mid-2022 and his usage increased over time. He had started using on social occasions. His mother, with whom he had been living, returned to Sudan. This led to him using more cocaine, becoming weekly. One of his two younger brothers, with whom he had been living, was at the time in custody in the Alexander Maconochie Centre, on remand on a charge of murder. His arrest had a lot of impact on him, including on his use of cocaine. He said that it was “[o]ne of the main reasons I use”. His usage also increased as result.
17․His use of cocaine had also affected his relationship with his girlfriend, though he tried to keep his use from her as she did not approve of his use, saying, “She hates it”. He lies to her about how much he uses and the frequency of his use. His use had also started to impact on his work. He was, for a time, using mid-week and so he was not performing his work properly. His then employer terminated his employment.
18․He admitted that he had lied to the assessor preparing an Eligibility Assessment, especially about how much cocaine he was using and how often he was using it. He told her that it was just recreational use and not that he was using it every week.
19․He said that he did want to stop using cocaine. He had tried to do so before but “things happened” and he could not cease using. He also said that he understood that, if a Treatment Order were made for him to serve any term of imprisonment, he would have to be completely honest.
20․He said in cross-examination that he had some difficulty in paying bills, but not much because he and his younger brother living with him shared them. He said that, despite earning between $1200 and $1300 each week, he was able to pay for the cocaine he used. He said that he and his brother paid the $215 per week rent.
21․He also acknowledged that his use of cocaine escalated, when one of his younger brothers was arrested, but, while he had been able to moderate it again, his usage was “still bad”, though some of it was “better”.
22․Since he was terminated from his employment, he had obtained a new job and said that he had not been given any warnings about his performance from his employer. His current employer seemed “pretty happy” with him. He did say that, while he did return to work each Monday after each weekend, he was not necessarily “fine”. He would use cocaine each Friday and Saturday, usually with friends, but would use cocaine alone if he did not go out over the weekend. While he did accept that if he could not find any cocaine, he would drink alcohol, he did say that he would look for cocaine.
23․He described his use as for fun, but said that it did help him to escape the hurt that he feels and, after having a good time, he returns home feeling terrible.
24․He said that he still plays Rugby, training on Tuesdays and Thursdays and playing on Saturdays. He has, however, missed some games because he could not play. This happened on two or three occasions in the last six months. His girlfriend had also noticed that his use had become worse.
25․He denied that he would not use cocaine if he stayed at home at the weekend and had not gone out partying, saying that he did then use it. He also denied that, when he bought cocaine, he would only use what he wanted and leave the rest, saying “[o]nce you start there’s ’no stopping’”, describing it as “addictive”. He denied that he generally used cocaine to have fun with his friends and that he knew when to stop. He said that he rarely had any cocaine left over at the end of the weekend. He felt really bad at the end of the weekend, “[c]urled up in bed, nose running all the time … very, very tired”.
26․He accepted that he had a stable job but said that there were patches when it was not so. He also accepted that he had been able to provide a home for himself and one of his younger brothers. He said, it must be acknowledged and which was not challenged, that his younger brother living with him was also employed, in the security sector.
27․He said that his use of cocaine hurt his family and his girlfriend, seeing him use it as he does and seeing that his use was increasing. He denied that he could stop using it at any time. He accepted that he did not want to go to gaol, but denied that this was the reason for seeking a Treatment Order, rather that he wanted the Order to stop his use of cocaine.
28․He said, also, that his cocaine use had limited his ability to save funds for the access to a house for him and his girlfriend, who was currently living with her family. He said that he was spending that money on the cocaine he was using.
29․Ms Alexandra Durrant, Manager of the Alcohol and Drug Services, attached to the Court’s List, also gave evidence. She was an accredited social worker and had a Master’s degree in Addictive Behaviour. She had a long history in the drug and alcohol sector, with significant work in co-morbidity and dual diagnosis.
30․She described the target population for a Treatment Order as follows:
[…] we based our model on the Queensland Drug Court, and the Best Practice Guide that’s come out from the US, states that for participants it is best to use resources for high risk, high needs. […] So high needs would be looking at the substance use disorder, so from our point of view we’re looking at someone who ticks the relevant criteria and comes up with a severe substance use disorder.
31․Thus, the screening is focussed on high needs, high risk offenders because the interventions are so intensive that the populations should match the treatment.
32․She referred to the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, Fifth Edition, known as “DSM 5”, being the recognised manual for the diagnosis of mental health disorders. It has used the terminology of “substance use disorders” rather than the previous usage of “dependency” and, before that, of “addiction”. Thus, for the Treatment Order, her team associated with the List focus on a substance or alcohol use disorder.
33․Found in the DSM 5 at p 561 is a list of 11 symptoms for the Stimulant Use Disorder, which relates to cocaine use. For uses of cocaine, inter alia, the assessment of that disorder will be for the purposes of a Treatment Order, the substance use disorder referred to by Ms Durrant. The presence of two or three will disclose a mild substance use disorder, the presence of between three and five, a moderate substance use disorder and six or more a severe substance use disorder.
34․The criteria are as follows:
A pattern amphetamine-type substance, cocaine, or other stimulant use leading tot clinically significant impairment or distress, as manifested icy at least two of the following, occurring within a 12 month period:
1. The stimulant is often taken in larger amounts over a longer period than was intended.
2. There is a persistent desire or unsuccessful efforts to cut down or control stimulant use.
3. A great deal of time is spent in activities necessary to obtain the stimulant, use the stimulant, or recover from its effects.
4. Craving, or a strong desire or urge to use the stimulant.
5. Recurrent stimulant use resulting in a failure to fulfil major role obligations at work, school or home.
6. Continued stimulant use despite having persistent or recurrent social or inter-personal problems caused or exacerbated by the effects of the stimulant.
7. Important social, occupational, or recreational activities are give up or reduced because of the stimulant use.
8. Recurrent stimulant use in situations in which it is physically hazardous.
9. Stimulant use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the stimulant.
10. Tolerance, as defined by either of the following:
a. A need for markedly increased amounts of the stimulant to achieve intoxication or desired effect.
b. A markedly diminished effect with continued use of the same amount of the stimulant.
[Note omitted].
11. Withdrawal, as manifested by either of the following:
a. The characteristic withdrawal syndrome for the stimulant …
b. The stimulant (or a closely related substance) is taken to relieve or avoid withdrawal symptoms.
35․The Eligibility Assessment assessor used a validated tool to elicit the information needed for the assessment to determine whether any of these criteria are met and, if so, how many. The tool used is known as TCU 5, a widely used and validated instrument for identifying substance use disorders: see D K Knight et al, ‘TCU Drug Screen 5: Identifying Justice-Involved Individuals with Substance Use Disorders’ (2018) 57(8) Journal of Offender Rehabilitation 525, 525-537. This is the instrument also used in the Queensland Drug Court. It is administered by a Health Professional.
36․The recommendation that an offender is suitable for progressing through the Suitability Assessment process is made when the assessment shows that the offender has a severe substance use disorder.
37․Ms Durrant also referred to the Adult Drug Court Best Practice Standards of the National Association of Drug Court Professionals (Alexander, Virginia, USA) (NADCP Best Practice Standards) as to the targeted population for a Drug Court. She referred to the 1st edition as revised in 2018, but the 2nd edition has been published in 2023. It states:
The treatment court serves high-risk and high-need individuals. These are individuals who (1) are at significant risk for committing a new crime or failing to complete less intensive dispositions like probation, and (2) have a moderate to severe substance use disorder that includes a substantial inability to reduce or control their substance use, persistent substance cravings, withdrawal symptoms, and/or a pattern of recurrent substance use binge episodes (i.e., use often substantially exceeds the person’s intentions or expectations). For treatment courts serving persons who may not have a substance use disorder (e.g., mental health courts, veterans treatment courts), being high need also includes having a serious or persistent mental health disorder or other significant treatment or social service needs, such as traumatic brain injury, insecure housing, or compulsive gambling. If serving only high-risk and high-need persons is not feasible for a treatment court—e.g., because of legal policy constraints—the program develops alternative tracks with modified treatment and supervision services designed for persons with lower risk or need levels. If a treatment court develops alternative tracks, it does not serve If a treatment court develops alternative tracks, it does not serve participants with different risk or need levels in the same counseling [sic] groups, residential programs, recovery housing, or court status hearings.
38․She also indicated that the current Treatment Order does not concentrate on those offenders with a mild or moderate substance use disorder, which groups would not include the “high risk” offenders to which the List was targeted.
39․Thus, she referred to the 2015 edition of the NCADP Best Practice Standards, summarising as follows:
Providing substance use disorder treatment for non-addicted substance users can lead to higher rates of re-offending or substance use, or a greater likelihood of these individuals eventually becoming addicted.
…mixing participants with different risk or need levels together in treatment groups or residential facilities can make outcomes worse for low-risk or low-need participants by exposing them to anti-social peers or interfering with their engagements in productive activities, such as work or school.
40․She further pointed out that the current structure of the Treatment Order has three phases and that the first phase of three months is “very intensive”. In particular, a participant is unable to work, which may be an issue for Mr Mapiou and his obligations for his accommodation and that of one of his younger brothers.
41․She said that, in the screening, the regularity of drug use is screened and the criterion was, “…a pattern of substance use leading to clinically significant impairment or distress”, where, for example, as she put it, “work will fall off, financial stress”. The pattern increases over time.
42․In Mr Mapiou’s case, the screening tool, but based on his false reports, only identified one criterion, thus not even meeting the standard for the mild substance use disorder level.
43․In cross-examination, Ms Durrant accepted that there had been changes to the criteria and approach between the earlier edition of DSM 5, that is DSM 4 (published as long ago as 1994), and the current edition. She was prepared to accept that a person could, under the criteria set out in DSM 4, be found to be drug dependent even though they may not fit into the current criteria in DSM 5. This is relevant in considering R v Chandler [1999] NSWDRGC 6, where Mr Chandler was accepted into the Drug Court program, having met three of the seven listed criteria there (at [31]), namely under DSM 4. That would not now fit within the assessment required under DSM 5. As can also be seen, there are a number of additional criteria in DSM 5 that were not included in DSM 4.
44․In a thorough article, Deborah S Hasin et al, ‘DSM-5 Criteria for Substance Use Disorders: Recommendations and Rationale’ (2013) 170(8) American Journal of Psychiatry 834, 834-51, one of the changes made in DSM 5 was summarised as that it combined “abuse and dependence criteria into a single substance use disorder based on consistent findings from over 200,000 study participants, dropping legal problems and adding craving as a criteria [sic] with other substance use disorder”.
45․Ms Durrant acknowledged that the administration of the screening tool was “tricky if people aren’t truthful in the screening tool”.
46․She accepted that the standard amount of use of cocaine was “a line” which was a tenth of a gram, though Mr Mapiou used much more than that over the weekend. She was also taken to what could be determined from Mr Mapiou’s evidence as it might be relevant to the screening tool. Thus, she accepted that, if he had said in answer to a question from the assessor administering the screening tool that he “strongly desires to use cocaine every week, if much of their working week is focused on getting through to the end of the week to have cocaine on Friday and Saturday night, for example”, and was asked, “would you accept that this meets the diagnostic criterion for craving?”, answering, “If Mr Mapiou had answered yes to the questions we would have marked it on the TCU 5”.
47․Similarly, she said that this would apply to where he said that “his cocaine usage was at times affecting his relationship with his partner” and “that he had previously tried to stop his cocaine usage but had been unsuccessful”.
48․She did add, of course, that these were just three criteria and, for a recommendation from the assessor, there would still have to be six criteria met for a recommendation to be made. She did add, however, that “ours are just recommendations. At the end of the day, it’s up to the court what they would like to proceed”. Thus, if there were sufficient resources, then a person with a moderate substance use disorder could be admitted as long as there was an alternative track for them to follow. Indeed, the NADCP Best Practice Standards quoted above (at [37]) shows that it contemplates those with a moderate substance disorder being admitted. This, of course, will depend on resources.
49․Ms Durrant also described the three phases of the Treatment Order regime, with an intensive first phase of urinalysis three times a week, an appointment with a ACT Corrections Community Corrections Officer and a case manager from Alcohol and Drug Services once a week each, attendance in Court weekly and, of course, attendance at any prescribed program, such as weekly counselling, though with a day program, it would be from two to five days a week of many hours in the day. This made work impossible or very, very difficult and certainly only allowed in very rare circumstances. It can even make for stress on those with whom an offender is in a relationship.
50․Phase two reduced much of that to fortnightly, though urinalysis is still and, in Phase three, much of these obligations were monthly but with attendances as required at other times.
51․Ms Mutharajah also tendered without objection court documents from earlier court proceedings. These were a Pre-Sentence Report for Court on 11 November 2015, a Court Alcohol and Drug Assessment Service Report and a Pre-Sentence Report for Court on 14 July 2017 and an Intensive Correction Assessment Report for Court on 1 February 2019. In each of these, but one, it was said that Mr Mapiou denied using any drugs and in none of them was there any reference to him having any problem with drugs. It can be safely accepted that Mr Mapiou did not have a problem with drugs until after 2019. This is consistent to some extent with his assertion that his problematic use was related to his mother returning to Sudan and his other younger brother being arrested.
52․It is noted that neither counsel actually asked Mr Mapiou when he first used cocaine.
53․Mr Edmonds tendered without objection a Police Statement of Facts relating to an incident at the Canberra Casino on 30 July 2022, when police were called to the Casino in relation to a fight. Mr Mapiou had broken up the fight, but police searched him and found on him three Clipsal bags with white powder that was later analysed to be half a gram of MDMA and 1.715 grams of Cocaine and other similar substances.
Findings
54․It can be accepted that Mr Mapiou lied in the assessment undertaken by an assessor from Alcohol and Drug Services when she was preparing the Eligibility Assessment. He said so clearly in his evidence and was not challenged, much less accused of lying when he asserted that he had lied.
55․It can also be readily accepted that Mr Mapiou is a user of cocaine, but only relevantly recently. Again, he was not challenged and there is corroboration in the charge in 2022 of possessing drugs. Some corroboration was sought by Mr Edmonds to be provided by the terms of the Intensive Correction Order that was made in 2019, which included a condition that Mr Mapiou “engage in drug and alcohol counselling”. That, however, is rather more likely to be related to the use of alcohol (to which reference was made in the Intensive Correction Assessment Report and in which Mr Mapiou had denied any drug use).
56․Nevertheless, his use is accepted. It can be accepted that his use at any kind of problematic level was after 2019 and at least by 2022.
57․His unchallenged evidence was that by the time off his arrest, he was using up to 3.5 grams of cocaine each weekend. His use had escalated in about late 2022 when his mother returned to Sudan and one of his younger brothers was arrested and remanded in custody.
58․His use causes friction between him and his girlfriend at least and, it appears, with other members of his family. His use has escalated recently.
59․His use does leave him feeling bad and he needs to spend most of each Sunday getting over that to be able to get to work. His use had led to the termination of his employment, though he was able to get other employment. He has used some sick leave and, while it was a little unclear, that seems, by implication, to be, at least in part from his other evidence, related to his use of cocaine. He also plays Rugby, training two nights a week and playing on Saturday. Again, that suggests that the effect of his use of cocaine is not too disruptive, though, again, there have been times when he has been unable to play.
60․He has tried to cease using cocaine and has managed to cease use for a few weeks but has always seemed to return to its use.
61․It may be that this would meet at least five, if not six of the criteria set out in the DSM 5 criteria. It is not the task of the Court to attempt to make such an assessment, but if it is to address the issue here and accept that, as Ms Durrant said, it must take the ultimate responsibility, it must assess whether there is, now that Mr Mapiou is telling the truth, a likelihood that a Treatment Order could be made.
62․Currently the Treatment Order regime is established and intended to provide an intensive therapeutic program for those with a dependency on drugs and alcohol. As a practical matter, for the good use of resources, that has been targeted at those with a severe substance use disorder. The programs range from a relatively strictly regimented regime of residential drug rehabilitation through to an entirely community program with counselling and attendance generally at some group programs, such as SMART recovery (see, for that program, R v Watson [2021] ACTSC 339 at [64]), Alcoholics Anonymous or Narcotics Anonymous and, perhaps, the Canberra Recovery Hub (as to which, see DPP v Rand [2023] ACTSC 408 at [8]). Whether these constitute the “alternative tracks” referred to in the NACDP Best Practice Standards is not a question that the Court can answer on the basis of the current evidence. This is something that the Court would need advice on from the Treatment and Supervision Team.
63․It is, as noted above, usually impossible to be employed, at least during Phase one of the regime. Whether that would mean that Mr Mapiou would be homeless would need investigation, as that is a real problem for meeting the requirement for suitable arrangements for administration of a Treatment Order and could render a Treatment Order unsuitable for him.
64․The evidence was also that it is highly undesirable to have offenders with different levels of substance use disorder in the same streams of rehabilitation. Whether that can be managed currently is something about which, again, the Court will require advice.
65․Despite the speculation of the Court, only to a level of how to decide to proceed, there was no precise evidence about the level of substance use disorder (indeed, if any) that Mr Mapiou has. The Court can go no further than it has above, finding that there is credible evidence to show that he has such a disorder.
Consideration
66․A number of issues have arisen from these proceedings, not all of which it is necessary or, perhaps, on the present material, possible to resolve.
67․The Sentencing Act uses the words “dependence” and “dependency” when describing the relationship between an offender and drugs or alcohol. This is a move, possibly a respectful one, away from the old terminologies of “abuse” and “addict”, the latter of which, particularly, was generally used: see, e.g., R v Hoang [2015] ACTSC 138 at [46]-[51] and elsewhere in those reasons.
68․It is now said, however, that addiction and dependence, at least within medical circles, may not be the same thing. In M B Horowitz and D Taylor, “Addiction and Physical Dependence are not the same thing” (2023) 10(8) The Lancet Psychiatry 23, it was noted that “[t]he term dependence has come to be used interchangeability with addiction in common language”’. This, they speculate, may be because of the pejorative connotation to the word of “addict”.
69․Thus, as the authors note, DSM 5 notes this confusion and they confirm that they are not the same thing medically. In DSM 5, “addiction” is synonymous with “substance use disorder”, entailing compulsiveness, craving and impaired control over drug taking, in addition to physical dependence.
70․Physical dependence, on the other hand, refers to the “physiological adaptation that occurs when medications acting on the central nervous system are ingested with rebound when the medication is abruptly discontinued”.
71․It seems quite clear that, in the Sentencing Act, the word “dependence” is used in the sense of addiction. In R v Chandler at [28], the Drug Court of New South Wales identified “dependence” as a “lack of independence” or “subordination”. Thus, it held, at [30], that “an offender” appears to be dependent on prohibited drugs “when the offender’s lifestyle lacks independence from or is subordinate to the use of prohibited drugs”. This is consistent with the comment in Horowitz and Taylor, cited above at [68], that, what is in common parlance “dependence”, that is “addiction”, is what is defined in DSM 5 as substance use disorder. That is the appropriate meaning to be given to dependence on drugs in the Sentencing Act.
72․That, however, does not resolve the issue here where DSM 5 refers to three levels of substance use disorder - mild, moderate and severe. Clearly, Ms Durrant was of the view that, because of the approach of the Queensland Drug Court and the way in which the Treatment Order regime was established here, the meaning should be further limited to severe substance use disorder.
73․This is, however, not entirely consistent with the NADCP Best Practice Standards, where, while it notes that there are benefits from targeting “high risk and high needs offenders”, others will come within the purview of the Treatment Order regime and can be accommodated, so long as separate arrangements can be made, being “alternative tracks”.
74․It is, however, not clear what that means. For example, many participants can achieve success without residential drug rehabilitation, relying primarily on counselling and appropriate group meetings, as well, of course, as case management and urinalysis and, of course, judicial supervision. The evidence before the Court did not show, for example, that this was inappropriate for an offender with a moderate substance use disorder as was expressly within the contemplation of the NADCP Best Practice Standards.
75․Thus, for example, the situation before the publication of DSM 5 is relevant. There, the definition on which Drug Courts, such as the NSW Drug Court, relied required only three of the criteria set out in DSM 4, in which there were fewer criteria and which did not include craving: see R v Chandler at [22]. Thus, what under DSM 5 would be identified as moderate substance use disorder would be dependence for the purpose of eligibility to that Court.
76․Indeed, Ms Durrant seemed to accept, in her reference to the Court’s ultimate responsibility, that proposed participants who did not meet the definition of severe substance use disorder could still be granted a Treatment Order.
77․Similarly, a significant number of participants have managed to make substantial efforts in rehabilitation immediately prior to the making of a Treatment Order for them to serve the sentence of imprisonment imposed on them: see, e.g., R v Watson [2022] ACTSC 95 at [54]; R v Smith [2022] ACTSC 288 at [46], [84]. This may mean that some of the criteria may not be met “within a 12-month period”, yet overall, they would otherwise, without that self-directed rehabilitation while awaiting sentence, have properly been identified as having a severe substance use disorder, but being along the way to their rehabilitation, during which some of the criteria would not be met because of their capacity to bring it under control.
78․It does not seem likely that the objectives to be attained by a Treatment Order, set out in s 80O of the Sentencing Act, can provide some assistance to resolving this issue: see R v Chandler at [25]-[27].
79․It may be that, after more detailed consideration, it can be found that the present Treatment Order regime can only satisfactorily address the needs of offenders, or a particular offender, who has a severe substance use disorder. If that can be shown, then there may be some basis for finding others without such a diagnosis ineligible. It does not seem, however, that they would be ineligible because they were not “dependent” within the meaning of the legislation, which does not require an interpretation that it only means “person with a severe substance use disorder”. The change in the criteria and approach from DSM 4 to DSM 5 shows that this would not be a permissible interpretation.
80․The real issue, then, becomes the eligibility criterion in s 80S of the Sentencing Act that the “appropriate arrangements for the administration of a treatment order are practicable”.
81․Thus, for example, this issue has been addressed in cases where such arrangements are shown not to be practicable. This usually arises in the context of cancellation applications. A participant may be assessed clinically as requiring residential drug rehabilitation. He or she is admitted to a facility providing such rehabilitation, but is discharged because of breaches and the facility will not readmit him or her. There may be no other facility that is available or, if available, will admit him or her. If, then, there is no other available treatment that is clinically assessed as likely to lead to the objectives of the Treatment Order being achieved, then the Treatment Order has been cancelled. See R v Tonna (No 2) [2020] ACTSC 362 at [65]-[69].
82․The issue, then, is not really one of eligibility of the kind that is ordinarily addressed under the Eligibility Assessments. The issue will more usually be addressed when the Suitability Assessments are prepared when there can be a more detailed consideration of the issue, including the preparation of a Case Plan, prepared with the clinical needs of the participant and the availability of facilities or programs to deliver them in mind.
83․This has been the general approach of the Court to date. Thus, where an issue was properly flagged, either in the Eligibility Assessment or when the Court receives it and hears from the parties, a decision can be made that the likelihood of an offender being able to be granted a Treatment Order can be assessed as so small that it is not appropriate to proceed with the preparation of Suitability Assessments or not.
84․Thus, to date, there have been some, but few, cases. For example, the cognitive impairment of an offender was of concern raised in an Eligibility Assessment as it was questioned whether he would be ‘likely to find participation in a AOD [alcohol and other drug] treatment challenging due to his comprehension and persistent symptoms’: R v McHughes at [12]. Suitability Assessments were directed to be prepared in that case as it was considered on the evidence that the supports available to Mr McHughes through the National Disability Insurance Scheme and otherwise may be able to address these issues. Ultimately, it was found that he was not suitable for a Treatment Order because the supports did not enable a programme to be prepared that was suitable: R v McHughes (No 3) [2021 ACTSC 344.
85․Another example is where the Eligibility Assessments have found the offender suitable to proceed to the Suitability Assessment process, but the Prosecution submitted that the Court should not direct their preparation because the offender was likely or highly likely to be sentenced to a term of imprisonment that would exceed four years. In such cases, the Court is generally unwilling to decline to proceed with preparation of Suitability Assessments unless the sentence is very clearly likely to exceed four years imprisonment. It is very difficult to determine a likely sentence where the Court has such limited information about the offence (though the prosecution may have a Statement of Facts prepared) and the subjective circumstances of the offender to be able to predict with appropriate certainty that such a sentence would be imposed: see DPP v D’Jerke [2023] ACTSC 313.
Disposition
86․It is difficult to conclude that an offender who has lied during the process of preparation for the possibility of serving a sentence of imprisonment by a Treatment Order should proceed with further assessment in prospect that such an Order may be made. After all, honesty is an absolute key to success in drug and alcohol rehabilitation: see, e.g., Magistrate Anne Thacker, ‘Implementing Drug Court Jurisprudence into “Mainstream” Drug Treatment Orders’ (Conference Paper, Tasmanian Magistrates Conference, Hobart, 20 June 2008); [2008] Queensland Judicial Scholarship 69.
87․That apparently reasonable approach, however, has no basis in law. While the lying is a factor to be taking into account in finally determining whether Mr Mapiou is suitable for a Treatment Order, the lies that he told here and in the circumstances where he has honestly admitted that in affirmed evidence, exposing himself to that odium, does not make him ineligible for him being able to progress through to the preparation of Suitability Assessments, if the facts as found shown otherwise.
88․Despite his lies, much of his ultimate evidence about his drug use was unchallenged. This was particularly so in relation to his regular use of cocaine, amounts, timing and effects. He explained the reason he lied was that he was “nervous”. His criminal history does show that he has been before the Courts a number of times before, but never in the Supreme Court. Most of his offences are traffic offences, though also resisting a Territory official and escaping lawful custody. He has not been sentenced to a term of imprisonment to be actually served before. His explanation cannot be dismissed as inherently incredible.
89․The evidence given does suggest that Mr Mapiou has a substance use disorder. Ms Durrant accepted that much of his evidence would constitute a “yes” to the questions asked in the assessment process and, thus, may show that the facts meet some of the criteria. It appears from the evidence that it would fit in the range of a more serious moderate substance use disorder or, possibly, the lower end of a severe substance use disorder. This is an assessment that is made when the Suitability Assessment of Alcohol and Drug Service is made: see, e.g., DPP v Rand at [88].
90․It is not appropriate for Mr Mapiou to undertake the Eligibility Assessment screening process again. His knowledge of the issues would make the answers he would then give invalid, even if they could be shown to be consistent with his affirmed evidence. A more detailed process with the time and opportunity to undertake a more thorough examination of his drug use, as will be undertaken in the Suitability Assessment process, is more appropriate.
91․The Court must be vigilant, however, about the fact that other persons whose substance use disorder may be less than severe may now seek a Treatment Order. There is a challenge in this for the List. The Court of Appeal has made it clear that the occasion for not making a Treatment Order because of difficulties in allocating a place in the program are limited: see Fleury v DPP [2023] ACTCA 46. It is notable that this case did not address the issues that arise under s 80S(c) of the Sentencing Act and may not be applicable in these circumstances.
92․Nevertheless, this issue may require careful consideration by the Treatment and Supervision Team (as to which, see s 80M of the Sentencing Act) and, perhaps at a wider level by the Canberra Health Services and Justice and Community Safety Directorates.
93․Nevertheless, in accordance with the findings, Suitability Assessments will be directed to be prepared, a date will be set for sentence and directions made to ensure timely preparation for that hearing.
94․It is entirely regrettable that, for various reasons, this decision has been delayed for too long. The Court regrets this an apologises to the parties. The delay will, of course, be taken into account on sentence: see R v Bower (No 2) [2022] ACTSC 388 at [36]-[58].
Orders
95․For those reasons, the following orders are made:
(1)That the application be allowed.
(2)That Drug and Alcohol Treatment Assessments be directed to be prepared for Mon Gabriel Mapiou and submitted to the Court and the parties.
(3)That a date for the sentence of Mon Gabriel Mapiou be set and directions given for preparation of the mater for sentence.
| I certify that the preceding nighty five [95] numbered paragraphs are a true copy of the Reasons for Judgment his Honour Acting Justice Refshauge Associate: J Liu Date: |
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