Director of Public Prosecutions v Ryan
[2024] ACTSC 75
•25 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Ryan |
Citation: | [2024] ACTSC 75 |
Hearing Date: | 12 March 2024 |
Decision Date: | 25 March 2024 |
Before: | Christensen AJ |
Decision: | (1) Karl William Ryan is not suitable for a Drug and Alcohol Treatment Order pursuant to s 80T of the Crimes (Sentencing) Act 2005 (ACT). (2) The Court declines to make a Drug and Alcohol Treatment Order. (3) The parties are to be heard as to whether the matter must, or should, be remitted to the Magistrates Court pursuant to s 80U of the Crimes (Sentencing) Act 2005 (ACT). |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Drug and Alcohol Treatment Order – s 80T suitability – s 80U remittals – whether there is temporal limitation to s 80U – meaning of ‘decline to make’ – Unsuitable for Drug and Alcohol Treatment Order – s 80U enlivened |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 10, 12A, 80R, 80S, 80T, 80U Crimes Act 1900 (ACT) s 332 Legislation Act 2001 (ACT) Pt 14.2 Magistrates Court Act 1930 (ACT) s 90A Supplementary Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) |
Cases Cited: | Ledson v Taylor, Robison and Brown [2010] ACTSC 42 R v Massey (No 1) [2020] ACTSC 256 R v Ruwhiu [2022] ACTSC 290 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 |
Parties: | Director of Public Prosecutions ( Crown) Karl William Ryan ( Offender) |
Representation: | Counsel A Brown ( Crown) G Le Couteur ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 265 of 2023 |
CHRISTENSEN AJ:
Introduction
This matter came before the Court for the purposes of the sentencing hearing of Karl William Ryan in relation to two offences of family violence committed on 22 April 2023.
Mr Ryan pleaded guilty in the Magistrates Court and the charges were committed for sentence to the Supreme Court. It was sought that the matter be listed in the Drug and Alcohol Sentencing List and Mr Ryan engaged in assessment processes for the consideration of such a sentence order.
During the sentencing hearing, it became apparent that a preliminary issue arose as to the implications if the court was to decline to make a Drug and Alcohol Treatment Order (Treatment Order) in circumstances where the offender was seemingly committed for sentence to the Supreme Court so that a Treatment Order was available as a sentencing option.
For the reasons that follow, the Court is not proceeding to determine the sentence, but rather to determine only the preliminary issue. The parties will then have the opportunity to make further submissions in relation to whether the matter must, or should, be remitted to the Magistrates Court for sentence.
Procedural background
The bench sheets of the proceeding establish that the matter first came before the Magistrates Court on 26 April 2023. There was a plea of not guilty on 9 May 2023. At the pre-hearing mention on 10 October 2023, the offender pleaded guilty, and the matter was committed for sentence pursuant to s 90A(7) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). It can be inferred from the reliance on the power to commit under s 90A(7) that the offender did not consent to the matter being dealt with summarily.
The matter was first in the Supreme Court on 19 October 2023 before the Registrar. The Supreme Court bench sheets reflect that on 2 November 2023 the matter was then listed in the Drug and Alcohol Sentencing List on 10 November 2023.
At the listing on 10 November 2023, which occurred in chambers, the Supreme Court observed that Mr Ryan had been assessed as eligible for a drug and alcohol treatment assessment. The reference to ‘eligible’ at that stage was a reference to an eligibility screening process rather than the eligibility considerations under s 80S of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). As it was noted that Mr Ryan had met this administrative eligibility, the Supreme Court ordered a drug and alcohol treatment assessment. The matter was then listed by the Supreme Court for sentencing hearing on 11 March 2024.
Statutory interpretation
Determination of the preliminary issue (as noted above at [3]) involves an engagement in a statutory interpretation exercise as to the construction of s 80U of the Sentencing Act.
Section 80U provides that:
80U Court may remit proceeding
(1) This section applies if—
(a)the court declines to make a Treatment Order for a 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.
It is uncontroversial that the Legislation Act 2001 (ACT), in particular Pt 14.2, operates in conjunction with common law presumptions as to statutory interpretation. Both parties agreed that the modern approach to questions of statutory interpretation as provided in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] was relevant:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (citations omitted)
Submissions
Both parties provided helpful written submissions to the Court on the preliminary issue as to the construction of this section. The parties are in agreement as to the approach to be taken to the statutory interpretation exercise. But they are not in agreement as to what this exercise would conclude and are in fact at opposite extremes.
The prosecution submits that there must be a temporal limitation to be applied to s 80U and that it is to be applied before the court engages in a sentencing exercise. While the prosecution accepts that a plain reading of the words of s 80U would suggest that there is no temporal limitation, that it would be an absurd consequence to find such a construction.
It is submitted that this arises from three aspects. Firstly, the ability to apply for remittal pursuant to s 80U after the conclusion of a sentencing hearing would result in a significant waste of court and community time and resources.
Secondly, an offender’s ability to make an application at a point after determination that there is no appropriate sentence other than one of imprisonment would subvert the ‘logic’ of the sentencing process: see Refshauge J in Ledson v Taylor, Robison and Brown [2010] ACTSC 42 at [82]. It is submitted that this is a process required by the Sentencing Act and not merely accepted practice. The prosecution submits that this would mean that in all cases the court would need to pause in the sentencing exercise, notify of an intention to decline to make a Treatment Order, and allow for an application pursuant to s 80U.
The prosecution submits that, thirdly, such a pause in the sentencing exercise could enable an offender to circumvent the court’s power to impose sentence if they disagreed with the nature and length of the sentence to be imposed.
The prosecution further submits that the inclusion in subsection (3) of s 80U that “the court must make the [remittal] 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” indicates a potential temporal limitation (emphasis added). That is, that the power to remit is limited to the stages at which the offender is “seeking assessment”. This construction is submitted to be contextually consistent with the relevant division of the Sentencing Act.
The prosecution submits that, overall, in the circumstances of this matter, the availability to apply for remittal pursuant to s 80U has passed. It is submitted that this matter is at a separate and distinct stage involving the sentencing hearing and, accordingly, the court would proceed to determine sentence, inclusive of a decision as to whether the court makes or declines to make a Treatment Order.
The defence representative submits that an application to remit may be made at any point in the proceeding up to and including when the court has declined to make a Treatment Order and that the court must consider both the suitability and the terms of imprisonment prior to the decision to make or decline to make the Treatment Order.
It is submitted that s 80U is enlivened if the court, having received information relevant to the assessment of suitability to be undertaken, declines to make a Treatment Order. The defence submits that such a reading is consistent with the immediately preceding
s 80T. It is submitted that given s 80T provides a discretion to the court to make a Treatment Order after having regard to the relevant reports and submissions, but that it must record its reasons for making or declining to make an order, gives rise to a legislative contemplation that the court will at the very least have regard to the reports before determining whether to make a Treatment Order.The defence representative submits that given the opportunity to make submissions as to the reports that inform a determination of suitability is at a sentencing hearing, it would be artificial to impose a temporal limit on when an offender can exercise their right under s 80U. Such a construction is submitted to read into a temporal limitation to the section that is not there.
The defence representative emphasises the court’s role in making the determination about suitability. It is submitted that the court’s determination is informed by a criterion as to whether a term of imprisonment is to be imposed, and the length of any such order. The defence emphasise a submission that a determination of suitability includes a determination as to sentence length.
In response to the prosecution submissions, the defence submit that a restriction on an offender’s right to apply for remittal pursuant to s 80U cannot be refused on a basis of resources, and that there is no inherent absurdity in the legislatively prescribed approach in the unique circumstances of the Drug and Alcohol Treatment Order framework.
As will become apparent from the reasons that follow, I do not accept in full either of the parties’ submissions.
Section 80U of the Sentencing Act
To my mind, the engagement in the statutory interpretation exercise here is premised on determining the meaning of ‘declines to make’ a treatment order in s 80U. This is the first criteria that enlivens the prospect of an application for remittal pursuant s 80U. The meaning of this phrase in the statutory context in which it appears is therefore of significance.
Supplementary Explanatory Statement
The Supplementary Explanatory Statement for the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) as to the inclusion of a power to remit in the Drug and Alcohol Treatment Order provisions is relevant to consider:
The Bill creates the DATO jurisdiction within the Supreme Court. The result of this is that offenders who may have elected to have their indictable matters heard summarily within the Magistrates Court will be required to elect to have their matter dealt with by the Supreme Court to be assessed for a DATO.
It is appropriate to make provision for an offender to choose to have their matter return to the Magistrates Court if the Supreme Court declines to make a DATO. This will include where an Aboriginal or Torres Strait Islander offender wishes to appear before the Galambany Court.
The amendment creates a power for the matter to be referred back to the Magistrates Court from the Supreme Court where an assessment has been undertaken and the judge has declined to make a DATO for the offender.
The power is enlivened on application of the offender or the Director of Public Prosecutions. It is anticipated that an application by the DPP may be made in circumstances where a defendant is not represented and consents to such an application being made.
Where the offender’s purpose in being committed to the Supreme Court was to apply for the DATO, the judge must send the offender back to the Magistrates Court upon application. The amendment also provides a discretionary power for the Supreme Court to remit a matter where it is in the interests of justice to do so.
These amendments will support the right to a fair trial, as offenders will not be forced to be sentenced in a higher jurisdiction only because they have been considered for and refused a DATO.
The legislature clearly intended an ability to remit the matter for sentence to the Magistrates Court where the only purpose of committal was for the Supreme Court to consider the availability of a Treatment Order. Where the Supreme Court declines to make such an Order, the legislature intended that there could be remittal for sentence.
‘Decline to make’
The phrase ‘declines to make’ appears in only one other section in the Drug and Alcohol Treatment Order provisions of the Sentencing Act, being s 80T, which is concerned with suitability.
Section 80T(5) of the Sentencing Act provides the following:
80T Drug and alcohol treatment orders—suitability
[…]
(5)The court may make, or decline to make, a treatment order for the offender despite—
(a)any recommendation in the drug and alcohol treatment assessment; or
(b)any evidence given by the person who prepared the drug and alcohol treatment assessment; or
(c)any evidence given, or submission made, by a member of the treatment order team.
(emphasis added)
This is of significance in determining what is meant by ‘declines to make’ a Treatment Order for the purposes of s 80U and the stage at which it occurs. Plainly, as the language of ss 80T and 80U both contemplate the phrase ‘decline to make’ in relation to a Treatment Order, s 80U should be construed to provide for what can occur if the court has declined to make a Treatment Order after a determination as to suitability under
s 80T.While typically a determination under s 80T might occur at a stage after the court has considered and applied ss 10, 12A of the Sentencing Act, and the court is engaging with s 80S as to eligibility, there is no legislated requirement that it occurs at this stage.
Eligibility and Suitability under Div 5.4A.3
The prosecution submission that the words of s 80U(3) as to what the court must do if the committal arose “for the purpose of seeking assessment for a treatment order” appears to have some merit, given that s 80U is contained within Div 5.4A.3 of the Sentencing Act, being the Division concerned with eligibility and suitability for a Treatment Order, rather than with s 12A, which provides power for the court to make a Treatment Order.
However, this does not impose a temporal limitation to the assessment stage on the whole section. This is particularly so given s 80R, which is the application section for Div 5.4A.3, provides that
This division applies if the court is considering whether to make a treatment order when sentencing an offender for an offence. (emphasis added)
Subsection (3) merely prescribes how s 80U is to operate in a circumstance where the committal was for a particular purpose. It does not otherwise restrict the operation of
s 80U to the assessment stage, particularly given the construction of the phrase ‘decline to make’ as already observed above at [27]-[30].
Consideration
The prosecution submissions are seemingly premised on an assumption that, in order to engage in a determination of suitability, the court must, by necessity, firstly engage in the sentencing exercise. I do not agree that such an exercise is necessarily required. Similarly, the defence submissions are seemingly premised on an assumption that submissions as to suitability can only occur at a sentencing hearing and a determination as to the term of imprisonment is firstly necessary. I do not agree.
While certain practices have appropriately developed in the application of Drug and Alcohol Treatment Order provisions, these practices do not preclude the introduction of a preliminary stage when it is necessary and appropriate. This matter is an example of a matter that requires such a preliminary stage.
I accept that the approach being proposed is itself premised on a form of assumption. That is, that the court is considering suitability under s 80T on a basis that in essence assumes the offender would meet the requirements of s 12A. I accept that there is degree of artificiality to this process, and that it involves a level of divergence from the previous sentencing practices in this Court.
However, this issue of remittal, and the stage at which s 80U is to be applied, has not previously been raised in this Court. As the prosecution submitted, only one previous decision of this Court has observed the existence of s 80U, although its application was not the subject of consideration there: R v Massey (No 1) [2020] ACTSC 256 at [14].
I conclude that the proposed approach set out above at [35]-[36] and below at [40] is not one that is contrary to the legislative provisions nor the legislative intent, and rather gives effect to these. It is an approach that simply introduces a preliminary focus on s 80S(a) as to eligibility at a stage before the sentencing exercise is engaged with in an appropriate matter.
I do not accept that this would amount to a significant waste of court and community time and resources (if that could ever be a basis upon which to favour one statutory construction over another). The inclusion of a preliminary stage in matters where a s 80U application may arise does not place onerous demands on the court. It simply ensures that there is a step in the proceeding that occurs to give effect to s 80U.
It is relevant to observe that this does not become a preliminary stage in all matters the subject of sentence in the Drug and Alcohol Sentencing List. Rather, s 80U means that, in a matter where there is a plea of guilty in the Magistrates Court and the offence could have been dealt with summarily by the Magistrates Court but the offender refused consent to summary jurisdiction, a preliminary determination as to s 80T suitability is a necessary step by the Supreme Court. That is, it will be a step that arises in matters that involve charges where there are indictable offences that may be heard and determined summarily: see s 332 of the Crimes Act 1900 (ACT); s 90A(7) of the Magistrates Court Act.
I do accept the prosecution submissions to the effect that an ability to apply for remittal after a sentencing exercise would subvert the logic of the sentencing process and has the potential to enable an offender to circumvent the court’s sentencing decision.
I would add to that an ability to remit for sentence to the Magistrate Court after the Supreme Court has engaged in a significant portion of the sentencing exercise, raises a concern as to how the Magistrate Court could engage in its own independent sentencing exercise given the existence of findings for the purposes of sentence by the Supreme Court. The doctrine of stare decisis applies, even if the Drug and Alcohol Treatment Order provisions does have some unique features.
Practical implication
In practice, this means that the parties should ensure that the refusal to consent to summary jurisdiction is made plain to the Magistrates Court. Where the offender’s refusal to consent is for the purpose of seeking assessment for a Treatment Order, this should be indicated to the Magistrates Court, and it be sought that this intention to seek the assessment be reflected in the bench sheets and the committal order.
Upon committal to the Supreme Court, the matter should be listed for a preliminary determination in the Drug and Alcohol Sentencing List as to whether the court may find suitability pursuant to s 80T following the production of assessments or reports under the same provision. Whether that occurs at what is, in practice, regarded as the assessment stage, or that occurs at what is, in practice, a listed sentencing hearing, is not of significant consequence. It will be a matter for the parties to assist the court, being likely guided by the instructions that are known only to the defence representative, as to which listing will result in the most efficient use of court resources.
Observation
This determination does not resolve what is to occur in a matter committed for sentence where there was refusal to consent to summary jurisdiction for the purpose of seeking assessment for a Treatment Order and the court finds, on a preliminary suitability determination under s 80T, that the court may make, rather than decline to make, a Treatment Order.
The court would typically then proceed to engage in a sentencing exercise and may determine that, having considered all available sentencing options, that the appropriate disposition is not a Treatment Order. That is, s 80S(b) eligibility is not established.
Whether s 80U would then apply, and how this could apply given the engagement in the sentencing exercise that will have occurred, is not clear. It is though unnecessary to decide this for the purposes of the current matter.
Offender’s Suitability: s 80T of the Sentencing Act
Turning then to the preliminary consideration that does arise in this matter, that is, s 80T suitability for a Treatment Order.
The issue of suitability pursuant to s 80T is particularly relevant here as the prosecution submits that the offender ought not to be found suitable given the unavailability of suitable accommodation. Accordingly, there is potential for application for remittal to be made in the event that the court declines to make a Treatment Order in accordance with the statutory construction determined above. The preliminary submission of the defence is that the offender would be found suitable for a Treatment Order.
Section 80T provides the non-exhaustive mandatory considerations for determining suitability: s 80T(1)-(3) of the Sentencing Act. These include that the court must consider a drug and alcohol treatment assessment of the offender and any recommendations in the assessment.
Having considered those matters, the court has a discretion whether to make, or decline to make, a Treatment Order with reference to suitability: s 80T(5) of the Sentencing Act. Section 80S then provides, mandatorily, that if a Treatment Order is not suitable for the offender, the court must not make such an order: s 80S(a) of the Sentencing Act.
Information as to suitability
Pre-Sentence Report
The pre-sentence report dated 14 November 2022 provides that Mr Ryan reported residing with his partner at her ACT Housing rental property prior to the current offences. Before this, he was homeless and spending time between residing with friends on a short-term basis and living on the streets. Mr Ryan reported an intent to return to living with his partner upon release from custody, which the report describes as having been verified by his partner at that time. Mr Ryan was unable to provide an alternative address in the community during the preparation of the report. Given that there had been several domestic disturbances with police involvement at his partner’s address, this address could not be assessed as suitable.
Drug and Alcohol Treatment Assessment: Community Corrections
The Drug and Alcohol Treatment Assessment report by Community Corrections and dated 19 January 2024 (Exhibit 1, Tab 4) finds that Mr Ryan does not have any suitable accommodation options available to him in the community and includes the following information:
(a)Mr Ryan stated he moved out of the family home at 12 years of age, and couch stayed with friends around the ACT, Victoria and NSW. Mr Ryan recalled he would return to the family home on an intermittent basis until approximately 16 years of age, before his familial unit relocated to Sydney NSW without him;
(b)Mr Ryan appeared to focus on the fact that he and the victim remained in a relationship, and that he considered it to be an appropriate option for him to continue residing with her [the victim] should his other accommodation options founder;
(c)Prior to entering custody, Mr Ryan was residing with the victim. He reported they had resided together for a couple of years, and noted he felt “forced” to reside with her and often felt like a burden.
(d)During the initial interview with this Service on 15 December 2023, Mr Ryan acknowledged that returning to reside with the victim would not be appropriate. Conversely, during the second interview on 5 January 2024, Mr Ryan reported an intention to reside with the victim of his offending as a “a last resort” should his other accommodation options be unsuccessful.
Numerous housing arrangements were considered by Community Corrections. An application for the Justice Housing Program was found unsuitable in June 2023 due to a concern as to Mr Ryan’s suitability to reside in shared accommodation that is not staffed 24 hours.
A second option was a friend’s address nominated by Mr Ryan in January 2024. This accommodation was found unsuitable as enquiries ascertained that the friend was not aware of the nature of Mr Ryan’s offending behaviour, that Community Corrections hold concerns as to Mr Ryan residing with a single female who has a teenage daughter reside with her, and Community Corrections formed a view that there was a risk that non-compliance with the Treatment Order would not be notified.
After being notified of the outcome of the assessment in relation to his friend’s residence, Mr Ryan contacted Community Corrections and enquired as to whether he could pursue accommodation with the victim. Community Corrections understandably hold a concern as to this option and it was deemed unsuitable.
Further in January 2024, Every Man undertook an assessment for Mr Ryan with their Men’s Accommodation and Support Service Program. Mr Ryan was found unsuitable due to a lack of capacity to offer accommodation and that all properties on offer are located in high density locations. Every Man said that “they are heavily populated with active drug users and people with complex mental health issues” and that “concern was expressed that Mr Ryan may potentially be set up to fail”.
The assessment for a Treatment Order for Mr Ryan concludes that he is not suitable for such an Order, having regard to matters including his lack of suitable accommodation. It is considered that a lack of suitable accommodation would render his ability to comply with the intensive requirements of a Treatment Order untenable.
Suitability Assessment Report: Health Services
Similarly, the suitability assessment report of Health Services, dated 13 December 2023 (Exhibit 1, Tab 5), describes the same accommodation options being available to Mr Ryan as those explored by Community Corrections. In addition, this Service explored Mr Ryan’s application with Housing ACT and was advised in November 2023 that Mr Ryan was on the high needs register and additional information was required. Mr Ryan was encouraged to provide such information, with no updated information before the Court to suggest that this housing prospect has progressed.
Health Services did find Mr Ryan to be suitable for a Treatment Order but recommended that the treatment and supervision part of the Treatment Order be only for a period of 12 months given the lack of access to long term stable accommodation for Mr Ryan.
Intensive Correction Assessment Report
An additional report, an Intensive Correction Assessment Report, was prepared for the purposes of the sentencing hearing and, given it is the most recent verifiable information, it is relevant to consider in accordance with s 80T(3) of the Sentencing Act. This report, dated 8 March 2024 (Exhibit 1), provides that Mr Ryan’s relationship with the victim had ended. It can be inferred that residing with the victim, if that could ever be considered appropriate, is no longer an option.
Mr Ryan again nominated his friend’s address, but she did not respond to requests for verification and consent was not obtained. Mr Ryan otherwise advised that he had available to him supported accommodation at Ainslie Village, and it was confirmed that a room was available to him at this location should he be released into the community. This housing option is described as a social housing program where there would be sharing with co-residents. Community Corrections explain that it is a high-density housing complex well known for anti-social behaviour and illicit substance use. The location of the proposed address may pose issues with enforcement of any curfew condition.
Submissions
On behalf of Mr Ryan, it was submitted that the information establishes that Mr Ryan was previously only able to acquire stable accommodation through his relationships. With this not now available to him, Mr Ryan is submitted to have made considerable efforts to attain stable accommodation in the community. This extends to having suggested the victim’s residence, not because this was a first preference or even one considered suitable, but reflective of his making genuine and numerous attempts to find accommodation to address his underlying substance abuse issues. It was otherwise submitted that there was a housing option at Ainslie Village and that Every Man may be an option available in the future.
The prosecution submission was that Mr Ryan was not suitable for a Treatment Order having regard to, amongst other things, the unavailability of suitable accommodation. It was submitted that Ainslie Village was not a suitable location for Mr Ryan to reside for the purposes of a Treatment Order in circumstances where this location shares the same challenging environment that Every Man expressed of concern for their housing options.
Considerations
The need for suitable accommodation and the challenges that can arise when it is not available has been previously recognised by this Court: R v Ruwhiu [2022] ACTSC 290 at [114] in which Refshauge AJ said:
[I]t has become clear in the Drug and Alcohol Sentencing List that the fragility of accommodation for participants is a major stressor and can seriously impede the success of the rehabilitation. While it would be a major adverse step to decline to make a Treatment Order because no certain accommodation arrangements have been made at the end of a period of residential drug rehabilitation, it would be unfair to set up a prospective participant to fail and to risk the benefit of that rehabilitation because of those difficulties.
While it might appear that there is an apparent unfairness that a person who might otherwise be a suitable candidate for and has a commitment to comply with a Treatment Order is prevented from doing so due to a lack of resources being available to provide suitable housing, the objects of this sentencing option are clear and include:
80O Objects of Drug and Alcohol Treatment Orders
The objects of making a Treatment Order in relation to an offender is to—
(a)facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime;
[…]
It may be that there are offenders where a level of flexibility can be considered to make a Treatment Order even in the absence of an ideal accommodation given it may still facilitate rehabilitation.
Mr Ryan is, however, in a somewhat different situation. He has had long standing vulnerabilities with his housing situation. While he may have made genuine attempts to source suitable accommodation, he does not have a form of suitable accommodation available to him to engage with a Treatment Order directed towards his particular offending behaviour.
The nature of Mr Ryan’s offending behaviour is such that ensuring he has available to him a form of appropriate accommodation is critical for not only his benefit, but also ensuring protection of the victim and community members. The accommodation circumstance is a suitability criterion that must be strictly applied in respect to Mr Ryan. And it is a suitability requirement that he does not meet.
The indicators of unsuitability are set out in s 46K, column 3 of the Sentencing Act. These include the living circumstances of the offender, with it being specifically mentioned that there is an inability or refusal to live in the ACT or that a member of the offender’s household does not consent to living with the offender while they are subject to a Treatment Order.
Mr Ryan is not refusing to live in the ACT, and nor is there an inability to live in the ACT. But in terms of his suitability for a Treatment Order, his living circumstances are such that there is a significant matter of unsuitability. This lack of suitable accommodation is a determinative factor in Mr Ryan’s suitability.
The Court is not satisfied that a Treatment Order is suitable for the offender pursuant to
s 80T of the Sentencing Act and I decline to make such an order. It follows that in declining to make a Treatment Order, the application of s 80U of the Sentencing Act is enlivened.I will hear from the parties as to whether the Court must, or should, remit the proceeding for sentence in the Magistrates Court.
Orders
74. The orders of the Court are:
Karl William Ryan is not suitable for a Treatment Order pursuant to s 80T of the Crimes (Sentencing) Act 2005 (ACT).
The Court declines to make a Drug and Alcohol Treatment Order.
The parties are to be heard as to whether the matter must, or should, be remitted to the Magistrates Court pursuant to s 80U of the Crimes (Sentencing) Act 2005 (ACT).
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen Associate: J Liu Date: |
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