Director of Public Prosecutions v Scott
[2024] ACTSC 378
•26 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Scott |
Citation: | [2024] ACTSC 378 |
Hearing Dates: | 15 August 2024, 21 August 2024, 26 August 2024, 10 September 2024, 15 October 2024, 17 October 2024, 19 November 2024 |
Decision Date: | 26 November 2024 |
Before: | Baker J |
Decision: | See [153]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –offender pleaded guilty to joint commission aggravated robbery – substantial criminal history – disadvantaged and dysfunctional background – offender seeking drug and alcohol treatment order – offender assessed as not suitable for treatment order – concerns surrounding offender’s compliance with conditions and engagement with rehabilitation program – offender’s substance use disorder assessed as moderate – offender dependent on controlled drug at time of offending – purposes of Crimes (Sentencing) Act 2005 not to exclude offenders whose addiction not severe enough – insight into addiction and commitment to rehabilitation – no penalty other than imprisonment appropriate given seriousness of offence – imposition of drug and alcohol treatment order not opposed by prosecution – period of imprisonment to be served by way of drug and alcohol treatment order |
Legislation Cited: | Criminal Code 2002 (ACT), ss 45A, 310 Crimes (Sentencing) Act 2005 (ACT), ss 12A(2)(a), 12A(2)(b), 12A(2)(c), Table 46K, 80O, 80S, 80T, 80W, 80Y, 80ZA Crimes (Sentence Administration) Act 2005 (ACT), s 85 |
Cases Cited: | DPP v Baudinette [2024] ACTSC 157 DPP v Brooks [2005] VSCA 31 DPP v JJ (No 2) [2004] ACTSC 74 DPP v Mapiou [2024] ACTSC 7 DPP v Smith [2024] ACTSC 126 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v Campbell [2021] ACTSC 359 R v Crawford (No 3) [2017] ACTSC 99 R v Forrest (No 2) [2021] ACTSC 259 R v Hodge [2015] ACTSC 214 R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 R v White [2023] ACTCA 35 The Queen v Henry [1999] NSWCCA 111; 46 NSWLR 346 |
Texts Cited: | Bugmy Bar Book, Early Exposure to Alcohol and Other Drug Abuse (November 2019) Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Bugmy Bar Book, 2021) |
Parties: | Director of Public Prosecutions ( Crown) Brett John Scott ( Offender) |
Representation: | Counsel H Robinson ( Crown) N Deakes ( Offender) |
| Solicitors ACT Director of Public Prosecutions ACT Legal Aid ( Offender) | |
File Number: | SCC 125 of 2024 |
BAKER J:
Overview
1․Brett John Scott (the offender) has pleaded guilty to one count of joint commission aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT), by virtue of s 45A of the Criminal Code 2002 (ACT) (CAN541/2024). This offence carries a maximum penalty of a $400,000 fine, 25 years imprisonment, or both.
2․As described further below, the offending that constituted this offence was serious. The offender, together with three other people, entered the victim’s home, and took property which belonged to the victim and his housemates. The victim was physically assaulted by the co-offenders and threatened by the offender. The offender has a criminal history which includes prior offences of robbery and theft. A sentence must be imposed which recognises the harm that was caused to the victim, and which deters the offender and protects the community from further offending.
3․There is no question that the only appropriate sentence to be imposed is one of imprisonment. Where appropriate, an order may be made that a sentence of imprisonment be served by way of a Drug and Alcohol Treatment Order (Treatment Order). Whilst such orders are served in the community, they are onerous. Breach of a Treatment Order may result in an offender’s return to full time custody.
4․In the present case, the offender seeks a Treatment Order. However, he has not been assessed as suitable for a Treatment Order. Where an offender is not assessed as suitable, the Court should be cautious before making such an order. In the present case, after very careful consideration, I am satisfied that it is appropriate to order that the offender’s sentence be served by way of a Treatment Order, notwithstanding the opinions expressed in the suitability assessments. The prosecution did not oppose the making of that order.
5․Accordingly, for the reasons outlined below, whilst I impose a sentence of imprisonment, I will order that the offender’s sentence be served by way of a Treatment Order.
Background
The offending
6․The circumstances of the offending are set out in an Agreed Statement of Facts and are also depicted in CCTV footage which was tendered in the proceedings.
7․At 4:50pm on 19 November 2023, the offender and three co-offenders, Dennielle Kimmins, Dennis Fisher and Danielle Towney, drove to the victim’s home in Lyneham in a Ford Territory.
8․The offender and the co-offenders got out of the Ford Territory. The offender approached the victim’s house first and knocked on the front door. When the victim opened the front door, the offender asked, “Where is the heroin?”. The co-offender Kimmins then approached the front door and started to yell at the victim.
9․The offender and the co-offender Kimmins then entered the victim’s home. Once inside, the co-offender Kimmins physically attacked the victim, who unsuccessfully attempted to push her away.
10․The other two offenders (Fisher and Towney) then entered the victim’s home. The offender and the three co-offenders again demanded that the victim tell them where the heroin was “stashed”, asserting that “Mouse” had told them it was at that location. On the CCTV footage the victim can be heard saying “I don’t know what you’re talking about”.
11․The victim was forced to the hallway and bedroom at the rear of his home, where he was told to stay and warned not to call the police. The offender stood over the victim and said “No cops. If the cops get involved, then we’re gonna send some big black guys around”.
12․The offender and the co-offenders then ransacked the hallway and lounge room, and continued to ask where the heroin was. Co-offenders Kimmins and Towney assaulted the victim several times. They struck the victim, pulled his hair and attempted to kick him. The victim suffered scratches on his forearm, upper bicep and shoulder as a result of the assaults.
13․The offender and co-offenders were in the victim’s home for less than five minutes. The offender took a baby formula tin which contained various keys. The co-offenders took a travel case containing two Pioneer 100 Compact Disc Jockey and a Four channel Mixer; 12 Brookevale ginger beers; a Makita worksite pod coffee machine; mail articles and paperwork in the name of the victim and his housemates.
14․The victim’s housemate reported the offending to the police. At around 8:30pm, the police attended the victim’s residence at Lyneham. They obtained statements from the victim and the victim’s housemate, and photographed the victim’s bruises and scratches.
15․The police also collected the CCTV footage referred to above. Upon viewing the CCTV and body worn camera footage, they immediately recognised the offender and co-offenders.
16․At approximately 8:20am on 27 November 2023, the police executed a search warrant upon a unit in Watson. The offender was present and made the following admissions:
(a)He attended the residence of the victim with the co-offenders Towney, Kimmins and Fisher in a car that belonged to Ms Towney's mother;
(b)His purpose was to buy heroin for the co-offender Towney;
(c)He knocked on the door of the victim’s residence. When it was opened, he stepped inside;
(d)The victim and the co-offender Kimmins became engaged in a physical altercation. The offender separated them;
(e)The other co-offenders began searching the residence;
(f)The offender left the residence with an empty baby formula tin and told the others “let’s go”; and
(g)The offender observed the others steal property from the premises.
17․The offender was arrested and charged with aggravated burglary. He was conveyed to the ACT Watch House, and was subsequently refused bail by a Magistrate. He was remanded in custody from that date until he was granted bail on 26 August 2024.
Victim Impact Statement
18․In his Victim Impact Statement, the victim described the lingering effects which the offending has had upon him, including feelings of hypervigilance. In particular, the victim described feeling increasingly withdrawn and isolated, and experiencing anger, frustration and fear for his safety as a result of the offending. The victim also disclosed that he has been struggling with post-traumatic stress disorder as a result of the offending, for which he is now seeking therapeutic support.
Subjective Circumstances
Personal background
19․The offender is a 40-year-old First Nations man. He is one of nine children, four of whom are half-siblings by his father.
20․As a child, the offender was frequently exposed to family violence and alcohol and drug use. The offender “witnessed his sisters being used for prostitution by [his] father, and [his] brothers selling and using drugs at home”. One of the offender’s siblings has died by suicide, and another by overdose.
21․The offender’s father passed away in 2013. The offender reported significant conflict between him and his father before his father’s passing. The offender reported having a close relationship with his mother and two of his siblings.
22․The offender has eight children, one from an earlier relationship, six from a previous marriage which broke down in 2016, and a newborn child who was born to a new partner, who does not reside with the offender. The offender also has two grandchildren, aged 6 and 3. The offender has contact with two of his children and hopes to have the youngest children returned to his care.
23․The offender left school during Year 11, and has been sporadically employed since then. In 2011, he commenced but did not complete a butchery apprenticeship. The offender was employed as a landscaper immediately prior to being remanded in custody. The offender returned to this work when he was released on bail on 26 August 2024. A letter from his employer has reported that the offender is “reliable” and “trustworthy” and confirmed that they were content to support the offender around other ongoing Court commitments. However, in a more recent interview for the Canberra Health Services Drug and Alcohol Sentencing List Suitability Assessment Report (DASL Report), the offender disclosed his employer had been injured in a “gas explosion” and has been managing subsequent health issues. As a result, the offender has not been able to work for a month since his employer became injured.
Alcohol and drug use
24․The offender has a significant history of alcohol and drug use.
25․The offender reported that his father had coerced him into consuming alcohol regularly when he was 16. By the age of 18, the offender was consuming alcohol daily. The offender has reported that he consumed up to 16 standard drinks daily from May 2020 to August 2020. Prior to being remanded in custody, he was consuming approximately “three long necks” every two days.
26․The offender first used methamphetamine in 2003 and continued doing so until 2008, after which he abstained for five years. The offender relapsed in 2013 following a relationship break down and began using methamphetamine on an infrequent basis thereafter. In his interview for the DASL Report, the offender disclosed five occasions where he used Amphetamine or “speed”, one occasion where he used cocaine and three occasions where he used Gamma hydroxybutyrate or “GHB”.
27․Service records and certificates tendered in Court indicate that the offender has engaged in numerous alcohol and drug related programs during his most recent incarceration. These include the Alcohol Drug Awareness (Harm) Prevention Training (ADAPT), First Steps Alcohol and Drug program, Intro to Recovery Self-paced booklet, the AOD Brief Intervention Program, AOD counselling through ACT Health and Karralika’s Solaris Therapeutic Community Program. Significantly, following the successful completion of the Karralika Solaris Therapeutic Community Program, the offender accepted a graduate role in custody and became a senior peer. A support letter from Karralika dated 20 June 2024 reported that the offender demonstrated behaviour change and developed a relapse prevention plan.
28․The offender was assessed and found suitable for the Karralika Matrix Program, which is offered in the community. A letter from Karralika dated 6 September 2024 confirmed that the offender had been engaging in the program since he was released on bail on 29 August 2024, and his attendance has been “regular”. At that stage, the offender had attended 2/8 of “early recovery skills group” sessions, 2/32 of “relapse prevention group” sessions, and 1/16 “Living recovery group” sessions.
29․The DASL Report stated that contact with Karralika had confirmed the offender’s attendance is currently at 66%. This report also stated the offender was, at that stage presently, on a two-week mental health break from Karralika. The offender’s attendance at Karralika will be discussed further below.
Mental Health
30․The offender reported a history of mental health challenges over his life, including diagnoses of Post-Traumatic Stress Disorder, Borderline Personality Disorder, Antisocial Personality Disorder and Major Depression, as well as multiple suicide attempts. This was confirmed by a letter from ACT Health dated 28 June 2024, which revealed that the offender was an inpatient in August 2020 following suicidal ideation. The offender received clinical management through community mental health teams in 2009, 2010, 2014 and 2016. The offender engaged with the Alcohol and Drug Service Counselling and Treatment Service in 2022 for approximately 12 months until his counsellor left the service.
Attitude towards offending
31․The offender gave evidence in the proceedings on sentence. He also wrote a letter to the Court and to the victim explaining his remorse and shame for his offending. In his letter to the victim, the offender acknowledged to the victim that he “had no right to enter your home the one place that some one should always feel safe”. The offender also acknowledged the seriousness of his offending and its impact on the victim and the wider community in his interviews with Corrective Services. I am satisfied that the offender’s remorse is genuine.
Criminal History
32․The offender’s criminal history dates back to 2002 and includes offences committed in both the ACT and NSW. The offender’s criminal history includes offences for assault occasioning actual bodily harm, driving under the influence, illicit drug use, theft, robbery, trespass, possess firearm/prohibited firearm, common assault, ill-treat or abuse a child, neglect (leave child unattended) and fail to comply with direction of officer. The present offending was committed eight months after the offender had been released on parole in respect of another robbery offence.
Procedural history
The entry of the plea of guilty
33․The offender originally pleaded not guilty to the present offence on 11 January 2024. However, the offender pleaded guilty in the Magistrates Court on 2 May 2024 following negotiations. On 7 May 2024, the matter was committed for sentencing in the Supreme Court.
Hearing on 15 August 2024
34․This matter first came before me for sentence on 15 August 2024. At that time, the offender was in custody, bail refused.
35․Mr Deakes, who appeared for the offender, noted the offender’s exemplary conduct in custody, which included the successful completion of various drug and alcohol programs.
36․The offender gave evidence of his drug and alcohol addiction which had continued into adulthood. The offender affirmed his continued commitment to his rehabilitation, and expressed a desire to return to his employment and to enrol in the Karralika Matrix program.
37․The offender expressed concern about the possible imposition of a Treatment Order. He explained that he was concerned about the prospect of being around other antisocial people or drug users. Mr Deakes urged me to consider imposing an intensive corrections order (ICO) to promote the offender’s rehabilitation. On Mr Deakes’ application, and with the consent of the prosecution, I adjourned the sentence hearing to enable further evidence on sentence to be obtained.
Hearing on 21 August 2024
38․The sentence proceedings came before me again on 21 August 2024.
39․At that time, I indicated that my preliminary view was that the offending was too serious for an ICO to be imposed, but that, given the offender’s history of drug and alcohol addiction, and his commitment to his rehabilitation (evidenced by his enthusiastic completion of various programs in custody), I would be prepared to consider referring the offender for assessment for a Treatment Order. The offender asked to be assessed for eligibility for a Treatment Order.
40․However, I was informed that the offender could not receive a preliminary assessment for a Treatment Order until early next year if he remained bail refused in custody, but that he could be assessed for preliminary assessment for a Treatment Order within a matter of weeks if he were granted bail to be in the community. The delay that would have been occasioned by an in-custody assessment created a difficulty. It was clear that the offender had engaged in significant rehabilitation whilst in custody. As Mr Deakes submitted, the progress of the offender’s rehabilitation may have been put at risk if the offender was required to wait many months in custody whilst awaiting a Treatment Order assessment. An application for bail was filed on the offender’s behalf that afternoon, so as to enable the offender to be assessed for a Treatment Order in the community.
26 August 2024: Grant of Bail
41․On 26 August 2023, after hearing submissions from both parties, and receiving evidence concerning the offender’s proposed accommodation, I granted bail to the offender on strict conditions, including that he attend the Karralika Matrix day program, that he not consume alcohol or drugs, and that he be subject to a strict curfew. I also referred the offender for preliminary assessment for a Treatment Order.
3 September 2024: Drug and Alcohol Sentencing List Eligibility Assessment Report and DASL Initial Mental Health Assessment Form
42․On 3 September I was provided with a Drug and Alcohol Sentencing List Eligibility Assessment Report (Eligibility Assessment Report), and a DASL Initial Mental Health Assessment Form (Mental Health Assessment Report).
43․The Mental Health Assessment Report indicated that the offender had been assessed as suitable to proceed with an assessment for a Treatment Order from a mental health perspective. However, the Eligibility Assessment Report concluded that the offender was not recommended for a suitability assessment on the basis that his substance use disorder had only been assessed as moderate.
10 September 2024: Mention
44․The matter was next listed on 10 September 2024.
45․On that occasion, Mr Deakes noted that the preliminary recommendations referred to above were not binding on the Court, and urged me to refer the offender for a full Treatment Order assessment. The prosecution did not oppose this course.
46․Noting the offender’s documented longstanding issues with drug and alcohol use, I concluded that it was appropriate for the offender to be subject to a full Treatment Order Assessment. Accordingly, I ordered that a full drug and alcohol assessment be prepared and be submitted to the Court, the offender, and the members of the treatment order team. I continued the offender’s bail on the conditions previously imposed.
Court mention on 15 October 2024
47․The proceedings were next listed for mention on 15 October 2024. The purpose of that mention was to ensure that the offender was continuing to comply with his bail undertakings.
48․On this occasion, Mr Deakes informed me that whilst “things have been going quite well”, there had been “one little speedbump” the day before, that “when [the offender] was required to produce urine, he simply couldn’t go to the toilet”.
First alleged breach of bail conditions
49․On 16 October 2024, my chambers received the following email from Mr Deakes:
As submitted in Court yesterday, Mr Scott did not produce a sample for urinalysis when directed to do so on Monday. The second opportunity for that sample was ostensibly going to occur tomorrow, Thursday 17 October. Mr Scott has however, in the intervening period, been breached in relation to his failure to provide a sample.
Mr Scott wishes to hand himself into the Court tomorrow to admitted that breach and ensure that he can continue with the DASL assessment process.
50․I was provided with an Alleged Breach of Bail Report on 17 October 2024. This Report alleged that the offender was in breach of the following bail conditions:
3. Accept supervision of ACT Corrective Services and comply with all reasonable directions.
8. Not to use or consume illicit drugs, cannabis or any other drugs not prescribed.
10. Undertake urinalysis as directed by ACT Corrective Services.
51․The Report provided the following information concerning these alleged breaches:
2. On14 October 2024, Mr Scott attended this service for bail supervision. During interview, he was directed to undergo urinalysis drug testing as per his current bail conditions. Mr Scott disclosed recent consumption of drugs, however, did not disclose what type of illicit substance he had consumed.
Mr Scott pleaded to not be directed for urinalysis, however the direction remained. He then refused to undertake the urinalysis test despite the direction and refused to disclose the type and amount of drug use.
Prior to departing the interview, Mr Scott stated he does not wish to be considered for the Drug and Alcohol Sentencing List.
3. It should be noted in relation to bail condition 12, email correspondence on 14 October 2024 from Karralika Day Program stated Mr Scott has attended the day program 61% of the time. Therefore, Mr Scott is also at risk of breaching his Bail Condition 12 as an 80% attendance rate is required to graduate successfully 'To remain in the Karralika Day Program until discharged on successful completion and comply with all reasonable directions from the program staff.'
52․The Report added:
Mr Scott has had extensive involvement in the criminal justice system since 2002 with a large portion of his offending being violent in nature.
When subject to supervision of this Service, Mr Scott has demonstrated a poor level of compliance towards his orders, often resulting in breach action occurring.
53․After receiving this report, I listed the proceedings before myself on 17 October 2024.
54․At the commencement of that hearing, Mr Deakes informed me that the offender accepted that he had breached his bail conditions by failing to give a urine sample, but that the offender maintained that he had not started using drugs or alcohol. Mr Deakes said that the offender instructed him that he was unable to provide a urine sample because he had recently gone to the toilet at the time that he was directed to provide the sample.
55․In view of the difference in the accounts given in the breach report and the instructions provided by the offender to his legal representative, it was necessary for both the offender and the officer to give evidence.
56․In her evidence in chief, the Community Corrections Officer gave evidence that the offender had been seen “[running] quickly up and down the stairs a lot while waiting for [his appointment]”. She said that when the offender arrived in the interview room he had bloodshot eyes. She said that the offender said that he did “not want a DATO”, and added that he understood that a Treatment Order would mean that “Corrections own him for the length of the order”. The officer also said that the offender stated that he “wants an ICO”.
57․In relation to urinalysis, the officer testified as follows:
[The offender] became emotional when [the officer] directed him to attend a urinalysis test. He begged to be given a few days and [said] that he could do it on Wednesday. The officer advised that it must be today, and asked why he cannot provide a sample. He disclosed a lapse; however, would not disclose what he has used or when he has used it. He said that it was a lapse only and it was his first one. [The offender] signed the forms; however, stated that he could not provide a sample anyway. The officer advised nil sample will be a breach of his bail conditions, as a positive urinalysis would be also. [The offender] refused to give a sample and left the office.
58․The Community Corrections Officer stated that the offender was “very teary, very stilted in his conversation and his comments”. She said that “it was clear to me as an assessor that he didn’t want to discuss it any further”. She said that the offender “begged” to be given an opportunity to provide urinalysis on another day.
59․However, in cross-examination, the officer’s account of what the offender had said was somewhat different. She agreed that the offender had not in fact said to her that he had “lapsed”. She said that after she directed the offender to provide a urine sample, the offender became “very emotional”. She said that “his physical demeanour and manner was very confirmatory to [her]”. The officer said that she then asked the offender the questions “Is there a reason you don't want to do that? Have you lapsed?” She said that the offender appeared to “nod” in response to this double-barrelled question. She said that the “impression” that she got was that the offender was telling her that he had lapsed. However, she confirmed that the offender did not tell her that he had “lapsed”, and could not recollect whether the offender had told her it was his “first time” or whether he responded non-verbally to this query.
60․The officer said that the observations about walking up and down the stairs had also been made by the receptionist. She agreed that there could have been many reasons apart from recent illicit drug use that could explain that behaviour. She also agreed that there were other explanations for the offender having bloodshot eyes. In particular, she gave evidence that the offender had told her at the commencement of the interview that he had recently been unwell.
61․The exchange between the officer and Mr Deakes regarding the offender’s preference for an ICO was as follows:
I do note in the ICO he has verbally noted that he did wish to be considered for it, but that was, again, in the conversation. It was noted he does not want a DATO, so that is - - -
MR DEAKES: Could he have said to you that it would have been or would be more productive for him to be on an ICO?---It's not something I would comment on, what would be more productive for a person.
Did he say to you that it would be more productive for him to be on an ICO?---No, he did not say those words, that I recall.
62․The Community Corrections Officer was unable to recall the precise words that led to her impression that the offender had told her that he did not wish to be on a Treatment Order. The officer also gave evidence that the breach report had stated that the offender had failed to comply with supervision previously. However, in her oral evidence, the officer confirmed that that comment only related to occasions where the offender had previously been supervised and did not relate to any supervision in relation to the current offending. The officer also gave evidence that on one occasion, on 9 October 2024, after missing an appointment, the offender called her four times. When the officer returned the call, the offender immediately apologised, and said he was unwell and had just woken up. When asked about her reference to further compliance issues, the officer confirmed this was the only incident since she had been involved with the offender, and that there were no other issues of non-compliance.
63․In his evidence, the offender explained that he had urinated 5 to 10 minutes before being asked to undertake the urinalysis (which are requested on a random basis). He stated that the bathroom was on the ground floor of the building, and that he had run downstairs to go the bathroom before his appointment. The offender said that when he returned upstairs, he was seen by the officer, who immediately directed him to undertake a urinalysis and told him that his failure to do so would constitute a breach of bail. The offender explained that he became emotional at the prospect of returning to prison. He denied telling the officer that he had “lapsed”, and maintained that he had not used any illicit substances since November 2023.
64․The offender said that he had not been given an opportunity to give a urine sample later in the day. He said that he offered to give a sample in a few days’ time because he knew that he had appointment in two days’ time, and was offering to give the sample then.
65․The offender gave further evidence that while his Karralika attendance had been varied, Karralika had recently implemented a new system where participants were required to sign in, which had not previously been required.
66․The offender gave evidence that he still wished to be considered for a Treatment Order. He maintained that he would prefer an ICO, as he would “find it more productive” and “would be able to work”. However, having confirmed with his employer that his job would always be there for him, he informed the Court that he did wish to be considered for a Treatment Order.
67․After hearing the evidence of the offender and the Community Corrections Officer, the prosecutor accepted that there had been scope for miscommunication between the officer and the offender, and informed the Court that he did not apply for the offender’s bail to be revoked.
68․I agreed with the prosecutor’s position. Whilst I was satisfied that there had been a breach, in that the offender had not provided a urine sample when directed, I was not satisfied on the balance of probabilities that the offender had refused to provide a sample because he knew or feared that he would test positive. I was also not satisfied that the offender understood that he could provide a sample later in the day.
69․Accordingly, I noted the breach of bail and made an order for the offender’s bail to continue on the then current conditions. I encouraged the offender to speak to Karralika about ensuring their formal records were accurate, and to ensure he had a medical certificate if was unable to attend because of illness.
70․As will be discussed further below, the report of the Community Corrections Officer lacked the precision which the Court expects in reports of this nature. The report recorded that the offender “disclosed recent consumption of drugs” and that the offender “refused to undertake the urinalysis test”. The report should have made clear that the offender did not state in words that he had recently consumed drugs, nor that he had refused to undertake urinalysis, but rather that this was the author’s impression from the offender’s body language. In view of the seriousness of the consequences of these reports (which may result in an offender’s immediate return to custody), it is critical that the Court be fully apprised of the circumstances of the alleged breach, and that important facts are fully recounted and not stated by way of conclusory summary.
71․After the report of the first bail breach that I ordered that the offender be subject to urinalysis that day. The offender immediately attended upon that urinalysis, which returned a negative result.
Second alleged breach of bail conditions
72․A further application concerning an alleged breach of bail conditions came before Taylor J as duty judge on 11 November 2024.
73․Justice Taylor was informed that the offender had been found asleep in a car. This was alleged to constitute a breach of the offender’s curfew condition.
74․The offender gave evidence before Taylor J that his mother had recently been diagnosed with Stage 4 cancer, and that his partner had recently given birth to his child. He explained that he had fallen asleep at his mother’s house after assisting her, and asked a friend to pick him up when he realised he was in breach of his curfew. The offender said that he and his friend then both fell asleep in the car, which was parked across the road from his house.
75․In those circumstances, Taylor J determined to take no action in respect of the alleged breach.
Final sentence hearing: 19 November 2024
76․On 19 November 2024, the matter came before me for final submissions.
77․In his sentencing submissions, the prosecutor observed that whilst the offender’s conduct on bail had not been poor, it had also not been exemplary. In this respect, the prosecutor referred to the evidence that the offender had failed to attend Karralika appointments or return calls. The prosecutor advised he had attempted to contact Karralika to conclusively determine the offender’s attendance rate with no success.
78․The prosecutor described the sentencing task as “vexed”, noting that whilst the offender’s less than ideal response suggested that he may not succeed if placed on a Treatment Order, conversely, the concerns about the offender’s conduct whilst on bail may also demonstrate a greater need for the offender to be placed on a Treatment Order (“if [the offender] had [complied with his bail conditions] fantastically then he wouldn’t necessarily need the oversight of DASL”). Ultimately the prosecutor indicated that he would not be heard against the imposition of a Treatment Order in the present case. The prosecutor confirmed that the prosecution’s previous opposition to the imposition of any other non-custodial alternative, such as an ICO, was maintained.
79․In his submission in reply, Mr Deakes reported that the offender’s mother had been diagnosed with stage four cancer, which had spread to multiple parts of her body, and that she was not undertaking treatment. Mr Deakes also reported that the offender’s partner, who does not live with the offender, had just given birth. Noting these external pressures, Mr Deakes submitted that if the offender were to use, “now would be the time”. In this context, Mr Deakes submitted that the fact that the offender’s urinalysis results had been negative was significant.
80․Mr Deakes submitted as follows:
I am instructed that he is committed to that order. He understands the stringent and onerous responsibilities that would come with [a Treatment Order]. The fact that your Honour did put him on 20 very stringent bail conditions which he has, in my submission, had good compliance with other than one, as I would characterise, a minor breach, has been able to comply with those conditions well up until this point.
81․Mr Deakes further submitted that the offender had been attending Karralika “as much as possible” given the personal difficulties he has recently faced. Mr Deakes then urged me to impose a Treatment Order.
The ICO Assessment Report and Drug and Alcohol Assessment Reports
ICOAR
82․The ICOAR, dated 5 August 2024, noted the offender had been supervised by ACT Corrective Services on many previous occasions, and has a varied history of compliance towards community-based orders, including breaches recorded for non-compliance.
83․The ICOAR noted the offender engaged well during his ICO assessment period, and expressed a willingness to comply with supervision and ICO conditions, if found suitable.
84․The ICOAR referred to the offender’s extensive criminal history, personal background, education, employment, financial situation, alcohol and drug dependence, mental and physical health and accommodation factors (set out at [19] – [30] above).
85․The ICOAR also verified that the offender’s employer had offered him the opportunity to resume working for the landscaping business, if he were released from custody and that the offender reported an intention to work part-time to participate in any alcohol and drug related day programs. The offender reported an intention to distance himself from anti-social associations if he was released from custody, and identified his employer as a supportive, pro-social influence.
86․The offender was reported to be managing his mental health well at the time and denied any current need for mental health supports.
87․The offender told the ICO assessor that his offending was “reckless” and “careless”. He denied he had taken any illicit drugs, however admitted to consuming a large amount of alcohol on the day of the offending. The ICOAR concluded that the offender appeared to acknowledge the seriousness of the offending and its impact on the victim and wider community.
88․The ICOAR assessed the offender as being a medium/high risk of reoffending. The report identified the risk factors as including the offender’s history of alcohol and drug use, mental health concerns, anti-social influences, and his violent related offending behaviours. At the offender’s request, the ICOAR recommended a curfew condition. The ICOAR also recommended the offender continue to engage with relevant community supports to address his mental health concerns and alcohol and drug concerns.
89․Ultimately, considering the steps the offender had taken to address his alcohol and drug use in custody, his motivation to continue to address his primary risk factors and willingness to accept any ICO conditions, the authors of the ICOAR assessed the offender as suitable for an ICO.
Drug and Alcohol Treatment Assessment Report
90․On 12 November 2024, I received a further Drug and Alcohol Treatment Assessment (DATA) Report from ACT Corrective Services.
91․This DATA report noted that the offender had commenced Karralika’s Matrix program on 29 August 2024, and that the offender’s bail conditions required he engage in the program for 16 weeks with expected attendance over three days per week.
92․The DATA report referred to an attendance record supplied by the Matrix program dated 1 November 2024, which reported that the offender had a 66% attendance rate. The DATA report noted that Karralika requires an 80% attendance rate for graduation, and DASL participants must attend 100% of the program. The DATA report also noted that the offender was offered counselling at the Karralika Deakin office, however had cancelled appointments stating he had difficulty with transport. The offender had also not taken up an offer to receive counselling by telephone. The DATA report stated that the offender engaged well with Matrix groups, answering content and explorative questions.
93․In the interview for the DATA report, the offender reported his mental health and psychological condition had not changed since his ICO assessment interview, but later expressed poor mental health due to his mother’s cancer diagnosis. The offender confirmed he was still living in ACT Housing accommodation as detailed in the ICOAR.
94․The report also noted that on 9 October 2024, the offender failed to report for his interview, but then called the author multiple times at 12:55pm, 12:56pm, 1:06pm and 1:16pm. When the author returned the offender’s call at 1:25pm, the offender confirmed that he had missed his appointment that morning. The offender apologised and explained he had been unwell. The offender was directed to attend an interview on 14 October 2024, and presented as required. The report disclosed that at this interview, the offender expressed a preference to be sentenced to an ICO. The report stated an ICO would allow him greater flexibility to work, allowing him a greater chance of success. The above information was consistent with the evidence of the Community Corrections Officer, detailed at [61] – [62] above.
95․The DATA report noted that the offender reported as directed, and produced negative urinalyses on 4 September 2024, 17 October 2024 and 7 November 2024. The report also referred to the offender’s breach on 14 October 2024, and two occasions, on 24 October 2024 and 31 October 2024, when the offender failed to attend due to being unwell and provided medical certificates stating he was unfit for work.
96․The DATA report concluded that the offender was not suitable for a Treatment Order, on the basis that the offender would struggle with the stringent conditions of a Treatment Order in circumstances where the offender had failed to satisfactorily engage with the service for the purpose of this assessment and drug testing, and had failed to complete the Karralika day program. The offender was assessed as a high risk of re-offending, due to his drug and alcohol dependencies, mental health, employment, companions, accommodation and attitudes and orientations.
Canberra Health Services Drug and Alcohol Sentencing List Suitability Assessment Report
97․I received the DASL Report on 12 November 2024. This report detailed several unsuccessful attempts to contact the offender, and noted that he did not attend a scheduled interview on 31 October 2024, but that he had attended an interview at the ACT Supreme Court on 4 November 2024 and completed a telephone interview on 8 November 2024.
98․The DASL report noted that, during the first interview on 4 November 2024, the offender reported a reluctance to engage in a Treatment Order, and that he appeared to be concerned that the Treatment Order would cause him to “be pulled backwards” by the other participants.
99․The report recorded that in the interview on 4 November 2024, the offender stated his preference was to undertake an ICO and continuing attending the Matrix Day Program. The report further recorded that during the telephone interview on 8 November 2024, the offender was advised of all the requirements of a Treatment Order. The offender stated that he understood these and was prepared to comply with the requirements.
100․The DASL Report also referenced a letter from Karralika dated 8 November 2024, which confirmed that the offender could remain a participant even if he became a drug and alcohol sentencing list client. This letter noted that if the offender increased his participation, he would graduate on 24 February 2025. This letter outlined all requirements of the program, the offender’s leave of absence and his current participation rate.
101․The DASL Report highlighted the following factors as relevant to assessing the offender’s suitability for a Treatment Order:
(a)He was deemed ineligible for a Treatment Order on 3 September 2024, due to his substance use disorder being assessed as moderate, below the threshold for consideration of a Treatment Order;
(b)Multiple attempts were required to contact the offender for his interviews and the offender did not attend his first scheduled interview. The offender also provided two contact numbers, one of which was not his own;
(c)His attendance rate at Karralika of 66%;
(d)The offender’s failure to provide a urinalysis.
102․The DASL Report concluded that the offender may “benefit instead from completing an ICO while attending the Matrix Day Program”, as he was at risk of failing to meet the requirements of a Treatment Order, placing him at jeopardy of accruing sanction points and returning to AMC. The DASL Report also noted mixing participants with varying levels of substance use disorder may result in adverse outcomes for low need participants by exposing them to antisocial influences.
Determination
103․The offending involved an invasion of the victim’s home, a place where the victim was entitled to feel safe: R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 at [116], citing DPP v Brooks [2005] VSCA 31 [22].
104․Whilst none of the offenders were armed, the offender was in company with three other offenders. As the prosecutor submitted, the victim was significantly outnumbered by the offenders. It is apparent from the fact that the offenders arrived together and demanded heroin from the victim that the offending involved a degree of planning. Actual force was used against the victim, who sustained injuries including scratches and bruising, and psychological harm. Although the offender did not himself physically assault the victim, the offender threatened the victim with reprisals if he reported the matter to police.
105․As Mr Deakes properly accepted on behalf of the offender, no penalty other than a term of imprisonment is appropriate, given the seriousness of the offending.
106․The offender attributed his offending to heavy alcohol use at the time of offending. Whilst alcohol or illicit substance use cannot mitigate an offender’s culpability, the circumstances underlying addiction may provide a basis for mitigation: The Queen v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [197]; R v Crawford (No 3) [2017] ACTSC 99 at [39]; R v Forrest (No 2) [2021] ACTSC 259 at [112].
107․The present is such a case. The offender’s childhood was marred by exposure to drug and alcohol use in a chaotic, traumatic and dysfunctional environment, which included coercion by his father to consume alcohol when the offender was still a child. The effects of such a childhood are well documented: Bugmy Bar Book, Early Exposure to Alcohol and Other Drug Abuse (November 2019) I am satisfied that the offender’s moral culpability for his actions is reduced by this history. The weight to be given to punishment and denunciation of the offending should be attenuated to some degree.
108․However, it does not inexorably follow from this finding that the offender’s sentence should be reduced. The seriousness of the offending, and the offender’s criminal history are such that careful attention must be given to the need for the protection of the community, to specific deterrence, and to rehabilitation. Whilst these sentencing purposes are sometimes in opposition, in other cases, they will point in the same direction. It is often said and well recognised that where it can be achieved, rehabilitation will best ensure the protection of the community: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].
109․For this first time in the offender’s life, the offender is committed to drug and alcohol rehabilitation. As outlined above, during his most recent period of incarceration, the offender engaged with numerous alcohol and drug related programs. His engagement was impressive. Following his completion of the Karralika Solaris Therapeutic Community Program in custody, the offender was offered, and accepted a graduate role and became a senior peer in that program.
110․The offender’s commitment to his rehabilitation was also evident in the evidence that he gave in his evidence before me. He said that:
I don't want to ever touch a drink again, you know? I want to work with all my heart and – to succeed in not being able to pick up a drink again. But I know it's a hard road ahead but it's one that I'm willing to go – go down and work – work towards.
111․The offender expanded upon this explanation as follows:
When I – when I started there at the Solaris program, I didn't really have much insight to anything in regards to my trauma and my history with alcohol and drugs. During that program, I decided that if I'm going to do this, I'm going to do it properly, and I – I dove in and, after a few meetings with the case managers there, they – they said to me, they said, 'Look, you can get vulnerable but we want you to be careful.' And I – I turned around to them, I said, 'Look, I'm here to recover,' and I jumped straight into the deep end. I spoke about things that – even in – even in a room of guys that have been in and out of the system, and they were shocked. I progressed to complete the program with flying colours. I did extra work on top of the Solaris program itself towards my recovery by doing – they had modules there that I would – I would do weekly, and that also helped me realise things about myself, my inner self, that I didn't notice, you know? Things like my self-esteem, my assertiveness, the way I would freak out when I'd go into public and what was causing that. And then when I completed the program, I stayed on for two months, just over two months, I think it was, and was a peer support graduate.
112․The significance of the offender’s rehabilitation will be addressed further in considering the form in which the sentence of imprisonment should be served.
113․As to the length of the sentence of imprisonment, there will be a 25% reduction of the offender’s sentence for the significant utilitarian value of the offender’s early plea. I will also backdate the sentence to take into account the period that the offender has already served in custody, which includes the period that I have previously spoken of and the additional two days where the offender was held overnight referable to the breach of bail.
114․In determining the sentence to be imposed, I have considered the comparative cases referred to by the prosecution: DPP v JJ (No 2) [2004] ACTSC 74, DPP v Smith [2024] ACTSC 126, R v Hodge [2015] ACTSC 214, R v Campbell [2021] ACTSC 359; R v White [2023] ACTCA 35. However, these decisions concerned offending that involved a weapon and/or occurred during the night, when the occupants of the properties were particularly vulnerable. In contrast, the offending in the present case did not involve a weapon, and occurred during daylight hours. In those circumstances, the sentences there imposed were of little guidance in determining the sentence to be imposed in the present case.
115․Taking into account each of the matters outlined above, the appropriate sentence to be imposed is a sentence of imprisonment for three years, reduced by 25% to a period of imprisonment of two years and three months.
Should a Treatment Order be imposed?
116․As outlined above, the offender has already embarked upon a significant course of rehabilitation.
117․It is clear that continuing this rehabilitation by addressing the offender’s drug and alcohol use will be the best way of ensuring that the offender does not engage in future offending. It was for this reason that I referred the offender for assessment for a Treatment Order.
118․As noted above, the offender has been assessed as unsuitable for a Treatment Order. The reports record that the offender was assessed as unsuitable for a Treatment Order for the following reasons:
1.The offender has expressed varying levels of enthusiasm for a Treatment Order;
2.The offender does not currently have a severe substance use disorder;
3.The offender has a substantial criminal history;
4.The offender has a history of failing to comply with community-based orders, which may indicate he would be unable to comply with another community-based order;
5.The offender has failed to meet the requirements of the suitability assessment period (namely, missing scheduled appointments, responding late to telephone requests and declining to undertake urinanalyses);
6.The offender has failed to successfully engage with the attendance requirements of the Karralika Program, and the likelihood of attendance requirements increasing if he were sentenced to a Treatment Order; and
7.Particularly bearing in mind factors 4 – 7, the offender would “benefit” from an ICO than a Treatment Order.
119․The eligibility assessments are not binding on the Court. However, those reports are prepared by persons with particular expertise in administering Treatment Orders and in supporting the rehabilitation of offenders with drug and alcohol dependencies. A decision not to follow the recommendations of these authors should not be lightly made. I have carefully considered each of the reports, and the opinions expressed therein in accordance with s 80T of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
120․As to (1), whilst the offender has consistently expressed a preference for an ICO, he has also consistently expressed a desire to be considered for a Treatment Order in the event that the Court determined that it was not appropriate to impose an ICO. The offender recognises that a Treatment Order is an onerous order. The offender should not be penalised for expressing a preference for a less onerous order.
121․The evidence demonstrates that the offender is dependent on a controlled drug and that this dependency substantially contributed to the commission of the offence: s 12A(2)(a)(i) and (ii) of the Sentencing Act. The concerns expressed in (3) and (4) above concern the severity of the offender’s dependency.
122․There are two difficulties with this aspect of the reports. The first is the apparent assumption that an offender will only be eligible for a Treatment Order if the offender’s drug or alcohol dependency is properly assessed as “severe”.
123․That assumption does not appear to have a foundation in the Sentencing Act. Whilst the second column of Table 46K of the Sentencing Act provides that the “degree of dependence on alcohol or a controlled drug” is a matter that must be considered in assessing the eligibility of an offender for a Treatment Order, the third column of Table 46K clarifies that the legislature’s concern was to exclude offenders who had a “major problem with alcohol or a controlled drug unlikely to change under drug and alcohol treatment order” (emphasis added). That is, the legislature’s concern was to exclude offenders whose addiction was too severe rather than offenders whose addiction was not severe enough.
124․This issue was recently discussed by Refshauge J in DPP v Mapiou [2024] ACTSC 7. In those proceedings, evidence was adduced from the Manager of the Alcohol and Drug Services Court List. The Manager explained that the “target population” for Treatment Orders was based upon the Queensland Drug Court, and a “best practice” guide from the United States, each of which state that it is “best to use resources for high risk, high needs”: Mapiou at [30].
125․Of this evidence, Refshauge J observed (at [79]) that:
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”...
126․In other words, the fact that an offender does not have a severe dependency does not preclude a finding that s 12A(2) (which requires a finding that the offender be “dependent on alcohol or a controlled drug” and that the “the offender’s dependency substantially contributed to the commission of the offence”) is met. Rather, as Refshauge J observed in Mapiou, that fact is relevant to the determination of whether the eligibility criteria in s 80S of the Sentencing Act (which requires the Court to be satisfied that “appropriate arrangements for the administration of a treatment order are practicable”) is satisfied.
127․In this respect, whilst the Suitability Assessment Report expressed some caution about the appropriateness of a Treatment Order for an offender with a moderate drug dependency (in particular, on the basis that “mixing participants with varying levels of risk and need in treatment groups and residential settings can negatively affect low need participants”), none of the assessment reports stated that appropriate arrangements for the administration of a Treatment Order could not be made for the offender.
128․None of this is to say that the assessment of an offender as having less than a severe dependency is irrelevant to the determination of whether a Treatment Order should be ordered. It may be inappropriate to deploy the intense resources of a Treatment Order if the purposes of punishment (in particular, the protection of the community) can be met by an ICO. I will consider this question further in response to issues (3), (4) and (5), which are discussed below.
129․Most importantly, as Mapiou illustrates, where an offender’s dependency is assessed as less than severe, the reasons for that assessment must be taken into account. As Refshauge J observed in Mapiou at [77]:
… 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.
130․This observation leads to the second cause for concern, namely that the basis upon which it has been concluded that the offender’s level of drug dependency has been assessed as only “moderate” is unclear.
131․The offender’s drug and alcohol issues are long standing. The evidence demonstrates that he has consumed large quantities of alcohol from when he was a child, and that he consumed methamphetamine from age 19. He plainly had a substance misuse problem at the time of the offending. His consumption of alcohol substantially contributed to his offending. The offender properly recognises that he continues to require support for rehabilitation to avoid relapse.
132․The offender has reported an abstinence from drugs and alcohol since he was remanded in custody following the present offending. However, particular caution is required in assessing the significance of this period of abstinence. During that time, the offender was in full time custody, where he participated in intense drug and alcohol rehabilitation. Whilst it is regrettably the case that alcohol and drugs can be accessed in custody, the challenges of remaining abstinent in the community are very different to the challenges of remaining abstinent in a structured custodial environment.
133․In view of these matters, I do not consider that the assessed severity of the offender’s dependency is such as to render the offender ineligible for a Treatment Order.
134․I do not consider that issues (3) and (4) are such as to render the offender unsuitable for a Treatment Order. As Christensen AJ recently observed in DPP v Baudinette [2024] ACTSC 157 at [68]:
Many participants who had previously not achieved rehabilitation, have been able to do so with the comprehensive supports available through a Drug and Alcohol Treatment Order. A Drug and Alcohol Treatment Order is designed to comprehensively address the very risk factors that arise for Mr Baudinette. This is reflected in the objects of a Treatment Order (see s 80O of the Sentencing Act) and in the Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) to the introduction of this form of sentence order –
[Drug and Alcohol Courts] deal with offences that relate to serious drug and alcohol use. They provide a unique response to a group of high risk and high need offenders who have serious issues with drug and/ or alcohol use. They aim to achieve long-term behavioural change by taking a problem-solving approach to dealing with an offender’s behaviour, and support the development of a pro-social lifestyle. [Drug and Alcohol Courts] provide targeted and structured health and justice while holding the person accountable for their offences.
135․As outlined above, the offender has recently recognised, for the first time, that he requires support in addressing the long standing issues that he has with alcohol and drugs. His criminal history, and lack of compliance prior to this recognition should not, of themselves, render the offender ineligible for a Treatment Order. The whole point of Treatment Orders is to provide support for offenders for whom other non-custodial supervision, such as through ICOs, suspended sentences and parole, have been ineffective.
136․The concerns outlined at (5), (6) and (7) above are each directed to the likelihood that the offender will comply with the onerous conditions of a Treatment Order.
137․In this respect, there are aspects of both reports that have rendered the present task more difficult. Most troublingly, the assessment report described the offender as having “refused to provide a [urine] sample” on 14 October 2024. The Suitability Assessment Report likewise reported that the offender had “declined a urinalysis screen”.
138․However, as outlined above, the Community Corrections Officer gave evidence on the bail revocation application that the offender did not expressly refuse to engage in urinalysis on 14 October 2024. Rather, this was her “impression” from the offender’s distress and her belief that the offender had nodded when asked she asked a ‘double-barrelled’ question about whether the offender was unable to provide a sample, and whether he had “lapsed”. The offender was not told that he could provide a sample later in the day.
139․After having heard the evidence from the officer and the offender, the prosecutor accepted that there had been scope for a “misunderstanding” between the officer and the offender about the taking of the sample. As noted above, I concluded that whilst the breach had been technically established (in that the offender had not provided the urine sample), no action should be taken on the breach, because it had not been demonstrated on the balance of probabilities that the offender had refused to provide a sample because he knew that he would test positive for taking drugs or alcohol. As noted above, I directed the offender provide a sample later that day (17 October 2024), which he did. That sample returned a negative result.
140․As outlined above, the breach report lacked the precision which is expected in reports of this nature. The report described the offender as having “disclosed recent consumption of drugs” and having “then refused to undertake the urinalysis test despite the direction”. Having clarified these matters in evidence in the breach proceedings, the DATA should not have described the offender as having “refused to provide a sample” on that occasion without further explanation.
141․The remaining occasions on which the offender failed to engage with Corrective Services were on 9 October 2024, 24 October 2024 and 31 October 2024. On the first occasion, the offender failed to report as directed, but the offender called the author of the report at 12:55pm, 12:56pm, 1:06pm and 1:16pm. When the author returned the offender’s call, he apologised and told the author that he had been unwell and just woke up. He was directed to attend on 14 October 2024, which he did. On 24 October 2024 and 31 October 2024, the offender was unwell and provided medical certificates demonstrating his illness.
142․The particulars of the offender’s failure to engage with the authors of the Suitability Report are more concerning. However, I note that the date which the offender failed to attend the appointment with those authors (31 October 2024) was a date on which the offender was unwell and provided a medical certificate. I also accept that the offender’s less than perfect attendance at Karralika is a matter of concern for his future compliance with a Treatment Order.
143․This leads to consideration of issue (7), namely, that the ultimate recommendation of both report writers is the offender would “benefit” from an ICO rather than a Treatment Order.
144․As noted above, where the purposes of sentencing can be met by the imposition of an ICO, it will usually be in the interests of both the community and the offender for an ICO, rather than a Treatment Order, to be made.
145․However, in the present case, I do not consider that the purposes of sentencing can be met by an ICO. Critical to this conclusion has been the management of the risk posed by the offender. It is clear from the offender’s criminal history that the offender engages in criminal conduct when he consumes drugs or alcohol. It also appears that, provided the offender remains abstinent from drugs and alcohol, his risk of re-offending is low.
146․The ICOAR and the DATA report have each assessed the offender as having a “high risk” of reoffending, in particular, on the basis of his drug and alcohol use. As the present offending illustrates, if the offender recommences using drugs and/or alcohol, he will present a real risk to the community.
147․I do not consider that the conditions of an ICO will be sufficient to manage the risk. There are various stressors in the offender’s life which may adversely affects his resolution not to consume alcohol or other drugs. As outlined above, his compliance with existing bail conditions, whilst not at all poor, have not been exemplary. It seems that he has not prioritised his attendance at Karralika above all other concerns in his life. Under a Treatment Order, the offender will be closely managed and supervised. He will be subjected to regular screening, and his attendance at drug and alcohol rehabilitation will be closely monitored. Action may be taken if the offender’s commitment to his rehabilitation appears to be wavering. If the offender fails to comply with the obligations under the Treatment Order, he will be immediately sanctioned. This close supervision is not available under an ICO. If an ICO is imposed, any relapse by the offender may not be discovered until after the commission of a further offence.
148․Given these matters, I have also given careful consideration to whether the appropriate order should be for the offender to serve the sentence of imprisonment in full time custody. In all of the circumstances, I have concluded that this would not been appropriate.
149․Whilst the offender’s performance on bail has not been exemplary, it has not been poor. Apart from two occasions (the circumstances of which have been extensively addressed above), the offender has complied with each of the extensive bail conditions that were imposed. He has not engaged in any further reoffending to date. I am satisfied that the offender is committed to his rehabilitation. When he has attended Karralika, he has been reported to have engaged well. If the offender accepts the support of the Treatment Team, he will be able to continue on his rehabilitative path, and, importantly, to strengthen his connections with his family, his community and his children, connections that would be necessarily weakened if he were ordered to serve the remainder of his sentence in full-time custody. The purpose of rehabilitation would not be achieved by that outcome: Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Bugmy Bar Book, 2021).
150․I have given careful attention to the concerns of the authors of the assessment reports. As the authors warn, and as the offender is fully aware, the early stages of a Treatment Order are significantly more onerous than the bail conditions which the offender is presently subject to. If the offender breaches these conditions, he will be returned to custody. The offender’s future will be in his hands.
151․In summary:
(a)I am satisfied that the offender has consented to the Treatment Order, and that he will live in the ACT for the duration of the sentence except as directed by the Court: s 12A(2)(c) of the Sentencing Act and s 12A(2)(a)(iii) of the Sentencing Act.
(b)I am satisfied that a Treatment Order is appropriate, having taken into account the relevant sentencing considerations that apply, and the objects of a Treatment Order: ss 12A(2)(b) of the Sentencing Act and s 80O of the Sentencing Act;
(c)There is no indication that there are any concerns of a victim about their safety or welfare: s 12A(2)(b)(ii) of the Sentencing Act; and
(d)I am satisfied that the offender is both eligible and suitable for a Treatment Order: ss 80S and 80T of the Sentencing Act.
152․Accordingly, I will made an order for a Treatment Order under s 12A of the Sentencing Act.
Orders
153․For the above reasons the following orders are made:
(a)Brett John Scott be convicted of joint commission aggravated robbery (CAN541/2024) and be sentenced to imprisonment for two years and three months, backdated by 206 days, to commence on 3 May 2024, and expire on 2 August 2026.
(b)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Brett John Scott in respect of the eligible offence of joint commission aggravated robbery (CAN541/2024) for which Brett John Scott has been convicted and for which he has been sentenced to imprisonment for 2 years and three months.
(c)It be noted that conviction and sentence imposed for the eligible offence have been recorded will be incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.
(d)The Drug and Alcohol Treatment Order be for 1 year 8 months 8 days from today, 26 November 2024 to 2 August 2026.
(e)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 12 months from today, 26 November 2024 to 25 November 2025.
(f)The Custodial Part of the Drug and Alcohol Treatment Order for the eligible offence will be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 26 November 2024, until 2 August 2026.
(g)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Brett John Scott be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 26 November 2025, until the end of the total sentence, 2 August 2026, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
(h)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
1․ The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;
2․ Brett John Scott undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, a curfew, with whom he associates and his attendance from time to time;
3․ Brett John Scott is not to leave his place of residence between any curfew hours directed by the Treatment and Supervision team, other than for a medical emergency, and he is to present himself to the front door of the residence if required by an officer of ACT policing;
4․ Brett John Scott is not to leave his place of residence between any curfew hours directed by the Treatment and Supervision team, other than for a medical emergency, and he is to present himself to the front door of the residence if required by an officer of ACT policing;
5․ Brett John Scott not return a positive test sample under alcohol and drug testing;
6․ Brett John Scott not consume or use alcohol, cannabis, illicit drugs and prescription drugs not prescribed to him; and
7․ Brett John Scott comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(i)Brett John Scott be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force before he leaves the Court precincts.
(j)Brett John Scott be directed to appear in person in Court on Tuesday 3 December 2024 at 11:30am before Christensen AJ.
| I certify that the preceding one hundred and fifty-three [153] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker Associate: Date: |
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