Director of Public Prosecutions v Stewart (No 2)

[2024] ACTSC 163

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Stewart (No 2)

Citation: 

[2024] ACTSC 163

Hearing Date: 

20 May 2024

Decision Date: 

28 May 2024

Before:

Christensen AJ

Decision: 

See [41].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – forgery – Drug and Alcohol Treatment Order cancelled – discharge from residential rehabilitation facility – s 80ZE imposition or resentence – extent of non-compliance – imposition of balance of the term of imprisonment – rehabilitation through parole

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT) Pt 5.2, ss 7, 80W, 80ZA, 80ZB, 80ZE

Crimes (Sentence Administration) Act 2005 (ACT) s 82C

Cases Cited: 

DPP (NSW) v Cooke [2007] 168 A Crim R 379

DPP v Stewart [2023] ACTSC 252

DPP v Weldon (No 2) [2024] ACTSC 60

R v Cook (No 2) [2024] ACTSC 27

R v Dowling (No 3) [2021] ACTSC 210

R v Ruwhiu [2023] ACTCA 18

R v Tonna (No 2) [2020] ACTSC 362

Saga v ReidandCollett [2010] ACTSC 59

Parties: 

Director of Public Prosecutions ( Crown)

Euan Graham Stewart ( Offender)

Representation: 

Counsel

G Meikle ( DPP)

C Duffy ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 28 of 2023

CHRISTENSEN AJ: 

Introduction

1․Euan Stewart comes before the Court for finalisation of the review process during which there has been cancellation of his Drug and Alcohol Treatment Order (Treatment Order).

2․Mr Stewart was originally sentenced on 11 September 2023 for offences of forgery, damaging property and weapon offences: DPP v Stewart [2023] ACTSC 252 (DPP v Stewart).

3․In relation to the six forgery offences, a total effective term of 1 year and 11 months imprisonment was imposed, from 11 September 2023 until 10 August 2025. These offences were incorporated into the Treatment Order. This custodial part of the Treatment Order (‘the suspended custodial part’) was suspended pursuant to s 80W of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act).

4․The suspended custodial part of the Treatment Order first comprised of the treatment and supervision part of the order, with this being for a period of 1 year and 6 months, from 11 September 2023 until 10 March 2025. The remainder of the suspended custodial part – which also forms part of a Treatment Order: DPP v Weldon (No 2) [2024] ACTSC 60 at [6] – was to be served by way of a good behaviour order for a period of 5 months, concluding on 10 August 2025: s 80ZA of the Sentencing Act.

Background

5․Mr Stewart commenced on the Treatment Order on the date of sentence for the forgery offences, being 11 September 2023. The Treatment Order provided that he was to travel directly from custody and admit himself to the Canberra Recovery Services residential drug rehabilitation program (CRS). Mr Stewart did so.

6․On 1 December 2023, the Treatment Order was cancelled. The provision under which the cancellation occurred is not express in the order.

7․The prosecution submissions provide that the order was made pursuant to s 80ZE, that is, a cancellation on the grounds of unsatisfactory circumstances. No submission was made on behalf of Mr Stewart that it was a cancellation pursuant to the other possible section of the Sentencing Act, that is, a s 80ZB cancellation for a breach of the Treatment Order other than by commission of an offence.

8․Having reviewed the transcripts of the proceedings up to and including the cancellation, which will be considered further below, I conclude that it was a cancellation pursuant to s 80ZE, which provides –

80ZE Cancellation of treatment order—unsatisfactory circumstances

(1)The court may cancel a treatment order if it is satisfied on the balance of probabilities that—

(a)before the order was made, inaccurate or misleading information about the offender or the offender’s circumstances was given to the court or an assessor who prepared a drug and alcohol treatment assessment in relation to the offender, and as a result of the information, the making of the order was inappropriate; or

(b)the offender will not be able to comply with a condition of the offender’s treatment order because the circumstances of the offender have materially changed since the order was made; or

(c)the offender is unwilling or unlikely to comply with a condition of the offender’s treatment order; or

(d)the continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order; or

(e)the offender withdraws the offender’s consent to the treatment order; or

(f)the offender poses an unacceptable risk to the safety or welfare of a person.

(2)If the court decides to cancel a treatment order under subsection (1) the court must make an order cancelling the treatment order and, taking into account the extent to which the offender has complied with the treatment and supervision part of the order, either—

(a)impose the sentence of imprisonment that was suspended under the custodial part of the treatment order; or

(b)if the court considers it appropriate in the circumstances—resentence the offender for each offence in relation to which the treatment order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and alcohol treatment orders).

(3)If the court orders the imposition of a sentence of imprisonment under this section, the court—

(a)must order whether the offender is to serve all or part of the sentence by full-time detention at a correctional centre; and

(b)may reduce the sentence by any period served in custody under the treatment and supervision part of the treatment order, taking into account the extent to which the offender complied with that part of the order.

(4)The court may make an order under this section on its own initiative or on application by—

(a)the offender; or

(b)the director of public prosecutions; or

(c)a member of the treatment and supervision team; or

(d)a person prescribed by regulation.

(5)This section applies in addition to section 80ZB and section 80ZD.

(6)If the court makes an order under this section, the court must, assoon 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 the court considers should receive the notice.

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

9․The information available to the Court does not enable a firm conclusion to be drawn as to the particular subsection that the court was satisfied of on the balance of probabilities, beyond it being either subsection (1)(b), (c) or (d). It is though unnecessary, in the circumstances of this matter, to have certainty as to that. It is sufficient to conclude, and able to be concluded, that it was a cancellation pursuant to s 80ZE(1) of the Sentencing Act.

10․It follows from this that s 80ZE(2) of the Sentencing Act then applies.

Cancellation

11․It has been necessary to firstly consider carefully the provision under which cancellation occurred as this is determinative as to the approach to be taken in deciding whether to impose the sentence of imprisonment that was suspended under the custodial part of the Treatment Order, or to resentence.

12․As observed in R v Cook (No 2) [2024] ACTSC 27 (Cook (No 2)) at [10] as to a cancellation pursuant to s 80ZE:

[A] preliminary consideration is the extent to which there was compliance with the treatment and supervision part of the order. Having considered that, the court then turns to consider if it is appropriate in the circumstances to resentence. If it is not, the suspended portion is imposed.

Compliance with the Treatment Order

13․At the first in court review on 15 September 2023, Mr Stewart attended in person. The court records reflect that he was “going well” at this stage. The following week, on 22 September 2023, concerns Mr Stewart had as to his accommodation after residential rehabilitation were discussed, after his mother and sister’s residence was found by Community Corrections to be unsuitable. The enquiries as to accommodation options were to continue.

14․There was a further appearance for review on 29 September 2023, and then again on 6 October. The later of these involved an appearance by phone as Mr Stewart was unwell. He was due to progress to phase 2 of the CRS program the following week. It had been reported that Mr Stewart was late for a commitment during the CRS program, which Mr Stewart attributed to his having been unwell.

15․Mr Stewart’s next court attendance for review under the Treatment Order was on 27 October 2023. He had been struggling with his medication regime, which was causing him to oversleep and impacting on his CRS obligations. He had a plan in place to manage this. Mr Stewart was then scheduled to appear in court on 10 November 2023.

16․On 9 November 2023, the treatment and supervision team received information that Mr Stewart was to be discharged from the program for behaviours including cannabis use. The cannabis use was confirmed from urinalysis testing. In accordance with the court orders, following the discharge, Mr Stewart was required to appear in court.

17․Mr Stewart did not appear, and an arrest warrant was issued. On 22 November 2023, Mr Stewart appeared in the Supreme Court following the execution of the warrant. The suspension of the custodial part of the Treatment Order was provisionally cancelled, and Mr Stewart was remanded in custody, where he has remained since that time.

18․Mr Stewart provided an explanation for his non-compliance from when he was first returned to court following the execution of the warrant. This explanation is that he was highly concerned by the lack of accommodation options available to him after the conclusion of the residential rehabilitation program. The stress from this had caused him to have difficulty with sleeping and he had used cannabis to assist with this. He failed to appear at court as he was concerned by the prospect of a return to custody.

19․In essence, Mr Stewart complied with the Treatment Order to the extent that he attended and participated in the first phase of the CRS residential rehabilitation program. This was for a period of 60 days. Thereafter, there was no compliance. Rather, there was engagement in substance use, an exit from the residential rehabilitation program, and a failure to attend at court as required.

20․To Mr Stewart’s credit, the cancellation did not involve reoffending. But it did otherwise involve only a bare minimum of compliance with the Treatment Order by a period of engagement with the residential rehabilitation program. Beyond that, he demonstrated little compelling enthusiasm and commitment for the Treatment Order. Indeed, after five appearances in court to participate in the court review aspect of a Treatment Order, Mr Stewart failed to attend at court. There was no voluntary surrender in respect to the warrant that was issued.

Appropriate to resentence?

21․The prosecution submitted that a resentence was appropriate. The representative on behalf of Mr Stewart joined in this submission. I was referred to what was said by Refshauge AJ in R v Tonna (No 2) [2020] ACTSC 362 (Tonna (No 2)) when also considering the orders following cancellation pursuant to s 80ZE –

Re-sentencing arises where circumstances since the original sentence means that a variation of that sentence is required. For example, where an offender has made substantial efforts at rehabilitation and achieved progress, the original sentence may no longer be appropriate, in the sense that had those efforts and progress been made and achieved before sentence, a different sentence would have been imposed.

There will, no doubt, be other circumstances, such as a change in conditions since the sentence was originally imposed so that a different sentence would have been imposed, meaning that the sentence might need to be varied, as was accepted for different sentences imposed because of the effect of the response to the COVID-19 pandemic which had an effect on sentences: R v Yavuz (No 2) [2020] ACTSC 248 at [136]-[141].

22․The prosecution submission was that it is unfortunate that Mr Stewart benefited from approximately only two months of the intensive court-supervised intervention that was envisaged by the original sentencing judge. Despite this, Mr Stewart did complete eight weeks of a residential program, in addition to having completed the Solaris program while in the AMC.

23․The prosecution expressed some reservation as to whether this amounts to the “substantial efforts at rehabilitation” that are described in Tonna (No 2), given the Solaris program was undertaken within a custodial environment. However, the prosecution submitted that given the predominance of rehabilitation in the sentencing and cancellation decisions made previously, that to give continued effect to this, an order that enables Mr Stewart to participate in community based treatment that has continuity with the Solaris Therapeutic Program (Solaris Program) ought to be prioritised. The prosecution otherwise submitted that an order that ensured Mr Stewart remained under a form of supervision to at least the original end date of supervision was appropriate.

24․I have given careful consideration to the submissions of both parties, and I do not agree that it is appropriate in the circumstances to resentence Mr Stewart. There are no compelling rehabilitative efforts or rehabilitative progress since cancellation, nor any other circumstances that warrant resentence.

25․This determination has considered, as per a submission on behalf of Mr Stewart, that the circumstance as to the prospect of deportation, remains as it was at the time of the original sentence: DPP v Stewart at [111]-[117]. It is has also considered that there is no impediment to Mr Stewart’s ability to continue his rehabilitative efforts in the community, including with the community based continuation of the Solaris Program (Karralika Matrix Day Program), through an order involving imposition.

26․The circumstances here, in determining whether to impose or resentence, are analogous to the circumstances of such a decision where there has been a breach of a suspended term of imprisonment. In such matters, Refshauge J observed in Saga v ReidandCollett [2010] ACTSC 59 at [101], that ‘although there is no “default” requirement to activate the imprisonment that has been suspended there are important policy reasons for doing so’.

27․Here, the terms of s 80ZE of the Sentencing Act may tend towards a conclusion of legislative intent that, subject to the extent of compliance and in the absence of circumstances warranting resentence, there is a “default” of imposition following cancellation of a Treatment Order for unsatisfactory circumstances. While the available orders are expressed as alternatives under s 80ZE, what informs the decision is expressed in such a way that, when compared to the same decision arising under other forms of cancellation of a Treatment Order (see: ss 80ZB and 80ZD of the Sentencing Act), there is seemingly a presumption in favour of imposition.

28․Nonetheless, whether the terms of s 80ZE amount to this is unnecessary to decide for current purposes. The point is that, as said by Howie JA in DPP (NSW) v Cooke [2007] 168 A Crim R 379, and applied by Refshauge J in Saga v Reid and Collett at [99] –

There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. Notwithstanding what has been stated about the reality of the punishment involved in a suspended sentence, if offenders do not treat the obligations imposed upon them by the bond seriously and if the courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.

29․This is equally applicable to where there has been a cancellation of a Treatment Order pursuant to s 80ZE of the Sentencing Act. As has been previously observed, the opportunity for a Treatment Order is a privilege: Cook (No 2) at [20]. It is an alternative to imprisonment in circumstances where victims and members of the community might otherwise expect that an offender should be in full-time imprisonment. While appreciating and understanding that recovery from drug and/ or alcohol addiction is a non-linear process, a Treatment Order is onerous and has an expectation of honesty, commitment and engagement by participants with the terms of the Order. Mr Stewart has barely demonstrated his ability to meet these expectations.

30․In saying that, it is also appreciated that Mr Stewart has had a limited period of time to demonstrate that he had such ability and intention. Further, he was remanded in custody and has remained there since the suspension of the custodial part of the Treatment Order was provisionally cancelled. This has meant that Mr Stewart has not had the opportunity to demonstrate his capability to rehabilitate in the community, which others who have had their Treatment Orders cancelled might have had.

31․And it must be recognised that Mr Stewart has demonstrated an intent towards rehabilitation while he has been in custody through his completion of the Solaris program. Indeed, his efforts towards rehabilitation in the custodial environment are to be commended and will be considered further below. They are not though compelling in the decision on whether to impose the suspended portion or to resentence Mr Stewart. It remains that I do not consider it appropriate in the circumstances to resentence him.

32․It follows that the suspended custodial part of the order is to be imposed, being a period of 1 year and 11 months.

Imposition

33․The decision to impose is not though the end of the matter. Subsection (3) of s 80ZE is then relevant. As observed by Refshauge AJ in R v Dowling (No 3) [2021] ACTSC 210 at [46]-[48], the meaning of this subsection within the Drug and Alcohol Treatment Order provisions is, essentially, curious.

34․It seems to me that it is intended to recognise the inclusion of ss 80W(3) and (4) in the Drug and Alcohol Treatment Order provisions, which provide –

(3)A sentence of imprisonment suspended under the custodial part is to be served by full-time detention at a correctional centre only if the court makes an order under this part cancelling the treatment order and imposing the sentence of imprisonment.

(4)If the court makes an order under this part cancelling the treatment order and imposing a sentence of imprisonment, the court –

(a)must state when the period of full-time detention starts and ends; and

(b)despite section 65, may set a nonparole period for the period of full-time detention if the period of full-time detention is more than 30 days.

35․That is, s80ZE(3) does not, subject to submissions being made as to this issue in an appropriate case, contemplate that other provisions such as ss 11 (intensive correction orders) or 12 (suspended sentences) of the Sentencing Act are enlivened on imposition of the sentence of imprisonment. It does though suggest the legislative intent that Pt 5.2 in Ch 5 of the Sentencing Act (Imprisonment – nonparole periods) and s 82C of the Crimes (Sentence Administration) Act 2005 (ACT) applies.

Nonparole period

36․As observed in R v Ruwhiu [2023] ACTCA 18 at [18] and [108], the principles relating to the imposition of a nonparole period are well settled. There is no discernible reason why the same principles ought not be applied to the determination of the appropriate nonparole period on the imposition of a period of full-time detention following cancellation of a Treatment Order.

37․Here, Mr Stewart’s efforts towards rehabilitation while in custody, and his intention to continue that with support available to him once in the community, are compelling factors favouring an opportunity for parole in the near future. Mr Stewart demonstrates that he has engaged with his rehabilitative intentions through the preparation of a rehabilitation prevention plan. He has also engaged with the Justice Housing program and is on the waitlist for transitional accommodation.

38․Mr Stewart is not someone who has a criminal history of violence, limiting concerns as to the need to protect the community. Rather, his offending behaviour on this occasion, and in the past, suggests that a lengthy period in the community with a strongly deterrent sentence, and one that supports continued rehabilitation, will achieve the purposes of sentencing: s 7 of the Sentencing Act.

39․Also informative in the circumstances of this matter as to the fixing of the nonparole period is that Mr Stewart did complete 60 days in residential rehabilitation.

40․Mr Stewart has otherwise spent a total of 188 days in custody since his remand that is solely attributable to these charges. He spent a period on remand in custody, being a total of 165 days, prior to the original sentence. However, this period was regarded as time served for other sentences imposed at the time of the original sentence.

Orders

41․For those reasons the following orders are made:

(1)Pursuant to s 80ZE of the Crimes (Sentencing) Act 2005 (ACT), the sentence of imprisonment suspended under the custodial part of the Drug and Alcohol Treatment Order cancelled on 1 December 2023 is imposed.

(2)Pursuant to s 80W of the Crimes (Sentencing) Act 2005 (ACT), the sentence of imprisonment imposed is to be served by full-time detention.

(3)The conviction of Euan Graham Thomas Stewart of forgery (CC2022/10816) is confirmed and the sentence of 12 months imprisonment is imposed to commence on 22 November 2023 and end on 21 November 2024.

(4)The conviction of Euan Graham Thomas Stewart of forgery (CC2022/10817) is confirmed and the sentence of 10 months imprisonment is imposed to commence on 22 April 2024 and end on 21 February 2025.

(5)The conviction of Euan Graham Thomas Stewart of forgery (CC2022/10818) is confirmed and the sentence of 10 months imprisonment is imposed to commence on 22 June 2024 and end on 21 April 2025.

(6)The conviction of Euan Graham Thomas Stewart of forgery (CC2022/10819) is confirmed and the sentence of 10 months imprisonment is imposed to commence on 22 August 2024 and end on 21 June 2025.

(7)The conviction of Euan Graham Thomas Stewart of forgery (CC2022/10820) is confirmed and the sentence of 10 months imprisonment is imposed to commence on 22 October 2024 and end on 21 August 2025.

(8)The conviction of Euan Graham Thomas Stewart of forgery (CC2022/10821) is confirmed and the sentence of 10 months imprisonment is imposed to commence on 22 December 2024 and end on 21 October 2025.

(9)The total term of imprisonment is to commence on 22 November 2023 and end on 21 October 2025.

(10)A nonparole period is imposed to commence on 22 November 2023 and end on 21 July 2024.

(11)It is recommended to the Sentence Administration Board under s 120(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) that:

(a)When released on parole, Euan Graham Stewart be required as a condition of the parole to undertake a substantial period of supervised or mandated drug rehabilitation, if a program is available to him.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen

Associate: J Liu

Date: