Director of Public Prosecutions v Weldon (No 2)

[2024] ACTSC 60

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Weldon (No 2)

Citation: 

[2024] ACTSC 60

Hearing Date: 

22 February 2024

Decision Date: 

22 February 2024

Revised Reasons Date:

7 March 2024

Before:

Baker J

Decision: 

(1) An arrest warrant be issued in respect of Douglas James Weldon pursuant to s 80ZJ of the Crimes (Sentencing) Act 2005 (ACT) today, 22 February 2024, on the grounds outlined in the Affidavit of Rebekah Nicole Perry, affirmed 8 February 2024.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Breach of Good Behaviour Order – offender unable to be located – application for issue of warrant – where Good Behaviour Order made as part of Drug and Alcohol Treatment Order – whether warrant should be issued for breach of Good Behaviour Order under s 104 of the Crimes (Sentence Administration) Act 2005 (ACT) or breach of Drug and Alcohol Treatment Order under s 80ZJ of the Crimes (Sentencing) Act­ 2005 (ACT) – Drug and Alcohol Treatment Order remains extant – warrant issued under s 80ZJ.

Legislation Cited: 

Crimes (Sentencing Administration) Act 2005 (ACT), s 104

Crimes (Sentencing) Act 2005 (ACT), ss 80V(d), 80W(1), 80ZA, 80ZB, 80ZJ

Cases Cited: 

R v Weldon [2021] ATCSC 348  

Parties: 

Director of Public Prosecutions ( Crown)

Douglas Weldon ( Offender)

Representation: 

Counsel

M Howe ( Crown)

No appearance ( Offender)

E Chen ( Amicus Curiae)

Solicitors

ACT Director of Public Prosecutions

No appearance ( Offender)

File Number:

SCC 70 of 2021

BAKER J:      

EX TEMPORE REASONS (REVISED)

1․The offender in this matter, Douglas James Weldon, was sentenced on 28 June 2021 by Refshauge AJ to a Drug and Alcohol Treatment Order (DATO) for various offences including theft, minor theft, obtaining property by deception, unlawful possession of stolen property, three counts of burglary with intent to steal, and three counts of ride/drive motor vehicle without consent: R v Weldon [2021] ATCSC 348.

2․The prosecution seeks that a warrant be issued for the offender’s arrest in respect of a breach of the Good Behaviour Order (GBO) imposed as part of that sentencing exercise. The matter has come before me as Duty Judge.

3․An affidavit from Ms Perry of ACT Corrective Services, affirmed 8 February 2024, indicates that Mr Weldon has failed to report as directed, pursuant to the terms of his Good Behaviour Order under that DATO.  He has failed to return calls from 11 January 2024 to 8 February 2024 (the date of the affidavit), and has also failed to attend a number of supervision appointments as directed. He is no longer living at his nominated place of residence and his partner is not aware of his current whereabouts. It is appropriate for a warrant to be issued.

4․During oral argument, a question arose as to whether the warrant should be issued under s 80ZJ of the Crimes (Sentencing) Act 2005 (ACT) or s 104 of the Crimes (Sentence Administration) Act 2005 (ACT).

5․The terms of the sentencing orders made on 28 June 2021 indicate that his Honour first imposed a DATO under section 12A of the Crimes (Sentencing) Act for the primary offence of burglary. That order was expressed as commencing on 28 June 2021 and ending on 27 June 2023. However, by order 12, his Honour extended that DATO to other specified offences of drive motor vehicle without consent. By order 14, his Honor stated that the custodial part of the extended order was to encompass a period from 28 June 2021 until 25 October 2024.  In short, when the sentencing orders are read together, it is apparent that his Honour imposed an overall DATO that was to expire on 25 October 2024.

6․A DATO consists of a custodial part, which is suspended, and a treatment and supervision part: ss 80V(d) and 80W(1) of the Crimes (Sentencing) Act. Where the treatment and supervision part of a DATO ends before the end of the sentence of imprisonment suspended under the custodial part, the Court must make a good behaviour order for the remaining period of the custodial part of the sentence: s 80ZA of the Crimes (Sentencing) Act. It is apparent from the orders when read together, and in particular Orders 15 and 16, that the treatment and supervision part of the DATO was to run until 28 June 2023. From that date until 25 October 2024, his Honour imposed a GBO under s 80ZA. It is clear that the offender’s current GBO is in force under the custodial part of his overall DATO.

7․As I am satisfied that the DATO was extant at the time of the alleged breach, I consider it appropriate to issue the arrest warrant under s 80ZJ of the Crimes (Sentencing) Act, which provides that a judge may issue an arrest warrant if satisfied, by information on oath, that an offender subject to a DATO has failed to comply, or will fail to comply, with the offender’s treatment order obligations. 

8․I am satisfied by the information given on oath by Ms Perry in her affidavit that Mr Weldon is an offender who is subject to a DATO and that he has failed to comply with his DATO obligations. 

9․Mr Chen, who appeared helpfully as amicus curiae, asked the Court to consider issuing a summons rather than a warrant, noting that there is no information before the Court regarding why Mr Weldon has not communicated with ACT Corrective Services.

10․In circumstances where Mr Weldon has apparently moved addresses without notifying ACT Corrective Services, where his current location is not known, and he has not been in contact with his partner for approximately a month, I do not consider it appropriate for a summons to be issued. If there are any mitigating circumstances concerning Mr Weldon’s breach, they can be considered by the Court when determining what action, if any, to take under s 80ZB of the Crimes (Sentencing) Act. 

Orders

11․For the above reasons, the following orders are made:

(1)An arrest warrant be issued in respect of Douglas James Weldon pursuant to s 80ZJ of the Crimes (Sentencing) Act 2005 (ACT) today, 22 February 2024, on the grounds outlined in the Affidavit of Rebekah Nicole Perry, affirmed 8 February 2024.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 7 March 2024