Fleury v Director of Public Prosecutions
[2023] ACTCA 46
•2 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Fleury v DPP |
Citation: | [2023] ACTCA 46 |
Hearing Date (s): | 2 September 2022 |
Decision Date: | 2 September 2022 |
Reasons Date: | 12 December 2023 |
Before: | McCallum CJ, Loukas-Karlsson and Kennett JJ |
Decision: | (1) Allow the appeal. (2) Set aside the sentences imposed by McWilliam AJ on 6 May 2022. (3) Remit the matter to McWilliam AJ for sentence. (4) Bail is refused. (5) List the matter before McWilliam AJ at 12pm on 2 September 2022. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence where sentencing judge failed to exercise the discretion to order a drug and alcohol treatment order assessment in circumstances where referrals to the drug and alcohol treatment list were paused – appeal allowed – remitted to the sentencing judge for sentence according to law |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) chs 3, 4, ss 10, 11(2), 12(2), 12A, 37E(2)(a), 46J, 80ZN Supreme Court Act 1930 (ACT) s 37E(2)(a) |
Cases Cited: | House v The King (1936) 55 CLR 499 at 505 R v Fleury [2022] ACTSC 103 |
Texts Cited: | Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT). Supreme Court of the Australian Capital Territory, Notice to practitioners: Drug and Alcohol Sentencing List – Pause on new referrals, 22 February 2022. |
Parties: | Jayke Steven John Fleury ( Appellant) Director of Public Prosecutions ( Respondent) |
Representation: | Counsel A Doig ( Appellant) K McCann ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 26 of 2022 |
Decision under appeal: | Court: ACT Supreme Court Before: McWilliam AJ Date of Decision: 6 May 2022 Case Title: R v Fleury Citation: [2022] ACTSC 103 |
THE COURT:
1․Jayke Fleury was committed to the Supreme Court to be sentenced for numerous drug, violence and weapons offences. The sentencing judge (McWilliam AJ) sentenced him to imprisonment for periods totalling 3 years, 9 months and 22 days: R v Fleury [2022] ACTSC 103.
2․There was no doubt that Mr Fleury’s offending was driven by his dependency on prohibited drugs. His counsel had indicated to the sentencing judge that he would be contending for a drug and alcohol treatment order (DATO), which allows an offender to participate in the Drug and Alcohol Sentencing List (DASL). Participants in that list are permitted to serve a sentence of imprisonment in residential rehabilitation or in the community subject to accepting intensive treatment and monitoring and on the condition that they remain sober and drug-free. They are supported by a multi-disciplinary team that provides medical treatment, drug and alcohol counselling and supervision by Community Corrections officers. They are required to undergo regular drug testing, initially three times a week, and to appear for regular “check-ins” with the DASL judge.
3․While he was on remand awaiting sentence, Mr Fleury had made significant progress towards rehabilitating himself and was a likely candidate for a DATO. However, on 22 February 2022, between the time when Mr Fleury first appeared in the Supreme Court and the finalisation of his matters, the Court published a Notice to Practitioners advising that DASL was “at capacity” and in effect closed the list: see Supreme Court of the Australian Capital Territory, Notice to practitioners: Drug and Alcohol Sentencing List – Pause on new referrals, 22 February 2022. Mr Fleury was accordingly denied the sentencing option of a DATO. The sentencing judge instead set a non-parole period of 23 months.
4․Mr Fleury appealed against the sentences imposed. On 2 September 2022, we allowed the appeal and remitted the matter to the sentencing judge, reserving our reasons. These are our reasons for making those orders.
5․The circumstances of the offences are set out in detail in the sentencing judge’s judgment at [1]-[61]. It is not necessary for present purposes to repeat them.
6․The grounds of appeal specified in the further amended notice of appeal were:
(a)The sentence was manifestly excessive.
(b)The appellant was denied procedural fairness as he was not provided any notice before a D ATO became unavailable as a sentencing option.
(c)The sentencing judge took into account an irrelevant consideration, namely, the capacity of the D ASL in determining whether a D ATO was available as a sentencing option; and
(d)There was a miscarriage of justice as a result of the sentencing judge’s failure properly to consider any sentencing option other than an immediate term of imprisonment.
7․The appellant did not address those grounds in his written submissions. Indeed, his counsel effectively embraced a point taken against him by the Director of Public Prosecutions that the appeal was in the nature of a plea to this Court to re-sentence the appellant on the basis of a failed expectation.
8․The point on which the appeal succeeded was primarily developed in oral submissions and mostly by reference to the comprehensive treatment of the appellant’s principal point in the written submissions of Ms McCann, who appeared for the prosecution. Ms McCann is to be commended for her very fair approach in elucidating the parameters of that argument.
9․Before turning to the argument developed during the hearing, it will be helpful to explain the relevant features of the statutory sentencing regime.
10․The sentencing options available for an offence are addressed in ch 3 of the Crimes (Sentencing) Act 2005 (ACT). Sentences of imprisonment are addressed in pt 3.2 of ch 3. Section 10 in pt 3.2 requires the Court to be satisfied, before sentencing an offender to imprisonment, that no other penalty is appropriate. There is no doubt that threshold was met in Mr Fleury’s case.
11․The remaining sections in pt 3.2 prescribe alternative ways in which a sentence of imprisonment, once imposed, may be served. Section 11(2) provides: “If the sentence of imprisonment is for not more than 2 years, the court may order that the sentence be served by intensive correction in the community (an intensive correction order)”. Section 12(2) authorises the court to suspend all or part of a sentence of imprisonment. Section 12A provides that, in certain circumstances: “The court may make an order (a drug and alcohol treatment order) that suspends a sentence of imprisonment for an eligible offence on condition that the offender agrees to complete a treatment program”.
12․Each of those provisions confers a discretionary power on the court to determine how a sentence of imprisonment may be served. That is a judicial function.
13․The procedures for sentencing an offender are addressed in ch 4 of the Act. Part 4.2B of ch 4 makes provision, if the court is considering whether to make a DATO, for an assessment of the offender to be obtained (a DATO assessment).
14․Section 46J is important. Relevantly for present purposes, that section provides:
46J Drug and alcohol treatment assessments—order
(1)This section applies if the court is considering whether to make a drug and alcohol treatment order for an offender.
(2)The court may—
(a)order an assessment of the offender (a drug and alcohol treatment assessment); and
(b)adjourn the proceeding for the assessment to be prepared; and
(c)order the responsible director-general to provide a copy of the assessment to the court or any other person.
(3)However, the court must order the responsible director-general to prepare the drug and alcohol treatment assessment before making a drug and alcohol treatment order.
15․It may be seen that the decision whether to order a DATO assessment involves the exercise of a discretionary power. Furthermore, as noted in the prosecution submissions, the statute purports to oust the Court’s jurisdiction to determine an appeal from a decision not to order a DATO assessment. Section 80ZN provides:
80ZN No appeal against particular decisions
(1) No appeal may be made against a decision of the court—
(a)not to order a drug and alcohol treatment assessment; or
(b)not to make a treatment order; or
(c)that an offender breached a condition of a treatment order; or
(d)to amend the treatment and supervision part of a treatment order.
(2)Subsection (1) applies despite any other territory law.
16․As noted in the prosecution submissions, the section applies “despite any other territory law” and so purports to that extent to oust the Court’s appellate jurisdiction under s 37E(2)(a) of the Supreme Court Act 1933 (ACT). The prosecution submissions noted the explanation of s 80ZN provided in the Explanatory Statement for the bill that introduced the DASL list and the DATO sentencing option:
This section limits the types of decision that an offender can appeal in relation to a DATO. It does not limit the offender’s existing ability to appeal against a sentence handed down or a conviction.
The reason that it is necessary to limit appeals in certain DATO decisions is rooted in the basis of the sentencing option. The theory underlying drug and alcohol courts in other jurisdictions is that the implementation of a problem-solving, non-adversarial order can assist an offender to overcome the drug or alcohol dependency which leads to their offending. The courts are generally based on theories of therapeutic justice, and work on the basis that an offender is likely to need multiple attempts at resolving their dependency before they succeed.
There will be a limited number of places available for offenders desiring to be sentenced to a DATO. This is common across Australian jurisdictions, and is due to the intensive resources required across multiple government agencies to assist an offender to overcome their dependency.
17․That explanation confirms what is plain in any event, that the intensive resources deployed in DASL to support an offender to overcome drug dependency are not infinite. That is a sound reason for conferring a discretion on the sentencing court whether to order a DATO assessment and for rendering the exercise of that discretion immune from appeal.
18․The prosecution submitted that there was no error in not ordering a DATO assessment because “the utility and availability of the sentencing option – whether as a matter of law or practical administration – is a relevant consideration”. It was submitted that “if, as in this case, the DASL had no capacity for further referrals, and therefore no capacity for it to make a DATO, there would be no utility in ordering any DATO assessment”.
19․However, it is clear from the material referred to above, and at [21] and [22] below, that the sentencing judge in the present case did not exercise the discretion under s 46J(2) to order a DATO assessment, or not. Rather, her Honour declined to order an assessment because she had been told, administratively, that the sentencing option of a DATO was foreclosed.
20․In any event, another difficulty with the prosecution’s submission is that, if accepted, it would suffer the exercise of a statutory judicial discretion to be dictated by the Executive. The decision to close the list was not a decision of the sentencing judge. The Notice to Practitioners dated 22 February 2022 stated:
Drug and Alcohol Sentencing List – Pause on new referrals
Practitioners are advised that the Drug and Alcohol Sentencing List is at capacity. The Court will not accept new referrals to that list until further notice.
21․Following the promulgation of that notice, the proceedings came back before the sentencing judge on 2 May 2022. At that listing, her Honour said to Mr Fleury:
We tried to get you assessed for the drug and alcohol sentencing list…But we couldn’t do it because the list is full…And so that is not an option for your sentence. No offender gets that benefit at the moment.
22․When sentencing Mr Fleury, the judge said at [108]:
But for the fact that the current resources of the Drug and Alcohol Sentencing list do not currently permit the Court considering the imposition of a Drug and Alcohol Treatment Order, he would likely have been an appropriate candidate for such an intervention. Given that option is not presently available, I consider it appropriate to craft a sentence that would allow the offender the greatest opportunity to pursue his own rehabilitation with the benefit of supervision that an extended period on parole provides, supported by his partner.
23․In our view, it is clear from those remarks that, as a result of an internal administrative decision to, in effect, close the list, the sentencing judge regarded the discretion to order a DATO assessment, which is a condition precedent to making a DATO, as being unavailable.
24․In taking that approach, the sentencing judge denied the existence of her jurisdiction in that she regarded a sentencing option as unavailable which, according to the applicable law, was available. In so doing, with respect, her Honour acted upon wrong principle: House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. It follows that Mr Fleury was not sentenced according to law. It also follows that there was no “decision” within the scope of s 80ZN(1)(a) and this Court is not precluded from correcting the error in the exercise of its appellate jurisdiction.
25․As the error in the sentencing process was to deny an existing jurisdiction, and with the agreement of both parties, we took the view that the appropriate course was to remit the matter to the sentencing judge.
Orders
26․For those reasons, we made the following orders:
(1)The appeal is allowed.
(2)Set aside the sentences imposed by McWilliam AJ on 6 May 2022.
(3)Remit the matter to McWilliam AJ for sentence.
(4)Bail is refused.
(5)List the matter before McWilliam AJ at 12pm on 2 September 2022.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 12 December 2023 |
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