Makrogiannis v Magistrates' Court of Victoria
[2021] VSC 190
•22 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0006
| KON MAKROGIANNIS | Appellant |
| - v - | |
| THE MAGISTRATES’ COURT OF VICTORIA AT MELBOURNE | First Respondent |
| - and - | |
| WINNIE SARPONG | Second Respondent |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 March 2021 |
DATE OF JUDGMENT: | 22 April 2021 |
CASE MAY BE CITED AS: | Makrogiannis v Magistrates’ Court of Victoria & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VSC 190 |
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APPEAL – Criminal law – Drug Treatment Orders – Appeal from Magistrates’ Court on question of law – Orders of Magistrate cancelling treatment and supervision part of a Drug Treatment Order and activating all of the custodial part – Whether Magistrate denied the appellant procedural fairness – Whether Magistrate failed to apply correct test for cancellation – Appropriate relief – Sentencing Act 1991 (Vic) ss 18X, 18ZD, 18ZE; 18ZP; Criminal Procedure Act 2009 (Vic) s 272.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms A Brennan with Mr M Reardon | Victoria Legal Aid |
| For the First Respondent | No appearance | |
| For the Second Respondent | Ms M Isobel | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
This is an appeal on a question of law under s 272 of the Criminal Procedure Act 2009 (Vic) (‘Criminal Procedure Act’) from orders made by the Magistrates’ Court on 15 December 2020 pursuant to s 18ZP of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) cancelling the treatment and supervision part of the Drug Treatment Order (‘DTO’) imposed on the appellant, Mr Makrogiannis, on 6 October 2020, and activating all of the custodial part of the DTO, with the appellant ordered to serve 193 days imprisonment.[1]
[1]Commenced by way of notice of appeal filed on 11 January 2021 as amended on 2 February 2021.
The first respondent, the Magistrates’ Court of Victoria, did not take an active role in the proceedings and will abide by the decision of the Court in accordance with the principles in R v Australian Broadcasting Tribunal, ex parte Hardiman.[2] The second respondent, Winnie Sarpong, was the appellant’s Case Manager on behalf of Community Correctional Services Victoria.
[2](1980) 144 CLR 13.
In his amended notice of appeal filed on 2 February 2021, the appellant identifies the following questions of law arising from the Magistrates’ Court order made on 15 December 2020:
(a) Did the Magistrate deny the appellant procedural fairness by making the orders before completion of the appellant’s evidence and submissions? (‘the first question’).
(b) Did the Magistrate fail to apply, or incorrectly apply, the test in s 18ZP(1)(d) of the Sentencing Act by cancelling the treatment and supervision part of the DTO upon being satisfied that the appellant had interfered with urine testing? (‘the second question’).
The DTO regime
The issues raised in this appeal require a close examination of Sub-division (1C) of Division 2 of Part 3 of the Sentencing Act (‘Sub-division 1C’) which sets out the DTO regime.
Sub-division 1C was inserted into the Sentencing Act by the Sentencing (Amendment) Act 2002 (Vic). That amendment Act also provided for the establishment of the Drug Court Division of the Magistrates’ Court of Victoria (‘the Drug Court’) by inserting s 4A into the Magistrates’ Court Act 1989 (Vic) (‘Magistrates’ Court Act’).
The juridical treatment of drug addiction has traditionally adopted a punitive and carceral approach to what is ‘a complex human, and social problem, [with] many ramifications for society.’[3] The law has traditionally attributed free will to a drug addicted person when they commit a crime with the original decision to begin drug use viewed as voluntary and no mitigation attaching to the person’s moral culpability for the crime.[4] Yet this somewhat myopic attitude to the free will of offenders experiencing drug addiction fails to appreciate that addiction is frequently the product of a complex interplay of economic disadvantage, familial dysfunction, poor or missed educational opportunities, sexual or other forms of abuse, and other social or psychosocial issues. As Justice Simpson stated in R v Henry:
I do not accept that most drug offenders are truly exercising free will when they choose the degradation, despair, criminality and cycle of imprisonment that can follow the initial use of illegal drugs. The circumstances that propel the offender to the use of drugs are often, if not usually, beyond his or her control. They may or may not be combined with a vulnerable personality or even a weakness of character. Many drug offenders have not had the life experiences or the normal developmental path that permit a conclusion that the decision to take drugs was a decision made in the exercise of a free choice in the sense in which that phrase is ordinarily understood.[5]
[3]R v Proom (2003) 85 SASR 120, 129 [46] (Doyle CJ).
[4]R v Henry (1999) 46 NSWLR 346, 411 [338].
[5]Ibid.
Thus, the creation of the Drug Court and the introduction of the DTO regime in many ways represented the crest of a paradigmatic shift in the traditional judicial approach to drug addiction in Victoria.
In the second reading speech of the Sentencing (Amendment) Bill 2001 (Vic) the Attorney-General, the Hon Rob Hulls MP, explained that, due to the unique impact of drug use on the community, it was necessary to present and implement innovative policy responses to drug addiction, stating:
The drug issue is not simply a criminal justice issue. It is a community issue. Together, the government and the community must be prepared to experiment with innovative and modern approaches to help these offenders reduce their drug use and offending. The drug court represents a fundamental shift in the way in which we deal with drug offenders. This initiative seeks to protect the community by focusing on the rehabilitation of offenders from drug addiction and drug-related crime, with the ultimate goal of bringing stability to offenders’ chaotic lifestyles and reintegrating them into the community.
The government does not pretend that the Drug Court is the answer to Victoria’s drug problems. Rather, it is one element of the government’s comprehensive drug strategy, which spans the areas of prevention, treatment and rehabilitation, saving lives and law enforcement.[6]
[6]Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2001, 2191 (Rob Hulls, Attorney-General).
The Attorney-General went on to explain that, rather than being merely a new addition to the judicial and administrative hierarchy enforcing drug laws in Victoria, ‘the drug court is a fundamentally new way of approaching and dealing with offenders who commit crimes to feed a drug addiction’.[7] In this context, a key feature of the Drug Court is the role of the Magistrate who has responsibility for the supervision of offenders placed on the program. As the Attorney-General explained:
This means that rather than simply sentencing an offender, magistrates will have a role in monitoring the offender’s progress on the drug court program, and encouraging their compliance with the program. Magistrates assigned to the drug court will receive training to develop and enhance their understanding of the nature of drug and alcohol dependency, treatment options, and offender motivation.[8]
[7]Ibid 2192.
[8]Ibid
A multidisciplinary team including a case manager, clinician, special community officers, dedicated police prosecutor and defence lawyer assist the Magistrate in performing this enormously complex and challenging role.[9]
[9]Ibid.
Under, s 7(1) of the Sentencing Act — which sets out the sentences which can be imposed by a Court — a Court, upon finding a person guilty of an offence may, subject to any specific provision relating to the offence and subject to the Sentencing Act, record a conviction and make a drug treatment order in respect of the offender.[10] However, pursuant to s 18Y only the Drug Court may make a DTO.
[10]Sentencing Act 1991 (Vic) s 7(1)(ac).
Section 18X sets out the purposes of a DTO, providing:
(1) The particular purposes of a drug treatment order are—
(a)to facilitate the rehabilitation of the offender by providing a judicially-supervised, therapeutically-oriented, integrated drug or alcohol treatment and supervision regime;
(b) to take account of an offender’s drug or alcohol dependency;
(c)to reduce the level of criminal activity associated with drug or alcohol dependency;
(d)to reduce the offender’s health risks associated with drug or alcohol dependency.
(2) Nothing in subsection (1) affects the operation of section 5(1) but, if considering making a drug treatment order, the Drug Court must regard the rehabilitation of the offender and the protection of the community from the offender (achieved through the offender’s rehabilitation) as having greater importance than the other purposes set out in section 5(1).
A distinct aspect of s 18X(2), as highlighted by the second respondent, is that if considering making a DTO, the Drug Court must prioritise the rehabilitation of the participant and the protection of the community from the participant through rehabilitation to a greater degree than the ordinary sentencing considerations of punishment, deterrence and denunciation provided in s 5(1).
Section 18Z sets out the circumstances in which the Drug Court may make a DTO. Among other requirements,[11] the Drug Court may only make a DTO where:
[11]See, e.g., Sentencing Act 1991 (Vic) s 18ZT.
(a) an offender pleads guilty and is convicted of an offence punishable by imprisonment; and
(b) the Drug Court considers a non-suspended sentence of imprisonment would otherwise be appropriate and is satisfied that the offender is dependent on drug or alcohol and their dependency contributed to the commission of the offence.[12]
Furthermore, the Drug Court must not make a DTO unless satisfied in all the circumstances that it is appropriate to do so and the offender agrees in writing to the making of the order and to comply with the treatment and supervision part of the order.[13] A DTO cannot be made in relation to a sexual offence or certain violent offences.[14]
[12]See ibid s 18Z(1).
[13]Ibid s 18Z(3).
[14]See ibid ss 18Z(1)(a) and 18Z(5).
A DTO consists of two parts — a ‘treatment and supervision part’ and a ‘custodial part’.[15]
[15]Ibid s 18ZC(1).
The treatment and supervision part of a DTO consists of the core conditions and program conditions attached to the order and operates for two years or until that part of the order is cancelled.[16] The core conditions of a DTO are set out in s 18ZF(1) and include reporting requirements and restrictions on movement. The available program conditions are set out in s 18ZG(1) and include requirements to submit to drug or alcohol testing or medical, psychiatric or psychological treatment as well as restrictions on movement and association with specified persons. Under s 18ZG(2) the Drug Court must attach at least one program condition to a DTO but must not attach any more than it considers necessary to achieve the purposes for which the order is made.
[16]Ibid s 18ZC(2).
While the treatment and supervision part of a DTO has a rehabilitative rather than punitive purpose, the core and program conditions of a DTO themselves involve restrictions on an offender’s freedom and the imposition of a range of positive obligations, reflecting the onerous nature of being subject to a DTO.
The custodial part of a DTO consists of the sentence of imprisonment which the Drug Court must impose on the offender under s 18ZD.[17] The custodial part must be the sentence of imprisonment which the Drug Court would have imposed if it had not made the DTO.[18] An offender is not to serve the custodial part of a DTO, and that part of the order does not commence, except in accordance with an order under Subdivision 1C activating that part of the order.[19]
[17]Sentencing Act 1991 (Vic) s 18ZC(3).
[18]Ibid s 18ZD(2).
[19]Ibid s 18ZE(1).
Subdivision 1C makes provision for the Drug Court to hold case conferences for the purpose of being informed about the progress being made by an offender subject to a DTO.[20] A case conference may be attended by a lawyer, a prosecutor, a health service provider, a community corrections officer or anyone else whom the Magistrate thinks should attend.[21] Sub-division 1C also makes provision for the Drug Court to vary the treatment and supervision part of a DTO based on its assessment of the offender’s progress[22] and to confer rewards on offenders for complying with the conditions attached to a DTO.[23] The available rewards include cancellation of both the treatment and supervision part and custodial part of a DTO, where the Drug Court considers the offender has fully or substantially complied with the conditions attached to the order and the continuation of the order is no longer necessary to meet the purposes for which it was made.[24]
[20]Ibid s 18ZI(1).
[21]Ibid s 18ZI(2).
[22]See ibid s 18ZH.
[23]See ibid s 18ZJ.
[24]See ibid s 18ZK.
Subdivision 1C also ‘establishes a hierarchy of internal sanctions on which the drug court may draw if it considers that variation is not a sufficient response to non-compliant behaviour’.[25] These sanctions ‘are intended to provide the drug court with a range of flexible responses to episodes of non-compliance which fall short of warranting cancellation of the program’.[26] In doing so, it creates ‘a harm-minimisation approach … recognis[ing] that recovery from drug addiction takes time and is likely to involve relapse’.[27]
[25]Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2001, 2193 (Rob Hulls, Attorney-General).
[26]Ibid 2193-4.
[27]Ibid 2193.
Section 18ZL deals with failures to comply with conditions imposed by a DTO, providing for a cascade of penalties arising out of a breach or breaches, ranging from confirmation of the treatment and supervision part of the order to activation of the custodial part of the order for between one and seven days. Other available penalties include variation of the DTO, the imposition of curfews, and orders for unpaid community service.
Section 18ZM deals with orders requiring service of a period of imprisonment in a secure custody facility under s 18ZL(1)(f). Pursuant to s 18ZM, the Drug Court may only make an order under s 18ZL(1)(f) if it is satisfied beyond reasonable doubt that the offender has failed to comply with the condition attached to the DTO.
The penalties provided for in s 18ZL are of a punitive nature. However, ultimately their purpose is to assist in achieving the rehabilitative object of the DTO.
Section 18ZN provides that where the Drug Court is satisfied beyond reasonable doubt that an offender has failed to comply with a condition attached to a DTO by committing an offence punishable by imprisonment of more than 12 months, the Court may take any of the actions under s 18ZL(1) or cancel the treatment and supervision part of the order.[28]
[28]See Sentencing Act 1991 (Vic) s 18ZN.
Centrally to the present appeal, s 18ZP deals with cancellation, providing:
(1)The Drug Court may cancel the treatment and supervision part of a drug treatment order if it is satisfied on the balance of probabilities that—
(a)before the order was made, the offender’s circumstances were not accurately presented to either the Drug Court or the author of the drug treatment order assessment report of the offender; or
(b)the offender will not be able to comply with a condition attached to the order because the circumstances of the offender have materially changed since the order was made; or
(c)the offender is no longer willing to comply with one or more conditions attached to the order; or
(d)the continuation of the treatment and supervision part of the order is not likely to achieve one or more of the purposes for which the order was made; or
(e)the offender has breached an order under subsection 18ZL(1)(c), (d) or (e).
(2) When cancelling the treatment and supervision part of the order under subsection (1), the Drug Court must, after taking into account the extent to which the offender complied with that part of the order, take one of the following actions—
(a)make an order activating some or all of the custodial part of the drug treatment order;
(b)cancel the custodial part of the drug treatment order and deal with the offender for each offence in respect of which the drug treatment order was made in any way in which the Drug Court could deal with the offender if it had just convicted him or her of each offence, other than by making an order under section 7(1)(a).
(3)The Drug Court may take an action under subsection (1) or (2) on its own initiative or on the application of—
(a) the offender; or
(b) the informant or police prosecutor; or
(c) a prescribed person or a person in a prescribed class of persons.
(4)Before the Drug Court cancels the treatment and supervision part of a drug treatment order (whether or not it also cancels the custodial part), notice of the hearing concerning the cancellation must be given to—
(a)the offender; and
(b)the informant or police prosecutor; and
(c)the prescribed person or the person in the prescribed class of persons—
and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing.
(4A) If notice of the hearing concerning the cancellation of the treatment and supervision part of a drug treatment order—
(a)has been given to the offender or has been, to the satisfaction of the Drug Court, attempted to be given to the offender but the attempt is not successful; and
(b) the offender does not attend for the hearing—
then the treatment and supervision part of the drug treatment order is suspended and the period between the failure to attend the hearing and the day on which the offender does attend the Drug Court does not count in calculating the period for which that part of the order operates.
(5)To avoid doubt, if the Drug Court cancels the treatment and supervision part or custodial part of a drug treatment order under this section, any earlier orders activating the custodial part of the order cease to have effect.
Section 18ZE sets out how much of the custodial part of a DTO can be activated, relevantly providing:
(1)Despite anything to the contrary in this Act, an offender is not to serve the custodial part of a drug treatment order, and that part of the order does not commence, except in accordance with an order under this Subdivision activating that part of the order.
(2)In making an order under this Subdivision activating some or all of the custodial part of a drug treatment order, the Drug Court must first—
(a)calculate the remaining length of the custodial part of the order by subtracting from the length of the sentence of imprisonment imposed under the order—
(i)each period of custody declared under this Act as reckoned to be a period already served under the sentence; and
(ii)each period of custody served in a secure custody facility under the custodial part of the order because of an order under section 18ZL(1)(f); and
(b) if the total of—
(i)the remaining length of the custodial part of the order; and
(ii)the period during which the treatment and supervision part of the order has already operated—
is more than 2 years, reduce the remaining length of the custodial part so that the total is 2 years.
As the Attorney-General observed at the conclusion of his second reading of the Sentencing (Amendment) Bill 2001, characterisations of the DTO regime as ‘soft’ are inapposite.[29] While the treatment and supervision part of a DTO does not have a punitive object, Subdivision 1C provides for an extremely onerous and intensive program for an offender’s rehabilitation which includes restrictions upon the individual’s freedom and the imposition of a range of positive obligations.
[29]See Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2001, 2194 (Rob Hulls, Attorney-General).
Background
On 6 October 2020, the appellant was sentenced by the Drug Court to a DTO under the Sentencing Act.[30] The appellant’s DTO consisted of:
(a) a treatment and supervision part imposed for a period of 2 years; and
(b) a custodial part under which the appellant was sentenced to a term of 9 months imprisonment.
[30]The convictions giving rise to that sentence included for the offences of trafficking methylamphetamine, possessing cocaine, dealing with property suspected of being proceeds of crime, failing to stop a vehicle on police direction and driving whilst disqualified, see ‘The Drug Treatment Order dated 6 October 2020’ exhibited as Exhibit LR-1 to the Affidavit of Louis Robertson affirmed 18 January 2021.
One of the program conditions attached to the treatment and supervision part of the appellant’s DTO was that the appellant submit for drug testing as directed.[31] On 23 November 2020, the appellant provided a urine sample supervised by Dominic Nazareno of Dorevitch Pathology. Following that, Mr Nazareno recorded on the chain of custody form his concerns that the appellant had interfered with the urine sample, and completed an incident report that can be summarised as follows:[32]
[31]Ibid.
[32]‘Chain of Custody Form signed by Domenic Nazareno on 23 November 2020’ exhibited as Exhibit LR-3 to the Affidavit of Louis Robertson affirmed 18 January 2021; and ‘Incident Report Form completed by Domenic dated 23 November 2020 and unsigned’ exhibited as Exhibit LR-4 to the Affidavit of Louis Robertson affirmed 18 January 2021.
(a) the appellant, while holding the sample cup with his right hand, used his left hand to press what looked like a white valve or stopcock, following which the cup filled with a yellow fluid that was not coming from his penis;
(b) the sample was not warm to touch through the cup; and
(c) the temperature strip adhered to the cup did not record a temperature.
On 24 November 2020, the second respondent filed an application in the Drug Court to cancel the DTO on the grounds that the continuation of the treatment and supervision part of the order was not likely to achieve one or more of the purposes for which it was made, pursuant to s 18ZP(1)(d) of the Sentencing Act.[33]
[33]‘Application for Cancellation dated 25 November 2020’ exhibited as Exhibit LR-5 to the Affidavit of Louis Robertson affirmed 18 January 2021.
The second respondent prepared a report dated 14 December 2020 in support of the application (‘the Second Respondent’s Report’) which concludes that the appellant’s ‘overall engagement has been unsatisfactory’.[34] The second respondent stated that she had ongoing concerns about the effectiveness of the DTO given that he was breaching the order’s conditions. She recommended that the appellant’s DTO be cancelled, stating:
As per the Drug Court Framework, if the allegation of tampering with a urine specimen is proven, the cancellation of [the appellant’s] DTO is warranted. Likewise, with regards to his overall attitude during appointments, [the appellant] continues to externalise the blame for any issues that arise and has indicated a belief that his Drug Court Team are setting him up to fail. Therefore, given the above information, this Service respectfully recommends that [the appellant’s] DTO is cancelled and he be re-sentenced due to his disregard for the Drug Court requirements, his poor attitudes, inability to adhere to the proximal goal of honesty and failures to abide by his Order conditions. Most importantly, should the allegations of tampering with a urine specimen be proven, this will indicate [the appellant] has engaged in fraudulent behaviours with the Drug Court.
[34]‘Application for Cancellation Drug Treatment Order memorandum prepared by Winnie Sarpong dated 14 December 2020’ (‘Second Respondent’s Report’) exhibited as Exhibit LR-6 to the Affidavit of Louis Robertson affirmed 18 January 2021.
In particular, the second respondent’s report outlined the following issues:
(a) the appellant failed to attend two scheduled meetings, giving no acceptable reason;
(b) the appellant’s compliance had been satisfactory, however his engagement with the Drug Court team had not been. He often disputed the appropriateness of sanctions and externalised blame for them. He did not engage appropriately in discussions about supports and did not follow advice from his case manager in relation to managing the requirements of the DTO. He had used derogatory language and adopted an aggressive manner towards support staff at times;
(c) the appellant was dishonest and evasive about his employment and living arrangements. As at the date of the report, the second respondent had been unable to confirm the appellant’s address;
(d) he had breached his curfew on three known occasions;
(e) on four occasions, he failed to admit illicit substance use prior to urinalysis tests which then returned positive results; and
(f) there were two urinalysis testing incidents. The first occurred on 2 November 2020 when the appellant spilt his urine sample which appeared to be an irregular ‘clear light pink colour’. The second incident described above occurred on 23 November 2020.
The ‘Drug Court Framework’ referred to in the second respondent’s report is ‘The Incentives and Sanctions Framework’ of the Drug Court (‘the Framework’).[35] I will consider the nature and legal effect of the Framework below as it has an important place in the functioning of the Drug Court.
[35]‘Drug Court of Victoria: Incentives & Sanctions Framework 2018-2019 – v4 dated December 2018’ (‘the Framework’) exhibited as Exhibit LR-2 to the Affidavit of Louis Robertson affirmed 18 January 2021.
Between the time of filing the application to cancel in November 2020 and the hearing on 15 December 2020, a review of the DTO was held in the Drug Court on 3 December 2020.[36] This resulted in the custodial part of the DTO being activated for a period of seven days on the basis of ‘incomplete sanction tasks, not attending an appointment with his General Practitioner to relinquish unprescribed medications and poor attitudes’.[37]
[36]Appellant’s Outline of Submissions flied 19 February 2021, [4].
[37]See Second Respondent’s Report (n 34).
On 15 December 2020, the application to cancel the DTO proceeded as a contested hearing before a Drug Court Magistrate.[38] Mr Nazareno and the second respondent’s respective reports were tendered. Both also gave oral evidence-in-chief and were cross-examined. In summary:
(a) Mr Nazareno’s account about the provision of the urine sample was consistent with what he said in the chain of custody form and the incident report; and
(b) the second respondent referred to her report dated 14 December 2020 and her concerns set out therein. Under cross-examination, the second respondent agreed that she had stated in her report that the appellant’s compliance with the DTO had been satisfactory.[39] Further, she agreed with the appellant’s counsel that if the appellant remained on the order his drug use would continue to be monitored and he would be encouraged through the program of incentives and sanctions to rehabilitate.[40]
[38]‘Transcript of Proceedings, Corrections Victoria v Kon Makrogiannis (Magistrates’ Court of Victoria at Melbourne, 202007990, Magistrate Parsons, 15 December 2020) exhibited as Exhibit LR-1 to the Affidavit of Louis Robertson affirmed 5 February 2021 (‘Cancellation Application Transcript’) as corrected in ‘Table of Relevant Differences of 15 December 2020 hearing in Melbourne Drug Court’ exhibited as Exhibit LR-2 to the Affidavit of Louis Robertson affirmed 5 February 2021 (‘Table of Differences’).
[39]Ibid T14.21-T15.9.
[40]Ibid T15.10-26.
The appellant’s counsel relied on the second respondent’s evidence outlined above to submit that the continuation of the DTO would achieve the purposes for which the order was made by taking ‘account of [the appellant’s] drug-taking, the level of his dependency as well as ongoing attempts to facilitate his rehabilitation’.[41] Further, any finding that he had interfered with the urine sample, should be one of the ‘constellation of considerations’ that needs to be assessed.[42]
[41]Ibid T16.14-17.
[42]Cancellation Application Transcript (n 38), T17.28-31.
The Magistrate said:
The difficulty that I have is that firstly we’ve heard evidence today that he is refusing to be fundamentally accountable by disrupting the urine testing process. As of the writing of this report, which was dated yesterday, we still don’t know where he lives despite repeated requests. He has been difficult with staff, difficult particularly with the female members of our staff to the point of being aggressive, and I think all of those – aren’t I entitled to find that all of those actions suggest he’s simply not willing to abide by the conditions of the order? That’s where I am going with it.[43]
[43]Ibid T18.01-11.
The appellant was then called to give oral evidence during which he said he gave a ‘legit sample’[44] on 23 November 2020 and described other measures that he was taking including finding new accommodation, engaging in employment, as well as seeking support from another program through a community organisation.[45] He referred to the seven day custodial sanction, stating, ‘I get the message you were sending me. I get it and I want the help’.[46]
[44]Ibid T19.01.
[45]See ibid T18.29-T21.6.
[46]Ibid T21.08-10, as corrected in Table of Differences (n 38), 2.
Once the appellant’s counsel confirmed he had no further questions for the appellant,[47] the Magistrate did not call on Corrections Victoria to cross-examine the appellant or invite further submissions from either party. Instead, the Magistrate proceeded to cancel the treatment and supervision part of the appellant’s DTO and activate all of the custodial part of the DTO, with the appellant ordered to serve 193 days imprisonment.[48] I have provided the transcript of this exchange below where I will consider it in further detail.
[47]Ibid T21.21.
[48]‘Court Order Cancelling the Appellant’s Drug Treatment Order dated 15 December 2020’ exhibited as Exhibit LR-7 to the Affidavit of Louis Robertson affirmed 18 January 2021.
Appellant’s submissions
The appellant submitted that an application to cancel a DTO under s 18ZP raises two issues for determination:
(a) whether the DTO should be cancelled on the basis that its purposes are not likely to be achieved under s 18ZP(1)(d) (‘the first stage’); and
(b) if the answer to (a) is yes, whether all or some of the custodial part of the DTO ought to be activated, or the offender should be otherwise resentenced, under s 18ZP(2) (‘the second stage’).
In this appeal, the appellant submitted that the Magistrate failed to afford him procedural fairness at each of these stages.
As to the first stage, the appellant submitted that the Magistrate denied him procedural fairness by determining the application before the appellant was cross-examined and that the appellant’s counsel was unable to complete submissions on this issue. It was also submitted that the appellant’s evidence-in-chief raised matters relevant to the likelihood of the DTO achieving its purposes. The appellant’s evidence of the salutary effect of his recent custodial period is submitted to be as significant as the compliance and behaviour concerns raised by the Magistrate occurred before that period was activated.
As to the second stage, the appellant submitted that, upon making the decision to cancel the treatment and supervision part of the DTO, the Magistrate activated the whole of the custodial part of the DTO without hearing any submissions as to the penalty or consequences of cancelling the DTO. It was contended that s 18ZP(2) provides the court with a broad or ‘at large’ sentencing discretion as to the length of any custodial part to be activated upon cancellation of a DTO. It was submitted that, where a finding enlivens a discretion, procedural fairness compels a Magistrate to afford the opportunity to be heard on the exercise of that discretion, particularly where the decision affects liberty.
The appellant submitted that the Magistrate should also have taken into account the appellant’s examples of compliance with the DTO.[49]
[49]See Sentencing Act 1991 (Vic) s 18ZP(2).
In this case, all of the custodial part of the order was activated without inviting submissions on the penalty, which had the effect that, according to the appellant, ‘[he] is now serving a sentence that, in all the circumstances, is more severe than that would have been imposed had he not attempted to enter into the DTO.’[50] This does not accord with the principles of parsimony and proportionality which govern the making of the DTO in the first place, where the custodial part can only be the sentence of imprisonment that would have otherwise been imposed.
[50]Appellant’s Outline of Submissions dated 19 February 2021, [18].
The application was ruled on before any reasonable opportunity arose to make submissions as to penalty. The appellant submitted that it would have been inappropriate, following the ruling, for counsel to continue to make submissions. Further, no waiver of intention to make further submissions can be inferred from counsel allowing his opponent the opportunity to cross-examine a witness.[51]
[51]Transcript of Proceedings, Makrogiannis v Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S ECR 2021 0006, Incerti J, 29 March 2021) T27.01-T28.17; T49.01-13.
The appellant relied on Pham v Legal Services Commissioner (‘Pham’)[52] for the proposition that a two-stage process of determining guilt and punishment separately may be required by the circumstances of the case, ‘where the allegations against the person are numerous or complex or where there may be multiple bases for finding guilt’.[53] To that end, the appellant submitted:
[52][2016] VSCA 256.
[53]Pham v Legal Services Commissioner [2016] VSCA 256 [166].
(a) the proceedings were judicial in nature and the interest affected was liberty;
(b) the factual dispute was relatively complex, in terms of the number of allegations and the relative weight that could be afforded to each finding, particularly where the appellant had previously had a custodial period imposed under s 18ZL(1)(f) for some matters relied on in the application to cancel;
(c) the determination of the penalty was also complicated by the breadth of the discretion available and the need to avoid double-punishment; and
(d) the ultimate result in Pham may be distinguished as there written submissions had been made on the issue of penalty, whereas here, the Magistrate proceeded to rule without inviting any submissions.
The appellant does not cavil with the general proposition that procedural fairness is flexible and adapted to the case. However, he submitted that as this matter concerned curial proceedings that imposed a custodial term procedural fairness ought to have been strictly observed.[54]
[54]Citing Re Minister for Immigration and Multicultural Affairs; Ex-parte Miah (2002) 206 CLR 57; see also DPP v Kaba (2014) 44 VR 526, 544 [58] and the decisions cited therein where personal liberty was described as ‘the most elementary and important of all common law rights’.
As to the second question of law raised on appeal, the appellant submitted that cancelling a DTO under s 18ZP(1)(d) requires determination of the likelihood of achieving the purposes in s 18X. In making that assessment, regard must be had to the Drug Court regime as a whole. The appellant conceded that an interference with the testing regime is relevant to that issue but submitted that this is not determinative of the statutory test.
One of the other grounds for cancellation of a DTO, s 18ZP(1)(e), relates to circumstances where an offender has breached an order under sub-s 18ZL(1)(c), (d) or (e). Those sections provide the Drug Court with the ability to impose orders, such as a curfew, performance of unpaid community work or to remain at a specified place, as penalties for failure to comply with a condition attached to a DTO. It is submitted that the provisions of the Sentencing Act clearly contemplate occasions on which offenders will breach core and program conditions of their DTO, such as the drug testing condition. Furthermore, s 18ZN provides discretion to the Magistrate not to cancel the DTO even where satisfied that an offender has failed to comply with a condition by committing an offence punishable by imprisonment for more than 12 months.
The flexibility in the relevant provisions of the Sentencing Act is said to be underpinned by the recognition ‘that recovery from drug addiction takes time and is likely to involve relapse,’ and that activation of the custodial part for a period of up to seven days can be appropriate, even for ‘a serious episode of non-compliance’.[55]
[55]Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2001, 2193 (Rob Hulls, Attorney-General).
Counsel for the appellant referred to the timing of the application to cancel and submitted that it was relevant that the appellant had only been on the DTO for seven weeks, out of a total two year period. The Magistrate did not engage with this question of timing. It is also submitted, , significantly, that the Magistrate did not consider the appellant’s evidence of the impact that the recent custodial period had on his attitude towards the order.
Further, the appellant submitted the Magistrate impermissibly treated the Framework as requiring cancellation of the appellant’s DTO following a finding of interference with the urine test. the appellant relies on the second respondent’s report dated 14 December 2020 citing the Framework under the grounds for the application, specifically that ‘should a participant attempt to deliberately interfere with urine testing this would be a serious breach of their DTO and will result in the cancellation of the DTO’.[56]
[56]Second Respondent’s Report (n 34) 1, referring to the entry in the Framework (n 35) 9, regarding ‘deliberate interference with urine testing processes’.
Finally, it is submitted that the Magistrate failed to give proper reasons explaining his decision to cancel the appellant’s DTO and did not reference the purposes of a DTO. The Magistrate’s comments prior to cancelling the DTO demonstrate that a finding as to interference with the urine testing process was determinative. This position is supported by the Magistrate’s comment to the appellant that ‘when you go into custody you tell everybody in there that we catch you doing this kind of thing, that’s the end of their order’.[57]
[57]Cancellation Application Transcript (n 38) T22.05-08 as corrected by Table of Differences (n 38), 2.
The appellant submitted that the reasons for sentence must clearly identify the Court’s route to its conclusion.[58] It was necessary for the Magistrate’s reasons to refer to any other matters to which the Magistrate had regard, and to reject the appellant’s principal arguments. The following were not evident in the Magistrate’s comments:
[58]Ta v Thompson [2012] VSC 446 [28] (Whelan J).
(a) a consideration of the appellant’s evidence about his willingness to engage with the DTO given his recent custodial period. This evidence is critical as most matters relied on in the application to cancel pre-dated that period of imprisonment;
(b) an indication of whether other matters were considered in determining to cancel the DTO or at least balanced to ensure the appellant was not breached twice for the same conduct; and
(c) a consideration of the test under s 18ZP(1)(d) on a prospective basis, as it is submitted that it is not determined solely by a factual finding as to past misbehaviour.
Second respondent’s submissions
In relation to the first question of procedural fairness, the second respondent submitted, citing the Court of Appeal in Roberts v Harkness,[59] that the Magistrate’s conduct must be framed in the context of s 1 of the Magistrates’ Court Act) and the rules of criminal procedure which, along with requiring fairness to all of the parties, further require the prompt resolution of court proceedings and the optimum use and appropriate allocation of court resources.
[59]Roberts v Harkness [2018] VSCA 215.
The second respondent submitted that, taken as a whole, the appellant’s counsel was given ample time to present the case, including to make oral submissions, which is clear on the face of the transcript. The second respondent’s submissions with respect to the hearing can be summarised as follows:
(a) after hearing the appellant’s submissions, the Magistrate disclosed his difficulties with them.[60] The appellant was then provided with an opportunity to address those issues. The appellant was called to give evidence as to the urine sample, and then his counsel was permitted by the Magistrate to ask further questions regarding the purposes of the DTO;
(b) the appellant’s counsel completed his examination of the appellant. It was at this point that the Magistrate determined to cancel the DTO, after hearing all of the evidence that the appellant wished to adduce and counsel’s extensive oral submissions, weighed against the prosecution’s evidence. The transcript reflects that counsel did not indicate that he had anything further to say at any point after his examination of the appellant was complete; and
(c) the fact that the Magistrate did not require the prosecution to cross-examine the appellant is not indicative of a failure of procedural fairness. Procedural fairness is a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the case.[61] The Magistrate has the power to regulate his own proceedings and it is appropriate that he considered it unnecessary to require cross-examination of the appellant.
[60]See Cancellation Application Transcript (n 38) T18.01-11.
[61]Citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504 (Kitto J); Kioa v West (1985) 159 CLR 550, 585 (Mason J).
In relation to the second question of whether the Magistrate failed to apply, or incorrectly applied the test for cancellation in s 18ZP, the second respondent submits that the Magistrate applied the correct test for cancellation in s 18ZP(1)(d) by considering all of the evidence to determine whether he was satisfied on the balance of probabilities that continuation of the treatment and supervision part of the DTO was not likely to achieve one or more of the purposes for which it was made.
The second respondent’s submission is that, on a fair reading of the transcript as a whole, the Magistrate did not treat interference with urine testing as the sole or primary test for cancellation. In particular, the second respondent emphasised that:
(a) the Magistrate had before him the second respondent’s report which ‘extensively’[62] detailed her concerns, including interference with the urine screens, as well as failure to attend sessions, aggression, negative attitudes, failure to take responsibility, externalising blame, using disrespectful and offensive language, dishonesty and evasiveness around his accommodation and employment circumstances and breaches of curfew. Some of these concerns were repeated in the second respondent’s oral evidence at the hearing; and
(b) the Magistrate had a broader view of the test and made express statements referring to the second respondent’s concerns when indicating his difficulties with the appellant’s submissions regarding the continuation of the order.[63] These comments were made after engaging in a discussion with counsel about the test in s 18ZP and the weight to be given to a finding that the appellant had interfered with urine testing. The appellant’s counsel submitted that it was just one of the factors to be considered.
[62]Second Respondent’s Outline of Submissions filed 4 March 2021 [24].
[63]Ibid, referring to Cancellation Application Transcript (n 38) T18.01-11.
The respondent submitted that the Framework is essentially a guide for Magistrates in the Drug Court. It is submitted that while the Framework is not binding on Magistrates it plays an integral role in the functioning of the Drug Court, as the manner in which incentives and sanctions can be applied under the legislation is incredibly broad. The guidance in the instant case informs the Magistrate that the behaviour of the appellant was extreme as it perverted the course of justice and constituted an attack on the integrity of the court.
The respondent referred to the Magistrate’s detailed involvement with the appellant’s DTO, having conducted four review hearings. It was submitted that these review hearings involved the consideration of every aspect of the appellant’s involvement in the program, incorporating both compliant and non-compliant behaviour. This extensive involvement with the appellant is cited as providing the practical context of procedural fairness in the instant case.
It is submitted by the second respondent that to highlight the Magistrate’s comments at the end of the hearing relating to the appellant’s interference with the urine screen as evidence that the wrong test was applied or the interference was considered determinative, is to ‘ignore everything said earlier’.[64]
[64]Second Respondent’s Outline of Submissions filed 4 March 2021 [29].
Section 18ZP
The correct construction of s 18ZP of the Sentencing Act is central to the resolution of this appeal. I will therefore consider the construction of that section before dealing with each of the appellant’s questions of law.
The relevant aspects of s 18ZP bear repeating:
(1)The Drug Court may cancel the treatment and supervision part of a drug treatment order if it is satisfied on the balance of probabilities that—
(a)before the order was made, the offender’s circumstances were not accurately presented to either the Drug Court or the author of the drug treatment order assessment report of the offender; or
(b)the offender will not be able to comply with a condition attached to the order because the circumstances of the offender have materially changed since the order was made; or
(c)the offender is no longer willing to comply with one or more conditions attached to the order; or
(d)the continuation of the treatment and supervision part of the order is not likely to achieve one or more of the purposes for which the order was made; or
(e)the offender has breached an order under subsection 18ZL(1)(c), (d) or (e).
(2) When cancelling the treatment and supervision part of the order under subsection (1), the Drug Court must, after taking into account the extent to which the offender complied with that part of the order, take one of the following actions—
(a)make an order activating some or all of the custodial part of the drug treatment order;
(b)cancel the custodial part of the drug treatment order and deal with the offender for each offence in respect of which the drug treatment order was made in any way in which the Drug Court could deal with the offender if it had just convicted him or her of each offence, other than by making an order under section 7(1)(a).
The process of cancellation of a DTO and the reimposition of a period of custody upon the participant under s 18ZP is segmented into two steps.
The first step under s 18ZP(1) involves the Magistrate undertaking an analysis of the criteria contained within s 18ZP(1)(a)-(e) and determining whether they have been satisfied on the balance of probabilities. Even if so satisfied, the use of the words ‘may cancel’ in s 18ZP(1) clearly show that the Magistrate retains a residual discretion, notwithstanding such satisfaction. In exercising this residual discretion it is appropriate for regard to be had to the offender’s past compliance, the purposes of the DTO and, in particular, the rehabilitative object of the DTO regime, along with any other special circumstances which may be present in a particular case. Where the decision to cancel involves a finding that there has been a breach or breaches of the DTO it would also be appropriate for the Magistrate to have regard to whether — in accordance with the rehabilitative purposes of a DTO — any other sanctions available under subdivision 1C would be more appropriate than cancellation.
The application for cancellation in question concerned cancellation upon satisfaction of s 18ZP(1)(d). As the appellant submitted, s 18ZP(1)(d) is not determined solely by factual findings s as to past misbehaviour. Instead the task is prospective in nature and requires consideration of whether the continuation of the treatment and supervision part of a DTO is unlikely to achieve one or more of the purposes in s 18X. The inquiry requires consideration of relevant matters which may have a bearing on whether the purposes of the DTO are capable of being achieved going forward, particularly the offender’s willingness to engage with the treatment and supervision part of the order, notwithstanding past non-compliance. In this way s 18ZP(1)(d) can be seen as directly reflecting the rehabilitative purposes of the DTO regime.
As I have identified, sub-division 1C sets out a series of options to deal with non-compliance with the treatment and supervision part of a DTO. Given the rehabilitative purpose of a DTO, it is clear that cancellation under s 18ZP is an option of last resort.
The second step under s 18ZP(2) arises where a decision has been made to cancel the treatment and supervision part of a DTO under s 18ZP(1). Section 18ZP(2) requires a choice between two possible actions: activation of some or all of the custodial part of the DTO under s 18ZP(2)(a), or cancellation of the custodial part of the drug treatment order and ‘resentencing’ the offender under s 18ZP(2)(b).[65]
[65]Under s 18ZP(2)(b) the Drug Court may ‘deal with the offender if it had just convicted him or her of each offence, other than by making an order under section 7(1)(a).’ Sentencing Act 1991 (Vic) s 7(1)(a) is the power to ‘record a conviction and order that the offender serve a term of imprisonment’ upon finding a person guilty of an offence.
Before making a choice between these two actions under s 18ZP(2), the Magistrate must engage in the arithmetical exercise described in s 18ZE(2). Section 18ZE(2) expressly states ‘[i]n making an order under this Subdivision activating some or all of the custodial part of a drug treatment order, the Drug Court must first’ engage in the arhythmical exercise described in that sub-section. Accordingly, before deciding that it is appropriate to activate some or all of the custodial part under s 18ZP(2)(a), rather than resentence the offender under s 18ZP(2)(b) the Drug Court must first have calculated the amount of the custodial part of the DTO there remains available to them to impose.
Furthermore, the discretion to choose between s 18ZP(2)(a) or (b) is modulated by the mandatory requirement that the Magistrate must take into account the extent to which the offender complied with the treatment and supervision part of the DTO. This requires the Magistrate to consider and evaluate the nature of the compliance and non-compliance by the participant.
I agree with the appellant’s submissions that upon cancellation of the DTO the Magistrate is obliged to undertake a very different enterprise under s 18ZP(2)(a) as to how much of the custodial part of the DTO to activate. Where the decision is made to activate some or all of the custodial part of a DTO under s 18ZP(2)(a), rather than to ‘resentence’ the offender under s 18ZP(2)(b), the Magistrate must evaluate and consider a range of factors of compliance and non-compliance.
Importantly, as occurred in the present case, when a participant’s involvement in the DTO regime is relatively nascent, explanations for the participant’s non-compliance are especially important. At the early stages of the treatment and supervision regime a participant is more likely, whether through withdrawal or unfamiliarity with the regime, to breach conditions of the DTO The necessity to evaluate the nature of the non-compliance is thus heightened as is the ability of the participant’s legal representatives to make submissions on the participant’s non-compliance.
When considering whether to activate ‘some or all’ of the custodial part of a DTO under s 18ZP(2)(a), it is important to recognise that the custodial part of the DTO represents the sentence of imprisonment that would have imposed had a DTO not been imposed. Accordingly, the requirement in s 18ZP(2) to consider an offender’s compliance with the treatment and supervision part of a DTO involves recognition that, despite its rehabilitative purpose, the treatment and supervision part of a DTO involves restrictions on the offender’s freedom and the imposition of positive obligations, and that any penalties previously imposed for breaches of the DTO themselves have a punitive aspect.
Neither party identified any authorities from this Court considering s 18ZP. However, a substantially identical provision to s 18ZP — s 27Q of the Sentencing Act 1997 (Tas) — has been considered by the Supreme Court of Tasmania.[66] The Tasmanian cases focus on the equivalent of s 18ZP(2)(a), and what I have identified as the ‘second step’ of the inquiry, requiring the Magistrate — after taking into account the extent of the offender’s compliance — to determine whether to activate some or all of the custodial part of the DTO.
[66]See Ferguson v Tasmania [2011] TASSC 51; McCullough v Larner [2012] TASSC 35; Parker v Shaw (2017) 31 Tas R 14.
In the most recent case considering s 27Q of the Sentencing Act 1997 (Tas), Parker v Shaw,[67] Pearce J stated:
[67](2017) 31 Tas R 14.
The function and powers of a sentencing court after cancellation of a drug treatment order under s 27Q were considered by Wood J in Ferguson v Tasmania [2011] TASSC 51 and McCullough v Larner [2012] TASSC 35. In Ferguson, the applicant successfully contended that activation of seven months of the nine-month custodial part of a drug treatment order was manifestly excessive. In Larner, the State successfully contended that activation of 30 weeks’ imprisonment, after allowing a discount of 11 weeks from the custodial part of an order resulted in a sentence which was manifestly inadequate. A number of propositions emerge from her Honour’s review of the statutory provisions:
· the weight to be given to compliance with a drug treatment order is a matter that will depend on the facts of each case: Larner at [27];
· although a drug treatment order is directed to rehabilitation, it also carries some punitive effect: Ferguson at [52] and [54];
· the court must consider the ‘the extent of the offender’s compliance’, but may also take into account other considerations relevant to sentence. In Ferguson her Honour referred at [62] to ‘mitigating matters in general’, and at [64] to ‘all the circumstances’, not just compliance. In Larner, her Honour referred to her decision in Ferguson and noted that when resentencing she had taken ‘fresh account of other factors in mitigation’;
· the court has a broad discretion under both s 27Q(2)(a) and (b) which is ‘not subject to statutory restraint’ other than the requirement to take compliance into account: Larner at [39];
· ‘compliance’ is not to be equated with the time subject to the order. It depends on genuine efforts to rehabilitate, cooperation, gains and other efforts throughout the program: Larner at [42];
· ‘the extent’ of compliance includes negative considerations such as lack of effort and commitment: Larner at [43].[68]
These propositions have equal application to the ‘second step’ under s 18ZP.
[68]Parker v Shaw (2017) 31 Tas R 14, 22 [18].
However, in relation to the third of those propositions, Pearce J observed:
[A] distinction is to be drawn between the exercise of a sentencing discretion at first instance and determination of a sentencing order made following cancellation of an order under s 27Q. In the latter case, the term imposed as the custodial part of the original order is the starting point. There are strong reasons of principle why that should be so. It is the sentence which would have been imposed had the drug treatment order not been made. It is to be assumed that it reflects the view of the sentencing magistrate at the time, after consideration of all matters relevant to sentence, and has the force of a court order. The order is susceptible to separate challenge if error is asserted. Persons subject to a drug treatment order, and indeed the court making the order, should have the possible consequences of non-compliance firmly in mind. The prospect of having to serve the custodial part of the order is incentive to comply with the treatment and supervision part. The resentencing function after cancellation is not to be an opportunity for unconstrained collateral challenge to the terms of an earlier order by reference to the sentencing considerations existing at the time of the order in the hope of obtaining a more favourable sentence the second time around.[69]
[69]Parker v Shaw (2017) 31 Tas R 14, 22, 22-3 [19].
I consider that the determination of the amount of the custodial part of a DTO to be activated under s 18ZP(2)(a) involves consideration of what has occurred between the imposition of the DTO and the cancellation of the supervision and treatment part of that order, as well as what could happen in the future. Notwithstanding this requirement, consideration of ‘mitigating matters in general’ and ‘all the circumstances’ — described in the third of the propositions of Pearce J in the passage above — are capable of being taken into account so far as they are relevant to that time period.
Building upon the analysis of Pearce J in Parker v Shaw, it is equally applicable to say that while any non-compliance with the treatment and supervision part of the DTO is a relevant — and indeed mandatory — consideration under s 18ZP(2), it is not intended to provide an opportunity to subject the participant to punishment for breaches of the treatment and supervision part of their DTO. Nor does s 18ZP(2)(a) provide an opportunity to reagitate any aggravating factors or sentencing considerations relevant to the original offending for which the offence was imposed.
Having construed s 18ZP, it now falls to me to consider the two questions of law raised in this appeal.
The first question: Procedural fairness
The appellant’s first question of law concerns whether the Magistrate denied him procedural fairness by making orders pursuant to ss 18ZP(1)(d) and (2) prior to the completion of his evidence, and without providing him with the opportunity to make submissions on matters relevant to the discretions conferred by those provisions.
In Roberts v Harkness,[70] the Court of Appeal stated:
[70](2018) 57 VR 334.
[I]t is the fundamental obligation of every court to ensure a fair hearing for the parties before it. The High Court recently affirmed in Condon v Pompano Pty Ltd, that procedural fairness is ‘an essential attribute of a court’s procedure’. The correlative right of each party to a fair hearing is firmly established at common law and — since 2006 — have been enshrined in s 24(1) of the Charter, which relevantly provides as follows:
A person charged with a criminal offence … has the right to have the charge ... decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
The existence of the fair hearing right being uncontroversial, the critical question is: ‘What does the duty to act fairly require in the circumstances of the particular case?’ Natural justice is ‘fair play in action’. As Gleeson CJ said in Lam:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
It is an essential requirement of a fair hearing that each party be given a ‘reasonable opportunity’ of presenting its case, whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.
Axiomatically, what is ‘reasonable’ for this purpose will depend on the circumstances of the case. Matters to be taken into account in determining the practical content of fairness in the particular case will include:
· the nature of the decision to be made;
· the nature and complexity of the issues in dispute;
· the nature and complexity of the submissions which the party wishes to advance;
· the significance to the party of an adverse decision (what is at stake); and
· the competing demands on the time and resources of the court or tribunal.
One of the key considerations in determining the content of fairness in a particular case is the statutory framework governing the decision-making process. This is most obviously the case with administrative decision-makers whose powers are conferred by statute, but it is also true of courts. As the plurality said in Pompano:
To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.[71]
[71]Roberts v Harkness (2018) 57 VR 334, 354–5 [46]–[50] (Maxwell P, Beach and Niall JJA) (citations omitted).
In a similar regard in HT v The Queen,[72] Kiefel CJ, Bell and Keane JJ observed:
It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding. This obligation requires not only that courts be open and judges impartial but the person against whom a claim or charge is made by given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case. In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made.
Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept, rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise.[73]
[72](2019) 93 ALJR 1307.
[73]HT v The Queen (2019) 93 ALJR 1307, 1313 [17]–[18] (citations omitted).
A decision under s 18ZP is clearly a situation where an adverse decision has there great significance for the participant. What was ‘at stake’ for the appellant was not only his liberty but also the opportunity to continue to obtain treatment and supervision under the DTO. Furthermore, the importance of an offender being provided with an opportunity to be heard on an application under s 18ZP is reflected in the requirement in s 18ZP(4)(a) that they be provided with notice of such a hearing.
The issues in dispute at the hearing of the application to cancel were numerous and complex. The application for cancellation dated 25 November 2020 relied upon s 18ZP(1)(d), while the memorandum prepared by the second respondent dated 14 December 2020 set out a number of issues relating to the appellant’s compliance and engagement with the program as well as concerns about his attitude, honesty and housing situation in addition to the allegation that he had tampered with a urine specimen. Section 18ZP(1)(d) requires consideration of not only the offender’s past behaviour and compliance or non-compliance with the treatment and supervision part of their DTO but also a consideration of the purposes of that part of the order being achieved going forward.
Therefore, the application which the Magistrate was called upon to determine was far from straightforward. In particular there was a difficult question of the weight to be given to a finding that the appellant had interfered with the urine testing process when considering the likelihood that the purposes of the DTO could be achieved going forward.
I recognise that the Drug Court has heavy demands on its time and resources which require Magistrates to make decisions in an expeditious and efficient manner. I accept the second respondent’s submission that the Magistrate’s conduct must be viewed in the context of s 1 of the Magistrates’ Court Act and the rules of criminal procedure. Section 1(e) of the Magistrates’ Court Act provides that the purposes of the Magistrates’ Court Act include allowing for the Magistrates’ Court to be managed in a way that will ensure:
(i) fairness to all parties to court proceedings; and
(ii) the prompt resolution of court proceedings; and
(iii) that optimum use is made of the Court’s resources.
Given the demands placed upon it, and its status as a specialist court, I accept that it is appropriate for the Drug Court to adopt flexibility in its procedures. However, that does not undermine the fact that it is an essential requirement of a fair hearing that each party be given a ‘reasonable opportunity’ of presenting its case.
As has been identified above, s 18ZI allows for the Drug Court to convene case conferences in order to be informed about an offender’s progress. Such case conferences allow the Drug Court to operate in a more informal and flexible manner than an ‘ordinary’ court hearing. However, where the Drug Court is convened for the purposes of exercising its power under s 18ZP the requirements of procedural fairness will be more stringent.
In this appeal, the appellant effectively makes two complaints in relation to procedural fairness:
(a) first, that he was denied procedural fairness as the Magistrate determined the application before he was cross-examined and without the appellant’s counsel being able to complete submissions on the issue of whether the purposes of the treatment and supervision part of the DTO could continue to be achieved; and
(b) secondly, that he was denied procedural fairness as the Magistrate activated the whole of the custodial part of the DTO without hearing any submissions as to the penalty or appropriate action to take upon cancellation of the treatment and supervision part.
The hearing of the application began with two witnesses giving evidence: Mr Nazareno and Ms Sarpong. The Magistrate then asked the appellant’s counsel whether he had any submissions to make. The appellant’s counsel commenced by identifying that the application was brought under s 18ZP(1)(d) and submitted that the evidence of Ms Sarpong was that the continuation of the order would result in a continued account of the appellant’s drug-taking, the level of his dependency as well as ongoing attempts to facilitate his rehabilitation. Accordingly, it was submitted that the application should be refused as the evidence given by Ms Sarpong was that the continuation of the order would achieve the purposes for which it was made.
The following exchange then occurred between counsel for the appellant and the Magistrate:
Mr Battersby: Certainty there are concerning allegations about what took place in relation to the pathology issues. Ultimately, I don’t believe that’s a matter that your Honour should take into account above and beyond the evidence that the drug treatment team has given and ultimately the application is put on the basis that the purposes of the order are in jeopardy but ultimately what we’ve heard is that the purposes of the order can be sustained if Mr Makrogiannis were to retain his ability to participate on the drug treatment order.
His Honour: If I make a finding that he’s undermined the urine testing process, how do I deal with that?
Mr Battersby: It’s an interesting question, your Honour, and I am curious as to what threshold Your Honour would be required to make that finding under. Certainly it had - - -
His Honour: Beyond reasonable doubt if that’s what you’re asking.
Mr Battersby: Yes, I concur. I think that’s the appropriate threshold. If Your Honour did make that finding then certainly that may impact on the question of 18ZP but it would have to be one of the factors that Your Honour takes into account in terms of the purpose of the drug treatment order. So the continuation of the treatment and supervision is not likely to achieve one or more of the purposes. Whether or not Mr Makrogiannis gave a false sample doesn’t directly impact on that assessment particularly in circumstances where he’s been on a two year order for seven weeks, he has an entrenched drug addiction which the order is designed to assist. He satisfied the purposes so far in terms of the order still facilitating his rehabilitation and his compliance to date has been described as satisfactory.
So while that would certainly factor into the constellation of considerations that Your Honour would have to assess, it would be one among others I would submit.
His Honour: The difficulty that I have is that firstly we’ve heard evidence today that he is refusing to be fundamentally accountable by disrupting the urine testing process. As of the writing of this report, which was dated yesterday, we stil don’t know where he lives despite repeated requests. He has been difficult with staff, difficult particularly with the female members of our staff to the point of being aggressive, and I think all of those – aren’t I entitled to find that all of those actions suggest he’s simply not willing to abide by the conditions of the order? That’s where I am going with it.
Mr Battersby: Your Honour, I appreciate Your Honour’s comments. It was intended that Mr Makrogiannis give evidence in relation to the screen, the pathology sample. Certainly his relevant part in terms of that incident. I’m mindful of the time and Your Honour may have concerns about what Mr Makrogiannis addresses the court on but certainly in relation to the incident with Dorevitch, it was the intentnion of defence to ask Mr Makrogiannis to give his account.
His Honour: You’ve got the opportunity.[74]
[74]Cancellation Application Transcript (n 38) T16.26-T18-21.
The appellant was then called and gave evidence-in-chief to the effect that he had given a ‘legit sample’. Counsel for the appellant asked the Magistrate whether, given the provision of the Sentencing Act the application to cancel was brought under, the Magistrate was willing to hear evidence regarding the appellant’s treatment and supervision and whether the purposes of the order are likely to be achieved by him remaining on the order.
With the Magistrate’s consent, the appellant then gave the following evidence:
Mr Battersby: Mr Makrogiannis, what do you think the purposes of a drug treatment order are?
Mr Makrogiannis: To get me the help that I need. I asked for this order, I asked for the help. I’ve been given the opportunity. It’s been – at times, I never really understood how it was coming across, at times I felt I was being attacked where I was wasn’t, I was being over sensitive and silly and just not feeling supported. I looked at (indistinct) las week. I apologies, I said ‘You were right, you were absolutely right.’ I need to get out of the place, I have new accommodation, Your Honour. I’m getting (indistinct) this week if I wanted to (indistinct) get the address all confirmed and make sure Corrections are 100 per cent happy with it so its an apartment in Docklands I’ve been saving to get a deposit together which I now have. I’ve been working as well. I’ve been complying. I’ve also signed up – sorry, Endless Horizons in (indistinct), it’s a big organisation within the Greek community where they’re helping people get back on their feet. I start that program Monday and that’s separate, I’m not interfering with this. I (indistinct) the programs because I asked you for help, you’ve given me that opportunity and I want to prove it. Those seven days you gave me inside, Your Honour, when I went in for sanctions, I was not happy (indistinct) came round and I saw – I get the message you were sending me. I get it and I want the help, I’m willing to do it. I’ve never been aggressive I’ve butted heads that I was being attacked and I felt that I was being picked on and I was wrong and I said that to Winnie that, ‘I’m sorry, I felt that I wasn’t getting the support. I wasn’t utilising you properly.’ I was waiting for the phone call to have the weekly schedule, I should have been calling Helen when I wasn’t gelling right, I should have been on the phone to Sheridan explaining what was going on.
Mr Battersby: All right - - -
Mr Makrogiannis: (indistinct), I see the message you sent me and I got it loud and clear.
Mr Battersby: Thank you, Your Honour. I don’t have any further questions.[75]
[75]Cancellation Application Transcript (n 38) T20.16-T21-21 as corrected by Table of Differences (n 38), 2.
The Magistrate then proceeded to make the decision to cancel the treatment and supervision part of the appellant’s DTO and activating all of the remaining portion of the custodial part of the appellant’s DTO (after engaging in the arithmetical exercise described in s 18ZE(2)). The Magistrate did so without requiring cross-examination of the appellant and without providing the opportunity for the appellant’s counsel, or indeed counsel for Corrections Victoria to make further submissions.
Before making a decision in relation to the cancellation of the treatment and supervision part of the DTO, the Magistrate flagged with counsel for the appellant the matters he was concerned about and his opinion that the appellant’s actions suggest he was not willing to abide by the conditions of the order. The Magistrate made reference to the following factors:
(a) that the appellant is refusing to be fundamentally accountable by disrupting the urine testing process;
(b) that it was not clear where the appellant lives despite repeated requests; and
(c) that the appellant had been difficult with staff, particularly the female members staff, to the point of being aggressive.
These concerns raised by the Magistrate did not touch upon the appellant’s ability to comply with the conditions of the DTO in the future, nor the question of how much of the custodial part of the DTO should be activated upon cancellation.
Section 18ZP(1)(d) requires looking into the future, and the Magistrate was required to allow an opportunity for submissions to made be on this point. Furthermore, in the absence of earlier submissions on penalty, it was incumbent upon the Magistrate to invite submissions on s 18ZP(2) once a decision to cancel the treatment and supervision part of the DTO was made.
However, the Magistrate did not elicit submissions on these points. Instead, after the Magistrate raised his concerns, the appellant was called to give evidence before the Magistrate immediately made his decision to terminate the treatment and supervision part of the DTO and activate all of the remaining custodial part of the appellant’s DTO. Given the complex legislation which the Magistrate was called upon to apply and the wide-ranging considerations which were relevant, the Magistrate failed to provide the appellant with procedural fairness by not providing the opportunity for the appellant’s counsel to do so.
While procedural fairness required the Magistrate to provide the appellant with the opportunity to make further short submissions on the issue of whether the treatment and supervision part of the DTO should be cancelled, the failure to elicit, or even provide adequate opportunity for, submissions in relation to s 18ZP(2) was an even more stark failure to provide the appellant with the necessary level of procedural fairness.
I do not find that anything turns on the fact that counsel for the appellant did not indicate to the Magistrate that he had anything further to say at any point after his examination of the appellant was complete. In fact, it is unsurprising he did not do so. In accordance with usual procedures, counsel for the appellant was entitled to expect that the Magistrate would invite opposing counsel to cross-examine the appellant at the conclusion of his evidence-in-chief. Instead, the Magistrate proceeded to immediately make his decision. No criticism can be made of the appellant’s counsel for not interrupting the Magistrate’s ruling to indicate that he had wished to make further submissions.
As I have identified, the reactivation of the custodial part of the DTO results in the severest consequences possible for the appellant. The participant’s liberty is at stake. Further, the primary basis of the regime — to reduce crime in the community by addressing drug addiction in a rehabilitative, therapeutically-oriented manner — is diminished once the punitive, custodial part of the DTO is activated. The Legislature did not intend for such severe consequences and for the diminishing of the primary basis of the regime without the operation of rigorous procedural safeguards.
In this case, the Magistrate imposed the harshest possible penalty allowed by reactivation of the custodial part of a DTO directly after having heard evidence of the appellant’s breach of the DTO’s conditions. The appellant’s response to the Magistrate’s decision demonstrates his shock and dismay at the approach adopted. At the conclusion of the appellant’s evidence, the Magistrate made his decision to cancel the treatment and supervision part of the DTO, in less than 120 words, to which that appellant demonstrated his surprise stating ‘oh fuck’. The Magistrate continued, in less than 40 words, to impose the harshest custodial activation available without inviting any submissions on that issue.
The imposition of such a harsh custodial activation is a last resort available to the Magistrate under the regime. The requirements of procedural fairness operate to impose safeguards to ensure that the Magistrate has all of the appropriate information to make such a decision. It was therefore essential that submissions were invited from the parties as to the extent of the appellant’s compliance in addition to ‘mitigating matters in general.’ It is only through such submissions that the Magistrate could have known whether all of the relevant information was before the Drug Court or whether additional information or evidence needed to be adduced.
In the present case, it appears that due to the procedure adopted the Magistrate failed to appreciate that the conditions involved in the treatment and supervision part of a DTO have punitive aspects — in that they limit an offender’s freedom and impose positive obligations — which ought to be considered before imposing what amounts to the harshest possible custodial activation that could have been imposed on the appellant.
[106]Bchinnati v Connolly [2014] VSC 623 [34].
The parties submissions on relief raise two issues that require consideration. The first is whether orders quashing the Magistrate’s order cancelling the treatment and supervision part of the DTO would have the effect that the original terms of the treatment and supervision part of the DTO remain extant until its expiry on 6 October 2022. The second is whether it is appropriate for this Court itself should determine what part of the custodial sentence should be activated or whether orders should be made remitting the case for rehearing in the Drug Court
In relation to the first of those issues, I acknowledge that an order having the effect that the treatment and supervision part of the appellant’s DTO remains extant would be confronted with a number of practical difficulties, identified by the second respondent. The regime created by subdivision 1C does not contemplate the manner in which an offender would resume the treatment and supervision part of a previously cancelled DTO upon a successful appeal. As the second respondent submitted, an offender’s particular case management plan for treatment and supervision is complex and time-bound and if the appellant now wishes to access the benefit of further treatment and supervision his current circumstances and needs would need to be assessed.
Nonetheless, I do not accept the second respondent’s submissions to the effect that an order of this Court under s 272(9) of the Criminal Procedure Act quashing or setting aside the Magistrate’s decision to cancel the treatment and supervision part of the appellant’s DTO could not have the effect that the treatment and supervision part of a DTO remain extant. While not confined to orders in the nature of prerogative relief, s 272(9) empowers this Court to make any order it thinks appropriate. Had the appellant wished to continue under the treatment and supervision part of the DTO and maintained his opposition to its cancellation on any remitted hearing, then it may have been appropriate for orders to be made having that effect. Indeed, this would appear to be the typical result of orders setting aside a Magistrate’s cancellation of the treatment and supervision part of a DTO.
The practical issues raised by such orders no longer need to be directly confronted in the present case. The appellant has indicated that he is no longer willing to comply with one or more conditions attached to the order, raising concerns about the likely impact of resuming the treatment and supervision component of the DTO on his post-release living arrangements as well as the potential of being released for a short period before being returned to custody following a remitted hearing. Accordingly, the appellant has now conceded that the treatment and supervision part of the DTO should be cancelled under either s 18ZP(1)(c) or (d). As such, were this Court to make orders setting aside the Magistrate’s orders and remitting the case to the Drug Court for rehearing the practical issues in relation to the ‘re-activation’ of the treatment and supervision part of the order could be avoided through the granting of a stay of the treatment and supervision part of the DTO pending a remitted hearing on the portion of the custodial part of the DTO which should be activated under s 18ZP(2)(a).
The second issue raised by the parties submissions on relief poses greater difficulties.
The starting point for the court in considering what is ‘appropriate’ involves consideration of the nature, function and form of the decision under appeal. This is a case arising out of a specialist division of the Magistrates’ Court, the Drug Court, which has a high level of expertise and skills in dealing with drug affected people and people with addictions such as the appellant. The material provided by the appellant confirms the specialist nature of the Drug Court and the skills and expertise required by presiding Magistrates to determine what part of the order represents the sentence that would have been imposed had the appellant never attempted the DTO.
I accept that Walsh J’s observations in Forster v Jododex Australia Pty Ltd that it would ‘ordinarily be a wise exercise’ for an appeal court to use its discretion to decline to ‘undertake … tasks which have been committed by the Parliament to a specialized tribunal’ are apt in relation to appeals from the Drug Court.[107]
[107]Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 427 (Walsh J).
Given my findings that the appellant was denied procedural fairness and that the Magistrate incorrectly applied the test in s 18ZP(1), I consider that it would ordinarily be appropriate that the Magistrate’s orders be set aside and that orders be made remitting the case for rehearing in the Drug Court to determine the cancellation application in accordance with law. However, in the present case there are a number of other matters which have a bearing on the appropriate orders to be made under s 272(9).
The parties have informed the Court that the end date for the sentence the appellant is serving is 11 June 2021. Accordingly, if the treatment and supervision part of the order were now cancelled under s 18ZP(1)(c) or (d) — a course which the appellant no longer opposes — there would only be approximately 50 days of the custodial part of the order capable of being activated under s 18ZP(2)(a).
If the appellant had maintained his opposition to cancellation and was successful in a remitted hearing of the cancellation application, the treatment and supervision part of his DTO would remain extant until its expiry on 6 October 2022, notwithstanding the fact that he has already completed the majority of the custodial part of that order. While the continued access to treatment such an order provides would appear to be desirable for the appellant’s rehabilitation, it is understandable that the appellant no longer wishes to be subject to the punitive aspects of such an order having already spent a long period in custody.
The appellant’s change in position may also have been influenced by the delay in the determination of his appeal to this Court. The appellant’s original notice of appeal was filed on 11 January 2021. The appeal was not ultimately heard before me until 29 March 2021.
If orders were made setting aside the orders of the Magistrate and remitting the matter to the Drug Court, there would be no custodial orders in place and the appellant would be at liberty subject to the treatment and supervision part of the DTO until the application to cancel the DTO is heard and determined. However, if this Court remits the matter to the Magistrates’ Court constituted by a different court, there will be some delay, even if small, before the matter is finally determined. The consequence is that the appellant will be released, will have the issue of what part of his sentence is to be activated hanging over his head, and may then be imprisoned again.
Measures in place due to the COVID-19 pandemic also mean that if returned to custody the appellant may have to serve further time in quarantine. He served his entire seven day sanction period in December 2020 in quarantine, as well as a further 14 day period in quarantine upon the activation of the custodial part of his DTO from the date of the decision subject of this appeal.
A further and most regrettable aspect of this case is that the appellant has not had the benefit of the treatment and supervision part of the DTO which is designed to treat the underlying drug addiction. Instead, the appellant has been in custody since 21 December 2020 under onerous requirements placed on prisoners due to the COVID-19 pandemic.
Nonetheless, I ultimately do not consider that it would be appropriate for this Court to seek to stand in the shoes of the Drug Court and determine for itself the amount of the custodial part of the appellant’s DTO to activate in accordance with s 18ZB(2)(a). As I have acknowledged, subdivision 1C is intended to be applied by the Drug Court in its capacity as a specialist division of the Magistrate’s Court. The denial of procedural fairness in the original cancellation hearing also means that all the material which may have been before the Court in the cancellation proceeding is not presently before this Court. For example, the second respondent may have wished to cross-examine the appellant on his compliance with the treatment and supervision part of the DTO, as well as to make submissions on the appropriate course under s 18ZP(2). If the cancellation application were to be re-heard on its merits I consider it most appropriate that it be done so before the Drug Court.
However, I note that, on the material before me, it appears that if I made orders remitting the case for rehearing in the Drug Court it is unlikely that all of the custodial part of the DTO would be activated under s 18ZP(2)(a) once proper regard is given to the extent to which the appellant complied with that part of the order. The evidence is that during the seven weeks the appellant participated in the DTO he showed overall satisfactory compliance with his DTO as attested to by Ms Sarpong, his case manager, and he consistently attended and engaged with drug and alcohol counselling (by phone) for the duration of the DTO. Furthermore, upon any order remitting the case for rehearing in the Drug Court it would be appropriate for regard to be had to the fact that the errors of law in the original cancellation has potentially deprived the appellant the opportunity of continuing under the treatment and supervision part of the order.
It would therefore appear that the likely practical effect of remitting the case for rehearing in the Drug Court would be that the appellant would be released only to — at most — have a short period of the remaining approximately 50 days the custodial part of his DTO activated under s 18ZP(2)(a).
In his original written submissions, the appellant suggested — in reliance on DPP (Nauru) v Fowler[108] — in the circumstances of this case the public interest in the proper administration of justice and the interests of the accused could be balanced through orders which would avoid the potential for the appellant to be released, only to resume a custodial sentence shortly afterwards (depending on the outcome of the rehearing), given that he will have already served a substantial period of the custodial part of the order by the time this appeal is heard and determined.
[108](1984) 154 CLR 627, 630.
In DPP (Nauru) v Fowler, the High Court considered s 14(3) of the Appeals Act 1972 (Nauru) which provided that:
Subject to the special provisions of this Act, the Supreme Court shall, if it allows an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered or, if the interests of justice so require, order a new trial.
The High Court held that this section imposed a two-stage test, stating:
The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused. The alleged misuse by the respondent of his position as a senior officer of the Phosphate Corporation might have been regarded as a reason in favour of granting a new trial, whereas, on the other hand, the facts that the respondent was no longer on the island of Nauru and that the offences were thought to warrant only one month's imprisonment and a small fine might have been thought to provide arguments to the contrary. These were matters that should have been weighed by the Supreme Court in deciding how its discretion should be exercised.[109]
[109](1984) 154 CLR 627, 630.
This test has been applied by the Court of Appeal in relation to ss 277 and 326E of the Criminal Procedure Act which require that Court, upon allowing an appeal against conviction, to set aside the conviction and, inter alia, either order a new trial or enter a judgment of acquittal.[110]
[110]See, eg, R v Joseph Terrence Thomas (No 3) (2006) 14 VR 515; Bauer (pseudonym) v R (No 2) [2017] VSCA 176; Roberts v R [2020] VSCA 277; Mokbel v DPP (Cth) [2021] VSCA 94.
In R v Thomas (No 3),[111] Maxwell P and Buchanan and Vincent JJA observed that an important principle underlying the High Court’s observations in Fowler is that:
[111](2006) 14 VR 512.
[A]n appellate court must be careful not to usurp the functions of the properly-constituted prosecutorial authorities entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions…[112]
[112]Ibid 517, [27].
However, their Honours observed:
Intervention is justified, however, to ensure that the subjection of an individual to the continued operation of the criminal justice system is not itself a source of oppression or unfairness.
…
It is of crucial importance that our criminal law structures operate and can be seen to do so in accordance with their stated values. This can present a particular problem in a case in which an appeal against conviction has been allowed by reason of the commission of some error of law by a trial judge or because the trial has otherwise miscarried. Wickham, J, in the Western Australian Court of Criminal Appeal, addressed this concern in his judgment in Rabey v R:
Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spent some time in prison and has already been through one trial and an appeal.
The factors to be taken into account in the exercise of the discretion to direct an acquittal or a new trial in the event of a successful appeal have not been clearly identified. The cost and complexity of any re-trial, the seriousness of the offence involved, the likely outcome in terms of penalty, the length of time during which the individual has been subject to criminal law process, and a multitude of personal factors could all assume relevance. We have not attempted in this list to cover the field with respect to the matters to be taken into account, but simply to draw attention to the array of features that could possess significance in a given situation.[113]
[113]R v Thomas (No 3) (2006) 14 VR 512, 517-8 [27], [29]–[30].
I consider that similar considerations are relevant to the question of the ‘appropriate’ orders to be made in the unusual circumstances of this appeal.
In the present circumstances no question arises of there being insufficient evidence capable of justifying cancellation under s 18ZP(1), particularly in light of the appellant’s concession that the treatment and supervision part of the DTO should now be cancelled. However, I consider that there is an important question of whether there are circumstances that might render it unjust to the appellant for the matter to be remitted to the Drug Court for the determination of how much of the custodial part of the DTO should be activated under s 18ZP(2)(a). This calls for a balancing of the public interest in the proper administration of justice with the interests of the appellant in determining the appropriate orders to be made in this case.
Accordingly, in considering the appropriate orders to be made I recognise the cumulative impact of the following factors:
(a) the appellant has already served the majority of the custodial part of the DTO;
(b) the appellant has already experienced extensive restrictions on his freedom and a range of positive obligations imposed upon him whilst subject to the treatment and supervision part of the DTO;
(c) if orders were made remitting the case for rehearing in the Drug Court, the appellant would be released from custody for a short period before facing the risk of re-imprisonment a short time later, likely causing him great anxiety, particularly given the possibility of further time spent in quarantine if re-imprisoned;
(d) the likely practical result of remitting the case for rehearing in the Drug Court would see the appellant have a relatively short period – if any - of the remaining approximately 50 days the custodial part of his DTO activated under s 18ZP(2)(a), thus making it futile to do so;
(e) the errors of law in the decision to cancel the treatment and supervision part of the DTO potentially deprived the appellant of the rehabilitative opportunities under that order;
(f) the appellant has been through numerous steps including a DTO assessment report, a plea and conviction before the Drug Court, hearings before the Drug Court to determine compliance with the DTO, the cancellation application before the Drug Court, and the appeal before the Supreme Court, and an additional hearing before the Drug Court on this matter would be oppressive;
(g) the optimum use and appropriate allocation of court resources, and the public inconvenience and expense involved, militates against remitting the matter to the Drug Court; and
(h) the course of this matter, and the delay in the determination of this appeal, has potentially contributed to the appellant’s decision to no longer contest the cancellation of the treatment and supervision part of the DTO.
In those circumstances, it would not be in the interests of justice to remit the matter to the Drug Court. Rather than remitting the matter to the Drug Court or deciding the application under s 18ZP(2) myself, I consider that it is appropriate for the orders cancelling the treatment and supervision part of the DTO and activating all of the remaining custodial part of the DTO be set aside and that the time already served by the appellant under the custodial part of the DTO be treated as fully satisfying the sentence imposed upon him for his original offending.
In doing so I note that this is an unusual case. In the unique and difficult circumstances of this case such an approach best balances the public interest in the proper administration of justice with the interests of the appellant.
In relation to the public interest in the proper administration of justice I note that the current case does not involve a question of whether the appellant should be retried for an offence and, accordingly, this approach does not involve entry of a judgment of acquittal for the offences of which he was convicted and for which the DTO was imposed. Furthermore, the appellant was not charged with an offence in relation to the allegation that he interfered with the urine testing process. Instead, an application was made for the cancellation of the treatment and supervision part of the DTO. Accordingly, the hearing of that application does not serve a public interest of ‘hear[ing] and determin[ing] finally whether the [appellant] has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment’.[114]
[114]Jago v District Court (NSW) (1989) 168 CLR 23, 47 (Brennan J); see also DPP (Nauru) v Fowler (1984) 154 CLR 627, 630.
I acknowledge there is a strong public interest in offenders serving the full sentence imposed upon them for offences for which they have been convicted. However, in the present case the Magistrate’s decision to cancel the treatment and supervision part of the DTO and activate the entirety of the custodial part of the DTO which remained capable of being served was vitiated by error due to a denial to afford the appellant procedural fairness. The custodial part of the DTO represented the sentence which would have been imposed on the appellant for his original offending had the DTO not been imposed. However, as a result of the denial of procedural fairness the appellant’s compliance with the treatment and supervision part of the DTO was not adequately considered by the Magistrate in deciding to activate the entirety of the custodial part of the DTO. Accordingly, the punitive elements of that part of the order were not taken into account and the fact that imposition of the entirety of the custodial part of the DTO could involve a greater punishment than that which would otherwise have been imposed appeared to go unacknowledged.
In those circumstances, I consider that any remaining public interest in the appellant serving the exact portion of the custodial part of the DTO which would have been activated under s 18ZP(2)(a) remitting the case for rehearing in the Drug Court is outweighed by the oppression or unfairness such remittal would cause the appellant.
I will make the following orders under s 272(9) of the Criminal Procedure Act:
1. That the appeal be allowed.
2. That the orders of the Magistrates’ Court of Victoria at Melbourne on 15 December 2020 in case 202007990, cancelling the treatment and supervision part of the DTO under s 18ZP(1) and activating all of the remaining custodial component of the DTO under s 18ZP(2)(a) be set aside.
3. That the days the appellant served in custody since 15 December 2020 to today (plus seven days previously served pursuant to s 18ZL and 73 days pre-sentence detention) constitute the entirety of the custodial part of the DTO.
4. That the appellant is discharged from the DTO.
I will the hear parties on costs.
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