Parker v Shaw
[2017] TASSC 25
•27 April 2017
[2017] TASSC 25
COURT: SUPREME COURT OF TASMANIA
CITATION: Parker v Shaw [2017] TASSC 25
PARTIES: PARKER, John
v
SHAW, Christopher Mark
FILE NO: LCA 3307/2016
DELIVERED ON: 27 April 2017
DELIVERED AT: Hobart
HEARING DATES: 3 and 12 April 2017
JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentence and penalty –Cancellation of drug treatment order – Activation of seven months of custodial sentence of 14 months manifestly inadequate.
Sentencing Act 1997 (Tas), ss 27B, 27C, 27D, 27F, 27Q.
Ferguson v Tasmania [2011] TASSC 51; McCullough v Larner [2012] TASSC 35, referred to.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: M Figg
Respondent: A Hensley
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2017] TASSC 25
Number of paragraphs: 29
Serial No 25/2017
File No 3307/2016
JOHN PARKER v CHRISTOPHER MARK SHAW
REASONS FOR JUDGMENT PEARCE J
27 April 2017
This is a motion to review a sentencing order made on 8 November 2016 by a magistrate, Ms S Cure. On 27 April 2016 the respondent, Christopher Shaw, was made subject to a drug treatment order under the Sentencing Act 1997 ("the Act"), s 27B. The custodial part of the order was imprisonment for 14 months. Just over six months later, on 8 November 2016, the magistrate cancelled the order: s 27Q. Her Honour activated seven months of the custodial part of the sentence. The sentence was backdated to commence on 17 October 2016 to take account of 22 days of custody, 14 of which had been activated for failures to comply with conditions of the order while it was in force.
The applicant, who is a police officer, moves for review of the sentencing order on the ground that by activating only seven months of the original 14-month sentence the magistrate imposed a sentence which was manifestly inadequate. The applicant submits that the account taken, under s 27Q(2), for the "extent of the offender's compliance" with the drug treatment order was, in all the circumstances, generous to the respondent to the point of error. That submission should be accepted. However, for the reasons which follow, I would exercise the residual discretion to dismiss the motion.
The legislative scheme
Drug treatment orders are provided for by the Act, Pt 3A. They form part of what is referred to as a program of court mandated diversion, or CMD, designed to address addiction to illicit drugs as a cause of offending. A court may make a drug treatment order if, subject to some other pre-conditions not relevant here, it finds an offender guilty of one or more imprisonable offences, is satisfied that the offender has a demonstrable history of illicit drug use, that illicit drug use contributed to the offending, and the offender would otherwise have been sentenced to a wholly effective term of imprisonment: s 27B(1). The purpose of an order finds statutory expression in s 27C. It is to achieve one or more of the four specified aims, to:
"(a) provide an alternative sanction to imprisonment;
(b)through an integrated, supervised and reviewable treatment regime, facilitate the offender's rehabilitation and reintegration into the community;
(c) reduce the incentive for the offender to resort to criminal activity;
(d) reduce risks to the offender's health and well-being."
Sentencing courts must obtain a drug treatment assessment report to establish whether an offender is a suitable subject for the making of an order: s 27D. If a drug treatment order is made it contains two parts: a custodial part and a treatment and supervision part: s 27E(1). The custodial part specifies the sentence of imprisonment which would have been imposed if the drug treatment order was not made: s 27F. However, the offender is not required to serve all or any of the custodial part of the order unless it is activated by some other order made under Pt 3A. The treatment and supervision part of the order specifies the conditions with which the offender must comply while the order is in force: s 27E(3). Every drug treatment order contains the core conditions specified in s 27G. A sentencing court may also impose conditions, referred to as program conditions, which are tailored to the treatment and supervision needs and requirements of a particular offender: s 27H.
Compliance with conditions of a drug treatment order can be, and usually is, onerous. Offenders subject to a drug treatment order must comply with all of the core and program conditions, including the core condition to submit to the supervision and directions of the case manager and court diversion officers: s 27G(1)(i). In order to achieve the aims of the order, significant resources are devoted to the treatment and supervision of offenders. However the resources are limited. For that reason only a limited number of placements are made available so as to ensure that the attention each offender on the program receives is sufficiently intensive. Progress of an offender subject to an order is undertaken by case conferences attended by the offender, his or her legal representative, a prosecutor, the offender's case manager and the court diversion officer: s 27I. The offender is required to make frequent court appearances before a magistrate, who also monitors progress. In the normal course, prior to each court appearance, a progress report is prepared by the court diversion officer and submitted to the supervising magistrate. The magistrate has power to reward compliance: s 27K.
The court has power to address the failure of an offender to comply with conditions of the order: s 27M. The magistrate may treat the commission of an imprisonable offence while subject to an order as breach of a condition of the order: s 27O. One of the powers available to the court when a condition is breached is to order activation of the custodial part of the order for a specified period of not less than one day and not more than seven days: s 27M. An offender is not required to serve the period of imprisonment until the total activated period exceeds 13 days: s 27N(1). In other words, once the activated period is 14 days or more, then that part of the sentence must be served. After the activated period is served the offender returns to the program.
There are three circumstances in which the court may cancel the treatment and supervision part of a drug treatment order. The first is as a reward for compliance under s 27L, when the order is no longer necessary to achieve its legislative purposes and the period of the custodial part of the sentence has fully expired. Secondly, cancellation may occur if the offender commits an offence punishable by imprisonment for a term exceeding 12 months: s 27O(1)(b). Finally, the court has power to cancel the treatment and supervision part of the order if the court is satisfied that one of the four circumstances listed in s 27Q(1)(a) to (d) exists. The terms of s 27Q are central to the resolution of this motion so I will set out the material parts in full:
"27Q Cancellation
(1) A court may cancel the treatment and supervision part of a drug treatment order made by the court 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 the court or the authors of the relevant drug treatment order assessment report; or
(b) the offender will be unable to comply with a condition of the order because his or her circumstances have materially changed since it was made; or
(c) the offender is no longer willing to comply with one or more conditions of the order; or
(d) the continuation of the treatment and supervision part of the order is unlikely to achieve one or more of the purposes for which the order was made.
(2) When cancelling the treatment and supervision part of the order under subsection (1), the court, after taking into account the extent of the offender's compliance with that part, must —
(a) make an order activating some or all of the custodial part of the drug treatment order; or
(b) cancel the custodial part of the drug treatment order and, other than by making an order under section 7(a), deal with the offender for each offence in respect of which the drug treatment order was made in any way in which it could deal with the offender had it just convicted him or her of each such offence.
(3) …
(4) …
(5) When making an order under subsection (2)(a), the court may fix a non-parole period for the sentence of imprisonment, or partial sentence of imprisonment, activated by the order.
(6) ...
(7) ...".
Once the court decides to cancel the order under s 27Q(1) it must make one of two alternative orders. Firstly, under s 27Q(2)(a), the court may activate all or part of the custodial part of the order. Alternatively, under s 27Q(2)(b), it may impose a sentence other than a wholly effective term of imprisonment. In either case, the court is required to take into account "the extent of the offender's compliance" with the order before cancellation.
The respondent's offending
In the respondent's case, the drug treatment order was made on his plea of guilty to 60 summary offences charged across 30 complaints. The offences were committed during a period of about 20 months between February 2014 and October 2015. The offences included drug related driving offences, possessing and using illicit drugs and numerous offences of dishonesty. The sentence of imprisonment for 14 months which formed the custodial part of the order is not under challenge in this motion.
The assessment process and the drug treatment order
By 22 October 2015 the respondent had pleaded guilty to most of the charges against him. He was not sentenced immediately. On that day, the respondent's counsel submitted to the sentencing magistrate that the respondent's eligibility and suitability for a drug treatment order should be assessed. The assessment was ordered and undertaken, and the assessment report is dated 3 December 2015. The respondent was assessed as "eligible and suitable for the CMD program". The report was considered by the magistrate on 4 December 2015. Because the respondent had not then pleaded guilty to all of the charges he faced, the magistrate decided to wait until all charges were resolved, and could be dealt with together, before proceeding to sentence. In the meantime, her Honour imposed conditions on the respondent's bail which were equivalent to the conditions to which he would have been subject had a drug treatment order been made. Such bail orders may be made so that an offender has the opportunity to demonstrate suitability for the program before an order is made, especially when his or her suitability is uncertain. In the respondent's case the assessment report recommended that the respondent "be placed on the CMD program by way of a bail order until his outstanding offences are finalised and to provide the CMD team with the opportunity to further assess his suitability with regard to the identified potential problems with transport to appointments".
The assessment report detailed the respondent's background and circumstances. At the time of the report the respondent was aged 41. He was unemployed and had been receiving a disability pension since 2005. He had five children aged between 7 and 20 who were from a long term relationship. The respondent had heavily abused alcohol and drugs since he was a teenager. He reported to the author of the report that he had not used alcohol or cannabis for a year, but until then had habitually consumed a bottle of spirits every day, and smoked cannabis regularly. The breakdown of his relationship two years earlier had triggered the use of methamphetamine. He became a daily heavy user. His drug use caused financial difficulty which led to offences of dishonesty to fund his habit. The lack of other secure accommodation meant that he was living with a friend at Cressy, more than 30 kilometres from Launceston. Because he could not drive, and had no other transport readily available, some difficulty with compliance was foreshadowed. He was in very poor health. He suffered from a form of heart disease caused by alcohol abuse, had liver disease and chronic obstructive pulmonary disease. Enquiries were made by the author of the assessment report of a psychologist from the Alcohol and Drug Service whom the respondent had seen twice. She expressed "serious concerns regarding [the respondent's] health issues".
The drug treatment order was ultimately made on 27 April 2016. Thus, by the time the drug treatment order was cancelled on 8 November 2016, the respondent had been subject to either the drug treatment order or bail with equivalent CMD conditions for about 11 months.
The drug treatment order contained 19 conditions. Of those, nine were the core conditions provided for by s 27G. They include that the respondent not commit an "imprisonable offence", and that the respondent comply with all lawful directions of the court and all reasonable directions of the case manager and court diversion officers. The 10 program conditions imposed under s 27H included that:
· the respondent submit to random drug testing;
· he submit to detoxification or other treatment, including residential treatment;
· he not use any illicit drug; and
· he attend counselling as directed.
The extent of the respondent's compliance with the order
Because the sentencing magistrate was, after cancelling the drug treatment order, required to take into account the extent of the respondent's compliance with Pt 3A of the Act before deciding what order to make under s 27Q(2), consideration of the material before her Honour on that question is required. The first four progress reports were prepared before the drug treatment order was made, while the respondent was on the bail program. Part 3A of the Act is concerned with drug treatment orders. Compliance with bail conditions is not, strictly speaking, compliance with a drug treatment order. However, in the circumstances of this case it is fair to take into account the respondent's compliance with the bail conditions because compliance with those conditions formed a continuous part of the court mandated diversion program. For the period between 4 December 2015 and 27 April 2016, five progress reports were prepared. They disclose that:
· the respondent quickly found accommodation in Launceston thus resolving his transport problems;
· he attended 12 case management meetings. He failed to attend one scheduled meeting and his attendance at two other meetings was excused on medical grounds;
· he attended for urinalysis on 15 occasions. He failed to attend four times and was excused twice on medical grounds;
· he attended an appointment made for him with the Salvation Army and the Alcohol and Drug Service;
· he self-referred to the Serenity House two week "Time Out" program, which he attended between 1 and 7 March 2016. However he did not complete the program, leaving after only one week despite the encouragement of the CMD team to continue, and an earlier warning from the magistrate, on 23 February 2016, of the possible consequences of non-completion;
· throughout the period the respondent continued to use illicit drugs. All but two of the urinalyses tested positive to amphetamine. There were also positive tests to cannabis and benzodiazepines. Only the urinalyses undertaken on 10 March 2016 and 15 March 2016, just after he withdrew from the Serenity House program, tested negative to all drugs. However urinalysis undertaken on 18 April 2016 again was positive to amphetamines;
· the respondent was hospitalised between 15 and 29 March 2016 for reasons arising from his general health conditions, as a result of which he did not attend court as required on 17 March 2016. He did not attend court on 7 April 2016;
· the authors of the reports expressed concern about the level of the respondent's engagement in the CMD program, by reference to exercises and tasks assigned to him, and doubted his willingness to change. Sometimes he admitted the use of drugs but, on other occasions, denied use in the face of evidence to the contrary.
Somewhat surprisingly, despite the respondent's continued drug taking and the concern expressed in the earlier reports about his compliance, the court diversion officer's report of 22 April 2016 states that the respondent "has demonstrated that he can substantially comply with the conditions of the program" and recommended that a drug treatment order be made. The drug treatment order was made by the magistrate on 27 April 2016.
Between the making of the order and its cancellation on 8 November 2016, eight progress reports were prepared and submitted to the court. They disclose that:
· throughout the period the respondent continued to use illicit substances. He failed to attend six appointments for urinalysis. He attended 19 urinalysis appointments but, on every occasion tested positive for amphetamine and/or methamphetamine;
· the respondent attended 15 case management meetings but failed to attend four;
· he was referred to the Alcohol and Drug Service and the Salvation Army for counselling but both services closed their files due to "minimal engagement";
· he was hospitalised from time to time reporting worsening health problems;
· by 15 August 2016 the respondent had accumulated 20 "sanction days" for contravention of conditions. On that day the magistrate activated 14 days of the custodial part of the sentence. He was released on 29 August 2016. During a case conference the following day he admitted using illicit substances on the day of his release. The urinalysis on 31 August 2016 was positive to amphetamine, methamphetamine, opiates and benzodiazepines;
· the respondent resisted the recommendations of the case management team that he undertake residential rehabilitation at Serenity House or Missiondale;
· by 27 September 2016 the recommendation of the CMD team was that the drug treatment order be cancelled on the basis of, alternatively, s 27Q(1)(b), (c), or (d). The recommendation was repeated in the progress report of 5 October 2016.
Written application for cancellation of the drug treatment order was made by a police officer and is dated 2 November 2016. The respondent contended that he should be permitted to continue on the program, but the magistrate disagreed and cancelled the order.
Orders on cancellation
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 re-sentencing 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, co-operation, 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].
Subject to one possible qualification I respectfully agree with her Honour's statements. In Ferguson, Wood J stated at [64] that she was not constrained by the view that the term of the custodial part of the order made in that case was "correct". Her Honour said that the question, by reference to order made on cancellation in that case, was "the more general one of whether the sentence of seven months is manifestly excessive having regard to all the circumstances, set out above, including the applicant's compliance with treatment and supervision under the order". I do not think her Honour intended to suggest that the re-sentencing exercise after cancellation amounted to a reconsideration of the original sentencing order at large. In both Ferguson and Larner her Honour's consideration of the sentence focussed on factors occurring between the CMD bail order or drug treatment order and the time of cancellation. If I am wrong about her Honour's approach, then I would not go so far. In my view, 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 re-sentencing 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. In this motion, no submission was made by either the applicant or the respondent challenging the length of the custodial part of the order, and the contentions of both parties focussed on events following the respondent's commencement on the program.
Error is established
The application to cancel the drug treatment order to which the respondent was subject came before the magistrate on 4 November 2016. In the course of the proceedings she said:
"If I cancel I will re-sentence him. He'll get some credit for what he's done ... So he's not looking at 14 months, he gets quite a bit of credit for what he's done. I just have to make a decision, go through the reports."
On 8 November 2016 her Honour found that the respondent was unable to comply with the conditions of the order and cancelled it. The magistrate then said:
"Now what I have to do is decide how much of the 14 months I restore. There is one very strong factor in your favour, you've not reoffended … I am aware that you have serious health issues and I am aware that you made an effort at various times and what I am going to do is I am going to restore 7 months of the 14 months and I am going to backdated having regard to the time you have had in custody and the time that you've been in custody, so we now need to work that out.
With respect to the learned magistrate, her decision to activate only seven months of the 14 month custodial part of the sentence was not justified either by the extent of the respondent's compliance with the terms of the order or any other mitigating factor. On 4 November 2016 her Honour made passing reference to a decision of Wood J. It must have been a reference to either Ferguson or Larner. Neither decision supports the allowance the learned magistrate extended to the respondent for the level of his "compliance". Wood J made clear that the weight to be given to compliance depends on the facts of each case. Counsel for the applicant submitted that some allowance for the respondent's compliance with the order was justified, but much less than the allowance made by the magistrate. That submission should be accepted. Over the course of the 11 months or so during which the respondent was subject to drug treatment order conditions, either as conditions of bail or the order, he attended case management appointments and urinalysis appointments. He appeared in court when required on most occasions. However, beyond the mere fact of attendance, the respondent did little to comply. He continued to use illicit drugs. He showed little willingness to actively participate in the program and to change. He resisted residential treatment. He left Serenity House after only a week of a two-week program and quickly relapsed to drug use. He resumed drug use immediately after having completed the period of custody ordered for non-compliance. The effect of the order as a sanction or punishment had been minimal. As the learned magistrate correctly pointed out, the strongest factor in his favour was that he had not re-offended, at least during the currency of the order. However his continued drug use meant that the incentive for resort to criminal activity had not been reduced: s 27C(c). None of the aims of the order had been achieved.
There was little else to be said in mitigation. The magistrate was well aware of the poor state of the respondent's health when she made the original sentencing order. Counsel for the respondent on this motion made submissions about the apparent deterioration in the respondent's health during the currency of the order but there was little or no evidence before the learned magistrate to support the submission. I do not think it carries mitigation in any event. There was no reason for the magistrate to conclude that the respondent would not receive the treatment he required while in prison.
For those reasons I am satisfied that error asserted in the motion to review is established. The result of the sentencing order made was that the sentence imposed on the respondent following cancellation of the order was unreasonable and plainly unjust: House v The King (1936) 55 CLR 499 at 505. Even taking into account the higher threshold for error in Crown appeals, and the magistrate's broad sentencing discretion, the sentence was so inadequate as to be indicative of error or departure from principle: Griffiths v The Queen (1977) 137 CLR 293 at 310. The error is implicit in the excessive leniency of the sentence imposed: Visser v Smart [1998] TASSC 151.
Appellate intervention in prosecution appeals
The powers of this Court on review of the decision of a magistrate are set out in the Justices Act 1959, s 110(2). On hearing the review the Court "may do all or any" of the following things:
"(a) dismiss the motion;
(ab)in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;
(b)confirm, vary, amend, rescind, set aside, or quash the order reviewed;
(c)remit the cause or matter to the justices by whom it was dealt with, either with or without any direction in law;
(d)order that the cause or matter be re-tried by a magistrate;
(e)prohibit the justices concerned, or any other person, from proceeding or further proceeding in respect of the order;
(f)amend or cause to be amended, on such terms as are just, any defect or error in any proceedings before the justices;
(g)make all such orders and cause all such proceedings to be had and taken as the court thinks necessary to secure a final determination of the cause or matter on the merits;
(h)exercise, in addition to any other powers conferred by this section, any power which the court might exercise upon habeas corpus or an order of review under the Judicial Review Act 2000;
(i)exercise any power that might have been exercised by the justices in relation to whose order the motion to review is made."
Subsections (2AA) and (2AB) of s 110 are relevant to the determination of this motion. They provide:
"(2AA) The court, on hearing a motion to review in relation to an order imposing a sentence on a person in relation to a matter, may, whether the person who filed the notice of review in respect of the order was the person or the prosecutor, take into account any matter, relevant to sentencing, that has occurred between when the justices who made the order dealt with the person in relation to the matter and when the court hears the motion to review.
(2AB) Despite subsection (2AA), the court, in exercising in relation to an order a power under subsection (2), the effect of the exercise of which is that the person to whom the order relates is being sentenced again for an offence, must not take into account any element of double jeopardy involved in the person being sentenced again so as to impose a less severe sentence than the court would otherwise consider appropriate."
In this motion the applicant accepts that the terms of s 110(2AB) apply only when a person is being re-sentenced, and do not displace the residual discretion to dismiss a prosecution appeal despite being satisfied of error. That is, the court may in its discretion dismiss the motion, notwithstanding that the sentence is erroneously lenient on the basis of the principles outlined in CMB v Attorney General for New South Wales [2015] HCA 9, 256 CLR 346 at 351 [6] (French CJ and Gageler J); 366-370 [56]-[66] (Kiefel J (as she then was), Bell and Keane JJ). As to the application of those principles to motions to review the decision of a magistrate in this State see also Cannell v Hughes [2014] TASSC 41; Lyons v Bakes [2015] TASSC 37; Parker v Hall [2015] TASSC 60; Wilkie v Cohen [2016] TASSC 14, and Merrigan v Oakley [2016] TASSC 58. I am not precluded by s 110(2AB) from taking double jeopardy considerations into account in deciding whether to exercise the residual discretion.
In this case I have decided that the motion should be dismissed even though I am satisfied that error is clearly established. That is so for a number of reasons, some arising from considerations of double jeopardy but some not, which operate individually and in combination:
· An important purpose of Crown appeals is to enable this Court to provide governance and guidance to sentencing courts and to maintain public confidence in the proper administration of criminal justice in the sentencing of offenders. In this case, those purposes can be adequately served by resort to the matters of principle set out in these reasons and without descending to the correction of the error in the individual sentence imposed upon the respondent.
· The applicant accepts that it would have been within the proper exercise of the magistrate's sentencing discretion to make some small allowance for the extent of the respondent's compliance with the drug treatment order. If I were re-sentencing the respondent I would have activated at least 12 months of the custodial part of the sentence. However, even if all of the 14-month custodial part of the sentence had been activated by the sentencing magistrate it would have been necessary for her Honour to consider fixing a non-parole period: the Act s 27Q(5). There is every reason to conclude that the shortest possible non-parole period would have been ordered. It is the order I would make if I were to re-sentence the respondent. He had not served a term of imprisonment before. He was given a short suspended sentence in 2002 for a driving offence and did not breach it. In the respondent's case, assuming activation of the entire custodial part, the likely order would therefore have been that he not be eligible for parole until having served seven months of the 14-month sentence: the Act, s 17(3). The respondent has already served the seven-month sentence the magistrate ordered. He was released from prison, presumably after allowance for remissions, on 6 March 2017. In my view, the effect of activation of a greater term will be to send the respondent back to prison only to apply for parole. According to the information I have, and my experience of such things, parole would likely be granted. He has been deprived of the opportunity to make a timely application. The likely practical effect of allowing the motion is limited to removing a period of no more than seven months (and possibly less) during which the respondent would be in the community on parole, in contrast to in the community having completed the sentence. The respondent would of course still be subject to the risk of revocation of parole, but the period of actual custody would not alter except in the event of revocation.
· In deciding whether to intervene I may take into account matters relevant to sentence which have occurred since the sentence was imposed: the Justices Act, 110(2AA). I may take into account the anxiety that the respondent has no doubt felt arising from the risk of re-imprisonment after release. While in prison he was treated for chronic airways disease, dilated cardiac cardiomyopathy complicated by the onset of atrial fibrillation, for hepatitis C and for cirrhosis. There is no evidence that prison caused his conditions to deteriorate. I think, given enforced abstinence from drugs and alcohol and the availability of treatment, the converse is likely. However, since his release from prison the respondent has been re-admitted to hospital. He was admitted to the Launceston General Hospital on 5 April 2017 and remained an inpatient when the hearing of the motion was concluded on 12 April 2017. Those factors suggest that the prospect of arrest and re-imprisonment would be more stressful for the respondent than would usually be the case.
Result and orders
I am satisfied that the sentencing magistrate, when cancelling the drug treatment order to which the respondent was subject, erred by ordering a sentence which was manifestly inadequate. Despite being satisfied of error I would, for the reasons I have expressed, dismiss the motion.
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