R v Bell (No 2)
[2020] ACTSC 83
•7 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Bell (No 2) |
Citation: | [2020] ACTSC 83 |
Hearing Date: | 7 April 2020 |
DecisionDate: | 7 April 2020 |
Before: | Walker AJ |
Decision: | The Drug and Alcohol Treatment Order is cancelled. The remaining sentence of imprisonment of 13 months and 28 days is imposed with a non-parole period of 7 months. |
Catchwords: . | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – drug and alcohol treatment order cancellation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 65, 80ZE |
Parties: | The Queen (Crown) Kimberley Bell (Offender) |
Representation: | Counsel H Roberts (Crown) C Duffy (Offender) |
| Solicitors Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 329 of 2019 SCC 330 of 2019 |
WALKER AJ
Summary of matter
This is a prosecution application pursuant to section 80ZE of the Crimes (Sentencing) Act2005 (the ‘Sentencing Act’) for cancellation of a drug and alcohol treatment order imposed on Ms Kimberley Bell. The Defence oppose the application.
Ms Bell was last sentenced on 15 January 2020. She was sentenced to three months' imprisonment for taking a motor vehicle without consent and two months' imprisonment for minor theft. Those sentences were to be served concurrently to a total of three months and 19 days, effectively being time that had already been served in prison.
She was further sentenced for an offence of damaging property contrary to s 403 of the Criminal Code 2002 (ACT), an offence which on conviction carries up to 10 years' imprisonment, a financial penalty or both. In respect to this offence, 15 months' imprisonment was imposed with 12 months to be served as part of a drug and alcohol treatment order. The custodial part of the sentence was suspended on that date and the 12-month treatment order imposed.
It is perhaps significant that Ms Bell's assessment took place while she was in custody. One of the barriers to an assessment in the community, and indeed potentially to the making of an order, was the lack of a realistic accommodation option in the community. Ms Bell had previously lived with a partner who was an indirect victim of some of the offending and with whom she had and continues to have a complex relationship, characterised, in part, by their shared drug abuse.
Whilst Ms Bell expressed some ambivalence about her ability to engage with a drug and alcohol treatment order, even during the assessment process, she repeatedly confirmed that she wished to avail herself of a structured and supportive treatment option in the community when appearing before the Court. At times she has shown significant insight into her own conduct and motivations. As Ms Duffy submitted on her behalf today, she continues to accept responsibility for her actions, and she has never overstated her position. She also continues to struggle with ill-defined and sub optimally treated mental illness, largely due to her own lack of appropriate engagement.
Circumstances
Ms Bell's progress on her order has been problematic. In making the treatment order, initially I declined to agree to Ms Bell returning to the Wayback rehabilitation service in Sydney, New South Wales, as she had previously exited that service. Rather, upon her release she was required to engage with ACT Health's Alcohol and Drug Services (ADS) for weekly case management and counselling, along with attendance at a SMART Recovery group and, when it was to become available, the Toora Women Incorporated day program. Toora is an organisation dedicated to the support of women facing various challenges in the community, including homelessness, mental health, and alcohol and drug issues.
As with all participants, she was required to attend for urinalysis three times a week. It very quickly became apparent that she had reconnected with her partner, with whom she engaged in drug use. She frequently missed appointments and regularly failed to attend at urinalysis. She was open about her continued methamphetamine use when she did engage with services or the Court.
Initially, Ms Bell was released to reside in accommodation provided by Toora. In keeping with its policy, the address was not disclosed to the court nor the treatment team. It became apparent that Ms Bell was residing only intermittently at that residence. Again, her partner was complicit with her failure to reside as required, being a condition of her order. This relationship was undermining Ms Bell's commitment to her treatment order. To assist Ms Bell, she was made subject to a non-association order with her partner.
Recognising that she was not coping in the community, Ms Bell sought referral for detoxification. She was assessed as to her suitability to enter a day program and also Lesley's Place, a residential program provided by Toora. Given her non-compliance to that point, Ms Bell was placed into custody from 14 to 25 February, which effectively operated as detoxification.
Upon her release, she was accepted directly into Lesley's Place on 25 February 2020. That was to be a 12 week program. Somewhat out of character, on 26 February Ms Bell produced a clean urine sample. Ms Bell left Lesley's Place and was again placed into custody on 28 February where she remained until 10 March 2020. While she requested to reattend Lesley's Place, that program was no longer available to her at that time.
She was required to enter into detoxification and arrangements were made for her to attend Arcadia House. That program was also to be for a 12 week period. She struggled in that environment and left the program after a few days on 26 March 2020. Despite the advice, and indeed urging, of her ADS case manager, she failed to present to court. A warrant was issued, and she was arrested on that warrant on 31 March 2020 and returned to custody pending today's hearing. At the time of her arrest, she was in possession of what is suspected to be methamphetamine and was charged. That charge is pending in the ACT Magistrates Court.
Ms Bell has indicated that she wishes to continue on a drug and alcohol treatment order and to avail herself of the opportunity in the community. However, she can point to no real change which indicates that she is presently able to comply with the stringent requirements of this order. The situation is further complicated by the lack of alternative residential rehabilitation options in light of the effect of the COVID-19 induced restrictions on such placements.
There may have been the possibility of placement in Justice Housing, however, that is no longer an option either. I would, in any event, have had concerns about this option, given that it is clear that Ms Bell requires more intensive support. In addition, there is the potential that the house may have been put at risk by her partner's attendance at it.
As was pointed out by the Prosecutor, and relevantly, pursuant to s 80ZE(1)(c) of the Sentencing Act, the Court may cancel a treatment order if it is satisfied on the balance of probabilities that, 'the offender is unwilling or unlikely to comply with a condition of the offender’s treatment order.' Whether or not Ms Bell is unwilling, I have formed the view that it is unlikely that she would be in a position to comply with almost all conditions of her treatment order at this point in time. The Court may also consider whether, pursuant to s 80ZE(1)(d), the continuation of the treatment and supervision part of the order is likely to achieve the objects of the order. Those objects in particular in relation to Ms Bell involve her ceasing her drug use and the impact that it has on the community in terms of criminal offending. Given the current circumstances, I am not satisfied that if an order were continued it would be likely to achieve those objects.
The Court, if cancelling a treatment order, must either cancel the treatment order and take into account the extent to which an offender has complied with the treatment and supervision part of the order, impose the sentence that was suspended under the custodial part of the treatment order, or re-sentence.
(3) If the court orders the imposition of a sentence of imprisonment under this section, the court -
(a) must order whether the offender is to serve all or part of the sentence by full-time detention at a correctional centre; and
(b) may reduce the sentence by any period served in custody under the treatment and supervision part of the treatment order, taking into account the extent to which the offender complied with that part of the order.
There has been very little compliance; nonetheless, the Prosecution has not spoken against taking into account that period of time which Ms Bell has already spent in custody as a result of her breaches along the way.
Order
Having considered the circumstances, and it is with some regret that I have come to the conclusion that it is necessary to cancel the drug and alcohol treatment order.
The sentence is imposed. It would be 15 months but I take into account the 32 days that have been served on breach, resulting in an outstanding sentence of 13 months and 28 days. On my calculations, this being set to commence today, 7 April 2020, it will be complete on 3 June 2021.
Because the period is in excess of 12 months, pursuant to s 65 of the Sentencing Act, I am required to set a non-parole period. I have determined that a period of seven months is appropriate. That means Ms Bell will be eligible to apply for parole from 6 November 2020.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Walker Associate: Date: 16 April 2020 |
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