R v Blackburn (No 2)
[2021] ACTSC 197
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Blackburn (No 2) |
Citation: | [2021] ACTSC 197 |
Hearing Date: | 23 March 2021 |
DecisionDate: | 23 March 2021 |
Before: | Refshauge AJ |
Decision: |
(a) Order 3 be amended by omitting ’12 months’ and substituting ’2 years, that is to end on 15 September 2022’. (b) Order 8 be amended by: (i) Adding after the word ‘imposed’ the words ‘to be included in the treatment and supervision part of the Drug and Alcohol Treatment Order’, and (ii) Omitting conditions A to G, and substituting as follows: A. Jake Blackburn admit himself today, 23 March 2021, to the residential drug rehabilitation program conducted by Canberra Recovery Services at Fyshwick, ACT, remain in the program until it is completed and obey all rules of the program and all reasonable directions of the person in charge of the facility. B. Jake Blackburn travel directly from Court to Canberra Recovery Services today, 23 March 2021, to arrive no later than 1:00 pm. C. If Jake Blackburn leaves or is discharged from the Canberra Recovery Services facility, he present himself to ACT Corrective Services by 4:00 pm on the next business day with a view to having the Drug and Alcohol Treatment Order reviewed. (c) As a consequence of the amendment to Order 3, a further Order 9 be added as follows: (i) Included in the custodial part of the Drug and Alcohol Treatment Order, Jake Blackburn be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act2005 (ACT) from 16 September 2022 to 2 October 2023, with a probation condition to accept supervision of the Commissioner of ACT Corrective Services, or his delegate, for that period or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
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Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –Drug and Alcohol Treatment Order – Cancellation – Amendment |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 80ZB, 80ZE, 80ZJ, 80M, 80O |
Cases Cited: | R v Blackburn (No 1) [2020] ACTSC 373 |
Texts Cited: | The Evening Day, (New London, Connecticut, USA, 4 April 1922) |
Parties: | The Queen (Crown) |
Representation: | Counsel D Perks (Crown) C Duffy (Participant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Participant) | |
File Number(s): | SCC 119 of 2020 SCC 120 of 2020 SCC 203 of 2020 |
REFSHAUGE AJ:
Introduction
On 16 September 2020, I sentenced Jake Blackburn to a total of three years and six months imprisonment for offences of aggravated burglary, theft, dishonestly taking, and then riding in, a motor vehicle without the owner's consent, dangerous driving, driving whilst disqualified, failing to stop for police, common assault on three occasions, assault occasioning actual bodily harm, destroying property, being an unaccompanied learner driver and driving with a prescribed drug in his blood (R v Blackburn (No 1) [2020] ACTSC 373 at [106]-[120]).
I was asked to make a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) as Mr Blackburn had a dependency on illicit drugs and this dependency had substantially contributed to his offending behaviour. I made a Treatment Order for 12 months, with a sentence of imprisonment constituting the custodial part of the Order, and which required him to admit himself to a residential drug rehabilitation program conducted by the Salvation Army at Canberra Recovery Services in Fyshwick as a substantial element of the treatment and supervision part of the Order.
Mr Blackburn entered the program on that day, 16 September 2020. Unfortunately, he was discharged from the program on 29 October 2020. An alternative placement was found for him at the therapeutic community in Sydney conducted by We Help Ourselves (WHOS) and, while awaiting admission, he entered the Canberra Hospital Withdrawal Unit. Unfortunately, Mr Blackburn could not attend the WHOS facility, which meant that, at his next Court hearing on 12 November 2020, the Treatment Order was likely to be cancelled and the original sentence of imprisonment imposed.
Mr Blackburn did not attend Court on 12 November 2020. On that day, the Court issued a warrant for his arrest under s 80ZJ of the Sentencing Act. On 5 November 2020, the Crown had applied to cancel the Treatment Order. Mr Blackburn was arrested on 10 March 2021 and remanded in custody when, under s 80ZB(1)(e) of the Sentencing Act, I provisionally cancelled the suspension of the sentence of imprisonment, pending consideration of the Crown's application for cancellation.
The Facts
As noted above (at [2]), I made a Treatment Order on 16 September 2020 which required, in the treatment and supervision part of the Order, that Mr Blackburn complete the residential drug rehabilitation program at Canberra Recovery Services. Mr Blackburn entered the program and his expressed commitment to rehabilitation seemed to translate into his engagement in the program.
In Phase one of the treatment and supervision part of a Treatment Order, a participant is required to appear weekly in Court in person or, when in residential drug rehabilitation, by audio visual link. Each week the Court receives a report to enable the judicial supervision of the Treatment Order, a key element of the regime, to be undertaken.
The reports on Mr Blackburn's commitment and participation were, at first, promising. The first report described him as ‘engaged and on time to all program requirements’. He expressed enthusiasm for all aspects of the treatment structure and presented as attentive and eager to learn and comply. This assessment was repeated over successive weeks, though it was noted that his age of 21 years old seemed to present a difficulty to him staying focused. Unfortunately, on 28 October 2020 I received reports suggesting that he had ‘engaged in inappropriate horseplay’, especially involving some behaviour which was demeaning to a fellow Drug and Alcohol Sentencing List participant.
On 29 October 2020, a member of the Treatment Order Team (see s 80M of the Sentencing Act) received a phone call from a staff member at Canberra Recovery Services, during which, the Treatment Order Team member reported, she was told of concerns about Mr Blackburn's compliance with the program and his ability to complete the program. In particular, the staff member mentioned the various aspects previously reported to me, such as difficulties in attention and in taking on feedback from other participants and ‘disruptive and disrespectful behaviour’. This led to a meeting between the staff member, the Treatment Order Team member and Mr Blackburn.
Mr Blackburn acknowledged his misbehaviour, saying that he wanted to go home and that, if he was discharged, he would be able to engage in community drug rehabilitation instead. I note that this rather naïve and immature view was regrettable and sprang, perhaps, from a certain self-centredness that Mr Blackburn can display.
There was also a report of difficulties between Mr Blackburn and a fellow participant, which led Mr Blackburn, although denying making some disparaging slurs about the other participant, to say that he did ‘not want him anywhere near’ him. The Canberra Recovery Services staff member then advised that Mr Blackburn was to be discharged that day. He left and was advised by the Treatment Order Team member that he was to be in Court the next day.
Mr Blackburn appeared in Court on 30 October 2020. He was sanctioned when the Court provisionally cancelled the suspension of the sentence of imprisonment, being the custodial part of the Treatment Order, and remanded him in custody for seven days.
In the meantime, members of the Treatment Order Team investigated alternative treatment options. While a place was located at the WHOS facility in Sydney, it was subject to Mr Blackburn being assessed as suitable and undergoing detoxification at a withdrawal facility.
On 6 November 2020, the provisional cancellation of the suspension of the sentence of imprisonment was extended for a further seven days, which was, in any event, together with the earlier period, the maximum period of such provisional cancellation that may be imposed for any particular breach of the Treatment Order under s 80ZB(1)(e) of the Sentencing Act (see R v Tonna (No 2) [2020] ACTSC 362 at [66]-[68]).
Mr Blackburn was subsequently accepted into the Canberra Hospital Withdrawal Unit and into the WHOS rehabilitation facility, so, on 6 November 2020, I reviewed the Treatment Order in the light of these changes and, instead of cancelling the Order, amended it accordingly. The amendments allowed and required Mr Blackburn to attend these two programs and complete them, with the appropriate requirements about attendance, compliance and reporting.
On 9 November 2020, Mr Blackburn was admitted to the Canberra Hospital Withdrawal Unit.
A member of the Treatment Order Team advised, however, that, unfortunately, Mr Blackburn was the subject of a warrant for his arrest in New South Wales. No further information as to the basis of the issue of the warrant was made available to me. Mr Blackburn was advised that the existence of the warrant meant that, were he admitted to the WHOS facility, he would be required to attend the local New South Wales Police Station to inquire about the warrant and to deal with it. The matter was relisted before the Court on 12 November 2020.
In the meantime, Mr Blackburn was provided with some advice by the Legal Aid Office and from another member of the Treatment Order Team about his options. Mr Blackburn discharged himself from the Canberra Hospital Withdrawal Unit late on the afternoon of 11 November 2020. He presented as ‘slightly anxious’ on discharge, but had said to the Treatment Order Team member that he would, if he left, contrary to the amended Treatment Order, stay ‘somewhere safe’, but he did not disclose the location.
Mr Blackburn then failed to appear in Court on 12 November 2020 and I directed that a warrant be issued for his arrest under s 80ZJ of the Sentencing Act, which was done that day, as noted above (at [4]). Mr Blackburn was arrested on 10 March 2021 when police conducting a mobile patrol in Moncrieff, ACT, saw him crossing the road with another male. The two men ran from the area and police, after a search, located Mr Blackburn, restrained him, confirmed his identity and that there was an outstanding warrant for his arrest and took him into custody.
He was taken to the ACT Regional Watch House where, on being shown the warrant, he agreed that he was the subject of it. These facts in relation to his arrest are taken from the Police Statement of Facts, although, curiously, it refers to the warrant being issued on 8 February 2021, which is quite incorrect and the warrant which was signed by the arresting officer was clearly issued on 12 November 2020. This mistake shows that care needs to be taken in reading such documents.
Mr Blackburn appeared before me on 11 March 2021 and I remanded him in custody, as also noted above (at [4]). He behaved quite badly when first appearing in Court, including by being rude to the duty lawyer from the Legal Aid Office assigned to assist him. The next day, however, without any apparent prompting, he apologised to the Court and to the lawyer. I remanded him further, requesting that a member of the Treatment Order Team investigate whether there were any options for him apart from the cancellation of the Treatment Order.
Mr Blackburn told a member of the Treatment Order Team that he had, since originally absconding, had ‘a difficult time’. He had been homeless, sleeping rough and had not been taking any of the medication that he had been prescribed. This had affected his mental health. Forensic Mental Health Services are assessing him to assist with diagnosis, treatment and support.
Since absconding, Mr Blackburn has not been receiving Centrelink benefits, so far as I can tell, nor any earnings from employment. He reports that his drug use has increased significantly, which raises a question as to how he has funded that use. He used stimulants primarily to help him stay awake for protection while living rough. He expressed finding his time at the Canberra Recovery Services a good time, saying, ‘I actually quite liked it there. It's the first time that I have felt normal. I felt like I belonged there and I was safe,’ although he added, ‘there were just some people there that were not right for me.’
This is a little different from the reports of how he had presented at the facility, but I do not need to resolve any conflicts. He also asked that his apology be conveyed to Canberra Recovery Services for his behaviour there. Canberra Recovery Services has been contacted and have been prepared to assess him for re-entry to their program. This morning he was assessed and the facility is prepared to accept him.
Mr Blackburn has not been charged with any offences committed since he absconded. Nevertheless, as noted above (at [22]), there is reasonable concern about how he funded his drug use during that time. Further, his fingerprint was found in a stolen motor vehicle, but that proves little. I understand that a summons has been issued for him in relation to charges of assault and assault occasioning actual bodily harm, but that has not been served and I do not know whether, even if it is served and not withdrawn, it will result in a finding of guilt. I do not take that into account at this stage.
The Application
The Crown's application, by Application in Proceedings filed on 5 November 2020, for cancellation of the Treatment Order remains on foot and I shall deal with it. It was based on his unsatisfactory behaviour and conduct under the treatment and supervision part of the Treatment Order, including failing to report to Court and on the unsatisfactory circumstances that arose in his compliance, or non-compliance, with the conditions of the Treatment Order. Specifically, it referred to him being unable to comply with the conditions of the Treatment Order, his unwillingness or unlikelihood to comply with those conditions and that the continuation of the treatment and supervision part of the Order is unlikely to achieve the objects of the Order (see s 80ZE(b), (c) and (d) of the Sentencing Act).
I have described how to approach such an application for cancellation in R v Tonna (No 2) at [35]-[39]. This involves determining not only whether the circumstance is made out, and to do so on the balance of probabilities from the evidence properly admitted before me, but also by considering whether any amendment to the Treatment Order, in particular and possibly only to the treatment and supervision part, would be feasible and meet the unsatisfactory circumstances such that the objects of the Treatment Order set out in s 80O of the Sentencing Act may be achieved.
That such an option is available, however, does not mean that the Court must amend the Treatment Order. For example, in R v Charles (No 2) [2020] ACTSC 366 I held that despite the longstanding drug dependency of Ms Charles, including the circumstances under which she first used and became dependant, it is important to acknowledge that such a dependency is not something that can be addressed without incident, without failure and, indeed, without numerous attempts.
The regard that must be afforded to these considerations and the attempts to achieve rehabilitation must reach a stage where the failure of the participant to cooperate and participate is so lacking that further attempts at rehabilitation are unlikely to succeed and will undermine respect for the law and confidence in its administration. At the end of the day, the cancellation of the Treatment Order is, in any event, a matter of the Court's discretion and these considerations must be important to the judicial exercise of that discretion.
I shall approach the matter in this way.
Consideration
In this case, there is an option, namely Mr Blackburn's readmission to the Canberra Recovery Services' residential drug rehabilitation program.
Against this is the blatant failure of Mr Blackburn to attend Court, notwithstanding the efforts made to find alternative treatment, though that option was likely to be unavailable to Mr Blackburn, partly through his own prior alleged offending. This made cancellation likely. As I pointed out in R v Tonna (No 2), the lack of appropriate resources for rehabilitation, even if, were they available, the objects of the Treatment Order may yet be achieved, is a proper basis for both not making a Treatment Order in the first place, or the cancellation of one made if rehabilitation is no longer such an option.
In this case, Mr Blackburn deliberately left the Canberra Hospital Withdrawal Unit prior to the time when arrangements had been made to transport him to Court, saying that he intended to prepare for court but, I am satisfied, either not intending to attend Court or, at least, with that as a high likelihood in his mind.
That needs, however, to be put in some context. In the first place, on discharge from Canberra Recovery Services, he did return to Court and, though incarcerated, cooperated with assessments and, of course, in his own interest for avoiding further imprisonment, but also for his rehabilitation, agreed to attend the WHOS facility. His anxiety about having the Treatment Order cancelled, caused by the certainty that, with the outstanding warrant, the option of treatment at the WHOS facility was no longer available and cancellation was highly likely, likely caused him to abscond.
He then failed to make contact with any member of the Treatment Order Team or the Court. He remained at large. In the end, he had to be arrested and, in fact, sought to evade the arrest when initially seen by police. Although no charges have been laid, and I cannot assume that any will be laid or, if laid, that he will be convicted of any of the charges, it cannot be said that I can be satisfied that he has not re-offended in any way.
Nevertheless, I cannot similarly assume that any offending has been committed or is as serious as the more serious offending of which he was convicted, represented in the custodial part of the Treatment Order and in his criminal history.
I also have to take into account his earlier unsatisfactory behaviour while at the Canberra Recovery Services, some of which, but only some, is quite unfortunate, although denied by him. On the other hand, he has expressly apologised for his behaviour. Further, the Canberra Recovery Services has agreed to his readmission.
Again, his behaviour in Court when first appearing after his arrest, following his absconding, was aggressive, disrespectful and rude. It displayed an arrogance and disinterest which did not bode well for the attitude necessary for a serious engagement with rehabilitation.
On the other hand, he did, the following day, apologise for that behaviour and I assess that apology, made without apparent prompting, to be genuine. I must be careful, to use the old adage that one swallow does not a summer make (The Evening Day, (New London, Connecticut, USA, 4 April 1922) 6). The adage has a respectable history traceable to Aristotle in his Nicomachean Ethics and to Erasmus (see William Barker, The Adages of Erasmus (University of Toronto Press, 2001)). Nevertheless, Mr Blackburn’s behaviour does show that he can display a degree of maturity, even though there are obvious incentives to do so, given his situation.
This is, to some extent, supported by an email that I received from Mr Blackburn’s mother, in which she spoke of his feelings. These included uncertainty about the pending charges in New South Wales, his sadness, anger and frustration around his departure from the Canberra Hospital Withdrawal Unit and his hopelessness about a normal future with a job, a car and a family. He repeated his wish to be ‘normal’: to work and have a family. He has spent his 18th, 19th, 21st and 22nd birthdays in custody.
Mr Blackburn’s mother confirmed her commitment to supporting him. She is, of course, his mother and while her support is what we expect of every mother, she is also the one who knows him best and to whom he is likely to open up, if to anyone. I take into account the matters to which I referred when sentencing him as set out in R v Blackburn (No 1) at [34]-[80]. That includes the details of his offences, their seriousness and his subjective circumstances including the depth of his dependency on drugs.
I take into account that he was in residential rehabilitation for six weeks, not long in light of the overall program being nine to 12 months, but significant, especially since, for much of that time, until the last week or so, I was receiving good reports on his progress within the facility. For example, on as late as 14 October 2020, he was described as ‘on time to all program requirements. He states his ongoing enthusiasm for all aspects of proposed treatment structure’. Even a fortnight later, it was reported that ‘he attends most of the program activities and enjoys physical exercise’, though, ‘he struggles with groups, noting that he displays this in a disruptive and disrespectful manner’.
A quite significant factor, however, is his age. He is 21 years old, though he will turn 22 in less than a month. Rehabilitation is still an important consideration and to be given great importance (see Thorn v Laidlaw [2005] ACTSC 49 at [32]). Mr Blackburn at age 21, nearly 22, is still a young offender for the purposes of sentencing (R v Gordon (1994) 71 A Crim R 459 at [469]; R v BB [2013] ACTSC 58 at [72]). Mr Blackburn falls well within the range of persons over 18 years still regarded by the courts as youthful offenders (see R v Tonna (No 2) at [47]).
These matters persuade me that it is appropriate to afford Mr Blackburn an opportunity to show that he has learnt that his current lifestyle must be and can be changed and that he must rehabilitate and manage his dependence on illicit drugs. I hope that it has also taught him that success depends on him and on his commitment.
Disposition
Accordingly, I propose to dismiss the Crown's application to cancel the Treatment Order, but rather propose to amend the Order. It seems to me also that it is necessary to extend the Order because, as currently expressed, it will end on 15 September 2021. That is not long enough to provide Mr Blackburn with the residential drug rehabilitation that he needs, much less the ongoing support for his rehabilitation thereafter.
In addition, his behaviour and absconding as he did persuades me that he will, after the conclusion of his residential drug rehabilitation, require a further period of more intensive supervision and, notably, treatment before he can be justifiably found to have met the objectives of the Treatment Order and avoid the lengthy term of imprisonment to which he was properly sentenced.
I shall so order.
Drug and Alcohol Treatment Order
His Honour then spoke directly to the accused:
Mr Blackburn, please stand.
I order that the Drug and Alcohol Treatment Order made on 16 September 2020 and amended on 14 October 2020 and 6 November 2020 be further amended as follows:
a) Order 3 be amended by omitting ‘12 months’ and substituting ‘two years, that is to end on 15 September 2020’.
b) Order 8 be amended by:
(ii)adding after the word ‘imposed’ the words ‘to be included in the treatment and supervision part of the drug and alcohol treatment order’; and
(iii)omitting conditions A to G and substituting as follows:
A.Jake Blackburn admit himself today, 23 March 2021, to the residential drug rehabilitation program conducted by Canberra Recovery Services at Fyshwick, ACT, remain in the program until it is completed and obey all rules of the program and all reasonable directions of the person in charge of the facility.
B.Jake Blackburn travel directly from Court to Canberra Recovery Services today, 23 March 2021, to arrive no later than 1:00 pm.
C.If Jake Blackburn leaves or is discharged from the Canberra Recovery Services facility, he present himself to ACT Corrective Services by 4:00 pm on the next business day with a view to having the Drug and Alcohol Treatment Order reviewed.
c) As a consequence of the amendment to Order 3, a further Order 9 is added as follows:
(i)Included in the custodial part of the Drug and Alcohol Treatment Order, Jake Blackburn be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 16 September 2022 to 2 October 2023, with a probation condition to accept supervision of the Commissioner of ACT Corrective Services, or his delegate, for that period or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
d) Jake Blackburn attend court on 31 March 2021 at 11:00 am, either in person or by electronic means.
Mr Blackburn, that is a lot of words. You have been in the courts long enough to know probably much of what I have said and ignore much of it, no doubt, but I am required to explain to you what I have done although, no doubt, your Counsel, who I hope you now understand is a very competent Counsel and who has represented you very well, will do so.
First of all, I have amended the Treatment Order, I have not cancelled it. I have given you, in effect, another chance.
The amendments require you to go to Canberra Recovery Services again and to stay there and to obey the rules and the directions of the facility. So, you are to go there directly from court today and arrive by 1:00 pm and get in there and stay there. If you are discharged or if you leave, then that is not a good thing and you are required to attend at ACT Corrective Services at least by 4:00 pm the next day, so that you can come back to court and the matter can be reviewed.
I have extended the Treatment Order so that it is now for two years, not 12 months, so it does not end in September this year. It ends before your term of imprisonment would end, but there is another period of time after the Treatment Order ends when you will be subject to supervision by ACT corrective services in the usual way you have been in the past. You are to come back to court on Wednesday 31 March 2021. You will probably come by audio visual link from Canberra Recovery Services.
Mr Blackburn, it is common for me to give a little sermon but it is important that you understand a few things. First of all, you owe much of this to yourself, all right. Your behaviour in recognising what you have done wrong is important and that is a glimmer of hope to me and I hope it is more than a glimmer, I hope it is a real start of you having some insight into the need to look after yourself and, if you want to achieve what you have described as a normal life with a car, with a family, with a job, with something to contribute to the community and something to make yourself proud, then you have got to start taking responsibility for yourself.
That means not being self-centred, but understanding that there are other people who need respect from you in the community and particularly in the residential facility. You can do it, but only if you comply with the treatment that is offered to you and the rehabilitation that is being handed out to you. It will be hard, it is not going to be easy and you have got to then stick at it and make sure that it succeeds. I never make absolute guarantees, but I have to tell you that if you do not work at this and if you leave or you are discharged from Canberra Recovery Services, the likelihood is you will have to serve a term of imprisonment for the rest of the sentence that I originally imposed, a fairly severe sentence of three years and six months.
So, it is up to you. Learn to contain your behaviour, learn to be normal, learn the things that places like Canberra Recovery Services can teach you about how to manage your drug dependency and how to rehabilitate yourself. I think we have showed you that this Court will support you if you are committed. If you are not committed, then we will come down on you and have to sanction you, but at the end of the day much of it is on you. You can reform, you can be normal, you can live the life that you express to the Treatment Order Team and to your mother that you want to live. Show it in actions now, not just words.
We listen to the words. I try to assess whether you are telling me the truth, or whether you are telling me something that will last beyond the instant, and I am hopeful that I have managed to identify that is the case for you this occasion.
The likelihood is that you will not receive any further chances, so make the most of this one. It is offered to you because you are young, you have got an opportunity to change, you have shown in the past and in the time that you have been before me that you can do it. I hope you can.
I will support you as much as I can if you commit yourself to change and it only really remains for me to say good luck. I hope this works and I hope for your sake you can start to understand yourself, restrain the sillier aspects of behaviour, start to respect yourself and be honest and commit yourself to rehabilitation.
You may be seated.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Sentence Judgment of his Honour Acting Justice Refshauge Associate: Date: 21 September 2021 |
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