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:	The application dated 5 November 2020 to cancel the Drug and Alcohol Treatment Order made on 16 September 2020 and amended on 14 October 2020 and 6 November 2020 be dismissed. The Drug and Alcohol Treatment Order be amended as follows: (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. Jake Blackburn attend court on 31 March 2021 at 11:00 am, either in person or by electronic means.
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 Crimes (Sentence Administration) Act 2005 (ACT) s 85
Cases Cited:	R v Blackburn (No 1) [2020] ACTSC 373 R v Charles (No 2) [2020] ACTSC 366 R v Gordon (1994) 71 A Crim R 459 R v Tonna (No 2) [2020] ACTSC 362 Thorn v Laidlaw [2005] ACTSC 49
Texts Cited:	The Evening Day, (New London, Connecticut, USA, 4 April 1922) William Barker, The Adages of Erasmus (University of Toronto Press, 2001)
Parties:	The Queen (Crown) Jake Blackburn (Participant)
Representation:	Counsel D Perks (Crown) C Duffy (Participant)
Solicitors ACT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Blackburn (No 2)

Details

AGLC: R v Blackburn (No 2) [2021] ACTSC 197
Case: [2021] ACTSC 197
Decision Date

CaseChat Overview and Summary

In R v Blackburn (No 2), Refshauge AJ addressed an application to cancel a Drug and Alcohol Treatment Order (Treatment Order) made under s 12A of the Crimes (Sentencing) Act 2005 (ACT). The application was made by the Crown in response to the participant's failure to comply with the Treatment Order, including absconding and failing to attend Court, and unsatisfactory behaviour while in a rehabilitation facility. The court was required to decide whether the circumstances justified cancellation of the Treatment Order or if it was feasible to amend the Order. Refshauge AJ found that cancellation was not warranted, instead opting to amend the Treatment Order to give the participant another chance to comply with its requirements. The court considered factors such as the participant's age, his engagement with rehabilitation, and his expressed desire for change. The Treatment Order was amended to require the participant to attend a residential drug rehabilitation program, with additional conditions and a longer duration to allow for adequate rehabilitation and supervision.

Refshauge AJ dismissed the Crown's application to cancel the Treatment Order and instead amended it to provide the participant with another opportunity to comply with the requirements of the Order. The court found that the participant's age, his prior engagement with rehabilitation, and his expressed desire for change supported giving him another chance. The amended Treatment Order required the participant to attend a residential drug rehabilitation program, with additional conditions and a longer duration to allow for adequate rehabilitation and supervision. Refshauge AJ emphasised the importance of the participant taking responsibility for his actions and committing to rehabilitation, warning that failure to comply with the amended Order would likely result in the imposition of the original custodial sentence. The court hoped that this opportunity would allow the participant to change his lifestyle, manage his drug dependency, and achieve a normal life.

Orders