R v Blackburn (No 3)
[2021] ACTSC 337
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Blackburn (No 3) |
Citation: | [2021] ACTSC 337 |
Hearing Date: | 6 May 2021 |
DecisionDate: | 13 May 2021 |
Before: | Refshauge AJ |
Decision: | 1. The Drug and Alcohol Treatment Order made on 16 September 2020 and amended on 14 October 2020, 6 November 2020 and 23 March 2021 be cancelled. 2. Each of the sentences of imprisonment made on 16 September 2020 be imposed as though they were imposed today, save that the sentence for the primary offence of aggravated burglary on 29 March 2020 be reduced by 42 days under s 80ZE(3)(b) of the Crimes (Sentencing) Act 2005 (ACT). 3. It be declared that the total sentence of imprisonment commences on 28 November 2020 and ends on 13 April 2024. 4. The Good Behaviour Order made on 16 September 2020 to commence on 17 September 2021 be cancelled. 5. A non-parole period be set for 16 months, to commence on 28 November 2020 and end on 28 March 2022. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – Absconding – Alleged Further Offending – Cancellation of Drug and Alcohol Treatment Order – Imposition of Suspended Sentence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) div 5.4A.7, ss 12A, 63, 65, 67, 80W, 80ZB, 80ZC, 80ZD, 80ZE, 80O, 80ZJ Crimes Act 1900 (ACT) s 26A Legislation Act 2001 (ACT) s 145 |
Cases Cited: | R v Blackburn (No 1) [2020] ACTSC 373 R v Blackburn (No 2) [2021] ACTSC 197 Saga v Reid and Collette [2010] ACTSC 58 |
Parties: | The Queen (Crown) Jake Blackburn (Offender) |
Representation: | Counsel C Muthurajah ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 119 of 2020 SCC 120 of 2020 SCC 203 of 2020 SCC 205 of 2020 |
REFSHAUGE AJ:
Unsurprisingly, a frequently cited decision in the Drug and Alcohol Sentencing List is a passage from Saga v Reid and Collette [2010] ACTSC 58 at [89], referring to the fact that dependency on drugs is a difficult matter that takes much effort and failures before it can properly be addressed. In the passage, the Court suggested that multiple failures do not mandate that future attempts should not be made, but insisted on a caveat: “there would have to be some rational basis for permitting it”. This, of course, imposes a heavy burden on sentencers who see potentially valuable lives being destroyed; people in the community feeling unsafe and losing hard earned possessions, suffering the effects of violence; and expense being used for community protection which could be more valuably spent on other things such education, health, the arts, sport and the like, to enhance the community, reintegrate families and develop the potential of so many.
Nevertheless, this is the task that confronts the Court as it remedies the case of Jake Blackburn, who now appears following a breach of a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which was made for him on 16 September 2020.
The Crown has sought that the Order be cancelled. Mr Blackburn does not oppose that.
Nevertheless, as explained in R v Lyons (No 2) [2021] ACTSC 11 at [16] – [20], the Court should not cancel a Treatment Order simply by consent, although the wish of the participant, as is Mr Blackburn’s wish, is a powerful and, perhaps, often overwhelming, reason to do so.
The background
Between 18 March 2020 and 5 April 2020, Mr Blackburn committed 14 offences to which he pleaded guilty and for which he was sentenced, on 16 September 2020, to a total of three years and six months imprisonment. The offences were offences of assault, aggravated burglary, theft, misuse of motor vehicles (including taking them without the owner's consent), making off without payment, failing to stop for police, being an unaccompanied learner driver and driving with a prescribed drug in his oral fluid: see R v Blackburn (No 1) [2020] ACTSC 373.
On 16 September 2020, a Treatment Order was made for 12 months. That required, under s 80W of the Sentencing Act, an order fully suspending the sentence of imprisonment, among other orders and conditions included in the Treatment Order. A condition of that Order was that he complete a residential drug rehabilitation program at Canberra Recovery Services, Fyshwick. That agency is described further in R v Ngerengere (No 3) [2016] ACTSC 299 at [70].
Unfortunately, some errors in the articulation of the dates of some of the sentences imposed had been made when the sentence was originally imposed. With the consent of the parties, those errors were amended on 14 October 2020 in Chambers.
Regrettably, on 29 October 2020, Mr Blackburn was discharged from Canberra Recovery Services.
After being discharged, Mr Blackburn presented himself to the Court the next day, 30 October 2020, and was remanded in custody for seven days by provisionally cancelling the suspension of the Custodial Part of the Treatment Order under s 80ZB(1)(e) of the Sentencing Act.
In the meantime, inquiries were made of six other residential drug rehabilitation agencies. Only one, We Help Ourselves (WHOS), had a place available for him within the time limit available to me for the detention of Mr Blackburn: see R v Tonna (No 2) [2020] ACTSC 362 at [66] – [67].
The WHOS fellowship, established in 1972 by concerned ex‑consumers of illicit drugs to help people with a drug dependency to find healthier lifestyles, was the first Australian agency to develop in 1974 a therapeutic community method of operation, after liaising with similar models developed in the USA. It has programs in a variety of locations, including Rozelle, New South Wales, where Mr Blackburn was to be sent.
The agency, however, required Mr Blackburn to detoxify at the Canberra Hospital Withdrawal Unit (Withdrawal Unit). Accordingly, on 6 November 2020, the Treatment Order was amended to require Mr Blackburn to detoxify at the Withdrawal Unit and then to admit himself to WHOS and complete the program there. Regrettably, again, Mr Blackburn was unable to comply with this Order and left the Withdrawal Unit on 12 November 2020 and did not travel to the WHOS facility.
He did not, as the amended Treatment Order required of him, present himself on this occasion to ACT Corrective Services or to the Court. A warrant was issued under s 80ZJ of the Sentencing Act. Mr Blackburn was arrested on 10 March 2021 and appeared in Court that day. Again, the suspension of the Custodial Part of the Treatment Order was provisionally cancelled and he was remanded in custody.
Canberra Recovery Services indicated that it was prepared to re‑admit him and accordingly, on 23 March 2021, the Treatment Order was again amended to require Mr Blackburn to admit himself to the Canberra Recovery Services facility and remain there until he completed the program: see R v Blackburn (No 2) [2021] ACTSC 197.
It appears that Mr Blackburn was served with a summons relating to other offences alleged to have been committed on 31 January 2021. Believing that this would inevitably lead to the cancellation of the Treatment Order, as suggested would happen on this occasion, he then left Canberra Recovery Services on 26 March 2021. While such further offences may have put Mr Blackburn's Treatment Order at risk, this is by no means inevitable, as set out in s 80ZD(2) of the Sentencing Act. While it appears that the alleged offences were assault occasioning actual bodily harm and common assault, they were, though highly likely, not necessarily offences for which sentences of imprisonment would be imposed. It is only if sentences of imprisonment are imposed that a Treatment Order is required to be cancelled, though, of course, failure to comply with conditions, including the commission of further offences, is possibly a ground for cancellation of an Order.
Mr Blackburn did not present himself to ACT Corrective Services as required by the further amended Treatment Order and a fresh warrant was issued under s 80ZJ of the Sentencing Act. While at large, Mr Blackburn, police allege, committed further offences.
Mr Blackburn and a co‑offender are alleged to have, on 6 April 2021, committed the offences of dishonestly driving a motor vehicle without consent, forcible confinement, three offences of common assault, possession of offensive weapon with intent to use it to commit an offence of actual or threatened violence, two offences of intentionally threatening to inflict grievous bodily harm, two offences of assault occasioning actual bodily harm and an aggravated robbery. He has pleaded not guilty to these offences.
It was further alleged by police that, on 25 April 2021, officers in full police uniform attended a residence in Yarralumla because they had information that Mr Blackburn was present there. The officers were, it is said, granted entry to the premises and one resident identified himself as Mr Blackburn. He was arrested but, because of a concern that he would try to escape arrest, an officer took control of Mr Blackburn's arms. Mr Blackburn tensed and pulled his arms away, saying that he would ‘walk out in his own way’.
It was further alleged that the officer and other policeman began to walk Mr Blackburn to the police car and he then lunged towards the police officers and headbutted one of them in the face, causing him pain to the left side of his face and lip. The other officers restrained him on the ground.
He continued, however, to resist the officers and refused to comply with numerous requests to stop resisting. Finally the police, with the use of a Conducted Electrical Weapon, more commonly known as a Taser, were able to gain control and prevent further injury to police or to Mr Blackburn. He was handcuffed and placed in a caged vehicle and taken to the ACT Watch House.
As a result, Mr Blackburn was charged with recklessly obstructing a Territory Public Official, an offence contrary to s 363(1) of the Criminal Code 2002 (ACT), attracting a maximum penalty of 6 months imprisonment or a fine of $8,000, or both; and of assaulting a frontline community service provider (defined as including a police officer), a crime against s 26A of the Crimes Act 1900 (ACT), which provides for a maximum penalty of two years imprisonment. Mr Blackburn has pleaded guilty to these latter offences, but not guilty to the other offences as referred to above (at [17]).
On the 29 April 2021, Mr Blackburn was again brought before the Court and, the next day, a date for a cancellation hearing was set for the 6 May.
The application
On 5 November 2020, the Crown had applied for Mr Blackburn's Treatment Order to be cancelled because of the breach of the condition of the Order, to which I have already referred. As noted above (at [12], [14]), it was not cancelled on that occasion but amended it and permitted Mr Blackburn to continue under the Treatment Order and seek further rehabilitation.
The application for cancellation was dismissed: R v Blackburn (No 2). Accordingly, when the Crown indicated that it proposed to apply to cancel the Order because of the more recent departure of Mr Blackburn from Canberra Recovery Services, inter alia especially because of that breach and the failure to report, a fresh application in proceedings was directed to be made as the earlier one had been dismissed.
As is clear in R v Tonna (No 2) at [36] – [38], the disposition of the application includes a review and possible amendment of the Treatment Order. To the extent that a Treatment Order has been amended, the earlier breach, though still part of the record and available in consideration of Mr Blackburn's compliance with a Treatment Order, is no longer a live issue that could of itself justify cancellation.
Another application was made by the Crown on 5 May 2021. In support, an affidavit of Marina Salas Lucero, affirmed on 5 May 2021, was read. The Crown also read two affidavits of Hannah Roberts, affirmed 5 and 11 November 2020 respectively, which had been filed in support of the earlier application. No challenge was made to the reading of either affidavit and neither deponent was cross‑examined. It is from these affidavits and the material on the Court file that the findings of fact were made, as set out in these reasons.
The material in the affidavit of Ms Lucero included an email sent to the Court by Mr Blackburn's mother. The matters she put before the Court were part of the basis on which the Court agreed to send Mr Blackburn back to Canberra Recovery Services, despite the breaches that had already been committed. The assessment of her son and his wishes are somewhat overtaken by the events that have occurred, but still suggest that Mr Blackburn is by no means irredeemable and the Court should, in this exercise, still encourage, to the best of its ability, his opportunities for a reform from his apparent criminal trajectory.
Mr Blackburn consents to the making of the order cancelling the Treatment Order, but it is necessary to consider whether it is appropriate in all the circumstances. Nevertheless, the consent of the offender will make it much easier for the Court to do so, if the steps outlined in R v Lyons (No 2) [2021] ACTSC 11 at [16] – [20] do not result in a change of mind by the offender. Mr Blackburn has had an opportunity to consider the position and has given apparently clear instructions to his legal representative that he consents to the cancellation of the Order.
The Court should, of course, be satisfied that the grounds which are legislated in div 5.4A.7 of the Sentencing Act are made out. Grounds in this case on which the Crown relies are set out in s 80ZE(1)(b), (c), (d) and (f) of the Sentencing Act.
Consideration
The ground in relation to s 80ZE(1)(b) is that Mr Blackburn is unable to comply with a condition of a Treatment Order.
A place is not presently available at a residential drug rehabilitation agency in Canberra for Mr Blackburn. Further, a warrant has been issued in New South Wales for Mr Blackburn's arrest, and no present arrangements are in place for offenders subject to a Treatment Order in this jurisdiction (as there apparently were earlier) to be placed in New South Wales at a facility, or other interstate facilities, for residential drug rehabilitation. He will not be able to engage in such rehabilitation.
In my view, in light of Mr Blackburn's level of dependency on drugs and his health, criminal history (see R v Blackburn (No 1)) and his current response to treatment, community-based treatment is not presently suitable for him. As the Treatment Order currently requires treatment in a residential drug rehabilitation facility as a condition, and there is no basis for amendment for other such disposition, the Court is satisfied that this ground has been made out.
There is presently no alternative proposed that would justify amendment to the Treatment Order. That, in part, is an acknowledgement from Mr Blackburn that he is not currently ready for the challenge of rehabilitation at the level that was proposed nor for the personal commitment and effort he needs to put into it if he is to be successful. A sign of change in that, were he to show this as some others have (see, for example, R v Pelecky (No 3) [2020] ACTSC 371), would be the location, on his own part, of a possible rehabilitation program or facility.
The next ground is that Mr Blackburn is unwilling and unlikely to comply with a condition of his Treatment Order: s 80ZE(1)(c).
That clearly overlaps with the earlier ground. His previous conduct certainly, however, does suggest strongly that Mr Blackburn has not yet reached the stage of showing the necessary commitment to overcome the apparent unwillingness to comply. It also suggests that, when the program confronts him with difficulties, such as frequently occurs in the demanding road to drug rehabilitation, he will not persevere. The Court is satisfied that this ground is made out.
The third ground is that the continuation of the Treatment and Supervision Part of the Treatment Order will not achieve the objects of the Treatment Order: s 80ZE(1)(d) of the Sentencing Act. The objects of Treatment Orders are set out in s 80O of the Sentencing Act.
In the helpful and thoughtful submissions of the Crown, the objective on which reliance was placed was in s 80O(a), namely, the facilitation of Mr Blackburn's rehabilitation by the approved program. Clearly, if Mr Blackburn does not participate in the program, and he has failed to do so to date, it will not achieve that objective. There can be no confidence in the present time that Mr Blackburn's attitude and expressions of wish to rehabilitate will currently translate into the meaningful action and engagement necessary, although it is to be hoped that his commitment will grow over time. The Court is satisfied that this ground is made out.
The final ground is that Mr Blackburn poses an unacceptable risk to the safety and welfare of a person: s 80ZE(1)(f) of the Sentencing Act. Relying on s 145 of the Legislation Act 2001 (ACT), it is accepted that the reference to “a person” includes “persons”. It does not appear to be directed to a particular or identified person necessarily.
The offences alleged to have been committed on 31 January and 6 April 2021 are serious, particularly the April offences, and the allegations certainly disclose quite grave and exceedingly anti-social behaviour. While Mr Blackburn has not been found guilty of these offences, the allegations suggest that there is a real risk of similar behaviour were Mr Blackburn to be permitted to continue with the Treatment Order. The Court is satisfied that this ground is also made out.
As a result, there is no alternative but to cancel the Treatment Order and the Court will do so.
Disposition
Consequent upon the cancellation of the Treatment Order, I must, under s 80ZE(2) of the Sentencing Act, either impose the sentence that was suspended or, if I consider it appropriate, re‑sentence Mr Blackburn.
R v Tonna (No 2) at [78] has explored a non‑exhaustive consideration of when re‑sentencing would be required. It cannot be considered that it is appropriate to re‑sentence Mr Blackburn at this stage, so the original sentence will be imposed. There are, however, three issues that need to be addressed.
First, s 80ZE(3)(b) of the Sentencing Act requires the Court to reduce the sentence “by any period served in custody under the treatment and supervision part of the Treatment Order”. In this case, Mr Blackburn was remanded in custody from 30 October to 9 November 2020, from 11 March to 23 March 2021 and from 26 April to 13 May 2021, on each case provisionally cancelling the suspension of the Custodial Part of the Treatment Order. That is a total of 42 days and the sentence imposed must be reduced by this.
Curiously, it is clear from that section that this is not a re‑sentencing but a reduction of the imposition of the sentence. It is entirely unclear how that should be done.
For example, one method of taking into account in sentencing, as opposed to the imposition of sentences, is to backdate a sentence under s 63(2) of the Sentencing Act to recognise that Pre‑Sentence Custody has already been served. This arguably achieves the objective intended by s 80ZE(3)(b) of the Sentencing Act by recognising the period already served, but that is not what the section actually provides nor apparently allows.
On the other hand, the imposition of sentence clearly requires an alteration of the original sentence, if only the dates in it, but it is also clear that this is not re‑sentencing because the latter is the alternative, apparently the exclusive alternative, of imposing the sentence. This is also complicated by the fact here, as often happens, that there are multiple sentences and the process is not straightforward.
As was done in R v Lyons (No 2) at [39], the Court could simply deduct the period in custody from the final of the sentences imposed and assume that this complies. In that case, the sentence was reduced for the final offence when imposing the sentence. It seems more appropriate, however, to reduce the sentence for the primary offence since that is the offence for which, primarily, the Treatment Order has been made. The Court will do so.
Secondly, s 80ZC(3) of the Sentencing Act provides that time served by an offender on remand for offences with which the offender has been charged during the currency of a Treatment Order “counts toward the sentence imposed under the custodial part of the Treatment Order”. This does not apply in this case as, so far as the Court has been advised, Mr Blackburn is solely in custody on the warrant referred to above (at [16]).
Finally, since the length of the term of imprisonment in the sentence is greater than one year, the Court is required under s 65 of the Sentencing Act to set a non‑parole period unless it considers it inappropriate to do so, having regard to the nature of the offences and the antecedents of Mr Blackburn, as considered in R v Lyons (No 2) at [37]. Again, somewhat curiously, this is not regarded as re-sentencing.
In this case, Mr Blackburn has indicated that he does not wish the Court to make a non‑parole period. That is inappropriate as a basis on which to refuse to make a non‑parole period. It is not part of the requirement under s 65, and in any event, the non‑parole period will be served well into the future and by that time Mr Blackburn's views about that matter may have changed.
It would be impossible, certainly very difficult, were that situation to change, for him to be released prior to the end of the sentence if no non‑parole period is fixed. There is the possibility of the prerogative of mercy being exercised, but it is difficult to see how that would apply in such a case. On the other hand, if Mr Blackburn is committed to his view that he wants to be free of any supervision at the end of any sentence, he can simply not apply for parole and, as the arrangements appear to be, no parole is granted unless an application has been made.
Given Mr Blackburn's youth, as he is still a relatively young man (see R v Tonna (No 2) at [44] - [48], a matter which was taken into account in sentencing), it seems that this factor should be taken into account in the setting of the non‑parole period too. Given that he is not being re‑sentenced, for the reasons set out above (at [42]), this issue can only be taken into account in the non‑parole period.
Some thought has been given by the Court to making a recommendation to the Sentence Administration Board, under s 67 of the Sentencing Act, that a condition of Mr Blackburn's parole should relate to his rehabilitation. In view of Mr Blackburn's current attitude, it does not appear appropriate to make such a recommendation.
Sentence
[His Honour then spoke directly to the offender]
Mr Blackburn, please stand.
The Court orders the following:
(1) The Drug and Alcohol Treatment Order made on 16 September 2020 and amended on 14 October 2020, 6 November 2020 and 23 March 2021 be cancelled.
(2) Each of the sentences of imprisonment made on 16 September 2020 be imposed as though they were imposed today, save that the sentence for the primary offence on the Drug and Alcohol Treatment Order, namely the offence of aggravated burglary on 29 March 2020, be reduced by 42 days under s 80ZE(3)(b) of the Crimes (Sentencing) Act 2005 (ACT).
(3) It is declared that the total sentence of imprisonment commences on 28 November 2020 and ends on 13 April 2024.
(4) The Good Behaviour Order made on 16 September 2020, made to commence on 17 September 2021, be cancelled.
(5) A non-parole period be set for 16 months to commence on 28 November 2020 and end on 28 March 2022.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 2 May 2022 |
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