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 Criminal Code 2002 (ACT) s 363 Legislation Act 2001 (ACT) s 145
Cases Cited:	R v Blackburn (No 1) [2020] ACTSC 373 R v Blackburn (No 2) [2021] ACTSC 197 R v Lyons (No 2) [2021] ACTSC 11 R v Ngerengere (No 3) [2016] ACTSC 299 R v Pelecky (No 3) [2020] ACTSC 371 R v Tonna (No 2) [2020] ACTSC 362 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…

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 3)

Details

AGLC: R v Blackburn (No 3) [2021] ACTSC 337
Case: [2021] ACTSC 337
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown sought the cancellation of a Drug and Alcohol Treatment Order imposed on Jake Blackburn. The Crown also sought to impose the original custodial sentences of Blackburn, which had been suspended under the terms of the Treatment Order. The court was required to decide whether the grounds for cancellation of the Treatment Order were made out and, if so, what orders should be made in relation to the original custodial sentences. The court found that the grounds for cancellation were made out and imposed the original sentences, less 42 days for time served, with a non-parole period of 16 months. The court also cancelled the Drug and Alcohol Treatment Order and a Good Behaviour Order.

The court found that the grounds for cancellation were made out because Blackburn was unable to comply with the Treatment Order, he was unwilling and unlikely to comply, the continuation of the Treatment Order would not achieve its objects and he posed an unacceptable risk to the safety and welfare of a person. The court noted that Blackburn had breached the Treatment Order on multiple occasions and had left residential rehabilitation facilities on more than one occasion. The court also noted that, while Blackburn had pleaded guilty to 14 offences, he had not pleaded guilty to further serious offences allegedly committed while on the Treatment Order, including assault, possession of an offensive weapon and aggravated robbery. The court found that the failure to comply with the Treatment Order, and the further offending, justified the cancellation of the Treatment Order.

Orders