R v Charles (No 2) - [2020] ACTSC 366

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Charles (No 2)

Citation:

[2020] ACTSC 366

Hearing Date:

18 December 2020; 21 December 2020

Decision Date:

21 December 2020

Before:

Refshauge AJ

Decision:

1.	The Drug and Alcohol Treatment order made on 7 February 2020, and as amended from time to time, be cancelled.
2.	Each of the sentences imposed on 7 February 2020 be imposed, save that the sentence for dishonestly riding in a

motor vehicle without the owner’s consent be reduced under
s 80ZE(3)(b) of the Crimes (Sentencing) Act 2005 (ACT) by 57 days, to commence on 10 July 2022 and expire on 14 August 2022.
3. It be declared that the total sentence be for 1 year, 11 months and 4 days, to commence on 11 September 2020 and end on 14 August 2022 and that a non-parole period of 13 months be set, to commence on 11 September 2020 and to end on 10 October 2021.

Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – reimposition of original sentence – reduction of sentence because
of period served in custody under the treatment and supervision
part of the treatment order – consideration of the unavailability of an alternative rehabilitation facility – consideration of treatment in community – consideration of past performance in treatment –
cancellation of treatment order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12A, 46J, 65, 80O,
80ZE(1), 80ZE(1)(c), 80ZE(2), 80ZE(3)(b), 80ZJ
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Charles [2020] ACTSC 39 R v Tonna (No 2) [2020] ACTSC 362 Saga v Reid and Collett [2010] ACTSC 59
Texts Cited:	Litwack, Thomas, ‘Actuarial versus clinical assessments of
dangerousness’ (2001) 7(2) Psychology, Public Policy, and Law
409-443
Morris, Norval and Marc Miller, ‘Predictions of Dangerousness’
(1985) 6 Crime and Justice 1-50
Parties:	The Queen (Crown)
Delphine Maree Charles (Participant)
Representation:	Counsel
M Dyason (Crown) C Duffy (Participant)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Participant)
File Number:	SCC 343 of 2019
REFSHAUGE AJ:
Introduction

1. When a sentence is imposed on a person who is dependent on alcohol or an illicit drug and that dependency substantially contributed to the commission of the offence for which the person is to be sentenced, then, if other criteria are met, the Supreme Court has the option of imposing a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), instead of a prison term that is to be immediately served.
2. In order to do so, the Court must assess whether this will achieve the objectives set out in section 80O of the Sentencing Act, which are:

80O Objects of drug and alcohol treatment orders
The objects of making a treatment order in relation to an offender is to—

(a) facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and…

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 Charles (No 2)

Details

AGLC: R v Charles (No 2) [2020] ACTSC 366
Case: [2020] ACTSC 366
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown applied for the cancellation of a Drug and Alcohol Treatment Order made on 7 February 2020 in respect of Delphine Maree Charles, who had pleaded guilty to multiple offences committed between 30 June and 8 September 2019. The Crown argued that Ms Charles's lack of compliance with the Treatment Order justified its cancellation under s 80ZE(1)(c) of the Crimes (Sentencing) Act 2005 (ACT). The Court found that Ms Charles had been unwilling or unlikely to comply with the conditions of the Treatment Order, and that it was unlikely that she would comply with any amended conditions. The Court found that there was no other rehabilitation program available to her at the time, and that the cancellation of the Treatment Order was appropriate. The Court imposed the same sentence as originally imposed, reduced by the period Ms Charles had served in custody under the treatment and supervision part of the Treatment Order.

The Court considered the background of Ms Charles, who had a long history of alcohol and drug use and had experienced significant disadvantages in her life. The Court noted that Ms Charles had made some progress in a rehabilitation program at Weigelli, but had ultimately failed to complete it. The Court also considered the difficulties that Ms Charles had experienced in complying with the conditions of the Treatment Order, including missed urinalysis and positive tests for illicit drugs. The Court found that Ms Charles's lack of compliance with the Treatment Order justified its cancellation, and that there was no other suitable rehabilitation program available to her at the time. The Court imposed the same sentence as originally imposed, reduced by the period Ms Charles had served in custody under the treatment and supervision part of the Treatment Order. The Court recommended that Ms Charles undertake further rehabilitation at Weigelli if she had the opportunity to do so upon her release from prison.

Orders