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: |
|
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 integrated treatment regime; and (b) reduce the offender’s dependency on alcohol or a controlled drug; and (c) reduce the health risks associated with the offender’s dependency on alcohol or controlled drugs; and
(d) assist with the offender’s integration into the community; and (e) promote community safety by reducing the level of criminal activity caused by alcohol or controlled drug dependence in offenders.
3. This involves an assessment of whether the Treatment Order will be effective and whether the offender will comply with the regime of treatment that is mandated by the Treatment Order. Such assessments are, of course, only estimations, and are as challenging and as uncertain as assessments of dangerousness, the accuracy of which has long been sought but is still a long way from being, by any measure, certain. See,
for example, TR Litwack, ‘Actuarial versus clinical assessments of dangerousness’
(2001) 7(2) Psychology, Public Policy, and Law 409-443, and Norval Morris and Marc
Miller, ‘Predictions of Dangerousness’ (1985) 6 Crime and Justice 1-50.
4. On 7 February 2020, Delphine Maree Charles was sentenced on her plea of guilty to two counts of dishonestly riding in a motor vehicle without the owner's consent, one count each of obtaining property by deception and aggravated burglary and two counts of common assault committed between 30 June and 8 September 2019. She was sentenced to a total period of 25 months' imprisonment, but a Treatment Order was made for 12 months, following completion of which she was sentenced to a Good Behaviour Order for the balance of 13 months. Unfortunately, Ms Charles failed to comply with the conditions of the Treatment Order and the Crown has now applied for the Treatment Order to be cancelled.
5. I have carefully perused the court file which contains the original Drug and Alcohol Suitability Assessments prepared under s 46J of the Sentencing Act; the Status Reports prepared at each time the progress of Ms Charles has been reviewed by the Court, usually weekly in Phase One of the Treatment Order, from which Ms Charles never managed to graduate; the Treatment Provider Reports when Ms Charles had attended counselling or had been in rehabilitation facilities; and also, of course, the Record of Court Proceedings and Orders.
6. I also had an Affidavit of Ms K Reardon, affirmed on 15 December 2020, with annexures, in support of the Crown's application for cancellation. I also had tendered to me a report from CatholicCare of 13 November 2020. From this material, I make the following findings.
Background
7. The offences of which Ms Charles were convicted were assessed by the learned sentencing Judge as not especially serious. They involved the riding in stolen motor vehicles on two occasions, using a stolen credit card to purchase various items, and entering residential premises as a trespasser with an intent to assault the occupants, which she then did but not with a great deal of force: R v Charles [2020] ACTSC 39.
8. Ms Charles is an Aboriginal woman of 38 years of age. She had a very disadvantaged background. It was, as set out in R v Charles, marred by exposure to drug use and being the victim of sexual and physical assaults. She has had a limited education and no real employment. She has had medical and dental challenges. She has had seven children, many of whom are in the care of the State and have caused her distress during the currency of the Treatment Order.
9. She has a long history of alcohol use, since she was 14 years old, has used illicit drugs and cannabis since she was aged 14, and methamphetamine since she was aged 16. She has had some significant mental health challenges.
10. Her criminal history was described by Walker AJ as “appalling”: R v Charles at [17].
Her background clearly engages the principles set out and explained in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. As Walker AJ noted when sentencing Ms
Charles, “[S]he is a person who would require a great deal of monitoring in order to achieve positive outcomes on a community-based order.”: R v Charles at [24]. Her Honour accepted that “Ms Charles will currently struggle to meet the demands of a drug and alcohol treatment order”: R v Charles at [24].
11. That may have been based in part on difficulties encountered by Ms Charles, even before the Treatment Order was made. In December 2019, she breached conditions of bail by failing to attend appointments on a number of occasions, sometimes despite being reminded of them. Her Honour nevertheless proceeded to make a Treatment Order. From the very outset, however, Ms Charles has struggled, though with some successes, under the Treatment Order.
12. A very helpful table was annexed to the Affidavit of Ms K Reardon, counsel for the Crown. It set out the occasions on which Ms Charles had been sanctioned, the reasons for the sanctions and the period she had spent in custody as a result. They show a pattern of missed urinalysis and positive tests for illicit drugs from occasions she did undergo urinalysis. There were also failures to attend appointments for programs, a failure to answer the door for a home visit and a breach of a non-association condition to the Treatment Order.
13. The failures started soon after the Treatment Order was made and continued, with only a relatively short period between June and September 2020 when she was in the
Weigelli Centre Aboriginal Corporation’s residential Alcohol and other Drugs
Rehabilitation Centre (Weigelli).
14. Thus, for example, following continued use of illicit drugs as shown by positive urinalysis results, Ms Charles agreed to undergo detoxification. An arrangement was made for her to attend the pre-admission clinic on 21 February 2020, and a tentative date that was later confirmed for admission was 25 February 2020. The records are a little unclear, but she appears to have attended the pre-admission clinic, then failed to attend an appointment for her case manager on 24 February 2020, and appears either not to have attended for detoxification on 25 February 2020 or left soon after, as a warrant based on that failure was issued on 25 February 2020.
15. A most worrying aspect is the constant positive urinalysis results showing a continued usage of illicit drugs, especially methamphetamine and amphetamines. A frequent appearance was also cannabis, but it seems mostly in the early period. Sadly, this continued even after her apparently successful period of rehabilitation at Weigelli.
16. Ms Charles regularly admitted in heartfelt letters she wrote to the Court that she had failed, after explaining the stresses she was experiencing and the reasons for the breaching behaviour. She continued to express commitment for rehabilitation in some form and promised to do better.
17. Her rehabilitation progress was mixed. The Treatment Order originally provided for a treatment program in the community. Given that this was not making much progress in stemming the use of illicit drugs, other options were sought.
18. It has to be acknowledged that the staff of the Alcohol and Drug Service at Canberra Health Services made significant efforts to explore options that might make the Treatment Order successful. These included a program through the Jerrabomberra Wetlands conducted by the Woodland and Wetlands Conservation Trust, the Ngunnawal Bush Healing Farm conducted by ACT Health (the Bush Healing Farm), and Lesley's Place conducted by Toora Women Inc.
19. Ultimately, Ms Charles was referred to and admitted to the program conducted by Weigelli. She entered on 9 June 2020 and completed the program on 1 September 2020. While there, she wrote about how well she was going and how successful it was.
20. From Weigelli, she transitioned to Canberra Recovery Services but did not seem to continue with the apparent successes she had achieved at Weigelli, though, even there, she was involved with a breach of the non-association condition for the Treatment Order.
21. Her progress at Canberra Recovery Services was marred by stresses she obviously had about the fate and doings of her children, perhaps because she was nearer to them than she had been at Cowra, where Weigelli is located.
22. On 6 October 2020, however, she left Canberra Recovery Services having failed to complete the program. She did, however, present herself to Court on 7 October 2020 and did not decamp. There were complicated reasons for her leaving, in part related to some questionable financial transactions in which she was tangentially involved, though not culpably.
23. She had foreshadowed that she wanted to leave but pre-empted the decision of the Court. Nevertheless, perhaps in recognition of the work she had done at Weigelli and her disadvantaged history, the effects of which of course do not abate over time, I concluded that her situation justified some leniency. While she did return a positive urinalysis on 9 October 2020, this was a result of her use after leaving Canberra Recovery Services, a perhaps understandable, if ultimately unacceptable result of her sudden freedom.
24. She agreed, however, to undertake the program at the Bush Healing Farm. The Court had some hope that this would provide better support than the Canberra Recovery
Services’ program because it was more culturally aligned with her background, similar
to Weigelli. Unfortunately, it proved no more effective in seeing her commitment, as depressingly soon after first engaging, she simply stopped attending. I remanded her in custody while alternatives were, yet again, explored.
25. In Court today, her counsel informed me that the major stress on Ms Charles was the death of a cousin with whom she had a special relationship as they were close in age. This does coincide with her ceasing attendance at the Bush Healing Farm and appears to explain that failure to commit to this program which, however, I was informed, she found to be of value. As I have noted, this was unsurprising as she would have found it a more culturally appropriate environment.
26. I decided that a further attempt at residential rehabilitation was worth exploring. Although initially resistant, Ms Charles became willing to return to Canberra Recovery Services and on 27 November 2020, I amended the Treatment Order again and released her to attend the residential rehabilitative program there. She did not arrive, however, and I issued a further warrant for her under s 80ZJ of the Sentencing Act. She was arrested on 12 December 2020 and has remained in custody since then. No current residential rehabilitation program is available for Ms Charles.
27. My attention was also drawn to other matters. For example, on 13 November 2020, a
counsellor at CatholicCare’s Reaching Out program noted, in a Treatment Provider Progress Report, that Ms Charles “expressed some anxiety [at the] last session about meeting [the] expectations of [the] DASL program”. I was also informed that she always
felt anxious before attending Court.
28. I sympathise with these anxieties and can understand them as being a challenge for her. It is, however, somewhat difficult to address those challenges when they are disclosed so late in the piece. Additional psychological or medical assistance could perhaps have been provided had they been disclosed at an earlier stage, and this underlines the need for participants to not merely be honest, a quality that is fundamental to the success of treatment programs more broadly, but also the need for frankness in the discussions between participants and counsellors.
29. It might be said that some of this anxiety was disclosed in the letters that she wrote to the Court from time to time but it nonetheless needs to be discussed with her counsellors so that some arrangement can be made that will allow her to receive appropriate medical and psychological treatment that might address them and to alleviate the barriers which inhibited her success under the Treatment Order. This is not to blame her for that, but to note that this is a problem that perhaps needs to be addressed more widely in the administration of Treatment Orders.
The Application
30. Based on these facts, the Crown has sought cancellation of the Treatment Order under s 80ZE(1) of the Sentencing Act. The subsection empowers the Court to cancel such
an order for “unsatisfactory circumstances” which are set out in the six paragraphs of
the subsection.
31. In this case, the Crown relies on s 80ZE(1)(c), namely that, “the offender is unwilling or unlikely to comply with a condition of the offender’s treatment order”. The section
requires the circumstances to be made out on the balance of probabilities. The Court has a discretion, however; even if it finds that the circumstances have been made out, it is not obliged to cancel the Treatment Order.
32. I have discussed the section and its operation in R v Tonna (No 2) [2020] ACTSC 362 at [36]-[39]. I have no occasion to revisit what I there said, and no submissions have been made to invite me to change the views I there expressed. Accordingly, I will approach this application on that basis. In summary, I will consider whether the circumstance has been made out, and if so, will also consider whether any amendment to the conditions might justify the continuation of the Treatment Order.
Consideration
33. The Crown's submissions were that the following unsatisfactory compliance of Ms Charles with the Treatment Order makes it unlikely that she would comply with the current conditions. These matters were: the continued use of illicit drugs shown by the positive results of urinalysis, the failure to comply with treatment obligations, especially through self-discharge, her failure to comply generally resulting in Ms Charles receiving many sanctions, though, as was fairly noted, her behaviour on four occasions resulted in her being rewarded by a reduction in sanction points.
34. I note here that seven points, once accumulated, will ordinarily result in seven days in prison. Ms Charles did spend a number of periods of imprisonment as a result of accumulated sanctions, as well as leaving from various facilities without the Court's consent.
35. The Crown acknowledged that longstanding drug dependence is not something that can be addressed without incident, and indeed, without numerous attempts. I addressed this in Saga v Reid and Collett [2010] ACTSC 59 at [89]. This is perhaps especially so in the case of someone who, like Ms Charles, has commenced using at a young age and whose early youth has been marred by events and experiences likely to make the rehabilitation and indeed the adjustment to a prosocial life particularly difficult.
36. It seems to me, however, that Ms Charles has been dealt with in a way that maximises the respect that can be extended to someone in that position. There must, however, come a time when cooperation of the offender in the treatment enterprise has been so lacking that further attempts to try further rehabilitation are unlikely to succeed.
37. The condition that is principally at issue here is that which was inserted on 27 November 2020, requiring Ms Charles to admit herself to the Canberra Recovery Services residential rehabilitation program, to participate in it and not to leave the program without the approval of the Court.
38. There is, in addition, the problem, as noted above, that no current residential rehabilitation program is available for Ms Charles. It is regrettable that resources prevent a suitable and willing offender from gaining access to a Treatment Order which, as is well known, provides benefits not merely to the offender and his or her family but to the community more generally. Nevertheless, that is part of the hard reality, not only here but elsewhere in Australia, where such programs for offenders motivated to address their drug and alcohol dependency are operating, that resources are not unlimited and access for such people may have to be denied: see R v Tonna (No 2) at [70]-[73].
39. In this case, the alternative of a non-residential treatment regime for Ms Charles in the community, which would not be prevented by resource constraints, is not, in my view, likely to be effective.
40. Ms Charles has shown an inability to refrain from drug use while in the community despite a significant, but only three months long, program in Weigelli, which was apparently completed satisfactorily.
41. She has also shown a propensity to fail to attend as required for treatment programs and case management. Indeed, her compliance with even urinalysis has been patchy. I am certainly not satisfied that she would be a suitable candidate for a community- based treatment regime at this time.
42. Although it is a hypothetical, I am not even sure that even were a residential rehabilitation program to become available, she should be permitted to attend it. Her unwillingness to stay at such a program has been sufficiently consistent to raise a real doubt about her capacity to succeed.
43. That perhaps needs to be moderated in view of the submission made to me that she would be keen to return to Weigelli which has been successful and which may be able to address some of the difficulties that she seems to have encountered in other rehabilitation programs. Weigelli is not, so far as I am aware, available at the present time, so again, that continues to be in the realm of the hypothetical but perhaps moderates my view about any other programs that are available to her.
44. I note that cancellation of the Treatment Order will mean that Ms Charles will have to serve the balance of the term of imprisonment that is originally imposed.
45. If, however, Ms Charles is genuinely motivated to address her drug dependence and so return to the community, to become more satisfied with herself and her future life, to better support and act as a role model for her children, to participate in her community more effectively, and to benefit society more generally, then she may wish to seek to avail herself of this opportunity.
46. Ultimately, Ms Charles did not oppose the application to cancel her Treatment Order. Nevertheless, it seems to me that I did need to see that it was an appropriate result and not to simply make it by consent.
47. In all the circumstances, I find that Ms Charles is unlikely to return to Canberra Recovery Services, which in any event, cannot admit her at this time, and even were she to be willing, she is unlikely to comply with a condition to complete the program there. I am also satisfied that there is no other suitable rehabilitation program available to her and no amendment to conditions of her Treatment Order would be effective at this time. Accordingly, I will cancel the Treatment Order.
Sentencing
48. I must now, under s 80ZE(2) of the Sentencing Act, either impose the sentence of imprisonment originally imposed or re-sentence Ms Charles. I have set out in R v Tonna (No 2) at [78]-[79] some of the reasons why I might re-sentence an offender following the cancellation of a Treatment Order. None are relevant here, and no submission, that I find sufficient, has been made as to why I should do so.
49. It was submitted that her period in Weigelli might justify a re-sentencing. However, in my view, the period that she spent there, the results from when she returned to the community that showed it was not effective to protect her from relapsing, means that it would not justify a change in the original sentence. Despite the progress made at Weigelli, I do not consider that it justifies a change in the sentence, particularly as it was apparently so ineffective in achieving a lasting change, as shown by the subsequent conduct of Ms Charles. It does seem to me, however, that it justifies a moderation of the non-parole period.
50. Accordingly, I will impose the same sentence. That sentence, however, may, under s 80ZE(3)(b) of the Sentencing Act, be reduced by any period in custody that Ms Charles has served under the treatment and supervision part of the Treatment Order. Ms Charles has now served 57 days in custody. There is no reason why I should not reduce the sentence accordingly. Since the sentence is one of more than 12 months' imprisonment, I am obliged, under s 65 of the Sentencing Act, to consider setting a non-parole period. I do not know of any reason not to do so and will set such a period.
51. Indeed, as noted above, while I have considerable reservations about the ability or willingness of Ms Charles to actually comply with her continued assertion of a desire to rehabilitate, I am satisfied that she is to be given some credit for the success she had made in the Weigelli program. I consider that it can be addressed by reduction of the non-parole period.
52. She has expressed a wish to undertake more rehabilitation at Weigelli. That is to be applauded and supported. I do think, however, that I should include it as a recommendation to the Sentence Administration Board, as it could be too rigid a situation were things either prove too difficult because of COVID-19, an unavailability of places, or many other things that could leave it inaccessible at the time of her parole consideration. Indeed, for her, I suspect the real rehabilitation now requires her to take considerable initiative herself and show, not so much to the Court, but to herself, that she can address the issues she faces. I believe she is strong enough to do that if she chooses to do so.
His Honour then spoke to the accused:
53. Ms Charles, please stand.
54. I cancel the Drug and Alcohol Treatment Order made on 7 February 2020, and as amended from time to time.
55. I impose each of the sentences imposed on 7 February 2020, 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.
56. Accordingly, I declare that the total sentence of 1 year, 11 months and 4 days, is 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.
57. Ms Charles, you have heard what I have said, and I think you have been around long enough to understand generally what I have said. There is no real benefit in continuing with the Treatment Order, so, as you have acknowledged, that is cancelled. You will have to spend some time in prison. The period of imprisonment is between now and October next year. So it is less than 12 months and that should protect your house at Hackett.
58. It is going to be a challenge in any event, and regrettably, that is the position that we find ourselves in.
59. When you get parole, as I have no doubt you will if you behave yourself appropriately in the Alexander Maconochie Centre, then you can use that opportunity to go back to Weigelli if you wish. In my view, you should really try to do that yourself. You have told me on several occasions that you really want to address this, and that will be better for you, for your family and for the community, and there is a possibility of doing that. You might also look at the Bush Healing Farm at the time that you get out.
60. I hope that this works for you then. I think you showed some capacity to do that at Weigelli, but really, at the end of the day, you were not sufficiently committed to be able to make it work here and therefore we will have to try the only alternative that is available to me.
I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.
Associate: Samuel Xiang
Date: 18 February 2021
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