R v Coleman (No 2)
[2021] ACTSC 350
•23 June 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Coleman (No 2) |
Citation: | [2021] ACTSC 350 |
Hearing Dates: | 16 June 2021; 18 June 2021 |
DecisionDate: | 23 June 2021 |
Before: | Refshauge AJ |
Decision: | 1. The suspension of the sentence of imprisonment under the custodial part of the Drug and Alcohol Treatment Order made on 7 June 2021 be hereby reinstated. 2. William Colman is directed that, when he is released from custody, he travel directly to Canberra Recovery Services, Fyshwick, ACT, and readmit himself into the residential drug program there by 1:00 pm today, 23 June 2021. 3. William Colman is directed to appear in this Court by electronic means on Friday 2 July 2021 at 12:30 pm. |
Catchwords: | Breach of Alcohol and Drug Treatment Order – Relapse – Drug and Alcohol Treatment Order Review – Rehabilitation – Continuation of Drug and Alcohol Treatment Order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 80K, 80W, 80Z, 80ZB |
Cases Cited: | Saga v Reid and Collett [2010] ACTSC 59 R v Coleman [2021] ACTSC 349 R v Tonna (No 2) [2020] ACTSC 362 |
Texts: | ACT Supreme Court, Drug and Alcohol Sentencing List, Behavioural Contract Protocol (2019) |
Parties: | The Queen (Crown) William John Coleman (Offender) |
Representation: | Counsel C Muthurajah (Crown) C Duffy (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 30 of 2020 SCC 31 of 2020 |
REFSHAUGE AJ
The approach to drug rehabilitation articulated in Saga v Reidand Collett [2010] ACTSC 59 at [89] is one which has much resonance in the Drug and Alcohol Sentencing List. It was there said:
In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it.
The balance of accepting failure as part of the difficult journey to rehabilitation while not being over-indulgent is also complicated by the need to provide an example to other participants, especially encouraging them to persevere and commit to the rehabilitation task, as well as to be fair to each and to be seen to be applying the same standards. This can create some difficulties, as human experience is complicated and not always comparable at a superficial or merely apparent level.
On 7 June 2021, a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) was made for William Coleman in respect of an offence of aggravated robbery, for which he was sentenced to 29 months imprisonment: see R v Coleman [2021] ACTSC 349.
A central tenet of the Treatment and Supervision Part of the Treatment Order was that he admit himself to and complete the residential drug rehabilitation program at Canberra Recovery Services, Fyshwick, ACT: a drug and alcohol rehabilitation agency, the program of which is described in R v Ngerengere (No 3) [2016] ACTSC 299 at [70]. He was required to comply with the rules of the agency and any directions of the person in charge of the facility. Mr Coleman admitted himself to the program that day and was required to attend Court by audio visual communication on 18 June 2021.
On 16 June 2021, however, he declared that he had used cannabis in the facility and on urinalysis, was ascertained to have returned a positive test sample for cannabis and methylamphetamine. He was also engaging in what was said to be ‘erratic behaviour’.
The positive test was a breach of a treatment condition of the Treatment Order and it, and the other matters, were a breach of the rules of the facility. He was informed that he would be discharged. Instead, he left the facility of his own accord.
A condition of the Treatment Order was that if he was discharged or left the facility, he was to report to ACT Corrective Services by 4:00pm on the next business day. Nevertheless, that afternoon, he appeared at the Court and presented himself to an officer of ACT Corrective Services. He was directed not to leave the Court precincts until he had presented himself to the Court in person.
When the Treatment Order was made, Mr Coleman was told that rehabilitation was going to be hard and that the worst thing he could do would be to run away. He was further told that, while not every lapse could be forgiven or every problem solved, the Court would try to do so if he co-operated: see R v Coleman at [131].
As noted above (at [7]), Mr Coleman attended in Court on 16 June 2021 and admitted his drug use in Court frankly and honestly. He said that he had found the program hard and that he had just succumbed. He said that he wanted another chance as he did still wish to try and persist with his rehabilitation.
As also noted above (at [6]), the positive urinalysis test was a breach of a treatment program condition under s 80Z of the Sentencing Act and a breach of the rules of the Canberra Recovery Services. It was a serious breach, but there is no principle underlying the operation of Treatment Orders that requires a particular number of breaches to lead to inevitable cancellation.
There is, however, a regime of sanctions and incentives set out in the Behavioural Contract Protocol published by the Court. Short of cancellation of the Treatment Order, a warning is a requirement and the participant is also to reflect on what breach they have committed, how to avoid it in the future and to share that with the Court. It also provides for the sanction of points, one point notionally being a day in custody, though an order to serve such days is generally not made until at least seven points have been accumulated.
Thus, the Protocol also provides the option of ordering the participant to spend a period in custody. Under s 80ZB(1)(e) of the Sentencing Act, the Court can require a participant to spend up to 14 days in custody. For any one breach, however, it appears that the Court can only require a participant to spend up to 14 days in prison and no more: R v Tonna (No 2) [2020] ACTSC 362 at [66]-[68].
The order for this is slightly complicated. It is not as simple as remanding Mr Coleman in custody for the period. The structure of the Treatment Order is that a sentence of imprisonment is imposed and is then fully suspended: s 80W(1) of the Sentencing Act. Thus, this then permits the Court to make provisions for Treatment and Supervision: s 80K of the Sentencing Act. To require a participant to spend time in custody, the Court must provisionally cancel that suspension for a period of at least 3 days, but no more than 14 days: s 80ZB(1)(e) of the Sentencing Act.
As such, Mr Coleman’s suspension of the sentence of imprisonment was provisionally cancelled from 16 June 2021 to 18 June 2021 and then again on that date until today, 23 June 2021.
There can, however, be difficulties in applying the rules fairly. Thus, some participants are not really suitable for rehabilitation in the community, but are suitable for residential drug rehabilitation. Mr Coleman is in that category. If he breaches rules of a residential facility, he may not be able to return. Unless he can, or there is another residential facility to which he can be admitted, then, there may be no alternative to cancellation of the Treatment Order and the imposition of the sentence that was originally imposed given there are no other viable rehabilitative alternatives: R v Tonna (No 2) at [65]-[73].
In this case, however, Mr Coleman is fortunate to be able to access a return to the Canberra Recovery Services from today. Often the rules of the facility provide that readmission is only available after weeks or months have lapsed since discharge. This conflicts with the limits of custody in the legislation and the inappropriateness of release of any participants in the community for these lengths of time, a matter that the legislature might review.
It is accepted that Mr Coleman is still committed to continuing his rehabilitation. His immediate return to Court is an important indication of this, as is his honesty and his insight about why he used drugs and behaved in the way he did.
For Mr Coleman, it is appropriate to permit him to continue under the Treatment Order, though this will not happen on every breach: see, for example, R v Kaihea (No 2) [2020] ACTSC 82.
Thus, the suspension of the imprisonment will be reinstated today having reviewed the Treatment Order to meet the current situation and the Court will give appropriate directions to give effect to his readmission.
Orders
[His Honour then spoke directly to the offender]
Mr Coleman, please stand.
The Court orders are as follows:
(1) The suspension of the sentence of imprisonment under the Custodial Part of the Drug and Alcohol Treatment Order made on 7 June 2021 is hereby reinstated;
(2) You are directed that when you are released from custody, you travel directly to Canberra Recovery Services, Fyshwick, ACT, and readmit yourself into the residential drug program there by 1:00pm today, 23 June 2021;
(3) You are directed to appear in this Court by electronic means on 2 July 2021 at 12:30pm.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: Date: 19 July 2022 |
5
1