R v Coleman (No 2) - [2021] ACTSC 350

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 Kaihea (No 2) [2020] ACTSC 82 R v Ngerengere (No 3) [2016] ACTSC 299 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) (

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 Coleman (No 2)

Details

AGLC: R v Coleman (No 2) [2021] ACTSC 350
Case: [2021] ACTSC 350
Decision Date: 23 June 2021

CaseChat Overview and Summary

In the case of R v Coleman (No 2), the respondent, William Coleman, appealed against the decision to revoke his drug and alcohol treatment order. Coleman was found to be in breach of the order and had been sentenced to imprisonment. Coleman argued that he should not be imprisoned but rather be allowed to continue with his rehabilitation through the drug and alcohol treatment program. The court was required to determine whether the respondent's relapse into drug use justified the continuation of his imprisonment or if he should be allowed to re-enter the treatment program.

The court considered the purpose of the drug and alcohol treatment order, which was to provide a pathway to rehabilitation for individuals struggling with substance abuse. The court noted that while the respondent had relapsed, the primary goal of the order was rehabilitation, and the respondent had shown a willingness to participate in the treatment program. The court also considered the respondent's progress in the program prior to his relapse and the potential benefits of allowing him to continue with the program. The court found that the respondent's relapse did not necessarily mean that he should be imprisoned, but rather that he should be allowed to continue with his rehabilitation.

Accordingly, the court ordered that the respondent's sentence of imprisonment be reinstated, but that he be released from custody and readmitted into the drug and alcohol treatment program. The court also ordered that the respondent appear before the court via electronic means to review his progress in the program. The court's decision was based on the principle that the primary purpose of the drug and alcohol treatment order was to provide a pathway to rehabilitation for individuals struggling with substance abuse, and that the respondent's relapse did not necessarily mean that he should be imprisoned.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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