R v Coleman (No 3)
[2021] ACTSC 357
•27 August 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Coleman (No 3) |
Citation: | [2021] ACTSC 357 |
Hearing Date: | 24 August 2021 |
DecisionDate: | 27 August 2021 |
Before: | Refshauge AJ |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – Cancellation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 46J, 63, 65, 80C, 80O, 80ZA, 80ZB, 80ZC, 80ZD, 80ZE, 80ZJ, 80W Crimes (Sentencing Administration) Act 2005 (ACT) s 82, 82C |
Cases Cited: | R v Coleman [2021] ACTSC 349 R v Coleman (No 2) [2021] ACTSC 350 R v Tonna (No 2) [2020] ACTSC 362 |
Texts Cited: | Steven Belenko and Tamara Dumanovsky, Program Brief: Special Drug Courts (Bureau of Justice Assistance, 1993). |
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
Introduction
The widespread relationship between the use of alcohol and illicit drugs and the failure of incarceration to address the need to prevent drug use and, therefore, to reduce crime has led to the establishment of the Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and to the extensive regime which supports it. It is a diversion from incarceration and a sentencing option for the ACT Supreme Court. Though only introduced into the ACT in late 2019, such regimes, often called Drug Courts, have a history dating back to New York in the 1970s: Steven Belenko and Tamara Dumanovsky, Program Brief: Special Drug Courts (Bureau of Justice Assistance, 1993) 3.
The ACT itself has experimented with various other alternative options, commencing with the simple cannabis offence notice in 1989, the same year the modern Drug Court appeared in Miami-Dade County, Florida, USA.
All the diversions, including the Treatment Order, require effort on the part of the offender. An incredibly common part of the recovery is relapse, but returning to drug use does not mean that rehabilitation has failed. Nevertheless, special and resource intensive responses in sentencing offenders, who are dependent on illicit drugs, are realistically likely to be rationed and those who show effort and commitment are inevitably those who must and can be supported. This is a rational basis to address the issue of how to manage those who relapse.
In this context, an application has been made to cancel a Treatment Order made in respect of William John Coleman on 7 June 2021. Mr Coleman has failed to comply with certain central conditions of the Treatment Order and has been charged with four additional offences.
Background
In June 2019, Mr Coleman committed a number of offences. He stole some alcohol worth $238.96 from an independent supermarket. He then drove a stolen motor vehicle without the owner's consent, even though he was unlicenced at the time. Among other places, he drove it to another supermarket where he robbed the cashier by threatening him with a knife and took $1,150 in cash. He later broke into a hairdressing salon by smashing a window with a hammer, stealing a small set of digital scales valued at $13. He later broke into a childcare centre, smashing the front door with the same hammer he had used earlier. He did not steal anything from the centre. Finally, he stole some more alcohol, valued at $314.95, while a co-offender distracted the sales assistant at a supermarket so that Mr Coleman could take the alcohol.
When he was later arrested, just after he had driven the stolen motor vehicle, he was tested and shown to have cannabis and methamphetamine in his oral fluid. The details of these offences are set out in R v Coleman [2021] ACTSC 349 at [10]–[20]. Mr Coleman was charged with these offences and pleaded guilty to each of them. As noted above (at [4]), a Treatment Order was then made and Mr Coleman’s total sentence of three years, 11 months and 28 days imprisonment, to commence on 30 December 2020, was suspended.
A condition of the Treatment Order required Mr Coleman to enter the Canberra Recovery Services, Fyshwick, a drug rehabilitation facility which conducts both residential and day drug rehabilitation programs. The Treatment Order required Mr Coleman to undertake the residential program and remain in the program until he had completed it. Mr Coleman entered the facility and commenced the program on 7 June 2021.
On 16 June 2021, however, he admitted that he had relapsed and used cannabis in the facility. A urinalysis, however, showed that he had also used methamphetamine, which he did not disclose. He was also reported as engaging in erratic behaviour, though that was not specified. As a result, it was decided that he was to be discharged from this facility and the program, but he left the facility on the day before he was advised that he was to be discharged. He did, however, present himself to ACT Corrective Services and was required, under the Treatment Order, to appear in Court, which he did.
The suspension of the Custodial Part of the Treatment Order, that is the sentence of imprisonment, was provisionally cancelled and he was remanded in custody for eight days. Canberra Recovery Services were prepared to readmit Mr Coleman and so the suspension of the Custodial Part of the Treatment Order was reinstated and he returned to Canberra Recovery Services on 23 June 2021: see R v Coleman (No 2) [2021] ACTSC 350.
On 25 June 2021, Mr Coleman was again subject to urinalysis. The sample, however, was at least seven degrees below normal body temperature and thus, a false sample. He was advised that he was to be taken to Court. He requested to be taken to Winnunga Nimmityjah Aboriginal Health Service and when that was refused, he left the facility, again, a breach of the Treatment Order. He did not go to Court and did not report this time to ACT Corrective Services. Canberra Recovery Services advised that they were not prepared to readmit him. As a result, a warrant was issued under s 80ZJ of the Sentencing Act. Mr Coleman was arrested under the warrant on 11 July 2021.
He was also charged with dishonesty offences of aggravated burglary, minor theft, dishonestly attempting to take a motor vehicle without the owner's consent and common assault, alleged to have been committed after he left Canberra Recovery Services. The offences, still only allegations, are asserted to have arisen out of the entry into a residence at Watson when the occupant was then present.
Two intruders, one of whom was said to be Mr Coleman, are alleged to have entered the premises and taken a set of house and car keys and a handbag belonging to the occupant. Certain personal items, including her purse, were in the handbag. The two persons are alleged to have tried to enter the occupant's motor vehicle, but the occupier confronted them and they are said to have run away. It is further alleged that, as they did so, the person alleged to be Mr Coleman pushed past the occupant, knocking her to the ground, causing her to rip her jeans and cut her left knee, which became swollen.
A passer-by is said to have seen the alleged assault and given an accurate description of the persons involved to the police, of which descriptions of the participants, one matched Mr Coleman and the other matched the alleged co-offender.
Further, a nearby resident is alleged to have confronted the two persons and retrieved the purse, the property of the occupant, but the persons are alleged to have run from him. Known associates of Mr Coleman and the alleged co-offender were alleged to have seen them on the opposite side of the street, calling out to the two persons.
Police later attended at an address in Watson and are said to have found Mr Coleman and the alleged offender. The alleged co-offender was wearing a sock which matched a sock found on the premises which is alleged to have been burgled. Mr Coleman is said to have been hiding under a doona. Mr Coleman was arrested and later charged with the offences referred to above.
He then appeared in Court and the suspension of the Custodial Part of the Treatment Order was again provisionally cancelled. The Crown foreshadowed this application to cancel the Treatment Order, which application was then listed for hearing.
The application
The application, by application in proceedings by the Crown, for the cancellation of the Treatment Order was made under s 80ZE(1) of the Sentencing Act. The grounds of the application on which the Crown relies are as follows:
(a)Mr Coleman is unwilling or unlikely to comply with the conditions of the offender's Treatment Order (s 80ZE(1)(c) of the Sentencing Act);
(b)The continuation of the Treatment Order will not likely achieve the objects of the Treatment Order (s 80ZE(1)(d) of the Sentencing Act); and
(c)Mr Coleman poses an unacceptable risk to the safety or welfare of a person (s 80ZE(1)(f) of the Sentencing Act).
The approach to be taken to such applications has been summarised in R v Massey (No 4) [2021] ACTSC 211 at [19]–[21] as follows:
19. The approach to the application is as follows. One ground is sufficient to require the Court to consider cancelling the Treatment Order, but each ground should be considered. A ground must be proved on the balance of probabilities. Even if one ground is, or more, or all, of the grounds are, made out, the Court is not obliged to cancel the Treatment Order and retains a discretion. The Court should also consider whether it is appropriate to review the Treatment Order under s 80ZH of the Sentencing Act at the same time and, in particular, to decide whether an appropriate amendment to the Order under s 80ZH(4) of the Sentencing Act can be made that would adequately address the unsatisfactory circumstances.
20. Even if there is an appropriate amendment that could be made, such as admission to another residential drug rehabilitation facility, there may not be the resources available to give effect to the amendment and s 80S(c) of the Sentencing Act would justify a cancellation of the Treatment Order in that case: R v Tonna (No 2) at [70]-[73].
21. At the end of this consideration, the Court retains a discretion whether to cancel the Treatment Order. That a participant has performed unsatisfactorily does not mean that this behaviour will necessarily continue. Thus, where the grounds have been made out, but there is still some reasonable hope, based on a rational assessment of the situation, that the offender will rehabilitate, the Court may decline to cancel the Treatment Order and give the participant a further chance to complete it. Such further chances, however, must be based on a careful analysis of the facts and circumstances: see R v Tonna (No 2) at [36]-[39]; [70]-[73], R v Crawford (No 3) [2020] ACTSC 369 at [27]-[29]. In the absence of such a basis for continuation, it is almost inevitable that the Treatment Order will be cancelled: see R v Crawford (No 4) [2021] ACTSC 209.
This is the approach that will be taken to this application.
Consideration
Each of the grounds on which the Crown relies will first be addressed. The first ground is based on the assertion that Mr Coleman will not comply with the condition of the Treatment Order. It encompasses, of course, more than one such condition. Mr Coleman has now twice breached at least one condition of the Treatment Order and, on a number of occasions, more than one.
Ten days after he entered the Canberra Recovery Services facility, he used two illicit drugs but only admitted to one, the one probably regarded as less serious - cannabis. He was also said to be showing “erratic behaviour”. As said above (at [8]), however, this latter is a little more complicated as no evidence was given as to what that behaviour was nor how it affected the facility. It could, for example, have been the entirely expected behaviour consequent upon his withdrawal from drugs, which would likely to have been part of the reason he used drugs again.
In any event, one of the conditions of the Treatment Order was that he obey the rules of the program, one of which was not to consume alcohol or other drugs while in the program. A person with a drug dependency is, of course, human and subject to human frailty and immediate abstinence, often known colloquially as “cold turkey”, can be difficult. As made clear in R v Coleman (No 2) at [1]-[2]; [17], such a breach in the face of other compliance and acknowledgement of error can justify a further rehabilitation opportunity.
Accordingly, Mr Coleman was permitted to return to Canberra Recovery Services, but he left after nine days. He had provided a false urine sample and was to be discharged. The inference is that he provided the false sample because he had been using illicit drugs again and did not wish that to be discovered. He did not deny the false sample. The Court is prepared, especially in the light of what happened then, to make that finding on the balance of probabilities. This would be a breach of the facility's rules and the provision of the false sample itself may also have been a breach.
Instead of coming back to Court, he absconded. He did not report to ACT Corrective Services - a further breach of a condition. He did not return to the Court. While not an express condition, that is relevant to an assessment of his willingness to comply with the Treatment Order regime itself. In support of this, the Crown relied on the assessment of ACT Corrective Services in its Drug and Alcohol Treatment Assessment prepared under s 46J of the Sentencing Act, tendered as part of the Crown's Sentencing Bundle on the sentencing hearing in respect of Mr Coleman for the June 2019 offences. The author opined that:
Mr Coleman has been assessed as not suitable for Drug and Alcohol Treatment Order due to substantial non-compliance with previous court orders and lack of suitable address within the ACT.
In sentencing Mr Coleman, consideration was given to both these objections carefully, though the Crown relied on both, especially and significantly the former, in its sentencing submissions at the time. As to the history of non-compliance, it was said in R v Coleman at [117]-[118]:
117. His age, when he is at a stage that causes persons living in his lifestyle to reassess their unsatisfactory position, is a change in circumstance from the situation surrounding previous breaches. That, of course, is a big generalisation and, of course, such an assessment may be wrong, especially as there are no particular factors, such as the need to reconnect with family, that might provide some additional and specific motivation to him.
118. On the other hand, he has been assessed as having some insight and being passionate about his prospects of rehabilitation and is taking some, albeit limited and tentative, steps towards that goal, some of which are not exactly to his liking. There can be no guarantees, but it is satisfactorily shown that he is likely to comply with this opportunity, which may well be nearly his last opportunity for such rehabilitation.
Regrettably, that final comment does not seem to have been particularly pertinent in hindsight. It is also relevant that Mr Coleman was subject to a sentence imposed by the New South Wales Drug Court which he breached. While failures are expected of people rehabilitating from drug dependency, it is relevant to look at a person's history to assess future behaviour and, unless there is some change in circumstances, past behaviour can be a prediction of future conduct.
Mr Coleman does not appear to be ready for rehabilitation at this stage, regardless of his earlier “passionate” expressions of commitment, which do not appear yet to be able to be translated by him into action. The Court can be satisfied that he will not complete the program of residential drug rehabilitation at this stage, which is considered to be an essential part of any Treatment Order to be made in respect of him.
The second ground is, as observed in other similar cases, such as R v Crawford (No 4) [2021] ACTSC 209 at [46] and R v Massey (No 4) at [30], related to the first ground. The first ground is directed to Mr Coleman's rehabilitation and to its achievement. Without that, the objects to which a Treatment Order are made, as the ground asserts, are unlikely to be attained. The objects are set out in s 80O of the Sentencing Act, relevantly, as follows: they are to
(a)facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically orientated 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.
As remarked in R v Massey (No 4) at [31], the first three are related. The first, (a), is directed to the means of achieving rehabilitation. Mr Coleman's failure to abide by the need to submit to the Court's supervision by absconding and the failure to engage in rehabilitation by complying with the rules of the facility means that he would likely fail to meet that objective. Without such rehabilitation, the objects of (b) and (c) are quite unlikely to be achieved.
The final object, (d), is to be achieved by the final stage of the Treatment Order regime, designated as phase three, which addresses at the latter stage of rehabilitation issues such as enabling the participant to return to the community with a drug and crime free lifestyle, gain employment, have a stable social and domestic environment and be able to live peaceably in the community. Without the rehabilitation with which Mr Coleman has failed to engage, he is quite unlikely to reach phase three and its assistance to achieve that reintegration into the community.
The rehabilitation does require effort and commitment from the participant: it is not easy. As many can attest, however, the rewards can be significant and, indeed, substantial. The objects, especially that implied by (d), and the expressions of that are particularly important and valuable, not only to the participant, but also to the community more widely, especially those persons who no longer would be victims of crime.
The Court can be satisfied on the balance of probabilities that Mr Coleman's Treatment Order is, in the present state of his conduct and lack of compliance, unlikely to achieve these objects.
The final ground refers to a risk to the welfare or safety of a person in the community. Again, this refers not to a specific person, but to members of the community generally: see R v Massey (No 4) at [36].
The relationship of drug dependence and crime which is referred to above (at [1]), is a relevant factor here. Without rehabilitation and, preferably, abstinence, but at least management of his drug use, Mr Coleman is likely to commit further offences. It does not seem, however, that this ground would be made out necessarily just by this generalisation. It is true, for example, that drug dependent persons do have periods during which they do not commit crimes and sometimes they can be not insignificant periods.
Further, of course, Mr Coleman has a long criminal record, which was described in R v Coleman at [69]–[71] as follows:
69. Mr Coleman has a long and depressing criminal history. [Redacted for legal reasons].
70. In the New South Wales Adult Courts, he has accumulated 69 offences, mostly dishonesty offences, including many offences of breaking, entering and stealing in its various forms. He was incarcerated a number of times. He also appeared in the Paramatta Drug Court in 2012, though he is recorded as having breached the Order made by that Court.
71. When he came to the ACT, his activities continued. Since 2009, he has been convicted of 33 offences, including 10 burglary offences and 11 theft offences. He was most recently imprisoned for burglary (10 offences), and theft (10 offences) and 10 other offences to a term of 5 years and 10 months imprisonment, as noted above.
There are few offences of violence or of damaging property, but dishonesty offences do seriously disturb the welfare of the community. Further, burglary and similar offences do cause mental harm to the victims. This is also relevant to a consideration of this ground.
Finally, Mr Coleman has been charged with further offences. While he has not been convicted of them, the Court can take into account the nature of the allegations made and the strength of the evidence for them. They relate to the alleged burglary of residential premises, theft of items, as well as the attempted theft of a motor vehicle. He has committed many burglary and equivalent offences before, as well as theft offences as referred to earlier (at [5]–[6]). He has also committed four earlier thefts of motor vehicles, though all in New South Wales. That is, prior to 2009.
Mr Coleman also has two assault offences on his record, committed in 1990 and 1993, respectively. It is to be noted, however, that in this case, the assault occurred while Mr Coleman was attempting to get away and take the victim's handbag. These prior convictions do lend some, quite limited, strength to the allegation. They would not justify a finding of guilt and are far away from what is known as similar fact evidence. That, of course, is not the relevant test for the Court on this application. The Court need only to be satisfied on the balance of probabilities that he will not comply with conditions or achieve rehabilitation.
The case against Mr Coleman for these further offences appears quite strong. He was seen by the victim and two neighbours who were quite close to him and his alleged co-offender. One of the neighbours is said to have given “an accurate description of the males involved”. He was also seen by a passer-by and two of his known associates were watching the events and called out to Mr Coleman and the co-offender as the two were leaving.
It is noted, however, that Mr Coleman proposes to contest these charges. Understandably, the Court has not been favoured with the grounds of any contest. He says that he was found hiding by police, not because of the offences, but because of the warrant that had been issued (as noted at [10]). Of course, identification may well be an issue and it can always be problematic, despite what appears to be a cumulation of identification material that together has some apparent strength. The Court has only been provided with the police Statement of Facts and, without hearing evidence or cross‑examination of witnesses, the ability to make actual findings is somewhat more difficult.
When police located Mr Coleman, the alleged co-offender was also found in the premises and wearing one sock quite similar to a sock found at the scene of the alleged burglary and attempted theft of the motor vehicle. That, of course, makes the issue of who was present somewhat stronger. None of these items, of themselves, prove the case and identification can always prove a difficulty for prosecuting crime. Nevertheless, taking all of these together it is, in my view, a strong case.
That does not, however, mean that the Court is unable to make a finding on the balance of probabilities. There may be well other legal defences to these charges, but the evidence in its present state as known, is relatively strong and justifies reliance on this as part of the consideration of this ground.
Together, the fact of an unaddressed drug dependency of Mr Coleman, the long history of criminal offences and the allegations of offences, with evidence as strong as it is, allows the Court to consider that Mr Coleman, were he to be released into the community, would be likely to continue offending and thus put the community's safety and welfare at risk.
Accordingly, this ground is made out on the balance of probabilities.
The grounds, having been made out, would then justify the cancellation of the Treatment Order made to which Mr Coleman was subject.
Mr Coleman has, however, asked that the Treatment Order not be cancelled.
He is 41 years old and has spent 20 of his years in custody. He wishes to rehabilitate and does not wish to continue with his drug and crime filled lifestyle.
He has been in hospital with a seriously infected or otherwise diseased toe. He is likely, because of the current medical problems, to have that toe amputated in about five days. This would, of course, make any time in custody more onerous for him than for persons who did not suffer disability. This should, in any event, be taken into account and will be.
The Court was also informed that Mr Coleman's leg itself is in danger of amputation if he does not give up smoking. He says that he has given up smoking before and so he is optimistic about being able to do so again. While these medical matters are serious and it would be inhuman not to express concern and sympathy, they do not appear to provide any reason of themselves not to cancel the Treatment Order.
There is, however, no residential drug rehabilitation facility presently available to him. He has spoken to an officer of Canberra Recovery Services who has said that the facility is quite “keen to have him return.” That conflicts with the unchallenged Crown evidence, which quotes the same officer as saying that he “is not welcome back at CRS [Canberra Recovery Services]”. Much more information would be required before, in those circumstances, the availability of a place at Canberra Recovery Services could be of significance in this consideration. For example, it is not known whether there is a bed presently available for an offender, nor is it known that such a bed is available to an offender subject to a Treatment Order and the Court needs further details and confirmation of the offer, if it is to take them more significantly into account.
The further charges, were he convicted of them, may possibly result him being sentenced to imprisonment, perhaps more likely than not, having regard to their nature. That would automatically cancel any Treatment Order: see s 80ZD(3) of the Sentencing Act.
Ms C Duffy, counsel for Mr Coleman, however, submitted that the charges were unlikely to be heard in the Magistrates Court, but committed for trial in the Supreme Court. This would take some considerable time, which could beneficially be used to further his rehabilitation. Since there is no certainty of either conviction or of a sentence of imprisonment, there is, in any event, no certainty of cancellation.
The force of these submissions may be accepted and the general approach that has been taken to such matters is not to presume the outcome of pending charges, or, as is more commonly encountered, extradition, but to take the spirit of the Treatment Order regime to maximise any rehabilitation and to value it, even were further punishment to be required. Such post-offending rehabilitation, in any event, is relevant to later sentencing.
Indeed, there is very good reason to support pre-sentence rehabilitation – this is the very rationale of the deferred sentence order, see R v Mico [2010] ACTSC 64. That is to say, pre-sentence rehabilitation may justify a less severe sentence or even a change in type of sentence from, for example, custodial to non-custodial. This is, of course, required even without the particular structure of the Deferred Sentence Order or, indeed, completion of a Treatment Order.
Nevertheless, there is no evidence before the Court to persuade it that Mr Coleman will use such an opportunity. He is not, of course, required to give evidence, but he does bear the onus of persuading the Court, at least on the balance of probabilities, were the Crown to have made out the grounds for cancellation of the Treatment Order as they have done here, that it should exercise its discretion not to do so. There is no evidence of why he failed to comply with the conditions of the Treatment Order and why it should be accepted that there has been such a change that such non-compliance will not continue. Further, there is no current placement, as noted above (at [50]), although there is apparently the possibility of such in a residential drug rehabilitation facility which would be the proper place for his rehabilitation.
If his explanation for hiding from police is correct, namely, that he was avoiding the execution of the warrant, it shows, in itself, a level of avoidance of responsibility that is not at all in his interests. He says, however, that he did not contact a member of the Treatment Order Team before leaving Canberra Recovery Services on the last occasion because he did not have a phone and the ratio of staff to participants at the facility meant that he could not access one. That, of course, does not explain why he did not do so later, return to ACT Corrective Services, or even just attend Court, where he knows that it sits every Friday.
Finally, his mother is ill from a disease caused by smoking. She is in Newcastle. He wants to contact her. Again, this is a matter of regret, but his offending conduct has forfeited such kind of opportunity.
Accordingly, the Court is not persuaded that the Treatment Order should not be cancelled and will do so.
Sentencing
Having decided to cancel the Treatment Order, s 80ZE(2) of the Sentencing Act requires the Court to “impose the sentence of imprisonment” or “re-sentence” Mr Coleman. In R v Tonna (No 2) [2020] ACTSC 362 at [78]-[79], some of the reasons why re-sentencing might be appropriate were set out. None were suggested to be relevant in the case of Mr Coleman and no others were suggested.
Accordingly, the sentence already made will be imposed; namely of three years, 11 months and 28 days. There are, however, some issues that need to be addressed: see R v Dowling (No 3) [2021] ACTSC 210 at [46]–[48].
One other issue that needs briefly to be addressed is that Mr Coleman, having been charged with the fresh offences, has been remanded in custody for them. That brings into operation s 80ZC of the Sentencing Act that requires, in that situation, that the Court must provisionally suspend the Treatment and Supervision Part of the Treatment Order until Mr Coleman ceases to be in custody or the Treatment Order is cancelled: s 80ZC(2) of the Sentencing Act.
There seems no limit on the period of such suspension, as there is when a suspension of a Custodial Part of a Treatment Order for breaching a condition of the Treatment Order under s 80ZB(1)(e) of the Sentencing Act is provisionally cancelled: see R v Tonna (No 2) [2020] ACTSC 362 at [67]. The effect is similar, however, for under s 82C(3) of the Crimes (Sentencing Administration) Act 2005 (ACT), the Court must then imprison Mr Coleman for the period of the suspension, which has the same effect as cancelling the suspension of the Custodial Part of the Treatment Order.
Curiously, Mr Coleman would then also be, “taken to comply with the offender's Treatment Order obligations while serving the full time detention”: s 82C(3)(b) of the Crimes (Sentence Administration) Act. It is noted that s 80ZC of the Sentencing Act refers to suspension of the Treatment and Supervision Part of the Treatment Order, while s 82C of the Crimes (Sentence Administration) Act refers to suspension of the Treatment Order, but that must encompass the Suspension of the Treatment and Supervision Part of the Order, for it would otherwise lead to an absurd result. It would leave a person in the situation where he or she would not be under any jurisdiction of the Court.
The Treatment and Supervision Part of the Order has been suspended and the Custodial Part is suspended under s 80W of the Sentencing Act without any other conditions. Any unintended consequences for the effective serving of a period in custody is dealt with by s 80ZC(3) of the Sentencing Act.
Nevertheless, that has some consequences, again, curiously, not available had Mr Coleman not been charged with the offences and remanded in custody for them. For example, where the Court considered continuing the Treatment Order and requiring residential drug rehabilitation further, but there was no presently available placement in such a facility available for Mr Coleman, then it would not be able to adjourn the sentence until such a placement became available and then proceed to amend the Treatment Order to allow Mr Coleman's admission to it.
It seems an oddity of the legislation that the Court could do this because Mr Coleman has been charged with committing serious enough offences to justify him being refused bail, but had he only been discharged from Canberra Recovery Services and had not been arrested on the warrant issued by the Court without further offending the Court could not do this, unless another placement was available within 14 days. This would be generally unlikely.
The Court could, alternatively, release him into the community, pending a placement, but this would be unlikely since his need for some form of restraint, such as custody or residential drug rehabilitation, because of his conduct, would be desirable. In any event, given the finding about Mr Coleman's unlikeliness of completing a residential drug rehabilitation program at this stage, the Court will not proceed in this way.
As the sentence is one of more than one year in length, the Court must consider whether to set a non-parole period: s 65 of the Sentencing Act. It is appropriate to set such a period. The Court could suspend the sentence instead, but there are no reasons submitted to the Court as to why that would be appropriate. This would be another way to allow Mr Coleman to attend a residential drug rehabilitation program, but as none are presently on offer and no date is set for such, a suspension on a date certain would not be warranted. Further, he is facing further offences for which, given the nature of them and the circumstances of their commission, he is likely to be required to serve a custodial sentence were he to be convicted.
The Court needs also to take into account the periods of custody Mr Coleman has already served. The original sentence was backdated to take into account Pre-Sentence Custody of 160 days: see R v Coleman at [89]. That is appropriately done as this shows, clearly, what has been done, as opposed merely to impose the balance of the sentence presently unserved. Then, the three days between Mr Coleman being arrested and then remanded in custody on the fresh charges must be counted until the Court then provisionally cancelled the suspension of the Custodial Part of the Treatment Order: s 80ZC(3) of the Sentencing Act.
Consideration must also be given to whether the sentence should be reduced by any period of custody served under the Treatment and Supervision Part of the Treatment Order. This has been taken to mean any period served under s 80ZB(1)(e) of the Sentencing Act, even though that refers to the Custodial Part of the Treatment Order. This was, in this case, 11 days. It clearly refers to any period of imprisonment served under s 82C(3) of the Crimes (Sentence Administration) Act. That section does seem wide enough to include any period referred to under s 80ZB(1)(e) of the Sentencing Act, for the obligations under the Treatment and Supervision Part of the Treatment Order would have to be suspended during such a period.
It would be absurd to assume that a participant was still liable to complete residential drug rehabilitation in a specified non-custodial facility while in custody, nor complete mandated urinalysis on days when it is not provided in the Alexander Maconochie Centre, nor continue counselling on group sessions at sites outside the prison. If the Court is wrong about this, it would still be proper and fair to re-sentence Mr Coleman so that these periods could be taken into account in the sentence to be imposed.
These periods should also be addressed by backdating the start of the sentence, the effect of which will be declared under s 82C(2) of the Crimes (Sentence Administration) Act in the orders made.
The periods are: 16 to 23 June 2021 of 8 days and 13 to 23 July 2021 of 11 days, being the 2 periods consequent upon provisional cancellation of the supervision; 11 to 13 July 2021 under the custodial period of fresh charges; finally, the period of 23 July 2021 to today, 27 August 2021, a total of 30 days.
In addition, as said earlier (at [69]), Mr Coleman spent 160 days in pre-sentence custody. In the sentence these were taken into account as required under s 63 of the Sentencing Act, as permitted by that section backdating the start of the sentence. It is considered appropriate to do that in this case and to do that also with the other periods of custody during the periods of the Treatment Order in the same way. This makes in total 218 days by which the commencement of the sentence should be backdated.
Sentence
[His Honour then spoke directly to the offender]
Mr Coleman, please stand.
The orders of the Court are as follows:
(1) The Drug and Alcohol Treatment Order made on 7 June 2021 be cancelled;
(2) The convictions entered and sentences imposed on 7 June 2021 for the offences to which you have pleaded guilty in these proceedings are confirmed;
(3) The sentence of 3 years, 11 months and 28 days is now imposed;
(4) It is declared that, under s 80ZE and 80C of the Crimes (Sentencing) Act 2005 and s 82 of the Crimes (Sentence Administration) Act 2005 (ACT), that the period of imprisonment of 3 years, 11 months and 28 days commence on 21 January 2021 and ends on 17 January 2025
(5) A non-parole period of 23 months be set, to commence on 21 January 2021 and end on 20 December 2022.
| I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge Associate: Date: 27 September 2022 |
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