R v Coleman (No 3) - [2021] ACTSC 357

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 Crawford (No 3) [2020] ACTSC 369 R v Crawford (No 4) [2021] ACTSC 209 R v Dowling (No 3) [2021] ACTSC 210 R v Massey (No 4) [2021] ACTSC 211 R v Mico [2010] ACTSC 64 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

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 3)

Details

AGLC: R v Coleman (No 3) [2021] ACTSC 357
Case: [2021] ACTSC 357
Decision Date: 27 August 2021

CaseChat Overview and Summary

The matter before the court involved the appeal of a sentence imposed on the appellant, Coleman, who had been found guilty of drug-related offences. The case was heard in the Supreme Court of Queensland. Coleman had been sentenced to a term of imprisonment, which included a drug and alcohol treatment order (DATO). The appellant contested the imposition of the DATO, arguing that it was inappropriate and should be cancelled.

The primary legal issue for the court to determine was whether the trial judge erred in imposing the DATO as part of Coleman's sentence. The court needed to consider the statutory framework governing DATOs and the principles of sentencing. Specifically, the court had to assess whether the trial judge had taken into account all relevant factors, including the nature and circumstances of the offence, Coleman's personal circumstances, and the purposes of sentencing. The court also had to consider whether the trial judge had provided adequate reasons for the DATO and whether it was proportionate and appropriate in the circumstances.

The Supreme Court found that the trial judge had erred in imposing the DATO. The court held that the trial judge had failed to adequately consider the principles of sentencing and the specific circumstances of the appellant. The judge had not provided sufficient reasons for the DATO and had not adequately balanced the purposes of sentencing with the need for treatment. The court also found that the DATO was not proportionate to the offence committed. As a result, the Supreme Court determined that the DATO should be cancelled. The appeal was allowed, and the sentence was varied accordingly.

Orders