R v Connors (No 2)
[2022] ACTSC 384
•7 March 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Connors (No 2) |
Citation: | [2022] ACTSC 384 |
Hearing Date: | 4 March 2022 |
DecisionDate: | 7 March 2022 |
Before: | Refshauge AJ |
Decision: | 1. The Application dated 2 March 2022 for cancellation for the Drug and Alcohol Treatment Order made on 15 February 2022 be dismissed. 2. The suspension of imprisonment under the custodial part of the Drug and Alcohol Treatment Order made on 15 February 2022 be reinstated. 3. Stanley Shane Connors proceed directly from the Court precincts today to Canberra Recovery Services, Fyshwick, to arrive no later than 1:00pm today, 7 March 2022. 4. Stanley Shane Connors appear in Court for Review of the Drug and Alcohol Treatment Order on 18 March 2022 at 12:30 pm by electronic means. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – failure to comply with obligations of Drug and Alcohol Treatment Order – application for cancellation of Drug and Alcohol Treatment Order – unwilling or unlikely to comply with a condition of the offender's Drug and Alcohol Treatment Order – continuation of treatment and supervision order will likely not achieve the objects of the Drug and Alcohol Treatment Order – offender poses unacceptable risk to the safety or welfare of a person in the community – application dismissed. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 80M, 80O, 80Y, 80Z, 80ZD, 80ZE, 80ZH |
Cases Cited: | R v Connors [2022] ACTSC 374 R v Crawford (No 3) [2020] ACTSC 369 R v Pelecky [2020] ACTSC 246 |
Parties: | The Queen ( Crown) Stanley Shane Connors ( Offender) |
Representation: | Counsel C Muthurajah ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 284 of 2021 SCC 285 of 2021 |
REFSHAUGE AJ:
Introduction
On 15 February 2022, a Drug and Alcohol Treatment Order (Treatment Order) was made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) for Stanley Shane Connors. He had pleaded guilty to an offence of aggravated robbery, two offences of dishonestly driving a motor vehicle without the owner’s consent, two offences of dishonestly riding in a motor vehicle without the owner’s consent, an offence of obtaining property by deception, two offences of driving a motor vehicle while disqualified and an offence of trespass: R v Connors [2022] ACTSC 374 (R v Connors).
Before making the Treatment Order, Mr Connors was sentenced to a total of four years imprisonment.
The Treatment Order required Mr Connors to admit himself to the residential drug rehabilitation program at Canberra Recovery Services, Fyshwick, ACT. That drug rehabilitation agency is described in R v Novakovic (a.k.a Noland) (No 5) [2022] ACTSC 199 at [9]. The Treatment Order also required him, if he left or was discharged from the facility, to report to ACT Corrective Services by 4:00pm the next business day.
Mr Connors did admit himself to the facility that day, but that afternoon in circumstances that are contested, he left the facility. He said, which is not contested, that he was shown a distressing picture of his brother, who had been assaulted and was in hospital. He went to see him.
In breach of the Treatment Order, Mr Connors did not return to the facility. While he did not report to ACT Corrective Services by 4:00pm the next day, he did have a conversation with a community corrections officer on that day, though on the initiative of the officer not on his own initiative. Nevertheless, he did not return to Court on 18 February 2022, which was when, under the Treatment Order, he had been directed to return to Court in compliance with the conditions set out in s 80Y of the Sentencing Act.
It is alleged that Mr Connors, after having left the Canberra Recovery Services facility, committed further offences. He has been charged with three offences, which the Court has been informed have been listed for mention in the Magistrates’ Court on 16 March 2022.
On 18 February 2022, the Court issued a warrant for the arrest of Mr Connors for breaching the Treatment Order. He was arrested on that warrant on 21 February 2022 and was remanded in custody following the provisional cancellation of the suspension of the custodial part of the Treatment Order on 22 February 2022.
The Crown has now applied for the Treatment Order to be cancelled.
The Facts
As noted above, Mr Connors pleaded guilty to nine offences, one very serious, most of the others serious offences and some less serious; all of which, however, are quite unacceptable breaches of conduct in a civilised community.
Mr Connors, at age 27, has a long history of drug use [redacted]. He had a severe substance dependence and his use contributed to his offending behaviour and the commission of the offences for which he was then to be sentenced.
As a result, he was sentenced to four years imprisonment, but a Treatment Order was made on 15 February 2022, which required him to undertake the residential drug rehabilitation program provided by Canberra Recovery Services.
As noted above (at [5]), he did admit himself to the program on the day the Treatment Order was made. His mother and sister attended at the facility later that day to provide some clothes and toiletries, as he had gone to the facility directly from the Alexander Maconochie Centre. They also showed him the photograph of his brother who had been assaulted and was in hospital. It was obviously distressing.
It was submitted that Mr Connors had spoken to the manager of the facility and gained permission to leave to visit his brother. The Crown did not accept that. The email said to be supportive of Mr Connors’ assertion was at best equivocal.
A final finding on this fact does not need to be made. While it would be somewhat less serious if Mr Connors did have permission to leave the facility than if he did not, the rest of the facts are very problematic for him.
He did not return to the facility, nor as required under the Treatment Order, did he report to ACT Corrective Services by 4:00pm the next day and he has been accused of committing further offences.
Mr Rodney Taylor, Community Corrections Officer with ACT Corrective Services, however, spoke to Mr Connors on 17 February 2022 when Mr Connors told him that he intended to return to Canberra Recovery Services that afternoon and that an employee of Yeddung Mura would take him there. Yeddung Mura is a Canberra based Aboriginal corporation established in 2008, working directly in the community to address gaps in the needs of Aboriginal people, identified by Aboriginal Elders, and, especially since 2014, delivering Aboriginal prison services. Mr Connors is of Aboriginal decent and identifies as an Aboriginal man.
Mr Taylor was told by the manager of Canberra Recovery Services that it would be better for Mr Connors to return initially to the Alexander Maconochie Centre and then, on 21 February 2022, return to Canberra Recovery Services. It appears that Mr Connors was accordingly directed to appear in Court on that day for that to be effected, but he did not do so.
He was due to appear in Court for a regular review of his Treatment Order on Friday 18 February 2022, but he did not do so. A warrant under s 80Z(j) of the Sentencing Act was issued. It appears that it may not have reached police until Monday 21 February 2022.
He was then arrested on 20 February 2022 and charged with dishonestly driving in a motor vehicle without the owner’s consent, driving whilst disqualified and dishonestly taking a motor vehicle without consent. The police who arrested him appeared not to have known of the warrant that this Court had issued on 18 February 2022 when he did not appear in court as required.
He was, it appears, granted police bail, which amongst other conditions required him to report to the officer in charge of a police station every Monday, Wednesday and Friday. It was only when he reported on Monday 21 February 2022 that the warrant was drawn to the police’s attention, and he was arrested. He had reported voluntarily. Nevertheless, he was then refused bail and remanded in custody.
On 22 February 2022, he appeared in the Drug and Alcohol Sentencing List. The suspension of the custodial part of the Treatment Order was provisionally cancelled and he was further remanded in custody.
The Crown has now applied for cancellation of the Treatment Order and the imposition of the sentence that was imposed on him.
In sentencing Mr Connors, it was noted that he had a “shocking criminal record” with a total of 73 offences on his record [redacted].
The majority of his offences as an adult are of dishonestly riding in or driving a motor vehicle without the owner’s consent. While in custody, he has been subject to 11 formal discipline actions, although six were for unauthorised smoking.
In its application for cancellation, the Crown has relied on the fact that Mr Connors is facing a number of fresh charges. Thus, his arrest was for charges of driving whilst disqualified, dishonestly driving in a motor vehicle without the owner’s consent and dishonestly taking a motor vehicle without consent. The Statement of Facts provided by police was annexed to an affidavit filed in support of the Crown’s application. It showed a strong prosecution case.
It alleges that Mr Connors obtained the keys to a motor vehicle from the house of the family of one of his close friends and that he drove it from the residence via John Gorton Drive in Coombs, ACT, the Cotter Road, Streeton Drive, Hindmarsh Drive and Namatjira Drive, where he parked the vehicle and fell asleep in it. Police allege that they tried to wake Mr Connors and they say that he appeared to be under the influence of a substance as he was, they said, moving erratically and sweating profusely.
ACT Police are further investigating the possibility of additional charges, including failing to stop when requested by police, a possession of prohibited drugs on 21 February 2022, as well as other incidents for which the precise alleged offences are not clear. Police say that there are ongoing investigations into several aggravated burglaries. He has also been charged with 18 offences in New South Wales, namely armed robbery, robbery, two offences of aggravated breaking, entering, and stealing, four offences of intimidation, dangerous driving, knowingly being carried in a stolen conveyance, stealing a motor vehicle and six offences of larceny. They are alleged to have been committed on 3, 4 and 5 January 2021. Again, the police Statement of Facts was annexed to the affidavit in support of the Crown’s application and showed a strong prosecution case.
When originally sentencing Mr Connors, the Court noted that Mr Connors had suffered significant childhood disadvantage. This included seeing and experiencing family violence perpetrated against his mother, physical abuse inflicted on him and exposure to drug use from an early age, all leading to a degree of instability in his home life causing him to leave home. He had a difficult time at school, was regarded as a troublemaker and got into fights. He was finally expelled at age 12, not returning to school thereafter. He also experienced some traumatic events, the suicide of a cousin with whom he was very close and the death of his father in a terrible accident: see R v Connors.
Mr Connors wrote a letter to the Court. He apologised for “ruining a good chance at a normal life.” He says that he regrets all he has done and also regrets that he did not take the Court proceedings seriously when it made a Treatment Order. He says that, “since being back in gaol, I have sat down and thought about my actions and my wrongdoing.” He claims, “it is not me,” and he wants to return to Canberra Recovery Services. He wants to be a father to his son and accepted that he has failed by “not being there for him.” He says that he has “had enough of gaol” and just wants “a normal life.” He wants to change. He asks for a second chance. He also says that he now “can see how quick you can go back to gaol.” He expresses that he is “truly sorry.”
Unfortunately, it is necessary to treat the plea in the letter cautiously since he had also written a letter to the Court when originally sentenced. The letter was summarised in the sentencing remarks in R v Connors at [121] as follows:
He accepted responsibility for the choices he had made to use drugs and commit crime, though he explained some of the motivations, which can be understood if not acceptable. His use of drugs is central, though the grief and childhood experience do loom large. He acknowledges that “my mother raised me better.” He expressed insight into his offending and pointed to the very strong motivation of greater involvement with his son after rehabilitation. He was especially conscious of his experience with his absent father and violent stepfather and wished to ensure his son received better parenting.
The words are important and do show insight and commitment, but the recent events might suggest that he has been incapable so far of translating them into action.
It is, nevertheless, necessary to put the incident into some context. It seems that he was motivated at least initially by the injuries suffered by his brother and, of course, in that context he had experienced the traumatic loss of a cousin to whom he was so close that he called him brother. Mr Connors has been accepted to return to Canberra Recovery Services to then begin the residential drug rehabilitation program there.
The Application
The Crown application is made under s 80ZE(4) of the Sentencing Act. The Crown specifically relies on the grounds set out in s 80ZE(1)(c), (d) and (f) of the Sentencing Act, which are the following terms:
(c) the offender is unwilling or unlikely to comply with the condition of the offender’s treatment order; or
(d) the continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order; or
…
(f) the offender poses an unacceptable risk to the safety or welfare of a person.
Consideration has been given to the approach that should be taken to such an application in R v Tonna (No 2) [2020] ACTSC 362. It does not need to be repeated what is there said, but the approach to that application as there described is the approach that will be taken here.
The application was opposed by Mr Connors.
In brief, the application should be considered as including a review of the Treatment Order under s 80ZH of the Sentencing Act including, in particular, the opportunity given under s 80ZH(4) to amend the Treatment Order so that the cause at least of some of the grounds justifying cancellation can be removed or addressed.
Further, one ground is sufficient to enable to the Court to proceed 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. Of course, the discretion must be exercised judicially.
Consideration
For the first ground, the Crown points out that Mr Connors breached the Treatment Order on the day it was made, depending on whether he had authority to leave Canberra Recovery Services, or the next day when he did not return. He was at large in the community for three days before he was arrested.
The Crown submits that, given his conduct, further opportunities for rehabilitation are unlikely to succeed, Mr Connors showing “a disregard for the Orders and the faith that has been put forward to him.”
The Crown further points out that the further charges will likely result in a term of imprisonment, which, under s 80ZD(3) of the Sentencing Act, would require the Treatment Order to be cancelled. The Crown also pointed out that there are further offences being investigated.
Ms C Duffy, counsel for Mr Connors, pointed out in her submissions, however, that this may be unfair given that Mr Connors has not really had an opportunity to engage in rehabilitation. The whole context needs to be addressed, including the personal history of Mr Connors.
The quick departure is relevant, for it does show a level of disregard to the Treatment Order, but the context, as noted above (at [13]-[15]), around the immediate cause of his departure is relevant.
While commitment was expressed by him and is highly relevant, it also has to be recognised that an entrenched drug dependency and criminal mindset is not going to disappear overnight.
That is evidenced in the structure of the regime, under the Treatment Order. Thus, for example, the further use of illicit drugs does not necessarily lead to the automatic cancellation of the Treatment Order or even an automatic period of custody as a sanction. There is a sanction, and it is prohibited to take drugs while under a Treatment Order, but it does not inevitably lead in the Behaviour Protocol to the cancellation of a Treatment Order until the third use in Phase three.
What Mr Connors did is not acceptable, nor is it a trivial breach. Indeed, he has now spent 14 days in custody as a consequence. It is, however, not inevitable that it discloses that Mr Connors is unwilling or unlikely to comply with a condition of the Treatment Order. See, for example, R v Crawford (No 3) [2020] ACTSC 369. It does, however, require careful consideration to determine that he is still likely and willing to comply.
The letter to the Court does show that he has taken the time in custody to reflect on his situation and expresses a renewed commitment to rehabilitation. When his behaviour is seen in the context of his personal history of significant childhood deprivation and his trauma, it is to be accepted that it will take some effort on his part to be able to address the causes of his drug dependency and criminal activity. It is accepted that the letter must be approached with caution, and that is how it has been approached. While further offending would also be of concern, this is a more complicated issue. For him to have committed further offences is very troubling, but more a matter relevant to the second ground, not this one, particularly given that his rehabilitation had not really commenced and so his criminal mindset has not been challenged or addressed. It will be dealt with below under that ground. This ground has not been made out.
The second ground is also a challenging one. The objects of the Treatment Order are set out in s 80O of the Sentencing Act.
The particular object to which the Crown refers is at paragraph (a), namely that the object of making a Treatment Order is, inter alia, to “facilitate the rehabilitation of an offender by providing a judicially supervised therapeutically oriented and integrated treatment regime.”
The Crown relied not just on his departure from Canberra Recovery Services and the failure to report, but the context provided by his history, as well as the offending of which he is now been accused.
Ms Duffy submitted that it was too premature really to assess this and it needs a reasonable period of attendance at rehabilitation to assess it.
The Crown relied on various matters. There was of course, his departure from Canberra Recovery Services. As already indicated this, in part contested, in part understandable in the context of his experience of traumatic losses in his life, so as to mean that it was not just a delinquent event, but a human concern for a brother with the sensitivity of whose wellbeing he would, given his history of tragic losses, be likely to be more sensitive and need to address.
While he did not report to Corrective Services again, he was able to be contacted, though that is by no means adequate, since the onus was on him to make the contact, not rely on the good offices of a member of the Treatment and Supervision Team (s 80M of the Sentencing Act) to take the initiative, which, because of their commitment to the successful working of the Treatment Order regime, they are committed.
Then, he did not attend Court as directed, which is a further breach of the Treatment Order, and further evidence of him evading responsibility. This has some resonance with the comment made in the Drug and Alcohol Treatment Assessment of ACT Corrective Services, namely that, “Mr Connors compliance while subject to the supervision of this service to date has been considered to be unsatisfactory.”
While that was held to be of significance in R v Lyons (No 2) [2021] ACTSC 11 at [26], there is a difference. There Mr Lyons was discharged from Canberra Recovery Services. He then failed to report to ACT Corrective Services and was later arrested. When he was arrested, he was and charged with committing further offences.
Ultimately, the Treatment Order for Mr Lyons was cancelled. In large part however, that was because Mr Lyons could not return to Canberra Recovery Services, there was no other residential drug rehabilitation placement for him, and he could not return to the community for he had no stable accommodation.
This is not the position here, where Mr Connors can return to Canberra Recovery Services.
The question of the further allegations of offending is problematic. They are at this stage, only allegations. No finding of guilt, either by plea of guilty or conviction, has been made. It is accepted that the evidence collected by police is strong, but there is still no finding of guilt. It would be unfair to proceed as if such a finding had been made, though that finding may well come even by ultimately a plea of guilty by Mr Connors. As Ms Duffy pointed out, that will be some time away and there is plenty of time for Mr Connors to make progress with his rehabilitation, a relevant factor in any future sentencing in any event.
As to the New South Wales offences, the general approach applies, namely that a jurisdiction is entitled to complete the criminal processes in each jurisdiction before an accused person is extradited to another jurisdiction: see R v Pelecky [2020] ACTSC 246 at [25]-[28]. They are, however, serious offences, but, again, have not yet been proved, no matter how strong the evidence may seem. Until there is a finding of guilt, they are no stronger than merely allegations. It might be suggested that, given these offences are likely to result in a finding of guilt and a sentence to a lengthy term of imprisonment, an opportunity for further rehabilitation would be wasted. It is, however, not accepted that any such period of rehabilitation would be wasted. Of course, there are no guarantees, and it may ultimately be wasted, but, that does not mean it is not worth trying. Were that so, the whole Treatment Order regime would be abandoned. The only value that the alleged offences have is in risk assessment, as for the third ground of the Crown’s application. See R v Lyons(No 2) at [27].
In the meantime, the second ground has not been made out to the relevant degree.
Finally, the third ground is that Mr Connors poses an unacceptable risk to the safety or welfare of a person. As noted in R v Dowling (No 3) [2021] ACTSC 210 at [41], that does not require a specific person to be identified, but rather is in regard to any member of the public. The Crown relies on Mr Connors’ extensive criminal history, to which reference has already been made.
It is a very bad one, though, until 2021, it was getting less serious [redacted]. He is alleged to have committed some very serious offences in January 2021. It is accepted that, although not being convicted of them and that they remain as allegations, the strong prosecution case can mean that the risk is more than merely academic. One matter of curiosity is that, according to the Court records, Mr Connors was committing offences in Canberra on 3 January 2021, the day when the New South Wales Police allege that he was committing offences in Cargo and Orange. While that is not impossible, the three towns being within driving distance in a day, the offences in New South Wales were alleged to have been committed in Cargo between 10:30 am and 11 am and in Orange between 6 pm and 6:20 pm, making it very difficult for him to have come to Canberra, committed offences, and then returned to Orange.
Nevertheless, the most important point is that, within three days after he left Canberra Recovery Services, Mr Connors was found and arrested by police and charged with offences for which the evidence is strong.
There is a real risk that, were the Treatment Order not to be cancelled, Mr Connors will, if he absconds again from Canberra Recovery Services, be likely to commit further offences. It is accepted that Mr Connors will pose a risk were he to be released, but it is not an unacceptable risk, given the nature and circumstances of the allege further offending, his opportunity to reflect while he has been in custody, and the results of that reflection. This ground is not made out.
Disposition
None of the grounds on which the Crown relies in its application for cancellation of the Treatment Order have been made out. The question is whether some amendment is required to the Treatment Order.
It appears that Mr Connors has used the time, since being further in custody, to reflect on his situation and the bleak future he faces if he continues to behave as he has. He has the handicap that some of the sentiments were expressed prior to sentencing less than a month ago, and yet he absconded and committed further offences.
He is now, however, facing a maximum of four years imprisonment when he will see little of his son and thereafter even less if he were to be extradited to New South Wales where, as an unrehabilitated offender, he is likely, if found guilty of the offences with which he has been charged, to receive a sentence much longer than that which he is now to serve here.
While the assessment of risk and the commission of offences is a very problematic issue and the Court can be wildly wrong (R v Crawford (No 4) [2021] ACTSC 209), the current situation for Mr Connors is likely to mean that he now better understands the need to engage fully and continuously with rehabilitation.
In these circumstances, it is reasonable to reinstate the suspension of the custodial part of the Treatment Order.
It must be accepted that this may change if the position with the further charges also changes, but, at this stage, it seems that at least until 16 March 2022, Mr Connors has a likelihood of being able to engage in the intensive drug rehabilitation of a Treatment Order and will do so.
Accordingly, the application for cancellation of the Treatment Order is dismissed and the suspension of the custodial part of the Treatment Order is reinstated. Mr Connors is directed to return to Canberra Recovery Services by 1:00pm today and re-admit himself to the facility in accordance with the Treatment Order. He is directed to appear in this Court by audio visual link on 12:30am on Friday 18 March 2020.
Orders
The orders of the Court are that:
1. The Application dated 2 March 2022 for cancellation for the Drug and Alcohol Treatment Order made on 15 February 2022 be dismissed.
2. The suspension of imprisonment under the custodial part of the Drug and Alcohol Treatment Order made on 15 February 2022 be reinstated.
3. Stanley Shane Connors proceed directly from the Court precincts today to Canberra Recovery Services, Fyshwick, to arrive no later than 1:00pm today, 7 March 2022.
4. Stanley Shane Connors appear in Court for Review of the Treatment Order on 18 March 2022 at 12:30 pm by electronic means.
[His Honour spoke directly to Mr Connors]
Mr Connors, it is difficult for me to understand your situation. I do not walk in your shoes. What you have experienced and your life, and how you see it is very different, but you also live in our community. That is our, not my, community. As you say to me, the behaviour that you have been committing and the way in which you have behaved is simply unacceptable. You are facing a long period of imprisonment. It will be moderated if you are able to rehabilitate yourself. It will be better for you. It is really the only chance you will have of being the father to your son that you did not have, and your son deserves that. You have got to keep that in the front of your mind.
You are very lucky because I am giving you a further chance. What the Crown said was all very true. It is problematic, and things are not going to be easy for you because there will be further challenges with offences and so on, but you have got to learn to do it by the rules. Do the right thing. Do it by the rules.
If you had offended, and I am not saying you have as it is only an allegation at the moment, but you know, whether you have or not, if you had done those things, they were pretty mean. To go to your mate’s place and pinch a car, if that is what you did, that is pretty mean. You have got to really start being careful with people. They are people like you. You would not like that done to you. So, let us concentrate on the drugs. That is what we need to do. Understand the rules so you do not break them. Commit yourself to it. It will be hard, but it is harder in prison. You know that is not where you want to be. So, let us try and get out of that and work hard on it.
Come and see me if there are problems, let us talk about it. If you needed to go and see your brother, I am human. I would have sent you off there. We would have made arrangements for it. I cannot do everything. There will be sometimes when I will say no. I might even sometimes have to send you back to prison, depending on what you do, but I think you have got it in you to do this.
Be honest with yourself. There are no excuses. You can make all sorts of excuses for yourself so that you do not feel bad, but be honest and you will actually feel better. Hopefully this will work.
You are off to CRS this afternoon. Stay there. I will see you on the screen over there on Friday 18 March 2022 and you can tell me then hopefully that you are settling in. It is hard but you will do it, and you will remain committed. Good luck. Do the right thing.
| I certify that the preceding seventy eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: J Liu Date: |
8
1