R v Crawford (No 2)

[2020] ACTSC 367

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Crawford (No 2)
Citation:	[2020] ACTSC 367
Hearing Date:	16 October 2020
Decision Date:	16 October 2020
Before:	Refshauge AJ

Decision:	1.	The proposed amendment to the Drug and Alcohol Treatment Order be refused.
2.	Mr Crawford be remanded in custody until 21 October 2020, to consider whether the Drug and Alcohol Treatment Order should be revoked, or whether some other order should thereafter be made.

Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to Amend Drug and Alcohol Treatment Order – proximity of hearing date to application to amend drug and alcohol treatment order – failure to comply with treatment order obligations – availability of residential rehabilitation – application to amend drug and alcohol treatment
order refused
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12A, 80ZJ
Cases Cited:	Burton v The Queen (1974) 3 ACTR 77 R v Chatfield (No 2) [2017] ACTSC 397 Saga v Reid and Collett [2010] ACTSC 59
Parties:	The Queen (Crown)
Peter Michael Crawford (Participant)
Representation:	Counsel
H Roberts (Crown) T Kelliher (Participant)
Solicitors
ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Participant)
File Numbers:	SCC 349 of 2019; SCC 170 of 2020
REFSHAUGE AJ:

1.       On 7 September 2020, Peter Crawford was convicted of 15 charges, mainly dishonesty offences including such serious offences as aggravated burglary. He has a serious and extensive criminal history.

2.       He was sentenced to four years’ imprisonment, but that was suspended when I made

a Drug and Alcohol Treatment Order (a Treatment Order), under s 12A of the Crimes
(Sentencing) Act 2005 (ACT) (the Sentencing Act).

3.       Part of the treatment and supervision provisions in the Treatment Order were that he admit himself to the Karralika Therapeutic Community (Karralika), and to participate in the program and complete it. He was to remain in that facility and comply with the directions of the facility and the program until it was completed.

4. On 16 September 2020, he left Karralika after an argument, apparently about smoking. The Treatment Order required him to report to ACT Corrective Services by 4:00 pm on the next business day after he exited from Karralika. That would have been on 17 September 2020. He did not report. A warrant was issued under s 80ZJ of the Sentencing Act.

5.       Mr Crawford was not arrested for some considerable time. He admitted himself to Calvary Hospital, suffering some problems, and was subject to surgery thereafter. He appears to have been admitted to Calvary Hospital on or around 5 October 2020. At

the time, he was described by staff at the Intensive Care Unit of the hospital as ‘highly
intoxicated’, on what was described to be ‘a cocktail of illicit substances’.

6.       As a result of advice received that he was in Calvary Hospital, Mr Crawford was then arrested by police on 7 October 2020, under the warrant.

7.       On 9 October 2020, I remanded him in custody in a “bedside court”, but listed the

Treatment Order for review on 16 October 2020. At that time, the Crown also foreshadowed an application to revoke the Treatment Order. That application has been listed for hearing on 21 October 2020.

8.       Mr Crawford now seeks an amendment to the Treatment Order so that he can live with his mother in the community until the hearing of the application to revoke the Treatment Order. In support of that application, he says that his mother will allow him to live with her and he provided her address for that purpose. The information that his mother was prepared to have him live with her was confirmed by ACT Corrective Services.

9.       His mother, however, did not come to Court, despite me suggesting that she do so on 9 October 2020. That suggestion was made while Mr Crawford was in hospital and I do not hold him specifically or significantly accountable for the failure of his mother to appear. The difficulty, however, is that while I accept that she is willing to have him in the home, it makes her unable to give the necessary relevant undertakings that I would require of her, were she to be providing accommodation for him. That, in itself, would not necessarily deny him an opportunity to live with her, but it is a factor that is relevant.

10.     In particular, it is important to understand that this opportunity would give him the chance to show how he would behave in the community and to show that he is capable of complying with the conditions and orders of the Court, unlike his previous history. It would also show that he is committed to his rehabilitation, and it is relevant that this was said to me particularly after surgery, which he found very distressing and reconfirmed his commitment to the rehabilitation. As his counsel in helpful submissions

to me described it, this would provide some “proof in the pudding”.

11.     I am also aware, however, that it is only a few days between now and the hearing. While this is an application for a variation of the Treatment Order, there is some similarity to bail applications and I am aware of the decision of Fox J, in Burton v The Queen (1974) 3 ACTR 77, where his Honour pointed out that the proximity of the hearing date to any bail application is relevant and will usually be a negative factor in that decision.

12.     Importantly, Mr Crawford has given no explanation about what he did in the 21 days between leaving Karralika and admitting himself to Calvary Hospital. His only excuse was that he was afraid of going back to prison for the balance of the four years, which was the term of the imprisonment which I imposed. That is entirely understandable, and one can understand that a person in Mr Crawford's position would, as time goes on, find it more and more difficult to present himself to the authorities even though that is his obligation.

13.     Nevertheless, that is not acceptable. Indeed, while there is a risk, of course, of Mr Crawford having the Treatment Order cancelled and the balance of the sentence of imprisonment imposed, that becomes almost inevitable when he fails to comply with his obligations, and then comes before the Court explaining what had happened and seeking some leniency because of the difficulties he had appreciated.

14.     There is, in the time that he has been at large, some suggestions in material that I received in an ACT Police Bail Consideration Form, that he may have engaged in illegal activity during that time. That form was admitted into evidence before me, but while the matters in it were not directly challenged, I was nevertheless urged to treat them with some caution. Reference was made to the following comments by Penfold J in R v Chatfield (No 2) [2017] ACTSC 397, where her Honour said at [25]:

A Bail Consideration Form provides police advice about issues relevant to the granting of bail. In this case at least, it was clear that much of the information was not backed up by

sworn witness statements or any equivalent evidence, but reflected mainly “information reports” (being reports to police made by people who may not be willing to make, or at least

have not made, sworn statements), as well as statements of police suspicions. To that extent, one must be careful about relying on such material as a ground for refusing bail, and counsel for Mr Chatfield attempted to discredit much of the material in the form by pointing out the absence of supporting evidence, and that one part of the form seemed to involve a police misunderstanding or misrepresentation of the incident concerned.

15.     That is a helpful assessment of the way in which one should approach these allegations and matters. Nevertheless, it is balanced on the one hand by an absence of explanation of Mr Crawford's activities while he was in the community. There were

some suggestions in at least one of the issues that was raised, about Mr Crawford’s

potential connection with the stealing of a bag from a job site and the use of some credit cards from it, and the driving away of a motor vehicle, in which Mr Crawford's presence was suggested. I will approach what was said in the Form with considerable caution, but I note that while these allegations are there and there is some apparent possible connection with Mr Crawford, there is also an ongoing investigation and, of course, that is relevant. Nevertheless, again, by itself, this would not be enough to refuse bail if there were strong factors supporting amending the Treatment Order to allow him to be in the community, at least for a time.

16.     As I indicated, Mr Crawford has agreed to rehabilitation. He has been offered and has accepted Buvidal injections and I note that those can be administered to him in the Alexander Maconochie Centre or in the community at the Canberra Hospital. I also note that he has been assessed as suitable to engage in the Canberra Recovery Services Residential Program and he says that he is keen to engage. Indeed, as was pointed out by Consultant Neuropsychologist Dr Sally McSwiggan, in her report which was admitted in the sentencing proceedings, intensive residential rehabilitation would

be ‘optimum’ for a man in Mr Crawford's situation so far as rehabilitation is concerned.

I note that that was one of the reasons why he was granted a Treatment Order and sent immediately from custody to Karralika.

17.     Nevertheless, none of that makes it necessarily helpful for him to be in the community. Indeed, his presence in the community would not necessarily help me to show that he would be able, at this time, to comply with the conditions of residential rehabilitation. He also has, as was clearly pointed out, a risk of incarceration for approximately four years, and that was a significant factor that was submitted as being a deterrent for him from engaging in activities of an illegal nature in the meantime. I do note, however, that it clearly did not deter him from leaving Karralika without advising anyone about his departure, either in Karralika or in ACT Corrective Services, or indeed anyone else, nor did it result in him not failing to come forward.

18.     The Crown also relied upon the likelihood that the Treatment Order would be cancelled. I am not convinced that there is such a likelihood that it will be cancelled, and I therefore cannot take that too much into account. Indeed, it is not entirely relevant as to whether the Treatment Order should be varied, although whether the Treatment Order is cancelled or not would depend, in part, upon other factors including the availability of a residential rehabilitation facility to which Mr Crawford could enter directly from custody.

19.     I am aware, and have not yet changed my mind from the expression I gave in Saga v Reid and Collett [2010] ACTSC 59, wherein I said, at [89]:

… 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.

20.     The matter of whether I should vary the Treatment Order at this time is finely balanced. There are strong arguments on both sides. Not without some hesitation, however, I refuse to amend the Treatment Order at this time, and I remand Mr Crawford in custody until 21 October 2020 in order to consider whether the Treatment Order should be revoked, or whether some other order should thereafter be made.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge.

Associate: Samuel Xiang

Date: 9 March 2021