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R v Crawford (No 3)

R v Crawford (No 3)

Case [2020] ACTSC 369 23 October 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Crawford (No 3)
Citation:	[2020] ACTSC 369
Hearing Date:	21 October 2020
DecisionDate:	23 October 2020
Before:	Refshauge AJ
Decision:	1. The Drug and Alcohol Treatment Order of 7 September 2020 be amended by omitting Orders 5 and 6, and substituting Orders 5 and 6 as follows: a. Order 5: Mr Crawford sign an undertaking to comply with the Offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT), from 7 September 2021 to 19 May 2024. b. Order 6: Mr Crawford be ordered to travel from the Court directly to Canberra Recovery Services, to arrive there by 1:00 pm, and to admit himself to that program. 2. Mr Crawford be required to sign an undertaking to comply with the Drug and Alcohol Treatment Order as amended and other obligations under the Crimes (Sentence Administration) Act 2005 (ACT) while the Good Behaviour Orders is in force. 3. Mr Crawford be directed to attend Court on 30 October 2020 at 12:30 pm.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – failure to comply with obligations of drug and alcohol treatment order – unsatisfactory circumstances – 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 – residential rehabilitation facility available – Drug and Alcohol Treatment Order amended
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 12A, 46J, 80ZB, 87ZB(1)(e), 80ZD, 80ZE, 80ZJ, Pt 5.4A Evidence (Closed-Circuit Television) Act 1991 (ACT)
Cases Cited:	Anderson v BYF19 [2019] FCA 1959 Benbrika v The Queen [2010] VSCA 281; 29 VR 593 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Elomar v The Queen [2014] NSWCCA 303; 300 FLR 323 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Kelly v The Queen [2015] ACTCA 35 R v Ashman [2010] ACTSC 45 R v Benbrika [2009] VSC 21 R v Crawford (No 1) [2020] ACTSC 245 R v Crawford (No 2) [2020] ACTSC 367 R v Freestone [2010] ACTSC 87 R v Hinchcliffe [2013] NSWCCA 327 R v Milojevic [2001] NSWCCA 461 R v Niketic [2002] NSWCCA 425 R v Palu [2002] NSWCCA 381;134 A Crim R 174 R v Qutami [2001] NSWCCA 353;127 A Crim R 369 R v Ross [2011] ACTSC 211 R v Ross (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 3 February 2012) R v Scerba (No 2) [2015] ACTSC 359 Saga v Reidand Collett [2010] ACTSC 59
Texts cited:	King, Ryan S and Jill Pasquarella, ‘Drug Courts: A Review of the Evidence’ (Report, The Sentencing Project, April 2009) Mason, Anthony, ‘Mandatory Sentencing Implications for Judicial Independence’…

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 Crawford (No 3)

Details

AGLC: R v Crawford (No 3) [2020] ACTSC 369
Case: [2020] ACTSC 369
Decision Date: 23 October 2020

CaseChat Overview and Summary

In R v Crawford (No 3), the defendant was before the court for failure to comply with the conditions of a Drug and Alcohol Treatment Order. The court was required to decide whether the conditions of the order should be amended and what alternative measures, if any, should be imposed. The matter was heard in the Magistrates Court of the Australian Capital Territory.

The legal issues that the court had to address included whether the defendant had failed to comply with the conditions of the treatment order, whether the continuation of the treatment and supervision order would likely achieve the objects of the order, and whether the defendant posed an unacceptable risk to the safety or welfare of a person in the community. The court also had to consider whether a residential rehabilitation facility was available and whether the defendant was willing or likely to comply with a condition of the order.

The court found that the defendant had failed to comply with the conditions of the treatment order. It concluded that the continuation of the treatment and supervision order would likely not achieve the objects of the order and that the defendant posed an unacceptable risk to the safety or welfare of a person in the community. The court also found that a residential rehabilitation facility was available and that the defendant was unwilling or unlikely to comply with a condition of the order. Accordingly, the court amended the Drug and Alcohol Treatment Order by omitting Orders 5 and 6, and substituting Orders 5 and 6 as set out in the orders. The court also required the defendant to sign an undertaking to comply with the amended Drug and Alcohol Treatment Order and other obligations under the Crimes (Sentence Administration) Act 2005 (ACT) while the Good Behaviour Order is in force. The defendant was also directed to attend Court on 30 October 2020 at 12:30 pm.

Orders

Orders of the court

1. The Drug and Alcohol Treatment Order of 7 September 2020 be amended by omitting Orders 5 and 6, and substituting Orders 5 and 6 as follows:

a. Order 5: Mr Crawford sign an undertaking to comply with the Offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT), from 7 September 2021 to 19 May 2024.

b. Order 6: Mr Crawford be ordered to travel from the Court directly to Canberra Recovery Services, to arrive there by 1:00 pm, and to admit himself to that program.

2. Mr Crawford be required to sign an undertaking to comply with the Drug and Alcohol Treatment Order as amended and other obligations under the Crimes (Sentence Administration) Act 2005 (ACT) while the Good Behaviour Orders is in force.

3. Mr Crawford be directed to attend Court on 30 October 2020 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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Citations

AGLC Citation

R v Crawford (No 3) [2020] ACTSC 369

Most Recent Citation

R v Reid (No 2) [2021] ACTSC 281

Cases citing this decision · 16 of 16 shown

R v Rogers (No 2)
[2023] ACTSC 5 Para 17

…t on urinalysis, or other breaches of the Behaviour Protocol established for the List. Sanctions are then imposed, for which, see R v Crawford (No 3) [2020] ACTSC 369 at [28]. Nevertheless, the sanctions may be removed for excellent participation. A participant cannot graduate to the next phase or graduate from the…
R v Peric (No 2); R v Williams (No 2)
[2022] ACTSC 277 Para 1

…he use of drugs or alcohol on which they were dependent. See, for example, R v Antonovic (No 3) [2021] ACTSC 338 at [1]–[8] and R v Crawford (No 3) [2020] ACTSC 369 at [1]–[6].…
R v Fry (No 2)
[2022] ACTSC 389 Para 1

…he had accrued sanctions of eight points through three occasions of drug use and other matters. These sanctions are explained in R v Crawford (No 3) [2020] ACTSC 369 at [28]. A point represents one day in custody, but custody does not usually have to be served until seven points are accrued. Points can be removed…
R v Winters (No 2)
[2022] ACTSC 378 Para 2

…s, 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…
R v Winters (No 2)
[2022] ACTSC 377 Para 2

…s, 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…
R v Connors (No 2)
[2022] ACTSC 384 Para 1

…e 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.…
R v Monaghan (No 2)
[2021] ACTSC 358 Para 27

…ances, 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 (…
R v Coleman (No 3)
[2021] ACTSC 357

…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…
R v Po'oi (No 3)
[2021] ACTSC 354 Para 27

…ances, 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 (…
R v Pelecky (No 4)
[2021] ACTSC 343 Para 27

…ances, 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 (…
R v Massey (No 4)
[2021] ACTSC 211 Para 1

…ances, 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 (…
R v Crawford (No 4)
[2021] ACTSC 209 Para 1

…provide for Mr Crawford's admission to the Residential Drug Rehabilitation Program at Canberra Recovery Services in Fyshwick: see R v Crawford (No 3) [2020] ACTSC 369 at [76].…
R v Dowling (No 3)
[2021] ACTSC 210 Para 1

…to the meaning of the provisions of s 80ZE(1)(b) of the Sentencing Act , which is the first ground on which the Crown relies, in R v Crawford (No 3) [2020] ACTSC 369 at [35]-[36] and came to the view that it means that Ms Dowling must, through physical or actual incapacity, be unable to comply with the Treatment O…
R v Coleman
[2021] ACTSC 349 Para 1

…to commit crimes, which policies and programs are generally based on a harm minimisation policy. A snapshot of this history is in R v Crawford (No 3) [2020] ACTSC 369 at [4]-[5].…
R v Antonovic (No 4)
[2021] ACTSC 280 Para 1

…rehabilitation mandated by a Treatment Order. That, however, does not seem to fall within this ground which, as was explained in R v Crawford (No 3) [2020] ACTSC 369 at [35], refers to actual incapacity.…
R v Reid (No 2)
[2021] ACTSC 281 Para 1

…The first ground is that the offender will be unable to comply with a condition of the Treatment Order. I pointed out in R v Crawford (No 3) [2020] ACTSC 369 at [35], that this ground refers to an actual incapacity, rather than an unwillingness or perhaps a refusal to comply.…

View all 16 citing cases →

Cases cited in this decision · 19 of 19 shown

R v Crawford (No 2)
[2020] ACTSC 367 Para 1

…A bail application made on 16 October 2020 was refused ( R v Crawford (No 2) [2020] ACTSC 367) . The Crown has now applied for cancellation of the Treatment Order.…
R v Crawford (No 1)
[2020] ACTSC 245 Para 1

…When sentencing Mr Crawford, as I explained in R v Crawford (No 1) [2020] ACTSC 245 (at [45]-[46]), Mr Crawford started using alcohol and illicit drugs at a relatively early age and has mainly used heroin and amphetamines. He continued to use them until relatively recently when he was incarcerated. It is fair to sa…
Anderson v BYF19
[2019] FCA 1959 Para 1

…], R v Hinchcliffe [2013] NSWCCA 327 at [122]-[126] and [237]-[248], Elomar v The Queen [2014] NSWCCA 303; 300 FLR 323 at [817], and Anderson v BYF19 [2019] FCA 1959 at [69]).…
R v Scerba (No 2)
[2015] ACTSC 359 Para 1

…ject to clinical judgement and often, especially in the case of psychologists, subject to clinically validated testing methods (see R v Scerba (No 2) [2015] ACTSC 359 at [92]). That is indeed the case with the reports of both Mr Visser and Dr McSwiggan, who indicated that they had administered testing.…
Kelly v The Queen
[2015] ACTCA 35 Para 1

…ance by Mr Crawford for such rehabilitation, we do know from the relevant research that mandated rehabilitation can be successful ( Kelly v The Queen [2015] ACTCA 35 at [40]).…
Elomar v R
[2014] NSWCCA 303 Para 1

…[148], Benbrika v The Queen [2010] VSCA 281; 29 VR 593 at [586], R v Hinchcliffe [2013] NSWCCA 327 at [122]-[126] and [237]-[248], Elomar v The Queen [2014] NSWCCA 303; 300 FLR 323 at [817], and Anderson v BYF19 [2019] FCA 1959 at [69]).…
R v Hinchliffe
[2013] NSWCCA 327 Para 1

…R v Niketic [2002] NSWCCA 425 at [4], R v Benbrika [2009] VSC 21 at [148], Benbrika v The Queen [2010] VSCA 281; 29 VR 593 at [586], R v Hinchcliffe [2013] NSWCCA 327 at [122]-[126] and [237]-[248], Elomar v The Queen [2014] NSWCCA 303; 300 FLR 323 at [817], and Anderson v BYF19 [2019] FCA 1959 at [69]).…
Bugmy v The Queen
[2013] HCA 37 Para 1

…blems began from the very beginning of his life. Such a disadvantaged childhood justifies significant consideration in sentencing ( Bugmy v The Queen [2013] HCA 37; 249 CLR 571). This clearly led to his early use of illicit drugs and alcohol ( R v Crawford (No 1) ).…
R v Ross
[2011] ACTSC 211 Para 1

…e, as committed by Mr Crawford, does not render him irredeemable is certainly possible. For example, Mr Kelliher referred to the decision in R v Ross [2011] ACTSC 211 at [17] where, before quoting the passage in Saga v Reid and Collett set out above (at [28]), I referred to the failure of Mr Ross to comply with the…
Hogan v Hinch
[2011] HCA 4 Para 1

…In the words of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:…
Benbrika v The Queen
[2010] VSCA 281 Para 1

…R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [40], R v Niketic [2002] NSWCCA 425 at [4], R v Benbrika [2009] VSC 21 at [148], Benbrika v The Queen [2010] VSCA 281; 29 VR 593 at [586], R v Hinchcliffe [2013] NSWCCA 327 at [122]-[126] and [237]-[248], Elomar v The Queen [2014] NSWCCA 303; 300 FLR 323 at [817], an…
R v John Freestone
[2010] ACTSC 87 Para 1

…hat differently ( R v Ashman [2010] ACTSC 45 at [27]). Indeed, there may, in some cases, be corroboration of the offender's statement ( R v Freestone [2010] ACTSC 87 at [35]-[36]).…
Saga v Reid
[2010] ACTSC 59 Para 1

…uent imposition of all or part of the original sentence or, indeed, of re-sentencing. They therefore recognise what I said in Saga v Reid and Collett [2010] ACTSC 59, at [89]:…
R v Ashman
[2010] ACTSC 45 Para 1

…ut that the statutory regime for preparing Pre-Sentence Reports in this jurisdiction may justify them being treated somewhat differently ( R v Ashman [2010] ACTSC 45 at [27]). Indeed, there may, in some cases, be corroboration of the offender's statement ( R v Freestone [2010] ACTSC 87 at [35]-[36]).…
R v Benbrika
[2009] VSC 21 Para 1

…] NSWCCA 353; 127 A Crim R 369 at [58]-[59], R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [40], R v Niketic [2002] NSWCCA 425 at [4], R v Benbrika [2009] VSC 21 at [148], Benbrika v The Queen [2010] VSCA 281; 29 VR 593 at [586], R v Hinchcliffe [2013] NSWCCA 327 at [122]-[126] and [237]-[248], Elomar v The Qu…
R v Niketic
[2002] NSWCCA 425 Para 1

…o such statements (See R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58]-[59], R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [40], R v Niketic [2002] NSWCCA 425 at [4], R v Benbrika [2009] VSC 21 at [148], Benbrika v The Queen [2010] VSCA 281; 29 VR 593 at [586], R v Hinchcliffe [2013] NSWCCA 327 at [122]-[12…
R v Palu
[2002] NSWCCA 381 Para 1

…body of authority requires that limited weight be given to such statements (See R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58]-[59], R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [40], R v Niketic [2002] NSWCCA 425 at [4], R v Benbrika [2009] VSC 21 at [148], Benbrika v The Queen [2010] VSCA 281; 29 VR 593…
Regina v Milojevic
[2001] NSWCCA 461 Para 1

…iven to the reports and opinions when tendered, that is, to those statements in which the statements of the offender are contained (see R v Milojevic [2001] NSWCCA 461 at [19]).…
R v Qutami
[2001] NSWCCA 353 Para 1

…include subjecting him to cross-examination, a significant body of authority requires that limited weight be given to such statements (See R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58]-[59], R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [40], R v Niketic [2002] NSWCCA 425 at [4], R v Benbrika [2009] VSC 2…

Legislation cited in this decision · 2

Crimes (Sentencing) Act 2005 (ACT)
12A, 46J, 80ZB, 80ZD, 80ZE, 80ZJ, 87ZB(1... 8 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
85 2 mentions (from Para 1)