R v Dowling (No 3)
[2021] ACTSC 210
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Dowling (No 3) |
Citation: | [2021] ACTSC 210 |
Hearing Date(s): | 21 May 2021, 27 May 2021 and 22 June 2021 |
DecisionDate: | 25 June 2021 |
Before: | Refshauge AJ |
Decision: | 1. The cancellation of the Drug and Alcohol Treatment Order, made on 6 April 2021 and amended on 23 April 2021, be confirmed. 2. The convictions and sentences imposed on 6 April 2021 for the offences to which Akira Dowling has plead guilty be confirmed. 3. The sentences imposed on 6 April 2021 be hereby imposed and it be declared that they commence on 5 September 2020 and end on 5 September 2024 to take into account pre-sentence custody, the period spent in custody under the treatment and supervision part of the Drug and Alcohol Treatment Order and the period spent in custody after the cancellation of the Drug and Alcohol Treatment Order. 4. A non-parole period of 15 months be set, to commence on 5 September 2020 and end on 4 November 2021. 5. The Good Behaviour Order under the Drug and Alcohol Treatment Order on 6 April 2021 be cancelled. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – Rehabilitation – Drug and Alcohol Treatment Order – Cancellation – Impose original sentence – Resentencing |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 65, 80O, 80ZE Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) |
Cases Cited: | R v Antonovic (No 4) [2021] ACTSC 280 R v Charles (No 2) [2020] ACTSC 366 R v Crawford (No 1) [2020] ACTSC 245 R v Tonna (No 2) [2020] ACTSC 362 |
Parties: | The Queen ( Crown) Akira Dowling ( Offender) |
Representation: | Counsel M Lucero ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecution ( Crown) Legal Aid ACT ( Offender) | |
File Number(s): | SCC 176 of 2020 SCC 177 of 2020 SCC 7 of 2021 SCC 8 of 2021 |
REFSHAUGE AJ
Introduction
The rehabilitation of offenders who have a dependency on alcohol or other drugs, that a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) seeks to achieve, is challenging and demands much of the participant. A Treatment Order sets out, inter alia, a program designed to facilitate and encourage such rehabilitation.
Nevertheless, the Supreme Court in its Drug and Alcohol Sentencing List does not expect that participants will be able to complete the, often, long period of a Treatment Order without difficulty and has, in its Behaviour Protocol, set out a graduated range of sanctions to be applied to respond to difficulties that warrant them because they undermine the objective of the Treatment Order. It is, however, also important to point out that the Court and its supportive Treatment Order Team will also address all difficulties, including those that do not require a sanction, to try and assist the participant to navigate the rehabilitation process, meet and overcome difficulties and, if at all possible, graduate successfully from the program mandated by the Treatment Order.
This, of course, requires cooperation, an effort by the participant and the Court looks for the continuing commitment of the participant.
Some difficulties, however, constitute such serious breaches of the rules or protocols of the program as to show that the aims of a Treatment Order are unlikely to be achieved and the ultimate sanction must be imposed, namely, cancellation of the Treatment Order and that the participant, in effect, be returned to the ordinary criminal justice system, namely, by imposing the sentence of imprisonment originally imposed, or re‑sentencing the then former participant.
Before me is Akira Dowling. On 6 April 2021, I made a Treatment Order, but on 27 May 2021, I cancelled it. These are my reasons for doing so.
I must also address the consequences of that decision, namely, by imposing the original sentence or re‑sentencing Ms Dowling.
Background
Between March and April 2020 and on 3 November 2020, Ms Dowling committed 23 offences, mainly of dishonesty of varying seriousness. They were offences of burglary, theft, obtaining property by deception, unlawful possession of stolen property, dishonestly driving a motor vehicle without consent, driving a motor vehicle with numberplates for another vehicle and minor theft. Other offences were of attempting to escape lawful custody, being an unlicensed driver, aggravated dangerous driving, failing to give particulars after a collision, driving with a prescribed drug in her oral fluid, failing to stop when directed by police and breaching a bail undertaking.
The conviction for these offences also constituted a breach of a Good Behaviour Order, which I cancelled and re‑sentenced her for the offences of burglary and theft for which that Order was made.
Subsequently, as I note below (at [12]), Ms Dowling breached her bail, which is an additional offence, making it the 24th offence committed prior to sentencing. With the two offences which led to the making of the Good Behaviour Order, which I cancelled, this made 26 offences for which she has to be sentenced.
I do not need to set out the details of these offences or sentences. They are set out in R v Dowling (No 2) [2021] ACTSC 200 at [134]-[160], to which I refer. While many of these offences are serious, they were, on the whole, not particularly serious versions of the offences, though some were more serious than others.
The course of the proceedings were not smooth. Not all of the charges against Ms Dowling were laid at the same time – some in March, some in April and some in June of 2020. On 5 August 2020, she was committed to this Court for sentence and at that time she was in custody.
She was, however, granted bail on 17 September 2020 to attend Lesley's Place Drug and Alcohol Residential and Outreach Service, conducted by Toora Women Inc. Soon after, however, she left there and failed to appear in Court when she was due to attend on 2 October 2020. She did not return to Court until she was arrested on 4 January 2021 and, the next day, she was remanded in custody to appear in this Court on 22 January 2021. She reported that she was pregnant at the time. The proceedings were ultimately listed for sentence on 23 March 2021 and adjourned for imposition of sentence.
As noted above (at [5]), a Treatment Order was then made on 6 April 2021, which required her to undertake a residential drug rehabilitation program at the Karralika Therapeutic Community. She was admitted to the program and, though initially appearing to do well there, as reported in the review on 9 April 2021, she left the facility on 11 April 2021 without telling anyone at the facility or in the Treatment Order Team that she was going to do so.
Later, however, she did make contact with the Karralika Therapeutic Community and a member of the Treatment Order Team. She confirmed that she was concerned that, when I sentenced her, I had told her not to take flight if she did leave the facility and she made arrangements to return to Court on Friday 16 April 2021. She did return to Court and I provisionally cancelled the suspension of the custodial part of the Treatment Order, remanding her in custody for seven days, pending consideration of options available.
On 23 April 2021, I amended the Treatment Order as a placement had been located for Ms Dowling in the Canberra Recovery Services residential drug rehabilitation program from 27 April 2021. The amended Treatment Order required her to admit herself to that program and remain there until she had completed it. She admitted herself to the program, but did not, however, remain there very long, leaving on 29 April 2021, soon after admission, and I issued a warrant for her arrest on the same day. She was arrested on 21 May 2021 and was refused police bail. I remanded her in custody, when she appeared before me on that day, and I listed the proceedings to hear an application by the Crown to cancel the Treatment Order on 27 May 2021. I received an affidavit filed on behalf of the Crown. It was read; the deponent was not required for cross‑examination and no challenge was made to its contents. I then cancelled the Treatment Order, but, at the request of Ms Dowling, the proceedings were adjourned to 22 June 2021 so that inquiries could be made as to an appropriate sentencing disposition.
On 22 June 2021, I heard further submissions and received a letter from a solicitor at the Women's Legal Centre ACT and a Policy of the Alexander Maconochie Centre relating to detainees’ access to young children. I admitted those into evidence and no challenges were made to them. The letter also indicated that efforts were being made to have Ms Dowling transferred to Jacaranda Cottages, a section of the Emu Plains Correctional Centre in New South Wales which accommodates mothers and children. It also suggested that a shorter‑than‑usual non‑parole period would maximise Ms Dowling's opportunity to be with her newborn child, which is due on 22 September 2021.
The Policy of the Alexander Maconochie Centre appears to be a quite enlightened one. It recognises that ‘a strong relationship between the extent and quality of attachment that forms between the mother and child in the earliest years of life benefits longer‑term outcomes for the child’. Thus, ‘facilitating quality mother attachment in the first three years of life is an important strategy in addressing intergenerational disadvantage’, although it ‘does not necessarily have to be with the birth mother’.
The best interests of the child is the primary consideration. A mother seeking to participate in the care and custody program must apply and the application is considered by an advisory committee, which recommends to the Executive Director of ACT Corrective Services whether the application should be approved. If the application is successful, an appropriate care plan is formulated, addressing the needs of both the child and the mother.
There may be competing considerations that lead to an application being refused. I do not set out, even in summary form, the criteria for eligibility, though I do note that one factor is that the applicant does not have alcohol or substance abuse issues that are not being adequately managed in custody and that there is a suitable alternative carer available in the community to whom the child can be taken, if necessary, as a pre-condition. At least one other female detainee is to be nominated as a co‑resident carer to provide assistance and brief respite to the mother.
The Policy also explicitly refers to the possibility of continuing custody at the Jacaranda Cottages if the detainee meets the New South Wales Corrections program entry requirements.
This is a brief summary of some salient features of the Policy and it is neither a complete nor comprehensive summary of it.
Application
The Crown applied under s 80ZE(1) of the Sentencing Act for the cancellation of the Treatment Order. In particular, the application relied on the following grounds, namely:
·Ms Dowling will not be able to comply with a condition of the Treatment Order (s 80ZE(1)(b) of the Sentencing Act);
·Ms Dowling is unwilling or unlikely to comply with a condition of the Treatment Order (s 80ZE(1)(c) of the Sentencing Act);
·The continuation of the treatment and supervision part will not achieve the objects of the Treatment Order (s 80ZE(1)(d) Sentencing Act); and
·Ms Dowling poses an unacceptable risk to the safety or welfare of a person (s 80ZE(1)(f) Sentencing Act).
I have considered the general approach to an application of this kind in R v Tonna (No 2) [2020] ACTSC 362 at [36]-[39]. 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 of at least some of the grounds justifying cancellation are removed or addressed.
In addition, I have given some consideration 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 Order. It appears that there is no evidence of this and the ground was not particularly pressed by the Crown, although it was not formally withdrawn. I do not consider it further.
Consideration
The parties were of great assistance to me in the submissions they made, in the case of the Crown, written and oral submissions and, in the case of Ms Duffy for Ms Dowling, her oral submissions.
The second ground, that Ms Dowling is unwilling or unlikely to comply with a Treatment Order condition, relies on the opportunities given to Ms Dowling and her failure to take advantage of them. In the first place, she left Lesley's Place even before the Treatment Order was made. This was itself a residential drug rehabilitation centre, which I described in R v Dowling (No 1) [2020] ACTSC 374 at [14]. Indeed, as noted in that decision at [6], other circumstances meant that, until she had secured a placement at that facility, I was not prepared to grant her bail. The bail was therefore dependent upon her access to a facility such as this.
Then, despite her departure from it and failure to return to the Court and, for example, seek a bail variation or acknowledge the difficulties that she was having and seek a way to address them, and despite her committing further offences, I gave her the opportunity to be subject to a Treatment Order and engage in further residential drug rehabilitation: see R v Dowling (No 2) at [178]-[183].
She went briefly to the Karralika Therapeutic Community. To her credit, on this occasion, she did return to Court and explained that she was having difficulties and, hence, had left the program. With some misgiving, but, ultimately, after some period in custody to mark the breach of the Treatment Order that her departure from the Karralika Therapeutic Community constituted, I permitted her to go instead to Canberra Recovery Services, another residential drug rehabilitation facility. She left there quite soon after admission. On this occasion, she did not return to Court and I had to issue a warrant for her arrest.
This history suggests that Ms Dowling is finding great difficulty in complying with the need for residential drug rehabilitation. No real explanation has been offered, though on one occasion she has done the right thing by attending Court. To her credit, she did not commit further offences after she absconded on these later occasions.
The Crown also relied on Ms Dowling’s previous failures to comply with Good Behaviour Orders, which she had breached on four occasions earlier: see R v Dowling (No 1) at [2].
I did consider that Ms Dowling's pregnancy may have motivated her to work on her rehabilitation and avoid returning to prison, which would be, at least, a challenging place in which to give birth.
All in all, this history did satisfy me to the requisite standard, namely, on the balance of probabilities, that Ms Dowling was unwilling or unlikely to comply with a condition of the Treatment Order to complete the program of residential drug rehabilitation in the course of the Order.
The third ground, that continuation of the Treatment Order is unlikely to achieve its objects, is similar to the second.
The objects of a Treatment Order are set out in s 80O of the Sentencing Act and include:
(a)to facilitate the rehabilitation of the respondent by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and
…
(e)promote community safety by reducing the level of criminal activity caused by alcohol and drug dependence in offenders.
The Crown relied on both those objects to support this ground.
As to the first object, there is no doubt that, as the Crown submitted, Ms Dowling's behaviour undermined the value of judicial supervision by failing to engage with the Court before she departed from the three residential facilities.
Her brief stay at the facilities also showed a lack of engagement with the therapeutic treatment regime.
Perhaps more fundamentally, Ms Dowling, despite her expressed desire to engage in rehabilitation, did not translate this desire into action and I have no confidence that she is, at this stage, willing or able to overcome her resistance or habitual drug use to commit, actually, to drug rehabilitation.
As to the second object mentioned, I am not completely satisfied that this has been met. While Ms Dowling did, on earlier occasions, when breaching earlier Good Behaviour Orders and when breaching bail by leaving Lesley's Place, commit further offences, there is no evidence that, when leaving either of the residential drug rehabilitation facilities while subject to the Treatment Order, she committed any further offences.
I accept that, until she has her drug dependency under control, it is very likely that she will continue to offend (see R v Monaghan [2021] ACTSC 279 at [1]-[2]), but I am not yet satisfied that the community's safety has been put at risk. On the other hand, it does seem likely that, until Ms Dowling addresses her drug dependency, and she appears presently to be treatment resistant, there is a high risk of her reverting to criminal activity and, thereby, putting the community at risk. Accordingly, I am satisfied to the requisite degree that this ground has been made out.
Finally, the last ground, that Ms Dowling poses a risk to the safety or welfare of a person, is also related to the third ground. I do not interpret this ground as necessarily requiring a specific person to be identified, though, in an appropriate case, that could be so. In my view, it is not so limited, but can include a more general concern that a participant may continue to commit crime and thus put the welfare or safety of those people who will be the victims of those crimes at risk.
Thus, as noted above (at [40]), without rehabilitation, Ms Dowling is likely to continue to commit crimes of the kind that will put members of the community at risk.
Accordingly, I was satisfied that the Treatment Order should be cancelled and I did so.
Sentencing
This cancellation of the Treatment Order requires me, then, to impose the sentence of imprisonment that I made and suspended on 6 April 2021, or to re‑sentence Ms Dowling.
I explained in R v Tonna (No 2) at [78]-[79] some of the grounds that would justify re‑sentencing. None apply here.
The imposition of the sentence, however, requires me to specify ‘whether the offender is to serve all or part of the sentence by fulltime detention at a correctional centre’: s 80ZE(3)(a) of the Sentencing Act. That is an odd provision. Nothing in the Explanatory Statement of the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) gives any clue to its meaning.
If the section suggests that a non‑parole period should be set, it could have done this more simply and intelligibly by referring to s 65 of the Sentencing Act. That provision would apply anyway because of the inevitable length of the sentence to be imposed, given the limits required for eligibility under s 12A of the Sentencing Act.
If it suggests that a Court could make a Suspended Sentence Order, that seems more consistent with a re‑sentencing than the imposition of the original sentence. It, too, could have been expressed more simply by referring to the option of making such an Order.
In this case, I am not satisfied that a Suspended Sentence Order would, in any event, be appropriate.
Ms C Duffy, counsel for Ms Dowling, submitted that, as requested by the Women's Legal Centre, a shorter-than-usual non‑parole period should be set. The Crown raised a number of issues about that.
Reliance was placed on her extensive criminal history, to which I referred in R v Dowling (No 2) at [98]-[99]. This was combined with her continued breach of court orders, most recently, of course, instanced in the very breaches that have, to a large extent, underpinned the cancellation of the Treatment Order.
The Crown further referred to Ms Dowling's apparent lack of motivation to rehabilitate, which it said did not justify a shorter non‑parole period to permit her to access a residential rehabilitation facility, which was proposed, at this stage, at the Karralika Housing Family Program. While too much should not be made of this, I do note that the Karralika Therapeutic Community is one of the residential drug rehabilitation programs that Ms Dowling found it impossible to attend while subject to the Treatment Order.
Finally, the Crown did accept that a paramount interest to be respected by the Court were the interests of Ms Dowling's soon to be newest child. It was pointed out that this was, to a large extent, dependent on Ms Dowling's rehabilitation.
I acknowledge the force of all these arguments, some stronger than others.
I am, perhaps optimistically, of the view that once Ms Dowling's child is born there will be a stronger motivation for her to do something constructive about her rehabilitation. Realism notes that this is her fifth child and she has continued offending and using drugs. That is, of course, a generalisation, however, and I note that, as to the actual present situation, there are some glimmers of difference. Thus, since she has become pregnant, I am not aware of her committing any further crimes, despite her failure to comply with the conditions of the Treatment Order, and I have no evidence of continuing drug use, though I would by no means find that she has not used. I was also disappointed about her poor compliance under the Treatment Order as I believed that her pregnancy, the need to protect her unborn child and the need to protect him or her when born, would have resulted in more compliance (R v Dowling (No 2) at [170]). This has not happened.
On the other hand, time in custody may give Ms Dowling time to think more constructively about these matters and accept that a genuine, sustained and persistent attempt at rehabilitation is required if she is not to lose custody of yet another child.
Further, a non‑parole period does not, unlike a suspension of a sentence, automatically release a detainee from custody. The detainee must still apply to the Sentence Administration Board for a parole order to be made and that application can be refused. Ms Dowling would have to persuade the Sentence Administration Board that her progress in custody has been such that it is appropriate that she be released and that may well depend upon her compliance with some form of rehabilitation while she is under parole.
The real hope for Ms Dowling and her future child is that Ms Dowling does engage in intensive and successful rehabilitation. I do not see any reason why I should deny her that opportunity when it is just that, an opportunity. Thus, for example, I would not suspend the sentence, for I consider that an assessment needs to be made at the time of release about matters such as her commitment to rehabilitation, so far as anyone but her can assess it, the availability of a placement at the Karralika Housing Family Program, or other similar facility, and the other matters relevant to whether she should be granted parole.
I note that Ms Dowling spent 244 days in Pre‑Sentence Custody. I took that into account by backdating the start of the sentence originally imposed under s 63 of the Sentencing Act. That is a transparent way of clearly imposing a sentence and makes comparison much easier: see R v Crawford (No 1) [2020] ACTSC 245 at [106].
Under s 80ZE(3)(b) of the Sentencing Act, I also may ‘reduce the sentence by any period served in custody under the treatment and supervision part of the Treatment Order.’ Because of the provisional cancellation of the suspension of the custodial part of the Treatment Order that I made in respect of Ms Dowling for the breaches of it she committed, there are 19 days that Ms Dowling has spent in such custody.
While it may be consistent with the common law to reduce a sentence, that is, deduct those days from the, otherwise, just and adequate sentence by the period of such custody ( see R v Crawford (No 1) at [105]), there are very good reasons why it should not be done in this way, not least the legislative policy that led to s 63 of the Sentencing Act, namely, that the start of a sentence be backdated to take such time into account. That also maximises transparency and comparability: see R v Antonovic (No 4) [2021] ACTSC 280.
While I have previously taken such time into account in that way (see R v Tonna (No 2) at [81], [86]; R v Charles (No 2) [2020] ACTSC 366 at [56]; and R v Lyons (No 2) [2021] ACTSC 11 at [39]), I consider that the preferable method is to add this period to the total period by which the sentence is to be backdated, that is, the period that has already been served. This is the way I have approached this more recently: see R v Antonovic (No 4) and R v Reid (No 2) [2021] ACTSC 281. This is also helpful, as Ms Dowling has been in custody since 27 May 2021, when I cancelled the Treatment Order, and this is an additional 30 days of Pre‑Sentence Custody which also must be taken into account and, preferably, also be done by backdating the start of the custodial period. I will do so.
Sentence
His Honour then spoke directly to the accused.
Ms Dowling, please stand.
I confirm the cancellation of the Drug and Alcohol Treatment Order made on 6 April 2021 and amended on 23 April 2021.
I confirm the convictions and sentences imposed on 6 April 2021 for the offences to which you pleaded guilty.
The sentences imposed on 6 April 2021 are hereby imposed and I declare that they commence on 5 September 2020 and end 4 September 2024, to take into account Pre‑Sentence Custody, the period spent in custody while under the treatment and supervision part of the Drug and Alcohol Treatment Order and the period spent in custody after the cancellation of the Drug and Alcohol Treatment Order.
I set a non‑parole period of 14 months, to commence on 5 September 2020 and end on 4 November 2021.
I cancel the Good Behaviour Order made under the Drug and Alcohol Treatment Order on 6 April 2021.
Ms Dowling, I am required to explain the sentence to you. In effect, I have now imposed the sentence of four years, to commence on 5 September 2020, because you have, in effect, served a significant part of that sentence already, and it will end on 4 September 2024. I have made a relatively short non‑parole period of 14 months to end on 4 November 2021, when you can apply for parole. There is no guarantee that the Sentence Administration Board will grant that parole. You will have to make the application and, no doubt, your lawyer or the Women's Legal Centre will assist you in doing that.
There was a Good Behaviour Order for the period after the Treatment Order ended and to the end of the sentence itself, and I have cancelled that because that is no longer relevant. A number of Good Behaviour Orders that I made instead of fining you, because it seemed to me that fines were not appropriate in your circumstances, are still in force.
Therefore, those Good Behaviour Orders continue, but they will end, I think, one month before your sentence itself ends. However, you will be on parole for some period of that time, perhaps the majority of it, but you are also under some Good Behaviour Orders, so that if you breach, then there is the possibility of further sentences of imprisonment being imposed, as well as the cancellation of the parole order.
There is a lot at stake. I hope that you have learned some lessons from the drama that has been involved in this case and that you will take the advice of your lawyers. I hope that you really work hard at getting your drug dependency under control and putting your life of crime behind you so that this birth can be one that you will celebrate and you can attach to and enjoy your newborn child, be a real mother to her and be a role model. I hope that you have a successful birth. I wish you every success in that.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: A Spencer Date: 23 November 2021 |
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