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R v Dowling (No 3)

R v Dowling (No 3)

Case [2021] ACTSC 210 25 June 2021

Sentencing

Drug and Alcohol Treatment Order

Cancellation of Treatment Order

Non-parole Period

Imposition of Original Sentence

Resentencing

Criminal Law

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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 Crawford (No 3) [2020] ACTSC 369 R v Dowling (No 1) [2020] ACTSC 374 R v Dowling (No 2) [2021] ACTSC 200 R v Lyons (No 2) [2021] ACTSC 11 R v Monaghan [2021] ACTSC 279 R v Reid (No 2) [2021] ACTSC 281 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…

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 Dowling (No 3)

Details

AGLC: R v Dowling (No 3) [2021] ACTSC 210
Case: [2021] ACTSC 210
Decision Date

CaseChat Overview and Summary

Akira Dowling was charged with 26 offences, mainly of dishonesty, and a breach of a Good Behaviour Order. Dowling was granted a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) on 6 April 2021. This Order was cancelled on 27 May 2021. Dowling appealed against the cancellation and sought re-sentencing. The appeal was dismissed and the sentences imposed on 6 April 2021 were confirmed. The sentences were backdated to take into account the time Dowling had already spent in custody. A non-parole period of 14 months was set. The Good Behaviour Order under the Drug and Alcohol Treatment Order was cancelled. The court considered the Crown's application to cancel the Treatment Order under s 80ZE(1) of the Sentencing Act. The court found that 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 court also found that continuation of the Treatment Order was unlikely to achieve its objects. The court was also satisfied that Dowling posed an unacceptable risk to the safety or welfare of a person. The court confirmed the cancellation of the Treatment Order and imposed the sentences that had been suspended. The sentences were backdated to take into account the time Dowling had already spent in custody.

Orders