R v Fry (No 2) - [2022] ACTSC 389

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Fry (No 2)
Citation:	[2022] ACTSC 389
Hearing Dates:	28 July 2022, 10 August 2022
DecisionDate:	19 September 2022
Before:	Refshauge AJ
Decision:	(1) The Drug and Alcohol Treatment Order made on 12 January 2021 and amended on 5 February 2021, 17 December 2021, 22 April 2022, 6 May 2022 and 13 May 2022 be cancelled. (2) Douglas John Fry’s conviction for forcible confinement is confirmed. Douglas John Fry be sentenced to one year and 10 months imprisonment, commencing on 9 November 2021 and expiring on 8 September 2023. (3) Douglas John Fry’s conviction for assault occasioning actual bodily harm is confirmed. Douglas John Fry be sentenced to seven months imprisonment, commencing from 9 July 2023 and expiring on 8 February 2024. (4) Douglas John Fry’s conviction for dishonestly driving a motor vehicle without the owner's consent is confirmed. Douglas John Fry be sentenced to six months imprisonment, commencing on 9 January 2024 and expiring on 8 July 2024. (5) Douglas John Fry’s conviction for possessing a drug of dependence is confirmed. Douglas John Fry be sentenced to one month imprisonment, commencing on 9 June 2024 and expiring on 8 July 2024. (6) That is an overall sentence of two years and eight months imprisonment, commencing on 9 November 2021. A non-parole period of 16 months is set, to commence on 9 November 2021 and end on 8 March 2023.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – forcible confinement – assault occasioning actual bodily harm – dishonestly driving a motor vehicle without consent – possessing a drug of dependence – cancellation of Drug and Alcohol Treatment Order – re-sentencing – taking into account time in custody – taking into account time in residential rehabilitation – sentence of imprisonment
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12A, 63, 80O, 80Z, 80ZB, 80ZE
Cases Cited:	Akoka v The Queen [2017] VSCA 214 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 PR v The Queen [2014] ACTCA 40 R v Antonovic (No 3) [2021] ACTSC 338 R v Crawford (No 3) [2020] ACTSC 369 R v Elphick (No 2) [2015] ACTSC 23 R v Tonna (No 2) [2020] ACTSC 362 R v Massey (No 4) [2021] ACTSC 211 R v Po'oi (No 4) [2022] ACTSC 198 R v Fry [2021] ACTSC 138
Texts Cited:	Behaviour contract protocol – sanctions and incentives (ACT Supreme Court, undated) King, Michael, Solution-Focused Judging Bench Book (Australasian Institute of Judicial Administration Incorporated, 2009)
Parties:	ACT Director of Public Prosecutions ( Crown) Douglas John Fry ( Offender)
Representation:	Counsel S Whitfield (28 July 2022, 10 August 2022), C Wanigaratne (19 September 2022) ( Crown) C Duffy ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Numbers:	SCC 249 of 2020 SCC 250 of 2020

REFSHAUGE AJ:

Introduction

The growing awareness of drug dependence being a health problem, as well…

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 Fry (No 2)

Details

AGLC: R v Fry (No 2) [2022] ACTSC 389
Case: [2022] ACTSC 389
Decision Date

CaseChat Overview and Summary

This case concerns the cancellation of a Drug and Alcohol Treatment Order (Treatment Order) imposed on Douglas John Fry, and his subsequent re-sentencing. Fry was sentenced to three years and one month imprisonment, to be served by a Treatment Order, for offences including forcible confinement, assault occasioning actual bodily harm, dishonestly driving a motor vehicle without the owner's consent and possessing a drug of dependence. The Treatment Order was made on 12 January 2021 and amended on several occasions, but ultimately cancelled on 28 July 2022. The Crown applied for the cancellation of the Treatment Order on the grounds that Fry was unwilling or unlikely to comply with the condition of the Treatment Order, that the continuation of the Treatment Order would not achieve its objects and that Fry posed an unacceptable risk to the safety or welfare of a person.

The court considered each ground in turn. While the Crown argued that Fry was required to submit to drug and alcohol testing and not to return a positive sample, there was no direct evidence of this being a condition of the Treatment Order made by the court. The court found that the requirement not to return a positive result on urinalysis was not a condition of the Treatment Order with which Fry was required to comply. The court also found that the continuation of the Treatment Order would not achieve its objects, as Fry had not progressed through the stages of the program and had not reduced his drug use. Finally, the court found that Fry posed an unacceptable risk to the safety or welfare of a person, as he had not been convicted of a further offence since being subject to the Treatment Order, but there was a potential for further harm to members of the community. The court cancelled the Treatment Order.

On cancelling the Treatment Order, the court had the discretion to re-sentence Fry or impose the sentence that had earlier been imposed. The court decided to re-sentence Fry, taking into account the time he had spent in custody and residential rehabilitation. Fry was sentenced to one year and 10 months imprisonment for forcible confinement, seven months imprisonment for assault occasioning actual bodily harm, six months imprisonment for dishonestly driving a motor vehicle without the owner's consent and one month imprisonment for possessing a drug of dependence. The sentences for assault occasioning actual bodily harm and possessing a drug of dependence were to commence after the sentence for forcible confinement had expired. The sentences were to run concurrently, with an overall sentence of two years and eight months imprisonment, commencing on 9 November 2021. A non-parole period of 16 months was set, to commence on 9 November 2021 and end on 8 March 2023.

Orders