R v Hancock (No 3)
[2022] ACTSC 232
•22 August 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hancock (No 3) |
Citation: | [2022] ACTSC 232 |
Hearing Date: | 19 August 2022 |
DecisionDate: | 22 August 2022 |
Before: | Refshauge AJ |
Decision: | 1. The proceedings be adjourned until 2:30pm on 2 September 2022 for mention. 2. That Daniel Thomas Hancock be granted bail until 2:30pm on 2 September 2022 on the following conditions: a. That he travel directly to 53 Gardiner Street, Downer ACT, offered to him by the Justice Housing Program today, 22 August 2022; b. That he use his best endeavours to have himself assessed for and accepted into the residential drug rehabilitation program at Mandala House, conducted by WHOS, Goulbourn, NSW, or any other residential drug rehabilitation program for which he is recommended; c. That he be at his place of residence between 8:00pm each day and 8:00am on the next day, except in the case of an emergency, and present himself to the front door of that residence when requested between those hours by any member of ACT Community Policing; d. That he submit to the supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person supervising him, including as to alcohol or drug testing; e. That he report to the Canberra City Police Station each Monday, Wednesday and Saturday between the hours of 10:00am and 4:00pm; f. That he not consume alcohol, cannabis or any illegal drug. |
Catchwords: | CRIMINAL LAW – Bail – Drug and Alcohol Treatment Order Cancelled – Bail Application – Opportunity for Further Rehabilitation – Bail Granted – Sentencing Deferred |
Legislation Cited: | Bail Act 1992 (ACT) s 49 Crimes (Sentencing) Act 2005 (ACT) ss 12A, 27 |
Cases Cited: | Channon v The Queen (1978) 33 FLR 433 Clarke II v Director of Public Prosecutions (Cth) [2012] ACTCA 7 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v Hancock (No 2) [2022] ACTSC 193 R v Hancock [2021] ACTSC 52 R v JM [2014] ACTSC 380 R v Shiels [2015] ACTSC 73 R v Winters (No 2) [2022] ACTSC 378 Saga v Reid and Collett [2010] ACTSC 59 |
Parties: | The Queen ( Crown) Daniel Thomas Hancock ( Offender) |
Representation: | Counsel K Stitt (19 August 2022); S Whitfield (22 August 2022) ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 5 of 2021 SCC 6 of 2021 |
REFSHAUGE AJ:
Introduction
Daniel Thomas Hancock was sentenced on 16 March 2021 to four years imprisonment for offences of possessing a prohibited weapon, namely two knives; possessing another prohibited weapon, a taser; burglary; five offences of theft and an offence of driving whilst disqualified. A Drug and Alcohol Treatment Order (Treatment Order) was made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) under which he was to serve the sentence, with treatment and supervision for two years. See R v Hancock [2021] ACTSC 52.
On 24 May 2022 the Treatment Order was cancelled, but the proceedings did not proceed to a final disposition, as he sought time before then to explore the possibility of further rehabilitation.
Mr Hancock has now sought bail so that he can be assessed to attend further rehabilitation at a residential drug rehabilitation facility, Mandala House, conducted by We Help Ourselves (WHOS) in Goulburn, New South Wales. While Mr Hancock's Treatment Order was cancelled, that is not necessarily a reason in itself to reject this opportunity for further rehabilitation. As the Court said in Saga v Reid and Collett [2010] ACTSC 59 at [89]:
[I]t 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.
All that is correct, but Mr Hancock is facing a lengthy period in prison if the original sentence is imposed. Bail can be a method of avoiding the immediate continuation of custody. If it results in him absconding, then he will be free of his incarceration and that may be an objective that some applicants for bail have in making the application.
On the other hand, all or almost all of the persons who do abscond while on bail or other forms of conditional liberty are ultimately arrested, even years later: see, for example, Clarke II v Director of Public Prosecutions (Cth) [2012] ACTCA 7 at [22]. Further, a person who fails to appear on the date to which bail has been granted commits an offence punishable by a maximum penalty of 2 years imprisonment, a fine of $32,000, or both: s 49 of the Bail Act 1992 (ACT). It would be additional to the original sentence which would also be imposed.
A proposal such as that made by Mr Hancock is a little like the making of a Deferred Sentence Order under s 27 of the Sentencing Act. The Court said in R v Shiels [2015] ACTSC 73 at [3] that such Orders are “[o]ne of the most useful sentencing tools that the legislature has given to the courts to achieve these objectives”, namely protecting society (Channon v The Queen (1978) 33 FLR 433 at 437), which can be done by the offender's rehabilitation (Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32]).
Background
Mr Hancock, between 1 October and 12 November 2019, used an access code to enter a storage facility in Kambah, ACT. He entered the facility on 20 occasions, during which time he then cut the padlocks on six storage units belonging to other persons and without authority. He replaced the locks with ones for which he had a key. He then entered five of those units and stole various property from them, driving there while he was disqualified from holding or obtaining a driver licence.
He was charged, as noted above (at [1]), for an offence of burglary as a “rolled up plea” for the unauthorised entry to the five units, thefts from each of them and being a disqualified driver.
When police searched his premises under a search warrant, they located three prohibited weapons: two spring-loaded double-edged blades and a taser. See R v Hancock at [16]–[17].
Mr Hancock is now 47 years old. He had a positive upbringing, but experienced difficulties at school, leaving in Year 10. He had some employment in the construction industry, until a spinal injury at work in 2013 led him to have to give up work and he has been unemployed since then.
He started using drugs at a very early age, using cannabis since age 10, but he was not introduced to methylamphetamine, his drug of choice, until he was 32 years old.
He has attempted drug rehabilitation on a number of occasions, particularly two attempts in residential drug rehabilitation, but it was limited and unsuccessful. He was under the influence of drugs when he committed these current offences.
He has been assessed for, but not formally diagnosed with, Post-Traumatic Stress Disorder and he has been diagnosed with “moderate to severe depression”.
Mr Hancock has a substantial criminal record of 74 offences, including the present offences, and has been sentenced to imprisonment in the past.
In 2018, he was sentenced to a Good Behaviour Order for 18 months, which included a probation condition requiring him to undertake programs, particularly in relation to drug and alcohol use. There is, on the evidence, no information of what, if any, such programs he undertook.
He breached the Order in 2019, the Order was cancelled and he was sentenced to nine months imprisonment to be served by an Intensive Correction Order. There was no record available to the Court of non-compliance with the Order, though the Drug and Alcohol Suitability Assessment prepared by ACT Corrective Services for sentencing for the current offences suggested that his “compliance with community-based supervision has been recorded as unsatisfactory and based on breach actions and the commission of further offences”.
He is also noted to have been discharged from two separate residential facilities since he was released from custody in June 2020.
As further noted above (at [1]), Mr Hancock was sentenced to four years imprisonment to be served by a Treatment Order. The sentence commenced on 12 July 2020 to take into account seven months and four days of pre-sentence custody.
The Treatment Order initially required him to undertake a residential drug rehabilitation program at Canberra Recovery Services, Fyshwick. Mr Hancock's compliance with the Treatment Order has been problematic. Initially, his compliance seemed to be good. For example, a report of 21 April 2021 described him as progressing in a “positive” manner”. On 12 May 2021, he was reported as “compliant with all aspects of the program”.
During the early period of the Treatment Order, he was permitted to visit his mother in New South Wales when she was recuperating from an operation.
Mr Hancock also engaged with Restorative Justice while under the Treatment Order. The conference was held on 13 December 2021.
In August 2021, he was permitted, following completion of the relevant phase of his program, to undertake work in Queanbeyan, NSW, and, for that purpose, to live in a motel there while still attending programs with Canberra Recovery Services.
He appeared to be succeeding in his employment and continued with weekly counselling at Canberra Recovery Services, which also appeared to be successful; his counsellor reported on 3 September 2021 that he showed “improvement and understanding in his program and is engaged and forth coming [sic] with information on how he wants to change his life.”
During the lockdown, being the government's response to the COVID-19 virus pandemic, however, he could not attend at Canberra Recovery Services and his counselling was by telephone. He was not subject to urinalysis and, though there was no direct evidence, concerns were expressed as to whether he had used drugs in this time. Nevertheless, he continued to receive positive reports of progress from his counsellors through September and October 2021. When he returned to a more strict, in-person regime, including regular urinalysis, problems emerged which formed the basis of these concerns referred to above.
In November 2021, his urinalysis showed use of methylamphetamine. He was sanctioned on 12 November 2021 with one point for the positive test and, on 19 November 2021, further sanctioned four points for three positive urinalyses. This continued so that, on 26 November, two further positive urinalyses were reported and he failed to attend for urinalysis on two other occasions and he was remanded in custody for seven days. The imposition of sanctions by points which may lead to custody is discussed in R v Winters (No 2) [2022] ACTSC 378.
On 10 December 2021, Mr Hancock admitted to using drugs after being released from custody on 3 December and was sanctioned three points. He was further sanctioned four points on 17 December 2021 and, after confirmatory results were obtained, he was remanded in custody on 28 December 2021 for more use and unsatisfactory behaviour. He used drugs again while in custody, for which he was sanctioned on 21 January 2022, and thereafter failed to attend urinalysis that month. He was then excused from attendance at Court because of a possible COVID-19 infection, but, on 25 February 2022, was remanded again in custody for his breaches.
He was then directed to attend the facility conducted by Karralika Programs Incorporated (Karralika), which he entered on release from custody. Initially, Mr Hancock settled well into the program, though, at first, he was not agreeable to the 12 month program on which, however, the Court insisted. He encountered some hurdles, but remained positive, though the program put him on a behaviour contract. That ended in mid-April 2022. He showed greater commitment in late April and was reported as “committed to acceptance of the program and what it offers on a genuine level as well as the willingness to engage in all aspects of the program.”
Again, however, things did not go well and Mr Hancock was discharged from the program at Karralika and remanded in custody on 10 May 2022. On 24 May 2022, the Crown sought the cancellation of the Treatment Order. It was cancelled that day. Mr Hancock sought an adjournment of the sentencing hearing following the cancellation to explore opportunities for further residential drug programs.
In July 2022, Mr Hancock was required to undergo surgery and sought bail to permit him to recuperate at his mother's place in New South Wales. That application was refused: R v Hancock (No 2) [2022] ACTSC 193.
There were various bases for this refusal of his application, which Mr Hancock made himself without any legal representation. These included that, while he had asserted that he had been accepted into a residential drug rehabilitation facility in Goulburn, namely Mandala House, referred to above (at [3]), that turned out merely to have been an inquiry and not an acceptance. One of the problems was that he needed to be in the community for assessment prior to admission.
It was also of concern that Mr Hancock was facing charges in NSW which had not yet been finalised. They were, it appears, charges of drug driving, driving whilst disqualified and having goods in his custody which were reasonably suspected of being stolen. These goods were a set of keys and about $900 in cash. These offences were alleged to have been committed on 23 April 2018. An active warrant had been issued in NSW for his arrest to face those charges, though no extradition had been sought. It was of concern that if he had, as seemed necessary, to report to police when in NSW, then the warrant would be executed.
Application
Ms C Duffy appeared for Mr Hancock, seeking bail so that he could take an offer to reside in a Justice Housing Program residence. The offer was only available until close of business on 22 August 2022.
Ms Duffy tendered, without objection or challenge to its contents, a copy of an email with a letter attached from ACT Corrective Services confirming the offer of the residence under the Justice Housing Program.
She also asserted, without challenge, that she had been making inquiries of WHOS in Goulburn about Mr Hancock being admitted to their program and, while the discussion seemed positive, it was clear that he could not be admitted until he was in the community, rather than in custody.
Ms Duffy also tendered, without objection or challenge to its contents, a pamphlet that she had downloaded from the internet about the program at that facility.
Ms Duffy sought bail so that Mr Hancock could be in the community so as to be assessed and, if accepted, enter the program at WHOS in Goulburn.
The Crown, represented by Ms K Stitt, opposed the application. Apart from an updated current Criminal History, which was tendered without objection or challenge to its contents and which included the current offences, no further evidence was tendered by the Crown. They relied instead on the material already before the Court while Mr Hancock was serving the sentence by a Treatment Order and the material tendered for the sentencing proceedings prior to that.
The Crown opposed the application principally on the basis that Mr Hancock had, under the Treatment Order, sought rehabilitation in two residential facilities already, both unsuccessfully, as well as two other attempts prior to being sentenced, also both unsuccessfully. Thus, the Crown suggested that further success is unlikely. Concerns were also expressed about the risk of re-offending and that his dependence on drugs has not been addressed, as he was still using drugs. The Crown submitted that the Court should proceed to sentence and that no further opportunities for rehabilitation were appropriate.
Consideration
At first sight, there seems little to support Mr Hancock's bail application. He has had, in the recent past, four unsuccessful attempts at residential rehabilitation. He is facing a significant sentence of imprisonment. That view, however, needs more careful interrogation. It is correct, of course, that he has been, so far, unsuccessful at rehabilitation, even more recently with the intensive therapeutic program with judicial supervision under the Treatment Order. He is still also using drugs.
Nevertheless, there are two countervailing issues of importance.
Mr Hancock has not absconded and has presented to the Court on each occasion that he has been discharged from a program under the Treatment Order. Similarly, he did not abscond when permitted to visit his mother to care for her after the surgery. While visiting his mother, he was still subject to the Treatment Order, failure to comply with which risked the cancellation of the Treatment Order and his incarceration.
Further, Mr Hancock has not been accused of committing any further offences while under the Treatment Order, despite his bad current record except, of course, for any offences constituted by his continued use of drugs. Indeed, this is despite his prior history of re-offending while at conditional liberty — not the current experience. While he does face a serious term of imprisonment were the original sentence to be imposed, on the sentencing that must be undertaken, he has already served nearly half of it.
There were 248 days of pre-sentence custody, 39 days of custody when the suspension of the custodial part of the Treatment Order was provisionally cancelled for breaches of the Order and he has spent 105 days in custody since the Order was cancelled. That is 392 days of a sentence of 1,462 days. If the original sentence were to be imposed, there would be a requirement under s 65 of the Sentencing Act to make a non-parole period, unless the Court considered it would be inappropriate.
At the upper end of usual non-parole periods, namely 66%, that would be about 574 days, nearly 19 months, which would mean that, even were he to participate in the Solaris Therapeutic Community program (for which, see R v JM [2014] ACTSC 380 at [26]), of up to six months, he would be in custody for just over a year without further rehabilitation on which he can build what he has, though inadequately, achieved to date.
On the other hand, were Mr Hancock to succeed in a further attempt at rehabilitation, that would either give the Sentence Administration Board a basis for considering a parole application were the original sentence nevertheless to be imposed or, indeed, to support resentencing rather than simply imposing the original sentence when Mr Hancock's further rehabilitation concludes. Given his recent behaviour, there does not seem a rational basis for finding that he is a risk to the community for further offending, nor that he would abscond while on bail.
The decision as to whether to grant bail is, however, not an easy one. There is a real concern of whether Mr Hancock is serious about rehabilitation. He has certainly not shown that he is currently serious about abstinence, though there is no evidence that he has, at least since the cancellation of his Treatment Order, used drugs while in custody where, regrettably, there is availability of drugs, so far as the evidence shows, even in Mr Hancock's case. It would appear that, had this occurred, the Crown would have been able to produce some evidence of drug use by him that the authorities at the Alexander Maconochie Centre had discovered which, hopefully, they would be required to do.
Nevertheless, the approach of the Court in Saga v Reid, as noted above (at [3]), does suggest that the fact that Mr Hancock has been active in seeking out options for rehabilitation since his incarceration and, as asserted by Ms Duffy without challenge, he has made efforts from custody to seek out rehabilitation, both by his own efforts to get a residence in the community through the Justice Housing Program and through his lawyer with a residential drug rehabilitation facility, namely Mandala House.
This is a rational basis for considering that further rehabilitation attempts may be successful and, of course, had that information been available at the time of sentence, that would have affected the sentence. Further, the risks to the community will be reduced by the state of the evidence which shows current non-use and a lack of recent history for further offending or of absconding. Further, while Mr Hancock's Criminal History is lengthy, the majority of his offending is in possession of drug offences and traffic offences. Some of the offences, however, are more serious, such as dangerous driving.
He committed has some worrying offences of burglary, including the current burglary charge which represents five incursions into the storage unit facility and some, but no particular history of dishonesty offences, but also an offence of breaching a Protection Order and possessing a knife prior to the current offences. It is, however, far from the most serious record seen in this Court, though by no means to be discounted. See R v Hancock at [76]–[79].
In all the circumstances, it is appropriate, though not without some considerable hesitation, to grant Mr Hancock bail for a short period, at least initially. That will also give him and his lawyers an opportunity to address a very significant matter, namely the active warrant for the offences referred to above, alleged to have been committed in New South Wales in 2018. They will need to persuade the Court that Mr Hancock's admission to Mandala House will not be rendered futile as a result of the risk posed by the outstanding matters.
Accordingly, he will be granted bail.
[His Honour then spoke directly to the applicant]
The Court orders the following:
(1) Daniel Thomas Hancock be granted bail to appear at 2:30pm on 2 September 2022 on the following conditions:
a) That he admit himself directly and today to the residence offered to him by the Justice Housing Program;
b) That he use his best endeavours to have himself assessed for and accepted into the residential drug rehabilitation program at Mandala House conducted by WHOS at Goulburn, NSW or any other residential drug rehabilitation program for which he is recommended;
c) That he be at his place of residence between 8:00pm each day and 8:00am on the next day, except in the case of an emergency, and that he present himself to the front door of that residence when requested between those hours by any member of ACT Community Policing;
d) That he submit to the supervision of the Commissioner of ACT Corrective Services, or his delegate, and obey all reasonable directions of the person supervising him, including as to alcohol or drug testing;
e) That he report to the Canberra City Police Station each Monday, Wednesday and Saturday between the hours of 10:00am and 4:00pm;
f) That he not consume alcohol, cannabis or any illegal drug.
It was touch and go, Mr Hancock. You have done some good things while you have been under the Treatment Order and some of the time you have been engaging in the programs and progressing well, but abstinence is a huge issue for you. I hope you have been abstinent in custody and only you know that, or anyone who has tested you will probably have an idea, but you need to actually commit to that and work really hard on it.
You will not have the support that you have had under a Treatment Order, so it is going to be even harder, but you will have assistance from ACT Corrective Services, a probation officer to talk to and, if things get tough, then make sure you do that before you start using again. You will be drug tested and, if you breach the bail, you can be assured that Corrective Services will notify the police and you will be arrested. You will then have ruined any realistic chance of getting back into the community until you show much more substantial rehabilitation.
There is a big problem in you going to WHOS in Goulburn and that is the outstanding charges. They are old charges, but you have not exactly built up a rehabilitation history that would justify the Court taking a less severe view of those offences. None of them are the most serious offences that you have committed, but they are not good offences. Having someone else's keys and a wad of cash from who knows where in your possession is not a good thing and you have got to stop driving when you do not have authority to do so. You have just got to stop it.
Hopefully this will work out, but there are some hurdles and, at the end of the day, if WHOS does not work out, then you will be back in custody and what happens then is another matter. If you try WHOS and you fail, then there really is no opportunity for further attempts in the immediate future. I do not mean that rehabilitation is closed to you. There is rehabilitation in the Alexander Maconochie Centre, but probably not available to you under the current sentence, given its length, unless you choose not to apply for parole.
There are some other options which could still be worked on, but my experience is that people who are dependent on drugs can spin a yarn and very often tell me with a straight face, and probably most of them being serious at the time, that this time will be different. You need now to show that my identification of some glimmers of hope that this is the right track for you can turn into a great ray of light that will protect the community. That will also give you an opportunity to do something useful for the years ahead that have so far been, at least since 2013, probably completely wasted.
It is up to you and you need to be honest with yourself and know that excuses for bad behaviour, which will convince you that it is not so bad, will not convince me and others.
You are back before me on 2 September. That is a bit under a fortnight. There may be further time under the Justice Housing Program while things are sorted out and you need to speak to your lawyer as soon as possible and get working on that. Make sure that you are able to take the opportunity that is now being offered to you, because these kinds of opportunities probably will not come again. At least not for a long time.
I understand that the address of your new house is at 53 Gardener Street, Downer. You probably need to make contact with Justice Housing to sort that out, but that is the address.
I would like to wish you good luck, but it is not luck you want, it is hard work. You are really at a fork as to which way you want to go. If you want to really get your drug dependency under control, you know where you have got to go, and if you do not, well, you may as well put the Alexander Maconochie Centre as your current residential address for the foreseeable future, because it will be a reoccurring pattern.
I do hope that this works out for you, Mr Hancock, but no excuses because I am not interested in them. You have got to do it yourself and you have got it do it.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: Date: 30 January 2023 |
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