R v Hancock (No 4)

[2023] ACTSC 254

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Hancock (No 4)

Citation: 

[2023] ACTSC 254

Hearing Date: 

1 February 2023

Decision Date: 

6 February 2023

Before:

Refshauge AJ

Decision: 

1.     The cancellation on 24 May 2022 of the Drug and Alcohol Treatment Order made on 16 March 2021 and amended on 4 June 2021, 11 January 2022 and 28 January 2022 be confirmed.

2.     Each of the convictions entered on 16 March 2021 be confirmed.

3.     Daniel Thomas Hancock be convicted of possess/use prohibited weapon (knives) (CAN 12329/2019) and be sentenced to 1 month imprisonment, to commence on 11 November 2020 and end on 10 December 2020.

4.     Daniel Thomas Hancock be convicted of possess/use prohibited weapon (taser) (CAN 12330/2019) and be sentenced to 2 months imprisonment, to commence on 11 November 2020 and end on 10 January 2021.

5.     Daniel Thomas Hancock be sentenced for burglary (CAN 1583/2020) to 27 months imprisonment to commence on 11 January 2021 and end on 10 April 2023.

6.     Daniel Thomas Hancock be sentenced for theft (Dhannani) (CAN 1584/2020) to 10 months imprisonment to commence on 11 September 2022 and end on 10 July 2023.

7.     Daniel Thomas Hancock be sentenced for theft (Goulding) (CAN 1585/2020) to 10 months imprisonment to commence on 11 December 2022 and end on 10 October 2023.

8.     Daniel Thomas Hancock be sentenced for theft (Moebus) (CAN 1588/2020) to 15 months imprisonment to commence on 11 January 2023 and end on 10 April 2023.

9.     Daniel Thomas Hancock be sentenced for theft (Hewitt) (CAN 1589/2020) to 20 months imprisonment to commence on 11 August 2023 and end on 10 June 2023.

10.  Daniel Thomas Hancock be sentenced for theft (Suthern) (CAN 1593/2020) to 12 months imprisonment to commence on 11 October 2023 and end on 10 October 2024.

11.  Daniel Thomas Hancock be sentenced for drive while disqualified (CAN 13133/2019) to 2 months imprisonment to commence on 11 September 2024 and end on 10 November 2024.

12.  The total sentence of 4 years be hereby suspended from today, 6 February 2023, until 10 November 2024.

13. Daniel Thomas Hancock be required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from today, 6 February 2023, until 10 November 2023, with the following conditions:

(a)    A probation condition that he accept supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person delegated to supervise him for that period, or for such lesser period as the person supervising him deems appropriate, and to obey all reasonable directions of that person; and

(b)    That he not consume cannabis, illegal drugs, or any prescription drugs not prescribed for him by a registered medical practitioner.

14.  Daniel Thomas Hancock be directed to attend the Court Registry before he leaves the Court precincts to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period from 6 February 2023 to 10 November 2024.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – resentence for previous offences – breach of Treatment Order – further rehabilitation undertaken – sentence of suspended imprisonment imposed – Good Behaviour Order imposed

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT), ss 11, 63, 65, 80M, 80O, 80W, 80ZE, 85

Cases Cited: 

R v BC [2019] ACTSC 233

R v Dowling (No 3) [2021] ACTSC 210

R v Gray [2020] ACTSC 40

R v Hancock [2021] ACTSC 52

R v Hancock (No 2) [2022] ACTSC 193

R v Hancock (No 3) [2022] ACTSC 232

R v Marshall [2002] NSWCCA 197; 129 A Crim R 381

R v Massey (No 4) [2021] ACTSC 211

R v McCallum [2020] ACTSC 15

R v Po’oi (No 3) [2021] ACTSC 354

R v Rogers (No 2) [2023] ACTSC 5

R v Subasic (No 2) [2023] ACTSC 79

Re Application for Bail by Merritt (No 2) [2010] ACTSC 7

Saga v Reid and Collett [2010] ACTSC 59

R v Tonna (No 2) [2020] ACTSC 362

Parties: 

The Queen ( Crown)

Daniel Thomas Hancock ( Offender)

Representation: 

Counsel

S Whitfield ( Crown)

C Duffy ( Offender)

Solicitors

Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Numbers:

SCC 5 of 2021

SCC 6 of 2021

REFSHAUGE AJ:     

Introduction

1․On 15 November 2019, Daniel Thomas Hancock was arrested for three offences; one committed on 10 November 2019 and the two others on 15 November 2019. He appeared in the ACT Magistrates Court on 15 November 2019 and was remanded in custody. Curiously, it was only on 5 February 2020 that he was charged before the ACT Magistrates Court with six further offences committed between 27 September 2019 and 11 November 2019. He remained in custody until he was released on bail on 17 June 2020.

2․He now appears, nearly three years and three months later, when he is to be sentenced for all these offences. Extraordinary as this seems, it is an embodiment of what has been said in decisions like Saga v Reid and Collett [2010] ACTSC 59 at [89], about the difficulties of rehabilitation from alcohol and other drugs. It shows how drug rehabilitation is, as described in R v BC [2019] ACTSC 233 at [29], “not a linear process”.

3․The course of the proceedings is set out in R v Hancock [2021] ACTSC 52 at [18]-[25].

The proceedings

4․As noted above (at [1]), the criminal proceedings against Mr Hancock with which this Court is now concerned commenced on 15 November 2019 and he was remanded in custody. He remained in custody, as noted (at [1]), until 18 June 2020 after he was granted bail on 17 June 2020. He was referred to the Drug and Alcohol Sentencing List and on 16 March 2021 was then sentenced for the nine offences, a rolled up count of burglary, five counts of theft, two counts of possessing a prohibited weapon and one count of driving whilst disqualified. He was sentenced to four years' imprisonment but directed to served it under a Drug and Alcohol Treatment Order (Treatment Order).

5․Unfortunately, Mr Hancock's progress under the Treatment Order was not smooth and the Treatment Order was amended at various times to address the difficulties he encountered. Though achieving some success, he failed from time to time to comply with the requirements of the regime prescribed for him under the Treatment Order. Accordingly, the Treatment Order was cancelled on 24 May 2022. He was remanded in custody.

6․A cancellation of a Treatment Order requires that the Court impose the original sentence of imprisonment or resentence him or her: see s 80ZE(2) Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). At the hearing of the application for cancellation of the Treatment Order, an adjournment was sought so that Mr Hancock could explore other drug rehabilitation. He has undertaken such rehabilitation and now appears for sentence.

The facts.

7․The facts of these offences committed by Mr Hancock and to which he pleaded guilty, were set out in R v Hancock (No 3) [2022] ACTSC 232 at [7]-[9] as follows:

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, for an offence of burglary as a 'rolled up plea' for the unauthorised entry to the five units, thefts from 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.

8․Mr Hancock was born in Canberra more than 47 years ago. While his family seems to have not been affected by many of the problems others with drug dependencies have faced and he had a positive upbringing, he did experience some difficulties living in a small country town and later at school. The latter included a number of physical altercations. Leaving school at the end of Year 9, he gained employment in the construction industry which continued until interrupted by a spinal injury in 2013 and later a head injury caused when he was the victim of a home invasion.

9․Although he has had two significant relationships, one of which led to the birth of a daughter with whom he has had no contact at the time of sentencing, he is now single. Although he has been assessed, but not formally diagnosed, with Post-Traumatic Stress Disorder, he has been diagnosed with “moderate to severe depression”. His use of drugs commenced when he started using cannabis at age 10 and which he says he regularly used in his teens, leading to a suspension from school. He has continued to use it. He also commenced drinking alcohol at age 14 but gave it up when he was 32 years old.

10․He has, once or twice, used other drugs but his principal drug of choice has been methamphetamine which he first used when he was 32, soon finding he had problematic drug use about a year later. He has had some attempts at alcohol and other drug treatment, but he was discharged from the two residential drug rehabilitation programs with which he was engaged.

11․He has had a very serious record of some 74 offences, many of them traffic offences including serious ones like a conviction for dangerous driving. He has on his record, however, quite a number of drug possession, use or supply offences and a significant number of dishonesty offences, including a burglary offence. A worrying number of offences were committed while he was on conditional liberty orders. As also noted above (at [4]), he was sentenced for the current offences to four years imprisonment to be served by a Treatment Order.

12․A Treatment Order is an opportunity for a person who is dependent on alcohol or other drugs, where dependency has substantially contributed to his or her offending, to serve a sentence of between one and four years not in custody but in intensive drug or alcohol rehabilitation. This includes intensive therapeutic programs, case management, urinalysis and judicial supervision. As described in R v Rogers (No 2) [2023] ACTSC 5 at [8]-[9]:

A Treatment Order has two parts: a Custodial part and a Treatment and Supervision part. The Custodial part is essentially the term of imprisonment. Under s 80W(1)(b) of the Sentencing Act, the sentence of imprisonment must be fully suspended and, if the Treatment and Supervision part has ended before the end of the term of imprisonment, a Good Behaviour Order must be made for the balance of the term of imprisonment then suspended (s 80ZA of the Sentencing Act). That Good Behaviour Order is also included in the Custodial part of the Treatment Order.

The Treatment and Supervision part of the Treatment Order sets out the core conditions of the Treatment Order as provided for in s 80Y of the Sentencing Act, and the conditions that represent the treatment program for the rehabilitation of the offender. It also sets out the conditions of supervision for the offender by Case Managers for the Alcohol and Drug Services and ACT Corrections, as well as by the Court, and provides for other directions to the participant that can be made during the period of the Treatment Order.

13․Unfortunately, the following sections in that decision discussing the length of the Treatment Order fall into a very common trap (even traps that have caught the Court until now: see R v McCallum [2020] ACTSC 15 at [86]) though earlier the Court made the relevant distinction that needs to be made: see, for example, R v Gray [2020] ACTSC 40 at [28]-[30].

14․That trap arises from the fact that the Treatment Order is for the whole term of the period of imprisonment imposed. This is clear from the understanding that the Treatment Order is the sum of the two parts. As the Custodial Order is for the whole of the term of imprisonment, that must be the period of the Treatment Order.

15․On the other hand, the period of intensive treatment and executive and judicial supervision, namely the Treatment and Supervision Part of the Treatment Order is concurrent with but does not need to be for the whole of the Custodial Part. The trap is that, because, of course, that part is the most active of the interventionist part of the Treatment Order, a practice has grown up of referring to it as the Treatment Order, it is not; it is only a part of it.

16․While it is concurrent, it is often less than the whole of the Custodial Part and therefore the Treatment Order, especially as for most of the Treatment Orders made, the Treatment and Supervision part is for somewhere between 12 and 24 months. To date, none have been made for a longer period, though sometimes that part has been extended because behaviour problems have meant that a participant will not graduate from the Treatment and Supervision part of the Treatment Order unless the Treatment and Supervision regime, and consequently the Treatment and Supervision part, is extended.

17․For Mr Hancock, the Treatment and Supervision Part was for two years. He was initially required to undertake detoxification at the Canberra Hospital and then enter the Canberra Recovery Services residential drug rehabilitation program.

18․He did enter that program. He initially progressed well and received positive reports from his supervisors. For example, on 9 April 2021, it was reported that, “Daniel has participated above and beyond what is expected,” and, on 23 April 2021, it was reported that he “continues to progress in a positive manner”. It was also reported that, ”Daniel has expressed on a number of occasions that he wants to do the program to the best of his ability and wants to change his life”.

19․His progress was such that he was permitted, in August 2021, to work in Queanbeyan and, because of the limitations recently imposed in the government response to the COVID-19 pandemic, he was permitted to live there as long as he would continue relevant treatment and supervision. It did mean, however, that he was not as frequently subject to urinalysis and other supervision.

20․This led to concerns when he was subject to urinalysis and other supervision. It was reported on 12 November 2021 when subject to a urinalysis, he returned a positive test for methamphetamine. A member of the Treatment and Supervision team, as to which see s 80M of the Sentencing Act, also had difficulties in obtaining the necessary details of his employment to ensure that it was consistent with all of his obligations.

21․Unfortunately, matters seemed to spiral out of control towards the end of 2021. It was reported on 19 November 2021 that he had returned a further positive result for drugs on urinalysis on three occasions. Then, on 26 November 2021, he was reported to have returned two further positive results for drugs on urinalysis. On 26 November 2021, he was remanded in custody for seven days when the suspension of the Custodial Part of the Treatment Order was provisionally cancelled.

22․On release from custody, he continued to use drugs and was sanctioned on 10 and 17 December 2021 when he returned further positive results for drugs on urinalysis and was sanctioned further. In an attempt to motivate him, he was, however, not remanded in custody. On 24 December 2021, however, he was reported to have returned a further positive result for drugs on urinalysis. The suspension of the Custodial Part of the Treatment Order was provisionally cancelled on 28 December 2021 and he was again remanded in custody for seven days.

23․He returned to Canberra Recovery Services but was reported on 21 January 2022 that he had consumed drugs while in custody but had not admitted this. On 28 January 2022, he was further sanctioned for failing to attend a urinalysis on one occasion and then returning a positive result for drugs on another occasion.

24․On 4 February 2022, he did not attend the Court for review despite being directed to do so. The suspension of the Custodial Part of the Treatment Order was again provisionally cancelled when he was remanded in custody on 25 February 2022. During this period he had shown a pattern of not attending urinalysis. Between 12 December 2021 and 2 February 2022 there were seven such occasions. As a result of this conduct, it was agreed that Canberra Recovery Services was no longer appropriate and a more strict treatment regime with more limited latitude and independence was required.

25․A place was found for him at the residential drug rehabilitation program provided by Karralika Programs Incorporated (Karralika) and he was directed to admit himself and to that program and complete it. He did admit himself on 7 March 2022. He expressed some concern about the fact that the program was for 12 months, but the Court was adamant that this was what was required under the Treatment Order.

26․He was reported on 18 March 2022 to have settled in well and engaged well in groups. He kept a positive outlook but did, as reported on 1 April 2022, “display behaviour that can be identified as treatment issues”. By the end of April 2022, Mr Hancock was reported to have ”committed to acceptance of the program” and had “the willingness to engage in all aspects of the program”.

27․On 10 May 2022, however, Mr Hancock was discharged from the Karralika program. The suspension of the Custodial Part of the Treatment Order was again provisionally cancelled and he was remanded in custody. The Crown sought the cancellation of the Treatment Order.

The application

28․The Crown applied for cancellation of the Treatment Order of which Mr Hancock was subject relying on the following grounds:

(a)Mr Hancock is unwilling or unlikely to comply with the condition of the offender's Treatment Order (s 80ZE(1)(c) of the Sentencing Act).

(b)The continuation of the Treatment and Supervision Order will likely not achieve the objects of the Treatment Order (s 80ZE(1)(d) of the Sentencing Act).

(c)Mr Hancock poses an unacceptable risk to the safety and welfare of a person (s 80ZE(1)(f) of the Sentencing Act).

29․The nature of the application and of the grounds has been the subject of consideration in a number of decisions of the Court, commencing with R v Tonna (No 2) [2020] ACTSC 362 at [34]-[38]; [70]-[73]. See also R v Massey (No 4) [2021] ACTSC 211 at [19]-[21] and R v Po’oi (No 3) [2021] ACTSC 354 at [30]-[51]. These are the approaches that should be taken and have been followed in these reasons.

Consideration

30․As to the first ground, Mr Hancock showed good progress early on and, indeed, when he was directed to Karralika, received good reports of his engagement and application. In both cases, however, he could not maintain the success. The most worrying matter was that his fall from compliance in the second attempt at Karralika was more egregious. Further, his period at Karralika without problems was much shorter than that at Canberra Recovery Services.

31․While the need for patience and recognition of the significant challenges that face a person attempting drug rehabilitation must not be underestimated, the Court must also be mindful that there are other persons who seek the advantage of a Treatment Order where there are limited places and resources and not continue indefinitely to try to reset and gain success for someone in such difficulties. Without more, inability at this stage to rehabilitate may not justify a cancellation. Were there to be a variation to the Treatment and Supervision regime, that would permit what was assessed by the health and corrections members of the Treatment and Supervision team as having a likelihood of further success to be implemented.

32․Attempts can be made, especially as despite the seriousness of the continued use of drugs by Mr Hancock, he had not committed any further offences, but his failures would require careful consideration to ensure that there was a rational basis for the continuation (Saga v Reid and Collett at [89]).

33․There is also an issue with the available resources. The advice was, at the time of cancellation, that he would require at least further residential drug rehabilitation. The problem was that at that stage no such placement was available. This is a basis for holding that this first ground has been made out (R v Tonna (No 2) at [65]-[71]). Accordingly, on this basis, that ground has been made out in this case.

34․Given that Mr Hancock will be unlikely to comply with the Treatment Order (ground 1), because of the failure of access to appropriate resources, the objectives of a Treatment Order set out in section 80O of the Sentencing Act are unlikely to be met. That ground (ground 2) was also made out.

35․As to ground 3 it is to be noted, as mentioned above, that Mr Hancock has not committed any further offences. While the relationship between drugs and crime is clear (as noted in R v Subasic (No 2) [2023] ACTSC 79 at [1]-[3]), even after Mr Hancock was using drugs more heavily, he still did not commit further offences. Thus, the continuation of the Treatment Order would not appear to pose any risk to the safety or welfare of any person. Accordingly, this ground is not made out.

36․Nevertheless, the grounds for cancellation have been made out. These are the reasons for the cancellation of the Treatment Order which was done on 24 March 2022.

Sentencing

37․Consequent upon the cancellation of the Treatment Order, the court must decide under s 80ZE(2) of the Sentencing Act whether to impose the sentence of imprisonment which was originally imposed or to resentence Mr Hancock.

38․As noted above, Mr Hancock sought an adjournment to seek other rehabilitation options prior to consideration of how to proceed. The difference between the imposition of the original sentence and resentencing is not a clear or easy distinction to make.

39․For example, if a period of imprisonment is of a year or longer, the court on sentencing must set a non-parole period (s 65 of the Sentencing Act). That does not apply to a sentence of imprisonment to be served by a Treatment Order (s 80W(2) of the Sentencing Act). Nevertheless, when a Treatment Order is cancelled, the Court must specify when the period of full-time imprisonment starts and ends, perhaps by implication specifying that this could be a non-parole period. Indeed, it provides that a non-parole period may be set if the period of full-time detention, after cancellation of a Treatment Order, is for more than 30 days: s 80W(4) of the Sentencing Act. This appears to be part of the imposition of the sentence originally imposed and not a resentence: R v Dowling (No 3) [2021] ACTSC 210 at [46]-[48]. The same appears to apply to the suspension of the sentence of imprisonment which is imposed on cancellation and the making of a Good Behaviour Order where the Court has imposed the original sentence of imprisonment, though this is more uncertain.

40․It may be a rather semantic argument as to whether this is the imposition of the sentence or resentencing. Certainly, it would appear that, were the sentence of the imprisonment originally imposed to be served by an Intensive Correction Order under s 11 of the Sentencing Act, this would clearly be a resentencing of the offender. It may also be noted that in New South Wales where a Drug Court order is cancelled, the Court is required to take into account, though not necessarily on a one-to-one basis, the days spent in a residential drug rehabilitation facility where the liberty of the participant has been circumscribed and that must be taken into account whether the participant has been successful at rehabilitation or not: R v Marshall [2002] NSWCCA 197; 129 A Crim R 381 at 385, [29]. It is appropriate to follow that practice here.

41․While not express, it would seem that this would be resentencing because it would reduce the period of sentence, though not if achieved by backdating the original sentence. Time spent in custody under the Treatment and Supervisions part of the Treatment Order must reduce the sentence where “the court orders the imposition of the sentence of imprisonment”, such as when the participant is remanded in custody, as Mr Hancock has been under the provisional cancellation of the suspension of the Custodial Part of the Treatment Order (s 80ZE(3) of the Sentencing Act) a number of times.

42․While the reduction for periods in a residential drug rehabilitation facility is similar to this, it is not specified, and the periods of custody are applied so that it would appear that such periods would require a resentencing. Mr Hancock has now been in a residential drug rehabilitation facility. Accordingly, that will be taken into account in the resentencing that needs to occur.

Resentencing

43․Mr Hancock remained in custody after the cancellation of the Treatment Order. He applied for bail to have surgery and to rehabilitate at his mother's house, but this was refused: R v Hancock (No 2) [2022] ACTSC 193.

44․Later, he managed to be considered for admission to a residential drug rehabilitation facility conducted by We Help Ourselves (WHOS) in Goulburn called Mandala House: R v Hancock (No 3) at [3].

45․According to the evidence given on the bail application, Mandala House is a residential therapeutic community for men and women seeking recovery from alcohol and other drug dependence, providing a safe and secure environment for them to concentrate on their recovery. Residents are encouraged to take an increasing level of responsibility for the conduct of the therapeutic community during their time there. The program includes alcohol and other drug dependence education, relapse prevention, health support and education, social living and communication skills, stress management, harm reduction and work and living skills and home education.

46․Mr Hancock had to be in the community to be assessed for admission to Mandala House. He had arranged for a place in the Justice Housing Program where he could live were he to be released on bail so that he could be in the community to be assessed for admission to Mandala House.

47․The offer was only available until the close of business on 22 August 2022 from the Justice Housing project. Accordingly, bail was granted on that day: R v Hancock (No 3) at [32]-[34], [51]-[52]. He had, however, to appear before the Court by telephone on several occasions to ensure his compliance and for notice to be taken of any problems.

48․Mr Hancock was assessed for admission to Mandala House. He was accepted and admitted on 1 September 2022. The program was, according to the evidence, between three and four months in duration. Mr Hancock completed the program on 1 December 2022. A letter from a staff member described his progress and achievements in strongly positive terms, thus he had “been concentrating not only on his own recovery and abstinence but assisting others in the community to focus on their recovery”. He was described as “working productively with the community” and that “[s]taff have observed demonstrable progress in the groups and structured program” by him. He received the positions of ‘House Director’ and ‘House Coordinator’.

49․He has now returned to Canberra. He has a residence, not with the Justice Housing Program but privately, and has become a permanent employee of a discount timber merchant business. Mr Hancock had been charged with driving whilst disqualified and having goods in his custody reasonably suspected of being stolen: R v Hancock (No 3). He took positive steps to have these offences dealt with and the sentences were completed while he was at Mandala House. As it happens, the sentences imposed did not interfere with his progress at Mandala House.

50․The surgery to which Mr Hancock is to undergo is scheduled for 7 February 2023. There appears no reason why the resentence should not permit him to undergo that surgery.

51․Mr Hancock has spent some time custody. In R v Hancock (No 3) at [43] the Court found:

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.

52․Both counsel agreed that that was the appropriate period of time for pre-sentence custody. It is appropriate to provide limited reduction for Mr Hancock's time at Canberra Recovery Services as it was much less restricted than other facilities and, for much of the time, he was actually living in Queanbeyan. On the other hand, the time at Karralika, though ultimately unsuccessful, was much more restrictive and should be given some consideration. As for the time at Mandala House, it is a therapeutic community which applies some significant restrictions. Consideration should also be given to the time there.

53․Taking all these matters into account, a period of 60 days will be applied to his period in rehabilitation. For transparency, it appears that the appropriate way that these days should be taken into account is by backdating the sentence by the days involved. Thus, building on the periods referred to above of 392 days to which is added the 60 days, it makes a total of 452 days by which the sentence should be backdated. Imposing the sentence today, that would require the sentence to commence on 11 November 2022 and it would end on 10 November 2024.

54․Mr Hancock has shown initiative in seeking out the possibility of attending Mandala House. He showed commitment in attending the program and succeeding as well as obtaining a residence and employment. He showed initiative in having the outstanding offences dealt with in New South Wales. In addition, there is no evidence of ongoing drug use and he has committed no further offending.

55․It is clear that, despite the cancellation of the Treatment Order, the need for Mr Hancock to pursue further rehabilitation has been the correct one for him and for the community. As was held in re Application for Bail by Merritt (No 2) [2010] ACTSC 7 at [36]:

It must be said, however, that the rehabilitation from drug addiction is no overnight exercise. It is littered with failures and further attempts but unless there is perseverance, success is often elusive.

56․Mr Hancock has actively persevered. He has succeeded satisfactorily and, indeed, well in residential drug rehabilitation programs.

57․Finally, there are, of course, no guarantees. The struggles of life cannot be predicted and he may succumb to triggers in the future, but he has certainly shown to date the success of the program and it is to be fervently hoped that this will continue. The relapse prevention programs in Mandala House will hopefully give him tools with which he can meet some of those challenges, identify and address the triggers and live a crime and drug‑free life in the future.

58․Had he originally come to the Court for sentence with this background, it is likely that a different sentence would have been imposed. For the reasons set out in R v Hancock at [104]-[110], a sentence of imprisonment would still have been imposed, but after serving the time that has been taken into account by the backdating of the sentence under s 63 of the Sentencing Act, it is clear that the balance of the sentence would have been suspended. The Crown did not cavil with that sentencing outcome.

59․Some further supervision in the challenging times of transition from the protected space of a residential drug rehabilitation facility into the community will be, with its temptations and challenges, required. Accordingly, a probation condition is highly appropriate. It is now almost universally accepted that the length can be left to the professional judgment of the parole officer supervising Mr Hancock, not merely as to the frequency of supervision but when that may be terminated.

60․In addition, it was suggested that a condition that he not consume drugs, though that prohibition did not include alcohol, was also suggested so that an easier bringing of the matter back to the court would be possible in the circumstances. Account is taken of all the relevant matters as mentioned here and in R v Hancock and the matter relating to multiple sentences as also set out in R v Hancock.

[His Honour then spoke directly to Mr Hancock]

61․Mr Hancock, please stand.

1.I confirm the cancellation on 24 May 2022 of the Drug and Alcohol Treatment Order made on 16 March 2021 and amended on various dates that are set out in the order. Each of the convictions entered on 16 March 2021 will be confirmed.

2.You are to be sentenced for the possession and use of a prohibited weapon, the knives, by a sentence of one month imprisonment to commence on 11 November 2020 and end on 10 December 2020.

3.I sentence you for the possession or use of a prohibited weapon, the taser, and sentence you to two months imprisonment to commence on 11 November 2020 and end on 10 January 2021.

4.I sentence you to 27 months imprisonment to commence on 11 January 2021 and end on 10 April 2023.

5.I sentence you for the first theft and sentence you to 10 months imprisonment to commence on 11 September 2022 and end on 10 July 2023.

6.I sentence you for the second offence of theft to 10 months imprisonment to commence on 11 December 2022 and end on 10 October 2023.

7.I sentence you for the third offence of theft to 15 months imprisonment to commence on 11 January 2023 and end on 10 April 2024.

8.For the four offences of theft I sentence you to 10 months imprisonment to commence on 11 August 2023 and end on 10 June 2024.

9.For the fifth offence of theft I sentence you to 12 months imprisonment to commence on 11 October 2023 and end on 10 October 2024.

10.For the driving whilst disqualified I sentence you to two months imprisonment to commence on 11 September 2024 and end on 10 November 2024.

11.That is a total of four years imprisonment and that it is hereby suspended from today until 10 November 2024.

12.I require you to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from today until 10 November 2024 with the following conditions:

(a)A probation condition that you accept supervision of the Commissioner of ACT Corrective Services, or his delegate, and obey all reasonable directions of the personal delegated to supervise you for that period or for such lesser period as the person supervising you deems appropriate, and obey all reasonable directions of that person; and

(b)that you not consume cannabis, illegal drugs or any prescription drugs not prescribed for you by a registered medical practitioner.

13.I direct you to attend the court registry before you leave the court precincts to sign an undertaking to comply with those good behaviour obligations.

62․You may be seated.

63․It is the Court's understanding that the cancellation of Mr Hancock’s driver licence would have taken effect upon the sentence and not been affected by the suspension so that it would now have been served and to reimpose it would be double punishment. If there is any problem with the Road Traffic Authority, the Crown can come back and we can try and untangle it.

[His Honour then spoke directly to Mr Hancock again]

64․It is very easy sitting here to think that Drug and Alcohol Treatment Orders are the way to go and it is the only way. It is a very good way and I think you gained some benefit out of it but it did not quite work. The cancellation, I suspect, and you would know better than me, triggered in you a determination that we had seen in those earlier stages to get this done and that you did not want to go back to prison. I congratulate you for your perseverance and for your success and the Court wishes you well.

65․As we say at each graduation, although you are not graduating in that sense, we hope never to see you again in the courts but, you know, if I have to buy timber, perhaps I might see you then.

I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge.

Associate:

Date: 1 February 2024