R v Kaihea (No 2)
[2020] ACTSC 82
•3 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kaihea (No 2) |
Citation: | [2020] ACTSC 82 |
Hearing Date(s): | 3 April 2020 |
DecisionDate: | 3 April 2020 |
Before: | Walker AJ |
Decision: | The Drug and Alcohol Treatment Order is cancelled. The remaining sentence of imprisonment of 12 months and 16 days is imposed with a non-parole period of eight months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – drug and alcohol treatment order cancellation |
Legislation Cited: | Crimes (Sentencing) Act2005 (ACT) ss 65, 80O, 80ZE |
Parties: | The Queen (Crown) Katalina Ruth Lotiola Kaihea (Offender) |
Representation: | Counsel H Roberts (Crown) C Duffy (Offender) |
| Solicitors Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 252 of 2018 SCC 253 of 2018 |
WALKER AJ (ex tempore)
Summary of matter
This matter was listed for a cancellation hearing pursuant to the Crimes (Sentencing) Act2005 (ACT) (the ‘Sentencing Act’) in relation to a drug and alcohol treatment order. Whilst the Court may make an order of its own instigation, on this occasion the Crown has put an application that the order in place for Ms Kaihea should be cancelled. This is opposed by Ms Kaihea.
The offence for which the order was in place was one of aggravated robbery, being a theft from a David Jones department store and the use of an offensive weapon in the form of syringe with the intention to escape. This offence occurred on 25 May 2018 and carried, on conviction, a maximum prison sentence of up to 25 years and/or a financial penalty. At the time this offence was committed, Ms Kaihea was subject to a suspended sentence of imprisonment for resisting a public official and escaping arrest. In relation to matters pending in the Court, she spent a period of time in custody and then was released by the Court to attended residential rehabilitation in Sydney on 21 November 2018.
In July of 2019, approximately the 16th, Ms Kaihea was suspended from the Wayback residential rehabilitation program for failing to attend a meeting. She did not re‑attend at Court and the Supreme Court issued a warrant for her arrest for breach of bail. However, she later attended before the warrant was executed and she was remanded in custody whilst further rehabilitation was explored. On 16 October 2019, it was confirmed that Wayback would not accept Ms Kaihea back into the program.
On 2 December 2019, Ms Kaihea was referred to this list for an eligibility screening assessment and was released on bail to allow that assessment, and ultimately a suitability assessment, to take place. Whilst on that bail, the last use reported by Ms Kaihea of heroin and methamphetamine was 19 January 2020. Ms Kaihea was facing her first sentence of full‑time imprisonment. However, on 28 January 2020, she was sentenced to a drug and alcohol treatment order by the Chief Justice. The sentenced imposed was two years' imprisonment reduced from two years and six months in recognition of the plea of guilty which Ms Kaihea had entered. The period of imprisonment was to be served consecutively on an existing imposed sentence for breach of the suspended sentence orders. That left remaining one year and nine months' imprisonment.
Her Honour noted at sentencing that she would allow a further two months to reflect the time Ms Kaihea had spent in residential rehabilitation. Her Honour noted that the offender then spent between 22 July 2019 to 3 December in custody, and that was taken into account.
Her Honour sentenced Ms Kaihea for the offence of aggravated robbery to imprisonment from 28 January 2020 to 11 March 2021, a period of 13 months and 12 days. Noting that Ms Kaihea's substance abuse issue was the primary risk factor for further offending, which was assessed at medium to high‑risk level, her Honour imposed a treatment and supervision part of the drug and alcohol treatment order for at least 12 months.
The offender has served 27 days in custody since that order commenced by way of sanctions for breach of the behavioural contract, which forms part of the obligation pursuant to the treatment and supervision order. Her remaining sentence, if that time is deducted, is therefore 12 months and 16 days. I assumed supervision of Ms Kaihea after she was sentenced by the Chief Justice.
Circumstances
Initially, Ms Kaihea presented as motivated but lacking in insight. I was particularly struck by her inability to engage openly and honestly with the treatment team and the Court. This translated into attempts to disguise her conduct and not to engage openly with those who were there to support her. It went so far as lying to the police when she was stopped by them on 28 February 2020.
Ms Kaihea was consistently late to appointments or failed to attend them, including counselling and case management, and failed to meet her dosing obligations on many instances. She continued to associate with other substance users. She has failed to attend urinalysis or has attended without required identification or producing samples, each of which evidenced the use of illicit drugs. She has been unable to produce a single clean urine sample throughout the period of bail or her order.
Her continued drug use has included amphetamine, methamphetamine, heroin, cannabis and benzodiazepine, although I note the last was prescribed. That drug use per se is not a basis to cancel an order of this type, although it is concerning that it was at such a level two months into the order, if other indicators are positive and progress is being made. Ms Kaihea has struggled to comply with all aspects of her order, including the direction that she not drive a motor vehicle.
She continues to engage in difficult relationships. Arrangements with her children's father and former partner have been fraught. While she has sought to maintain a relationship with her mother, in whose care she first commenced her drug use, given her mother's mental health issues and substance abuse, this has proved problematic. It would appear that Ms Kaihea has engaged in new relationships with individuals who have not supported her desire to cease her substance use.
At one point, Ms Kaihea did appear to begin to demonstrate some insight and increased in the honesty that she showed in her dealings with the court. Unfortunately, this quickly gave way as her mental health deteriorated in relation to her ongoing substance use. Ultimately, she left the home address that she had been living at and failed to reside, as directed, with her grandfather whose address she had provided as an alternative. That had been given as an option because of the difficulty she was experiencing living in the ACT Housing address that had been provided for her and it was hoped that she would remain with her grandfather long enough to enter into Lesley's Place for residential rehabilitation.
The treatment team and the Court had formed the view that residential rehabilitation was necessary because Ms Kaihea was struggling to such an extent in the community. However, she failed to attend at Lesley's Place where a spot had been secured for her. She was also driving contrary to the conditions of her order which was particularly concerning given her sustained substance use and the risk that she posed to members of the public. Ms Kaihea's prior criminal history is spattered with counts of driving whilst having the presence of prohibited substances in her system and dangerous driving. It was for that reason that the particular obligation not to drive a motor vehicle until there was at least three clear urines was imposed, and Ms Kaihea was unable to comply with that.
After two prior periods of having spent some time in custody as a result of breach of the behavioural contract, Ms Kaihea, in light of the continued breaches, was placed into custody to await today's cancellation hearing.
I accept as genuine Ms Kaihea's desire to be drug‑free and to be available for her children. She points to the fact that she is now on buprenorphine and says that this long‑acting opioid replacement will equip her to address her drug use, heroin being her drug of choice. She says that it will obviate her need for methylamphetamine. She says that now, if required, she will enter residential rehabilitation, and that these are factors, along with that put by Ms Duffy on her behalf of reduced social contact in light of the current COVID‑19 virus restrictions, which may see her able to comply with the order.
The difficulty is this: the treatment team had come to the conclusion that residential rehabilitation was the only way that Ms Kaihea was likely to achieve any degree of abstinence given the temptations that she struggled with in the community. The last chance for that is no longer available at this point in time and for the foreseeable future. The reality is that because of the existence of the virus, there is no availability of placements. No new people are being accepted into residential rehabilitation facilities. It is not even known when that will change, and it is not known where on the list for Karralika Ms Kaihea might appear. The practicalities make it extremely difficult to anticipate Ms Kaihea receiving the support that she so clearly desires and needs.
I am not persuaded by the submission of Ms Duffy on her behalf, as genuinely put as it is, that Ms Kaihea would feel constrained to stay at home because of the obligations that are imposed or recommended by the government in light of COVID‑19. Ms Kaihea is an inherently social person. That much is obvious from our dealings with her. The notion that she would be able to stay at home to stay away from access to drugs and poor influences is not a compelling one.
Unfortunately to date, Ms Kaihea has been unable to achieve abstinence despite all of the intensive support that the community and this Court was able to provide for her through the auspices of her treatment team and engaged providers.
It is not insignificant also that Ms Kaihea has matters pending in the Magistrates Court. The fact that a person has such matters or even receives convictions would not automatically mean that an order should be cancelled or not proceed, but when Ms Kaihea has pending charges of theft, possession and drug‑driving, it makes it difficult to see how she would be in a position to sustain the order going forward.
Nothing that has been put before me suggests a sufficient change in Ms Kaihea's circumstances to address those challenges she is facing. She continues, sadly, to be a danger to herself, her children and the community.
As has been pointed out by the Prosecution, pursuant to s 80ZE(1) of the Sentencing Act, the Court may cancel a treatment order if satisfied on the balance of probabilities and a number of grounds of detail, but the Prosecutor points to subparagraph (c), 'The offender is unwilling or unlikely to comply with the condition of the offender's treatment order.' Well, history has shown that Ms Kaihea at this point in time is unlikely to do so; (e), 'The continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order.' Ms Roberts took the Court to those objects, detailed in section 80O, in particular, the object of becoming drug‑free, effectively for the protection of the community, is something that at this point in time Ms Kaihea is unlikely to be able to achieve. I make particular reference also to subparagraph (f) that, 'The offender poses an unacceptable risk to the safety or welfare of a person'. Whilst I have no doubt that Ms Kaihea would not intentionally hurt her children, she has put, as I have said, both herself, those children and the community at risk whilst driving whilst affected by substances.
Order
Having regard to all of the circumstances, it is with some sadness that I have arrived at the conclusion that it is necessary to cancel the drug and alcohol treatment order. She will have the benefit of the time that she has served in custody during the periods for breach.
I make the following orders:
(1) the treatment order is cancelled;
(2) the remaining sentence of 12 months and 16 days is imposed. That commences today, 3 April 2020, and will complete on 18 April 2021.
I am required, given that is in excess of 12 months, to set a non‑parole period pursuant to s 65 of the Sentencing Act. I set a non‑parole period of eight months. On my calculations that would make Ms Kaihea eligible for parole, should she meet the requirement, from 2 December 2020.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Walker Associate: Date: 16 April 2020 |
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