R v Lyons (No 2)
[2021] ACTSC 11
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Lyons (No 2) |
| Citation: | [2021] ACTSC 11 |
| Hearing Date: | 15 January 2021 |
| Decision Date: | 15 January 2021 |
| Before: | Refshauge AJ |
Decision: | 1. | The Drug and Alcohol Treatment Order made on 15 December 2020 be cancelled. |
| 2. | Each of the sentences imposed on 15 December 2020 be imposed, save that the sentence for the offence of common assault, for which the Good Behaviour Order was cancelled, be reduced by 27 days under ss 80ZC(3) and 80ZE(3)(b) of the Crimes (Sentencing Act) 2005 (ACT). | |
| 3. | It be declared that the total sentence imposed is to commence on 29 October 2020 and end on 2 October 2022. | |
| 4. | A non-parole period of 18 months be set to commence on 29 October 2020 and end on 28 April 2022. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – | ||||
| cancellation of drug and alcohol treatment order | |||||
| Legislation Cited: | |||||
| Crimes (Sentencing) Act 2005 (ACT) ss 12A, 12A(2)(c), 46J, 65, | |||||
| |||||
| 80ZB(1)(f), 80ZC, 80ZC(3), 80ZE(2), 80ZE(4) | |||||
Cases Cited: | R v Lyons (No 1) [2020] ACTSC 358 R v Tonna (No 2) [2020] ACTSC 362 | ||||
| Texts Cited: | Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) | ||||
| Parties: | The Queen (Crown) | ||||
| Carl Lyons (Participant) | |||||
| Representation: | Counsel | ||||
| C Muthurajah (Crown) C Duffy (Participant) | |||||
| Solicitors | |||||
| ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Participant) | |||||
| File Numbers: | SCC 247 of 2020; SCC 248 of 2020 | ||||
| REFSHAUGE AJ: | |||||
| Introduction |
1. The Drug and Alcohol Sentencing List of the ACT Supreme Court administers Drug and Alcohol Treatment Orders (a Treatment Order), made under s 12A of the Crimes (Sentencing) Act 2005 (the Sentencing Act).
2. Such orders provide a regime of judicial supervision and treatment and care by highly professional practitioners who deal with the dependence of offenders on illicit drugs
and alcohol with a view to achieving ‘long-term behavioural change by taking a
problem-solving approach to dealing with an offender's behaviour, and [to] support the
development of a prosocial lifestyle’ through ‘targeted and structured health and justice interventions while holding the person accountable for their offences’: see Explanatory
Statement of the Sentencing (Drug and Alcohol Treatment Orders) Legislation
Amendment Bill 2019 (ACT).3. The achievement of these objectives can be challenging and requires commitment and participation in treatment programs by suitable offenders for whom a Treatment Order is made.
4. Carl Christopher Lyons was sentenced on 15 December 2020 for a total of two years' imprisonment, backdated to 28 September 2020 to take into account pre-sentence custody, for offences of violence and dangerous driving and for the breach of a Good Behaviour Order. However, the Court made a Treatment Order requiring Mr Lyons, inter alia, to complete a course of residential drug rehabilitation at Canberra Recovery Services in Fyshwick. He was required to admit himself to the program that day and stay there until he completed it. He did admit himself to the program on that day but was discharged two days later, on 17 December 2020. He failed to report to ACT Corrective Services the next day. The Crown has now applied to cancel the Treatment Order.
Background
5. On 28 September 2020, Mr Lyons drove a motor vehicle dangerously, driving directly at a pedestrian who hid behind a tree for protection. He later approached, on foot, a group of pedestrians and struck one of them, an 80-year-old man, causing him to fall to the ground unconscious. He then walked to a bus stop, boarded the bus and proceeded to spit on one of the passengers, behind whom he sat. These offences were a breach of a Good Behaviour Order, made on 16 April 2020 when he was convicted of an offence of common assault in the ACT Magistrates Court. The full facts of these offences are set out in R v Lyons (No 1) [2020] ACTSC 358 at [3]-[7] and resulted in him being charged with the offences of dangerous driving, assault occasioning actual bodily harm and common assault, as well as being faced with an application to cancel the Good Behaviour Order.
6. Mr Lyons was arrested, and on 4 November 2020, pleaded guilty to the charges and was committed to this Court for sentence. He was assessed as eligible for a Drug and Alcohol Treatment Assessment under s 46J of the Sentencing Act. The proceedings were listed for sentence on 11 December 2020.
7. Mr Lyons was assessed as suitable for a Treatment Order by the Alcohol and Drug Services of Canberra Health Services, but unsuitable by ACT Corrective Services of the Justice and Community Safety Directorate.
8. As noted above (at [4]), on 15 December 2020 Mr Lyons was sentenced to a total of two years' imprisonment, but a Treatment Order was made. The sentence of imprisonment was therefore suspended, and Mr Lyons was directed to admit himself to the residential drug rehabilitation program at Canberra Recovery Services at Fyshwick and remain there until he had completed the program. He was also directed that, should he be discharged or leave the program, he was to report to ACT Corrective Services with a view to having the Treatment Order reviewed. As noted above at [4], he was discharged and failed to report as follows.
9. On 17 December 2020, however, he was subject to urinalysis at Canberra Recovery Services. That agency reported that:
Carl was discharged from our service late yesterday afternoon (approx. 5 pm) on the grounds of suspicion of using drugs/suspicious behaviour (consistent with someone under the influence of a substance). Carl provided a positive instant UT result (indicating Meth/benzos/THC use). It was noted by staff that the authenticity/quality of the UT he provided appeared suspicious. Carl also requested another UT which was collected prior to his departure. We are currently awaiting further testing from Laverty pathology services.
Carl denied these allegations, however management stood by the decision in order to maintain a level of consistency and safety that would benefit the Community as a whole. Carl refused to take part in the discharge process, or complete any exit paperwork, instead deciding to pack his belongings and leave. Carl stated that he would be residing at his Sister's house, though form [sic] what I can see did not provide an address.
10. The result from Laverty Pathology Services was that the urine sample was negative for illicit drugs, which was reported to the Court on 14 January 2021. Mr Lyons, however, failed to report to ACT Corrective Services, by 4:00 pm on 18 December 2020, as required by the Treatment Order, or at all. Had he done so he would have been required to report to the Court, where the Court would have reviewed the Treatment Order. On review, however, in the light of his denial and the referral of the testing for urinalysis to a pathology laboratory, it is likely that the review would have been deferred pending those results before deciding how to proceed. Mr Lyons, as stated above, did not report as required, and on 18 December 2020, an arrest warrant under s 80ZJ of the Sentencing Act was issued.
11. On 20 December 2020, he was arrested and charged with an offence of robbery and two offences of assault occasioning actual bodily harm. I have the police Statement of Facts for these offences. In summary, it is alleged that he struck two women who were outside an apartment block complex and stole the handbag of one of them. It is also alleged that he left a trail of his blood from the site of the attack to an apartment in the
complex where he was located by police. Police say that they noticed ‘a large amount of blood throughout the unit’ in the apartment, and located the stolen handbag there.
Police say that they noted that Mr Lyons had a blood-soaked tea towel tied around his leg. Attending ambulance officers who came to the scene were said to have assessed
Mr Lyons as having ‘a large laceration’ in his leg. It was further alleged that he was
transferred to hospital, where he was later arrested, and then discharged from the
hospital into police custody.12. He appeared in the ACT Magistrates Court on 21 December 2020 and was remanded in custody. On 8 January 2021, he appeared before me, though the warrant had not been executed because of his earlier arrest. I adjourned the proceedings to today, 15 January 2021. As a result of an indication by the Crown that it would apply for cancellation of the Treatment Order, I listed the cancellation of the Order on that date also, although Mr Lyons said that he wanted me to cancel the Order. He has maintained his consent to the cancellation of the Order.
The Application
13. The Crown has now applied under s 80ZE(4) of the Sentencing Act for cancellation of the Treatment Order. The Crown specifically relies on the grounds set out in s 80ZE(1)(b), (c), (d) and (f) of the Sentencing Act, which are in the following terms:
(b) the offender will not be able to comply with a condition of the offender's treatment order because the circumstances of the offender have materially changed since the order was made; or (c) the offender is unwilling or unlikely to comply with a condition of the offender's treatment order; or (d) the continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order; or … (f) the offender poses an unacceptable risk to the safety or welfare of a person. 14. I have given consideration to the approach that should be taken to such an application in R v Tonna (No 2) [2020] ACTSC 362. I do not need to repeat what I there said but the approach to that application, as there described, is the approach that I will take.
15. An additional ground of cancellation set out in s 80ZE(1)(e) of the Sentencing Act is
that ‘the offender withdraws the offender's consent to the treatment order’. Mr Lyons
has invited me to cancel the Treatment Order and has, therefore, as I am advised by his counsel, withdrawn his consent. The Crown sought to add that as an additional ground.
Consideration
16. I note that s 80ZE(1)(e) of the Sentencing Act is not a mandatory section as to the cancellation of the Treatment Order and provides the Court with a discretion as to whether to cancel the Treatment Order or not. Accordingly, in my view, a court should not make such an order simply by consent.
17. Leaving aside the obvious issue of the Court being satisfied that withdrawal is an informed decision of the offender subject to a Treatment Order, and that it has been voluntarily made, the nature of the regime of Treatment Orders suggests to me that the Court may wish to take several steps before cancelling the Order when an offender consents to its cancellation, which the withdrawal of consent would logically entail. For example, the Court may either propose alternative treatment options (see R v Tonna (No 2) at [36]-[38]) or discuss with the offender, in the way that it is commonly done during the regular reviews the Court conducts, to see if the offender can be persuaded to continue the Treatment Order with perhaps variations to some of the conditions. The Court might also adjourn so that the offender can consider his or her position more carefully, especially if there are alternative treatment options.
18. Given the benefit of a successful Treatment Order to the community and to the offender, such a course may, in an appropriate case, seem desirable, especially if the cause for the offender's attitude is discernible and suggests that the attitude of the offender may be able to be modified. Of course, there would have to be a rational basis for either of these approaches, which may be especially appropriate if a significant period of the Treatment Order has been served.
19. There may be other reasons why the Court would exercise its discretion against cancellation, despite the withdrawal of the offender's consent, but they are likely to be rare and quite exceptional. After all, s 12A(2)(c) of the Sentencing Act makes it clear that informed consent of the offender is a precondition to the making of a Treatment Order.
20. Unless, therefore, the result of any such approach by the Court is that an offender becomes reluctant to withdraw or otherwise reconsider his withdrawal, the Court should cancel the Treatment Order. In this case, Mr Lyons indicated his consent to cancellation when he appeared before me on 8 January 2021. He has, thus, had a week to reflect on his decision. I do not consider that there is reason to offer further time for him to consider it.
21. Secondly, there are no alternatives for treatment suitable for him. No other placements are presently available at residential rehabilitation facilities in Canberra in the evidence before me and, in any event, Mr Lyons can only be detained by the Court prior to cancellation of the Treatment Order for another seven days in respect of the current breaches of the Treatment Order, constituted by his discharge and failure to report in accordance with s 80ZB(1)(e) of the Sentencing Act. A residential rehabilitation place is unlikely to become available in that time.
22. Of course, since Mr Lyons has now been charged with other offences, I must, under s 80ZC of the Sentencing Act, suspend the treatment and supervision part of the Order, but that does not affect the 14 day limitation in the earlier section to which I have referred.
23. The only other option would be for Mr Lyons to be released into the community, either to await the availability of a placement in residential drug rehabilitation or to continue his treatment in the community.
24. I am satisfied that it would not be appropriate for Mr Lyons to be released into the community in either case for the following reasons. In the Suitability Assessment Reports, one authored by Canberra Health Services and another by ACT Corrective Services, there were multiple issues relevant to this question raised.
25. ACT Corrective Services identified three issues justifying its recommendation that Mr
Lyons was unsuitable for a Treatment Order. The first was his inability ‘to identify a suitable accommodation source’. That remains the position. No evidence of
accommodation that has been assessed as suitable is available to me.
26. The second matter was that Mr Lyons had ‘a substantial history of non-compliance with community-based orders’. That history has now been repeated. While Mr Lyons'
discharge means that he cannot complete the Treatment Order, the basis of the discharge may have been on an unsustainable basis; namely, the alleged consumption of drugs was not confirmed on urinalysis and was denied by Mr Lyons. His failure to report as directed, however, is a breach, and an important breach, for Mr Lyons may have evaded arrest for some time. I would not be confident that he would comply with the conditions of such a release into the community.
27. The third matter, that he has now a lengthy criminal history with a pattern of frequent offending, was also mentioned by ACT Corrective Services. That history is set out in R v Lyons (No 1) at [27]-[29]. These include some offences of violence, including an
offence of robbery. As I there noted at [28], ‘[h]is record of violence is concerning.’
While the current offences remain unproven, and while he may be acquitted of them, it is not appropriate to ignore them when considering this issue, especially given the evidence that is likely to be given, as shown in the police Statement of Facts, which discloses a strong prosecution case. This would also support an assessment of his likelihood of further offending in the community, which would put the safety or welfare of members of the community at risk, especially given the nature of the fresh charges he is facing.
28. Finally, even though recommending that Mr Lyons was suitable for a Treatment Order, the Alcohol and Drug Services of Canberra Health Services, sharing a similar view to ACT Corrective Services, did make the recommendation on the basis of nine months of residential drug rehabilitation, or longer if required, and noted that Mr Lyons would require an intensive level of treatment support in a stable environment. This cannot be provided in the community.
29. These are powerful reasons, which I accept, for finding that the alternatives of treatment in the community are not suitable for Mr Lyons at this stage.
30. One other matter needs to be addressed. Section 80ZC of the Sentencing Act addresses the situation where Mr Lyons has, as here, been charged with another offence whilst the Treatment Order applies to him. Under that provision, I am required to suspend the treatment and supervision part of the Order until he is no longer in custody or until the Treatment Order is cancelled.
31. It seems to me, therefore, that I could defer consideration of cancellation until when the proceedings for the fresh charges are completed and any sentence has been served. Given that the offence of robbery must be dealt with by the Supreme Court, and that the police Statement of Facts discloses a strong prima facie case, it seems highly likely that the proceedings will take many months, unless Mr Lyons pleads guilty. In that event, he is highly likely to serve a lengthy prison sentence. The convictions for those offences will also automatically cancel the Treatment Order. Accordingly, the appropriate response for the Court is to cancel the Treatment Order.
Disposition
32. The power to cancel a Treatment Order is discretionary. Even were I to find, as I have, that the grounds for cancellation have been made out, I am not bound to cancel the Treatment Order. No grounds have been suggested as to why I should not exercise my discretion to cancel the Treatment Order. Accordingly, I will cancel the Treatment Order.
33. Under s 80ZE(2) of the Sentencing Act, I must, therefore, either impose the sentence originally imposed or resentence Mr Lyons. The alternative of resentencing will typically arise where there has been substantial progress in rehabilitation which would have been taken into account in the original sentence, or a change in conditions which makes resentencing appropriate (see R v Tonna (No 2) at [78]).
34. In this case, I do not find that Mr Lyons has made such progress as would warrant a resentence, nor are there changed conditions that make it justifiable to resentence. Accordingly, I shall impose the original sentence.
Sentencing
35. There are, however, three issues that need to be addressed on sentencing. First, s
80ZE(3)(b) of the Sentencing Act requires me to reduce the sentence ‘by any period served in custody under the treatment and supervision part of the treatment order.’ In
this case, I remanded Mr Lyons in custody on 8 January 2021. Accordingly, the
sentence to be imposed needs to be reduced by one week.36. Secondly, s 80ZC(3) of the Sentencing Act provides that time served by an offender on remand for offences with which the offender has been charged during the currency of
a Treatment Order, ‘counts toward the sentence imposed under the custodial part of the treatment order.’ This is an odd provision and the Explanatory Statement of the
Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) gives no explanation of it, nor points to the relevant policy that might explain it. Nevertheless, Mr Lyons was arrested on these fresh charges on 20 December 2020 and has been in custody since that time. That means I must assume that he has now served 27 days of the original sentence. That, however, is concurrent with the week referred to above which I do not need to double count. Nothing in the legislation suggests otherwise.
37. Finally, since that length of the term of imprisonment in the sentence is greater than one year, I am required, under s 65 of the Sentencing Act, to set a non-parole period unless I consider it inappropriate to do so, having regard to the nature of the offences and the antecedence of Mr Lyons. I do not consider it inappropriate.
His Honour then spoke directly to the participant:
38. Mr Lyons, I cancel the Drug and Alcohol Treatment Order made on 15 December 2020.
39. I impose each of the sentences imposed on 15 December 2020, save that the sentence for the offence of common assault, for which I have cancelled the Good Behaviour Order and will resentence you, is reduced by 27 days under ss 80ZC(3) and 80ZE(3)(b) of the Crimes (Sentencing Act) 2005 (ACT).
40. Accordingly, I declare that the total sentence commences on 29 October 2020 and ends on 2 October 2022.
41. I set a non-parole period of 18 months to commence on 29 October 2020 and end on 28 April 2022.
I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge
Associate: Samuel Xiang
Date: 15 March 2021
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