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,

80ZJ,

80ZB(1)(b),

80ZB(1)(c),

80ZB(1)(d),

80ZB(1)(e),

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lyons (No 2)

Details

AGLC: R v Lyons (No 2) [2021] ACTSC 11
Case: [2021] ACTSC 11
Decision Date

CaseChat Overview and Summary

The case of R v Lyons (No 2) involved Carl Lyons, who was subject to a Drug and Alcohol Treatment Order (a Treatment Order) made under s 12A of the Crimes (Sentencing) Act 2005 (ACT). Lyons had been sentenced to a total of two years' imprisonment, suspended pending his compliance with the Treatment Order, which required him to complete a residential drug rehabilitation program at Canberra Recovery Services. Lyons was discharged from the program and failed to report to ACT Corrective Services as directed, prompting the Crown to apply for cancellation of the Treatment Order. The legal issues before the Court were whether the grounds for cancellation of the Treatment Order had been made out, and if so, whether the Court should exercise its discretion to cancel the Order. The Court found that the grounds for cancellation had been made out, and the withdrawal of Lyons' consent to the Treatment Order justified cancellation. Additionally, there were no suitable alternatives for treatment available to Lyons at that time.

The Court exercised its discretion to cancel the Treatment Order, as Lyons had indicated his consent to cancellation and had had time to reflect on his decision. The Court found that releasing Lyons into the community would not be appropriate due to his substantial history of non-compliance with community-based orders, his inability to identify suitable accommodation, and his lengthy criminal history with a pattern of frequent offending. The Court also considered that Lyons had been charged with other offences while the Treatment Order applied to him, necessitating suspension of the treatment and supervision part of the Order. Given the circumstances, the Court decided to cancel the Treatment Order rather than defer consideration until the completion of the proceedings for the fresh charges. The Court then imposed the original sentence, reduced by any period served in custody under the treatment and supervision part of the Treatment Order, and set a non-parole period of 18 months.

Orders