R v Massey (No 4)
[2021] ACTSC 211
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Massey (No 4) |
Citation: | [2021] ACTSC 211 |
Hearing Date(s): | 9 July 2021 |
DecisionDate: | 12 July 2021 |
Before: | Refshauge AJ |
Decision: |
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Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Cancellation of a Drug and Alcohol Treatment Order – Re-sentencing – Young Offender – Pre-Sentence Custody – Rehabilitation |
Legislation Cited: | Bail Act 1992 (ACT) s 22 Crimes (Sentence Administration) Act 2005 (ACT) s 130(3b) Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 GFS v The Queen [2001] WASCA 219 R v Tonna (No 2) [2020] ACTSC 362 |
Parties: | The Queen (Crown) Jordan Matthew Henry Massey (Offender) |
Representation: | Counsel N Deakes (12 July 2021), C Muthurajah (9 July 2021) (Crown) C Duffy (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 88, 89 of 2021; SCC 133, 134, 202 of 2020 |
REFSHAUGE AJ:
Introduction
Youth and childhood disadvantage are two significant factors which can, in appropriate cases, moderate an otherwise just and appropriate sentence by, in general terms, emphasising rehabilitation rather than punishment and deterrence in one case and moderating the criminal culpability of the offender in the other. Nevertheless, even in these cases, the proper weight given to these factors does not mean that a severe sentence cannot be imposed if it is, after taking into account these factors, a just and adequate response to all the circumstances.
In particular, it is appropriate to fashion a sentence to fit the circumstances and to achieve the relevant objects of sentencing. There is no utility in fashioning a sentence to achieve certain objects if they are unlikely to be achieved.
Jordan Matthew Henry Massey, for whom I made a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) on 15 June 2021, is still a relatively youthful offender for sentencing purposes, as identified in R v Tonna (No 2) [2020] ACTSC 362 at [44]-[47], and has suffered childhood disadvantage, as identified under the principles approved and articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 16-17; [44]-[47]. A Treatment Order is a rehabilitative sentencing option available where the culpability is not so severe that it should not be imposed.
When Mr Massey was originally before me, I declined to make a Treatment Order the first time that it was sought: R v Massey (No 2) [2020] ACTSC 257. I subsequently did make a Treatment Order for further offences, but also for the offences for which I had made a Good Behaviour Order, which was breached by the further offences and which I then had to cancel: R v Massey (No 3) [2021] ACTSC 156.
The Treatment Order made on 15 June 2021 required Mr Massey to enter the Canberra Recovery Services Residential Drug Rehabilitation facility at Fyshwick, ACT, which he did on that day. Unfortunately, he and some others left the facility between 3:00 am and 5:00 am on 24 June 2021 and consumed methamphetamine. On 25 June 2021, I sanctioned him and the others, save for one of them; in Mr Massey’s case I sanctioned him with three points. Then, on 26 June 2021, he absconded from Canberra Recovery Services and is alleged to have committed a further offence for which he was arrested and remanded in custody. As a consequence, the Crown has now sought to have the Treatment Order cancelled.
Background
Mr Massey has a long criminal history which I recounted in R v Massey (No 1) [2020] ACTSC 256 at [69]-[90]. [Redacted for legal reasons]. As an adult, he has been found guilty of 23 offences. While a number of these offences are relatively serious, such as one offence of assault occasioning actual bodily harm and one of aggravated dangerous driving, they have not yet included more serious offences of the kind I regularly see in this Court, like burglary, robbery or serious offences of violence. They do include, however, many dishonesty offences. Many are also drug related.
In this context, Mr Massey has twice tried to be subject to a Treatment Order. Indeed, his youth, moderate criminal record and drug dependence suggests that there is now an opportunity for his compliance. Unfortunately, he has been his own worst enemy and, regrettably, he must also learn consequences for his behaviour. The first opportunity to be subject to a Treatment Order was in August 2020. He was convicted of driving whilst disqualified, of dishonestly driving a motor vehicle without the owner's consent and of refusing to provide a sample of oral fluid to test for drug use. It was a great pity that his conduct prior to final sentencing deprived him of that opportunity: see R v Massey (No 2) at [13]-[16].
Significant within this behaviour prior to sentencing were three matters. In the first place, he was released on bail pending final sentencing, but committed a further offence, being one of the very type of which he had already been convicted, namely, dishonestly riding in a motor vehicle without the owner's consent. The second consideration is that he admitted to consuming cannabis while on bail and then, when the bail was revoked and he was placed in custody, he was searched and found to be in possession of drugs. It is worrying that, when he was being assessed for suitability for a Treatment Order, he could not abstain from drug use and tried to introduce contraband into prison. Had he been on a Treatment Order, that would have, in itself, invited a serious sanction of at least one week in custody.
Finally, he failed to comply with a curfew designed to reduce his offending and he failed to engage with a counselling agency during the time he was on bail, all pointing to a worrying lack of commitment to compliance with restrictions and counselling requirements that would be part of a Treatment Order. He appeared not to be really trying to comply with the bail conditions and show a commitment to rehabilitation.
He was then sentenced to a total of 14 months imprisonment, but the sentence was suspended after only five months with a Good Behaviour Order. I encouraged him to take this very generous opportunity expressly given to him to explore rehabilitation options: see R v Massey (No 2) at [46]-[48]. He seemed to accept that he could take that opportunity.
After he was released, however, he again made no attempts to engage in rehabilitation, though I have no reports of whether he was encouraged to do so, nor whether he was assisted by the probation to which he was subject as a condition of the Good Behaviour Order. He then again offended only some three weeks after his release in February 2021. The offences were theft, with a co-offender, of property valued at $2,390, dishonestly driving a motor vehicle without the owner's consent, aggravated dangerous driving as a repeat offender and driving whilst disqualified as a repeat offender. These offences also breached the Good Behaviour Order.
The offences related to a blatant theft of clothes from a retailer in Woden and Mr Massey's driving of a stolen car a couple of days later, a particularly common offence for him. Significantly, he also engaged in a police pursuit which resulted in a minor collision and some damage to the vehicle. He was, at the time, driving whilst under the influence of a drug and without a driver licence, having been disqualified from holding or obtaining a driver license for 12 months from 4 September 2020.
Nevertheless, he again sought a Treatment Order.
In sentencing Mr Massey for these further offences, cancelling the Good Behaviour Order and imposing the suspended sentence, I imposed a sentence of three years and eight months but made a Treatment Order: see R v Massey (No 3) at [96]-[125]. The Order required Mr Massey to admit himself to the residential drug rehabilitation program at Canberra Recovery Services as noted above (at [3]). He did so. Initially, he seemed to be going well and Canberra Recovery Services provided a positive report and suggested that he sometimes appeared committed, but could isolate himself.
As also noted above (at [4]), however, Mr Massey left the facility early one morning. It appears that he did so with others. They all used illegal drugs but returned to the facility. To his credit, when challenged, he honestly admitted leaving and using drugs. Canberra Recovery Services indicated that they would be prepared to continue Mr Massey’s rehabilitation program but required a sanction to be imposed. I required him to attend Court for that purpose and imposed the sanction of three points. Each point notionally represents a day in custody, but, usually, that custody is not imposed until at least seven points have been accrued.
On the weekend after that, however, Mr Massey left Canberra Recovery Services. On 27 June 2021, he allegedly committed the offence of dishonestly driving a motor vehicle without the owner’s consent. He was arrested and appeared in the Magistrates Court the next day when he was remanded in custody. I have read the police Statement of Facts for the offence and the evidence seems reasonably strong, though there could be some issues that I mention below.
Mr Massey then appeared before me on 2 July 2021 and I provisionally cancelled the suspension of imprisonment under the custodial part of the Treatment Order and remanded him in custody. The Crown indicated that it proposed to make an application to cancel the Treatment Order and I listed that for hearing. I now need to make a decision on that application.
The application
The Crown has applied, by Application in Proceedings filed on 7 July 2021, for cancellation of the Treatment Order under s 80ZE(1) of the Sentencing Act. The grounds of the application on which the Crown has relied are as follows:
(a)Mr Massey is unwilling or unlikely to comply with a condition of the Treatment Order. Section 80ZE(1)(c) of the Sentencing Act.
(b)The continuation of the Treatment Order will likely not achieve the objects of the Treatment Order. Section 80ZE(1)(d) of the Sentencing Act.
(c)Mr Massey poses an unacceptable risk to the safety or welfare of a person. Section 80ZE(1)(f) of the Sentencing Act.
The approach to the application is as follows. One ground is sufficient to require the Court to consider cancelling the Treatment Order, but each ground should be considered. A ground must be proved on the balance of probabilities. Even if one ground is, or more, or all, of the grounds are, made out, the Court is not obliged to cancel the Treatment Order and retains a discretion. The Court should also consider whether it is appropriate to review the Treatment Order under s 80ZH of the Sentencing Act at the same time and, in particular, to decide whether an appropriate amendment to the Order under s 80ZH(4) of the Sentencing Act can be made that would adequately address the unsatisfactory circumstances.
Even if there is an appropriate amendment that could be made, such as admission to another residential drug rehabilitation facility, there may not be the resources available to give effect to the amendment and s 80S(c) of the Sentencing Act would justify a cancellation of the Treatment Order in that case: R v Tonna (No 2) at [70]-[73].
At the end of this consideration, the Court retains a discretion whether to cancel the Treatment Order. That a participant has performed unsatisfactorily does not mean that this behaviour will necessarily continue. Thus, where the grounds have been made out, but there is still some reasonable hope, based on a rational assessment of the situation, that the offender will rehabilitate, the Court may decline to cancel the Treatment Order and give the participant a further chance to complete it. Such further chances, however, must be based on a careful analysis of the facts and circumstances: see R v Tonna (No 2) at [36]-[39]; [70]-[73], R v Crawford (No 3) [2020] ACTSC 369 at [27]-[29]. In the absence of such a basis for continuation, it is almost inevitable that the Treatment Order will be cancelled: see R v Crawford (No 4) [2021] ACTSC 209. This is the approach I shall take to the application.
The Crown filed an affidavit of Christina Muthurajah in support of the application. The affidavit was read with no objection and neither the deponent was cross-examined nor was there any other challenge to the contents of the affidavit. Mr Massey, however, tendered through his counsel, Ms C Duffy, a copy of the police Statement of Facts and the Bench Sheets for Mr Massey’s co-offender.
Consideration
I will first address in turn each of the grounds of the Crown's application.
The first ground relies on Mr Massey's asserted unwillingness to comply with a condition of the Treatment Order or his unlikeliness to do so. Given the effect of s 145(b) of the Legislation Act 2001 (ACT), that would include more than one condition.
Mr Massey has failed to comply with the condition of the Treatment Order that he remain at Canberra Recovery Services in the residential drug rehabilitation program and has also failed to comply with the condition that he comply with the facility’s rules, which prohibit consumption of drugs and also prohibit unauthorised departures from the premises. Finally, he has breached the condition that he report his departure from the facility to ACT Corrective Services by 4:00 pm on the next business day after he leaves. He was, however, at that time, in custody and so that makes it impossible for him to report his departure to ACT Corrective Services, which would, of course, have been responsible for him during the time in custody, and which would also have been in control of his custodial situation, so I do not consider further whether that is a breach and do not rely on it.
In light of Mr Massey's history of earlier non-compliance, I consider that this further failure shows that his asserted commitment to rehabilitation is not yet strong - at least, not strong enough to translate his words into action. It is, in many ways, a repeat of the behaviour that led to my initial refusal to make a Treatment Order, as noted above (at [4]), even down to the alleged commission of the same kind of offence, though this is still an allegation, no matter the strength of the evidence for it.
In the context of his earlier behaviour, the failure to remain at Canberra Recovery Services and his use of drugs again is, of itself, sufficient to find that, at this stage, Mr Massey is still unable or unwilling to comply with the conditions of the Treatment Order to abstain from drug use and to engage with the rehabilitation regime as fully as necessary.
His honesty in acknowledging the drug use is, especially for one so young - he is still just 21 years old - relevant to the disposition of this case and, though it came prior to his absconding and alleged offence, does not negate this finding.
I am satisfied that this first ground is made out.
The second ground is closely related; that the Treatment Order will not achieve the objects that such an Order is designed to achieve. Those objects are set out in s 80O of the Sentencing Act. Relevantly, they include the following:
(a)to facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and
(b)to reduce the offender's dependency on alcohol or a controlled drug; and
(c)to reduce the health risks associated with the offender's dependency on alcohol or controlled drugs; and
(d)to assist with the offender's integration into the community.
The first three objects are really all dependent on Mr Massey's engagement with a drug rehabilitation regime. Until rehabilitation has been achieved, neither objects (a) nor (b) will be realised, thus, object (a) is directed to the means of achieving object (b) through the completion of the regime provided for in the Treatment Order. Without object (a) being successfully pursued, objects (b) and (c) are unlikely to be attained.
Object (d) is really directed to the transition from the rehabilitation, to which objection (a) is directed, back into the community, in securing a continuing crime free and drug free lifestyle, stabilising the social and domestic environment of the offender, gaining employment and being able to live peaceably in the community. This is the object which the final Phase, Phase 3, of the Treatment Order is particularly directed.
It is clear that without much more intensive rehabilitation, these goals will not be accomplished by Mr Massey. It requires intensive commitment and effort and, in particular, the overcoming of temptation and personal hurdles along the way.
While some failures are expected and can be addressed, Mr Massey’s initial failures as repeats of past failures are worrying. The other participants, who also engaged in the spree of leaving the facility and using drugs, have served a period of sanction in custody and, without exception, those who had done so have been able to reset their commitment to and compliance with their Treatment Order. Instead, Mr Massey then absconded and engaged in what appears to be further criminal behaviour.
Accordingly, I am satisfied that Mr Massey's failure to engage with rehabilitation and, especially, his departure from Canberra Recovery Services shows that he is unwilling or unable to participate in the Treatment Order regime such that objects (a), (b), (c) and (d) of s 80O of the Sentencing Act are unlikely to be achieved.
The third ground refers to the risk that Mr Massey poses. Though it is expressed as risking the safety or welfare of a person, I am satisfied that it is not so limited. In my view, it is intended to express not merely the risk that, for example, a victim of violence, especially domestic violence, would be placed at risk were Mr Massey's Treatment Order regime not to be successful. The Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 Explanatory Statement, which Bill, with amendments, established the Treatment Order and its systems and procedures, is singularly unhelpful. The usual construction of legislation means that the singular should be read as including the plural (s 145(b) of the Legislation Act) and the purpose of the legislation, to assist offenders to gain, in particular, a crime free lifestyle, leads me to conclude that it is directed to that very aim.
In order to assess this ground, there are two issues that must be considered. The first is the question of whether his unaddressed and continuing dependency on and usage of illicit drugs represents such a risk. Of course, in general terms, it is highly likely that such a person, especially one whose drug use has led to prior offending, will continue that offending. A court must, of course, be careful not to make generalisations or rely on stereotypes, but the inference in such a situation is not unreasonably drawn without, for example, efforts of the offender to change their behaviour.
The second issue is the relevance of further offending. Naturally, where the breach of the Treatment Order has included the commission of a further offence, that would strengthen the inference that continued offending is likely, since it is a realisation of the inference itself.
Indeed, s 80ZD(3) of the Sentencing Act requires that a Treatment Order be cancelled where the participant is sentenced to a term of imprisonment for a further offence while he or she is subject to the Treatment Order. It would appear that this would include a sentence of imprisonment that is suspended or served by an Intensive Correction Order.
That will rarely be directly relevant where there are, as here, other reasons to consider cancelling a Treatment Order, as the sentencing will usually take more than a fortnight after the alleged commission of the offence and so a decision on cancellation must be made prior to the Court knowing that a sentence of imprisonment will be imposed. A fortnight is the maximum for which the suspension of the custodial part of the Treatment Order can be provisionally cancelled if a participant has breached a condition of the Treatment Order, ‘other than by the commission of an offence’, that is, it is the maximum for which a participant can be remanded in custody for such a breach: R v Tonna (No 2) at [67]; s 80ZB(1)(e) of the Sentencing Act. This would, of course, be the appropriate response where a breach of the Treatment Order was under active consideration.
Nevertheless, where the alleged commission of an offence was the only reason to cancel a Treatment Order, it would ordinarily be appropriate to await the outcome of the proceedings before making a decision on either provisional cancellation of the suspension under the custodial part of the Treatment Order or cancellation of the Treatment Order. That is not the position here where there is a significant other reason, namely Mr Massey's absconding from Canberra Recovery Services and continued drug use.
In order to consider whether the facts of the alleged offending do strengthen the inference that a participant is likely to reoffend because of such prior offending, it is permissible to evaluate the strength of the evidence in support of the alleged offending.
This consideration has some similarity to the decision to remand a person in custody where, in certain circumstances, the strength of the case is not yet determined by a finding of guilt: GFS v The Queen [2001] WASCA 219. It is similar to the decision that has to be made in relation to bail, where refusal of an application requires a defendant to be kept in custody and where a statutory criterion in considering the application is the strength of the case: s 22 of the Bail Act 1992 (ACT); Johnsen v Dunstan [1999] ACTSC 30; 150 FCR 158 at 164-165; [20]. There are also some similarities to the consideration of the admissibility of similar fact evidence for offences not proven by a finding of guilt: see, for example, Pfenning v The Queen (1995) 182 CLR 461 at 529.
In this case, Mr Massey is not alleged to have taken the motor vehicle in the first place: the co-offender is alleged to have done so with another person. That person, however, is described as having ‘red hair and tattoos on his hands’; clearly not Mr Massey. This offence is alleged to have occurred at 11:55 am on 27 June 2021. The offence with which Mr Massey is charged is alleged to have occurred at around 5:00 pm that same day. Mr Massey is seen on CCTV getting out of the driver's seat of the stolen motor vehicle in an underground car park of an apartment building in Belconnen. Two other persons are also seen as alighting from the motor vehicle.
Police apprehended Mr Massey in an aisle of Woolworths’ at about 6:30 pm. He was wearing the same black pants and light-coloured Nike brand shoes which were described as ‘distinct [and] white coloured’. These were the clothes said to have been worn by him, as seen on the CCTV footage. He was, however, wearing a white coloured t-shirt, whereas, in the CCTV footage, he was seen wearing a white hooded Adidas jumper pulled over his head and a face mask. The jumper could easily have been later discarded.
This does seem to me to be strong evidence. There may be an issue about identification as I have not seen the CCTV footage, but it is an almost inescapable inference that the person, said to be Mr Massey, getting out of the driver's seat of the motor vehicle which had just been driven into the car park was, in fact, the driver of the motor vehicle. The similarity of the clothing and Mr Massey's presence in the car park also strengthens the evidence. This is, to some extent, also strengthened by the fact that when police initially approached Mr Massey, he ran away, but police did apprehend him a short time later in a supermarket. Of course, it is understandable that someone with his record may feel anxious when approached by police. This evidence does seem to me to be sufficiently strong to justify a finding that, if Mr Massey remains in the community, such as on a Treatment Order, he is likely to engage in further offending and this would put the safety or welfare of the community at risk.
If my assessment of the evidence is strong enough to find that it is likely he committed the offence, without, of course, assuming that a finding of guilt will be made at the trial, then, at the very least, it does show Mr Massey's association with the offending, namely his connection with the stolen motor vehicle, his presence in the car park where the stolen motor vehicle was found, without any apparent other justification for him being there, and him running away from police when approached.
This would be sufficient, with the other evidence of his unaddressed drug dependence, to make a finding that he is, if he remains in the community, likely to commit further offending so as to put the community at risk. If things get difficult, it appears that Mr Massey’s instinct is to return to drug use, to avoid legal restrictions and then to engage in crime.
I am, therefore, satisfied that the third ground is also made out. This means that I should consider cancelling the Treatment Order.
At present, no alternative option has been proposed for Mr Massey, other than more of the same, and it is not clear that he has shown any signs of being able to overcome the instincts of drug use and crime to which he has succumbed, or that he would be able to translate any commitment to rehabilitation into action. Mr Massey has, nevertheless, requested that I give him a further opportunity to engage in rehabilitation. Reliance is placed on his youth and childhood disadvantage.
Ms Duffy, counsel for Mr Massey, has conscientiously made inquiries of Canberra Recovery Services and advised me, without challenge, that it was prepared to have him re-enter the residential rehabilitation program he originally entered. Unfortunately, no other material has been placed before me to show why this time is different, that Mr Massey would conduct himself properly at the facility and not continue to use drugs and that he would not leave if the challenge of rehabilitation became difficult. He did not give oral evidence before me.
It is obviously a difficult matter to refuse a young man the opportunity to rehabilitate further, especially a young man in his circumstances, with his background and a somewhat less serious criminal record. I am, however, not satisfied that Canberra Recovery Services is presently suitable for him.
In the first place, it is not a very structured program and it seems to me that this is what he requires.
Secondly, there remains at the facility other people with whom he left and used drugs on the last occasion. While I am satisfied that they have recognised the inappropriateness of those actions, shown insight into this behaviour and seem committed not to repeat such conduct, Mr Massey has not shown the same change in attitude. In addition, he may disrupt their rehabilitation.
Canberra Recovery Services are, of course, not the only residential drug rehabilitation facility into which he could be admitted. There are, however, no present alternative places in Canberra to which he could be admitted. He cannot be admitted to a facility in New South Wales as he is subject to a warrant in that State for his arrest.
Accordingly, I will cancel the Treatment Order.
Sentencing
The cancellation of the Treatment Order requires me either to impose the sentence I made on 15 June 2021 or to re-sentence Mr Massey.
I have set out in R v Tonna (No 2) at [78]-[79] some of the kind of considerations that would lead to re-sentencing. None of those are applicable here and no other considerations have been suggested. Accordingly, it is appropriate that I impose the original sentence.
I explained in R v Dowling (No 3) [2021] ACTSC 210 that there are some curiosities in doing that. Nevertheless, the usual structure of the orders to achieve this seems to comply with the legislation, the requirements of the authorities and are, therefore, effective orders for this purpose.
As the original sentence was for a term of imprisonment of more than a year, it is necessary, under s 65 of the Sentencing Act, to set a non-parole period unless I decline to do so, if I consider it inappropriate, ‘having regard to the nature of the offence or offences and the offender’s antecedents’: s 65(4) of the Sentencing Act.
I could not have set a non-parole period when earlier sentencing Mr Massey, as I had made a Treatment Order. This was prohibited by s 80W(2) of the Sentencing Act. Now that this no longer applies, s 65 of the Sentencing Act does apply. This appears to be encompassed within the legislative requirement to ‘impose the sentence of imprisonment’ (s 80ZE(2)(9) of the Sentencing Act), as the setting of a non-parole period is an incident of doing that, rather than a re-sentencing.
In this case, I could suspend the sentence and make a Good Behaviour Order, so that Mr Massey can be released on a date certain which would give him some hope of being able to pursue his stated aim of rehabilitation. There is no placement presently available, as I have noted above (at [55]), but there may be some available in future months. I could, alternatively, simply adjourn the sentencing proceedings for a period to see if some other facility becomes available and if one does become available, suspend the sentence then with a Good Behaviour Order requiring his admission to that facility. I have done this before. See, for example, R v Pelecky(No 3) [2020] ACTSC 371 at [39]-[44].
This approach has been taken before, with Mr Massey, but he failed to take that opportunity. Indeed, he simply committed further offences. There is nothing that has been put to me that would justify doing so again, especially given that there is no evidence that he would not behave in the same way again this time. This is, in some ways, tempting, especially because of his youth and the associated prospects of rehabilitation. However, the uncertainty of what, if any, residential rehabilitation programs may become available, however, does not make it attractive.
That approach, of adjourning the sentencing proceedings, may also inhibit Mr Massey’s participation in rehabilitation in the Alexander Maconochie Centre, such as by admission to the Solaris Therapeutic Community program there to show his genuine commitment to rehabilitation. I appreciate that rehabilitation of this kind in a custodial environment is difficult, but, if Mr Massey is to overcome his reluctance to commit to rehabilitation, then he needs to address and confront the challenges arising from difficult decisions and difficult involvements in rehabilitation.
While, in some ways, a Good Behaviour Order with a probation condition and a rehabilitation condition, or both, has the structure of a Parole Order, the level of supervision seems greater with a Parole Order and, most importantly in this case, Mr Massey will not be released until he is ready. With a suspended sentence, the court is speculating on how an offender will behave while in custody, what he or she will learn while there and the arrangements he or she will likely make on release. These are all factors considered by the Sentence Administration Board, when a Parole Order is to be made, before it makes such an order.
Nevertheless, Mr Massey's youth and his childhood disadvantage suggests that rehabilitation should still play a part in the sentence that is to be imposed and that the Court should not abandon the effort to achieve that, if it is possible. To consign a young man to a life of crime and imprisonment is not a desirable object and any reasonable and rational means that can be pursued to prevent that outcome should be pursued.
Accordingly, I will set a shorter than usual non-parole period for Mr Massey, expressly for this purpose. I will also make a recommendation to the Sentence Administration Board under s 67 of the Sentencing Act, to which it ‘must have regard’ (s 130(3) of the Crimes (Sentence Administration) Act 2005 (ACT)). It seems to me that Mr Massey needs to be held to his asserted commitment to rehabilitation. I will accordingly make an express recommendation to this effect.
Mr Massey spent 125 days in Pre-Sentence Custody prior to the original sentence I imposed on 15 June 2021. Since then, he has been in custody since he was arrested on 27 June 2021, on which date he was remanded in custody until 2 July 2021, totalling 6 days. This calculates to 131 days spent in custody.
On 2 July 2021, I provisionally cancelled the suspension of the custodial part of the Treatment Order and remanded him in custody until today, 12 July 2021, which is a total of 11 days, and is different in nature to the type of custody I mentioned above (at [68]).
Those periods are to be taken into account; the first period of 131 days, under s 80ZC(3) of the Sentencing Act, and then the second period of 11 days, from 2 July 2021 to today, 12 July 2021, under s 80ZE(3)(b) of that Act. There is no reason not to do so.
In any event, were I not to do so, I would have probably been bound to take those periods into account under s 80ZC(3) of the Sentencing Act. As I have explained in R v Dowling (No 3), these periods should preferably be taken into account by backdating the start of the sentence, as I may do so under s 63 of the Sentencing Act.
His Honour then spoke to the accused:
Mr Massey, please stand.
I cancel the Drug and Alcohol Treatment Order made on 15 June 2021.
I confirm the convictions and sentences imposed on 15 June 2021 for all the offences to which you have pleaded guilty in these proceedings.
I impose the sentence of three years and eight months which I then imposed, and which I immediately then suspended.
I declare that, under ss 80ZC and 80ZE of the Crimes (Sentencing) Act 2005 (ACT), the sentence of three years and eight months commences on 20 February 2021 and ends on 19 October 2024.
I set a non-parole period of 18 months to commence on 20 February 2021 and end on 19 August 2022.
I recommend to the Sentence Administration Board, under s 67 of the Crimes (Sentencing) Act 2005 (ACT), that, when you are released on parole, you be required, as a condition of your parole, to undertake a substantial period of supervised and mandatory drug rehabilitation, preferably in a residential drug rehabilitation facility if a placement is available and it is appropriate for you.
Mr Massey, I have decided that, in all the circumstances, I cannot just make another Treatment Order.
[The offender responded: Yes.]
I appreciate that you are still young, I appreciate that you say you want to pursue rehabilitation, but I am not satisfied that you are ready for it at this stage.
[The offender responded: Yes.]
I have made what is, in substance, a very short non-parole period, though I recognise that it is long for you. It is nearly 12 months from today, but you should try and make use of that time because you are just going to be in and out of jail if you do not address this. You are young enough to have a great future in front of you, to have a family, to be a useful member of the community, to do something useful that will inspire you and satisfy you and so on. And there are opportunities, even for you, but you have got to address your rehabilitation and you have got to stick to it.
So, there is an opportunity, I hope, in the Solaris Therapeutic Community in the Alexander Maconochie Centre. I understand the difficulty of opening up there in a custodial environment, but you have got to be strong. You have got to do it, and then, when you come out, if you have done it, it may be that further residential rehabilitation is not appropriate. The Sentence Administration Board can work that out.
[The offender responded: Yes.]
Or it may be that further residential rehabilitation is desirable to help you transition back into the community without further offending.
I am sorry. It is hard for me to impose this sentence because I was really hoping that I could have arrived at a different outcome, but I am just not satisfied that a Treatment Order, at this stage, is going to work.
[The offender responded: Yes.]
So, I hope you will take this opportunity because it is another opportunity, perhaps not as good as the one you had last time, but it is an opportunity and I do wish you good luck. I hope that this works and I hope that, in the kindest way possible, we will not see you back in this Court again, or certainly, at least, not for a long, long time.
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge. Associate: Date: 1 October 2021 |
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