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R v Massey (No 4)

R v Massey (No 4)

Case [2021] ACTSC 211 12 July 2021

Supervised Rehabilitation

Criminal Law

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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:	The Drug and Alcohol Treatment Order made on 15 June 2021 be cancelled. The convictions and sentences imposed on 15 June 2021 for all the offences to which Jordan Matthew Henry Massey pleaded guilty be confirmed. The total sentence of 3 years and 8 months imposed on 15 June 2021, and then immediately suspended on that day, be hereby imposed. It be declared that, under ss 80ZC and 80ZE of the Crimes (Sentencing) Act 2005 (ACT), the sentence of 3 years and 8 months commences on 20 February 2021 and ends on 19 October 2024. A non-parole period of 18 months, to commence on 20 February 2021 and end on 19 August 2022, be set. It be recommended to the Sentence Administration Board, under s 67 of the Crimes (Sentencing) Act 2005 (ACT), that, when Jordan Matthew Henry Massey is released on parole, he be required, as a condition of his 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 him.
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) Crimes (Sentencing) Act 2005 (ACT) ss 12A, 65, 67, 80ZB(1)(e), 80ZC, 80ZD(3), 80ZE, 80ZH, 80O, 80S(c), 80W(2) Legislation Act 2001 (ACT) s 145(b) 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 Johnsen v Dunstan [1999] ACTSC 30; 150 FCR 158 Pfenning v The Queen (1995) 182 CLR 461 R v Crawford (No 3) [2020] ACTSC 369 R v Crawford (No 4) [2021] ACTSC 209 R v Dowling (No 2) [2021] ACTSC 200 R v Dowling (No 3) [2021] ACTSC 210 R v Massey (No 1) [2020] ACTSC 256 R v Massey (No 2) [2020] ACTSC 257 R v Massey (No 3) [2021] ACTSC 156 R v Pelecky (No 3) [2020] ACTSC 371 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…

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 Massey (No 4)

Details

AGLC: R v Massey (No 4) [2021] ACTSC 211
Case: [2021] ACTSC 211
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory was asked to decide whether a drug and alcohol treatment order (a Treatment Order) should be cancelled. The Treatment Order had been made on 15 June 2021 for Jordan Matthew Henry Massey, who had pleaded guilty to a number of offences. The Crown applied to cancel the Treatment Order on the grounds that Mr Massey was unwilling or unlikely to comply with it, that the Treatment Order would not achieve the objects for which it was made, and that Mr Massey posed an unacceptable risk to the safety or welfare of a person. The court accepted all three grounds and cancelled the Treatment Order. The court imposed the original sentence of three years and eight months, suspended on conditions, but with a short non-parole period and a recommendation to the Sentence Administration Board that, when Mr Massey is released on parole, he be required, as a condition of his 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 him.

Orders