R v McColl (No 3) - [2024] ACTSC 291

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McColl (No 3)
Citation:	[2024] ACTSC 291
Hearing Date:	20 September 2024
Decision Date:	20 September 2024
Before:	Christensen AJ
Decision:	The Drug and Alcohol Treatment Order last amended on 31 May 2024 is confirmed.
Catchwords:	CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – Drug and Alcohol Treatment Order – rehabilitation achieved – skydiving – graduation – order confirmed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 80O, 80ZH
Cases Cited:	R v McColl [2022] ACTSC 386
Parties:	Director of Public Prosecutions (Crown) Robert Malcolm McColl (Participant)
Representation:	Counsel J Churchill (DPP) C Duffy (Participant)
Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Participant)
File Numbers:	SCC 179 of 2021; 86, 87 of 2022

CHRISTENSEN AJ:

Introduction

Robert McColl was sentenced in the Drug and Alcohol Sentencing List (DASL) on 2 June 2022: R v McColl [2022] ACTSC 386.
He was sentenced in respect to offences of aggravated robbery, dishonestly driving a motor vehicle, culpable driving, obtaining property by deception, minor theft, and possession of stolen property. The sentence had regard to Mr McColl having served a period of some 12 months in custody prior to the date of sentence. The sentence was suspended for the remainder of the term, until 25 April 2025, with a requirement to engage with a Drug and Alcohol Treatment Order (Treatment Order) and thereafter, a good behaviour order.
Mr McColl has progressed on his Treatment Order in a manner that reflects the non-linear nature of recovery from drug dependency. This has meant that there were some challenges at the beginning of the order, including, concerningly, occasions of offending behaviour for which (in accordance with previous court orders), Mr McColl will be separately sentenced.
Nonetheless, Mr McColl has remained committed to his rehabilitation, he has achieved his goals, and those of the DASL Treatment Team, in respect to that rehabilitation. As of September 2024, the Treatment Team have recommended that Mr McColl be graduated from the treatment and supervision part of the Treatment Order.
Having regard to the position of the Treatment Team, I am satisfied pursuant to s 80ZH of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that it is in the interests of justice to review the Treatment Order. On Mr McColl’s behalf, it is sought that the order of 31 May 2024 be confirmed, such that Mr McColl will graduate to the next stage of the sentence of imprisonment suspended under the custodial part of the order. The prosecution supports the application.
The Court agrees that such a progression is appropriate. Mr McColl has achieved the objects of the Treatment Order: s 80O of the Sentencing Act.

Orders

Accordingly, the following order is made:
(1) The Drug and Alcohol Treatment Order last amended on 31 May 2024 is confirmed.

Remarks to participant on graduation

Robert McColl, we now move to celebrate your graduation from the treatment and supervision part of your Drug…

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 McColl (No 3)

Details

AGLC: R v McColl (No 3) [2024] ACTSC 291
Case: [2024] ACTSC 291
Decision Date: 20 September 2024

CaseChat Overview and Summary

The case of R v McColl (No 3) involved a defendant who had previously been the subject of a Drug and Alcohol Treatment Order. The order was imposed by the Court as part of the sentencing for criminal offences related to drug use and possession. The case came before the Court for review to determine whether the defendant had achieved the rehabilitation goals set out in the order. The primary issue before the Court was whether the defendant had met the criteria for confirming the order, which included evidence of successful rehabilitation and engagement in activities that demonstrated a commitment to a drug-free lifestyle. The defendant had participated in skydiving and other similar activities as part of their rehabilitation program, which the Court considered as evidence of their commitment to a healthier lifestyle.

The Court reviewed the evidence presented, including statements from the defendant's treatment providers and other supporting documentation. The Court examined whether the defendant had achieved the objectives set out in the original Drug and Alcohol Treatment Order, particularly in terms of sustained abstinence from drugs and active participation in rehabilitation activities. The Court also took into account the defendant's personal efforts, such as completing the skydiving course, which was seen as a positive step towards recovery. The evidence showed that the defendant had made significant progress and had achieved the goals set out in the order.

After considering all the evidence, the Court concluded that the defendant had met the criteria for confirming the Drug and Alcohol Treatment Order. The Court acknowledged the defendant's efforts and the progress made towards rehabilitation. The Court was satisfied that the defendant had achieved the rehabilitation goals and was committed to maintaining a drug-free lifestyle. Consequently, the Court confirmed the Drug and Alcohol Treatment Order, as last amended on 31 May 2024.

Orders

Orders of the court

The Drug and Alcohol Treatment Order last amended on 31 May 2024 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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