R v McColl (No 3)
[2024] ACTSC 291
•20 September 2024
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 and Alcohol Treatment Order (Treatment Order).
It is an opportunity to celebrate the hard work you have done since June 2022, when your Treatment Order commenced. It is an opportunity to honour what you have achieved in meeting the expectations of the treatment program, of the Court, and of the community. It is also an opportunity for reflection as to the journey of rehabilitation that you have undertaken.
This occasion, and your journey of rehabilitation, is one that has taken place on the lands, amongst the waterways and the sky of the traditional custodians of this Country. I acknowledge this and thank the custodians for caring for Country for thousands of generations.
I pay my respect to their Elders past and present.
I also take this opportunity to express the Court’s gratitude to the members of the Treatment Team, and all those who have supported Rob in his rehabilitation. Their commitment to their roles involves infinite patience, care, and support for the participants, and an occasion such as this reflects the significance of their valuable contributions.
It is, however, ultimately an outcome that can only occur if a participant embraces the opportunity for a Treatment Order. Rob has done this, and for that, he is also to be thanked.
It has been my privilege to witness a part of your journey and engage with you in the time that I have sat as a judge in the Drug and Alcohol Sentencing List. The Court is also privileged today to have the presence of Refshauge AJ who is in attendance to witness your graduation.
I trust that you understand that his Honour’s doing so reflects the pride that the Court has in you for your successful completion of your Treatment Order.
To enable me to understand how far you have come, I have read the original sentence decision. It is clear that your offending behaviour caused significant harm to the victims involved, and they likely still feel those impacts today. It is hoped that knowing that you have embraced the opportunity for rehabilitation, and that you are most unlikely to cause such harm to another person, will bring them some comfort.
I have also read the reports that were before the Court at the time of your sentencing and records of conversations with Refshauge AJ and Hopkins AJ in this Court over the course of your Treatment Order.
Your engagement with the Treatment Order was not always perfect. It reflects the non-linear journey that rehabilitation can involve. For you, this included a period during which you returned to custody. While in custody, you continued your commitment to rehabilitation and engaged with the Solaris Program. You later informed the Treatment Team that what you learnt in the Solaris Program while in custody was instrumental in changing your thinking and giving you renewed strength for rehabilitation.
Upon release from custody, you embraced the further opportunity with the Treatment Order and engaged in continued rehabilitation and other program support. From this time, your engagement with the Treatment Order can be described as essentially perfect. You are described as being open and honest, and as having demonstrated a willingness to engage with the Treatment Team. A counsellor reported being impressed with your engagement and growth. You are described as showing great respect to your fellow peers and to staff members.
You consistently returned negative results from urinalysis testing and have maintained long-term abstinence from substances. You secured the return of your licence and car, found employment, began to live independently from family and developed positive friendship circles.
You committed to your health and fitness, and have impressed us all with your skill in kickboxing and progression to participation in professional matches. You have also impressed with how much you have embraced your new life, so much so that you bravely went skydiving. And you report having learnt the satisfaction and contentment that comes from appreciating the small things in life, such as cleaning the house or gardening.
Rob – only you can truly understand the challenges you have faced to reach the point that you have reached today. Like so many who find themselves in the grip of drug dependency, you had traumatic experiences as a child and young person that shaped much of your conduct as a young adult.
You are still a young adult, but one now with a much brighter future. I know that all those who have witnessed your journey and supported you along the way are proud of you. I hope that you are proud of yourself for what you have achieved.
Well done. We wish you well for the future and look forward to seeing the positive contributions you will make in the community.
I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen
Associate:
Date:
Notation to decision – previous occasions of graduations of participants from the Supreme Court Drug and Alcohol Sentencing list are accessible at: