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R v McHughes

R v McHughes

Case [2021] ACTSC 92 26 March 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McHughes
Citation:	[2021] ACTSC 92
Hearing Date:	26 March 2021
DecisionDate:	26 March 2021
Before:	Refshauge AJ
Decision:	1. It be noted that that Walter Robert McHughes has been assessed as not eligible for a Drug and Alcohol Treatment. 2. A Drug and Alcohol Treatment Assessment be prepared. 3. The Director-General of the Health Directorate, through Alcohol and Drug Services and Forensic Mental Health Services, and the Director-General of Justice and Community Safety, through ACT Corrective Services, be directed to prepare a Drug and Alcohol Treatment Assessment and submit it to the Court and to members of the Treatment Order Team on or before 29 April 2021. 4. The proceedings be adjourned to 30 April 2021 at 2:30 pm for consideration. 5. The Director-General of the Health Directorate be requested to consult with the Courts and Tribunal Disability Liaison Officer in the preparation of the Suitability Assessment.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – consideration of whether to order a drug and alcohol treatment assessment (a suitability assessment) when the person is assessed as being not eligible for a drug and alcohol treatment order – significant mental health issues – difficulties in comprehension due to persistent symptoms – reasonable to assess whether offender can show that they can participant in the treatment order process – suitability assessment ordered
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12A, 12A(2)(c), 46J, 46J(5), Table 46K, 80M Magistrates Court Act 1930 (ACT) s 90A
Cases Cited:	R v Massey (No 1) [2020] ACTSC 256 R v Pelecky [2020] ACTSC 246
Texts Cited:	ACT Supreme Court, Notice to Practitioners: Drug and Alcohol Sentencing List, 19 December 2019 Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) Supplementary Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT)
Parties:	The Queen (Crown) Walter Robert McHughes (Offender)
Representation:	Counsel N Deakes (Crown) D Turner (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Offender)
File Number:	SCC 75 of 2021

REFSHAUGE AJ:

Introduction

A Drug and Alcohol Treatment Order (a Treatment Order), under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), is an important and progressive sentencing option established by the ACT Legislative Assembly, which commenced on 3 December 2019.

Clearly, s 12A of the Sentencing Act also sets out qualifications for eligibility for a person who is seeking to be subject to a Treatment Order. Some, such as whether an offender has pleaded guilty to an eligible offence or whether the offender is subject to a ‘sentencing order’, can be fairly clearly identified. See, for example, R v Pelecky [2020] ACTSC 246.

Some, such as whether the offender is likely to be sentenced to a term of imprisonment of at least one year but not more than four years, are more complicated. Sometimes that will be easily assessed as not within that limit,…

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 McHughes

Details

AGLC: R v McHughes [2021] ACTSC 92
Case: [2021] ACTSC 92
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an application in R v McHughes, where the offender, Walter Robert McHughes, had pleaded guilty to offences of burglary, aggravated burglary and theft. McHughes had requested to be assessed for a Drug and Alcohol Treatment Order (Treatment Order). The eligibility for a Treatment Order is regulated by the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The eligibility criteria are outlined in s 12A of the Sentencing Act and include factors such as the offender having pleaded guilty to an eligible offence, and being subject to a 'sentencing order'. Additionally, the offender must be likely to be sentenced to a term of imprisonment of at least one year but not more than four years. The eligibility assessments conducted on McHughes by Alcohol and Drug Services and Forensic Mental Health Services of Justice Health Services identified significant mental health issues that posed a considerable impediment to his engagement in the screening processes of the Drug and Alcohol Sentencing List and that he was likely to find participation in an alcohol and other drug treatment challenging due to his comprehension and persistent symptoms. The assessments also found that counselling or group work would likely be ineffective.

The court was required to decide whether, despite the eligibility assessments, McHughes should be granted an opportunity to participate in a Suitability Assessment to determine if he could engage in the Treatment Order process. The court found that it was reasonable to allow McHughes the opportunity to demonstrate his ability to participate in the Treatment Order process under less concentrated circumstances and with less pressure. Consequently, the court ordered a Suitability Assessment, directing the Director-General of the Health Directorate and the Director-General of Justice and Community Safety to prepare it and submit it to the Court and members of the Treatment Order Team by 29 April 2021. The court also requested the Director-General of the Health Directorate to consult with the Courts and Tribunal Disability Liaison Officer to assist in identifying any supports that could help McHughes participate in the Treatment Order process and treatment and supervision plan. The proceedings were adjourned to 30 April 2021 at 2:30 pm for consideration, with a sentencing date of 14 May 2021 likely, depending on the outcome of the Suitability Assessment.

Orders