R v McHughes (No 2)
[2021] ACTSC 168
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McHughes (No 2) |
Citation: | [2021] ACTSC 168 |
Hearing Date(s): | 25 June 2021 |
DecisionDate: | 25 June 2021 |
Before: | Refshauge AJ |
Decision: | 1. Walter Robert McHughes not be granted bail. |
Catchwords: | CRIMINAL LAW – Judgment – Bail – National Disability Insurance Scheme – Opportunity for rehabilitation - Bail not granted |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 12A |
Cases Cited: | R v McHughes [2021] ACTSC 92 |
Parties: | The Queen Walter Walter Robert McHughes |
Representation: | Counsel M Lucero (Crown) J Cooper (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Services (ACT/NSW) (Offender) | |
File Number(s): | SCC 75 of 2021 |
REFSHAUGE AJ:
Walter Robert McHughes has made an application for bail, pending a sentencing hearing in this Court where consideration will be given to the making of a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Mr McHughes has already been subject to an Eligibility Assessment which suggested that he was not suitable for a Drug and Alcohol Treatment Assessment (a Suitability Assessment), which is the preliminary consideration of a Treatment Order: R v McHughes [2021] ACTSC 92.
The reason Mr McHughes has not been recommended for a Suitability Assessment is that he faces some mental challenges that suggest he will not benefit from the kind of rehabilitation that would be available through a Treatment Order. Nevertheless, an opportunity has been given to him to proceed through to a Suitability Assessment, on the basis that he may have access to support through the National Disability Insurance Scheme, which will mean his participation in rehabilitation through a Treatment Order has reasonable prospects of making a difference and being successful.
Mr McHughes now has an opportunity to undertake rehabilitation. Regrettably, the rehabilitation is in New South Wales at the Wayback Ltd Drug and Alcohol Rehabilitation Centre in Harris Park, Sydney. There are difficulties with that. One difficulty is that Mr McHughes is currently the subject of a warrant issued in New South Wales for his failure to comply with conditions of a Community Corrections Order, which was made when he was convicted of a charge of shoplifting. Were he to enter New South Wales, he is at risk of that warrant being executed and, were that warrant to be executed, he would then have to face re-sentencing for the shoplifting offence.
While ordinarily shoplifting, of itself, would not necessarily suggest that a term of imprisonment would be imposed, it does seem that, in this case, there is a greater risk of imprisonment, because of Mr McHughes' long term and depressing criminal history, but also because one of the purposes, I assume, of making a Community Corrections Order, which was that he undertake residential rehabilitation at a facility in Brewarrina, was frustrated when that facility rejected him. That may, of course, be ameliorated to some extent by his participation in the Wayback Ltd Drug and Alcohol Rehabilitation Centre program.
The other problem is that he will not be living in a central facility, but in an outlying residential facility associated with the Wayback Rehabilitation Centre. It is my understanding, and it has not been suggested to the contrary, that participants at the Wayback Rehabilitation Centre are required to make their own way each day to the central facility for rehabilitation and they are not under the regular supervision that would occur in a self-contained, wholly integrated facility.
There is no doubt that Mr McHughes is a person who would benefit from rehabilitation if it can be successfully delivered to him and he can appropriately engage. As to the latter, that is still, to some extent, uncertain because the professional assessment to date is that, without assistance and support, Mr McHughes’ likelihood of successful rehabilitation is not great. Nevertheless, it may be that assistance will overcome the concerns that have been expressed.
At the moment, however, those supports are not only not in place, but have not yet been identified. It is proposed that they be identified on 30 June 2021, but, of course, that will be difficult if Mr McHughes is in New South Wales. In any event, those supports are unlikely to be implemented for some time after that and therefore will not be part of the program that he will undertake at the Wayback Rehabilitation Centre.
This Court has been established on the basis that rehabilitation is important, and there are many occasions on which I underline that when dealing with participants in the programs of the Court or considering whether to admit offenders to them.
In principle, for Mr McHughes to participate in rehabilitation while he is awaiting sentence would be desirable and, in general terms, this Court would not stand in the way of that opportunity. In this case, however, I am concerned that the risks of sending Mr McHughes to New South Wales and of his participation in the Wayback program in his current circumstances do not justify the opportunity that would otherwise be so valuable to Mr McHughes in other circumstances.
Although the proposed conditions do go a long way towards protecting the interests of the Court, there is a suggestion, for example, that a curfew would be appropriate, and I am told that the Wayback Rehabilitation Centre would supervise that curfew. I am told and pleased to note that Wayback is one of those facilities where it is becoming more common that a report would be made to ACT Police were Mr McHughes to leave the facility, which is, of course, always a risk in those circumstances.
It is nevertheless more difficult to act speedily to locate him, given that he will be in New South Wales rather than in the ACT, although if someone does leave a facility, even here, there is always difficulty in locating them thereafter and executing any warrant that would be appropriately issued.
Accordingly, in all the circumstances, I am not satisfied that it is appropriate to grant bail in this case. That should not be seen as an indication that Mr McHughes will not be subject to a Treatment Order if things fall into place.
I do regret that Mr McHughes' wish at this stage to undergo rehabilitation is going to be frustrated by my decision, but I am not convinced that this is the right rehabilitation option for him. His efforts in obtaining and successfully securing a place at Wayback will, no doubt, be of significance in assessing whether a Treatment Order should be made, as an indication of his commitment to rehabilitation and it would then be taken into account appropriately, but it is probably not yet fair to him to put him in that facility for this purpose.
Accordingly, the application is dismissed.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: A Spencer Date: 4 August 2021 |