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…

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 (No 2)

Details

AGLC: R v McHughes (No 2) [2021] ACTSC 168
Case: [2021] ACTSC 168
Decision Date

CaseChat Overview and Summary

The case of R v McHughes (No 2) was heard in the Supreme Court of the Australian Capital Territory before Refshauge AJ. Walter Robert McHughes applied for bail pending a sentencing hearing in the court where consideration would be given to the making of a Drug and Alcohol Treatment Order (a Treatment Order) under section 12A of the Crimes (Sentencing) Act 2005 (ACT). McHughes was deemed unsuitable for a Drug and Alcohol Treatment Assessment due to some mental challenges, but an opportunity was given for him to proceed to a Suitability Assessment on the basis that he may have access to support through the National Disability Insurance Scheme. McHughes now has an opportunity to undertake rehabilitation in New South Wales at the Wayback Ltd Drug and Alcohol Rehabilitation Centre in Harris Park, Sydney.

The legal issues the court was required to decide were whether McHughes was suitable for rehabilitation and whether the risks of sending him to New South Wales justified the opportunity of undergoing rehabilitation. The court considered the difficulties with McHughes participating in rehabilitation in New South Wales, including the risk of his warrant being executed and the fact 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. The court also considered that, while McHughes was a person who would benefit from rehabilitation, it was uncertain whether he could successfully engage in it without assistance and support. The proposed conditions for bail did go a long way towards protecting the interests of the court, but Refshauge AJ was not satisfied that it was appropriate to grant bail in this case.

Refshauge AJ dismissed McHughes' application for bail, noting that the court had been established on the basis that rehabilitation was important, and that there were many occasions on which the court underlined that when dealing with participants in the programs of the court or considering whether to admit offenders to them. The court was concerned that the risks of sending McHughes to New South Wales and of his participation in the Wayback program in his current circumstances did not justify the opportunity that would otherwise be so valuable to McHughes in other circumstances. Refshauge AJ noted that McHughes' efforts in obtaining and successfully securing a place at Wayback would, 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 was probably not fair to him to put him in that facility for this purpose. The application was dismissed.

The final orders of the court were that Walter Robert McHughes not be granted bail.

Orders