R v Pelecky (No 3)
[2020] ACTSC 371
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pelecky (No 3) |
Citation: | [2020] ACTSC 371 |
Hearing Date: | 15 December 2020 |
DecisionDate: | 18 December 2020 |
Before: | Refshauge AJ |
Decision: | 1. The 15 December 2020 cancellation of the Drug and Alcohol Treatment Order made on 28 September 2020 and amended on 13 November 2020 be confirmed. 2. The proceedings be adjourned until 22 January 2021 with a view to finalising the matter then. 3. Mr Pelecky be remanded in custody to 22 January 2021. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of drug and alcohol treatment order – drug usage – relative youth and immaturity – sign of progress – application to cancel drug and alcohol treatment order – cancellation of drug and alcohol treatment order – imposition of original sentence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 46J, 80O, 80Y, 80ZE 80ZH, 80ZJ |
Cases Cited: | Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BB (Supreme Court of the Australian Capital Territory, Refshauge J, 30 May 2013) R v Tonna (No 2) [2020] ACTSC 362 |
Parties: | The Queen ( Crown) Patrik Pelecky ( Participant) |
Representation: | Counsel K Reardon ( Crown) C Duffy ( Participant) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Participant) | |
File Number: | SCC 185 of 2020 SCC 186 of 2020 |
REFSHAUGE AJ:
On 28 September 2020, I made a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) in respect of Patrik Pelecky, whom I had convicted of the primary offence of aggravated dangerous driving. I extended the Order to cover 17 other offences of which I have also convicted him. The total sentence of imprisonment for these offences was a sentence of four years to commence on 29 April 2020. His custodial sentence was, of course, suspended from the date of sentence, upon the making of the Treatment Order. The Treatment Order required Mr Pelecky to admit himself to the drug rehabilitation program at Canberra Recovery Services (CRS) and remain there until it was completed. He admitted himself to CRS on that day.
Mr Pelecky was discharged from CRS on 1 December 2020 because of his use of drugs on the premises and possession of a mobile phone contrary to house rules. As a result, the Crown has applied for cancellation of the Treatment Order.
Background
Mr Pelecky committed a range of 27 offences between 2 and 5 December 2019, and between 18 and 27 April 2020. These ranged from dishonesty offences including burglary, three offences of dishonestly driving a motor vehicle without the owner's consent, and other theft offences, to many driving offences, some of which were regulatory type offences, but including more serious offences such as various dangerous driving offences. There were other offences including failing to stop when directed by police and escaping arrest.
It was a criminal spree over some months showing a substantial disregard for other peoples' property, especially motor vehicles, and of the road rules, many of which were offences that put other road users in danger. The facts are set out in detail in R v Pelecky (No 2) [2020] ACTSC 370 (at [3]-[16]). He pleaded guilty to all the offences.
On 28 September 2020, I sentenced Mr Pelecky to a series of terms of imprisonment for 18 of the offences which, after making some wholly or partly concurrent, totalled four years' imprisonment to commence on 29 April 2020, to take into account pre-sentence custody. The balance of nine offences were dealt with by fines which totalled $2,500: see R v Pelecky (No 2) (at [68]-[101]).
Two Drug and Alcohol Treatment Assessments were prepared under s 46J of the Sentencing Act by officers of ACT Corrective Services of the Justice and Community Safety Directorate, and the Alcohol and Drug Services of Canberra Health Services. Both recommended that Mr Pelecky was suitable for a Treatment Order. I was satisfied of the relevant matters and made such an order for 12 months, but on the basis that he would undertake residential drug rehabilitation. The custodial part of the Treatment Order was the four-year term of imprisonment, which was suspended from the date the sentence was imposed. The treatment and supervision part of the Order, as well as including the core conditions set out in s 80Y of the Sentencing Act, required Mr Pelecky to admit himself to the treatment program of CRS, a residential drug facility at Fyshwick, ACT, and complete that program.
Mr Pelecky entered the facility, and, after induction, initially showed some resistance and lack of engagement, but gradually lifted his motivation and improved his participation, though with some inappropriate activities. He seemed to have been settling in and addressing his drug use.
Thus, on 28 October 2020, it was reported that Mr Pelecky had ‘lifted his motivation with his recovery program and ... [was] starting to challenge his old thinking and behaviours’. He was reported to be doing well in the group discussions.
While this was very positive, there was still some less satisfactory elements, in that it was reported that he was, ‘still associating with negative influences’, and had participated in some unpleasant and childish behaviour. But even then, it was noted that he was ‘showing signs of wanting [to] change’. He was even acknowledged for his positive behaviour.
As I explained in R v Tonna (No 2) [2020] ACTSC 362 (at [35]-[39]), the application to cancel a Treatment Order is to be heard as a review under s 80ZH of the Sentencing Act, and accordingly, if there is a viable alternative which is likely to achieve the objectives of the Treatment Order set out in s 80O of the Sentencing Act, then I may dismiss the application to cancel the Treatment Order, even if the ground on which it is made has been made out, and instead amend the Treatment Order.
On 29 October 2020, the very next day after the positive report that I had received about Mr Pelecky, he left the facility. This departure breached a condition of the Treatment Order. He told the facility that he had used methamphetamine. Contrary to a further condition of the Treatment Order, he failed to report to ACT Corrective Services and disappeared.
I issued a warrant under s 80ZJ of the Sentencing Act on 29 October 2020, and on 13 November 2020, Mr Pelecky was arrested when he and some other persons attempted to jump start a stolen motor vehicle. When police arrived, he initially gave a false name, address and date of birth. He was not charged with any offence and was remanded in custody on 13 November 2020. Despite this, Mr Pelecky expressed motivation to re-enter the residential rehabilitation program at CRS, which assessed him as suitable to return to the program.
As a result, on 23 November 2020, I amended the Treatment Order to direct him, as a condition of the Order, to return to CRS and complete the program. He did return to CRS that day, but on 1 December 2020, he was discharged from the facility for being in possession of a mobile phone and drug paraphernalia, and for having consumed drugs.
On this occasion, he did report as required, and was remanded in custody on 4 December 2020. Mr Pelecky explained that the drugs had been in his clothing and had not been found on a search before he entered the facility. He felt under some strain and used the drugs. He gave no reasonable explanation for having the phone, the possession of which was prohibited by the rules of the facility, which a term of the Treatment Order required him to obey. No suitable residential drug rehabilitation facility is available for Mr Pelecky at this time.
Application
On the basis of these facts, the Crown has applied, under s 80ZE of the Sentencing Act, for the cancellation of the Treatment Order and for the sentence of imprisonment that I had originally imposed but suspended, to be imposed.
That provision empowers the Court to cancel the Treatment Order if satisfied on the balance of probabilities of a number of circumstances which might be described as unsatisfactory compliance or other unsatisfactory circumstances which render it inappropriate to continue with the Treatment Order. The Crown relies on s 80ZE(1)(c) which provides that ‘the offender is unwilling or unlikely to comply with a condition of the offender's treatment order'.
The Treatment Order was made on the basis that a residential rehabilitation condition of the treatment was required, and this was made a condition of the Treatment Order and of the amendment to the Treatment Order.
The Crown has pointed out that Mr Pelecky has now failed to comply with the rehabilitation program on two occasions, leaving on one occasion and being discharged on the other. As noted above, no other such program is presently available.
The Crown further submits that the only alternative, namely rehabilitation while he is in the community, would be inconsistent with the recommendation on which the Treatment Order had been made. His behaviour since then did not justify allowing him to engage in rehabilitation under the Treatment Order in the community. While Mr Pelecky still asserts his desire for rehabilitation, his actions do not match his assertions.
The Application for cancellation of the Treatment Order requires me to decide whether Mr Pelecky is unwilling or unlikely to comply with a condition of the Treatment Order, and this must be proved on the balance of probabilities.
Consideration
Mr Pelecky initially could fairly be assessed as not yet having come to terms with the realisation that his rehabilitation is a serious matter, and that he has to take responsibility for his actions. His behaviour in not returning to this Court on his initial departure from CRS, and some of his more stupid behaviour in his second period of rehabilitation there, are the most obvious versions of that attitude.
Indeed, there is still some continuing concern about this in the situation with his second departure from CRS, though this was not initiated by him. The explanation for using the illicit drugs shows his avoidance of responsibility. Whether the searchers missed them or not, it was his decision to use and he had chosen to do so. He could have disclosed them. I accept that the consequences may have deterred him from that. Quite frankly, he could have flushed them down the toilet or otherwise have disposed of them.
Similarly with the phone, he has not seemed to accept full responsibility of having the phone contrary to the facility's rules.
Nevertheless, Mr Pelecky is 20 years old. While society regards him as an adult, the law does not accept that at least for sentencing purposes; he is still relatively youthful. See, for example, what was said by the New South Wales Court of Criminal Appeal in R vGordon (1994) 71 A Crim R 459.
I note too that when ACT Corrective Services spoke to him before his return to CRS, it was made clear to him what the likely outcome would be if he repeats his past behaviour. This perhaps both explains a reticence to honestly disclose the presence of the drugs and the phone, and also suggests an element of defiance and brazenness in his behaviour.
Nevertheless, fear of consequences was also a factor, which was his explanation too for failing to report after his first departure. This is not inconsistent with his immaturity.
Whilst immaturity is part of an explanation for Mr Pelecky's behaviour, it cannot be used to explain his failures entirely.
On the other hand, he did not decamp on this occasion. I assess that as, at least, a glimmer of the greater maturity and a sign of greater acceptance of responsibility.
Further, he did have positive reports of his progress, showing a better level of motivation and a challenge to his unsatisfactory behaviour and thinking.
This is not inconsistent with his Criminal History, where he has offences of escaping custody on his record, a behaviour that, perhaps on the latest occasion where he did report to the Court and return to face the consequences, is a further glimmer of a change in behaviour.
Further, while he has an unenviable record, it is perhaps not so long, though still depressing. It does, after all, commence only in July 2016 and does not contain any offences for a not insignificant period, between late 2017 and late 2019.
A comment in a report from CRS on 21 October 2020 is revealing. It reads:
Significant factors affecting the client's compliance or treatment progress:
Denial and age. Denial in that Patrik still feels like his lifestyle was fun, crime and drug taking has become his identity and coping strategy and he is unsure of how to be an adult in the world. Patrik is only 20 years of age and acts like an entitled child at times for negative attention.
Positive behaviours/maintenance of positive behaviours:
On a positive note, Patrik is having a voice in groups and attending most groups. Feedback today was he is attending community duties.
Mr Pelecky, in addition to presenting himself to Court, has taken another positive step which is also a sign of progress. In recognising his need to take responsibility for himself, he has made enquiries of another rehabilitation agency, Arcadia House, conducted by Directions Health Services, and has been told that a placement is possible in late January or early February. Regrettably, I do not know either whether he has been assessed and found suitable for admission, or exactly when the placement may become available.
The Crown submitted that the sum of the progress made by Mr Pelecky did not justify resentencing Mr Pelecky, and I should impose the sentence originally imposed before I made the Treatment Order. The Crown further submitted that the more recent progress should be viewed with caution, as the lengthy sentence Mr Pelecky was facing did provide a self-interested motivation for this behaviour, which may not therefore be so readily accepted as evidence of growing maturity and a genuine acceptance of responsibility.
The Crown further submitted that I should not re-sentence but impose the original sentence, and any opportunity for rehabilitation can be managed by the Sentence Administration Board under the parole regime, for conditions on which I might make recommendations.
While I accept all this and have carefully thought about how best to proceed, I do consider that Mr Pelecky's youth does justify some support towards rehabilitation. Although in relation to a young man who was very nearly 17 at the time, I note what I said in R v BB (Supreme Court of the Australian Capital Territory, Refshauge J, 30 May 2013):
As the Court of Appeal recently said in R v CV [2013] ACTCA 22 at [40]:
[In the case of young offenders], the Court is entitled to give more weight to the promotion of the rehabilitation of the offender than to any other purposes [of sentencing].
I have set out in R v PM [2009] ACTSC 24 at [52]-[54] the approach to be taken and I apply that here.
In this case, I am particularly reminded of what King CJ said in R v Osenkowski (1981) 30 SASR 212 at 212-3:
There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
There are, as well, good criminological reasons for striving for rehabilitation if it can be achieved. As French CJ said in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
Further, there is no rule or policy that provides that a participant in a Treatment Order whose failures have resulted in at least two occasions of custody, because of the provisional cancellation of the suspension of custody under the Treatment Order, should not, nevertheless, have their suspension of custody reinstated: see R v Bell (No 2) [2020] ACTSC 83.
In this case, I am faced with two difficulties, difficulties that I also faced in R v Tonna (No 2). They are, first, that I can only detain Mr Pelecky in custody for 14 days on the breach constituted by his discharge from CRS. The second is that resource constraints limit the availability of appropriate rehabilitation options and that can justify cancellation of a Treatment Order, even where an offender is willing or suitable for it.
In this case, I am satisfied that, at the current time, only residential drug rehabilitation is a suitable alternative to imprisonment for Mr Pelecky. There is no currently available residential drug rehabilitation that he can access. His 14-day remand expired when I heard Crown submission for cancellation of the Treatment Order.
Accordingly, I had no real option but to cancel the Treatment Order on 15 December 2020, and I did so.
I am satisfied, however, that Mr Pelecky should be given the chance to explore admission to the Arcadia House rehabilitation facility, before I decide how to proceed. I must, in any event, re-sentence him to correct an error that had been made in one of the original sentences that I imposed.
Accordingly, I propose to adjourn the proceedings to allow him to explore that opportunity further. There will be a sitting of the Court on 22 January 2021, despite the court vacation, and that should give him sufficient time to explore that option further and come to Court with a precise plan.
I will then finalise the exact terms of how the matter should properly proceed.
His Honour then spoke directly to the participant:
Mr Pelecky, please stand.
I confirm the 15 December 2020 cancellation of the Drug and Alcohol Treatment Order made on 28 September 2020 and amended on 13 November 2020.
I adjourn these proceedings until 22 January 2021 with a view to finalising the matter then.
I remand you in custody to that date.
Mr Pelecky, that is the formal Order that I make, and I need to explain it to you. It is a fine line between imposing a four-year sentence, or the balance of a four-year sentence, and giving you an opportunity to go to Arcadia House.
At this stage I am prepared, in all the circumstances, to give you that chance. But you need to take it, you need to take the initiative, and you need to be assessed and ready and find a place at Arcadia House. I will review the matter on 22 January next year, at which time I will consider the position precisely and structure a sentence to take account of the relevant factors.
If Arcadia House proves unavailable to you, then it is possible that you could, of your own initiative, explore other opportunities. Obviously you are limited by your criminal history to ACT facilities, and there are limited facilities here. But if you are genuine in your expressions of motivation, and to some extent in addressing your criminal history, you would understand why people think they are just words. You take the action. If you are really able to take responsibility and show the growing maturity that a 20 year old should be able to show, then you can take that action and come back with a plan on 22 January 2021, and we will see what can be done. You have got to be careful about that, you have got to be sensible about that.
I can be creative, but it has got to be residential rehabilitation of some reasonable length. Your not inconsiderable drug dependency will need some time and effort to manage, and it will take time for you to come to terms with it fully, in order for me to justify a very serious sentence being set aside to, in effect, allow you to rehabilitate yourself, and as I have indicated, to be more useful to yourself, to your family and to be less of a risk and more beneficial to the community.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge. Associate: Samuel Xiang Date: 16 June 2021 |
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