R v Pelecky (No 4) - [2021] ACTSC 343

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Po’oi (No 3)
Citation:	[2021] ACTSC 343
Hearing Date:	30 July 2021
DecisionDate:	4 August 2021
Before:	Refshauge AJ
Decision:	1. The Drug and Alcohol Treatment Order made on 8 February 2021 and amended on 26 March 2021 and further amended on 18 June 2021 be cancelled. 2. The sentence be adjourned to 5 November 2021 at 2:30pm. 3. Leave be granted to either party to relist the matter on not less than 5 days notice to the Court and the other party. 4. Daniel Ronald Po’oi be remanded in custody until 5 November 2021 at 2:30pm.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – further offending – rehabilitation – cancellation of Order
Legislation Cited:	Crimes Act 1900 (ACT) s 194 Crimes (Sentencing) Act 2005 (ACT) ss 10, 12A, 80O, 80ZB, 80ZE, 80ZJ
Cases Cited:	R v JM [2014] ACTSC 380 R v Law [2021] ACTSC 351 R v Massey (No 4) [2021] ACTSC 211 R v Po’oi [2021] ACTSC 151 R v Po’oi (No 2) [2021] ACTSC 340 R v Tonna (No 2) [2020] ACTSC 362 Samani v The Queen [2016] ACTCA 48
Parties:	The Queen ( Crown) Daniel Ronald Po’oi ( Offender)
Representation:	Counsel M Lucero (30 July 2021); C Wanigaratne (4 August 2021) ( Crown) C Duffy ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Numbers:	SCC 276 of 2020 SCC 277 of 2020

REFSHAUGE AJ:

Introduction

Those persons who seek to be subject to a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) must be convicted as offenders who have committed offences for which a just and adequate sentence is imprisonment for at least one year.

A sentence of imprisonment is effectively the last resort when a court considers what sentence to impose: s 10 of the Sentencing Act; Samani v The Queen [2016] ACTCA 48 at [38]. Thus, the offending in all the circumstances, including the personal circumstances of the offender, must justify a serious sentence.

A Treatment Order means that an offender, however, will not have to serve any period of imprisonment after the order is made, provided he or she complies with the conditions of the Treatment Order. The objectives of such an Order are to provide a program of special rehabilitation, which is resource intensive for the community, to reduce the offender's dependency on alcohol or other drugs and the health risks associated with the dependency, as well as to assist the offender to integrate into the community with a drug and crime free lifestyle. This investment obviously has potentially great value for the offender, who can then live a better life and develop his or her potential through family, employment and participation in society. The community, however, also benefits considerably by reducing…

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 Pelecky (No 4)

Details

AGLC: R v Pelecky (No 4) [2021] ACTSC 343
Case: [2021] ACTSC 343
Decision Date: 4 August 2021

CaseChat Overview and Summary

In the matter of R v Pelecky (No 4), the respondent, Daniel Ronald Po’oi, faced the Supreme Court of New South Wales. The court was asked to consider the cancellation of a Drug and Alcohol Treatment Order (DATO) issued against the respondent and to determine the appropriate sentencing in light of his further offending while subject to the DATO. The respondent, who had been convicted of multiple drug-related offences, was originally sentenced to a DATO on 8 February 2021. This order was subsequently amended on two occasions, on 26 March 2021 and 18 June 2021. However, the respondent committed further offences during the period in which the DATO was in effect, leading to the current application to cancel the order.

The legal issues before the court involved the assessment of the respondent's suitability for a DATO and whether his further offending warranted the cancellation of the order. The court needed to consider the objectives of the DATO, which include rehabilitation and reducing the likelihood of reoffending. Given the respondent's persistent offending, the court had to weigh the potential for rehabilitation against the repeated breaches of the order. Additionally, the court had to determine the appropriate sentence and the implications of the cancellation of the DATO on the sentencing process.

The court found that the respondent's further offending demonstrated a lack of rehabilitation and a disregard for the conditions of the DATO. The judge concluded that the continued imposition of the DATO would not be effective in achieving its rehabilitative goals. Consequently, the court decided to cancel the DATO and relist the matter for sentencing. The judge also granted leave to either party to relist the matter on not less than five days notice to the court and the other party, and remanded the respondent in custody until the new sentencing hearing.

Orders

Orders of the court

1. The Drug and Alcohol Treatment Order made on 8 February 2021 and amended on 26 March 2021 and further amended on 18 June 2021 be cancelled.

2. The sentence be adjourned to 5 November 2021 at 2:30pm.

3. Leave be granted to either party to relist the matter on not less than 5 days notice to the Court and the other party.

4. Daniel Ronald Po’oi be remanded in custody until 5 November 2021 at 2:30pm.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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