R v Peric (No 2); R v Williams (No 2) - [2022] ACTSC 277

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Peric (No 2); R v Williams (No 2)
Citation:	[2022] ACTSC 277
Hearing Date:	Hearing on the papers
DecisionDate:	30 September 2022
Before:	Refshauge AJ
Decision:	1. The Court directs that Mitchell Peric be exempt from attending for urinalysis on 5 October 2022. 2. The Court directs that David Williams be exempt from attending urinalysis on 5 October 2022.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Drug and Alcohol Treatment Orders – Compliance with Conditions – Attendance at Urinalysis – Excused from Attending
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12A, 80M Holidays Act 1958 (ACT) s 3 Sentencing (Drug and Alcohol Treatment Orders) LegislationAmendment Act 2019 (ACT)
Cases Cited:	R v Antonovic (No 3) [2021] ACTSC 338 R v Crawford (No 3) [2020] ACTSC 369 Wong v The Queen [2001] HCA 64; 207 CLR 584
Parties:	Director of Public Prosecutions Mitchell Peric ( Offender) David Williams (Offender)
Representation:	Counsel K Stitt (Crown) C Duffy ( Offenders)
Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offenders)
File Numbers:	SCC 213 of 2021 SCC 214 of 2021 SCC 279 of 2021 SCC 280 of 2021

REFSHAUGE AJ:

Introduction

As has been explained in many Court decisions, the Drug and Alcohol Sentencing List (Sentencing List) is the program implemented by amendments made by the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Act 2019 (ACT) to the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) to provide for a diversion of offenders from the usual criminal justice system and sanctions where the commission of their crimes was substantially contributed to by the use of drugs or alcohol on which they were dependent. See, for example, R v Antonovic (No 3) [2021] ACTSC 338 at [1]–[8] and R v Crawford (No 3) [2020] ACTSC 369 at [1]–[6].
The implementation of the program is by the making of a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Sentencing Act as a way of the offender serving the sentence of imprisonment of between one and four years imposed for the offence or offences committed. That sentence of imprisonment is the custodial part of the Treatment Order.
The establishment of the Sentencing List was the Court’s method of providing both the judicial supervision and the coordination of the regime of intensive therapeutic intervention and case management, both of which are the treatment and supervision part of the Treatment Order.
Thus, the offender is required to undertake the obligations of the course of rehabilitation and supervision established in the treatment and supervision part of the Treatment Order and, during that time, the custodial part is suspended.
Participation in the requirements of the treatment and supervision part of the Treatment Order is, therefore, a prerequisite for the offender’s entitlement to the suspension of the term of imprisonment. The treatment and supervision plan is designed by the members of the Treatment…

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.

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Details

Case: [2022] ACTSC 277
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Mitchell Peric and David Williams, subject to Drug and Alcohol Treatment Orders, sought exemption from attending urinalysis on 5 October 2022. The urinalysis requirement was rescheduled due to Labour Day being a public holiday, which caused the clinic to be closed on the usual testing day. The offenders argued that attending the rescheduled urinalysis would disrupt their employment and cause financial strain, which they contended should warrant an exemption. The Court needed to decide whether the short notice and potential disruption to employment justified an exemption from the mandatory urinalysis requirement.

The Court considered that while compliance with the Treatment Order obligations was paramount, flexibility could be shown in certain circumstances. The Court assessed the offenders' progress, the short notice of the rescheduled urinalysis, and the potential impact on their employment and wellbeing. The Court found that the offenders' recent abstinence, positive progress, and short notice provided sufficient grounds to grant the exemption for this particular instance, without undermining the overall Treatment Order regime. The exemption was granted to both offenders based on the similar circumstances and to ensure consistency and fairness in the application of the Treatment Order requirements.

Orders