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 and Supervision Team (see s 80M of the Sentencing Act) to be professionally assessed as appropriate for each offender, though there are common elements for all.
Thus, for example, it is important that there are measures to ensure that abstinence from alcohol and other drugs is being observed by each participant in the Sentencing List, namely the offenders subject to a Treatment Order.
One of the measures which is an essential requirement for each participant is for them to engage in regular urinalysis. The frequency of urinalysis required for each participant is dependent on which of the phases of the program under the Treatment Order the participant is undertaking.
Urinalysis under the supervision of nurses employed by Canberra Health Services at a suite located at the Supreme Court building is where the monitoring and motivator which that urinalysis provides is carried out. Further, because of the current number of participants and the restricted hours for which the suite operates, there can be a delay after a participant arrives at the urinalysis suite before the urinalysis is completed for him or her.
Thus, each participant enters the regime in Phase One, stabilisation, and, usually, depending on compliance and treatment progress, completes that in not less than three months. Graduation to the next phase, consolidation, will reduce the participant’s involvement in programs and supervision, but is expected to enable him or her to engage more with the community again. This might be achieved by obtaining some further training, or if training is not necessary, some employment. That phase is expected to be completed in not less than four months. Graduation to Phase Three, reintegration, reduces further the obligations and emphasises the opportunities for the participant to re-enter the community fully and, with some continuing supervision and support, to be able to engage in community activities and more extensive employment.
10.In Phase One, a participant is required to undertake urinalysis three times a week. At present, the urinalysis suite is available each Monday, Wednesday and Friday.
11.In Phase Two, the participant is required to undertake urinalysis each Monday and Friday, subject to a direction to the contrary by a member of the Treatment and Supervision Team.
12.Mitchell Peric and David Williams are subject to a Treatment Order. They have both completed Phase One of their treatment and supervision regime. They have graduated to Phase Two. An issue has arisen in relation to the requirement for them to undertake urinalysis.
The facts
13.Because both Mr Peric and Mr Williams are in Phase Two, they are required to undertake urinalysis each Monday and Friday. Monday 3 October 2022, however, is Labour Day and has been declared, accordingly, to be a public holiday. As a result, the urinalysis clinic will not be open on that day, when they would ordinarily be required to undertake one of their bi-weekly urinalyses.
14.As a result, a direction has been given to those participants in Phase Two, including Mr Peric and Mr Williams, who would be required to undertake urinalysis on 3 October 2022, to do so instead on Wednesday 5 October 2022.
15.Regrettably, though the public holiday was known as it had been declared in s 3(1)(a)(xi) of the Holidays Act 1958 (ACT), the consequences requiring this direction had not been addressed until earlier this week.
16.Both Mr Peric and Mr Williams have sought to be excused from what is otherwise their urinalysis obligation required under each of their Drug and Alcohol Treatment Orders on Wednesday, 5 October 2022.
17.Mr Peric has just gained employment, which he commenced on 28 September 2022. He has explained the obligation he has under that Treatment Order to his employer, but in the terms usually applying to him, namely attendance for him for urinalysis on Monday and Friday, but has not discussed the new requirement, though only for this week, of attendance on Wednesday. He is concerned of the impact this additional requirement will have on his new role and the relationship with his employer, especially in relation to the short notice. He is also concerned about the loss of income resulting from this obligation.
18.Mr Williams has a similar problem, though he has been employed through his current employer for some time. Because of his working hours and the limited hours that the urinalysis suite is currently open, he cannot attend the suite before or after working hours. As he does not currently hold a driver licence, he would either have to take the day off, or be dependent on a work colleague to transport him to the Courts and back. He is concerned about the impact that this would have on his relationship with his employer, including his employer’s opinion of him, and also concerned about the loss of income if he has to take the day off.
19.Both Mr Peric and Mr Williams are, after some slow starts, doing particularly well in the progress they are making under the Treatment Orders. Mr Peric did record two uses of alcohol, though one was in Phase Two, where alcohol can be consumed, but only after he makes certain commitments to a safe alcohol plan. Mr Williams recorded one drug use, but in the very early stages of the Treatment Order and it was likely and accepted to have been a use prior to the making of the Treatment Order.
20.Both have been progressing well under the Treatment Orders. Both graduated to Phase Two in approximately the minimum time. Both have been highly commended for engagement and progress in the last few months.
Consideration
21.Because of the privilege of avoiding service of the just and adequate sentence of imprisonment for their crimes, compliance with the obligations of a Treatment Order is paramount for a participant.
22.A bespoke program is prepared for each participant, based on evidence and the professional assessment of the Health and Corrective Services officers who are members of the Treatment and Supervision Team.
23.While participants are consulted and their wishes or preferences accommodated, if they can be done consistent with the assessments of the needs and best likely success for each participant in their particular program, the choice is not that of the participant, but of the Treatment and Supervision Team, including the Court. Further, there are some unalterable requirements: regular urinalysis; attendance at Court, preferably in person; regular case management; conferences and counselling.
24.There is some flexibility in the actual occasion for some of these: quite often counselling sessions can be rescheduled and contact with case managers can be flexible.
25.Urinalysis is, however, a key component of the program. It is, of course, a significant motivator towards abstinence because of the risk of severe sanctions, including return to periods of custody or even cancellation of the Treatment Order. It is also a monitoring measure for the Treatment Order Team to ensure that a participant’s progress is not disrupted by the use of drugs.
26.The test is not whether drugs have been used; that is an inference to be drawn from a positive urinalysis result, but the breach of condition of the Treatment Order is the return of a positive urinalysis result itself. Of course, the initial test does not provide absolute certainty, so every positive result is submitted to a pathology laboratory for confirmation. A few are shown to have been a false positive. Hence, sanctions are imposed, not at the initial test, unless the participant admits use of drugs or alcohol, but on the pathology laboratory confirmation.
27.The evidence available to the Court shows the extreme unlikelihood of passive ingestion of drugs. In any event, the obligation of the participant is that he or she not return a positive urinalysis result. This requires, for example, care in associating with current users. This is preferably avoided by people, such as participants, trying to stay abstinent and achieve the objectives of the Treatment Order.
28.Despite all of this, the health and wellbeing of participants and their gaining of the normalcy of a drug and crime free lifestyle is an important objective. That, of course, includes the steps necessary for reintegrating into the community and, often, reconnecting with family. Thus, employment is a protective factor and, with income, which is important for a stable home situation, is not irrelevant for a proper consideration of requests relating to be excused from attendance at commitments.
29.It is accepted that others in the program are employed and have been able to manage to attend urinalysis despite being in work. It is also clear that the participants are regularly told that the commitments to the program’s mandatory requirements, such as urinalysis, but also maintaining contact with the Treatment and Supervision Team and attending Court and other appointments, must take precedence over other engagements. That does not mean that other obligations are not important. Medical appointments as well as employment duties are important, but must come with the caveat that they cannot be allowed to interfere with the mandatory requirements. Exceptions, of course, will include isolation because of government imposed restrictions as a result of the COVID-19 pandemic, or hospitalisations and the like.
30.Flexibility has been shown, partly encouraged by the need to respond to the restrictions created by the government imposed sanctions to which reference has been made. Thus, a number of participants still appear in Court by electronic means. Participants in residential drug rehabilitation facilities appear by audio-visual link. Those in home isolation, because they have COVID-19 or are a close contact, usually attend by telephone. Telephone is more problematic than an audio-visual link, but that is often all that is available, though at least it is available.
31.That facility has been extended to others. For example, a number of participants who are employed are permitted to attend by telephone from the workplace when work requirements would make personal attendance at Court a problem for their work. Indeed, that has been permitted of another participant today whose employer sought that flexible approach because of a current heavy workload.
32.Care, of course, must be taken to ensure that this does not become the normal situation and that a proper basis is laid for the request; it not being approved simply for the asking.
33.Similarly, approval is given for participants to travel interstate for some days when an important family event is happening there, such as serious illness of a parent, or a funeral, even though that will mean that mandatory requirements, such as attendance of urinalysis or counselling, will not occur. Again, it is not to be approved simply for the asking, but with a proper basis and requests have been denied.
34.Further, approval has been given for participants, attending courses of study that do not permit time for attendance of urinalysis, to be exempted from that attendance.
35.Of course, in each of these cases, the exemption is not granted simply on request, but an assessment is made of the reliability of the participant and the risk of him or her using alcohol or drugs, knowing that there is no likelihood of the detection because of the non-attendance at urinalysis.
36.Consistency is important in the criminal justice system (Wong v The Queen [2001] HCA 64; 207 CLR 584 at 612; [77]), as is fairness. Consistency does not, however, mean uniformity. Thus, it is not appropriate for a participant to argue that since another participant has been exempted from a requirement, he or she may also be exempted. The whole of the circumstances must be considered.
37.It may be accepted, however, that where the circumstances are relevantly the same or reasonably similar, the same approach should be applied. That is both consistent and fair.
38.In the case of Mr Peric, the notice given to him was short. He has only just started his employment. His employer has been given notice of the requirements for urinalysis on Mondays and for urinalysis and Court on Fridays, though Court appearances are fortnightly.
39.He has shown more recently his abstinence. He has not returned any positive urinalysis for drugs. Though alcohol was his primary drug of dependence, he has consumed it. The first occasion did not, in the circumstances, prevent his graduation to Phase Two in the minimum time and the other was while he was in Phase Two where it is permissible under certain circumstances, though it turned out that he was not under them on this occasion. Those occasions are now well in the past.
40.Further, Mr Peric has been progressing very well under the Treatment Order. That does not mean that he is rehabilitated, but it does mean that the risk of relapse is significantly less than a participant without that record. Comments from his counsellors and his case managers are very positive and that is an important assessment of his progress.
41.Then it needs to be recognised that the employment relationship in his case has not yet been established, or established so securely that such that flexibility from the employer can be expected. The employer has not yet been able to assess Mr Peric’s value for the business, nor his reliability.
42.Finally, the loss of income is relevant if the attendance for urinalysis on a work day, for which he has not allowed, means that he has to take the day off. This has an effect on his wellbeing.
43.These factors are sufficient to justify exempting him on this occasion from attendance on Wednesday, 5 October 2022 for urinalysis and that exemption is granted. That is a fair decision for the described circumstances without undermining the Treatment Order regime for a one-off situation.
44.The case of Mr Williams is similar. The notice given was short. While he has been employed already for some time, it is not for such a period of time yet where he feels comfortable to have satisfied his employer that he is reliable and is valuable to his business. His concern for the problem that this could cause to his employer’s opinion of him is not unreasonable. He has, also, had no problems with the agreed attendances on Mondays and Fridays and they will continue.
45.He has shown abstinence while under the Treatment Order, though the one positive urinalysis was the week after he commenced under the Treatment Order and was accepted as the result of consumption prior to the making of the Treatment Order.
46.He has been progressing well under the Treatment Order. The comments from his counsellors and case manages have been very positive.
47.Because of his circumstances, Mr Williams is likely to need to take a day off for the attendance at urinalysis or cause another worker to take a significant time off from his work, a problem for his employer.
48.The day off would affect his income and this will also have an effect on his wellbeing.
49.These factors are relevantly similar to those of Mr Peric, though of course, there are some differences. Consistency and fairness require that the same exemption be extended to him and that exemption, from attending urinalysis on Wednesday, 5 October 2022 is extended to him also and the exemption is granted.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: Date: 11 October 2022 |
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