R v Po'oi (No 2)
[2021] ACTSC 340
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Po’oi (No 2) |
Citation: | [2021] ACTSC 340 |
Hearing Date: | 19 March 2021 |
DecisionDate: | 26 March 2021 |
Before: | Refshauge AJ |
Decision: | 1. The Drug and Alcohol Treatment Order made on 8 February 2021 be amended as follows: (a) Order 2 be amended by: i. omitting “25 February 2021” and substituting “25 February 2020”; (b) Order 6 be amended by: i. omitting orders (a) and (b); ii. omitting “complies” in order (c) and substituting “comply”; and iii. inserting “Daniel Ronald Po’oi be at his place of residence between 9:00 pm each day to 6:00 am the next day, and to present himself to an officer of the Australian Federal Police at the door of the residence on request during those hours.” (c) A further Order 7 to be added as follows: i. Included in the Custodial Part of the Drug and Alcohol Treatment Order, Daniel Ronald Po’oi be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 8 February 2023 to 24 March 2024, with a probation condition that he accept supervision of the Commissioner of ACT Corrective Services or his delegate for that period or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him. 2. Daniel Ronald Po’oi attend the Court Registry before leaving the Court precinct on 26 March 2021 and sign the Drug and Alcohol Treatment Order as amended and the Good Behaviour Order. 3. Daniel Ronald Po’oi attend Court on 31 March 2021 at 11:00 am. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of Drug and Alcohol Treatment Order – Absconding Rehabilitation – Amended Order |
Legislation Cited: | Crimes (Sentencing Act) 2005 (ACT) pt 4.4, ss 7, 12A, 33, 46J 80O, 80ZB, 80ZE Crimes (Sentence Administration) Act 2005 (ACT) s 85 |
Cases Cited: | Bethell v Minister for Home Affairs [2019] FCA 1740 Director of Public Prosecutions v Negrea [2020] VCC 970 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 |
Parties: | The Queen ( Crown) Daniel Roland Po’oi ( Offender) |
Representation: | Counsel D Perks ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number(s): | SCC 276 of 2020 SCC 277 of 2020 |
Refshauge AJ
The connection between crime and drug use is well known and seen in the criminal courts day by day. Illicit drugs are particularly prone to creating a dependency in the user, often without even sustained or long-term use. It is now accepted that, while punishment is an important purpose of sentencing, as it is the consequence of criminal offending that helps set standards of behaviour in our community and discourages further offending, the rehabilitation of offenders is a sure way of ensuring future compliance with those behavioural standards and thereby the protection of the community.
This is, of course, the policy underpinning the enactment of the ACT Legislative Assembly of the amendments to the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which creates the sentencing option of a Drug and Alcohol Treatment Order (Treatment Order), under s 12A of the Sentencing Act. A Treatment Order is a diversion from the usual consequences of serious criminal offending: a sentence of imprisonment. It is, therefore, of itself a less severe sentence.
A Treatment Order incorporates a rehabilitation program that, as both experience and research show, has the capacity to achieve abstinence from illicit drug use and the related criminal offending. It is also known that compliance with such programs is challenging. This challenge requires effort and commitment from the participants. This, in turn, requires self-discipline; a certain preparedness to explore personal issues, which can make participants feel vulnerable; and commitment to addressing their behaviour, attitudes and conceptions which is not often an experience of many in the community.
I now have to consider the situation of Daniel Ronald Po’oi, a participant in the program for whom the Court made a Treatment Order on 8 February 2021. Mr Po’oi was required by the Treatment Order to complete a program of residential drug rehabilitation conducted by the Salvation Army at Canberra Recovery Services in Fyshwick, ACT. Contrary to requirements of the Treatment Order, he discharged himself from that facility on 15 March 2021.
This breach of the Treatment Order requires it to be reviewed. This will now be done.
The facts
Mr Po’oi was sentenced on 8 February 2021 for five offences: aggravated burglary, burglary, dishonestly taking a motor vehicle without the owner’s consent, the subsequent driving that motor vehicle and possessing a knife without reasonable excuse. The facts of these offences were set out in R v Po’oi [2021] ACTSC 151 at [10]-[28].
The first two offences are very serious offences, though the aggravated burglary was not a particularly serious version of the offence as committed. The burglary offence, though less serious, judged by the maximum penalty legislated for its commission, was a rather serious version of the offence.
The offences of dishonestly taking and driving a motor vehicle without the owner’s consent are serious, but less serious offences than those of burglary and aggravated burglary, and were not committed in circumstances accompanied by particularly aggravating features.
As to the offence of possessing a knife, it is serious given the potential for harm from its use, though no use was alleged.
Further, the Court was asked to take two traffic offences into account, as they appeared on a list of additional offences under pt 4.4 of the Sentencing Act. These were driving with a prescribed drug in his oral fluid and failing to stop a motor vehicle when signalled by police to do so.
Of course, in addition to the objective seriousness of the offences and the list of additional offences, Mr Po’oi’s subjective circumstances, sentencing practice and other matters to which a sentencer is required to have regard under ss 7 and 33 of the Sentencing Act were taken into account.
These offences warranted a severe response. Nothing other than a sentence of imprisonment was warranted and a severe sentence of three years three months imprisonment was imposed.
As noted above (at [4]), a Treatment Order was made which, inter alia, required Mr Po'oi to enter and remain in the residential drug rehabilitation program at Canberra Recovery Services. He did enter the program.
The making of a Treatment Order is not limited, as it is in some jurisdictions, to less serious offences. Indeed, the limit is expressed in s 12A(1)(b) of the Sentencing Act, namely that it must be for an offence which attracts an actual sentence of between one and four years imprisonment, though this limit must not be exceeded by the total sentence which includes all offences covered by the Treatment Order: s 12A(3) of the Sentencing Act. Indeed, a Treatment Order has been made for an offender who committed two offences of attempted aggravated robbery, amongst other offences, which each attract a maximum penalty of 25 years imprisonment or a fine of $400,000, or both: see R v Parker [2020] ACTSC 38.
As Mr Po'oi was in Phase 1 of the Treatment Order, he was required to appear in Court each week for judicial supervision, which is a fundamental part of the program.
Reports were received of his progress - they were positive. His first report, an oral report, was that he was doing well and pleasant to interact with. The reports on his progress continued to be positive, though he had to confront some personal issues, including his background, which had some challenging factors. It was said that he was, “questioning parts of his life and his choices”. He did feel daunted about his future, but challenged some negative behaviours of his peers as well as “challenging his old beliefs and having the hard conversations”.
On 15 March 2021, however, he voluntarily discharged himself from the Canberra Recovery Services facility. The background was described by a staff member of that facility on 16 March 2022 as follows:
Daniel has decided to self discharge as he wishes to do the day program, which I do support. Daniel struggled with some of the behaviour of the men here against the women and was engaged himself in a relationship with a female peer here, who left the program with him. Daniel stated he spoke with you [his case manager on the Treatment Order Team] and informed you [her] of his intent and stated that he was going to court today when he left.
Mr Po'oi did appear in Court later that day and it was satisfied he had breached a condition of the Treatment Order by leaving the Canberra Recovery Services facility. Under s 80ZB(1)(e) of the Sentencing Act, the suspension of the sentence of imprisonment was provisionally cancelled until Friday 19 March 2021 and Mr Po’oi was remanded in custody.
On that latter day, the parties made submissions on the review of the Treatment Order and that provisional cancellation was extended until today, 26 March 2021, remanding him again in custody.
Consideration
No application for cancellation of the Treatment Order was made in respect of Mr Po'oi under s 80ZE of the Sentencing Act.
Accordingly, this review under s 80ZB of the Sentencing Act is based on his breach of the condition that he remain at the Canberra Recovery Services facility. Mr Po'oi has not challenged a finding that he has breached that condition and I am satisfied on the balance of probabilities that he has.
Under the section, there is a range of options for the Court. In the first place, however, it needs to be satisfied of the seriousness of the breach.
As noted above (at [15]), Mr Po'oi appears before the Court in the current Phase 1 of the Treatment Order each week. He has not, to date, raised any problems he is having in the facility, such as those he has expressed as to why he had to leave. It must be accepted that raising issues can be a challenge. Sometimes a participant will feel inhibited from doing so in front of his peers, especially others who are in the same facility.
It has been made clear, however, that the Court is amenable to making arrangements for a confidential hearing in appropriate circumstances. That would not, of course, exclude counsel for the parties, other than in exceptional circumstances. This mechanism could be used were there to be a complaint about the facility where the participant is or any staff there. Currently, participants in residential drug rehabilitation usually appear in Court by audio-visual means. A staff member of the facility and, indeed, other participants may be in the room from where the connection is made. Arrangements can, however, be made to provide appropriate confidentiality if necessary and if requested.
In this case, Mr Po'oi explained his reasons for leaving to a staff member to the facility in any event, as noted above (at 17]). Further, he gave evidence regarding this on 19 March 2021 in open Court subsequent to his departure. Any feeling of inability to explain his concerns, therefore, does not seem to have been involved in his failure to await a review in Court. He could have discussed the issue in Court and addressed the possibility of a resolution to his problem, prior to taking independent action. His failure and breach is, therefore, a serious matter.
A treatment regime is decided after careful assessments by professionals and designed to achieve the objectives of a Treatment Order, as set out in s 80O of the Sentencing Act.
In this case, a number of factors are relevant. He has a troubling criminal history, as pointed out in R v Po'oi at [86]-[88]. He has been in custody for all but 18 to 20 months of the last 10 years. During this time, he did complete a voluntary residential drug rehabilitation program in the Alexander Maconochie Centre, that is, the Solaris Therapeutic Community program, conducted by ACT Corrective Services with the cooperation of Karralika Programs Inc.. Thus, he has done some residential drug rehabilitation. That means that he had experienced such a program and knows what to expect, as well as having learnt some of the rehabilitative lessons to be learnt there.
It is notable that he decided to seek to go into a residential rehabilitation program when requesting that a Treatment Order be made. That was seen by the authors of the two Drug and Alcohol Treatment Assessments (Suitability Assessments), prepared under s 46J of the Sentencing Act, as relevant and desirable. Nevertheless, neither made it a condition of the recommendation that Mr Po'oi was suitable for a Treatment Order.
The Suitability Assessment by the Alcohol and Drug Services came closest to this, in suggesting that for the Treatment and Supervision Part of the Treatment Order, residential drug rehabilitation had been proposed. It was only noted in the assessment by ACT Corrective Services and then as having been requested by Mr Po'oi and supported by his parents.
The Alcohol and Drug Services Suitability Assessment actually recommended “intensive community based AOD treatment” based, in part, on his completion of the Solaris Therapeutic Community program as well as other factors, including his “current motivation and insights”. It did note that he was “open to both being in a residential rehabilitation or a 13 weeks day program”, the latter in the community.
Both options were clearly within the available options, so far as Alcohol and Drug Services were concerned. Based on Mr Po'oi's preference, despite some hesitancy, and his successful suitability and acceptance, Mr Po’oi was given a place in the residential drug rehabilitation program at Canberra Recovery Services, a program of a minimum of three months, though longer if necessary. He was, however, also found suitable to be accepted into the day program.
Finally, it was suggested that now to permit Mr Po'oi to continue on his Treatment Order in the community risks making a Treatment Order seem “an easy way out of custody and that people can leave rehab with little consequences”. The Crown pointed to the long period of imprisonment imposed. These are legitimate concerns. There are, however, a number of issues that they raise.
In the first place, a period of time in residential drug rehabilitation is not punishment. It is not the case that persons convicted of serious offences or sentenced to long periods of imprisonment must undertake rehabilitation in residential drug rehabilitation. That is clearly not so: see, for example, R v Parker, where a person convicted of attempted aggravated robbery and two aggravated robberies, was required under a Treatment Order to undertake drug rehabilitation entirely in the community.
It is acknowledged that, in sentencing, a period of residential drug rehabilitation may properly be taken into account in the same way as Pre-Sentence Custody, as explained in R v Bessant [2020] ACTSC 365 at [47]-[48]. That, however, does not mean that it is punishment, just as denial of bail and remand in custody is not punishment (Bethell v Minister for Home Affairs [2019] FCA 1740 at [25]; Director of Public Prosecutions v Negrea [2020] VCC 970 at [57]), though there is some oddity about this: State of Western Australia v JC (A Child) [2021] WASC 21. One can only accept that sentencing is not a purely logical exercise: Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 476; Lukatela v Birch [2008] ACTSC 99 at [91].
As noted above (at [26]), Mr Po'oi's departure from the Canberra Recovery Services facility was a serious breach of the condition of the Treatment Order. It needs, however, to be in context. He did not simply abscond as some participants do: see, for example, R v Lyons (No 2) [2021] ACTSC 11; R v Crawford (No 2) [2020] ACTSC 367. In contrast, Mr Po'oi did make contact and reported to ACT Corrective Services. If he thought, however, that he could leave and, by reporting, that was satisfactory within the terms of the Treatment Order, then he was mistaken.
As noted above (at [18]-[19]), that point was clearly made by provisionally cancelling the suspension of the term of the imprisonment to which he had been sentenced and remanded him custody as a sanction.
Nevertheless, his preparedness to comply with these conditions was, to his credit, as explained in the R v Tonna (No 2) [2020] ACTSC 362 at [55]-[59]. Indeed, as pointed out in R v Lyons (No 2) at [10], that would result in - or could have resulted in - a different outcome. That is what Mr Po'oi seeks here. He seeks continuing rehabilitation, but in the community.
Such an outcome is recommended by the members of the Treatment Order Team from the Alcohol and Drug Services. It is supported by the original recommendation in the Suitability Assessment of that agency, to which reference has been made above (at [29]-[31]), which was clearly amenable to both residential and community drug rehabilitation.
Opposition to providing that, in this case, was largely based on the seriousness of the offences, length of the term of imprisonment and the perception that making of amendments to the Treatment Order on the run for breaches of that Order would likely mean that current or future participants will be encouraged to leave residential drug rehabilitation placements with the reasonable expectation that they will be able to continue under a Treatment Order in the community.
These are legitimate and fair considerations to which I have given careful thought. I have, however, effectively dealt with the first two issues above.
Placement in a residential drug rehabilitation is not a punitive disposition, though it certainly may be a necessary disposition where the offender cannot be trusted in the community without further extensive rehabilitation.
In Mr Po'oi's circumstances, that has not been expressly submitted to be the case and, while Mr Po'oi's criminal history requires careful attention to the likelihood of him re-offending, I am satisfied that this ever present risk is unlikely in this case.
In the first place, Mr Po’oi submitted to reform which he has, according to the weekly reports, pursued positively.
Secondly, related to the first point, he has made progress in the treatment regime.
Thirdly, he has a newfound partner that he wants to be with and he is intelligent enough to know that if he fails to commit to the Treatment Order, even if amended, he will be parted from her by his imprisonment.
Fourthly, he is intelligent enough to also know that failure to comply with the Treatment Order, including committing of further offences, will result in a serious lengthy term of imprisonment.
As to the effect on other participants, there are enough examples of participants who have either left or been discharged from residential drug rehabilitation facilities and who have had their respective Treatment Order cancelled to serve their sentences originally imposed to show that it is not inevitable that unauthorised departure or discharge from a facility before completion of the residential drug rehabilitation program will result in an amended Treatment Order or continued rehabilitation in the community: see Pelecky (No 3) [2020] ACTSC 371, R v Tonna (No 2).
Finally on this point, it must also be noted very significantly that Mr Po'oi was originally assessed as suitable for a rehabilitation program in the community, which is a very important reason why, after nearly 14 days of sanction for his unauthorised departure, it is now appropriate to permit him to continue his rehabilitation in the community and amend the Treatment Order accordingly.
Disposition
Accordingly, the Treatment Order will be amended to permit Mr Po'oi to continue to engage in further rehabilitation in the community at his mother’s residence.
A curfew condition reside at this residence will also be made. Obviously, a Good Behaviour Order is also necessary for the balance of the Treatment Order, so will be done.
Drug and Alcohol Treatment Order amendment
[His Honour then spoke directly to the offender]
Mr Po'oi, please stand.
The Court orders the following:
(1) The Drug and Alcohol Treatment Order made on 8 February 2021 be amended as follows:
(a) Order 2 be amended by omitting “25 February 2021” and substituting “25 February 2020”;
(b) Order 6 be amended by:
i.omitting orders (a) and (b);
ii.omitting “complies” in order (c) and substituting with “comply”; and
iii.inserting “Daniel Ronald Po'oi be at his place of residence between the hours of 9.00 pm each day and 6.00 am on the next day and to present himself to an officer of the Australian Federal Police at the door of the residence on request during those hours”;
(c)A further Order be added as follows:
i.Included in the Custodial Part of the Drug and Alcohol Treatment Order, Daniel Ronald Po'oi be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 8 February 2023 to 24 March 2024 with a probation condition that he accept supervision of the Commissioner of ACT Corrective Services or his delegate for that period or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
(2)Daniel Ronald Po'oi attend the Court Registry before leaving the Court precinct today on 26 March 2021 and sign the Drug and Alcohol Treatment Order as amended and the Good Behaviour Order.
(3)Daniel Ronald Po'oi attend Court on Wednesday 31 March 2021 at 11.00 am in person.
Mr Po'oi, your counsel will explain the position to you. In broad terms, I have permitted you to continue your rehabilitation in the community but with some conditions. In particular, I have made a curfew condition that you be at your place of residence between 9:00 pm and 6:00 am the next day and that, if a police officer comes knocking at the door, you are to present yourself to show that you are there.
Other than that, you are to comply with the other obligations in the Treatment Order with which you have already agreed, and that includes directions to commencing a program and undertaking that program and counselling.
You have already got one serious strike against you. Do not add to this, because you have seen what happens.
I hope you remain committed. I also hope your partner is going to be good for you and that this will produce some stability and commitment by you to your future as a pro-social person in this community, and be able to manage your dependency on drugs and be free of that for the future.
You will see me next Wednesday, and weekly thereafter, until we determine that you are making sufficient progress to move on.
I hope that this works for you.
As you can see, we will support you if you are committed, but you must also do the right thing by us: that means that if things are going wrong, then you raise it with me and we can sort it out.
Looking back with hindsight, although I cannot guarantee this, you would not have spent time in custody and you would almost certainly have been allowed to leave the facility and continue your rehabilitation in the community had you done the sensible thing and raised the issue for us to work it through at that stage.
I know passions often get the better of you and you cannot wait even a day, but this was a very silly mistake to make - I hope you have learnt how silly it was.
So, hopefully we are back on the right track: you will do the right thing and if things get difficult, discuss it and we will see what we can do. I cannot guarantee, obviously, that we will always do what you wish, but we will always try to do the right thing.
When you have signed the papers, you will then be free to go.
| I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: L Ireland Date: 28 April 2022 |
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