R v Po'oi (No 3) - [2021] ACTSC 354

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Po’oi (No 3)
Citation:	[2021] ACTSC 354
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 – Drug and Alcohol Treatment Order – Breach of Order – Further offending – 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.

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Details

Case: [2021] ACTSC 354
Decision Date

CaseChat Overview and Summary

The case R v Po'oi (No 3) involved the offender Daniel Ronald Po'oi who was before the Supreme Court of the Australian Capital Territory on an application by the Crown to cancel the Drug and Alcohol Treatment Order made in respect of him on 8 February 2021. The Court was required to decide whether the offender was unwilling or unlikely to comply with a condition of the Treatment Order, whether the continuation of the Treatment Order would not likely achieve the objects of the Treatment Order, and whether Mr Po'oi posed an unacceptable risk to the safety or welfare of a person. The Court found that the first two grounds were made out and the final ground was not made out. The Court decided to cancel the Treatment Order and re-sentence Mr Po'oi. The sentencing was adjourned to 5 November 2021 at 2:30pm and leave was granted to either party to re-list the matter on not less than five days notice to the Court and the other party. Mr Po'oi was remanded in custody until 5 November 2021.

Orders