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 |
Cases Cited: | R v JM [2014] ACTSC 380 R v Law [2021] ACTSC 351 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 crime, which is expensive, as is the incarceration of offenders.
If, however, an offender is not able or is unwilling to undertake the rehabilitation, including participation in the therapeutically oriented and integrated treatment regime mandated by the Treatment Order, then there is no alternative but to impose that sentence of last resort: imprisonment.
In this context, Daniel Ronald Po'oi appears before me. On 8 February 2021, a Treatment Order was made in respect of Mr Po'oi: see R v Po'oi [2021] ACTSC 151. Mr Po'oi has had a difficult journey through the Treatment Order regime and the Crown has now applied to cancel the Treatment Order.
The application, made by Application in Proceedings dated 26 July 2021, is supported by an affidavit of Marina Lucero made on that date. The affidavit was read without objection and the deponent not cross-examined. The Court has also had access to the Court file and records, which include the regular Status Reports on participants in the Treatment Order regime. Further included in the material before the Court are two additional Status Reports in relation to Mr Po'oi, letters from Karralika Therapeutic Programs Inc. dated 2 August 2021, a letter from the Alcohol and Other Drug Therapeutic Community Team Leader of ACT Corrective Services dated 3 August 2021 and a letter from Mr Po'oi's mother.
Background
On 8 February 2021, Mr Po'oi was sentenced for five offences which he had committed in the period between 20 November 2019 and 2 April 2020. At the time, he was on parole for serious offences including aggravated robbery, aggravated burglary and intentionally inflicting grievous bodily harm. On 20 November 2019, Mr Po'oi was intercepted by police when driving and was subject to a drug screening test which proved positive. He was charged with driving with a prescribed drug in his oral fluid. On 3 December 2019, Mr Po'oi was again driving when police again sought to intercept him but despite their direction to stop, he drove away including off‑road and through a greenbelt and across a footpath. He was charged with failing to stop when requested by police.
On 25 February 2020, he and a co-offender entered a residence under construction by forcing the locked door. They intended to steal property from the residents but did not do so. They were confronted by some neighbours and after an altercation and Mr Po'oi attempting to flee, they were arrested by police, whom the neighbours had called. He was found with a black-handled folding knife, the possession of which he had no explanation for. These actions led to Mr Po'oi being charged with aggravated burglary and possession of a knife without reasonable excuse. He appeared in the ACT Magistrates Court and was granted bail.
Despite this, on 2 April 2020, he entered the garage to a residence and took one of the two vehicles parked there which he subsequently abandoned, apparently undamaged. Mr Po'oi was charged on 18 April 2020 with burglary, dishonestly taking a motor vehicle without the owner's consent and dishonestly driving a motor vehicle without consent. Ultimately, he pleaded guilty in the ACT Magistrates Court to all offences and was committed to this Court with the intention that he be considered to be subject to a Treatment Order. Mr Po'oi was sentenced on 8 February 2021 to a total of 39 months imprisonment and, as noted above (at [5]), a Treatment Order was made.
The Order required him to enter the Canberra Recovery Services program conducted at its Fyshwick, ACT, facility. He did so and, initially, he seemed to be progressing well. In a report of 3 March 2021, his Case Manager stated, “Daniel's attendance is 100%” and “Daniel is moving through the program well”. Unfortunately, that did not last.
On 15 March 2021, Mr Po'oi self‑discharged. He had, however, attempted to make contact with his Alcohol and Drug Services Case Manager. She was able to see him when she attended the facility that morning for a scheduled visit. She reported that he “was on the doorstep of CRS rehabilitation with his bags packed”. She also reported his explanation as follows:
Daniel was exiting with another female resident who had been there three weeks. Daniel stated that they were in a relationship and she was going to give him a lift home to his mother's house but [sic] was not the reason for leaving.
Despite his Case Manager explaining that leaving with another resident would be detrimental to his recovery, Mr Po'oi was determined to do so and later appeared in Court where he was remanded in custody because the breach of the Treatment Order led to a provisional cancellation of the custodial part of the Order under s 80ZB(1)(e) of the Sentencing Act.
He returned to Court on 26 March 2021 seeking to continue under the Treatment Order but in the community, so that he could continue with his rehabilitation but remain in the relationship which appears to have been, in fact, significant in his leaving the facility. The Court permitted this and amended the Treatment Order accordingly. The reasons for doing so are set out in R v Po'oi (No 2) [2021] ACTSC 340.
Again, there seemed to be a good start to this new part of the Treatment Order regime. On 31 March 2021, he was initially described as being “on time for his appointment, well dressed and polite and engaging”.
It is notable that he reported “his worst fear is relapsing”, which appears to have provided a significant motivation. A week later, however, he described himself as “overwhelmed”, though remaining engaged and with “a supportive family and a son he is very focused on”. Despite this, things were not going smoothly. He admitted to using drugs on 30 March 2021 and that, “the relationship he had been engaged in was destructive”. His partner had resumed consuming alcohol and drugs. By 7 April 2021, however, he was returning clean urines for analysis.
He recognised that he had to cut ties with his old associates and, indeed, the partner that he had arranged to leave with from Canberra Recovery Services, and Mr Po’oi sought engagement with Narcotics Anonymous.
On 15 April 2021, his urinalysis proved positive to drugs. He denied using drugs but did say that he had been “lingering around old associates while they used drugs”. He was given the benefit of the doubt that this may have been passively transmitted drug use and no action was taken, though suspicion lingered with the Treatment Order Team. Mr Po'oi continued to commit well under the Treatment Order regime and received generally positive reports from Canberra Recovery Services, to which he had been returned.
On 3 May 2021, however, he admitted that he had smoked methylamphetamine two days earlier. He had not changed his phone number, as recommended, a suggestion based on the need to protect him from his former anti-social associates. He did note that his use of drugs did not seem to cause desire to continue to use and hide it; he said he wanted to communicate. Two days later, he was distressed because his perfectionism was not being met by his behaviour. Things continued to get problematic. He missed urinalysis on 1 May 2021, claiming that he had forgotten again and then used drugs again on 12 May 2021.
On 14 May 2021, his urinalysis showed positive results to methylamphetamine, cocaine, amphetamine and, on 17 and 19 May 2021, was again positive. It seemed clear, however, that, while his drug use was clearly reactivated, he was still committed to rehabilitation. He expressed again commitment to rehabilitation, expressing gratitude for the opportunity to achieve this. It became clear that it was necessary to make it clear to him that such relapse is unacceptable and that sanctions were necessary. Accordingly, on 21 May 2021, the suspension of the custodial part of the Treatment Order was again provisionally cancelled for four days until 24 May 2021 and on that day the suspension would be reinstated and he was directed then to attend for a case management conference with Alcohol and Drug Services.
While in custody, however, he did use heroin. It was a matter of some concern that this was, no doubt unintentionally, facilitated by the Alexander Maconochie Centre. He was initially put in a solitary cell and, despite being a place usually regarded as punitive, he sought that he remain there so as to protect himself from temptation to use drugs but he was then moved to a shared cell with another detainee who was not only a drug user, but who apparently had access to drugs. It was this that led him to use heroin again.
He continued to struggle. He described being in custody in the Alexander Maconochie Centre as “like home”, unsurprisingly, given his recent custodial history as noted in R v Po'oi at [88]. He continued to return urinalyses results positive for illicit drugs and not only the heroin that he admitted using while in custody. He was sanctioned one point for that use.
It became clear that he was continuing to use drugs. After appearing in Court, he admitted to using drugs the evening before. By the following Tuesday, he stated that he had consumed drugs for four days. He then missed his scheduled SMART Recovery session, but continued to return urinalysis results positive for illicit drug use, though he failed to attend for urinalysis on one occasion. He was sanctioned for all these breaches.
Finally, by 11 June 2021, it became clear that Mr Po'oi was no longer able to rehabilitate in the community. Each of the urinalyses results for the week returned positive results for illicit drugs. He was depressed and struggling. He requested consideration for re-admission to a residential drug rehabilitation facility. On that day, the Court again provisionally cancelled the suspension of the custodial part of the Treatment Order for seven days until 18 June, and remanded him in custody. On 18 June, he was re-admitted to the Canberra Recovery Services residential drug rehabilitation program. On 23 June 2021, Mr Po'oi disclosed that he and three other recent admittees to the program left the program between 3:00am and 5:00am and accessed drugs which they consumed.
He admitted the lapse and the program staff agreed to “work with Daniel to overcome this lapse”. Regrettably, on 30 June 2021, he was informed that he was to be discharged from Canberra Recovery Services for breach of the rules of the facility in that he continued to use drugs. He was directed to return to Court for review of the Treatment Order, but he absconded.
The Court issued a warrant under s 80ZJ of the Sentencing Act on 30 June 2021. On 19 July 2021, the warrant was executed and Mr Po'oi was arrested. The circumstances of its execution were that the police were executing the warrant under s 194 of the Crimes Act 1900 (ACT) to search for evidential material in relation to a crime. Mr Po'oi was in the premises and police recognised him and arrested him under the warrant issued by this Court. He was refused bail by police and appeared in Court the next day.
The suspension of the custodial part of his Treatment Order was again provisionally cancelled. The Crown indicated that it proposed to apply to cancel the Treatment Order, so the application was listed for 30 July 2021 and the Court gave the directions for appropriate preparation for the hearing of that application and remanded Mr Po'oi in custody until that date.
The application
The application by Application in Proceedings by the Crown for the cancellation of the Treatment Order is made under s 80ZE(1) of the Sentencing Act. The grounds of the application on which the Crown relies are as follows:
·Mr Po'oi is unwilling or unlikely to comply with a condition of the offender's Treatment Order: s 80ZE(1)(c) of the Sentencing Act;
·The continuation of the Treatment Order will not likely achieve the objects of the Treatment Order: s 80ZE(1)(d) of the Sentencing Act; and
·Mr Po'oi poses an unacceptable risk to the safety or welfare of a person: s 80ZE(1)(f) of the Sentencing Act.
The approach, in summary, to be taken to such applications has been set out in R v Massey (No 4) [2021] ACTSC 211 at [19]-[21] as follows:
19. The approach to the application is as follows. One ground is sufficient to require the Court to consider cancelling the Treatment Order, but each ground should be considered. A ground must be proved on the balance of probabilities. Even if one ground is, or more, or all, of the grounds are, made out, the Court is not obliged to cancel the Treatment Order and retains a discretion. The Court should also consider whether it is appropriate to review the Treatment Order under s 80ZH of the Sentencing Act at the same time and, in particular, to decide whether an appropriate amendment to the Order under s 80ZH(4) of the Sentencing Act can be made that would adequately address the unsatisfactory circumstances.
20. Even if there is an appropriate amendment that could be made, such as admission to another residential drug rehabilitation facility, there may not be the resources available to give effect to the amendment and s 80S(c) of the Sentencing Act would justify a cancellation of the Treatment Order in that case: R v Tonna (No 2) at [70]-[73].
21. At the end of this consideration, the Court retains a discretion whether to cancel the Treatment Order. That a participant has performed unsatisfactorily does not mean that this behaviour will necessarily continue. Thus, where the grounds have been made out, but there is still some reasonable hope, based on a rational assessment of the situation, that the offender will rehabilitate, the Court may decline to cancel the Treatment Order and give the participant a further chance to complete it. Such further chances, however, must be based on a careful analysis of the facts and circumstances: see R v Tonna (No 2) at [36]-[39]; [70]-[73], R v Crawford (No 3) [2020] ACTSC 369 at [27]-[29]. In the absence of such a basis for continuation, it is almost inevitable that the Treatment Order will be cancelled: see R v Crawford (No 4) [2021] ACTSC 209. This is the approach I shall take to the application.
Consideration
First, each of the grounds of the application will be addressed.
The first ground is based on the submission that Mr Po'oi will not comply with a condition of the Treatment Order. Of course, that encompasses more than one condition. It also encompasses some simple unwillingness or an estimation of whether Mr Po'oi will actually comply. It is not based on an actual, say physical, inability as that would be covered by another ground.
Mr Po'oi has breached the Treatment Order a number of times. Thus, on 15 March 2021, he self-discharged to be with his girlfriend, though he did return to Court. He then used drugs on 30 March 2021. He again used drugs on 15 April 2021, though he denied it, but there was no other explanation for the positive urinalysis result than passive exposure to drugs from being with people, his social associates, who were using at the time, and with whom it was a risk for him to associate in any event. On 3 May 2021, he admitted to using methylamphetamine two days previously.
He delayed changing his telephone number as required and missed a urinalysis attendance with no explanation. On each of 14, 17 and 19 May 2021, he returned a positive result for drugs on urinalysis. When he was sentenced by having the Treatment Order custodial suspension provisionally cancelled, he used heroin in custody. When released, it soon became apparent that he was using drugs again, which he admitted. He then missed a SMART Recovery meeting and later, after a further sanction period, he was re‑admitted to Canberra Recovery Services. There, on 23 June 2021, he breached the rules of the Program, including by using drugs.
A week later, after he had further used drugs when discharged, he failed to return to Court and absconded. He had to be arrested at a premises associated with other criminality.
The Crown relied on this litany of breaches to submit that he was unlikely, if not unwilling, to comply with the conditions not to use drugs in particular. His recent failure to return to Court following discharge is also concerning as it seems, together with the drug use, a rather downward trajectory.
It is satisfactorily proven that Mr Po'oi, at this stage, finds it too hard to survive in drug rehabilitation outside a custodial environment, including in residential drug rehabilitation, and needs to address these issues to achieve some further stages of recovery before he can do so. This ground is made out at this time.
The second ground is really dependent on the first ground as, if there is an inability to comply with the Treatment Order, the objects of such Orders are unlikely to be achieved. The relevant objects which are set out in s 80O of the Sentencing Act are as follows: to—
(a) facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and
(b) reduce the offender's dependency on alcohol or a controlled drug; and
(c) reduce the health risks associated with the offender's dependency on alcohol or controlled drugs; and
(d) assist with the offender's integration into the community.
As remarked in R v Massey (No 4) [2021] ACTSC 211 at [31]-[32], the first three are related. The first (object (a)) is directed to the means of achieving rehabilitation by the mechanism of the Treatment Order. A failure to comply with the regime it establishes makes it quite unlikely that this object will be met. Mr Po'oi submits that he still wishes to be rehabilitated, but the finding on the first ground leads to the conclusion that, at this time, the programs available under a Treatment Order are not presently likely to be successful. While there may be other means to reduce his dependency (object (b)) they are not presently available under a Treatment Order.
Thus, continued participation in programs mandated by a Treatment Order will be unlikely to achieve this objective as, indeed, it follows as true of the health objective (object (c)). Without these objects being achieved, it is unlikely that he will reintegrate into the community in a way that is intended by object (d), namely as a drug and crime free member of the community. That object is addressed by phase 3 of the Treatment Order and the findings on the first ground mean that he is unlikely to reach that phase and so that object is also unlikely to be realised.
The final ground addresses the risk of permitting Mr Po'oi to be in the community instead of in custody, as would be the case if no Treatment Order had been made or is cancelled. While participation in a residential drug rehabilitation facility is somewhat constraining of a past participant's presence in the community, such facilities are not custodial facilities. At this stage, to send Mr Po'oi back into such a facility would seem unlikely to gain his compliance. He already demonstrated that he could leave it and use drugs and has continued to use drugs.
It must be accepted, however, that he has not been even charged with, much less convicted, of any further offences, though the use of drugs is, of course, presently a criminal offence. Such offences are, however, not directly risking the safety and welfare of the community. The other offences, which people using drugs often commit, and which Mr Po'oi himself has committed, such as offences of dishonesty and violence, will, however, do that. It must also be accepted that, without Mr Po'oi's drug dependency being addressed, he is more likely to commit further offences that may adversely impact on the safety and welfare of the community in the way his earlier offending has done: see R v Po'oi at [86]-[87].
Nevertheless, at this stage, the fact that he has now been in the community, either in a residential drug rehabilitation facility or at large in the community, for a few days less than six months without committing, so far as is known, but certainly without being charged with or convicted for, any further offences other than the self-administration of illicit drugs is to Mr Po’oi’s credit. There are, however, some reports of offending which will be dealt with below (at [45]-[48]). While Mr Po'oi's dependency on drugs remains unaddressed, there is a risk, but it cannot be found on the evidence before the Court that it is unacceptable. This ground is not made out.
Mr Po'oi, however, wishes to continue with the Treatment Order. He says that he “really wants to rehabilitate himself”. He does not want the life that he has been leading and he wants to spend time with his 11 year old son whom he has hardly seen. He has the support of his parents and, indeed, regard is given to the letter from his mother which was helpful and re-affirmed that.
As a child he was subject to physical abuse, over-disciplining and was exposed to alcohol misuse. He commenced using heroin at the very early age of 13 years old. He was also sexually abused by a stranger at a time when he was not under the care of his parents, but on the street using drugs.
He says that he has found the counselling part of the Treatment Order beneficial, but he still has many issues of his childhood with which he needs to deal. He certainly has not found the counselling part of the Treatment Order sufficient to stop him reverting to drugs at regrettably frequent intervals. The Court heard of some specific incidents which were quite shocking and distressing in his childhood, but these do not need to be set out here in detail, though they are taken into account.
It is noted that, in the Crown's material, there is a form completed by police in relation to opposition to bail. It suggests that Mr Po'oi is “currently under investigation for multiple offences police strongly believe he has committed”. They are described as, “fail to stop offences, dishonestly drive/ride stolen motor vehicle and burglaries”.
It is not clear how long these matters have been under investigation or what progress has been made. While there may well be issues in relation to the burglaries that require extensive investigation, it is difficult to understand what needs further investigation in relation to the drive/ride motor vehicle, though there might be no physical evidence and they may be waiting for fingerprints or DNA or items belonging to Mr Po'oi found in the vehicle, and there may be investigations of other forms of evidence such as identification by witnesses, speaking to co-offenders and other matters that might take time. Nevertheless, it is odd that it has been under investigation by the police for so long and no action has taken.
On the other hand, it is quite difficult to see what further investigation may be required for the offence of failing to stop when directed by police. Either police saw him and directed him to stop and he did not do so, or that did not happen. Interestingly, it is noted, perhaps in Mr Po'oi's favour, police did include on the form that “the defendant is greatly in need of drug rehabilitation”. While suspicion is important for police, it does not seem to me that the Court should assume that these investigations will result in charges, particularly given the issues raised about the offence of failing to stop when directed by police.
Of course, the Court is not aware of what issues are being faced by police in this investigation and makes no criticism of them, but, in all the circumstances, it does not seem fair to make a finding against Mr Po'oi on this suspicion only in the current state of the information. Of course, if something more concrete and, particularly, if a charge is laid, the situation will be quite different.
In assessing the submission, however, it is noted that, in the regular reports the Court receives on all persons subject to Treatment Orders, reports known namely as Status Reports, they show, in respect of Mr Po'oi, good initial compliance and engagement. This, nonetheless, simply did not last.
Further, subject to one matter that will be addressed below (at [52]), Mr Po'oi has not shown any particular change. His expressions of a wish to rehabilitate are the same as the expressions he articulated when the Court was considering his situation after he left Canberra Recovery Services on the first occasion; the same as the expression he articulated when the Court was concerned that he was not succeeding in the community. He has not done anything in particular to show that these expressions are not merely words or, at least, expressions of intention. He, sadly, does not seem to be able translate them into action. This does not provide a rational basis for repeating the same actions by permitting him to continue with the Treatment Order and expecting a different result.
Accordingly, the Court is not satisfied that the final ground is made out. The Court, however, finds that, the other grounds having been made out, this does not provide a basis for allowing Mr Po'oi to continue under a Treatment Order.
The one matter foreshadowed above (at [50]) that has changed is that he is now enrolled in the Solaris Therapeutic Community program, a program in the Alexander Maconochie Centre which has been described in R v JM [2014] ACTSC 380 at [26]. It is, however, a program for offenders in custody and not in the community
The Court also has reports in relation to his engagement with Karralika Therapeutic Programs Inc. and also in relation to the Solaris Therapeutic Community. The author of the letter from Karralika suggests that Mr Po'oi, in the past when she worked with him, “wasn't ready or willing to implement significant change”. That included time when he was in the Solaris program. He has, she points out, “gone to various lengths during his time in the program to seek the support that is needed in order to manage his emotions, develop trust in staff and to open up about what is going on for him”.
He continues to seek out pro-social relationships, it appears, when possible, as well as maintaining boundaries in relationships that no longer serve him. While that may well be true, it does seem that there is some sliding back on that in the time since he has been under the Treatment Order, both by continuing to associate with anti-social persons which may have led to his passive absorption of methylamphetamine when they were smoking it and also absconding from the facility with three other detainees in Canberra Recovery Services. The traumatic incidents to which he referred will also take some time to address, but that also requires some commitment by him.
Finally, the Court is told that Mr Po'oi has been accepted into the Solaris Therapeutic Community. He re-entered the Community on 22 July 2021 and will commence on 9 August 2021. The program will complete on 1 November 2021.
None of this, however, justifies not cancelling the Treatment Order.
Accordingly, the Treatment Order will be cancelled, though his enrolment in the Solaris program is a matter to be considered later.
Sentencing
Having decided to cancel the Treatment Order, the Court is required, under s 80ZE(3) of the Sentencing Act, to impose the sentence of imprisonment or re-sentence Mr Po'oi. R v Tonna (No 2) [2020] ACTSC 362 at [78]-[79] sets out some of the reasons why it may be appropriate to re-sentence an offender where a Treatment Order to which he or she is subject has been cancelled.
None of them appear particularly relevant here, but it was there said that those reasons were not exhaustive. In this case, Mr Po'oi has behaved very badly, especially in absconding and putting the Court and police to the trouble of having to arrest him. Mr Po'oi, however, has not only enrolled in the Solaris Therapeutic Community program, a three month program which he is about to commence next week, but he has also taken the steps of making inquiries about further access to Canberra Recovery Services or to Karralika Therapeutic Programs Inc.
Both facilities have given what might appear to be cautious indications that they will look favourably on his request some months down the track if he completes the Solaris program to allowing him to re-enter. It does seem inappropriate that he re-enter Canberra Recovery Services, but if he enters Karralika Therapeutic Community or Arcadia House, then that may be appropriate, given their somewhat more confining regimes. These actions do give some support to his wish to rehabilitate further. While very limited and, indeed, only incipient efforts at this stage, it does seem to be sufficient to justify a re-sentencing. In particular, it will include intensive rehabilitation in a therapeutic community but within a custodial sentence. While less than ideal for testing Mr Po'oi's ability to comply with all requirements in the community, it provides a custodial regime which is stricter than community drug rehabilitation which, to date, Mr Po'oi, in both residential and non-residential situations, has been unable to manage. Further, however, it is accepted, as the Crown counsel pointed out, that this experience of being in the custodial environment “is not an accurate measure of the level of his commitment” and that “the difficulty is often Mr Po'oi in the community'”.
Nevertheless, for Mr Po'oi to succeed in this program is not irrelevant to an assessment of his commitment, particularly as the staff will be able to give some assessment as has seen with other participants: see R v Law [2021] ACTSC 351.
To comply with three months under a treatment regime and to be supported by staff would be a better result than he has been able to manage to date. It also has to be borne in mind that Mr Po'oi has spent nearly all of the last decade in custody. As he said, after a period in custody during his participation in the Treatment Order regime, when he arrived at the Alexander Maconochie Centre, “I felt as though I was coming home”. That is not only depressing, but it does mean that he will have to engage in very intensive and very lengthy rehabilitation if he is going to move outside that mindset.
The Crown also pointed out the need for the Court to have accountability, denunciation and community protection “in the forefront of [my] mind” when sentencing Mr Po'oi. It was submitted that the community had not benefitted from Mr Po'oi's failing to comply with all the obligations under the Treatment Order. The consideration of that issue is complex. If he has not re‑offended, then this is too strong a submission by the Crown, as the community would have benefited by this. After all, he has committed many offences in the past again and again. If he has offended then, of course, that is a reasonable submission, but at this stage, the Court cannot say.
Further, if Mr Po'oi remains committed to his rehabilitation despite his failings, then the community also benefits. The original sentence had taken denunciation into account, as well as the effect on the victims: see R v Po'oi at [119]. These matters are important, but the establishment of the Treatment Order regime has been a legislative indication that permits, perhaps even encourages, the Court to take into account, in the face of these issues, the value to the community of rehabilitation, a difficult balancing exercise in which the Court must engage.
Accordingly, it is considered appropriate to give Mr Po'oi not only the opportunity to engage in genuine rehabilitation, but to encourage it. Given his failures, that cannot, at this stage, be undertaken in the community. It can be undertaken in custody, where he will be undergoing a period of imprisonment which is also appropriate. The Solaris Therapeutic Community program extends for three months. That should give time for a number of things: first, for Mr Po'oi's commitment to rehabilitation to be addressed, and second, for Mr Po'oi to show commitment by continuing to make efforts to be admitted to a residential drug rehabilitation facility, as there would be no alternative but prison than such a facility and finally, to give police a reasonable opportunity to conduct their fuller investigations and, if there are further offences to be laid, at least to lay them then.
If Mr Po'oi does not demonstrate the commitment or the police do not lay charges, then the matter can be revisited and the original sentence imposed, or another sentence. If he does demonstrate the commitment and police do not lay charges, or charges are unlikely to result in a sentence of imprisonment, then consideration can be given to alternative options for continuing his rehabilitation, such as a residential drug rehabilitation facility in the community under a Good Behaviour Order or, indeed, an Intensive Corrections Order. There may, of course, be other reasons why that becomes inappropriate, including the unavailability of a suitable placement in such a facility or culpable conduct by Mr Po'oi while in custody.
Thus, Mr Po'oi shall have the opportunity to complete the Solaris Therapeutic Community program before considering whether to impose the original sentence or re-sentence Mr Po'oi. The program extends, as noted, for three months and the sentencing will be adjourned for that period in order to evaluate his commitment.
Leave will be given to either party to re-list the matter during that time on five days notice should it be necessary to proceed in any other way, such as to bring forward the re-sentencing of Mr Po'oi if he is discharged from the Solaris Therapeutic Community program or he is charged with offences, or other matters that require it.
Sentence
[His Honour then spoke directly to the offender]
Mr Po'oi, please stand.
The orders of the Court are as follows:
1.The Drug and Alcohol Treatment Order made on 8 February 2021 and amended on 26 March 2021 and 8 June 2021 be cancelled.
2.The sentencing is adjourned to 5 November 2021 at 2:30pm.
3.Leave is 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, you have heard what I have said and you understand what I have said. You have got the gift of the gab, there is no doubt about that, but at the end of the day it is your actions that will actually determine where you go.
You keep telling me you want to rehabilitate, but you never manage to get there and you always fail. Now is a chance in custody to start to address some of the issues you really need to do, avoiding using drugs at all. Then what I have said to you is that I will consider a sentence that is not simply more time in prison at the end of that, on 4 November. If you want further residential rehabilitation, that is on the table, but you will have to use some of your own efforts to make sure there is a place available to you.
No doubt there will be social workers at the Alexander Maconochie Centre who can assist you with that, but that is what you are going to have to do. If there are further offences, then that derails the whole process. If they are burglaries, then I cannot do anything about it. You will go into custody from this sentence but also almost certainly from a burglary sentence.
I hope you are not just spinning a story to me. As I say, you are a very persuasive speaker, and many people would say that you just pull the wool over all our eyes. If you are genuine in what you say, and there are some good messages in the people that have spoken on your behalf, then now is your opportunity, but you have almost completely blown it.
I do not say that this is all going to beautiful. It would be wonderful if it is. I do not want any more words from you, I want actions, and the actions are no drugs, complete Solaris, no offences and a place in preferably Karralika or Arcadia. I am not too comfortable about you going back to Canberra Recovery Services, but if that is the only place, I will look at it, but I cannot guarantee it.
I will remand you in custody then until 5 November and we will see you then. I do wish you good luck, but you have got to really work at this. You have got to really put your effort into it and prove everyone wrong.
| I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: Date: 9 September 2022 |
Amendments
| 15 September 2022 | Replace “343” after “[2021] ACTSC” with “354” | Page 1 in “Citation” |
| 15 September 2022 | Remove “Sentence –“; insert “Breach of Order” after “Drug and Alcohol Treatment Order –“; and replace “further” with “Further” | Page 1 in “Catchwords” |
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