R v Reid (No 2)
[2021] ACTSC 281
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Reid (No 2) |
Citation: | [2021] ACTSC 281 |
Hearing Date: | 21 May 2021 |
DecisionDate: | 26 May 2021 |
Before: | Refshauge AJ |
Decision: |
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Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – Breach of Order – Cancellation of Drug and Alcohol Treatment Order – Imposition of Original Sentence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) divs 5.4A.7, 5.4A.8, ss 12A, 80O, 80ZB, 80ZE, 80ZJ |
Cases Cited: | R v Antonovic (No 4) [2021] ACTSC 280 R v Blackburn (No 3) [2021] ACTSC 337 |
Parties: | The Queen (Crown) Nathan Kerry Reid (Offender) |
Representation: | Counsel C Muthurajah (Crown) C Duffy (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 49 of 2021 SCC 50 of 2021 |
REFSHAUGE AJ:
Introduction
On 21 May 2021, I cancelled the Drug and Alcohol Treatment Order (Treatment Order) that I made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) in respect of the offender, Nathan Kerry Reid. These are my reasons.
I must now also decide whether to impose the sentence previously imposed and made an element of the custodial part of the Treatment Order, or to re-sentence him.
In R v Antonovic (No 4) [2021] ACTSC 280, I cancelled the Treatment Order in respect of Zdravko Antonovic. That matter is very similar to this case and much of what I said there is relevant, but that, of course, does not mean that I can simply make the same decisions in this case by just applying the earlier decision. Each decision must be made on its own merits. This especially means that I have to decide the facts of each case. The law to which each case is subject will not change; the law is the law. The parts of the law that are relevant may be different and the application of the law to the facts may result in a different outcome despite it being the same law.
The law is generally the Sentencing Act, which establishes the sentencing option of a Treatment Order, with a view to assisting offenders who are dependent on alcohol and other drugs and whose offending has been substantially contributed to by that dependency. This is to achieve rehabilitation for the benefit of themselves, their families and the community more generally.
Divisions 5.4A.7 and 5.4A.8 of the Sentencing Act set out how that is to be managed and, of course, how it is brought to an end, in a relevant case, because the offender subject to a Treatment Order has failed in some way to comply with the obligations in it.
The facts
Mr Reid was arrested by police on 29 December 2020 because he had been driving a stolen motor vehicle to which he had affixed number plates that he had stolen from another vehicle. When he was arrested, he was found to be in possession of five rounds of ammunition which he was not authorised to have: see R v Reid (No 1) [2021] ACTSC 334 at [10]-[15].
He pleaded guilty to these offences and was committed to this Court for sentence on the primary offence, that of dishonestly driving a motor vehicle without the owner’s consent. The proceedings for the other three charges of minor theft of the number plate, driving a motor vehicle with an improperly issued number plate and possession of the ammunition were transferred to this Court to be dealt with under pt 8 of the Supreme Court Act 1993 (ACT).
On 21 April 2021, Mr Reid was, on his pleas of guilty, sentenced in this Court to a total sentence of one year and four months imprisonment, a Good Behaviour Order for six months to commence from the date of sentence, and a fine of $200. I then proceeded to make a Treatment Order for 12 months and 8 days, to commence on 21 April 2021 with conditions.
One of those conditions required that Mr Reid comply with certain treatment commitments, as included in the Case Plan prepared for Mr Reid by Canberra Health Alcohol and Drug Services. These included twice weekly counselling and group sessions with the drug rehabilitation facility, Canberra Recovery Services, Fyshwick; weekly attendance at SMART Recovery programs; weekly attendance for case management; thrice weekly urinalysis; and other requirements, such as refraining from consuming alcohol or other drugs.
A condition was also made that imposed a curfew on Mr Reid to be at his place of residence between 7:00pm each day till 7:00am the next day. He was also required to attend Court on 23 April 2021.
Mr Reid attended Court on 23 April 2021. He was, however, arrested on 24 April 2021 at 11:00pm for breaching the curfew. At the time of his arrest, he was intoxicated.
Mr Reid explained to the Court the circumstances of his arrest. He stated he had been out watching some football at a club and believed that his drinks had been spiked as he ‘felt funny’. He said that he had telephoned his mother, with whom he was living, and she told him to return home immediately. He went to catch a bus and the next thing he knew he was arrested. He appears to have passed out.
It seems likely that he was drinking alcohol, which, of course, is prohibited while a participant is subject to a Treatment Order. Police who arrested him reported that Mr Reid smelled of alcohol, was unsteady on his feet, had slurred speech and that he was verbally aggressive to police.
In any event, he was bailed in the ACT Magistrates Court so he could continue with the Treatment Order and released from custody, despite the breach of the curfew, to attend Court on 30 April 2021.
In the week that followed, Mr Reid did not attend any programs, failed to attend for urinalysis and did not respond to requests for contact with officers of ACT Corrective Services. He did not attend Court on 30 April 2021 and I issued a warrant for his arrest under s 80ZJ of the Sentencing Act.
Despite probably not being aware that the warrant had been issued, Mr Reid did not further attend as required to comply with the obligations under the Treatment Order. On 7 May 2021, he was located by police at 5:00am at Southpoint Shopping Centre, Greenway. Police arrested him in accordance with the warrant I had issued.
Mr Reid was assessed by an officer of the Alcohol and Drug Services, who reported that he admitted drinking four cans of alcohol in two days before using drugs: a 'ball' of methamphetamine each day since his release; some heroin; 'a lot' of cocaine; and on one occasion, 20 millilitres of gamma hydroxybutyric, commonly known as GHB, which is used as a party drug and a central nervous depressant, as it can give an experience of euphoria and tranquillity. I remanded him in custody.
The application
The Crown then applied for cancellation of the Treatment Order. I heard the application on 21 May 2021 and cancelled the Treatment Order for the reasons that follow.
The application was made under s 80ZE of the Sentencing Act. It sought the cancellation of the Treatment Order and that the Court either impose the sentence that was suspended by the Court on 21 April 2021 or re-sentence Mr Reid. The grounds of the application were:
(a) Mr Reid will not be able to comply with a condition of the Treatment Order (s 80ZE(1)(b) of the Sentencing Act);
(b) Mr Reid is unwilling or unlikely to comply with a condition of the Treatment Order (s 80ZE(1)(c) of the Sentencing Act);
(c) the continuation of the Treatment Order will likely not achieve the objects of the order (s 80ZE(1)(d) of the Sentencing Act); and
(d) Mr Reid poses an unacceptable risk to the safety or welfare of a person (s 80ZE(1)(f) of the Sentencing Act).
The application was supported by an affidavit which was read by the Crown. It was not subject to challenge or objection and the deponent was not cross examined. I have read it.
Mr Reid opposed the application and submitted that he should be given a further opportunity to participate in the rehabilitation that the Treatment Order promoted. He submitted, however, that he should continue in a residential drug rehabilitation facility to provide greater supervision.
The approach to the application has been addressed in R v Tonna (No 2) [2020] ACTSC 362 at [34]-[38]. In summary, the grounds need to be made out on the balance of probabilities. Even if any or all of the grounds on which the Crown relies are made out, the Court retains discretion of whether to cancel the Treatment Order, but must exercise the discretion judicially.
The application can also be used as an occasion to vary the current Treatment Order if some amendment may achieve the objects that a Treatment Order is intended to achieve, especially if such an amendment would address any of the problems identified in the grounds of the application.
I shall apply this approach to consideration of the application.
Consideration
I received and heard focussed, succinct and helpful oral and written submissions from Ms C Muthurajah, counsel for the Crown, and the thoughtful and thorough oral submissions from Ms C Duffy, counsel for Mr Reid.
The first ground is that the offender will be unable to comply with a condition of the Treatment Order. I pointed out in R v Crawford (No 3) [2020] ACTSC 369 at [35], that this ground refers to an actual incapacity, rather than an unwillingness or perhaps a refusal to comply.
There is no doubt that Mr Reid has failed to comply with the conditions about treatment programs, case management, urinalysis and the curfew, but these do not rise to the level of actual incapacity. I am not satisfied that this ground is made out.
The second ground, however, refers to whether Mr Reid is unwilling or unlikely to comply with the conditions. Certainly, as noted above (at [13]-[17]), he has failed so far to comply.
For the first breach of the curfew there was an explanation. It was not an excuse, in the sense that Mr Reid should not have put himself in the situation where he was vulnerable to such interference of his capacity to comply with the curfew condition, especially by consuming alcohol, which is also a breach of a condition in itself.
Being as it may, he then breached the curfew again and was arrested. He was brought before the Magistrates Court and given a further opportunity to comply, which he did not take up. Not only did Mr Reid breach the curfew condition again, but he then failed to attend any of the treatment requirements of the Treatment Order. It was not merely the missing of only one or two appointments, but it appears Mr Reid failed to attend likely six appointments and at least two other attendances for urinalysis. No explanation was offered for these breaches.
Mr Reid states that he wants a further opportunity to rehabilitate, but in the absence of any explanation for these continuing breaches, though only for a fortnight. I do not dismiss Mr Reid's expression of a wish for rehabilitation, but I have serious reservations about his ability to translate those expressed wishes into action.
In my view, the present failures to comply with the conditions, even for a fortnight, his extensive continuing use of illicit drugs and his lack of apparent insight of how he breached the conditions and how he might prevent that continuing, satisfies me, on the balance of probabilities, that he is unlikely to comply with the conditions of the Treatment Order. This is reinforced by his history of non-compliance with prior community based orders: see R v Reid (No 1) at [92].
Mr Reid had also, on 3 November 2015, 28 February 2017, 20 June 2019 and 15 September 2020, breached various parole orders to which he was subject in the past. He has spent many periods in custody and many of these were caused by his failures to comply with Court or Sentence Administration Board Orders.
As an officer of ACT Corrective Services commented in the Drug and Alcohol Treatment Assessment he prepared, the “reasons for re-entering custody are re-offending and breaching community based orders”. This was a concern the officer expressed when recommending Mr Reid as unsuitable for a Treatment Order.
It is not appropriate, necessarily, to assume that past behaviour will accurately indicate future conduct, but continuation of such behaviour does strongly suggest that the earlier pattern of behaviour is being repeated and that this predicts a likelihood that he will not comply with a condition of the Treatment Order.
The second ground is hence made out. Mr Reid may have, at the time of his sentencing, justified the opportunity to engage with a Treatment Order (see R v Reid (No 1) at [107]), but he has not accepted the opportunity in such a way as to justify continuing with it.
The third ground is that the continuation of the Treatment Order, as Mr Reid wishes, will not likely achieve the objects of that Order. These objects are set out in s 80O of the Sentencing Act as follows:
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; and
e) promote community safety by reducing the level of criminal activity caused by alcohol or controlled drug dependence in offenders.
Each of these is important and they are all intended to be achieved by this program. It seems that the first two are quite unlikely to be achieved by Mr Reid's continued failure to attend treatment programs and comply with other requirements. His breach of the curfew may put the community's safety at some risk (object (e)), since there is no reasonable basis for him to be out of his residence during the curfew hours.
I am satisfied that this ground has been made out.
The fourth and final ground is that Mr Reid poses an unacceptable risk to the safety or welfare of a person.
Mr Reid has an extensive criminal history, in which many prior offences were of dishonesty, especially aggravated burglary, burglary and attempted burglary. He has committed a number of offences of dishonestly driving a motor vehicle, four offences of possessing a knife, one of possessing an offensive weapon and one of possessing ammunition but without a weapon to discharge it: see R v Reid [2018] ACTSC 368; R v Reid (No 1).
He is not, however, alleged to have committed any further offences, apart from those arising directly from his current consumption of illicit drugs since his release under the Treatment Order.
I am not satisfied that there are strong signs in his behaviour that he has continued to offend.
It is to be accepted, as the Crown submitted, that while his substance use remains unaddressed, the likelihood of further offending, which in the past, I am satisfied, substantially contributed to his offending, remains a real and live possibility: see R v Reid (No 1) at [40]. The longest period since 2009 that he has been in the community without re-offending is approximately nine months in 2017 and 2018.
All this satisfies me, on the balance of probabilities, that Mr Reid is presently likely to re-offend if remaining in the community without having engaged in a Treatment Order. I am satisfied that this ground is made out.
Given that three of the four grounds have been made out, the next question is whether I should have cancelled the Treatment Order.
Ms Duffy, who has said everything that could be said for Mr Reid, submitted that the Treatment Order should not be cancelled but should be varied so that Mr Reid could enter a residential drug rehabilitation facility. Her cogent submission was that Mr Reid was now 36 years old and that is when, anecdotally, many persons with a drug dependency see that they need to move on from that lifestyle. Their age also evidences in many cases, however, the length of that period of dependency and the entrenched nature of it which requires more intensive supervision and treatment. This is to be accepted. There are, however, two reasons why I do not accept the submission.
The first is that, despite its cogency, the reasoning is disconnected with Mr Reid's circumstances, for he has shown no commitment to treatment or to reduction in his use of illicit drugs even for the short time that he has been subject to the Treatment Order. This gives me little confidence that he will make the necessary effort at this stage to participate with any commitment in a residential drug rehabilitation program.
The second is that there is no place in such a facility presently available for Mr Reid. Whether, had there been, it would have been appropriate to proceed in this way is hypothetical but, given the first reason, unlikely. Thus, while it is unfortunate that resources limit options, even where they are ones that may be adopted by the Court (R v Tonna (No 2) at [66]-[73]), the position is that this is not the only or major reason for deciding not to amend the Treatment Order and continue it, as amended, with a residential drug rehabilitation arrangement.
For these reasons, I cancel the Treatment Order made on 21 April 2021.
Sentence
The Sentencing Act provides that if I cancel a Treatment Order then I must either impose the sentence that was suspended under the custodial part of the Treatment Order or re-sentence Mr Reid in any way I see fit, save that I may not make another Treatment Order: see s 80ZE(2).
Set out in R v Tonna (No 2) at [78]-[79], is the approach to the issue of when it is appropriate to re-sentence. That consideration is by no means exhaustive but it is a helpful indication of the approach to be taken. Nothing there set out, nor included in counsel’s submissions, would justify re-sentencing Mr Reid.
Accordingly, I must impose the suspended sentence. There are difficulties with this provision, which I have set out in R v Antonovic (No 4). I will follow the approach I took in that case.
I note that Mr Reid was in custody prior to the sentence being imposed for a period of 114 days. That has been taken into account in that the sentence was partially suspended and it was only that period which was suspended that will be imposed.
Further, Mr Reid has now been in custody for a further 23 days, 5 of which were served following the cancellation of the Treatment Order. Of these days, 18 were spent as a result of the two breaches of the Treatment Order, 3 days for the initial arrest and 15 days for the subsequent breach: see s 80ZB(1)(e) of the Sentencing Act.
The sentence to be imposed may be reduced by these days: see s 80ZE(3)(b) of the Sentencing Act. I see no reason not to reduce it accordingly. The legislation does not make clear how that is to be done. I suggested in R v Blackburn (No 3) [2021] ACTSC 337, especially where, as here, there are multiple sentences, and I maintain the view there expressed, that it is preferable for the reduction to be made to the sentence for the primary offence, here being the offence of dishonestly driving a motor vehicle without the owner's consent. That is the way I will proceed.
That will reduce the sentence below the minimum limit to be eligible for a Treatment Order (s 12A(1)(b) of the Sentencing Act), but that is not, in my view, relevant.
As to the days in custody after the cancellation, I shall take this into account by further backdating the commencement of the sentence to include these days.
[His Honour then spoke directly to the accused]
Mr Reid, please stand.
(a) I confirm the cancellation on 21 May 2021 of the Drug and Alcohol Treatment Order made on 21 April 2021.
(b) I impose the sentence of imprisonment that was suspended under the custodial part of the Drug and Alcohol Treatment Order and declare that the time to be spent in custody is from 26 May 2021 to 8 May 2022.
(c) A non-parole period of nine months be set, to commence on 27 January 2021 and expire on 26 October 2021.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Sentence Judgment of his Honour Acting Justice Refshauge Associate: L Ireland Date: 10 March 2022 |
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