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:	The cancellation on 21 May 2021 of the Drug and Alcohol Treatment Order made on 21 April 2021 be confirmed. The sentence of imprisonment that was suspended under the custodial part of the Drug and Alcohol Treatment Order is imposed and it be declared that the time be spent in custody be from 26 May 2021 to 8 May 2022. A non-parole period of nine months be set, to commence on 27 January 2021 and expire on 26 October 2021.
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 Supreme Court Act 1933 (ACT) pt 8
Cases Cited:	R v Antonovic (No 4) [2021] ACTSC 280 R v Crawford (No 3) [2020] ACTSC 369 R v Reid (No 1) [2021] ACTSC 334 R v Reid [2018] ACTSC 368 R v Blackburn (No 3) [2021] ACTSC 337 R v Tonna (No 2) [2020] ACTSC 362
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…

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.

Continue reading R v Reid (No 2)

Details

AGLC: R v Reid (No 2) [2021] ACTSC 281
Case: [2021] ACTSC 281
Decision Date

CaseChat Overview and Summary

In this case, the respondent, Nathan Kerry Reid, was sentenced to a Drug and Alcohol Treatment Order (Treatment Order) on 21 April 2021 by Refshauge AJ. The Treatment Order was made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The Crown applied for the cancellation of the Treatment Order on 21 May 2021, which was subsequently cancelled. The court was required to decide whether to impose the original sentence that was suspended under the custodial part of the Treatment Order or re-sentence the offender.

The court considered the grounds for cancellation of the Treatment Order, which were that Mr Reid would not be able to comply with a condition of the Treatment Order, he is unwilling or unlikely to comply with a condition of the Treatment Order, the continuation of the Treatment Order will likely not achieve the objects of the order, and Mr Reid poses an unacceptable risk to the safety or welfare of a person. The court found that the second, third and fourth grounds were made out on the balance of probabilities. The court also considered whether to vary the Treatment Order to allow Mr Reid to enter a residential drug rehabilitation facility, but rejected this proposal due to his lack of commitment to treatment and the unavailability of a place in such a facility.

The court concluded that the Treatment Order should be cancelled and the original sentence imposed. The court reduced the sentence by the time Mr Reid had already spent in custody and further backdated the commencement of the sentence to include these days. The court set a non-parole period of nine months, to commence on 27 January 2021 and expire on 26 October 2021.

The final orders of the court were to confirm the cancellation of the Treatment Order, impose the original sentence of imprisonment from 26 May 2021 to 8 May 2022, and set a non-parole period of nine months.

Orders