R v Rogers
[2021] ACTSC 355
•28 September 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Rogers |
Citation: | [2021] ACTSC 355 |
Hearing Date: | 24 September 2021 |
DecisionDate: | 28 September 2021 |
Before: | Refshauge AJ |
Decision: | 1. Jake David Rogers be convicted of making a demand accompanied by a threat to endanger health and sentenced to 15 months imprisonment to commence on 31 July 2021 and end on 30 October 2022. 2. Jake David Rogers be convicted of contravening a Family Violence Order and sentenced to 6 months imprisonment to commence on 30 June 2022 and end on 29 December 2022. 3. Jake David Rogers be convicted of possessing a prohibited substance and sentenced to 3 weeks imprisonment to commence on 30 December 2022 and end on 20 January 2023. 4. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Jake David Rogers from today, 28 September 2021, and ending on 20 January 2023 in respect of the primary offence of making a demand accompanied by threat to endanger health of which he has been convicted and for which he has been sentenced to 15 months imprisonment. 5. That Order be extended to the offences of contravening a family violence order and possessing a prohibited substance, of which Jake David Rogers has been convicted and for which he has been sentenced, and which are associated offences of the primary offence. 6. It be noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order. 7. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 28 September 2021, until 20 January 2023. 8. For the treatment and supervision part of the Drug and Alcohol Treatment Order: (a) The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; (b) Jake David Rogers undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; (c) Jake David Rogers submit himself for assessment for admission to the Ready for Change program, of the Domestic Violence Crisis Service and, if found suitable, complete that program unless agreed by the Treatment Order Team or the Court that it is inappropriate to do so, and if found not suitable, complete other programs related to family violence that the Treatment Order Team may direct and for which Mr Rogers is found suitable, or which the Court may direct; and (d) Jake David Rogers comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 9. Jake David Rogers be directed to appear in Court on Friday 1 October 2021 at 11:30 am. 10. Jake David Rogers be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Making a Demand Accompanied by Threat – Contravention of Family Violence Order – Possessing a Prohibited Substance – Rehabilitation – Anger Management – Drug and Alcohol Treatment Order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 34B, 35, 41, 46, 46J, 46K, 46N, 53, 63, 80W, 80Y Crimes Act 1900 (ACT) s 32 Supreme Court Act 1933 (ACT) pt 8 |
Cases Cited: | Attorney General for the State of Queensland v Meizer [2019] QSC 213 Bui v The Queen [2015] ACTCA 5 Zdravkovic v The Queen [2016] ACTCA 53 |
Texts Cited: | A M Kopak and N G Hoffman, ‘Pathways Between Substance Use, Dependence, Offence Type, and Offence Severity’ (2014) 25(6) Criminal Justice Policy Review 743 A Laslett et al, ‘The Range and Magnitude of Alcohol’s Harm to Others’ (AER Centre for Alcohol Policy Research, Report, 2010) J Payne and A Gaffney, ‘How Much Crime is Drug and Alcohol Related? Self-Reported Attributions of Police Detainees’ Australian Institute of Criminology (Trends and Issues in Crime and Criminal Justice, No. 439, May 2012) |
Parties: | The Queen ( Crown) Jake David Rogers ( Offender) |
Representation: | Counsel M Lucero ( Crown) J Cooper ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service NSW/ACT ( Offender) | |
File Number: | SCC 172 of 2021 SCC 173 of 2021 |
Refshauge AJ
Introduction
Jake Rogers has been charged with making a demand accompanied by a threat to endanger health, contravening a Family Violence Order and possessing a prohibited substance. He has pleaded guilty to all three offences. Given the nature of the offences, the first two are particularly serious, given the Family Violence context in which they were committed.
Mr Rogers, who is to be sentenced for the offences, has sought to serve his sentence by a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
Given that Treatment Orders are designed for persons with a dependence on alcohol or other drugs, and that the dependence has to be a substantial contributor to the offending (s 12A(2)(a)(i) and (ii) of the Sentencing Act), it might be thought that offenders committing violent offences would not be obvious candidates for such Orders. Dishonesty, driving and drug offences may seem to be obvious offences it may be expected such persons would commit. A moment's thought, of course, shows that this is not so. Alcohol use, including dependency, is a significant cause of violence, including family violence. See, for example, A Laslett et al, ‘The Range and Magnitude of Alcohol’s Harm to Others’ (AER Centre for Alcohol Policy Research, Report, 2010) at xvii, 73, 83.
As to drugs, it is commonly thought that drug use is more frequently associated with non-violent property offences: A M Kopak and N G Hoffman, ‘Pathways Between Substance Use, Dependence, Offence Type, and Offence Severity’ (2014) 25(6) Criminal Justice Policy Review 743 at 760.
Nevertheless, the use of drugs is actually not uncommonly associated with violent offences: see J Payne and A Gaffney, ‘How Much Crime is Drug and Alcohol Related? Self-Reported Attributions of Police Detainees’ Australian Institute of Criminology (Trends and Issues in Crime and Criminal Justice, No. 439, May 2012) at 5, table 2.
That accords with the experience of this Court. Offenders who have committed violent offences contributed to by their drug use have been the subject of Treatment Orders: R v Blackburn (No 1) [2020] ACTSC 373, R v Lyons (No 1) [2021] ACTSC 138. In some cases, the violence was in a family violence context or family violence offences: R v Tonna (No 1) [2020] ACTSC 360 and R v Fry [2021] ACTSC 138.
Mr Rogers has pleaded guilty to each of the offences with which he has been charged and now must be sentenced by the Court. At the sentencing hearing, the Crown tendered its Sentencing Tender Bundle. The tender was not subject to objection and no challenge was taken to any of the material in it.
It contained the Committal and Transfer Documents (see ss 90A and 90B of the Magistrates Court Act 1930 (ACT)), an Agreed Statement of Facts, Mr Rogers' Criminal History, the Eligibility Assessments (as to which see R v McHughes [2021] ACTSC 92 at [7]), a Cultural Assessment, being one of the Drug and Alcohol Treatment Suitability Assessments (Suitability Assessment) under s 46J of the Sentencing Act, a Victim Impact Statement, a letter from the ACT Sentence Administration Board dated 6 October 2020 advising of the cancellation of his Parole Order, the ACT Government Analytical Laboratory Certificate of the analysis of the drugs found on Mr Rogers, and the amended Interim Family Violence Order.
Mr J Cooper, Counsel for Mr Rogers, tendered, without objection, a letter from his employer. It was, however, undated. Mr Rogers gave limited and unchallenged evidence that this was a slightly older letter, but he had been employed by this employer until he had been incarcerated, first when bail was refused on these charges and then when the parole was cancelled. He had, however, returned to this work.
At the time of the preparation of the Crown Sentencing Tender Bundle, it appears that the Crown had not received copies of the other Suitability Assessments from ACT Corrective Services, dated 9 September 2021, and the Alcohol and Drug Services of Canberra Health Services, dated 13 September 2021. Ordinarily, these would be included in the Crown Sentencing Tender Bundle.
As they had not been included in that Bundle, Mr Cooper filed them. It seemed to me, however, that the Crown should tender them and Ms Lucero, counsel for the Crown, agreed and did so. For obvious reasons, they were not the subject of objection.
An issue arose about the content of these documents, which is referred to below (at [126]–[148]), and so the status of these documents, and the consequences, if any, of the Crown tendering them, needs to be made clear.
In the first place, they are documents prepared following a direction of the Court, not dissimilar to a Pre-Sentence Report, the preparation of which is ordered by the sentencing Court: s 41 of the Sentencing Act. Ordinarily, such reports are tendered by the Crown.
Usually, a document tendered by a party is a document vouched for and to be relied on by that party. Ordinarily, it would not be, or be able to be, undermined by that party. Such reports and similar documents tendered by the Crown are in a different situation, as was explained in R v Ross [2011] ACTSC 211 at [58]–[65], as follows:
58. When the matter was before me on 20 December 2011, reports had been received from ACT Corrective Services and CADAS. I asked Mr T Jackson, who now appeared for the prosecution, to tender them. He initially declined, apparently on the ground that he was not supporting them, as he relied on the email from Odyssey House.
59. I rejected that rationale. It is, of course, regular practice and, in my view, quite appropriate for the prosecution to tender such reports. That in some way this compromises the prosecutor’s ability to challenge the contents is quite wrong.
60. In R v Ashman [2010] ACTSC 45, I said (at [28] – [29]):
... I note that while the prosecution tenders the Pre-Sentence Report and is bound to do so in discharge of its obligation to ensure that the court is properly informed of relevant matters, especially as to suitability for certain sentencing options, the prosecution has a statutory right to cross examine the author of the report. This is similar to the situation in New South Wales where in R v Palu [2002] NSWCCA 381 Howie J said (at [39]):
The suggestion made at one time by the sentencing judge that the Crown was bound by the material contained in a Pre Sentence Report because the Crown had tendered the document, cannot stand scrutiny. It is enough to refer to the fact that an application for the preparation of such a report is almost inevitably made by the defence and a report will not be prepared without an order of the court. The report is merely tendered by the Crown as a matter of procedural formality. What weight is to be given to the contents of the report so far as any factual material is concerned is, of course, a matter for the court to assess in the light of the other material before it. But the Crown is clearly entitled to make submissions on the contents of the report including asking the sentencing court to reject some assertion of fact contained in it.
I would merely add to this comment that in recent times, it has been common for the prosecution to seek an order for preparation of a Pre-Sentence Report in this jurisdiction.
61. The obligation I there referred to is really a reference to the prosecutor’s duties, as outlined in many decisions of the High Court, perhaps adequately summed up in the following passage from Whitehorn v The Queen (1983) 152 CLR 657 where Dawson J said (at 674):
All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses, notwithstanding that they give accounts inconsistent with the Crown case.
62. Although his Honour was there referring to the trial stage of proceedings rather than the sentencing phase, the principle remains the same. These reports are material evidence which should be before the court and as produced from the Executive Government, in the case of Pre-Sentence Reports, under statutory remit, it is the prosecution’s responsibility to tender the Reports and have the author of them available for oral evidence and cross examination if necessary.
63. If, as implied by Mr Jackson, other judicial officers consider that by tendering the Reports the prosecution is somehow bound by their contents I respectfully but forcefully state that in my clear and strong opinion they are wrong.
64. Not only do I rely on what the New South Wales Court of Criminal Appeal said in R v Palu (2002) 134 A Crim R 174, cited above, but reinforce that by the legislative direction given in s 46 of the Crimes (Sentencing) Act which expressly permits both prosecution and defence to cross examine the author of the Pre-Sentence Reports.
65. Though there is not a statutory regime of a similar kind for CADAS reports, I am firmly of the view that they fall within the same category.
Both Eligibility Assessments and Suitability Assessments are in the same category. As to the Suitability Assessments, s 46N of the Sentencing Act is a counterpart to s 46 of that Act, namely that it expressly permits both the prosecution and defence to cross-examine an assessor who prepared a Suitability Assessment.
Each party also favoured the Court with helpful written submissions. They did focus on the issues, though they were refined and extended and other issues arose in oral submissions made by both parties. There was one contentious issue, which will be dealt with below (at [126]–[148]). Subject to dealing with that issue, the following findings are made from this material.
Background
Mr Rogers had, for about three years, been in a relationship with the victim of the current offences, other than the offence of possession of a prescribed drug. That relationship ended some time prior to 20 January 2020, when an Interim Family Violence Order was made under the Family Violence Act 2016 (ACT). That Order, amended on 22 January 2020, prohibited Mr Rogers from being within 100 metres of his ex-partner, except in certain exempt situations, none of which are presently relevant. It also prohibited him from engaging in behaviour that constituted family violence towards her.
Mr Rogers was personally served with the Interim Family Violence Order on 5 February 2020. Such an Order is in force until any of the events specified in s 25 of the Family Violence Act occur.
Both parties accepted that the Order was in place on 30 May 2020. Despite the Court not being informed precisely of the circumstances under which that had come about, it is accepted that it was then in place.
A son had been born from the relationship between Mr Rogers and his former partner. There was, as at the date of these offences, no formal parenting plan in place, but Mr Rogers had an agreement from his ex-partner that he could have contact with his son any time he wished.
Accordingly, at about 10:40 am on 30 May 2020, Mr Rogers picked up his son from his ex-partner's home without a prior arrangement. He had, however, sent a text to let his ex‑partner know that he had done so. Such contact was one of the exempt contacts permitted under the Interim Family Violence Order.
Later that day, at about 1:45 pm, Mr Rogers went to his ex-partner's home in company with another male. At the time, his ex-partner was there in the company of two males.
When Mr Rogers' ex-partner heard the vehicle approach, the males moved into the back yard and Mr Rogers ex-partner went to the front of the residence to tell him to leave. Mr Rogers, however, told her that he wanted the males to leave. He then returned to the vehicle in which he had arrived and collected a bolt-action rifle from the back seat of the vehicle. These events were seen by a neighbour and she took digital images of Mr Rogers standing next to the vehicle.
Mr Rogers’ ex-partner returned into the residence and sat on the lounge. At about this time, the two males left the residence via a green belt at the rear of the residence. Mr Rogers and his companion stood at the front of the residence for about five minutes and then Mr Rogers went inside, standing about a metre from his ex-partner, saying to her, “I told you this was going to happen, I told you not to have males around my son. You fucked up. You're going to pay the price.” He then said, “You're lucky I don't shoot them and you.”
After saying this, Mr Rogers left the residence and returned to the vehicle in which he had arrived. His ex-partner followed to see if their son was in the car, though he was not.
Mr Rogers and his companion then left the premises.
The neighbour reported the incident to police that day. The next day, police attended at Mr Rogers’ residence and arrested him. He was taken to the ACT Watchhouse and in a search of his person, police located a small clipseal bag containing 3.345 grams of white crystalline powder. The ACT Government Analytical Laboratory analysed the substance and found that it contained methylamphetamine.
At the time of his arrest, Mr Rogers was on parole. He had been sentenced to a term of 20 months imprisonment from 25 March 2019 with a non-parole period of nine months for offences of theft, obtaining property by deception, driving whilst disqualified and driving with a prescribed drug in his oral fluid.
There was not in the evidence any information as to when the Parole Order was made, but, on 6 October 2020, the Order was cancelled for failing to report to a Corrections Officer, failing to comply with a direction given by such an Officer, failing to undertake treatment, counselling, rehabilitation or programs as directed, failing to submit to blood or breath testing, urinalysis or other test procedures and for using a prohibited substance. He was directed to be placed in custody for three months and 11 days, which commenced on 1 February 2021 and ended on 11 May 2021.
Mr Rogers did not immediately comply with the Order to report to police so that he could be placed in custody. He in fact went to Queensland, he says to see his mother, and then returned to report to police and was arrested on 1 February 2021.
The proceedings
As noted above (at [27]), Mr Rogers was arrested on 31 May 2020 and appeared the next day in the Magistrates Court, when he was charged with contravening the Interim Family Violence Order and of being in possession of the prescribed drug.
He was remanded in custody. The proceedings were adjourned.
On 16 June 2020, he entered a plea of not guilty to the offence of contravening the Interim Family Violence Order. The proceedings were further adjourned.
On the next appearance in Court, Mr Rogers was charged with the offence of making a demand accompanied by a threat to endanger health. He was, despite this, granted bail. On 11 August 2020, he pleaded not guilty to this further charge and the matters were listed for hearing for two days, commencing on 1 February 2021.
There were some further adjournments and, on 1 February 2021, the hearing of the charges was not reached and the hearing was re-listed to commence on 26 February 2021. The next day, however, that hearing date was vacated in chambers.
By this time, as noted above, Mr Rogers was in custody, his parole order having been revoked. No steps were taken to hear the proceedings during that period of revoked parole.
On 11 May 2021, when his sentence of imprisonment had expired, he was granted bail and the proceedings listed for hearing to commence on 26 July 2021. On that day, he pleaded guilty to all charges and was committed to this Court on the charge of making a demand accompanied by a threat to endanger health. The other charges were transferred to this Court, to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT).
Mr Rogers sought a listing in the Drug and Alcohol Sentencing List so that a Treatment Order could be made. He appeared in this Court on 6 August 2021, when Suitability Assessments were ordered and the proceedings listed for sentence on 24 September 2021. Directions were also made about the filing of evidence and written submissions. The Suitability Assessments were directed to be provided to the Treatment Order Team on or before 16 September 2021.
The offences
When a court imposes a sentence, it is required to be just and adequate. In order to do that, a number of considerations need to be taken into account by that Court. Of course, the facts of the actual offences are an important matter to be considered. A number of the matters are set out in s 33(1) of the Sentencing Act, which are mandatory considerations so long as the Court knows of the matters referred to in that subsection.
The first matter mentioned is the nature and circumstances of the offence: s 33(1)(a) of the Sentencing Act. This matter includes the facts, as have already been noted, and have been set out above. Also, however, the nature of the crime itself is highly relevant. This requires consideration of the maximum penalty legislated for the offence, which is essential for the Court to be able to assess the seriousness of the offence. See, for example, Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]–[31].
Each of the statutorily described offences, however, can be committed in a huge variety of ways and under a wide range of circumstances, with a different set of consequences. This must be identified so that the seriousness of the actual crime committed can be assessed, to ensure that sentence will be an appropriate and proper one, “proportionate to the gravity of the crime considered in the light of its objective circumstances”: Hoare v The Queen [1989] HCA 33; 167 CLR 348 at 354. The factors that give an indication of this can be ascertained by looking at how the courts have considered individual examples of the crime. This is, in part, also a mandated requirement for consideration, namely current sentencing practice: s 33(1)(za) of the Sentencing Act.
Making a demand accompanied by a threat to endanger health is a crime against s 32(2)(a) of the Crimes Act 1900 (ACT), which prescribes a maximum penalty of 10 years imprisonment. It is, therefore, a serious offence.
In R v Goodge [2019] ACTSC 297 at [29], Mossop J described relevant factors that should be considered as follows:
In assessing the gravity of the offence of making a demand with a threat, regard must be had to the nature of the demand, the manner and circumstances in which it is made and the nature of the threat to endanger the other person's health, safety or physical well-being.
Thus, in this case, there was a threat to do Mr Rogers’ ex-partner (and certain males who were on her premises) serious physical harm, quite likely to kill her as he had a gun in his possession. There was no evidence as to whether the gun was loaded or not but, of course, the victim was not to know and would assume that it was. The use of a weapon is an aggravating feature: R v Evans [2020] ACTSC 285 at [5].
The threat was made in a personal confrontation where Mr Rogers was holding the rifle. His comment, “You're lucky I don't shoot them and you” seems to moderate the likelihood of serious harm and there was no suggestion that he actually pointed it at her or anyone else.
Given the former relationship of Mr Rogers and his ex-partner, this is an offence of family violence. The demand was something of a regrettably frequent effort by Mr Rogers at an exercise of power and control over the victim — a form of coercive control. This is, of course, a typical part of family violence offences: R v Stanley [2015] ACTSC 322 at [62].
As Johnson J pointed out in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 193; [77], this is a violation of trust by the offender, who in this case, had shared an intimate relationship with the victim. It contributes to the subordination of women and is designed to instil fear in and exert control over the victim.
A further factor that is relevant is that Mr Rogers was accompanied by another male, which would have instilled a greater fear and sense of weakness and vulnerability in the victim. It is to be noted, however, that only Mr Rogers came into his ex-partner's house, though the other male remaining outside would, for example, engender in the victim a real sense that she could not flee. The Victim Impact Statement that she provided made it clear that the other male had instilled a real sense of fear in her.
There is no evidence of much, if any, planning or pre-meditation in the offences, though, of course, Mr Rogers had to ask the other male to accompany him and to place the rifle in the car, but neither of these are inconsistent with a degree of spontaneity. No submission was made to the contrary.
The next offence was the contravention of the Family Violence Order, which is an offence proscribed by s 43(2) of the Family Violence Act and attracts a maximum penalty of five years imprisonment or a fine of $80,000 or both. The offence is intended to make Family Violence Orders more effective and such orders are intended to give protection to people in familial or intimate relationships with others, or who have been in such a relationship, protecting them from violence, both physical and emotional, including coercive control and other means of exerting power over and instilling powerlessness in the victim: Roberts v Smorhun [2013] ACTSC 218 at [2]–[4], R v B G (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 1 December 2010).
There is, of course, a significant level of overlap with the factors involved in the offence of making a demand accompanied by a threat to endanger health and this must be taken into account in the sentence.
To approach within 100 metres of his ex-partner, as Mr Rogers did, is a breach of the Order, but is aggravated by the threat of violence and, yet more seriously, by bringing a rifle and another male with him. Indeed, the making of the demand, the threat and the presence of the rifle were breaches of the prohibition in the Order from “engaging in behaviour that constitutes a family violence offence”, which includes “threatening behaviour” and “coercion or other behaviour that… controls or dominates” or causes the person “to fear for [her] safety or wellbeing” : s 8(1)(a)(v) and (vi) of the Family Violence Act.
A further statutory factor of aggravation is that the offence occurred in the victim’s home: s 34B(1)(b) of the Sentencing Act. The home is a place where a resident should feel safe, and when they do not, this does increase the sense of vulnerability and powerlessness of the resident.
The breach was also serious, since it was a deliberate and substantial defiance of the Order which Mr Rogers was required to respect: R v Michalopoulos [2020] ACTSC 27 at [19]. He must have known that he was breaching the Order and certainly no submissions were made to the contrary.
Nevertheless, there was no actual violence nor was the breach of any significant duration, both of which factors would have made the offence a more serious one: R v Smith [2021] ACTSC 114 at [27].
The third and last offence for which Mr Rogers has pleaded guilty is the offence of possessing a prohibited substance, which is made an offence by s 171(1) of the Drugs of Dependence Act 1989 (ACT), which section prescribes a maximum penalty of two years imprisonment or a fine of $8,000 or both. It is, therefore, regarded as the least serious of these three offences. See, for example, R v Nicholas; R v Palmer [2019] ACTCA 36 at [23].
It is, nevertheless, an offence which still regularly attracts a sentence of imprisonment, and so is one of some seriousness. This, in part, stems from the problems which drug use can cause, both to the consumer, but also to others. It is often said, in accordance with popular belief, that possession or use of drugs is a victimless crime, but it is indeed not a victimless crime considering the problems it does cause to those who use drugs, their families and to others in the community who suffer from the other crimes often committed by those who are using drugs.
There has been some controversy about whether weight is a relevant consideration. In Wong v The Queen [2001] HCA 84; 207 CLR 584 at 609; [67]–[70], the High Court, writing in the context of importing illicit drugs, noted statutory prescriptions relating to weight, but otherwise held that the Court of Appeal (from whose decision Mr Wong appealed to the High Court) was in error in attributing chief importance to the weight of narcotic when fixing sentences for that offence. Other circumstances had to be given significance as well. Thus, it is clear, and other decisions accept, that weight is still relevant: R v Bezan (2004) 147 A Crim R 430, Phamv The Queen [2013] NSWCCA 217 at [27] and Bui v The Queen [2015] ACTCA 5 at [41]. Indeed, in Zdravkovic v The Queen [2016] ACTCA 53 at [41], the Court of Appeal did accept that both the quantity and purity of a drug may be relevant to sentence.
In this case, the amount was 3.345 grams of methylamphetamine. This is a little over 3 points. There was no information on the purity of the drug. It is also a little over half the trafficable quantity of drug prescribed by regulation: item 44 in Part 1.1 of Schedule 1 of the Criminal Code Regulations 2005 (ACT). It is, therefore, not by any means a single use, but neither is it a significant amount. It is unfortunate that the Court had no information on the purity of the drug.
Subjective circumstances
Mr Rogers was born 28 years ago, the youngest child of his parents. He has four older sisters. His mother is Italian born and his father is a Wiradjuri man from Bathurst. His parents separated before his second birthday. He was primarily raised by his father, though he did spend every second weekend with his mother.
She remarried, but her second husband died about three years ago. She now lives in Queensland, but Mr Rogers has regular phone contact with her and a good relationship with her.
He was mainly raised by his father. His father, however, had a work accident and was receiving a disability pension, which sometimes left the family without necessities. Mr Rogers's relationship with his father was not easy. His father would inflict corporal punishment on him regularly. When he was about 14 or 15, he retaliated, punching his father in the mouth. The police were involved, but it does not appear that any charges were laid. He then moved to live with his mother and did not speak to his father for a couple of years.
He left his mother's home when he was 18 or 19 years old and returned to live with his father. He has regained his relationship with his father and proposes to live with him if a Treatment Order is made for his rehabilitation in the community. He also has positive relations with his sisters.
He has had two significant relationships and a son was born from each, one now aged eight years old and the other now two years old. The first relationship ended because of the challenges of his partner's mental health. He had difficulty with access to his son, though it was intended to be every second fortnight, but access was denied after the making of the Family Violence Order mentioned in these proceedings. He has had no contact with his son since 1 February 2021.
The second relationship lasted for about three years, but ended through his ex‑partner's infidelity during Mr Rogers’ period of incarceration. This may be part of the reason that he was so sensitive to the males being present at her house, though, in truth, it was none of his business.
He now has a new partner with whom he is expecting a child, due in February 2022.
Mr Rogers was educated in Canberra, but was expelled for fighting and selling drugs before he completed Year 9. The evidence was unclear, but it appears that he later completed Year 10 or Year 11 at an assisted learning program, it appears at Canberra College, for pregnant and parenting students. He has also obtained a Certificate III in Hospitality and a Diploma in Child Care. He says that he wants to attend the Canberra Institute of Technology to study to be a Motor Mechanic, as he has a keen interest in cars which has become something of a hobby.
After school he worked in predominantly manual labour roles. He is currently employed, as noted above, by ACT Pallets and Wholesale Hardwood, a business in Queanbeyan. He has worked there on and off since about 2018, but resumed work on 13 May 2021. The Court received a reference from his employer which described him as a “consistent and reliable worker” and that he intended to keep him on as he “filled the position well”.
Some time ago, he recovered a substantial compensation payout from a work injury. He used some of it to pay some of his mother's bills and to help her buy a house in Young, New South Wales. He plans to move there when his Court obligations, including the completion of a Treatment Order, if made, are concluded. In the meantime, he plans to live with his father, whose home has been assessed, unfortunately not by a home visit, but without any concerns being raised for it in the context of a Treatment Order.
Mr Rogers did purchase some items for himself out of the compensation payment and, he admitted, some drugs.
He was a gambler for a while, but would set a clear limit and managed to avoid getting into debt. His gambling lasted, however, for only about a year.
He has had some health issues. About seven or eight years ago he fell about a metre, causing some nerve damage. He currently manages his pain by moderating his activity and not overdoing things. He feels that he may suffer from asthma and has used a puffer for about six years. He has had some dental issues, unsurprisingly, given that he last saw a dentist when he was a child. He severed his index finger in a recent accident in August this year.
He has no mental health issues.
As to alcohol and other drugs, he first tasted alcohol when his maternal grandparents gave him a “Long Neck” to drink as a four-year-old. He was given alcohol and cigarettes by them on visits thereafter. He was drinking regularly about age 16 or 17, but stopped in about 2017 or 2018, largely because of cost, and he rarely drinks now. He did celebrate his return to the community out of custody with a beer.
He began smoking tobacco seriously when he was 14 or 15 years old and now smokes 15 to 20 cigarettes a day. He has decided to quit, a very admirable decision, but one that will be difficult.
His use of other drugs began with cannabis consumption at age 14. Between ages 17 and 20 he was using up to a quarter of an ounce regularly. He ceased use, however, when he was 20, on the birth of his first son.
Of harder drugs, he has tried most of them. It started with the consumption of cocaine at age 21, which he used until he substituted methamphetamine for it when he was about 23.
He has, since beginning at age 23, used methamphetamine regularly. He found that he could work after having consumed the drug. He stopped using it intravenously in June 2020 and stopped completely in December 2020/January 2021.
He briefly used speed (amphetamine) for a couple of years, between ages 24 and 26. He used LSD a little before this, but only about 10 times, and his methamphetamine use led him to stop completely from using. He also used heroin for a little while in his mid-20s, but he did not like it. Similarly, a brief use of GHB at this time was discontinued because he did not like it either. He used MDMA/Ecstasy in his early 20s, but by age 27 he was not partying as much and has not used those party drugs since.
Mr Rogers has had no real alcohol or drug treatment or counselling. He did complete an online program with Directions Health Services about a year ago and had some basic drug counselling whilst on parole. During the preparation of the Suitability Assessment, the Alcohol and Drug Service recommended that he attend some counselling. He did undertake the online SMART Recovery programme as suggested.
Mr Rogers has a criminal record which commenced in 2014 when he was 21 years old. Of the 26 offences on his record, 12 related to driving without a licence, either through disqualification, suspension and, in one case, not yet obtaining one. He has four convictions for driving with a prescribed drug in his oral fluid and one for driving with a prescribed concentration of alcohol in his breath. There are six other traffic related offences and one offence each of failing to appear after giving a bail undertaking, obtaining property by deception and theft.
Until now, it is a relatively low-level record, though the number of offences of failing to comply with licence requirements raises concerns about his ability to comply with directions and orders of courts.
While engaging with the Suitability Assessment reporters, he was said to have been pleasant, well-spoken, well-presented, open and honest. He was rather aggressive initially with the assessor from the Alcohol and Drug Service, but he did comply with the request to tone his manner down to what was appropriate.
Current sentencing practice
As noted above (at [40]), current sentencing practice is a factor that a sentencing court is required to consider. Some of that has, as there noted, been addressed in the consideration of the offences.
The other part concerns the approach that courts currently take to the offences themselves. This can be done by considering statistics such as those compiled in the ACT Sentencing Database. This is a fairly blunt measure of such practice, as it does not really indicate the principles on which the Court has acted in setting the sentence or the factors considered, other than some fairly general ones, such as age and whether a plea of guilty or not guilty was entered.
Counsel for Mr Rogers did produce a number of cases that were said to be comparable. These are somewhat more useful, though they cannot — as the statistics similarly cannot — set a range within which a sentencing court must comply.
The decisions all related to the most serious charge of making a demand accompanied by a threat to endanger health.
The Court has referred to R v Goodge, where the offender also committed an aggravated robbery when he broke into the victim's house with a co-offender. He had a knife, which he waved in the victim's face before hitting him over the head with a bat. Angry about the non-repayment of a loan, he demanded the victim sign over the ownership of a car. Mr Goodge had a dysfunctional childhood and a workplace injury, his compensation from which he spent on family and drugs, and a limited criminal history, mainly of driving offences. He was sentenced to 20 months imprisonment for the aggravated robbery and five months for the demand accompanied by a threat, both of which were to be served by an Intensive Corrections Order. This seems a somewhat more serious version of the offence than the one Mr Rogers committed, but Mr Goodge had more serious subjective circumstances than those in the case of Mr Rogers.
In R v Walker [2016] ACTSC 232, the two offenders, 27 and 34 years old, attended a scene expecting a conflict and took a loaded rifle. There was a degree of planning, but the Judge accepted that there was a degree of provocation, as a close relative was being harassed and had been physically assaulted by one of the victims at the place where the offenders attended. It is not clear, other than by implication, what the threat made by the offenders was. One offender had no criminal record despite a disruptive childhood. The other had a limited record of mostly traffic offences. Both had jobs. One was sentenced to 27 months imprisonment, fully suspended, with a Good Behaviour Order and a requirement to perform 200 hours of community service work. The other was sentenced to 21 months imprisonment, fully suspended, with a Good Behaviour Order and a condition to perform 200 hours of community service work. This seems a more serious offence, but with greater subjective circumstances of the offenders than in the case of Mr Rogers.
The third decision, R v Mailau [2018] ACTSC 187, involved Mr Mailau entering a café and approaching the victim, who was seated at a table there, and demanding to be paid “50 grand”, threatening to “kneecap” the victim. He had what appeared to be the butt of a firearm in his hand. The victim agreed to pay the money. Mr Mailau was on conditional liberty at the time and had a serious criminal history. He was 42 years old and accepted responsibility for his offending. He was sentenced to two years and six months imprisonment, with a non‑parole period of 18 months. The offences were similar in seriousness to that committed by Mr Rogers, but Mr Mailau had a much more serious criminal history and serious subjective circumstances.
Finally, in R v Williams (No 2) [2020] ACTSC 280, Mr Williams approached the victim, who was in his car, pulled him away and demanded the keys of the car, while pointing a large machete in a leather sheath at the victim's hip. Mr Williams had a dysfunctional childhood, limited education and was drug dependent, though he had attempted rehabilitation. He had mental problems and a substantial criminal history. He was on conditional liberty at the time of the offence, which breached a Good Behaviour Order. He was sentenced to 19 months imprisonment. The offence was more serious, perhaps, but the subjective circumstances of Mr Williams were significantly more serious than those of Mr Rogers.
In the course of sentencing Mr Williams, the Court referred (at [35]) to:
the ACT Sentencing Database, which shows that in the period to February 2019, 56 per cent of offenders received a sentence of imprisonment, and the sentences that were imposed in such cases were generally in the range of 12 months to three years' imprisonment.
The Sentencing Database has, for this Court, only one offence of contravening a Family Violence Order, for which a four month sentence of imprisonment was imposed, which was fully suspended. Regrettably, as is far too frequent, there was no link to the sentencing remarks of that decision.
In the Magistrates Court, where most of the offences are finalised, 45% are dealt with by a Good Behaviour Order and 37% are dealt with by a sentence of imprisonment, of which 18% are fully suspended, 46% partially suspended and the balance of 36% served in full time custody, mainly of terms of three months or less.
Victim Impact Statement
Mr Rogers' ex-partner prepared a Victim Impact Statement which was tendered to the Court.
It is generally within the Court's experience to understand, in general terms, the effect of crimes on victims and sentencing courts regularly have regard to such matters, as, indeed they are, in this jurisdiction, bound to do: s 33(1)(f) of the Sentencing Act.
It is, however, very helpful to have such statements, as they can give the precise and particular effects of the crimes, rather than the generalities that are what is only to be known by the Courts. It is also an important opportunity for the victim to participate personally in the sentencing process and to have their voice heard. In its absence, the sentencing process can tend to focus almost exclusively upon the offender and such statements provide an appropriate balance to this process.
As is so often the case, especially with crimes of personal violence, the Victim Impact Statement made for sober reading. It was, of course, not corroborated and the victim gave no oral evidence, though she was entitled to do so. The defence lawyer may cross-examine the victim (s 53(3) of the Sentencing Act) though this is, it appears, rarely done.
In the statement, the victim spoke of the trauma that the offence caused. She became terrified that her son would be taken again without her knowledge. She found that her sleeping arrangements and sleep were substantially disrupted. She had a panic attack when she saw the male who accompanied Mr Rogers during the offence while she was out shopping. She was, at the time, in a relationship and this disrupted it and it took seven months for her to return to dating him. She was constantly having breakdowns and not handling the situation well. She was too scared to leave her house for some weeks and she still has nightmares, is terrified of loud noises, including gunshots in movies, and she is especially disturbed by noises in her back yard. While she felt safe while Mr Rogers was in custody, she left her house when he was released to live in a place unknown to him.
The Court shall, as required (s 53(1)(a) of the Sentencing Act) take this statement into account when sentencing Mr Rogers.
Consideration
The task of this Court in sentencing Mr Rogers is to impose a sentence that is just and adequate: Singh v The Queen [2017] ACTCA 17 at [93]. In order to achieve this, the Court must have regard to the statutorily mandated purposes of sentencing, as set out in s 7 of the Sentencing Act. The legislature has also given guidance on the factors to which the Court must have regard, so far as they are known, in s 33(1) of the Sentencing Act.
The seriousness of the most serious offence means that punishment is an important purpose. Such offending must be shown to be unacceptable in the community and, as noted above, the effectiveness of the Family Violence Order must be protected. This requires a stern sentence and one that will have effect to deter others in the community from committing similar offences.
Mr Rogers must also be shown that such conduct will not be tolerated and be deterred from repeating it. The sentence must denounce the conduct.
As noted above, the victim plays a role and the sentence must recognise the harm that has been done to her, and indeed, to the community, which values the peaceable life in which its members can feel safe and develop their potential. Thus, the community must also be protected.
Nevertheless, one of the most effective ways to achieve these purposes can, if possible, be the rehabilitation of Mr Rogers, which will also be in the public interest: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32].
There are, as Mr Cooper pointed out, some significant signs that this may well be achievable. After release from custody, Mr Rogers has taken some significant steps to mend his life. He listened to the assessor who prepared the Alcohol and Drug Service Suitability Assessment by moderating his initially aggressive demeanour and by attending the SMART Recovery Program. He returned to his job and even the loss of his finger did not deter him from continuing to work. He ceased the use of drugs.
His criminal history is some indicator of the likelihood of rehabilitation: Saga v Reid [2010] ACTSC 59 at [89]. It is relevant that, prior to these offences, Mr Rogers had been sentenced only once to a term of imprisonment. That he has not complied with the Parole Order, as noted above (at [28]–[29]), is a concern, though his behaviour on bail has been much better. He has not committed any of these offences before. Indeed, his record, though depressingly significant in the number of offences committed, does not show evidence of serious criminality. His criminal record does not show an inability to rehabilitate.
Mr Rogers pleaded guilty to the offences and this is required to be considered: s 33(1)(i) of the Sentencing Act. He entered the pleas, however, on the morning of the hearing that had been set for his originally entered pleas of not guilty. It followed, however, negotiations which led to some amendments being made to the facts on which he was to be sentenced. This requires him to receive some discount, though it is limited, because although it had the utilitarian value of saving the witnesses from giving evidence, especially the victim, as this would have been particularly traumatic for his ex-partner, all the preparation had nevertheless to be undertaken. The prosecution evidence also was very strong, with the eyewitness and records she had made. Thus, while a discount will be given, it will be modest: s 35 of the Sentencing Act.
On the other hand, Mr Rogers was on parole when he committed these offences. The basis of parole is, of course, meant to provide an opportunity for rehabilitation: R v Wallace [2007] NSWCCA 63 at [15]. He is released to the community instead of remaining in custody, and that involves a level of trust that the commission of the offences abuses. This must aggravate the sentence that is to be imposed, given the betrayal of the trust that it constitutes: R v Law [2021] ACTSC 351 at [86].
The Court takes into account the nature and circumstances of the offences as they have earlier been described, the personal circumstances of Mr Rogers as they have also been described, that two of the crimes did not cause physical harm to the victim, and that Mr Rogers has accepted responsibility for them. The Court takes into account the other matters which have been set out in these remarks.
In the circumstances, however, no other sentence than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
There are, of course, three offences for which sentence is to be imposed. The Court must impose a fair and proper sentence on each one separately, and the length of each of them has been carefully considered to ensure that it is just and adequate, and also to ensure that Mr Rogers is not punished twice.
The Court must also consider whether the sentences should be partly or wholly concurrent, because, for example, they are part of the same course of conduct or contain common elements. This applies especially to the offences of making a demand accompanied by a threat to endanger the health of the victim, and the offence of contravening the Family Violence Order, where there are significant common elements.
The Court has then considered the length of the total term of the sentence arrived at to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed, but no more than that, and that the total sentence is not excessive but will leave open the realistic prospect of reform and maintain the hope required for Mr Rogers to take an effective part in his children's life, the community, and to realise his aims when he is released.
This may result in what is seen by some as leniency, in that some sentences are made concurrent, but while the total criminality of Mr Rogers is an important factor, his growing awareness of the need for rehabilitation is also important, as are the circumstances of his relatively early introduction to drug use. Thus, it requires a sentence proportionate to his culpability for the crimes, the effect on the community, including the victim, but also Mr Rogers’ subjective circumstances and the value of his reform to both the community and to himself.
In imposing the sentences, the Court takes into account the time he has already spent in custody prior to sentence, being 59 days, and will do that under s 63 of the Sentencing Act by backdating the sentence for that purpose. The Court will not take into account the period when he was serving the sentence following the cancellation of his parole.
Sentence
[His Honour then spoke directly to the offender]
Mr Rogers, please stand.
The orders of the Court are as follows:
(1) You are convicted of making a demand accompanied by a threat to endanger health and sentenced to 15 months imprisonment to commence on 31 July 2021 and end on 30 October 2022. Had you not pleaded guilty, you would have been sentenced to 17 months imprisonment.
(2) You are convicted of contravening a Family Violence Order and sentenced to six months imprisonment to commence on 30 June 2022 and end on 29 December 2022. That is to be cumulative as to two months on the sentence for making a demand accompanied by a threat to endanger health. Had you not pleaded guilty, you would have been sentenced to seven months imprisonment.
(3) You are convicted of possessing methylamphetamine and sentenced to three weeks imprisonment, to commence on 30 December 2022 and end on 20 January 2023. Had you not pleaded guilty, you would have been sentenced to one month imprisonment.
You may be seated.
Drug and Alcohol Treatment Order application
Mr Rogers has asked that he serve the sentence under a Treatment Order. In order to do that, the Court must first assess whether he is eligible under s 12A of the Sentencing Act and, if so, whether he is suitable for the making of such an Order.
Mr Rogers has been sentenced to 15 months imprisonment for the offence of making a demand accompanied by a threat to endanger health, which is greater than the minimum period of imprisonment to which an offender must be sentenced to be eligible, namely 12 months, but neither is the total sentence, of 17 months and three weeks, greater than the maximum allowed, namely four years.
Further, Mr Rogers is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
It may be accepted that the Treatment Order regime has been explained to Mr Rogers and that he has had an opportunity to ask any questions about it and have those questions answered. The Court is satisfied that he has given informed consent to the making of the Treatment Order.
Mr Rogers will be resident in the ACT for at least the period of the sentence, though it is accepted that he may then move to Young, New South Wales, to live with his mother.
The Suitability Assessments have satisfied the Court, supported by his criminal record, and indeed, the offence of possessing methylamphetamine, to which he has pleaded guilty, that he has a dependence on illicit drugs, especially methylamphetamine.
Mr Rogers told the assessors who prepared Suitability Assessments that his use substantially contributed to the commission of these offences. That, however, has been challenged by the Crown, who pointed out initially that there was no evidence of this.
There was, however, evidence in the Suitability Assessments, where it was reported that Mr Rogers had told them that he had been consuming drugs at the time of the offending. This is, of course, evidence. The Crown’s submission was then modified to point out that it was only stated through the self-report to the assessors by Mr Rogers and as such was unreliable. This was a proper submission to be made.
The point, however, was not raised in the written submissions, but was raised in oral submissions later. Mr Cooper, counsel for Mr Rogers, said that he had no notice of the point and so had not an opportunity to address it until the submission was made in Court.
The reason for giving directions as to the filing of submissions is, of course, to give notice of issues to be raised so that they can be addressed. The Crown explained that at the time of preparing the Sentencing Tender Bundle it did not have the Suitability Assessments, other than the Cultural Assessment, and that is why they were not, as ordinarily they would be, included in it and so not referred to in the written submissions. That does not explain why notice of the point was not given to Mr Cooper.
It is also odd, given the direction made by the Court about the preparation of the Suitability Assessments and them being made available to the Treatment Order Team, which includes both the Director of Public Prosecutions and the Legal Aid Office, as well as the other members of the Treatment and Supervision Team, that they were not provided directly to them, though that would not include Mr Cooper who, in any event, has them.
It is noted that the other Suitability Assessments were dated 9 September 2021 and 13 September 2021. The Crown Sentencing Tender Bundle was dated 17 September 2021 and the written submissions dated 21 September 2021. It is noted, further, that the Cultural Assessment was dated 16 September 2021, after both of the other Suitability Assessments, yet it was included in the Crown Sentencing Tender Bundle. The Court does not propose to investigate that further, but it does seem that sufficient thought may not have been given as to whether efforts should have been made to inquire at least as to why the Suitability Assessments had not been provided in accordance with the directions the Court had made and to make efforts to have them available, at least to address the very important issues, of which they provided significant evidence as to the appropriate disposition of the proceedings.
It is further noted that the Eligibility Assessment of the Alcohol and Drug Service was included in the Crown Sentencing Tender Bundle and did refer to Mr Rogers' statement that at the time of the offending, he was using drugs. That would have been sufficient notice of the issue to be included in the Crown's written submissions.
Nevertheless, the point, which goes to eligibility and so, in a sense, to the Court’s jurisdiction to make a Treatment Order, is an important one and ought to be drawn to the Court's attention.
The claim that the Court should treat Mr Rogers' self-report of the use of drugs substantially contributing to the offences as unreliable, especially when he did not give sworn evidence of that and did not subject himself to cross-examination, is based on the approach explained by the New South Wales Court of Appeal in R v Qutami [2001] NSWCCA 353; 127 A Crim R 369, which articulated the need for the Court to be cautious about self-report statements made to experts which have not been tested in Court.
That decision has been accepted in this jurisdiction, though with some modification, having regard to our particular statutory regimes: R v Ashman [2010] ACTSC 45 at [26]–[27]. That modification also applies to the preparation of Suitability Assessments which are regulated by ss 46J and 46K of the Sentencing Act.
While R v Qutami has been widely followed in New South Wales, as one would expect for a decision of the Court of Appeal, the Court has found no citation of it in any other jurisdiction than the ACT. Nevertheless, some perhaps less clear and specific hesitation about the reliability of self-report has been referred to in other jurisdictions: Attorney-General for the State of Queensland v Meizer [2019] QSC 213; Johnson v The Northern Territory [2016] NTSC 49; State of Western Australia v Fremantle [2008] WASCA 98.
There is, however, a further basis on which self-report may not need to be rejected by the Court. For example, it may be accepted where there is other evidence to support the matter (Johnson v The Northern Territory at [231]), or where it is corroborated (Jeffrey v The Queen [2021] NSWCCA 221 at [32]).
The situation here has been carefully considered. It is noted that the assessment of Mr Rogers as having a likely severe substance abuse disorder is not challenged and this is some corroboration of his likely use at the time. He was also described by the assessors as open and honest, pleasant and well spoken, and no concerns expressed about his reports. He was said to be cooperative and polite in the preparation of the reports.
The reports he gave to the various assessors who prepared the two Eligibility Assessments and the three Suitability Assessments were very substantially consistent, though given over a relatively long period of time. All of these favoured him being suitable for a Treatment Order.
He did, as Mr Cooper pointed out, engage in the start of some rehabilitation for drug use upon engagement with the assessors for the Suitability Assessment.
These are not determinative of the issue by any manner of means, however, they do provide some comfort in accepting the statement.
The Crown further relied on the statement in the ACT Corrective Services Suitability Assessment, which threw some doubt on Mr Rogers' responses. The statement was:
Mr Rogers agreed with most of the Statement of Facts and reported he was heavily influenced by illicit drugs at the time of the offending. He accepted he did not handle the situation appropriately although attempted to justify and minimise his actions.
The Court does not read this as suggesting that his report of the use of drugs was taken as minimising his actions, it was not part of the sentence and there was a different sentence in a different circumstance, which was included in the opinion of the assessor that he had minimised his actions and related to how he handled the situation.
In any event, there is, as was pointed out in R v Blundell [2015] ACTSC 383 at [62], a fine line between offering an accurate and true explanation of events and what may be seen as minimising responsibility, which suggests, however, making a false and unreasonable statement of facts in an attempt to reduce criminality to the smallest degree. It is accepted that sometimes drug use may be used in this way: Stott v The Queen [2012] ACTCA 33 at [86].
As noted, the Court did not accept that the Suitability Assessment was to be read in this way, and in any event, were that to be correct, it would at least be odd that the Suitability Assessment would then find Mr Rogers suitable for a Treatment Order.
Perhaps more significant is that no challenge was made to the statement by Mr Rogers that he had been awake for days prior to the offending because of his drug use. That seems to be consistent with a substantial contribution of the use of drugs, on which he was dependent, to the offending he committed. Further, he was found with drugs on his person when arrested on the day of the offending.
Finally, Mr Cooper submitted that Mr Rogers had been tested for drugs when arrested. That submission was not challenged, though, in fairness, it was not reported in the Police Statement of Facts tendered on the committal. If it did occur, the Crown would have had access to it and been able to determine whether his self-report was reliable or not.
In all the circumstances, the Court is prepared to accept that Mr Rogers was, at the time of the offending, substantially affected by his drug dependence. It is readily accepted that there are many reasons why offences such as these, particularly Family Violence Offences, are committed, quite apart from drug use, but that does not mean that drug use is not relevant in many such cases, and it may not be relevant, as it has been found to be in this case.
The Court is satisfied that Mr Rogers is eligible for a Treatment Order.
The Suitability Assessments, including the Cultural Assessment, all of which are referred to above (at [8]) have been carefully considered. They are always expertly and very professionally prepared and are most useful to the Court in making the important decision and of great assistance in that task.
All of them recommended that Mr Rogers is suitable to be subject for a Treatment Order and, having considered them carefully, the Court is satisfied that this is appropriate.
Mr Cooper submitted that five matters made it clear that Mr Rogers was suitable for a Treatment Order:
(1) He had listened to the Alcohol and Drug Service Assessor and both moderated his approach to her and engaged in online SMART Recovery Program while awaiting sentencing;
(2) He had returned to work after leaving custody following the cancellation of his parole, and continued to work even after he severed his finger;
(3) He knows what it is like to be in gaol: he has finished all of his sentence and has acted quite differently than previously while on bail awaiting sentence;
(4) He has not consumed drugs since being in custody; and
(5) He has worked on the relationship with his father, which he had repaired some time ago, but noted that it is now to the extent that he could live with him again.
These are relevant and important matters and support the finding that he is suitable to be subject to a Treatment Order.
The Alcohol and Drug Services has prepared a comprehensive Care Plan, which is, the Court is satisfied, appropriate and adequate to address the issues that Mr Rogers must face if subject to a Treatment Order.
The Court is not aware of any indicators of unsuitability, as set out in Table 46K of the Sentencing Act, that would render Mr Rogers unsuitable for a Treatment Order.
Accordingly, Mr Rogers is suitable for a Treatment Order and it is appropriate that one be made.
Finally, it is noted that, although the total sentence of imprisonment has commenced before today, so that it has in part been served and must now be suspended, this does not prevent Mr Rogers from being subject to a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 of [91]–[111].
Drug and Alcohol Treatment Order
[His Honour again spoke directly to the offender]
Mr Rogers, please stand again.
The Orders of the Court are that:
(4) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for you from today, 28 September 2021, to 20 January 2023, in respect of the primary offence of making a demand accompanied by a threat to endanger health, of which you have been convicted and for which you have been sentenced for 15 months imprisonment.
(5) That Order be extended to the offences of contravening a Family Violence Order and possessing a prohibited drug, of which you have also been convicted and for which you have been sentenced and which are associated offences of the primary offence.
(6) It be noted that the convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of that Order.
(7) The custodial part of the Drug and Alcohol Treatment Order, for the primary and associated offences, be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 28 September 2021, until 20 January 2023.
(8) For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(a)The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are hereby imposed;
(b)You must undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where you reside, with whom you associate and your attendance from time to time;
(c)You must submit yourself for assessment for admission to the Ready for Change program of the Domestic Violence Crisis Service and, if found suitable, complete that program, unless agreed by the Treatment Order Team or the Court that it is inappropriate to do so, and if found not suitable, complete other programs related to family violence that the Treatment Order Team may direct and for which you are found suitable or which the Court may direct; and
(d)You must comply with any directions of the Court from time to time about attendance in Court by person or by electronic means.
(9) You are directed to appear in Court on this Friday, 1 October 2021.
(10) You are directed to attend the Court Registry before leaving the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order.
Mr Rogers, that is a lot of words, a lot of information about you and about the offences that you have committed. You have been around the courts, so you probably know and understand most of what I have said, but it is important that I explain that to you now. I have sentenced you to 17 months and three weeks imprisonment, because that is what I assess as the seriousness of these offences. They were serious offences. You had no right to do what you did. You have got to move on from a relationship of control over your ex-partner. Hopefully you will be able to do so, but it will be long and hard to repair that relationship, so that you can have access to your son in a proper way. I have made a provision about that, for some family violence training for you that will assist you with that.
Although some concern was expressed by the Crown about whether your drug taking substantially contributed to your family violence offending, I am satisfied that it did and I am satisfied you have been honest with the assessors about it. That is really important, because honesty is critical if you are going to achieve your ambition to rehabilitate and live a drug and crime free lifestyle. You are still young enough. You are not a young man. Probably, I think, your brain has not quite finally got it all together at only 28, but you are now an adult. You are now more mature and it is time you took responsibility for yourself. If you want to be in and out of prison, you know what it is like, keep using drugs, keep committing crime, because the courts will put you back in gaol.
If, however, you are genuine — and I have accepted that you are honest — in wanting to rehabilitate, then a Treatment Order is a great thing for you. There are huge resources provided by the Territory for this to help you do that, and if you can do it successfully, you will find that you will have a great life. It will be much better than being in and out of gaol, hiding from the police, doing stupid things that really do not bring you any joy at the end of the day.
You will have to come back and see me plenty of times in the first few months. Most people do not seem to find that too challenging, but if you do not behave, then it will be challenging, because that is what I am there for, supervision of what you are doing, to congratulate you when you do well, punish you when you do not, including going back to gaol for a period of time, if that is necessary. If, for instance, you start using again or you fail to comply with directions that you are given and so on.
I hope that none of that will be necessary. I hope the light has now gone on and you understand, after the period of custody, having breached your parole, that really that is no way to continue. But it will be hard work. It is not easy. You have been now using drugs for a long time, for over a decade, and that addiction, that dependence on drugs, is hard. There will be times when it will be difficult to move forward, but if you can do that, if you can overcome those obstacles, it will make you stronger. It will make you better able to prevent relapse, better able to actually achieve the objectives of abstinence and a good life.
I hope that this will all be successful for you. The Drug and Alcohol Sentencing List, where you will come back here every Friday for a while, will be attempting to keep you working on this. Your Case Managers, who you will see frequently, at least weekly, perhaps more, for a bit, will want you to succeed and be directing you to do things that will help you to succeed, whether you quite agree with them or not. They are experienced, highly professional people that will assist you with this.
Mr Cooper will, no doubt, explain everything to you, but that is, in general, what it is about. Unfortunately, although he is a very competent and expert lawyer, Mr Cooper will not be your lawyer in the future. Legal Aid will provide you a lawyer, that is the way in which we do things, and you will meet with your Legal Aid lawyer in due course and you can use him or her, probably her, to assist you in negotiating any legal matters that happen.
I look forward to seeing you bright and cheery on Friday. Hopefully you will have been able to have some conversation with your Case Managers in the meantime and will be able to have explained in greater detail what is ahead of you and what you must do and be ready to do that. So I wish you good luck.
I hope you do not need good luck. Just work hard at it and hopefully this will be successful for you. If not, then at the end of the day, I have given you 17 months and three weeks, some of which you have already served. You will then have to serve most of the rest, depending on the circumstances. I cannot guarantee when that will happen or how that will happen. Hopefully it will never happen.
| I certify that the preceding one hundred and sixty-eight [168] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge. Associate: Date: 10 November 2022 |
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Amendments
30 January 2023 replace “19 months and three weeks” Paragraphs: [121], [160], [168]
with “17 months and three weeks”
6
36
7