R v Rogers (No 2) - [2023] ACTSC 5

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Rogers (No 2)
Citation:	[2023] ACTSC 5
Hearing Date:	20 January 2023
Decision Date:	20 January 2023
Before:	Refshauge AJ
Decision:	1. That Jake David Rogers be sanctioned by a return to Phase 1 of the Drug and Alcohol Treatment Order program from today for his failure to attend urinalysis on 9 January 2023. 2. That Jake David Rogers be sanctioned six points for returning a positive urinalysis on 16 January 2023; admitting that he had been in a position where he had inhaled methamphetamine smoke. 3. Notwithstanding the accumulation of eight points, that Jake David Rogers not be returned to custody. 4. That the Court’s hope be expressed that Jake David Rogers will continue to behave in accordance with the better conduct he has shown while subject to a Drug and Alcohol Treatment Order and succeed in avoiding a return to drug use and criminal activity.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Drug and Alcohol Treatment Order – Custodial Part of Order – Treatment and Supervision Part of Order – End of Order – Completion without Graduation
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12, 12A, 80W, 80Y, 80ZA, 80ZE, 80ZH, 80ZO
Cases Cited:	Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Limited (1991) 27 FCR 149 R v Bonfield (No 2) R v McColl (No 2); R v Williams (No 3) [2022] ACTSC 377 R v Crawford (No 1) [2020] ACTSC 245 R v Crawford (No 3) [2020] ACTSC 369 R v McCallum [2020] ACTSC 15 R v Tonna (No 2) [2020] ACTSC 362 R v Rogers [2021] ACTSC 355 Tobacco Institute of Australia v National Health and Medical Research Council 71 FCR 265
Texts Cited:	Professor Meredith Rossner and Professor Lorana Bartels et al, ACT Drug and Alcohol Sentencing List: Process and Outcome Evaluation Final Report (Centre for Social Research and Methods, Australian National University, Canberra; June 2022) Professor Meredith Rossner, Professor Lorana Bartels et al, ACT Drug and Alcohol Sentencing List: Outcome Evaluation (Centre for Social Research and Methods, Australian National University, Canberra; April 2022)
Parties:	ACT Director of Public Prosecutions ( DPP) Jake David Rogers ( Offender)
Representation:	Counsel K Stitt ( DPP) C Duffy ( Offender)
Solicitors ACT Director of Public Prosecutions (DPP) ACT Legal Aid ( Offender)
File Numbers:	SCC 172 of 2021 SCC 173 of 2021

REFSHAUGE AJ

Jake David Rogers, a relatively young Aboriginal man, appeared in the Drug and Alcohol Sentencing List (List) of this Court for sentence on his pleas of guilty to three offences involving family violence and drug possession.
The seriousness of the offending was such that a sentence of imprisonment was highly likely to be imposed and he had, therefore, sought that any such sentence be served under a Drug and Alcohol Treatment Order (Treatment Order) made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
He submitted that he met the criteria for such a sentencing disposition because of his long history of drug use and his use of drugs in connection with the commission of the current offences.
He first used alcohol as a four-year-old, though, by the time he was offending, he had ceased drinking it. He was then using illicit drugs, having first used them at the age of 14 years. For the purpose of sentencing, he had been assessed as likely to have a severe substance use disorder. He was also found to have used methylamphetamine when committing the three offences and, the Court determined on sentencing, to have, by the time of the current offending, a dependence on illicit drugs, which contributed to his offending: R v Rogers [2021] ACTSC 355 at [125]–[148].
On 28 September 2021, he was sentenced to a total period of 17 months and 21 days imprisonment, the most severe sentence of the three then imposed being one of 15 months imprisonment: R v Rogers at [118].
As a result, and as he met the other eligibility criteria for the making of a Treatment Order and was found to be suitable for the making of such an Order, a Treatment Order was made and he was ordered to serve the whole of the balance of the sentence of imprisonment by that Treatment Order: R v Rogers at [122]–[124], [151]–[156], [159].
The sentence had commenced prior to the date of sentence as he had served 59 days of pre-sentence custody. This was no bar for the making of a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111]. This left a period of 15 months and 24 days, as the balance of the term of imprisonment, then to serve. The Treatment Order was made for the whole of that period.
A Treatment Order has two parts: a Custodial part and a Treatment and Supervision part. The Custodial part is essentially the term of imprisonment. Under s 80W(1)(b) of the Sentencing Act, the sentence of imprisonment must be fully suspended and, if the Treatment and Supervision part has ended before the end of the term of imprisonment, a Good Behaviour Order must be made for the balance of the term of imprisonment then suspended (s 80ZA of the Sentencing Act). That Good Behaviour Order is also included in the Custodial part of the Treatment Order.
The Treatment and Supervision part of the Treatment Order sets out the core conditions of the Treatment Order as provided for in s 80Y of the Sentencing Act, and the conditions that represent the treatment program for the rehabilitation of the offender. It also sets out the conditions of supervision for the offender by Case Managers for the Alcohol and Drug Services and ACT Corrections as well as by the Court and provides for other directions to the participant that can be made during the period of the Treatment Order.
While there is no statutory minimum for the term of the Treatment Order, neither the Treatment and Supervision part nor any subsequently made Good Behaviour Order can extend beyond the term of imprisonment in the Custodial part of the Treatment Order. In this respect, the Good Behaviour Order as part of a Treatment Order, is different from a Good Behaviour Order made when any other sentence of imprisonment is suspended, even where, for example, it includes a rehabilitation condition, for it may then be for a period longer than the term of imprisonment: s 12(3) of the Sentencing Act. Thus any Court required rehabilitation, including supervision, whether under a Treatment Order or an ensuing Good Behaviour Order, must be completed during the period of imprisonment imposed, though suspended.
The Sentencing Act does not prescribe the maximum or minimum term for a Treatment Order, though, because of the maximum periods of imprisonment for which an offender has to be sentenced in order to be eligible for a Treatment Order it cannot be longer than four years. Despite any statutory remit, it has been said that it should be for a minimum term of 12 months unless the supervising judge or judges determine otherwise: R v McCallum [2020] ACTSC 15 at [86].
In fact, initially in the List, all Treatment Orders were made for 12 months, but, more recently, they have been made for up to two years as a result of experience, to ensure that the rehabilitation required can be achieved effectively.
The period of 12 months appears to be based on the general approach of the rehabilitation program under the Treatment Order that has been taken by the Court in establishing the List, based on best practice for Drug Courts. The structure of the program is divided into three phases. The first phase, stabilisation, is designed to commence and establish the appropriate treatment regime, reduce and preferably cease drug use, stabilise physical health and the participant’s domestic and social environment and cease criminal activity. The minimum period for this phase is three months.
The second phase is consolidation, when the treatment program is continued, but supervision is somewhat reduced. The participant is expected to be free of drug use, limited in alcohol use (see R v Bonfield (No 2) R v McColl (No 2); R v Williams (No 3) [2022] ACTSC 377 at [5]–[7]), free of criminal activity and to develop life and employment skills as well as to maintain a stable living environment. The minimum time for this phase is four months.
Finally, the third phase is one of integration, when the participant remains free of drugs, including limited use of alcohol (R v Bonfield (No 2) R v McColl (No 2); R v Williams (No 3) at [8]), and criminal activity, continues with the treatment program, but with supervision further reduced, and a greater emphasis on being ready for and gaining employment and being financially responsible as well as maintaining a stable living environment. It is intended to make as smooth as possible the transition back into the community without the supports and discipline provided by the Treatment Order. This phase is for a minimum period of five months.
Thus, the minimum period for completion of a Treatment Order is 12 months. If a participant completes all three phases satisfactorily, he or she will then graduate at a ceremony presided over by the supervising judge and appropriate congratulations are extended for the effort made and success achieved and is met with appropriate applause.
A number of participants are unable to complete each phase within the minimum time. Thus, they may breach a condition of their Treatment Order, such as by the use of drugs, shown by returning a positive result on urinalysis, or other breaches of the Behaviour Protocol established for the List. Sanctions are then imposed, for which, see R v Crawford (No 3) [2020] ACTSC 369 at [28]. Nevertheless, the sanctions may be removed for excellent participation. A participant cannot graduate to the next phase or graduate from the program until they have had any such sanctions removed and also achieved compliance with the program in the current phase.
Sometimes, the period of the Treatment Order ends before a participant has been able to complete each phase and so cannot formally graduate from the program. The length of a Treatment Order can be extended under s 80ZH(6) of the Sentencing Act to permit such a participant to complete the program and, if successful, to graduate. Such an extension cannot, of course, extend beyond the length of the sentence being the term of imprisonment.
This is the position for Mr Rogers. He had some difficulty with adjusting to the requirements of the program under the Treatment Order made for him and accrued some sanctions from time to time, including accruing so many points that he had to serve some periods in custody of up to a maximum of 14 days (R v Tonna (no 2) [2020] ACTSC 362 at [67]), when the suspension of the custodial part of the Treatment Order was provisionally cancelled under s 80ZE(2) of the Sentencing Act and reinstated at the end of the period of imprisonment.
In all, Mr Rogers had a somewhat complicated passage through the Treatment Order made for him. On 17 November 2021, his Case Manager from the Alcohol and Drug Services met him in person for the first time since the making of the Order. He also had significant health problems, including contracting the COVID-19 virus, and these issues continued intermittently throughout the period of the Treatment Order. He did use drugs from time to time during the early period of the Order and somewhat beyond. From 5 August 2022, until 16 January 2023, however, he has not been shown to have used drugs, though he did during that time sometimes fail to attend for urinalysis.
In addition, his partner gave birth to their son in late February 2022. That did provide a real motivation for Mr Rogers to continue his rehabilitation and is likely to be a good motivator for him to remain drug and crime free in the future. It did, however, challenge him to balance his commitments as a father and as a participant in the Treatment Order program for him, though the Court was able to show flexibility with facilitating his support for his partner at the birth and with subsequent parenting responsibilities. In addition, advice and suggestions for assistance were available for some of the issues that he faced as a parent.
Nevertheless, he continued to perform very well from time to time, even to the extent of such an impressive period of participation that he was congratulated with applause. Regrettably, he was not always able to maintain that success and thereafter accrued points, including a further period in custody. He had a habit of behaving well, sometimes very well, but then relapsing into unsatisfactory behaviour.
He did graduate from Phase 1 to Phase 2 on 14 October 2022. Until recently, he continued to perform generally well, though he did commit various breaches from time to time after that and accrued further points, but he was generally able to perform satisfactorily and have the points gradually reduced as a result. He was not further sanctioned with any period in custody.
It is important to note and recognise that, though he did miss urinalysis on a number of occasions, often through illness, when he did attend urinalysis, onwards from 5 August 2022, he did not return any positive results from the urinalyses until 16 January 2023, a not insignificant period. It is also important to note that he has not been shown to have committed any offences while subject to the Treatment Order.
Regrettably, the old pattern of performing well under the Treatment Order but not being able to maintain that has returned. On 9 January 2023, he failed to attend for urinalysis without any acceptable excuse. Then, when he did attend for urinalysis on 16 January 2023, he returned a positive result, showing illicit drugs, namely methamphetamine, in his urine, which he admitted that he probably did ingest.
Ordinarily, without an admission by the participant, the Court requires, before making a finding of a breach of the Behaviour Protocol, that the positive urinalysis be subject to confirmation by formal pathological re-testing in a pathology laboratory, as there have been a few, fortunately fairly infrequent, cases of a urinalysis result being found to be a false positive on more rigorous analysis. Mr Rogers has admitted to what might be said to be possible passive ingestion. He explained that he had attended the house of an old associate to purchase wheels for his car. He said that a group of people were at the premises smoking methamphetamine and he had “walked into a cloud of smoke”. He attributed the positive result to what might be called “passive smoking”, that is ingestion of the smoke from others smoking while the affected person is not themselves smoking: Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Limited (1991) 27 FCR 149 at 162–3.
There has been controversy about whether passive smoking can have an effect on those who ingest the smoke inadvertently. See, for example, Tobacco Institute of Australia v National Health and Medical Research Council 71 FCR 265. This is, perhaps, not directly relevant here, where the question is not whether there are health effects caused in this way, but rather whether the ingestion will cause the ingested drug to show up in a person’s oral fluid or urine.
In Beattie v Potts [2015] ACTSC 350; 74 MVR 26, the Court held (at 35; [45]), in the context of the appellant being charged with driving with a prescribed drug in her blood, that this was possible, though (at 36; [48]), expert evidence could be relevant, but, it appears, not necessary for such proof.
Nevertheless, the breach of the Treatment Order by returning a positive result on urinalysis is not limited to actual use. There is, apart from the obvious evidential benefit of this, a rehabilitative benefit. Association with former friends, especially drug users, is a clear trigger for reversion to the use of drugs. While difficult, participants are encouraged, while subject to a Treatment Order, to avoid old associates, even to the extent of blocking them on their phones, and to make new friends, often from work colleagues, and avoid drug users, even amongst people such as work colleagues. This can be hard.
Further, participants need to take care for what they consume and where they go. While passive smoking (or other ingestion) is clearly less serious than direct consumption of drugs, it is as much a trigger for and risk of returning to drug use.
Thus, this is not only a recurrence of his pattern of successful completion for a while followed by non-compliance. It is also a rare, but not unknown, problem for those approaching the end of their Treatment Order as they sometimes stretch the boundaries when they “can see the finishing line”. It is more likely met in those who graduate from one phase to another and begin the subsequent phase with some breach, such as the use of drugs or alcohol to celebrate the graduation.
As a result of these breaches, Mr Rogers has rendered himself liable to further sanctions. The usual sanction in the List’s Behavioural Contract Protocol for failing to attend for urinalysis is, for the second occurrence in Phase 2, six points. While he did telephone his Case Manager and advise that he had difficulty in getting to urinalysis, no real justification for the inability was explained and he had already had two prior occasions where he had done so. There is no reason for not imposing the full six points but, though that would result in a total of eight points, no custodial penalty will be imposed in the circumstances and, were his Treatment Order to have continued, he could have recovered them by good behaviour.
As to the penalty for a positive urinalysis with an admission in Phase 2, the sanction for the first occasion is return to Phase 1. This is the sanction to be imposed.
Because he could not graduate to and complete Phase 3 in the period remaining of his Treatment Order, he will not graduate with an acknowledgement that he has successfully completed each phase of the program. In any event, he has only successfully completed Phase 1 and that was in two weeks less than 13 months. He cannot formally graduate from the program. The sentence of imprisonment, though suspended and a Treatment Order made, ends today, 20 January 2023, and so the Treatment Order cannot be extended to permit him to complete the program and graduate. Graduation is important, for the evidence shows that graduation is a highly significant marker that the objectives of the Treatment Order, as set out in s 80O of the Sentencing Act, have been achieved.
Today, Mr Rogers will cease to be subject to the Treatment Order made on 28 September 2021. As the term of imprisonment also ends today, there is no Good Behaviour Order, which usually includes a probation condition to assist in the re-integration of a participant into the community with some ongoing support. He will, however, have access to his Case Managers for three months if he needs advice on how to maintain his abstinence and re-integrate into the community successfully while remaining drug and crime free. He says that he intends to continue counselling and other programs started during the Treatment Order. He is to be congratulated and supported in this.
Though the graduation of a participant in a Treatment Order is an important mark of their achievement in completing the program and, as noted, a good marker of their achievement of the objectives of the program, it should not be assumed that those who complete at least a substantial part of the program will not achieve at least some, if not all, of those objectives.
Thus, although Mr Rogers has encountered some challenges in his wish to achieve rehabilitation, including abstinence, as noted above (at [20]–[23]), he has more recently made a sustained effort to comply with his obligations to a successful degree, despite his failures at attending urinalysis which, of course, causes suspicion about the intentional use of drugs, but without direct evidence.

Further, he has obtained employment and has been promoted into a supervisory role. His performance has been, other than for the breaches, much better. Thus, there are some suggestions that he may have learnt much and made some progress in his rehabilitation.
He has clearly not been completely successful in the program and there are some signs of success in him achieving a significant level of rehabilitation, but with significant interventions. The fact is, however, he has not graduated and will end the Treatment Order on that basis.
A Review of the List itself was conducted by Professors Meredith Rossner and Lorana Bartels and their colleagues and reported in draft in April 2022. It found that, generally, the program was performing satisfactorily, that the process followed was appropriate and that the success of participants was commendable. See Professor Meredith Rossner, Professor Lorana Bartels et al, ACT Drug and Alcohol Sentencing List: Outcome Evaluation (Centre for Social Research and Methods, Australian National University, Canberra; April 2022).
The Review did have some reservations about some aspects of the program and made some recommendations for improvements. These are largely being addressed and many have been implemented.
It also found (at p 119) that of those participants who completed the program of their Treatment Order, that is those whose Order was not cancelled, but who did not graduate, the number of criminal charges laid against them during the program and since completion had reduced by 64% from before the making of a Treatment Order. That is compared to those who graduated where the percentage was 100%.
It has to be accepted that both the numbers, particularly of those who completed without graduation, was small and that the period, especially post-completion, was less than the two years usually considered as a minimum for assessment of recidivism. Nevertheless, it did show that the program was worthwhile and that even those who did not graduate from the program were affected in positive ways. The program has had a beneficial outcome for the community.
Appropriately, the table from which the statistics were drawn does not appear in the Final Report, where, in relation to recidivism, the authors noted
However, given the short amount of time that the DASL [the List] has been operational and the small number of participants to date, our findings on this should only be regarded as provisional.
Professor Meredith Rossner and Professor Lorana Bartels et al, ACT Drug and Alcohol Sentencing List: Process and Outcome Evaluation Final Report (Centre for Social Research and Methods, Australian National University, Canberra; June 2022) at p 98.
In the case of Mr Rogers, any prospects of his success must be approached with great caution, it is to be hoped that Mr Rogers will be able to continue with the better conduct under the Treatment Order and be able to find the strength to avoid a return to drug use. He certainly has an ongoing plan and, if he adheres to it, it will support his success. The Court strongly encourages this and it is hoped that he will succeed.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge

Associate:

Date: 20 January 2023