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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rogers (No 2)

Details

AGLC: R v Rogers (No 2) [2023] ACTSC 5
Case: [2023] ACTSC 5
Decision Date: 20 January 2023

CaseChat Overview and Summary

The matter before the court involved Jake David Rogers, who was subject to a Drug and Alcohol Treatment Order (DATO). The dispute centred around Rogers' non-compliance with certain aspects of the DATO, specifically his failure to attend a urinalysis on 9 January 2023 and a subsequent positive urinalysis on 16 January 2023. The court was tasked with determining the appropriate sanctions for Rogers' non-compliance and whether he should be returned to custody.

The primary legal issue was the appropriate response to Rogers' breaches of his DATO. Specifically, the court had to consider the sanctions to be imposed for his failure to attend a urinalysis and his positive urinalysis result. The court also needed to decide whether, despite the accumulation of points for these breaches, Rogers should be returned to custody or if there were alternative measures that could be taken to address his non-compliance.

In addressing these issues, the court noted that Rogers had previously shown better conduct while subject to the DATO. The court acknowledged that Rogers had not graduated from the program, but it also recognised his efforts to avoid a return to drug use and criminal activity. The court imposed a sanction of returning Rogers to Phase 1 of the DATO program for his failure to attend urinalysis, and it sanctioned him six points for the positive urinalysis. Despite the accumulation of eight points, the court decided not to return Rogers to custody, expressing hope that he would continue to improve his behaviour and avoid further breaches of the DATO.

The court's final orders were that Rogers be returned to Phase 1 of the DATO program for his failure to attend urinalysis, sanctioned six points for the positive urinalysis, and not returned to custody. The court also expressed hope that Rogers would continue to improve his behaviour and avoid a return to drug use and criminal activity.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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