R v Snow
[2021] ACTSC 342
•21 June 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Snow |
Citation: | [2021] ACTSC 342 |
Hearing Date: | 11 June 2021 |
DecisionDate: | 21 June 2021 |
Before: | Refshauge AJ |
Decision: | 1. Daniel Ian Snow be convicted of burglary and be sentenced to 17 months imprisonment, commencing from 19 March 2021 and expiring on 18 August 2022. 2. Daniel Ian Snow be convicted of damaging property and be sentenced to 3 months imprisonment, commencing from 19 July 2022 and expiring on 18 October 2022. 3. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Daniel Ian Snow for 15 months and 28 days, commencing from 21 June 2021 and expiring on 18 October 2022, in respect of the primary offence of burglary. 4. That Order be extended to the offence of damaging property, the associated offence of the primary offence. 5. The recorded convictions and sentences for the primary offence and the associated offence be hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order. 6. The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offence be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 21 June 2021 until 18 October 2022. 7. 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. Daniel Ian Snow travel directly from this Court today to Canberra Recovery Services, Fyshwick, and admit himself to the residential drug rehabilitation program at that facility by 1:00 pm 21 June 2021; c. Daniel Ian Snow be directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until he has completed the program and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility; d. Should Daniel Ian Snow leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed; e. Daniel Ian Snow 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; and f. Daniel Ian Snow comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 8. Daniel Ian Snow be directed to appear by electronic means in Court on 2 July 2021 at 12:30 pm. 9. Daniel Ian Snow 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 and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Damaging Property – Rehabilitation – Interstate Warrants – Possible Extradition – Drug and Alcohol Treatment Order |
Legislation Cited: | Crimes Act 1900 (ACT) s 116 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12, 12A, 33, 34, 35, 46J, 63, 80M, 80Y, 80W, 80X, 80ZA Service and Execution Process Act 1901 (Cth) |
Cases Cited: | Abbott v The Commissioner of Police [2016] QSC 95; Qd R 592 Berichon v Chief Commissioner of the Victorian Police [2007] VSC 143; 16 VR 233 Mill v The Queen (1988) 166 CLR 59 R v Bessant [2020] ACTSC 365 R v Coleman [2021] ACTSC 349 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Lockwood [2018] ACTSC 288 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The Queen (Crown) Daniel Ian Snow (Offender) |
Representation: | Counsel C Muthurajah (11 June 2021); K Sharafeldin (21 June 2021) (Crown) T Cobden (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 98 of 2021 SCC 99 of 2021 |
REFSHAUGE AJ
Introduction
Federation brought to Australia the federal system with effectively eight (and, in some circumstances, nine) jurisdictions. Federalism has brought much benefit to Australia, but also leaves some difficulties from time to time. In particular, while a court can deal together with offences committed at different times by the same offender so as to minimise the difficulty that serial offending can cause in sentencing, it cannot do that if offences are committed in what are, for the criminal law, exclusively separate jurisdictions.
The High Court has indicated that the problem that this causes can be ameliorated, to some extent, through the principal of totality: see Mill v The Queen (1988) 166 CLR 59. This means that the crimes in different states or territories still have to be dealt with consecutively, but that totality may reduce any unfairness that separate sentencing might cause.
It cannot, however, resolve the difficulties in drug courts and, similarly, the Drug and Alcohol Sentencing List and like alternative sentencing options, where non-traditional sentences are being considered and where more traditional sentences may be likely imposed for subsequent offences in other jurisdictions.
This is the situation for Daniel Ian Snow, who has pleaded guilty to offences of burglary and damaging property in this jurisdiction. For these offences, he has sought that a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) be made, whilst he has other charges for other offences in New South Wales, for which his extradition has been sought.
There is a question, then, as to whether a Treatment Order should be made when its benefits may be undone were he to be subsequently incarcerated for those other offences.
In the first place, however, it is necessary to sentence Mr Snow in this jurisdiction for the offences to which he has pleaded guilty.
For the sentencing hearing, the Crown has tendered its Crown Sentencing Tender Bundle. Included in the Bundle were the committal and transfer documents, an Agreed Statement of Facts and Mr Snow's Criminal History.
Also included were the Drug and Alcohol Treatment Assessment of ACT Corrective Services dated 1 June 2021 and the Drug and Alcohol Sentencing List Suitability Assessment Report dated 3 June 2021 of Alcohol and Drug Services with a Case Plan for rehabilitation for Mr Snow. These were the Drug and Alcohol Treatment Suitability Assessments (Suitability Assessments) under s 46J of the Sentencing Act.
On Mr Snow's behalf were tendered a letter from Ms Melanie Cassar dated 7 June 2021, concerning the courses Mr Snow has undertaken and completed in the Alexander Maconochie Centre, and a letter from his mother, Ms Caroline Snow, dated 7 June 2021.
No objection was raised to any of the documents tendered and they were admitted. No challenge was made to the contents of any of them. The Court also heard from Mr Snow, who gave oral evidence himself.
The Court had helpful and comprehensive written submissions from counsel for the Crown, Ms C Muthurajah, and Ms T Cobden for Mr Snow. They also assisted with their oral submissions and their helpful engagement in discussion with the Court.
From this material, the following findings are made.
The facts
On 23 February 2021, Mr Snow entered a residential property in Watson at about 12:20 pm. He cut and removed a flyscreen from a side window towards the back, opened it and then opened the back door. This constituted the offence of damaging property.
He was seen by a passer-by, who knew that Mr Snow was not a resident of the premises and that the elderly female resident had left the house for an appointment earlier that day. He called police and told them he could hear smashing sounds coming from within the house.
When police arrived and saw the cut flyscreen and the open back door, they decided that a burglary was in progress and entered the premises. They entered the master bedroom and opened a sliding door wardrobe, finding Mr Snow inside, sitting on top of a plastic bag containing a red item and other items. They arrested Mr Snow.
These are the events that constituted the offence of burglary.
The resident and her daughter arrived shortly after and confirmed that no person other than the resident and her daughter had permission to enter the house. The resident's daughter said that the plastic bag and its contents, being a red baseball cap, a hammer, a chisel and a bicycle pump were not owned by her or her mother. They also advised that it appears that the electricity had been turned off, apparently by Mr Snow.
Mr Snow told police under caution, “I just went to the shed to get some lawnmower fuel. I saw the place was empty and broke in”.
The proceedings
As noted (at [15]), Mr Snow was arrested shortly after noon on 23 February 2021. He was released on police bail to appear in the ACT Magistrates Court on 19 March 2021. He was already on bail at the time at the time of the offending.
When he appeared in the Magistrates Court, he was charged with burglary, damaging property and breaching his earlier bail. He was remanded in custody where he remained.
On the second appearance in Court, he indicated that he proposed to plead guilty and that plea was entered on the next appearance six days later, when he was committed for sentence to this Court with a request that he be assessed for eligibility for Suitability Assessments, with a view to consideration for a Treatment Order to be made.
In this Court, he maintained his pleas of guilty and Suitability Assessments were ordered to be prepared on 23 April 2021 and the proceedings listed for sentence.
He has been in custody since 19 March 2021, namely 94 days until the date of sentence.
The offences
The sentence to be imposed is an instinctive synthesis by the sentencer of “many conflicting and contradictory elements which bear upon sentencing an offender”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611; [75]. Those elements are, in this jurisdiction, helpfully set out in s 33(1) of the Sentencing Act. The facts are, of course, important to understand the circumstances of the offences actually committed: s 33(1)(a) of the Sentencing Act.
In addition, consideration must be given to the maximum penalty for each crime, which assists to assess the nature of each (s 33(1)(a)), and the way in which the crimes have been viewed and the elements of aggravation or mitigation identified in current sentencing factors: s 33(1)(za). These are all important elements of the sentencing exercise.
Burglary is an offence contrary to s 311 of the Criminal Code 2002 (ACT) of the ACT which provides for a maximum penalty of 14 years imprisonment, a fine of $224,000, or both. It is, thus, a serious offence. This is in part because of the nature of it. It is an invasion of a space that occupants can expect to be safe for them and where they and their possessions are to be protected. It is an offence of dishonesty, but also results in the occupants feeling violated and invaded.
It has, too, other consequences in the effect on insurance, where the occupant is indemnified, inconvenience in making claims, but also the effect on premiums for the occupant and more widely: R v Hawkins [2015] ACTSC 333 at [48]–[50].
The courts have, on many occasions, considered the factors that can aggravate an individual's offence as actually committed: see, for example, R v Hancock [2021] ACTSC 52 at [33] and R v Elphick [2021] ACTSC 9 at [113].
Thus, the fact that the proceedings were residential premises made the offence a more serious one. Whether the occupants were likely to be there at the time and, indeed, if they were there, is an aggravating factor. This cannot be determined merely by the time of day in respect of residential properties anymore. While burglaries of residential properties at night risk the occupants much more likely being there, currently, the greater frequency of employees now working from home means that burglaries during the day will by no means mean that the occupants are unlikely to be home. Further, retirees, especially as, in this case, a frail elderly occupant, and carers for young children will also likely be home.
In this case, it was pure luck that the occupant was not at home, but the seriousness of the offence had she been, especially as she was frail and likely to be fearful of the entry of a stranger, would have been a significant aggravating feature, not in this case actually present. Though she was vulnerable, Mr Snow could not be expected without more to have known that as he did not actually confront her.
There does not seem to have been any particular planning in this case, at least no evidence suggested it. While there was damage on entry, this has been separately charged, so there must be care taken to avoid double punishment.
There was no evidence of any vandalism caused by Mr Snow in the house. There was said to be some “smashing sounds coming from within the house” heard by the passer-by. In the absence of actual evidence, no finding can be made on that.
The motivation for the burglary was not entirely clear, but Mr Snow did tell the author of a Suitability Assessment that he had been under the influence of an illicit drug while committing the offence.
Damaging property is an offence prohibited by s 116(3) of the Crimes Act 1900 (ACT) and attracts a maximum penalty of 2 years imprisonment, a fine of $8,000 or both.
The costs caused by the damage, whether of losses or required repairs is a very significant factor in determining the seriousness of this offence. In this case, there was, regrettably, no evidence of that.
The circumstances of the commission are also relevant: see R v Ware [2010] ACTSC 264 at [60].
In this case, there seemed no wanton damage and the only damage was directed at access to the premises. It was the cutting of the flyscreen, and so significant, but not very substantial damage, rendering it a less serious offence.
Subjective circumstances
Mr Snow is a 28 year old single man with no children. He was the youngest of his parent’s three children. He grew up in Griffith, New South Wales, with a supportive and positive upbringing and continues to have a good relationship with his parents and siblings. He was described by his mother as “a happy go lucky” child. He maintains contact with his parents and siblings.
He completed Year 10 school. He was adequate academically and, though he had some behavioural issues at school, had a mainly positive time and relationship with teachers and peers. He played a lot of sport, especially basketball and touch football where he represented Griffith in both sports. He also gained referee accreditation in both sports and would referee in junior and senior competitions. He played for a Griffith team in rugby league.
After school, he was employed mainly in the winery and farming industries. He gained a Certificate III in Food and Wine, a forklift licence and a white card. He has also completed courses recently during his period on remand. This includes general work related courses and personal development courses. He is described as showing an engaging attitude in the classes.
He has not worked full time since 2017, but worked in an ‘on and off’ basis since then, especially in the wine industry. He would like to be able to work for his father. He has difficulty in managing money.
He has had no mental health issues. He has stomach ulcers which require regular medication, but has no other physical health issues.
While he did use alcohol and drugs in a limited way at an early age, his drug use really began at age 17 when his best friend died. That was obviously a traumatic situation and perhaps caused the spiral to his drug use and crime. He had used cannabis when he was 15, but after his friend died, he began using daily. He did stop in 2016 when he was incarcerated and has not resumed use.
His alcohol use began casually at age 14 or 15. He increased his use around age 17 and then commenced more regularly, but still only two standard drinks a fortnight in about late 2020 to help him try and ease his drug use as he is becoming “sick of taking drugs”. More recently, he was, however, consuming alcohol daily in the six weeks prior to his arrest.
He has used “party drugs” like MDMA, ecstasy, and cocaine but usually only on weekends.
He began smoking methylamphetamine after his friend died; initially on a weekly or fortnightly basis, but by age 18, he was using daily, smoking one to two grams. He has not however, used any methylamphetamine since his arrest.
He began using Gamma-Hydroxybutyrate (GHB) about six months ago. He used it heavily, taking up to 20 mls per day, quite a high dose.
He was using GHB and methylamphetamine at the time of committing these offences.
He had a gambling dependency before coming to Canberra, but has not played poker machines since then, even when visiting clubs in this Territory.
Mr Snow came to Canberra for work and to get away from “bad influences”. It was not clear exactly when he came. He initially travelled back and forward between Griffith and Canberra, but now has settled in Canberra to start a new life.
He had hoped that it would be free of drugs and alcohol, but he has been unable to undertake that without support. He has had no alcohol, tobacco, or other drug treatment.
He has no regular accommodation in the ACT, but a place has been offered to him by a female friend. She says she is not involved in criminal activity or drug use. ACT Police, however, have assessed the residence as unsuitable, though they have not given any details or explanation, making it hard to evaluate the basis for the assessment and the strength or reason for the unsuitability, so it cannot be entirely dismissed.
Mr Snow has a significant criminal history with 45 offences on his record. His criminal behaviour, however, only commenced in September 2010 with traffic offences. It coincided with the time he was grieving for his best friend.
One half of the offences on his record are dishonesty offences, mainly theft and dishonestly taking financial advantage by deception, but also including an aggravated breaking, entering, and stealing offence and two breaking and entering, stealing offences. He has five traffic offences, including some drug driving offences and, including the latter, seven drug offences.
He has had a number of community-based orders, but his responses have generally been poor. He was granted parole on a 12 month sentence for receiving, but breached it by leaving his designated residence without permission and not following up on an initial mandated Drug Treatment Regime.
He also has warrants for his arrest. The first is for the breach of parole, but also for charges of theft and breaking, entering and stealing in New South Wales; and possession of drugs in Victoria. The theft is said to be very serious, namely of property worth $116,000.
He has expressed remorse for his offending. He cannot remember much about it. He wishes to get his life in order and live a fulfilling life. He has the support of his parents, who describe him as kind and caring and he is much loved by his parents, siblings, and grandparents. He has not used drugs while incarcerated. His mother said that he says that he wishes to get his life “back on track” and “become a valued member of society again”.
Sentencing practice
The above discussion at [24]–[37] is part of the consideration that the courts have given to the relevant factors that need to be considered for assessment of the just and adequate sentence to be imposed. Another part of current sentencing practice required to be considered by a sentencing court, under s 33(1)(za) of the Sentencing Act, is the way in which sentences are imposed, which includes length and the principles for their imposition.
This can come in two ways. The first is through statistics. This is permissible, but has some quite significant limitations. These limitations have been discussed in R v Mathews [2020] ACTSC 364 at [45] and the Court accepts what was there said. For completeness, it is noted what Murrell CJ relevantly said in R v Elphick at [154]:
The limitations of sentencing statistics are well-known. However, for what they are worth, sentencing statistics show that, in relation to sentences imposed by the Supreme Court, when the penalty that is imposed is imprisonment:
…
(b) the offence of burglary usually results in a sentence of between 12 months and 3 years and 6 months imprisonment.
As noted in R v Coleman [2021] ACTSC 349 at [79]–[80], the statistics can be further refined. It was said:
79. As to the burglary, it is well known, as stated in Fusimalohi v The Queen [2012] ACTCA 49 at [15], that, “there is no single correct sentence for offences of burglary and aggravated burglary”. That, of course, applies to all offences, as the High Court has made clear on a number of occasions.
80. Nevertheless, statistics again show a wide range of sentencing terms of imprisonment from 6 months to 6 years for offences of burglary, more than half in the range of 7 to 18 months. Of course, this range includes all versions of the offence: on residential and commercial premises, where damage is done on entry and where damage or vandalism is done while the offender is on the premises or not.
In relation to damaging property, the circumstances and the value of damage caused is so wide a range that unless this is built into the statistics, they are reasonably unhelpful. Thus, of the 23 cases decided in the Supreme Court, one-sixth were visited by sentences of Good Behaviour Orders, one-sixth by fully suspended sentences (of up to six months imprisonment) and one-sixth by partially suspended sentences (from one month to 12 months). The balance were of sentences of full time imprisonment, all of up to six months imprisonment.
In the Magistrates Court, there was a wider spread, though the majority were subject to Good Behaviour Orders of between three months and 24 months, with nearly 70% of them from nine to 12 months. The terms of imprisonment, comprising about 10% of the sentences were from one month to 14 months imprisonment (one sentence), with the majority of three months or less.
The other ways of considering current sentencing practice is by considering what are said to be comparable cases, which can inform the sentencing task. They cannot be used to fix boundaries: see Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 262 CLR 428 at 454; [83].
The Crown referred to a number of sentences. Perhaps relevant is the decision of Love v The Queen [2012] ACTCA 8 at [13] where Penfold J, with whom Burns and North JJ agreed, said “sentences of around 18 months could be said to be within range for the ordinary course of domestic burglaries”. To similar effect, though with a somewhat wider range (12 months to two years and six months) was the comment of Loukas-Karlsson J in R v Lockwood [2018] ACTSC 288 at [51] after her Honour had considered a number of Court of Appeal decisions.
Similar to this case was R v Mathews, referred to by the Crown in their comparable sentences, where a sentence of 18 months was imposed for a domestic burglary where Mr Mathews entered a residence and was caught exiting with a number of items stolen from the property. He entered an early plea and had a long history of dependence on drugs. A Treatment Order was made.
Consideration
The duty of a court, which is to impose a sentence on an offender, is to impose a just and adequate sentence. This, as noted earlier (at [24]), requires the consideration of the various factors prescribed under s 33(1) of the Sentencing Act, together with other matters a court in a particular case is required by the law to consider.
Important in constructing such a sentence is to have regard to the objects and purposes of sentence, which are fortunately set out in ss 6 and 7 of the Sentencing Act in this jurisdiction. Regard is had to them.
The seriousness of burglary and its effect on the victims and the community requires an appropriate level of punishment. There are difficulties in relying on prevalence as a factor without evidence but, it is accepted that a court can rely on its own knowledge (R v Blackburn (No 1) [2020] ACTSC 373 at [86]). It is noted that a degree of prevalence of the offence of burglary and aggravated burglary, as suggested in R v Bessant [2020] ACTSC 365 at [43], require an element of general deterrence.
Given Mr Snow's long history of prior similar offences, it also means that the sentence must also be directed at deterring him from further so acting, often called specific deterrence. These matters will of course help to protect the community if effective.
The recognition of harm done to the victim is an important part of the consideration of the sentence to be imposed. There have been no Victim Impact Statements provided but the Court can assess, in general terms, the harm done, especially given the age and circumstances of the victim of which evidence was given, though any particular harm she has suffered cannot be assessed and so the Court is limited in its assessment.
A just and adequate sentence which takes these matters into account will also denounce the crimes and help reinforce the standards of conduct in the community expected and required of its members. It will take into account Mr Snow’s desire for rehabilitation and the efforts, albeit limited at this stage, that he has already taken.
Mr Snow entered pleas of guilty at an early stage. This is significant. As the Court of Appeal noted in Coggan v The Queen [2013] ACTCA 49 at [20], the utilitarian value is important and valuable even with a strong Crown case. While s 35(4) of the Sentencing Act places limits on the extent of a discount in sentence for a plea of guilty where the case is overwhelming, it is appropriate that in this case a significant discount should be applied.
While Mr Snow became a drug user in his late teens, he was still a relatively young man. It was precipitated by the death of his best friend and these circumstances do justify some reduction in his moral culpability: see R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 397–8; [273]. Mr Snow was also on conditional liberty at the time of this offending. This renders the sentence required to be more serious, as explained in R v Mathews at [37]–[38]. That will be taken into account.
The nature and circumstances of the offences, which have been described above, are taken into account, including as to the facts that show their level of seriousness as well as Mr Snow's personal circumstances as described. The harm done to the victim is also taken into account. Mr Snow's remorse, his plea of guilty, that he has taken responsibility for the offences, his desire and efforts towards rehabilitation and the other matters set out above are all taken into account.
In all of the circumstances, however, no other sentence than a sentence of imprisonment is just and appropriate: s 10 of the Sentencing Act. There are two offences and there is some concurrency between them because the damage was done while gaining entry in effecting the burglary, though of course, a proper sentence must be imposed on each offence.
Regard must also be had to the principal of totality and ensure that the whole of the sentence reflects the whole of the criminality of the offences committed, but no more than that and that the total sentence is not excessive. In imposing the sentence, that Mr Snow has already spent 94 days in custody will be taken into account by backdating the sentence under s 63 of the Sentencing Act for that purpose.
Sentence
[His Honour then spoke directly to the offender]
Mr Snow, please stand.
The orders of the Court are as follows:
(1) You are convicted of burglary and sentenced to 17 months imprisonment, to commence on 19 March 2021 and end on 18 August 2022. Had you not pleaded guilty, you would have been sentenced to 23 months imprisonment.
(2) You are convicted of damaging property and sentenced to 3 months imprisonment, to commence on 19 July 2022 and end on 18 October 2022. That is to be cumulative as to two months on the sentence for burglary. Had you not pleaded guilty, you would have been sentenced to 4 months imprisonment.
Please be seated.
Drug and Alcohol Treatment Order application
This is now a sentence of 19 months imprisonment with the principal sentence for burglary of 17 months imprisonment. Mr Snow has requested that a Treatment Order be made. That now must be considered.
The first matter that must be considered is whether Mr Snow is eligible for a Treatment Order to be made under the requirements set out in s 12A of the Sentencing Act.
The offence of burglary is an eligible offence, as is damaging property. The sentence of imprisonment for the offence of burglary is more than the minimum period of 12 months for which an applicant for a Treatment Order must be sentenced. The total term of imprisonment for all of the sentences to which Mr Snow has been sentenced is 19 months, which is less than the total maximum period of 4 years for such an Order.
Mr Snow pleaded guilty to both offences and the Court is not aware of any other sentencing order to which he is subject. It has not been submitted that there is any such order, nor that the warrants to which he is subject are or represent sentencing orders.
The Suitability Assessment of the Alcohol and Drug Services advises that he is likely to have a severe substance use disorder and it is satisfactorily proven, accordingly, that he is dependent on illicit drugs, namely methylamphetamine and GHB. It is also satisfactorily shown that the dependency substantially contributed to the commission of these offences.
A question has arisen as to whether Mr Snow will live in the ACT for the term of any Treatment Order that would be made. It is clear that Mr Snow has chosen to come to live in Canberra in order to rehabilitate, away from the influences that led him to use drugs and offend. Despite his failure to remain crime and drug free, it is accepted that he still wishes to attempt that. This is likely to be compromised if he returns to New South Wales, which is the only other place where he has been resident.
If a Treatment Order were made in accordance with the current Case Plan, he would be resident at a residential drug rehabilitation agency for at least six months. He has been offered another place to live in the ACT, though, for unspecified reasons, it has been assessed by ACT Police as unsuitable. It is, nevertheless, a place where he could live in the ACT.
It is further noted that Canberra Recovery Services, which has accepted him into its residential drug rehabilitation program, will work with Mr Snow to find suitable accommodation and that they have arranged for seven of their beds to be transitional accommodation to assist clients exiting the program, while longer term accommodation is sourced and they will assist offenders subject to a Treatment Order to ensure that they are not exited into homelessness.
Accordingly, the Court is satisfied that Mr Snow will live in the ACT for the term of any Treatment Order imposed on him and indeed for any sentence.
The Court is also satisfied that Mr Snow has had the nature and obligations of a Treatment Order explained to him and that he has had an opportunity to ask any questions that he may have about it and had any such question properly answered. The Court is further satisfied that he has consented to the making of a Treatment Order.
Accordingly, Mr Snow is eligible to be subject to a Treatment Order. The Court must then turn to whether one should be made.
The Court has read the competent, comprehensive, and cogent Suitability Assessments, which have been very professionally prepared. They have been of great assistance in helping to determine whether it is appropriate to make a Treatment Order in respect of Mr Snow. The Suitability Assessment of the Alcohol and Drug Services has recommended that Mr Snow is suitable for a Treatment Order. ACT Corrective Services in its Suitability Assessment, however, has recommended that he is not suitable. Reliance is placed on the following matters: lack of suitable accommodation, his previous response to Court Orders based on his non-compliance with community based orders in both New South Wales and the ACT and the outstanding warrants in New South Wales and Victoria. Each of these shall be addressed in turn.
As to the accommodation issue, this is addressed above (at [52]). As to the non-compliance with community-based orders, that is certainly a significant and problematic feature of his criminal record and, indeed, of his recent record. He breached bail in the ACT. In New South Wales, he appears to have breached bail in 2016 and breached a bond made for an offence of driving with his licence suspended. He was fined $500, so it was not a very serious breach. While he continued to commit offences, his breaches of Orders appeared to relate to his failure while on parole in 2020.
He has asked to attend a drug rehabilitation agency, as he felt he needed the intensity of residential drug rehabilitation and that counselling in the community was not enough. He also suggested that his difficulties in Canberra, especially on parole, were due to him not knowing anyone and lacking support here. Clearly, some of that would be available in a residential drug rehabilitation agency.
Despite all the problems he has experienced, he has also shown some changes. After he was remanded in custody on 19 March 2021, his behaviour was satisfactory and he has not been subject to any formal disciplinary action. He told the Court, also, that he had not used drugs on this occasion while in custody. He has engaged in educational courses and been described as “having an engaging attitude in class”.
He expressed commitment to rehabilitation and expressed recognition that he was at a time in his life when he wanted to give up drugs and reconnect with his family who supported him. This also supports the other matters to suggest that he is, especially if he puts his mind to it, likely to succeed in completing a Treatment Order.
The most troubling issue, though, not one to which Mr Snow is alone in when seeking a Treatment Order, is the existence of his outstanding warrants.
Interstate warrants
As noted above (at [56]), Mr Snow is the subject of a number of arrest warrants for crimes he is alleged to have committed in New South Wales and in Victoria. This has been raised as a reason why a Treatment Order should not be made for him.
In particular, it is suggested that, were he to be released from custody on a Treatment Order, he would be subject to extradition and, therefore, unable to complete the Order. This is especially said to be a risk because one of the warrants has been subject to an extradition application which “has been approved by the Australian Federal Police”. It is not clear what is meant by that phrase. It may simply mean that an application for Mr Snow's extradition will be made as soon as he is not in custody (when, as noted below (at [110]), he is no longer ineligible for extradition).
It cannot mean, as the Crown's submission implies, that it is highly likely that he will be extradited. Although the making of such an application (following his apprehension, of course) is one which is not a matter of discretion and the decisions available to a magistrate, who must order his extradition, are limited, there are a few issues to be determined, as is noted below. The process is set out in what follows.
This is a matter of some complexity, on which there is little published jurisprudence. The regime for the execution of extradition warrants is set out in Part 5 of the Service and Execution of Process Act 1992 (Cth) (SEP Act), the predecessor of which, the Service and Execution Process Act 1901 (Cth), was one of the first Acts made by the then newly established Commonwealth Parliament. Briefly, the process is that a warrant may be issued by a court or judge (or a body, such as the ACT Sentence Administration Board) for the arrest of a person for an alleged offence or breach of a conditional release order of various kinds: s 81A of the SEP Act.
That warrant may be executed in another State or Territory by the apprehension of the subject of the warrant by a police officer, the sheriff, or sheriff's officers, of the State or Territory where the person is found by a member, or special member of the Australian Federal Police: s 82 of the SEP Act.
Once apprehended, the person must “as soon as practicable” be brought before a magistrate of the State or Territory in which the person is apprehended and, unless a copy of the warrant is produced, the person may be released or, in certain circumstances, remanded in custody for a short period or released on bail: s 83 of the SEP Act. If the warrant is produced, the magistrate must either release the person on bail to appear in the State or Territory from which the warrant has been produced or remand the person in custody to a specified place in the place of issue of the warrant: s 83(8) of the SEP Act. There are some issues relating to this.
In the first place, despite some initial suggestion (in Loveridge v The Commissioner of Police for South Australia [2004] SASC 195; 89 SASR 72), it seems now accepted that there is no option for a magistrate to decline to make an extradition order on the grounds of an abuse of process: Abbott v The Commissioner of Police [2016] QSC 095; [2017] 1 Qd R 592 at 598–600; [24]–[38] and the cases there cited.
Secondly, under s 83(11) of the SEP Act, the order can be suspended for a specified period: Hijazi v Commissioner of Police (NSW) [2021] NSWSC 515. If so, the person must be remanded or granted bail for the period of suspension.
Thirdly, for completeness, if the warrant is invalid, the person must be released: s 83(10) of the SEP Act.
These are the only orders that, apart from appropriate adjournments and orders for the proper conduct of the proceedings, a magistrate may make. Of course, they are also the only orders that a Supreme Court, on review, also possesses. The Supreme Court possesses no greater powers: Berichon v Chief Commissioner of the Victorian Police [2007] VSC 143; 16 VR 233 at 238; [17].
Once the person has been taken before the magistrate, the Commissioner of Police, where the person is apprehended, must notify the clerk of the court, or other authority, that issued the warrant, who must in turn notify each police force also notified of the issue of the warrant that, if released, the person can be apprehended if a copy of the warrant is produced or, in any other case, that the warrant has been executed: s 85A of the SEP Act.
A decision of a magistrate under s 83 of the SEP Act may be reviewed by the Supreme Court of the State or Territory in which the person is apprehended: s 86 of the SEP Act. Such a review is a rehearing and the Supreme Court has identical powers and duties as the magistrate: sees 86(7) of the SEP Act and Killick v The Commissioner of Police [2014] NSWSC 781 at [14].
Two limits are placed on an extradition. In the first place, a person cannot be apprehended in another State or Territory if that person is in prison: s 82(2) of the SEP Act. Secondly, s 84 of the SEP Act imposes certain constraints which are central to this issue. Those will be dealt with now.
Clearly, if a Treatment Order is made, Mr Snow will be sentenced to imprisonment, but the sentence will be wholly suspended: s 80W of the Sentencing Act. Thus, at the time of suspension, there is a bar to extradition for those released as by a suspended sentence for which a Good Behaviour Order must be made, at least after the Treatment Order ends: ss 12(3) and 80ZA(a) of the Sentencing Act. At that time, the bar under s 82(2) of the SEP Act no longer applies.
Section 84 of the SEP Act, however, then applies as the person the subject of the extradition application is a person under restraint. “Person under restraint” is defined in s 3 of the SEP Act to include “a person who… has been conditionally released from prison… before the end of a term of imprisonment to which he or she has been sentenced”.
If a magistrate is satisfied that the person the subject of the extradition application is a person under restraint and the State or Territory by whose law the restraint has been imposed, then, where the person is not on bail, the magistrate must notify that jurisdiction of the person's apprehension and provide and inform the “supervisor of the person under restraint” to make submissions to the magistrate: s 84(4) of the SEP Act. Following those submissions, the magistrate may order the return of the person to the State or Territory in which the person was under restraint: s 84(8) of the SEP Act.
It is interesting that these provisions have not been the subject of any judicial consideration that can be found. That means that some questions have not been answered elsewhere.
First, if the State or Territory in which the person is apprehended is the State or Territory in which the person is under restraint, it would appear that the magistrate will simply decline to make the extradition order and require the person to continue complying with the orders to which he or she is subject.
Secondly, the supervisor, who may make submissions, is unclear where a Treatment Order has been made. Such an Order would appear to be within the definition of a restraint in s 3 of the SEP Act, either as “a community based order” or “any other restrictions on his or her movements, imposed by law or by order of a court, that is inconsistent with the person complying with a subpoena served on the person under this Act”. The same conclusion was reached in R v Pelecky [2020] ACTSC 246 at [27].
Given that a Treatment Order does require a person subject to it not to leave or stay outside the ACT without permission for more than 24 hours (s 80Y(1)(f) of the Sentencing Act); to appear in Court when required, which is, in phases one and two of the Treatment Order, once a week and then once a fortnight (s 80Y(1)(g) of the Sentencing Act); and report to a member of the Treatment and Supervision Team for treatment, which is usually, at least, weekly and sometimes more than that (s 80Y(1)(c) of the Sentencing Act), being subject to a Treatment Order would be inconsistent with compliance with the warrant.
Determining who the supervisor is, as mentioned in the SEP Act, may be problematic. It is sometimes said that the mark of a court, such as the Court administering the Drug and Alcohol Sentencing List, is that it administers a Treatment Order under judicial supervision. It seems, however, inappropriate for the judge to be the supervisor to give submissions to the magistrate and it is more likely to be the Treatment and Supervision Team under s 80M of the Sentencing Act.
Thirdly, it is clear that under s 84(8) of the SEP Act, the magistrate has a discretion about whether to act in this way or not. It is not clear how that discretion is to be exercised. The Explanatory Memorandum to the Service and Execution of Process Bill 1992 (Cth) states that the provision “is intended to provide a mechanism by which the interests of the State in which the person is under restraint are protected”. There is, as is not unusual, not much there of assistance other than a precis of the provisions of the Bill.
The primacy of the jurisdiction that has the immediate responsibility for the person under restraint is, however, significant. For example, it can be expected that a jurisdiction where a person is alleged to have committed a crime has a responsibility to put that person on trial. The Court cannot avoid that responsibility just because another jurisdiction also seeks to put him or her on trial. There is no hierarchy of trials to which the Territory must, for example, defer.
This was the situation in Hijazi v Commissioner of Police (NSW) and the Court there did adjourn the extradition so that the trial of the pending allegations could be concluded. It is also to be accepted that important considerations there were the imminence of the trial and the costs that would be wasted were the trial to be aborted because the extradition took precedence. That decision was made under s 83(9) and (11) of the SEP Act, which was in similar terms to s 84(8), but have somewhat different provisions.
Nevertheless, this does reinforce the suggested implication in the Explanatory Memorandum that the interests of the jurisdiction in which the person is under restraint has a primary interest. A similar view was explained in R v Pelecky at [27].
Were Mr Snow to be granted a Treatment Order and to be admitted to a residential drug rehabilitation facility and progress well, that would be relevant to the decision to be made by the magistrate.
Of course, were Mr Snow not able to be subject to a Treatment Order, he would be required to serve the term of imprisonment that has been imposed, which would prevent him from being arrested. That also does suggest this rehabilitation proceedings instead of imprisonment would be a factor that may be relevant to the discretion to be exercised by the magistrate. It would not provide a greater delay than his imprisonment would otherwise provide to any subsequent proceedings in another jurisdiction.
Accordingly, as it is certain that, if a Treatment Order is made, Mr Snow would not presently be able to be extradited until it expired and that the period for which he would be subject to a Treatment Order would be no longer than that period of imprisonment: s 80X(3) of the Sentencing Act. Thus, any extradition would not be delayed beyond what would otherwise be required.
Accordingly, the Court cannot take account of the possibility of extradition in not making a Treatment Order, or making a Treatment Order, because there is no certainty at all that such an Order would be made and would not necessarily mean that he would be unable to complete the Treatment Order. Of course, if he were to be arrested and successfully extradited, then that would bring the Treatment Order to an end, but that is a situation that is not unknown in the administration of Treatment Orders in any event.
Disposition
While the Crown submitted that, for the above reasons, it was not appropriate to make a Treatment Order, the Court is satisfied that the matters tending against such a disposition do not justify not making one. Accordingly, although carefully considering the cogent and valid issues raised to suggest that the making of a Treatment Order was not appropriate, in all the circumstances, it is appropriate and a Treatment Order will be made.
Finally, it is noted that the sentence imposed commences on 19 March 2021, before today. Therefore, Mr Snow has served some part of it already and only the balance can be suspended from today. For the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111] this does not prevent the making of a Treatment Order and one will be made.
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender again]
Mr Snow, please stand.
The Court orders as follows:
(3) A Drug and Alcohol Treatment Order be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for you for 15 months and 28 days, commencing on 21 June 2021 and ending on 18 October 2022, in respect of the primary offence of burglary of which you have been convicted and for which you have been sentenced.
(4) That Order is extended to the offence of damaging property of which you have also been convicted and which you have also been sentenced and which is an associated offence of the primary offence.
(5) The convictions for the primary offence and the associated offence 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 the Order.
(6) The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences are hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 21 June 2021, until 18 October 2022.
(7) 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 are to travel directly from this Court to Canberra Recovery Services, Fyshwick, and admit yourself to the residential drug rehabilitation program at that facility by 1:00 pm today, 21 June 2021.
(c)You are directed to complete a residential rehabilitation program at Canberra Recovery Services, not leave the facility until you have completed the course and to comply with all directions by the person in charge of the program and all the rules of the program and the facility.
(d)Should you leave or be discharged from the program before completing it, you are to report to ACT Corrective Services by 4:00 pm on the next business day with a view to having your Drug and Alcohol Treatment Order reviewed.
(e)You are to 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.
(f)You are to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(8)You are directed to appear by electronic means in Court on 2 July 2021 at 12:30 pm.
(9)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 and any obligations under the Crimes (Sentence Administration) Act2005 (ACT) for the period that this Order is in force.
Mr Snow, that is a lot of words. You have been around the courts long enough to probably understand most of what I have said. There is a lot of legalese in that. I am obliged now to explain the effect of what I have done.
Burglary is a really nasty offence, particularly on elderly women, and you are really lucky that she was not there and frightened out of her wits. I have said that this, and cutting the flyscreen of her property, is worth 19 months imprisonment, some of which you have already spent.
You do not have to spend any more of that sentence in custody if you apply yourself to the Treatment Order and you meet with actions what you say to me, that this is the time in your life when you want to put drugs and crime behind you. I have given you that chance.
You will go today to Canberra Recovery Services. You have got to get there by 1:00 pm. I do not know whether arrangements have been made for that. Your Case Manager and your lawyer will ensure that you understand all that, that everything is done properly, and make sure you do not run away and do anything silly before then. Get in there, put your shoulder to it, get on with it.
Having said that, it is going to be hard. This is a long time that you have been engaged in this lifestyle using drugs which give you a high and make you feel good, especially when things are going tough. Pinching other people's property because it is harder to work; you can pick them up for free. Those attractions will remain attractions with you for some time, until you get it in your head that that is not the way to continue to live.
You have seen people in custody. You know what they are like. You do not want to be like that. You want to get out and have a life for yourself, make your parents proud, have a family. Get on with it. Now, this is important on the way through but it is going to be hard. As you overcome the challenges, you will get stronger.
It will get easier, but you need to apply yourself. You will get help. Canberra Recovery Services will provide you with a lot of help. The people in the Treatment Order Team in this Court will also help you. That is what this Court is about, to try and help you, but you have got to help yourself; you have got to come to the party also.
There are two things I really need to emphasise.
The first is that it is really important to be honest. First of all, be honest with yourself. It is really easy to fool yourself and to think you are doing all right, but looking deep down into what you are doing, you know it is wrong and this helps you stop it. But also, be honest also with your counsellors. That is going to be hard. Sometimes you will be in groups where you might feel embarrassed or uncomfortable about sharing with other people. That will also make you stronger and is an important part of the way in which you will reform yourself and rehabilitate from the situation where you are. That is really important.
When it gets tough, do not go back to drugs. Do not use drugs and alcohol. You have been able to stop it but only 94 days; not a long time. But this shows you have been able to stop it before and can do it this time. Do not take drugs. If you do, it is not necessarily the end of the world, but it might mean that you would have to go back to custody, for a short period or for a longer period or, possibly, if you keep doing it, I will cancel the Order and send you back for the balance of the sentence.
The second thing is, if you do fail to comply with the rules of the program or if you find it is getting too tough and you leave, do not run away. It is really important that you take this opportunity because they do not come often and there are not many beds in Canberra, so if you lose this one, there is no guarantee you will get another one. Do not lose this opportunity. If something goes wrong and you do leave, come back.
I do not guarantee that we can solve everything. I sit up here as a judge, fairly powerful, but I cannot resolve everything. It is amazing, however, what a Judge can resolve or where I and the very experienced Treatment Team can help you, although it will often mean that you will have to put some effort into it yourself as well. For this, you have to come back. If you do not come back, there is no chance of resolving it and almost certainly you will go back into gaol and back onto the same roller coaster that you have been before and waste all this effort and this time.
Now, there is one warning I have to give to you and that is I cannot foreshadow what will happen in these extradition proceedings. As I have indicated, there are reasons why that extradition should not proceed, but it will be up to a magistrate — I cannot direct the magistrate, although an appeal could be made and that can be considered by the Supreme Court, probably another judge — as to whether the extradition will proceed.
If it does proceed, then there are two things about that. One is there is nothing that can be done about it and you will have to face it. This theft in particular in New South Wales seems highly unlikely it will result in anything other than sentence of further imprisonment.
It may be possible that you could get a Drug Treatment Order in New South Wales, I do not know. Certainly, any time you spend now working hard at your rehabilitation will have to be taken into account in New South Wales. It may not resolve the whole issue. It may mean that you still have to go through a period of imprisonment, which sounds quite likely, but the work that you do will make you stronger there and make you survive that. If you do apply what you have learnt, then you may well be able to put that behind you once you leave prison and get back into a better frame of mind.
You might have to do some more drug rehabilitation either in a residential facility or in counselling or whatever, but it will put you in a better position. I cannot foreshadow what will happen. We will just have to see and you will have to take it as it goes. You will have a very competent lawyer. It will not be Ms Cobden, but it will be one of her colleagues who is also a very experienced lawyer, who will assist you through that process and we will see what happens.
That is one of the things over which I do not have control but, looking at the legislation as best I can, it seems that there is a possibility — a real likelihood — that you would be able to finish your Drug and Alcohol Treatment Order at the end of the day.
That is a lot of words. You have sat patiently listening to everything I have said, but these are important things for you to understand if you want this opportunity and, I cannot see what is in your head, but I have assessed you as being genuine about that.
If you are genuine, then work hard at it. This Court and its staff will support you and we have had great success in these things with others. Your progress here will put you in a really good position even when, as would be almost inevitable, you will have to go back and face the music in New South Wales at some stage in the future.
In the meantime, you will come back and see me. You will come back and see me in a fortnight via audio-visual link. I want to know how things are going. If there are problems, I want you to raise them. If there are problems you feel uncomfortable about mentioning in front of other people, because there will be other people there, then talk to your lawyer and we can make appropriate arrangements about you speaking more confidentially. Not with no one here, but we can ensure, for instance, other participants in Canberra Recovery Services or staff members are not there in those circumstances. We can see what we can do about that.
All I can offer is good luck. We have given you an opportunity. We have put at your services now very substantial and very professional supports for you and, if you take this opportunity, then like others who have gone through this and other similar courts, you can learn to live as a very productive person in the community, develop your talents and your expertise, be proud or be of pride to your parents and your siblings and your grandparents and do well. Good luck.
| I certify that the preceding one hundred and fifty [150] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 1 November 2022 |
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