R v West (No 2)

[2024] ACTSC 5

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v West (No 2)

Citation: 

[2024] ACTSC 5

Hearing Date: 

14 December 2023

Decision Date: 

11 January 2024

Before:

Refshauge AJ

Decision: 

1.    The conviction of Mitchell John West of attempted aggravated robbery (CAN 123/2021) be confirmed and the sentence of 3 years imprisonment be imposed to commence on 3 June 2022 and expire on 2 June 2025.

2.    The conviction of Mitchell John West of aggravated burglary (CAN 4554/2021) be confirmed and the sentence of 12 months imprisonment be imposed to commence on 3 December 2024 and expire on 2 December 2025.

3.    The conviction of Mitchell John West of joint commission of theft (CAN 4556/2021) be confirmed and the sentence of 9 months imprisonment be imposed to commence on 3 April 2025 and expire on 2 January 2026.

4.    The conviction of Mitchell John West of dishonestly drive motor vehicle without consent (CAN 4550/2021) be confirmed and the sentence of 9 months imprisonment be imposed to commence on 3 July 2025 and expire on 2 April 2026.

5.    The conviction of Mitchell John West of dishonestly ride motor vehicle without consent (CAN 4551/2021) be confirmed and the sentence of 6 months imprisonment be imposed to commence on 3 November 2025 and expire on 2 May 2026.

6.    The conviction of Mitchell John West of fail to stop motor vehicle for police (CAN 4549/2021) be confirmed and the sentence of 4 months imprisonment be imposed to commence on 3 February 2026 and expire on 2 June 2026.

7.    The sentence be suspended today 11 January 2024 to 10 January 2027.

8. Mitchell John West be required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentencing Administration) Act 2005 (ACT) for three years, from 11 January 2024 to 10 January 2027, with the following conditions:

(1)  A probation condition that Mitchell John West accept the supervision of the Commissioner of ACT Corrective Services or the person delegated or nominated by the Commissioner to supervise him for the period of the undertaking of 3 years, or such lesser period as the person supervising him deems appropriate and to obey all reasonable directions of the person supervising him, including but not limited to, to undergo drug testing.  

(2)  That Mitchell John West travel to Queensland as soon as reasonably possible and reside there with Janye West or such other person or persons or in such other residence as may be approved by the person supervising him.

(3)  That Mitchell John West engage in such programs of counselling for treatment for Drug and Alcohol use, including residential drug rehabilitation as may be directed by the person supervising him.

(4)  That, as soon as reasonably possible, Mitchell John West undertake a comprehensive psychiatric review, as recommended by Dr Douglas P Boer in his report dated 23 October 2022, and show that report and the review to the person supervising him and discuss it with that person and undertake such treatment as may be recommended in the review.

(5)  That Mitchell John West not consume cannabis, illegal drugs, or prescription drugs not prescribed to him, and not return a positive result on any drug testing.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cancellation of the Drug and Alcohol Treatment Order – resentence – robbery – burglary – theft – dishonestly ride motor vehicle – failure to stop – good behaviour order made

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), ss 10, 12A, 63, 80S(c), 80ZB(1)(e), 80ZB(3), 80ZE

Crimes (Sentence Administration) Act 2005 (ACT), s 85

Cases Cited: 

Akoka v The Queen [2017] VSCA 214

Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370

In the Matter of an Application for Bail by Islam [2010] ACTSC 147; (2010) 4 ACTLR 235

Power v The Queen (1974) 131 CLR 623

R v Coleman (No 3) [2021] ACTSC 357

R v Eyles (No 3) [2017] ACTSC 1

R v Gardner (No 4) [2023] ACTSC 275

R v Gordon (1994) 71 A Crim R 459

R v Hancock (No 3) [2022] ACTSC 232

R v Massey (No 4) [2021] ACTSC 211

R v McHughes [2021] ACTSC 92

R v Ngerengere (No 3) [2016] ACTSC 299

R v Paivinen (1985) 4 FCR 549

R v Po'oi [2021] ACTSC 151

R v Po'oi (No 6); DPP v Po’oi [2024] ACTSC 6

R v West [2023] ACTSC 409

Texts Cited:

M Rossner et al, ACT Drug and Alcohol Sentencing List: Process and Outcome Evaluation (Final Report, Australian National University, Canberra, ACT, June 2022)

Parties: 

Director of Public Prosecutions ( Crown)

Mitchell John West ( Offender)

Representation: 

Counsel

K Stitt ( Crown)

C Duffy ( Defendant)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Numbers:

SCC 174 of 2021

SCC 175 of 2021

REFSHAUGE AJ:

Introduction

1․The Drug and Alcohol Sentencing List is effectively the drug court of the Australian Capital Territory. It administers the Drug and Alcohol Treatment Orders (Treatment Orders), made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). These make provision for an intensive therapeutic program of drug and alcohol treatment with extensive case management, urinalysis and judicial supervision.

2․This requires a considerable expenditure of resources, though it has been suggested that there is a cost benefit to the community in the avoidance of imprisonment and the reduction of crime: see M Rossner et al, ACT Drug and Alcohol Sentencing List: Process and Outcome Evaluation (Final Report, Australian National University, Canberra, ACT, June 2022).

3․The careful husbanding of such resources is, of course, in the public interest. Thus, procedures such as eligibility assessments have been established to filter the cases that are least likely to succeed: see R v McHughes [2021] ACTSC 92 at [10].

4․Given that this is remedial legislation, it should, in general terms, be given a liberal interpretation, as explained in Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384. It requires an interpretation that gives a full beneficial effect of the legislation, without of course exceeding the limits of the legislation or the power given under it: see In the Matter of an Application for Bail by Islam [2010] ACTSC 147; (2010) 4 ACTLR 235 at [53].

5․Thus, it is likely that, when a person who has a drug or alcohol dependence is, or has been, sentenced for eligible offences to a term of imprisonment for between one and four years, such that a Treatment Order be made, and there are suitable arrangements for it to be administered, it is generally preferable that a Treatment Order be made rather than not. It is, of course, very difficult to predict which applicants, who meet the broad criteria, including, of course, an express commitment, will succeed and who will not.

6․Thus, Mitchell John West pleaded guilty to offences of attempted aggravated robbery, aggravated burglary, theft, dishonestly driving a motor vehicle without consent, dishonestly riding in a motor vehicle without consent and failing to stop when directed by police. All the offences were eligible offences for the purposes of s 12A of the Sentencing Act. He asked that any sentence of imprisonment be served by a Treatment Order. He was assessed by ACT Corrective Services and Alcohol and Drug Services as suitable for such an order.

7․He was sentenced to a total of four years imprisonment and a Treatment Order was made for him on 6 March 2023 to enter the residential drug rehabilitation program of Canberra Recovery Services at Fyshwick, an agency described in R v Ngerengere (No 3) [2016] ACTSC 299 at [70].

8․Unfortunately, Mr West did not manage to comply with all of the obligations under the Treatment Order and, on 4 April 2023, Canberra Recovery Services discharged him from the program. He had reasonably continuously breached rules of the program.

9․On 18 April 2023, the Treatment Order was cancelled. As a result of the cancellation of the Order, the Court is required to impose the sentence originally imposed but suspended under the Treatment Order or resentence the offender. His counsel, Ms C Duffy, sought that he not be sentenced immediately but that time be given for exploration of other options. This has seen a pathway that is consistent with the therapeutic jurisprudence of the Court and has been successful: See, e.g., R v Hancock (No 3) [2022] ACTSC 232 at [13]; R v Po'oi (No 6) [2024] ACTSC 6.

10․While Mr West was not granted bail, he did explore further residential rehabilitation in Queensland where his family were and he could more readily avoid the anti-social influences, which he felt had been a problem for him in Canberra.

11․These then are the reasons for cancelling the Treatment Order and for the sentence of Mr West.

Background

12․Mr West was born 26 years ago. He had a difficult childhood where he experienced domestic violence trauma perpetrated by his father on his mother, himself and his siblings. He suffered a family separation and an early introduction at about age 11 or 12 to tobacco and cannabis. He was introduced soon after to other drugs, especially methamphetamine. He did complete Year 10 at school and gained some employment.

13․[Redacted] He had a long, serious and extensive criminal history, having committed [redacted] 23 offences as an adult. The majority were dishonesty offences, especially more serious ones like aggravated burglary, burglary and theft. He had a prior conviction for aggravated robbery.

14․On 30 April 2021, Mr West and another man broke into a house in Throsby, ACT, where the occupants were sleeping. They entered the bedroom of one of the occupants, the female owner's mother. They pointed a knife at the terrified occupant, demanding her wallet, money or keys but she did not have any to give them. The intruders, however, did steal some items, including two laptops, an iPad and a set of car keys.

15․Later that morning, Mr West and two co-offenders went to a residence in Casey, ACT, and entered the garage of the premises without authority. The offenders had entered the house and stolen the female occupant's handbag, mobile phone and a set of keys to a car parked in the premises. Mr West drove that motor vehicle away.

16․Later that morning, police on patrol saw the motor vehicle being driven by Mr West and another motor vehicle in which Mr West and the other offenders had driven to the property originally. Police attempted to intercept the motor vehicles, activating their emergency lights and sirens, signalling it to stop. The motor vehicles, however, continued to speed away.

17․The police then pursued the vehicles, deploying a stop stick deflation device which was successful in both cases. The vehicles continued to be driven briefly but came to a stop in Chandler, ACT. Mr West got out of the vehicle he was driving and got into the passenger's seat of the other vehicle, which was then driven away.

18․It later collided with some shopping trolleys in a car park and came to a stop. When Mr West got out of the vehicle, he was arrested.

19․As noted above, he was ultimately sentenced on his pleas of guilty to four years imprisonment and a Treatment Order was made.

20․Mr West entered the Canberra Recovery Services on 6 March 2023. This was the only treatment option then available to him.

21․As is customary with participants under a Treatment Order, who have been directed to residential rehabilitation, the regular reviews in Court do not commence until a fortnight after their admission to allow them to settle in. Mr West, then, appeared first on 17 March 2023. He reported to the Court that he was happy in the facility.

22․He had, by then, however, met some challenges. On 12 March 2023, he had failed to follow the guidelines of the facility in relation to smoking, and, despite having been warned, did so again the next day. Compliance with the rules of the facility is an express condition of the Treatment Order.

23․On 15 March 2023, he was caught stealing a shirt from the Salvation Army store next door. He admitted that to the Court two days later and was given a formal warning, which was a sanction for his breach.

24․He also continued to use drugs while in the facility and, on 27 March 2023, was tested for drugs which returned a positive result for methamphetamine. He was further tested later with the same result, although he also tested for amphetamine. Returning a positive result on drug testing is also a breach of a condition of the Treatment Order.

25․On 31 March 2023, he was sanctioned with a formal warning and required to provide a reflection to the Court on the breach of the condition and how he would address that in the future. He did say, a few days later, that he had been offered drugs and refused them on this occasion.

26․The progress of Mr West at Canberra Recovery Services, however, shows that he continued to behave quite inappropriately. Thus, he continued to breach a requirement not to wear inappropriate footwear, despite being reminded of this on several occasions. He used quite inappropriate and disparaging language on a number of occasions and he continued to play music at a high volume, despite being addressed in the community before about this issue.

27․Thus, Canberra Recovery Services concluded:

There has been a persistent and ongoing failure by Mitchell West to adhere to the rules and guidelines for Canberra Recovery Services. This is having a negative impact on both participants and staff. These issues have been addressed supportively in 1:1 sessions as well as through the mutual agreement as well as through his DASL Case Manager yet there has been no improvement with further incidents. This has escalated to allegations of twice making inappropriate sexualised and sexist comments to a female member of staff which is a serious breach of CRS rules and guidelines.

This incident was looked into with statements from staff, participants and also Mitchell. Mitchell strongly denied making these comments but his version of events (talking about car parks)s did not corroborate with the other statements of events.

28․In explanation, Canberra Recovery Services helpfully explained their reasoning as follows:

While some infractions may seem trivial, especially when viewed individually, they are all there to ensure we can operate a safe and structured environment for everyone as part of their rehabilitation. Taken as a whole, the constant breaches in such a short period of time suggest a disregard for the rules of CRS. CRS guidance is clear that where a participant's behaviour constantly ignores rules, it can have a negative impact on themselves and/or others [sic]. This can also have a negative influence on the community and the staff team and our ability to run a safe residential rehabilitation service.

These repeated behaviours, breaches of rules, and the negative impact it can lead to on staff and community, as well as the escalating nature of them could be enough for the CRS clinical team to consider as appropriate action that the individual potentially exits treatment due to the concerns of behaviour patterns.

However, this is in addition to the sexist and sexualised derogatory comments twice made towards the same female member of staff. This incident was looked into and also Mitchell was allowed to present his case, which to be noted he denied.

However[,] the staff team felt the information available made it clear that these remarks were intended as a sexist comment. This behaviour is not trivial and falls under a clear breach of our rights and guidelines.

29․Accordingly, on 4 April 2023, Mr West was discharged from Canberra Recovery Services. He was directed to return to Court that day but did not do so. Under the Treatment Order conditions, he is required, if discharged from the facility, to report to ACT Corrective Services by 4.00 pm on the next business day after discharge. Accordingly, when the Court convened in anticipation of him returning to Court on that day, and he did not attend, a warrant was issued but directed to lie in office until 5.00pm on the next business day, 5 April 2023, in the event that Mr West did comply with his condition.

30․He did so, however, and, to his credit, did appear in Court on 5 April 2023, in accordance with a direction of ACT Corrective Services. The warrant was withdrawn, and, after the suspension of the imprisonment under the custodial part of the Treatment Order was provisionally cancelled, he was remanded in custody. The Court noted that he needed to work closely with his Case Manager from Alcohol and Drug Services to convince her that he was committed to the Treatment Order.

31․Advice was received that Mr West would not be readmitted to Canberra Recovery Services and, accordingly, the prosecution made an application to cancel the Treatment Order.

Cancellation application

32․The prosecution applied under s 80ZE of the Sentencing Act to cancel the Treatment Order. There were three grounds: The first two grounds were taken directly from that section as follows:

(a)   Mr West is unwilling or unlikely to comply with a condition of the Treatment Order, (s 80ZE(1)(c) of the Sentencing Act);

(b)   the continuation of the Treatment Order will likely not achieve the objects of the Treatment Order, (s 80ZE(1)(d) of the Sentencing Act).

33․The third, however, is directly based on s 80S(c) of the Sentencing Act as follows:

(c)   Mr West is no longer eligible for a Treatment Order due to appropriate arrangements for the administration of the Treatment Order having become impractical (s 80S(c) of the Sentencing Act).

34․There is no express provision in s 80ZE of the Sentencing Act to provide for cancellation on the basis that there are not appropriate arrangements for administration of the Treatment Order, even though that is a criterion of eligibility. It must be met before a Treatment Order is to be made.

35․In this sense, there is a distinction between at least one other criterion of eligibility. A Treatment Order can only be made where a proposed participant has given informed consent to the making of a Treatment Order: s 12A(2)(c) of the Sentencing Act. Section 80ZE(1)(e) of the Sentencing Act provides that a Treatment Order may be cancelled if a participant withdraws his or her consent.

36․Many of the other eligibility criteria will not change over time. For example, the sentence of imprisonment will not be changed unless the sentence is appealed in which case the Court will deal with the whole proceedings, including the making of the Treatment Order.

37․While it seems obvious that, if there is no provision for the appropriate administration of a Treatment Order, it should not continue. This is somewhat reinforced by the authority given by s 80ZB(3) of the Sentencing Act, which, despite the otherwise limit on s 80ZB(1)(e), may remand a participant for a longer period than limited when ‘treatment, appropriate to achieve the objects of the Treatment Order, will only be available for the offence at the end of a longer period'.

38․It is appropriate, then, to see ground (c) in the application as a particular of the second ground, (b), namely that, the objects of a Treatment Order will not be achieved where, in this case, appropriate arrangements for the administration of the Treatment Order cannot be put into place.

39․As to the approach that should be taken to such applications, it has been considered in a number of decisions, helpfully in R v Massey (No 4) [2021] ACTSC 211 at [19]-[21], from which it may be summarised as follows:

(1)  Each ground should be considered, though one ground is sufficient to justify cancellation;

(2)  Each ground must be proved on the balance of probabilities;

(3)  The Court retains a discretion whether to cancel the order, even if some or all of the grounds are made out;

(4)  The Court may cancel a Treatment Order where there are no suitable arrangements for the administration of the Treatment Order;

(5)  The Court may amend the Treatment Order instead of cancelling it, to address any unsatisfactory circumstances;

(6)  There must be a rational basis for the Court to exercise its discretion not to cancel the Treatment Order where grounds have been made out and this will include a careful assessment that the participant will be able to complete, adequately participate in or proceed to achieve the objects of, the Treatment Order.

40․In support of the application, the prosecution relied on the conduct of Mr West in the month in which he was subject to a Treatment Order. Ms K Stitt, who appeared for the prosecution, referred to the context in which Mr West had been exhorted at sentencing that this was an opportunity for him and that he should take it “with both hands”. It was explained that, if it was not working, it could be cancelled. These extortions and warnings, it was submitted, were not enough to encourage him to conduct himself with appropriate commitment to achieving the objects of a Treatment Order.

41․This is to some extent supported by Mr West's history of non-compliance with community-based orders where he has some history of breaching suspended sentences and Good Behaviour Orders in his criminal record. In particular, he breached an Intensive Correction Order imposed by the New South Wales Drug Court six months prior to this offending. Of course, a breach of an order made by that Court is particularly relevant: See R v Coleman (No 3) [2021] ACTSC 357 at [26].

42․Thus, it was submitted, failure to comply with the conditions of intensive treatment, as committed by Mr West, would not achieve the objects of a Treatment Order in s 80O of the Sentencing Act.

43․Ms C Duffy, who appeared for Mr West, did submit that her client's instructions were that Mr West did wish to continue on a Treatment Order. She relied on his completion of the Solaris Therapeutic Community Program on 15 June 2022. It is noted of course that this is a program completed in custody. There are, regrettably, many examples of where rehabilitation in custody cannot always be translated into the community: see, e.g., R v Po'oi (No 6); DPP v Po’oi [2024] ACTSC 6. He did, however, complete the Wayback Residential Program in Sydney in 2020, but, again, that did not prevent him from committing further offences, and, as was an element of the making of the Treatment Order, had used drugs in April 2021, seven months after completion of that program.

44․Ms Duffy also noted Mr West's difficult childhood with disadvantage and trauma. She noted that he was relatively young. These matters do justify further efforts to try and address and achieve the rehabilitation of Mr West. They do not, however, mean that the Treatment Order can continue where there is no relevant rehabilitation that would, in the professional view of the Treatment and Supervision Team, be likely to progress his reform and thus achieve the objectives of the Treatment Order.

45․At the end of the day, there was no program available for Mr West to engage appropriately in a Treatment Order at that time. He clearly required more intensive treatment, but that was not available. It clearly needed to address his attitude and compliance, but his denial was an obstacle to that.

46․Accordingly, the Treatment Order was cancelled on 18 April 2023.

Disposition

47․Initially, after the Treatment Order had been cancelled, Mr West sought an opportunity to go to residential rehabilitation on the Gold Coast in Queensland.

48․His mother lives there, having moved there two years ago. Mr West's brother and sister live in Brisbane, Queensland, and both have employment. They would be significant pro-social influences on him, and his mother strongly suggested in a letter that she wrote to the Court that he would benefit from being taken from Canberra, where the most significant anti-social influences on him are located.

49․His mother would be prepared to facilitate Mr West's access to residential drug rehabilitation there and had already made enquiries of two of them.

50․The prosecution, although the primary position being submitted was that the sentence that had been suspended, on which the Treatment Order was made, should be imposed, did not oppose investigation of appropriate facilities.

51․Accordingly, the proceedings were adjourned so that the enquiries could be made and Mr West appeared in Court from time to time as those investigations continue. By September 2023, however, it became clear that an appropriate facility was not able to be identified and a date for sentence was sought.

52․A date on 18 October 2023 was set but adjourned as Mr West had a further matter before the Magistrates Court and it was appropriate that it be resolved first. It was a charge of minor theft alleged to have been committed on 4 April 2023. This was resolved and the sentencing proceedings continued.

53․Ms Duffy, speaking very effectively for Mr West, tendered, without objection, a letter from Mr West, dated 13 November 2023, and from his mother and her partner, dated 18 November 2023.

54․Mr West expressed his regret and apologies for his past behaviour. He said that he had learnt from his time in custody “that this is not the life [he wants] to continue living if given the opportunity”. He promised that he had “learnt from [his] past mistakes”, and that he will “no longer be a problem to society”. He says that he has “grown a lot in custody with accepting [his] poor life choices that got [him] into where [he] now is”. He expressed how he missed his family and hoped that the Court would accept his apology.

55․Mr West's mother and her partner wrote that they were prepared to fund flight costs for Mr West to move to the Gold Coast “whilst he gets himself back into the workforce”. He will “have all of the love and support to help him return to the community and hopefully give him a good start in life”.

56․They continued:

Nicholas and I truly believe if Mitchell is given the opportunity to leave Canberra, away from previous associates and surrounded himself with good people that do not participate in illegal conduct and illicit drug use, [h]e would benefit from the ongoing support of family close by to encourage the full recovery of his previous behaviour towards drugs. Previously[,] Mitchell has shown progress towards recovery whilst in my close care, this is due to my very close bond, built on respect and trust, I believe that when I relocated to the Gold Coast Mitchell did not benefit from this move as I was unable to be close by to guide and support him through his tough times and unfortunately resulted in him reoffending.

57․A report from a Community Corrections Officer, dated 13 October 2023, set out his behaviour in the Alexander Maconochie Centre up to that date. Regrettably, he had not had further drug testing since April 2023 while he has been in custody.

58․He commenced employment on 1 June 2023. On 17 August 2023, he was appointed the activities coordinator but lost this position on 11 October 2023 because of an accommodation move. He also received a verbal warning for having in his possession a cigarette lighter, being contraband.

59․Against all of this, he received a commendation for positive behaviour on 15 June 2023 and on 12 September 2023. His positive behaviour was noted on four occasions, 20, 24 and 27 September 2023 and on 2 October 2023.

60․The proceedings in the Magistrates Court have been resolved. Mr West pleaded guilty to the offence of minor theft of an electrical scooter. On 7 December 2023, he was convicted and sentenced to four months imprisonment to commence on 5 April 2023 and end on 4 August 2023. The offence of minor theft was, of course, committed while Mr West was subject to the Treatment Order.

61․Mr West has spent significant periods in custody. On sentence, it was found (see R v West [2023] ACTSC 409) that he had spent 426 days in custody, though prior to that he had spent a further 246 days on sentence also at that time.

62․He was returned to the community on 6 March 2023 and was then admitted to Canberra Recovery Services where he entered the residential drug rehabilitation program where his liberty was significantly limited. Thus, from 6 March 2023 until 5 April 2023, was 30 days. He was then remanded in custody on 5 April 2023 and has remained in custody since then. Of that period, however, he has spent from 5 April 2023 to 4 August 2023 as a sentenced prisoner, that is 122 days (4 months). From 4 August 2023 to today, 11 January 2024, is a total of 160 days.

63․Thus, Mr West has spent 586 days in custody “in relation to the current offences” (s 63 of the Sentencing Act) for which he must now be sentenced or resentenced. In addition, he has spent 30 days in residential rehabilitation and 368 days serving sentences immediately prior to the making of the Treatment Order and for the additional offence.

64․The 586 days would require, under s 63 of the Sentencing Act, any sentence imposed on him currently to commence on 3 June 2022, that is, 1 year 7 months and 7 days prior to the date of imposition of sentence, being today.

65․The periods of custody cannot be taken into account as time spent in custody in the same way as explained in R v Po'oi [2021] ACTSC 151 at [44].

66․Such periods, however, are relevant to the “effective total length of the sentence”: see R v Gordon (1994) 71 A Crim R 459 at 466. This total is of a period of 368 days, namely just over a year. That ordinarily must, of course, necessarily be excluded from the s 63 period but must be included through the requirement of totality. It does seem, however, that this is particularly relevant to do so in this case. Rather, it is more appropriate to take this into account as part of the “minimum period of imprisonment that justice requires to be served”: see Power v The Queen (1974) 131 CLR 623 at 627-8.

67․Finally, there is the period during which Mr West has been in residential rehabilitation. As noted in Akoka v The Queen [2017] VSCA 214; R v Eyles (No 3) [2017] ACTSC 1 at [103]-[105]; and R v Gardner (No 4) [2023] ACTSC 275 at [8], this should be taken into account, but not necessarily for one day in residential rehabilitation equalling one day in custody.

68․Even giving a very partial value to the other incarceration and the residential rehabilitation period, this is well more than half of the full sentence originally imposed for the offending.

69․Thus, this can be taken into account when determining 'the minimum period which the offender must spend in custody' for setting a non-parole period or otherwise: see R v Paivinen (1985) 4 FCR 549. It may or may not be appropriate to take it into account by backdating the start of the sentence. That depends upon each set of circumstances.

70․While Mr West did not comply with the rules of the residential facility, he did engage with the actual program. He was, for example, reported for the week ending 27 March 2023 as having been “observed to participate in all group activities, engage well with group materials and completed all set tasks on time”, an observation consistent with the earlier reports. While this was only a month, it was a genuine sign that there was some commitment to his rehabilitation, though by no means successful yet.

71․Further, he had continued to seek adjournments while in custody to attempt to gain access to a drug rehabilitation facility.

72․Nevertheless, at the end of the day, the offences that Mr West committed, were very serious ones and, having regard to all of the alternatives, a sentence of imprisonment, even at this stage, is the only possible alternative: s 10 of the Sentencing Act.

73․Thus, the sentence that was imposed when the Treatment Order was made should be imposed in the current situation.

74․I note the considerations relating to totality, concurrency and the total criminality set out in R v West [2023] ACTSC 409 which need not be repeated here and the basis of the sentence will be the same.

75․Given the issue about the time involved, it seems appropriate in this case to address the matter by a release from custody in the near future. There is much to be said for a parole order to do this. On the other hand, that will take at least 3 months or so for it to be processed and it seems inappropriate to detain him further in custody, having regard to all the circumstances.

76․The option of a Good Behaviour Order, therefore, is more appropriate and will permit Mr West to get away from anti-social influences and to move to Queensland where he will have significant family support.

77․In this case, the Court has a pretty good idea from the evidence in these proceedings as to Mr West's current situation. That would usually not be the position where a non‑parole period is set and the release is some months, or even years, down the track after sentencing, and is not nearly so clear in those circumstances as to the desirability of release of an offender at that time.

78․Accordingly, with adequate conditions, it is appropriate to reimpose the sentence previously imposed but release Mr West on a suspended sentence and a Good Behaviour Order to get him to the pro-social situation of his family as soon as possible.

[His Honour spoke directly to Mr West:]

79․Mr West, please stand:

(a)The conviction of you for the joint commission of attempted aggravated robbery is confirmed and the sentence of three years imprisonment is imposed to commence on 3 June 2022 and expire on 2 June 2025.

(b)The conviction of you of joint commission of aggravated burglary is confirmed and the sentence of 12 months imprisonment be imposed to commence on 3 December 2024 and expire on 2 December 2025.

(c)The conviction of you of the joint commission of theft is confirmed and the sentence of 9 months of imprisonment be imposed to commence on 3 April 2025 and expire on 2 January 2026.

(d)The conviction of you of dishonestly driving a motor vehicle without consent is confirmed and the sentence of 9 months imprisonment is imposed to commence on 3 July 2025 and expire on 2 April 2026.

(e)The conviction of you of dishonestly riding in a motor vehicle without consent is confirmed and the sentence of 6 months imprisonment be imposed to commence on 3 November 2025 and expire on 2 May 2026.

(f)The conviction of you of failing to stop a motor vehicle for police is confirmed and the sentence of 4 months imprisonment is imposed to commence on 3 February 2026 and expire on 2 June 2026.

(g)The sentence is suspended today from 11 January 2024 to 10 January 2027. You are required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act2005 (ACT) of the ACT for three years from 11 January 2024 to 10 January 2027 with the following conditions:

(a)  A probation condition that you accept the supervision of the Commissioner of ACT Corrective Services or the person delegated or nomination by the commissioner for the period of the undertaking of three years, or such lesser period as the person supervising you deems appropriate, and obey all reasonable directions of the person supervising you, including, but not limited to, undergoing drug testing.

(b)  That you travel to Queensland as soon as reasonably possible and reside there with Jayne West, or such other person or persons, or in such other residence as may be approved by the person supervising you.

(c)   That you engage in such programs of counselling for treatment for drug and alcohol use, including residential drug rehabilitation as may be directed by the person supervising you.

(d)  That as soon as possible, you undertake a comprehensive psychiatric review as recommended by Dr Douglas P Boer in his report dated 23 October 2022 and show that report and the review to the person supervising you and discuss it with that person and undertake such treatment as may be recommended in the review.

(e)  That you not consume cannabis, illegal drugs or prescription drugs not prescribed for you and not return a positive result on any drug testing.

80․Mr West, those are a lot of words, but it is about you and what you have done and where you have been and where you are now, and so you probably understand most of it, but I am obliged to explain it to you.

81․I have said that, in the circumstances, there is no basis for me doing other than imposing the sentence of four years that had been imposed on you, and so I have done that, to start from 3 June 2022, to take into account the time you have already spent in custody.

82․Having regard, however, to the time you have spent in custody under sentence and to the time, very short, that you have spent in residential rehabilitation, I have said that, at this relatively early stage, it is appropriate to end the period of custody and to send you to Queensland, basically because it seems to me, on all the material, that that is probably the best place for you to start. If any words that you have written in your letter are true, and I am assuming that they are, but I cannot guarantee that, if that is what you really want, then that appears to me, on the evidence, to be the best place for you. You will have the support of your loving mother and her partner. You will have the support of your siblings. You will have the opportunity of work and you will, I think, still need significant drug rehabilitation.

83․From today, you have got three years under supervision. That is a long time, but you have got to realise: (a) that you have got a lot of your life left to you, and (b) where you have been and the difficulty you have in getting to where you want to be means that it is going to take a long time, and you need some support for that. While people who supervise you are people who are policing your compliance, they are also there, and their commitment is, to try and get you to the end of this process so that you do not reoffend and that you are actually able to be in the community without you being a danger to the community.

84․If you use them that way, if you look at it positively and try to work to get all those issues that you need addressed, then hopefully it will work. Really important is to get you away from the Canberra bubble, which is normally talked about in politics, but, in this case, I am talking about crime, and the people that you knock around with. To get out so you can hopefully get some employment and start meeting people who actually work in the community, do ordinary things, enjoy themselves and do not  commit crime; do not  use drugs, look after themselves and are focussed on their future; building a family, building a home, building a career; building friends, building support for, as well as from, your family and so on. Those are the things that you really need to focus on and think about and get into. So hopefully this will be the right thing for you.

85․If not, then, if you breach the Order, you will be brought back to Court, but, as I understand the situation, the order will be transferred to Queensland, so you go back to Queensland courts and they will not necessarily be the same as ACT courts. So, you know, use your efforts. I mean, you are smart enough. You are intelligent enough. You have got the approach that you need if you can put it into practice and the stupidity that brought you undone in Canberra Recovery Services is just not on.  

86․Talk respectfully to people. Do not ignore the rules that there are. You can deal with things without getting egotistical about yourself. You are the one that does whatever you like, talks whatever you like, does whatever you like, carries on whatever you like. No, no, no, you can be a very good person.

87․You can have a very good life by actually just focussing on the things that really matter, which are not breaking rules, which are not being disrespectful to people, but which are doing things that will ultimately make you feel better, will ultimately not lead you back into custody, not lead you back into crime, not lead you back into being basically a nuisance, a pest, a criminal in our community, but someone who can have a life, who can have a career, can have a family and can have a future, and that is where you want to focus.

88․I hope this opportunity is one you will take and will work for you, but there is a long way to go and you need to be really committed to this if it is going to be successful, and if it is not, you will end up back in prison and the same old cycle will continue.

I certify that the preceding [88] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge

Associate: J Liu

Date: