Tasmania v Joseph
[2017] TASSC 23
•27 April 2017
[2017] TASSC 23
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Joseph [2017] TASSC 23
PARTIES: STATE OF TASMANIA
v
JOSEPH, Benjamin Robert
FILE NO: 401/2016
DELIVERED ON: 27 April 2017
DELIVERED AT: Hobart
HEARING DATES: 2 February, 16, 27 March, 3, 6 April 2017
JUDGMENT OF: Brett J
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Other types of order – Drug treatment order – Preconditions to making a drug treatment order.
De Simoni v The Queen (1981) 124 CLR 383; R v Ireland and Burstow [1998] AC 147; R v Chan-Fook [1994] 1 WLR 689, 2 All ER 552; W v M [1996] QCA 328; R v Aubrey [2012] NSWCCA 254; Bartel v State of Tasmania [2016] TASCCA 18; Veen v The Queen (No 2) (1988) 167 CLR 465.
Sentencing Act 1997 (Tas), Pt 3, s 27B.
Aust Dig Criminal Law [3409]
REPRESENTATION:
Counsel:
State: L Pennington
Accused: R Fisher
Solicitors:
State: Director of Public Prosecutions
Accused: Legal Aid Commission of Tasmania
Judgment Number: [2017] TASSC 23
Number of paragraphs: 37
Serial No 23/2017
File No 401/2016
STATE OF TASMANIA v BENJAMIN ROBERT JOSEPH
REASONS FOR JUDGMENT BRETT J
27 April 2017
Mr Joseph has pleaded guilty to one count of armed robbery. The crime was committed on 19 October 2016, when Mr Joseph entered a pharmacy, produced a knife, threatened staff and stole drugs.
During the course of sentencing proceedings, as a result of an order made by me pursuant to s 27D of the Sentencing Act 1997 ("the Act"), a drug treatment order assessment report was prepared in respect of the defendant. The report assessed the defendant as "suitable and eligible" for a drug treatment order. Recent amendments to the Act have extended the power to make such an order to the Supreme Court and the Court of Criminal Appeal. (See amendment to definition of "court" in s 27A, effected by No 48 of 2016).
A drug treatment order is one of a number of sentencing orders available to a sentencing court pursuant to s 7 of the Act. It is made as a sentence upon a finding or plea of guilty. The power of the court to utilise this sentencing option is prescribed by s 27B of the Act. That section contains a number of criteria which confine the power of the court to make a drug treatment order. It is useful to set out the section in full:
"(1) A court may make a drug treatment order in respect of an offender if —
(a) it finds the offender guilty of one or more imprisonable offences other than —
(i)sexual offences; or
(ii)offences involving the infliction of actual bodily harm that, in the court's opinion, was not minor harm; and
(b) it is satisfied on the balance of probabilities that –
(i)the offender has a demonstrable history of illicit drug use; and
(ii)illicit drug use contributed to the commission of the imprisonable offence or offences; and
(c) it considers that, were it not making the drug treatment order —
(i)it would have sentenced the offender to a term of imprisonment; and
(ii)it would not have suspended the sentence, either in whole or in part; and
(d) it has received and considered a drug treatment order assessment report on the offender; and
(e) the offender is not subject to —
(i)…
(ii)a parole order under the Corrections Act 1997; or
(iii)another drug treatment order; and
(f) no proceedings are pending against the offender, in any court, for —
(i)sexual offences; or
(ii)offences involving the infliction of actual bodily harm.
(2) The court may make the drug treatment order regardless of whether —
(a) the offender's illicit drug use contributed to the offender breaching, on one or more previous occasions, a sentencing order or bail conditions; or
(b) the offender has been previously sentenced to one or more terms of imprisonment.
(3) However, the court must not make the drug treatment order unless –
(a) it is satisfied in all the circumstances that it is appropriate to do so; and
(b) it is satisfied that the facilities likely to be used for the treatment and supervision part of the order are reasonably accessible to the offender; and
(ba) it is satisfied that —
(i)there are sufficient staff, in respect of a facility that is likely to be used for the treatment and supervision part of the order, to be able to provide the treatment and supervision; and
(ii)there will be sufficient staff and resources to enable treatment and supervision of the offender to be provided when he or she is not being treated in the facility; and
(c) the offender agrees in writing to the making of the order and to comply with the treatment and supervision part of the order."
Many of the criteria contained in this section are satisfied, or do not operate to preclude a drug treatment order in this case. In particular:
(a)The defendant has a demonstrable history of illicit drug use and that drug use has contributed to the commission of this crime.
(b)If I do not make a drug treatment order, the defendant will be sentenced to a term of imprisonment and I will not suspend that sentence either in whole or in part.
(c)I have received and considered a drug treatment order assessment report.
(d)The defendant is not subject to a parole order or another drug treatment order.
(e)No proceedings are pending against the defendant in any court for sexual offences, or offences involving the infliction of actual bodily harm.
However, there are two provisions which require consideration. They are:
(a)s 27B(1)(a)(ii), which, in effect, precludes an order being made in respect of an offence which involves the infliction of actual bodily harm that, in the court's opinion, was not minor harm; and
(b)s 27B(3) which provides that a court must not make a drug treatment order unless "it is satisfied in all the circumstances that it is appropriate to do so".
I will consider each in turn.
An offence involving the infliction of actual bodily harm
Section 27B(1)(a)(ii) provides that an order may only be made if the court:
"(a) … finds the offender guilty of one or more imprisonable offences other than —
(ii) offences involving the infliction of actual bodily harm that, in the court's opinion, was not minor harm …".
The effect of this provision is that the Court has no power to make a drug treatment order in circumstances in which the imprisonable offence of which the offender has been found guilty involves "the infliction of actual bodily harm that, in the court's opinion, was not minor harm".
There is no suggestion in this case that any person suffered physical injury as a result of the commission of the crime. However, there is evidence that a staff member who was approached and threatened by the defendant during the robbery, has suffered psychological injury, in particular post-traumatic stress disorder. An issue arises as to whether this circumstance precludes a drug treatment order having regard to the provisions of s 27B(1)(a)(ii).
The first question in this regard is whether the reference to "offences involving the infliction of actual bodily harm" is intended to be restricted to those offences which have, as a legal element, the infliction of actual bodily harm or, alternatively, whether the provision will preclude an order in respect of any offence which involved, as a matter of fact, the infliction of such harm. The former interpretation arises as a possibility from the observation that the other category of offence precluded from a drug treatment order is described merely as "sexual offences". A "sexual offence" is defined by s 27A by reference to specific crimes and offences prescribed by various sections of the Criminal Code and the Police Offences Act 1935. Hence, the term "sexual offences" is a generic reference which depends upon the legal category of the offence of which the offender has been convicted and is not determined by reference only to the circumstances of the particular crime committed by the offender.
However, the formulation of the category of preclusion contained in s 27B(1)(a)(ii) would suggest that the definition is not intended to be a generic reference to offences by reference to their legal elements. This would seem to be the case for the following reasons. Firstly, it would have been a simple matter to define such offences by reference to a statutory definition, referring to the specific sections creating the relevant offences, as in the case of sexual offences, if it was intended that the formulation operate in this way. Secondly, such a formulation would exclude many crimes of violence which do not necessarily include the infliction of actual bodily harm as an element of the offence, although such harm may be an actual consequence of the offence. A clear example is assault. Thirdly, the reference to "infliction of actual bodily harm" is not a formulation which is typical of the inclusion of bodily harm as an element of an offence. Most such offences use a formulation which includes as an element the causation of bodily harm rather than its infliction. As I will discuss shortly, there may be little practical difference between these formulations, but the use of the different word does not support the proposition that the offence is identified by reference to its elements rather than the actual circumstances of the crime. Finally, the formulation itself requires the court to form an opinion as to whether the actual bodily harm inflicted "was not minor harm". This must clearly be a reference to the actual circumstances of the particular offence committed by the defendant. It is not an assessment which is capable of being made solely by reference to the generic elements of an offence.
Of course, the elements of a crime may be relevant to the enquiry in a particular way. As I will discuss shortly, the principles arising from the decision of De Simoni v The Queen (1981) 124 CLR 383 may artificially restrict the circumstances to which the court can have regard for the purpose of sentencing, if those circumstances constitute an element of a different, uncharged offence. However, subject to this qualification, whether s 27B(1)(a)(ii) will apply will require a determination as a matter of fact as to whether, in the particular circumstances of the case, the offence involved the infliction of actual bodily harm which is not minor harm, irrespective of the legal elements of the offence.
The relevant circumstances of this case are as follows. The defendant entered the pharmacy at approximately 10am. He walked to the drug dispensary counter where the employee in question was serving other customers. He waited in line behind another customer. When he was served, he spoke to the employee, who could not initially hear him. He leaned in and repeated his comment, which was to the effect, "Give me what I want, what I asked for, morphine". He then showed the employee the folding pocket knife. He walked behind the counter and stood at the back of the employee. The employee said to another staff member, "He's got a knife". The staff members and the defendant then walked to the rear of the dispensary. The defendant told the staff members not to activate the alarm, "or there will be trouble". The defendant was given some drugs, and asked for more. He continued to tell the staff members not to activate the alarm, with words to the effect of, "If I hear an alarm, someone will get hurt." He repeated this threat more than once. He then left the store. As he left, he told the staff members that he would come back if an alarm was activated. The clear inference was that he would come back to carry out his threat to harm them, presumably by use of the knife.
In a victim impact statement, the staff member concerned indicates that she feared for her safety during the course of these events. She was personally threatened with the knife and was terrified that the defendant would use it. She says that she did not think she "would get out of there". Since the robbery, she has suffered panic attacks and has not been able to return to work. She was not able to go in to the pharmacy to hand in her medical certificate. She has been diagnosed with post-traumatic stress disorder and has continued to have flashbacks and difficulty sleeping. Her partner spends 24 hours a day with her as she is too scared to be alone, and this is despite previously being an independent person.
The diagnosis of post-traumatic stress disorder is confirmed in a report from the clinical psychologist to whom the employee was referred for treatment. The report concludes that the employee meets the criteria for such a diagnosis, as described in the American Psychiatric Association (APA:13) Diagnostic and Statistical Manual of Mental Disorders, 5th ed (DSM V). The report also confirms that the employee has severe ongoing symptoms associated with this diagnosis, including depressed mood, changes in concentration and cognition, avoidance of triggers, hyperarousal symptoms including panic attacks and sleep disturbance, and ongoing intrusive memories and nightmares. She continues to require ongoing medical and psychological treatment.
The term "bodily harm" is not defined in Tasmanian legislation including the Code, the Act or the Police Offences Act. Despite this, it is a concept regularly referred to as an element of various crimes and offences. For example, the crime of aggravated robbery occurs when a person commits a robbery and "causes bodily harm to any person immediately before, at, or immediately after the time of committing that robbery". The definition of "bodily harm" which is consistently applied in Tasmania, is derived from McCallum [1969] Tas SR 73 at 88 per Burbury CJ as follows:
"Bodily harm includes any hurt or injury calculated to interfere with health or comfort. It need not been permanent and must be more than transient or trifling."
This definition is consistent with the statutory definition of the more serious concept of "grievous bodily harm" which is set out in s 1 of the Code as follows:
"Any bodily injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause serious injury to health."
As far as I can determine, the question of whether or not psychiatric injury is included within the concept of "bodily harm" or "grievous bodily harm" has not yet been considered in Tasmania. However, it has been accepted in other jurisdictions of Australia and in England that psychiatric injury can amount to bodily harm. See R v Ireland and Burstow [1998] AC 147; R v Chan-Fook [1994] 1 WLR 689, 2 All ER 552; W v M [1996] QCA 328; R v Aubrey [2012] NSWCCA 254. These cases have all considered that question in the context of statutory criminal offences which involve the infliction or causation of bodily harm or grievous bodily harm. In Chan-Fook, the English Court of Appeal considered that question in the context of a charge of assault occasioning actual bodily harm contrary to s 47 of the Offences Against the Person Act 1861 (UK). In its joint judgment, the court said:
"Accordingly the phrase 'actual bodily harm' is capable of including psychiatric injury. But it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition. The phrase 'state of mind' is not a scientific one and should be avoided in considering whether or not a psychiatric injury has been caused; its use is likely to create in the minds of the jury the impression that something which is not more than a strong emotion, such as extreme fear or panic, can amount to actual bodily harm. It cannot."
This passage was cited with approval by the House of Lords in Ireland and the Queensland Court of Appeal in W v M. In Ireland, Lord Styne, with whom the other members of the court agreed, said at 159:
"For these reasons I would, therefore, reject the challenge to the correctness of Reg v Chan-Fook [1994] 1 WLR 689. In my view the ruling in that case was based on principled and cogent reasoning and it marked a sound and essential clarification of the law. I would hold that 'bodily harm' in sections 18, 20 and 47 must be interpreted so as to include recognisable psychiatric illness."
Despite the persuasive authority referred to above, defence counsel argues that a purposive approach to interpretation of s 27B(1)(a)(ii) leads to the conclusion that the reference to "offences involving the infliction of actual bodily harm" relates only to offences in which physical harm has been caused to a person by way of the application of physical force to the body of the victim. Counsel argues that the object of the definition contained in s 27B(1)(a) is to exclude offences which, by their nature, would suggest that the offender is not likely to be an appropriate vehicle for the rehabilitative purpose of a drug treatment order, and in respect of the sub-paragraph, this means a person who has attacked and caused physical harm to another.
I reject this submission. The asserted purpose of the exclusion of offences in s 27B(1)(a) seems to me to be most unlikely. A more cogent purpose is the exclusion of certain serious matters from the leniency associated with this sentencing option, as a matter of policy. This purpose is consistent with the comments of the then Minister for Justice and Workplace Relations in the second reading speech which related to the amendments which, in 2007, inserted Pt 3A into the Act. In response to a question from the Opposition inquiring as to the reasons for the non-availability of drug treatment orders for "those guilty of a sexual offence or one where actual bodily harm is occasioned", the Minister said:
"One of the members opposite talked about why sexual offences and serious bodily harm were excluded. Basically it was that most of these will be indictable offences heard in any case by the Supreme Court and not in the Magistrates Court. Sexual offences and serious violent offenders exhibit specific needs and potentially provide a risk to treatment providers. There is also a need for protection of the community.
The drug treatment order is an alternative to imprisonment. Persons who commit such offences potentially pose a risk to the community and should serve the term of imprisonment imposed. Research of the Department of Justice statistics shows that the majority of drug-related offences fall principally into the categories of property offences and possession and use, so it is those minor offences that this is dealing with. There is plenty of discretion for the magistrates in this State to utilise this new legislation to assist them in not having offenders reappearing in their court time and time again. They are participating in a process which is not only a hands-on approach but also an educative process for themselves and the general community as well."
Further, irrespective of the policy behind the unavailability of a drug treatment order as a sentencing option for such offences, there does not seem to be any logical reason to distinguish, for the purposes of this provision, between cases where the injury inflicted is psychological rather than physical. Both involve significant personal harm to a victim of the crime, and such harm will invariably have been inflicted by serious violence, albeit that it may be threatened or indirect. This case is a good example, and sits comfortably with the notion of "an offence involving the infliction of actual bodily harm". The defendant held a knife up to the employee and made serious threats to directly harm her with it if she did not follow his instructions. The defendant's purpose and intention was to cause such fear that any resistance from her or other staff members would be overcome. In those circumstances, the causation of psychological harm and development of psychiatric injury was likely. The injury is as serious and debilitating as physical injury. There is no valid reason, as a matter of policy or interpretation to distinguish between psychiatric and physical injury for the purposes of this provision. As I said in the case of Bartel v State of Tasmania [2016] TASCCA 18:
"Armed robbery is a crime against people, notwithstanding that it also involves property. By definition, it involved threatened or actual violence. The threat and trauma to which victims are exposed, more often than not, result in devastating long-term consequences, irrespective of the use or extent of actual physical violence."
The final issue which arises is whether the principles expressed in Di Simoni v The Queen preclude me from having regard in the determination of sentence, to the infliction of actual bodily harm by the defendant. The principle in Di Simoni, as applied in Tasmania, is that a person may only be punished for the offence of which he is convicted, without regard to circumstances which are ingredients of a different offence but for which he has not been charged or found guilty. In this case, the defendant has pleaded guilty to armed robbery contrary to s 240(3) of the Code, the elements of which are that he has committed a robbery and was armed with a dangerous or offensive weapon at the time. The commission of a robbery involves using or threatening to use violence. However, if a person commits a robbery and causes bodily harm to any person immediately before, at or immediately after the time of committing that robbery, the crime committed is aggravated robbery, and if the person is armed with a dangerous or offensive weapon at the time, he will be guilty of the separate crime of aggravated armed robbery. Accordingly, the circumstance of causing bodily harm immediately before, at or immediately after the time of committing an armed robbery would be a circumstance which would be an ingredient of a more serious offence, namely aggravated armed robbery.
For these purposes, I do not think that there is any material difference between "inflicting" actual bodily harm and "causing" such harm. In R v Ireland, it was held by the House of Lords that a person may be properly convicted of maliciously inflicting grievous bodily harm, where the harm inflicted was psychiatric injury, and the means by which the harm was inflicted did not involve the direct or indirect application of force to the body. This conclusion was approved by the New South Wales Court of Criminal Appeal in R v Aubrey. In the circumstances of this case, the infliction of actual bodily harm on the employee, the harm being constituted by psychological injury, is conceptually indistinguishable from that harm being caused by the defendant "immediately before at or immediately after the time of committing that robbery".
Ms Pennington, for the State, submits that the principles arising from Di Simoni do not apply to the application of the exclusions in s 27B(1)(a), because that is not a matter directly involved in the assessment of sentence. I disagree. A drug treatment order, as has already been noted, is a sentencing order available pursuant to the provisions of s 7 of the Act. The availability of that sentencing order is restricted by application of the provisions of s 27B, but an assessment of the applicability of those provisions in the circumstances, still involves a factual determination for the purpose of imposing sentence. To take account of a circumstance which would limit the capacity of the court to impose a sentencing option, which may be seen as a more lenient alternative to imprisonment, when that circumstance would form an element of a different crime of which the defendant has not been convicted, would amount to a direct contravention of the principles expressed in Di Simoni. I conclude, therefore, that I cannot, in the determination of sentence, have regard to the fact that the actions of the defendant in the robbery caused or inflicted actual bodily harm on the employee.
This, of course, does not mean that I should ignore the actual impact of the crime on the victim. It does mean, however, that I cannot regard the development of a psychiatric illness as the infliction of actual bodily harm. For this reason, and this reason only, I conclude that I am not precluded from making a drug treatment order in this case because of the provisions of s 27B(1)(a)(ii).
Is it appropriate in all the circumstances to make a drug treatment order?
Section 27B(3)(a) provides as follows:
"(3) However, the court must not make the drug treatment order unless —
(a) it is satisfied in all the circumstances that it is appropriate to do so; …".
This provision is mandatory in its operation (see the Acts Interpretation Act 1931, s 10A). Accordingly, unless the court is satisfied that it is in all the circumstances appropriate to make a drug treatment order, it must not do so.
To determine whether it is appropriate to impose such an order, it is necessary to consider whether the order, as a sentence, will appropriately respond to the various sentencing considerations relevant in the circumstances of the particular case. The variety and potential conflict between the aims of sentencing applicable in a particular case were recognised by the High Court in Veen v The Queen (No 2) (1988) 167 CLR 465 at 476:
"However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."
A drug treatment order is a sentencing option which places emphasis on the rehabilitation of the offender. It is not without punitive effect because it will require, on the part of the offender, onerous application to the program put in place by the order, and carries with it the potential for activation of the custodial component of the order in the event of default. However, it is still an alternative to imprisonment, where imprisonment would otherwise be the outcome. If a drug treatment order is made, the court is making a choice to place emphasis on rehabilitation as the primary sentencing aim in preference to other sentencing objectives such as general deterrence and retribution. It may be argued that general deterrence is given effect by the custodial component of the order, and the onerous requirements of the treatment and supervision part of the order, and, further, that specific deterrence is also achieved by the custodial component of the order. It might also be argued that a person who otherwise meets the criteria for the making of a drug treatment order, with the appropriate commitment and expectation of success of that order, is not an appropriate vehicle for general deterrence. However, the primary focus of the order is rehabilitation, and, as it is a more lenient sentencing order than imprisonment, other punitive aims such as general deterrence are necessarily given less emphasis.
The objective seriousness of the crime will affect the relative emphasis placed on competing considerations in the process of determining sentence. Until recent amendments extended the power to make a drug treatment order to the Supreme Court, such an order could only be made in respect of offences dealt with in the summary jurisdiction. This placed an inflexible limit on the seriousness of offences in respect of which a drug treatment order could be made. The use of such orders only in respect of less serious offences is consistent with the aims expressed in the extract from the second reading speech relating to the 2007 amendments referred to above.
With the extension of this sentencing option to cases dealt with by the Supreme Court, there is no express statutory restriction on when an order can be made, by reference to the objective seriousness of the crime, apart from the pre-existing provisions of s 27B(1). Notwithstanding this, as already discussed, in order to be satisfied that a drug treatment order is appropriate in all of the circumstances, the court will need to be satisfied that the order will properly respond to the various aims of sentencing appropriate to the case. The result, in some cases, may be that, having regard to the seriousness of the crime, the court cannot be satisfied that a drug treatment order is appropriate.
Further, the structure and interaction of various provisions of Pt 3 suggest that, notwithstanding the extension of the power to make a drug treatment order to the Supreme Court, it is still the case that an order may not be appropriate in more serious cases. By s 27R if an order is not cancelled under one or the other of various provisions providing for cancellation within a period of two years immediately following the making of the order, then a magistrate must conduct a review to determine whether it should continue to operate. However, in an unusually worded provision, it would seem that having conducted the review, the only option available to either the Supreme or Magistrates Court is to cancel the treatment and supervision part of the order and exercise the courts' powers under s 27Q(2). This effectively requires the court to either activate some or all of the custodial part of the order, or resentence the offender in a manner other than the imposition of a sentence of imprisonment. The intention would seem to be to bring the order to an end.
Under s 27L, a court may cancel a drug treatment order as a reward if the offender has been fully or substantially compliant with the conditions of the order, the continuation of the order is no longer necessary to meet the purposes for which it has been made, and the period of imprisonment that the offender would have had to serve if the order been fully activated at the time of sentencing has expired. This is known as a cancellation reward. It is clearly intended to permit the offender to be relieved of the custodial part of the order in circumstances where the order has achieved its purposes in respect of the offender's rehabilitation.
The interplay of these provisions means that if the order has not been cancelled by way of a cancellation reward within the two-year period, then the court must deal with the order in the manner provided in s 27R. A cancellation reward is, therefore, only available within a period of two years after the making of the order, and, by definition, can only apply if the period of imprisonment imposed, pursuant to the custodial part of the order, has expired. This suggests that it would, in most circumstances, be inappropriate to make a drug treatment order if the custodial component will exceed two years.
Having regard to all of the circumstances of this case, I am not satisfied that it is appropriate to make a drug treatment order. This was a serious case of armed robbery. It was committed against vulnerable premises, a weapon was used to threaten staff, and specific threats were repeatedly made which implied that staff members would be personally harmed if the defendant perceived that an alarm had been activated. There was significant potential for serious harm to staff and public in the store at the time, and at least one person has been subject to a significant and ongoing impact as a result of the crime. In my view, the objective seriousness of the crime and the consequent need for denunciation, and an emphasis on general deterrence outweighs the desirability of the rehabilitation which might be achieved through the specific use of a drug treatment order. Further, as I will indicate in separate sentencing comments, the length of the head sentence appropriate to this case suggests that a drug treatment order is not an appropriate sentencing option. Of course, a choice to impose a sentence of imprisonment and not make a drug treatment order does not mean that the need for and prospects of rehabilitation of the defendant are not important considerations in the determination of sentence. The correctional system is quite capable of responding to any commitment by the defendant towards rehabilitation by supplying appropriate programs whilst in prison and, further, rehabilitative options in the community can be advanced through parole. A sentence which takes account of rehabilitation by making appropriate provision for parole provides the appropriate sentencing mix in this case.
Because I am not satisfied that it is appropriate to make a drug treatment order, I am unable to make that order having regard to the provisions of s 27B(3)(a). In any event, I would decline to do so because it is not, in the circumstances of this case, an appropriate sentencing option.
I will deliver my sentencing comments separately, but they should, of course, be read in conjunction with these reasons.
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