Appellant v First Respondent

1 This is an appeal on a question of law under s 272 of the Criminal Procedure Act 2009 (Vic) ('Criminal Procedure Act') from orders made by the Magistrates' Court on 15 December 2020 pursuant to s 18ZP of the Sentencing Act 1991 (Vic) ('Sentencing Act') cancelling the treatment and supervision part of the Drug Treatment Order ('DTO') imposed on the appellant, Mr Makrogiannis, on 6 October 2020, and activating all of the custodial part of the DTO, with the appellant ordered to serve 193 days imprisonment.[1]

2 The first respondent, the Magistrates' Court of Victoria, did not take an active role in the proceedings and will abide by the decision of the Court in accordance with the principles in R v Australian Broadcasting Tribunal, ex parte Hardiman.[2] The second respondent, Winnie Sarpong, was the appellant's Case Manager on behalf of Community Correctional Services Victoria.

3 In his amended notice of appeal filed on 2 February 2021, the appellant identifies the following questions of law arising from the Magistrates' Court order made on 15 December 2020:

(a) Did the Magistrate deny the appellant procedural fairness by making the orders before completion of the appellant's evidence and submissions? ('the first question').

(b) Did the Magistrate fail to apply, or incorrectly apply, the test in s 18ZP(1)(d) of the Sentencing Act by cancelling the treatment and supervision part of the DTO upon being satisfied that the appellant had interfered with urine testing? ('the second question').

4 The issues raised in this appeal require a close examination of Sub-division (1C) of Division 2 of Part 3 of the Sentencing Act ('Sub-division 1C') which sets out the DTO regime.

5 Sub-division 1C was inserted into the Sentencing Act by the Sentencing (Amendment) Act 2002 (Vic). That amendment Act also provided for the establishment of the Drug Court Division of the Magistrates' Court of Victoria ('the Drug Court') by inserting s 4A into the Magistrates' Court Act 1989 (Vic) ('Magistrates' Court Act').

6 The juridical treatment of drug addiction has traditionally adopted a punitive and carceral approach to what is 'a complex human, and social problem, [with] many ramifications for society.'[3] The law has traditionally attributed free will to a drug addicted person when they commit a crime with the original decision to begin drug use viewed as voluntary and no mitigation attaching to the person's moral culpability for the crime.[4] Yet this somewhat myopic attitude to the free will of offenders experiencing drug addiction fails to appreciate that addiction is frequently the product of a complex interplay of economic disadvantage, familial dysfunction, poor or missed educational opportunities, sexual or other forms of abuse, and other social or psychosocial issues. As Justice Simpson stated in R v Henry:

I do not accept that most drug offenders are truly exercising free will when they choose the degradation, despair, criminality and cycle of imprisonment that can follow the initial use of illegal drugs. The circumstances that propel the offender to the use of drugs are often, if not usually, beyond his or her control. They may or may not be combined with a vulnerable personality or even a weakness of character. Many drug offenders have not had the life experiences or the normal developmental path that permit a conclusion that the decision to take drugs was a decision made in the exercise of a free choice in the sense in which that phrase is ordinarily understood.[5]

7 Thus, the creation of the Drug Court and the introduction of the DTO regime in many ways represented the crest of a paradigmatic shift in the traditional judicial approach to drug addiction in Victoria.

8 In the second reading speech of the Sentencing (Amendment) Bill 2001 (Vic) the Attorney-General, the Hon Rob Hulls MP, explained that, due to the unique impact of drug use on the community, it was necessary to present and implement innovative policy responses to drug addiction, stating:

The drug issue is not simply a criminal justice issue. It is a community issue. Together, the government and the community must be prepared to experiment with innovative and modern approaches to help these offenders reduce their drug use and offending. The drug court represents a fundamental shift in the way in which we deal with drug offenders. This initiative seeks to protect the community by focusing on the rehabilitation of offenders from drug addiction and drug-related crime, with the ultimate goal of bringing stability to offenders' chaotic lifestyles and reintegrating them into the community.

The government does not pretend that the Drug Court is the answer to Victoria's drug problems. Rather, it is one element of the government's comprehensive drug strategy, which spans the areas of prevention, treatment and rehabilitation, saving lives and law enforcement.[6]

9 The Attorney-General went on to explain that, rather than being merely a new addition to the judicial and administrative hierarchy enforcing drug laws in Victoria, 'the drug court is a fundamentally new way of approaching and dealing with offenders who commit crimes to feed a drug addiction'.[7] In this context, a key feature of the Drug Court is the role of the Magistrate who has responsibility for the supervision of offenders placed on the program. As the Attorney-General explained:

This means that rather than simply sentencing an offender, magistrates will have a role in monitoring the offender's progress on the drug court program, and encouraging their compliance with the program. Magistrates assigned to the drug court will receive training to develop and enhance their understanding of the nature of drug and alcohol dependency, treatment options, and offender motivation.[8]

10 A multidisciplinary team including a case manager, clinician, special community officers, dedicated police prosecutor and defence lawyer assist the Magistrate in performing this enormously complex and challenging role.[9]

11 Under, s 7(1) of the Sentencing Act - which sets out the sentences which can be imposed by a Court - a Court, upon finding a person guilty of an offence may, subject to any specific provision relating to the offence and subject to the Sentencing Act, record a conviction and make a drug treatment order in respect of the offender.[10] However, pursuant to s 18Y only the Drug Court may make a DTO.

12 Section 18X sets out the purposes of a DTO, providing:

(1) The particular purposes of a drug treatment order are -

(a) to facilitate the rehabilitation of the offender by providing a judicially-supervised, therapeutically-oriented, integrated drug or alcohol treatment and supervision regime;

(b) to take account of an offender's drug or alcohol dependency;

(c) to reduce the level of criminal activity associated with drug or alcohol dependency;

(d) to reduce the offender's health risks associated with drug or alcohol dependency.

(2) Nothing in subsection (1) affects the operation of section 5(1) but, if considering making a drug treatment order, the Drug Court must regard the rehabilitation of the offender and the protection of the community from the offender (achieved through the offender's rehabilitation) as having greater importance than the other purposes set out in section 5(1).

13 A distinct aspect of s 18X(2), as highlighted by the second respondent, is that if considering making a DTO, the Drug Court must prioritise the rehabilitation of the participant and the protection of the community from the participant through rehabilitation to a greater degree than the ordinary sentencing considerations of punishment, deterrence and denunciation provided in s 5(1).

14 Section 18Z sets out the circumstances in which the Drug Court may make a DTO. Among other requirements,[11] the Drug Court may only make a DTO where:

(a) an offender pleads guilty and is convicted of an offence punishable by imprisonment; and

(b) the Drug Court considers a non-suspended sentence of imprisonment would otherwise be appropriate and is satisfied that the offender is dependent on drug or alcohol and their dependency contributed to the commission of the offence.[12]

Furthermore, the Drug Court must not make a DTO unless satisfied in all the circumstances that it is appropriate to do so and the offender agrees in writing to the making of the order and to comply with the treatment and supervision part of the order.[13] A DTO cannot be made in relation to a sexual offence or certain violent offences.[14]

15 A DTO consists of two parts - a 'treatment and supervision part' and a 'custodial part'.[15]

16 The treatment and supervision part of a DTO consists of the core conditions and program conditions attached to the order and operates for two years or until that part of the order is cancelled.[16] The core conditions of a DTO are set out in s 18ZF(1) and include reporting requirements and restrictions on movement. The available program conditions are set out in s 18ZG(1) and include requirements to submit to drug or alcohol testing or medical, psychiatric or psychological treatment as well as restrictions on movement and association with specified persons. Under s 18ZG(2) the Drug Court must attach at least one program condition to a DTO but must not attach any more than it considers necessary to achieve the purposes for which the order is made.

17 While the treatment and supervision part of a DTO has a rehabilitative rather than punitive purpose, the core and program conditions of a DTO themselves involve restrictions on an offender's freedom and the imposition of a range of positive obligations, reflecting the onerous nature of being subject to a DTO.

18 The custodial part of a DTO consists of the sentence of imprisonment which the Drug Court must impose on the offender under s 18ZD.[17] The custodial part must be the sentence of imprisonment which the Drug Court would have imposed if it had not made the DTO.[18] An offender is not to serve the custodial part of a DTO, and that part of the order does not commence, except in accordance with an order under Subdivision 1C activating that part of the order.[19]

19 Subdivision 1C makes provision for the Drug Court to hold case conferences for the purpose of being informed about the progress being made by an offender subject to a DTO.[20] A case conference may be attended by a lawyer, a prosecutor, a health service provider, a community corrections officer or anyone else whom the Magistrate thinks should attend.[21] Sub-division 1C also makes provision for the Drug Court to vary the treatment and supervision part of a DTO based on its assessment of the offender's progress[22] and to confer rewards on offenders for complying with the conditions attached to a DTO.[23] The available rewards include cancellation of both the treatment and supervision part and custodial part of a DTO, where the Drug Court considers the offender has fully or substantially complied with the conditions attached to the order and the continuation of the order is no longer necessary to meet the purposes for which it was made.[24]

20 Subdivision 1C also 'establishes a hierarchy of internal sanctions on which the drug court may draw if it considers that variation is not a sufficient response to non-compliant behaviour'.[25] These sanctions 'are intended to provide the drug court with a range of flexible responses to episodes of non-compliance which fall short of warranting cancellation of the program'.[26] In doing so, it creates 'a harm-minimisation approach ... recognis[ing] that recovery from drug addiction takes time and is likely to involve relapse'.[27]

21 Section 18ZL deals with failures to comply with conditions imposed by a DTO, providing for a cascade of penalties arising out of a breach or breaches, ranging from confirmation of the treatment and supervision part of the order to activation of the custodial part of the order for between one and seven days. Other available penalties include variation of the DTO, the imposition of curfews, and orders for unpaid community service.

22 Section 18ZM deals with orders requiring service of a period of imprisonment in a secure custody facility under s 18ZL(1)(f). Pursuant to s 18ZM, the Drug Court may only make an order under s 18ZL(1)(f) if it is satisfied beyond reasonable doubt that the offender has failed to comply with the condition attached to the DTO.

23 The penalties provided for in s 18ZL are of a punitive nature. However, ultimately their purpose is to assist in achieving the rehabilitative object of the DTO.

24 Section 18ZN provides that where the Drug Court is satisfied beyond reasonable doubt that an offender has failed to comply with a condition attached to a DTO by committing an offence punishable by imprisonment of more than 12 months, the Court may take any of the actions under s 18ZL(1) or cancel the treatment and supervision part of the order.[28]

25 Centrally to the present appeal, s 18ZP deals with cancellation, providing:

(1) The Drug Court may cancel the treatment and supervision part of a drug treatment order if it is satisfied on the balance of probabilities that -

(a) before the order was made, the offender's circumstances were not accurately presented to either the Drug Court or the author of the drug treatment order assessment report of the offender; or

(b) the offender will not be able to comply with a condition attached to the order because the circumstances of the offender have materially changed since the order was made; or

(c) the offender is no longer willing to comply with one or more conditions attached to the order; or

(d) the continuation of the treatment and supervision part of the order is not likely to achieve one or more of the purposes for which the order was made; or

(e) the offender has breached an order under subsection 18ZL(1)(c), (d) or (e).

(2) When cancelling the treatment and supervision part of the order under subsection (1), the Drug Court must, after taking into account the extent to which the offender complied with that part of the order, take one of the following actions -

(a) make an order activating some or all of the custodial part of the drug treatment order;

(b) cancel the custodial part of the drug treatment order and deal with the offender for each offence in respect of which the drug treatment order was made in any way in which the Drug Court could deal with the offender if it had just convicted him or her of each offence, other than by making an order under section 7(1)(a).

(3) The Drug Court may take an action under subsection (1) or (2) on its own initiative or on the application of -

(a) the offender; or

(b) the informant or police prosecutor; or

(c) a prescribed person or a person in a prescribed class of persons.

(4) Before the Drug Court cancels the treatment and supervision part of a drug treatment order (whether or not it also cancels the custodial part), notice of the hearing concerning the cancellation must be given to -

(a) the offender; and

(b) the informant or police prosecutor; and

(c) the prescribed person or the person in the prescribed class of persons -

and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing.

(4A) If notice of the hearing concerning the cancellation of the treatment and supervision part of a drug treatment order -

(a) has been given to the offender or has been, to the satisfaction of the Drug Court, attempted to be given to the offender but the attempt is not successful; and

(b) the offender does not attend for the hearing -

then the treatment and supervision part of the drug treatment order is suspended and the period between the failure to attend the hearing and the day on which the offender does attend the Drug Court does not count in calculating the period for which that part of the order operates.

(5) To avoid doubt, if the Drug Court cancels the treatment and supervision part or custodial part of a drug treatment order under this section, any earlier orders activating the custodial part of the order cease to have effect.

26 Section 18ZE sets out how much of the custodial part of a DTO can be activated, relevantly providing:

(1) Despite anything to the contrary in this Act, an offender is not to serve the custodial part of a drug treatment order, and that part of the order does not commence, except in accordance with an order under this Subdivision activating that part of the order.

(2) In making an order under this Subdivision activating some or all of the custodial part of a drug treatment order, the Drug Court must first -

(a) calculate the remaining length of the custodial part of the order by subtracting from the length of the sentence of imprisonment imposed under the order -

(i) each period of custody declared under this Act as reckoned to be a period already served under the sentence; and

(ii) each period of custody served in a secure custody facility under the custodial part of the order because of an order under section 18ZL(1)(f); and

(i) the remaining length of the custodial part of the order; and

(ii) the period during which the treatment and supervision part of the order has already operated -

is more than 2 years, reduce the remaining length of the custodial part so that the total is 2 years.

27 As the Attorney-General observed at the conclusion of his second reading of the Sentencing (Amendment) Bill 2001, characterisations of the DTO regime as 'soft' are inapposite.[29] While the treatment and supervision part of a DTO does not have a punitive object, Subdivision 1C provides for an extremely onerous and intensive program for an offender's rehabilitation which includes restrictions upon the individual's freedom and the imposition of a range of positive obligations.

28 On 6 October 2020, the appellant was sentenced by the Drug Court to a DTO under the Sentencing Act.[30] The appellant's DTO consisted of:

(a) a treatment and supervision part imposed for a period of 2 years; and

(b) a custodial part under which the appellant was sentenced to a term of 9 months imprisonment.

29 One of the program conditions attached to the treatment and supervision part of the appellant's DTO was that the appellant submit for drug testing as directed.[31] On 23 November 2020, the appellant provided a urine sample supervised by Dominic Nazareno of Dorevitch Pathology. Following that, Mr Nazareno recorded on the chain of custody form his concerns that the appellant had interfered with the urine sample, and completed an incident report that can be summarised as follows:[32]

(a) the appellant, while holding the sample cup with his right hand, used his left hand to press what looked like a white valve or stopcock, following which the cup filled with a yellow fluid that was not coming from his penis;

(b) the sample was not warm to touch through the cup; and

(c) the temperature strip adhered to the cup did not record a temperature.

30 On 24 November 2020, the second respondent filed an application in the Drug Court to cancel the DTO on the grounds that the continuation of the treatment and supervision part of the order was not likely to achieve one or more of the purposes for which it was made, pursuant to s 18ZP(1)(d) of the Sentencing Act.[33]

31 The second respondent prepared a report dated 14 December 2020 in support of the application ('the Second Respondent's Report') which concludes that the appellant's 'overall engagement has been unsatisfactory'.[34] The second respondent stated that she had ongoing concerns about the effectiveness of the DTO given that he was breaching the order's conditions. She recommended that the appellant's DTO be cancelled, stating:

As per the Drug Court Framework, if the allegation of tampering with a urine specimen is proven, the cancellation of [the appellant's] DTO is warranted. Likewise, with regards to his overall attitude during appointments, [the appellant] continues to externalise the blame for any issues that arise and has indicated a belief that his Drug Court Team are setting him up to fail. Therefore, given the above information, this Service respectfully recommends that [the appellant's] DTO is cancelled and he be re-sentenced due to his disregard for the Drug Court requirements, his poor attitudes, inability to adhere to the proximal goal of honesty and failures to abide by his Order conditions. Most importantly, should the allegations of tampering with a urine specimen be proven, this will indicate [the appellant] has engaged in fraudulent behaviours with the Drug Court.

32 In particular, the second respondent's report outlined the following issues:

(a) the appellant failed to attend two scheduled meetings, giving no acceptable reason;

(b) the appellant's compliance had been satisfactory, however his engagement with the Drug Court team had not been. He often disputed the appropriateness of sanctions and externalised blame for them. He did not engage appropriately in discussions about supports and did not follow advice from his case manager in relation to managing the requirements of the DTO. He had used derogatory language and adopted an aggressive manner towards support staff at times;

(c) the appellant was dishonest and evasive about his employment and living arrangements. As at the date of the report, the second respondent had been unable to confirm the appellant's address;

(d) he had breached his curfew on three known occasions;

(e) on four occasions, he failed to admit illicit substance use prior to urinalysis tests which then returned positive results; and

(f) there were two urinalysis testing incidents. The first occurred on 2 November 2020 when the appellant spilt his urine sample which appeared to be an irregular 'clear light pink colour'. The second incident described above occurred on 23 November 2020.

33 The 'Drug Court Framework' referred to in the second respondent's report is 'The Incentives and Sanctions Framework' of the Drug Court ('the Framework').[35] I will consider the nature and legal effect of the Framework below as it has an important place in the functioning of the Drug Court.

34 Between the time of filing the application to cancel in November 2020 and the hearing on 15 December 2020, a review of the DTO was held in the Drug Court on 3 December 2020.[36] This resulted in the custodial part of the DTO being activated for a period of seven days on the basis of 'incomplete sanction tasks, not attending an appointment with his General Practitioner to relinquish unprescribed medications and poor attitudes'.[37]

35 On 15 December 2020, the application to cancel the DTO proceeded as a contested hearing before a Drug Court Magistrate.[38] Mr Nazareno and the second respondent's respective reports were tendered. Both also gave oral evidence-in-chief and were cross-examined. In summary:

(a) Mr Nazareno's account about the provision of the urine sample was consistent with what he said in the chain of custody form and the incident report; and

(b) the second respondent referred to her report dated 14 December 2020 and her concerns set out therein. Under cross-examination, the second respondent agreed that she had stated in her report that the appellant's compliance with the DTO had been satisfactory.[39] Further, she agreed with the appellant's counsel that if the appellant remained on the order his drug use would continue to be monitored and he would be encouraged through the program of incentives and sanctions to rehabilitate.[40]

36 The appellant's counsel relied on the second respondent's evidence outlined above to submit that the continuation of the DTO would achieve the purposes for which the order was made by taking 'account of [the appellant's] drug-taking, the level of his dependency as well as ongoing attempts to facilitate his rehabilitation'.[41] Further, any finding that he had interfered with the urine sample, should be one of the 'constellation of considerations' that needs to be assessed.[42]

The difficulty that I have is that firstly we've heard evidence today that he is refusing to be fundamentally accountable by disrupting the urine testing process. As of the writing of this report, which was dated yesterday, we still don't know where he lives despite repeated requests. He has been difficult with staff, difficult particularly with the female members of our staff to the point of being aggressive, and I think all of those - aren't I entitled to find that all of those actions suggest he's simply not willing to abide by the conditions of the order? That's where I am going with it.[43]

38 The appellant was then called to give oral evidence during which he said he gave a 'legit sample'[44] on 23 November 2020 and described other measures that he was taking including finding new accommodation, engaging in employment, as well as seeking support from another program through a community organisation.[45] He referred to the seven day custodial sanction, stating, 'I get the message you were sending me. I get it and I want the help'.[46]

39 Once the appellant's counsel confirmed he had no further questions for the appellant,[47] the Magistrate did not call on Corrections Victoria to cross-examine the appellant or invite further submissions from either party. Instead, the Magistrate proceeded to cancel the treatment and supervision part of the appellant's DTO and activate all of the custodial part of the DTO, with the appellant ordered to serve 193 days imprisonment.[48] I have provided the transcript of this exchange below where I will consider it in further detail.

40 The appellant submitted that an application to cancel a DTO under s 18ZP raises two issues for determination:

(a) whether the DTO should be cancelled on the basis that its purposes are not likely to be achieved under s 18ZP(1)(d) ('the first stage'); and

(b) if the answer to (a) is yes, whether all or some of the custodial part of the DTO ought to be activated, or the offender should be otherwise resentenced, under s 18ZP(2) ('the second stage').

41 In this appeal, the appellant submitted that the Magistrate failed to afford him procedural fairness at each of these stages.

42 As to the first stage, the appellant submitted that the Magistrate denied him procedural fairness by determining the application before the appellant was cross-examined and that the appellant's counsel was unable to complete submissions on this issue. It was also submitted that the appellant's evidence-in-chief raised matters relevant to the likelihood of the DTO achieving its purposes. The appellant's evidence of the salutary effect of his recent custodial period is submitted to be as significant as the compliance and behaviour concerns raised by the Magistrate occurred before that period was activated.

43 As to the second stage, the appellant submitted that, upon making the decision to cancel the treatment and supervision part of the DTO, the Magistrate activated the whole of the custodial part of the DTO without hearing any submissions as to the penalty or consequences of cancelling the DTO. It was contended that s 18ZP(2) provides the court with a broad or 'at large' sentencing discretion as to the length of any custodial part to be activated upon cancellation of a DTO. It was submitted that, where a finding enlivens a discretion, procedural fairness compels a Magistrate to afford the opportunity to be heard on the exercise of that discretion, particularly where the decision affects liberty.

44 The appellant submitted that the Magistrate should also have taken into account the appellant's examples of compliance with the DTO.[49]

45 In this case, all of the custodial part of the order was activated without inviting submissions on the penalty, which had the effect that, according to the appellant, '[he] is now serving a sentence that, in all the circumstances, is more severe than that would have been imposed had he not attempted to enter into the DTO.'[50] This does not accord with the principles of parsimony and proportionality which govern the making of the DTO in the first place, where the custodial part can only be the sentence of imprisonment that would have otherwise been imposed.

46 The application was ruled on before any reasonable opportunity arose to make submissions as to penalty. The appellant submitted that it would have been inappropriate, following the ruling, for counsel to continue to make submissions. Further, no waiver of intention to make further submissions can be inferred from counsel allowing his opponent the opportunity to cross-examine a witness.[51]

47 The appellant relied on Pham v Legal Services Commissioner ('Pham')[52] for the proposition that a two-stage process of determining guilt and punishment separately may be required by the circumstances of the case, 'where the allegations against the person are numerous or complex or where there may be multiple bases for finding guilt'.[53] To that end, the appellant submitted:

(a) the proceedings were judicial in nature and the interest affected was liberty;

(b) the factual dispute was relatively complex, in terms of the number of allegations and the relative weight that could be afforded to each finding, particularly where the appellant had previously had a custodial period imposed under s 18ZL(1)(f) for some matters relied on in the application to cancel;

(c) the determination of the penalty was also complicated by the breadth of the discretion available and the need to avoid double-punishment; and

(d) the ultimate result in Pham may be distinguished as there written submissions had been made on the issue of penalty, whereas here, the Magistrate proceeded to rule without inviting any submissions.

48 The appellant does not cavil with the general proposition that procedural fairness is flexible and adapted to the case. However, he submitted that as this matter concerned curial proceedings that imposed a custodial term procedural fairness ought to have been strictly observed.[54]

49 As to the second question of law raised on appeal, the appellant submitted that cancelling a DTO under s 18ZP(1)(d) requires determination of the likelihood of achieving the purposes in s 18X. In making that assessment, regard must be had to the Drug Court regime as a whole. The appellant conceded that an interference with the testing regime is relevant to that issue but submitted that this is not determinative of the statutory test.

50 One of the other grounds for cancellation of a DTO, s 18ZP(1)(e), relates to circumstances where an offender has breached an order under sub-s 18ZL(1)(c), (d) or (e). Those sections provide the Drug Court with the ability to impose orders, such as a curfew, performance of unpaid community work or to remain at a specified place, as penalties for failure to comply with a condition attached to a DTO. It is submitted that the provisions of the Sentencing Act clearly contemplate occasions on which offenders will breach core and program conditions of their DTO, such as the drug testing condition. Furthermore, s 18ZN provides discretion to the Magistrate not to cancel the DTO even where satisfied that an offender has failed to comply with a condition by committing an offence punishable by imprisonment for more than 12 months.

51 The flexibility in the relevant provisions of the Sentencing Act is said to be underpinned by the recognition 'that recovery from drug addiction takes time and is likely to involve relapse,' and that activation of the custodial part for a period of up to seven days can be appropriate, even for 'a serious episode of non-compliance'.[55]

52 Counsel for the appellant referred to the timing of the application to cancel and submitted that it was relevant that the appellant had only been on the DTO for seven weeks, out of a total two year period. The Magistrate did not engage with this question of timing. It is also submitted, , significantly, that the Magistrate did not consider the appellant's evidence of the impact that the recent custodial period had on his attitude towards the order.

53 Further, the appellant submitted the Magistrate impermissibly treated the Framework as requiring cancellation of the appellant's DTO following a finding of interference with the urine test. the appellant relies on the second respondent's report dated 14 December 2020 citing the Framework under the grounds for the application, specifically that 'should a participant attempt to deliberately interfere with urine testing this would be a serious breach of their DTO and will result in the cancellation of the DTO'.[56]

54 Finally, it is submitted that the Magistrate failed to give proper reasons explaining his decision to cancel the appellant's DTO and did not reference the purposes of a DTO. The Magistrate's comments prior to cancelling the DTO demonstrate that a finding as to interference with the urine testing process was determinative. This position is supported by the Magistrate's comment to the appellant that 'when you go into custody you tell everybody in there that we catch you doing this kind of thing, that's the end of their order'.[57]

55 The appellant submitted that the reasons for sentence must clearly identify the Court's route to its conclusion.[58] It was necessary for the Magistrate's reasons to refer to any other matters to which the Magistrate had regard, and to reject the appellant's principal arguments. The following were not evident in the Magistrate's comments:

(a) a consideration of the appellant's evidence about his willingness to engage with the DTO given his recent custodial period. This evidence is critical as most matters relied on in the application to cancel pre-dated that period of imprisonment;

(b) an indication of whether other matters were considered in determining to cancel the DTO or at least balanced to ensure the appellant was not breached twice for the same conduct; and

(c) a consideration of the test under s 18ZP(1)(d) on a prospective basis, as it is submitted that it is not determined solely by a factual finding as to past misbehaviour.

56 In relation to the first question of procedural fairness, the second respondent submitted, citing the Court of Appeal in Roberts v Harkness,[59] that the Magistrate's conduct must be framed in the context of s 1 of the Magistrates' Court Act) and the rules of criminal procedure which, along with requiring fairness to all of the parties, further require the prompt resolution of court proceedings and the optimum use and appropriate allocation of court resources.

57 The second respondent submitted that, taken as a whole, the appellant's counsel was given ample time to present the case, including to make oral submissions, which is clear on the face of the transcript. The second respondent's submissions with respect to the hearing can be summarised as follows:

(a) after hearing the appellant's submissions, the Magistrate disclosed his difficulties with them.[60] The appellant was then provided with an opportunity to address those issues. The appellant was called to give evidence as to the urine sample, and then his counsel was permitted by the Magistrate to ask further questions regarding the purposes of the DTO;

(b) the appellant's counsel completed his examination of the appellant. It was at this point that the Magistrate determined to cancel the DTO, after hearing all of the evidence that the appellant wished to adduce and counsel's extensive oral submissions, weighed against the prosecution's evidence. The transcript reflects that counsel did not indicate that he had anything further to say at any point after his examination of the appellant was complete; and

(c) the fact that the Magistrate did not require the prosecution to cross-examine the appellant is not indicative of a failure of procedural fairness. Procedural fairness is a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the case.[61] The Magistrate has the power to regulate his own proceedings and it is appropriate that he considered it unnecessary to require cross-examination of the appellant.

58 In relation to the second question of whether the Magistrate failed to apply, or incorrectly applied the test for cancellation in s 18ZP, the second respondent submits that the Magistrate applied the correct test for cancellation in s 18ZP(1)(d) by considering all of the evidence to determine whether he was satisfied on the balance of probabilities that continuation of the treatment and supervision part of the DTO was not likely to achieve one or more of the purposes for which it was made.

59 The second respondent's submission is that, on a fair reading of the transcript as a whole, the Magistrate did not treat interference with urine testing as the sole or primary test for cancellation. In particular, the second respondent emphasised that:

(a) the Magistrate had before him the second respondent's report which 'extensively'[62] detailed her concerns, including interference with the urine screens, as well as failure to attend sessions, aggression, negative attitudes, failure to take responsibility, externalising blame, using disrespectful and offensive language, dishonesty and evasiveness around his accommodation and employment circumstances and breaches of curfew. Some of these concerns were repeated in the second respondent's oral evidence at the hearing; and

(b) the Magistrate had a broader view of the test and made express statements referring to the second respondent's concerns when indicating his difficulties with the appellant's submissions regarding the continuation of the order.[63] These comments were made after engaging in a discussion with counsel about the test in s 18ZP and the weight to be given to a finding that the appellant had interfered with urine testing. The appellant's counsel submitted that it was just one of the factors to be considered.

60 The respondent submitted that the Framework is essentially a guide for Magistrates in the Drug Court. It is submitted that while the Framework is not binding on Magistrates it plays an integral role in the functioning of the Drug Court, as the manner in which incentives and sanctions can be applied under the legislation is incredibly broad. The guidance in the instant case informs the Magistrate that the behaviour of the appellant was extreme as it perverted the course of justice and constituted an attack on the integrity of the court.

61 The respondent referred to the Magistrate's detailed involvement with the appellant's DTO, having conducted four review hearings. It was submitted that these review hearings involved the consideration of every aspect of the appellant's involvement in the program, incorporating both compliant and non-compliant behaviour. This extensive involvement with the appellant is cited as providing the practical context of procedural fairness in the instant case.

62 It is submitted by the second respondent that to highlight the Magistrate's comments at the end of the hearing relating to the appellant's interference with the urine screen as evidence that the wrong test was applied or the interference was considered determinative, is to 'ignore everything said earlier'.[64]

63 The correct construction of s 18ZP of the Sentencing Act is central to the resolution of this appeal. I will therefore consider the construction of that section before dealing with each of the appellant's questions of law.

64 The relevant aspects of s 18ZP bear repeating:

(1) The Drug Court may cancel the treatment and supervision part of a drug treatment order if it is satisfied on the balance of probabilities that -

(a) before the order was made, the offender's circumstances were not accurately presented to either the Drug Court or the author of the drug treatment order assessment report of the offender; or

(b) the offender will not be able to comply with a condition attached to the order because the circumstances of the offender have materially changed since the order was made; or

(c) the offender is no longer willing to comply with one or more conditions attached to the order; or

(d) the continuation of the treatment and supervision part of the order is not likely to achieve one or more of the purposes for which the order was made; or

(e) the offender has breached an order under subsection 18ZL(1)(c), (d) or (e).

(2) When cancelling the treatment and supervision part of the order under subsection (1), the Drug Court must, after taking into account the extent to which the offender complied with that part of the order, take one of the following actions -

(a) make an order activating some or all of the custodial part of the drug treatment order;

(b) cancel the custodial part of the drug treatment order and deal with the offender for each offence in respect of which the drug treatment order was made in any way in which the Drug Court could deal with the offender if it had just convicted him or her of each offence, other than by making an order under section 7(1)(a).

65 The process of cancellation of a DTO and the reimposition of a period of custody upon the participant under s 18ZP is segmented into two steps.

66 The first step under s 18ZP(1) involves the Magistrate undertaking an analysis of the criteria contained within s 18ZP(1)(a)-(e) and determining whether they have been satisfied on the balance of probabilities. Even if so satisfied, the use of the words 'may cancel' in s 18ZP(1) clearly show that the Magistrate retains a residual discretion, notwithstanding such satisfaction. In exercising this residual discretion it is appropriate for regard to be had to the offender's past compliance, the purposes of the DTO and, in particular, the rehabilitative object of the DTO regime, along with any other special circumstances which may be present in a particular case. Where the decision to cancel involves a finding that there has been a breach or breaches of the DTO it would also be appropriate for the Magistrate to have regard to whether - in accordance with the rehabilitative purposes of a DTO - any other sanctions available under subdivision 1C would be more appropriate than cancellation.

67 The application for cancellation in question concerned cancellation upon satisfaction of s 18ZP(1)(d). As the appellant submitted, s 18ZP(1)(d) is not determined solely by factual findings s as to past misbehaviour. Instead the task is prospective in nature and requires consideration of whether the continuation of the treatment and supervision part of a DTO is unlikely to achieve one or more of the purposes in s 18X. The inquiry requires consideration of relevant matters which may have a bearing on whether the purposes of the DTO are capable of being achieved going forward, particularly the offender's willingness to engage with the treatment and supervision part of the order, notwithstanding past non-compliance. In this way s 18ZP(1)(d) can be seen as directly reflecting the rehabilitative purposes of the DTO regime.

68 As I have identified, sub-division 1C sets out a series of options to deal with non-compliance with the treatment and supervision part of a DTO. Given the rehabilitative purpose of a DTO, it is clear that cancellation under s 18ZP is an option of last resort.

69 The second step under s 18ZP(2) arises where a decision has been made to cancel the treatment and supervision part of a DTO under s 18ZP(1). Section 18ZP(2) requires a choice between two possible actions: activation of some or all of the custodial part of the DTO under s 18ZP(2)(a), or cancellation of the custodial part of the drug treatment order and 'resentencing' the offender under s 18ZP(2)(b).[65]

70 Before making a choice between these two actions under s 18ZP(2), the Magistrate must engage in the arithmetical exercise described in s 18ZE(2). Section 18ZE(2) expressly states '[i]n making an order under this Subdivision activating some or all of the custodial part of a drug treatment order, the Drug Court must first' engage in the arhythmical exercise described in that sub-section. Accordingly, before deciding that it is appropriate to activate some or all of the custodial part under s 18ZP(2)(a), rather than resentence the offender under s 18ZP(2)(b) the Drug Court must first have calculated the amount of the custodial part of the DTO there remains available to them to impose.

71 Furthermore, the discretion to choose between s 18ZP(2)(a) or (b) is modulated by the mandatory requirement that the Magistrate must take into account the extent to which the offender complied with the treatment and supervision part of the DTO. This requires the Magistrate to consider and evaluate the nature of the compliance and non-compliance by the participant.

72 I agree with the appellant's submissions that upon cancellation of the DTO the Magistrate is obliged to undertake a very different enterprise under s 18ZP(2)(a) as to how much of the custodial part of the DTO to activate. Where the decision is made to activate some or all of the custodial part of a DTO under s 18ZP(2)(a), rather than to 'resentence' the offender under s 18ZP(2)(b), the Magistrate must evaluate and consider a range of factors of compliance and non-compliance.

73 Importantly, as occurred in the present case, when a participant's involvement in the DTO regime is relatively nascent, explanations for the participant's non-compliance are especially important. At the early stages of the treatment and supervision regime a participant is more likely, whether through withdrawal or unfamiliarity with the regime, to breach conditions of the DTO The necessity to evaluate the nature of the non-compliance is thus heightened as is the ability of the participant's legal representatives to make submissions on the participant's non-compliance.

74 When considering whether to activate 'some or all' of the custodial part of a DTO under s 18ZP(2)(a), it is important to recognise that the custodial part of the DTO represents the sentence of imprisonment that would have imposed had a DTO not been imposed. Accordingly, the requirement in s 18ZP(2) to consider an offender's compliance with the treatment and supervision part of a DTO involves recognition that, despite its rehabilitative purpose, the treatment and supervision part of a DTO involves restrictions on the offender's freedom and the imposition of positive obligations, and that any penalties previously imposed for breaches of the DTO themselves have a punitive aspect.

75 Neither party identified any authorities from this Court considering s 18ZP. However, a substantially identical provision to s 18ZP - s 27Q of the Sentencing Act 1997 (Tas) - has been considered by the Supreme Court of Tasmania.[66] The Tasmanian cases focus on the equivalent of s 18ZP(2)(a), and what I have identified as the 'second step' of the inquiry, requiring the Magistrate - after taking into account the extent of the offender's compliance - to determine whether to activate some or all of the custodial part of the DTO.

76 In the most recent case considering s 27Q of the Sentencing Act 1997 (Tas), Parker v Shaw,[67] Pearce J stated:

The function and powers of a sentencing court after cancellation of a drug treatment order under s 27Q were considered by Wood J in Ferguson v Tasmania [2011] TASSC 51 and McCullough v Larner [2012] TASSC 35. In Ferguson, the applicant successfully contended that activation of seven months of the nine-month custodial part of a drug treatment order was manifestly excessive. In Larner, the State successfully contended that activation of 30 weeks' imprisonment, after allowing a discount of 11 weeks from the custodial part of an order resulted in a sentence which was manifestly inadequate. A number of propositions emerge from her Honour's review of the statutory provisions:

• the weight to be given to compliance with a drug treatment order is a matter that will depend on the facts of each case: Larner at [27];
• although a drug treatment order is directed to rehabilitation, it also carries some punitive effect: Ferguson at [52] and [54];
• the court must consider the 'the extent of the offender's compliance', but may also take into account other considerations relevant to sentence. In Ferguson her Honour referred at [62] to 'mitigating matters in general', and at [64] to 'all the circumstances', not just compliance. In Larner, her Honour referred to her decision in Ferguson and noted that when resentencing she had taken 'fresh account of other factors in mitigation';
• the court has a broad discretion under both s 27Q(2)(a) and (b) which is 'not subject to statutory restraint' other than the requirement to take compliance into account: Larner at [39];
• 'compliance' is not to be equated with the time subject to the order. It depends on genuine efforts to rehabilitate, cooperation, gains and other efforts throughout the program: Larner at [42];
• 'the extent' of compliance includes negative considerations such as lack of effort and commitment: Larner at [43].[68]

These propositions have equal application to the 'second step' under s 18ZP.

77 However, in relation to the third of those propositions, Pearce J observed:

[A] distinction is to be drawn between the exercise of a sentencing discretion at first instance and determination of a sentencing order made following cancellation of an order under s 27Q. In the latter case, the term imposed as the custodial part of the original order is the starting point. There are strong reasons of principle why that should be so. It is the sentence which would have been imposed had the drug treatment order not been made. It is to be assumed that it reflects the view of the sentencing magistrate at the time, after consideration of all matters relevant to sentence, and has the force of a court order. The order is susceptible to separate challenge if error is asserted. Persons subject to a drug treatment order, and indeed the court making the order, should have the possible consequences of non-compliance firmly in mind. The prospect of having to serve the custodial part of the order is incentive to comply with the treatment and supervision part. The resentencing function after cancellation is not to be an opportunity for unconstrained collateral challenge to the terms of an earlier order by reference to the sentencing considerations existing at the time of the order in the hope of obtaining a more favourable sentence the second time around.[69]

78 I consider that the determination of the amount of the custodial part of a DTO to be activated under s 18ZP(2)(a) involves consideration of what has occurred between the imposition of the DTO and the cancellation of the supervision and treatment part of that order, as well as what could happen in the future. Notwithstanding this requirement, consideration of 'mitigating matters in general' and 'all the circumstances' - described in the third of the propositions of Pearce J in the passage above - are capable of being taken into account so far as they are relevant to that time period.

79 Building upon the analysis of Pearce J in Parker v Shaw, it is equally applicable to say that while any non-compliance with the treatment and supervision part of the DTO is a relevant - and indeed mandatory - consideration under s 18ZP(2), it is not intended to provide an opportunity to subject the participant to punishment for breaches of the treatment and supervision part of their DTO. Nor does s 18ZP(2)(a) provide an opportunity to reagitate any aggravating factors or sentencing considerations relevant to the original offending for which the offence was imposed.

80 Having construed s 18ZP, it now falls to me to consider the two questions of law raised in this appeal.

81 The appellant's first question of law concerns whether the Magistrate denied him procedural fairness by making orders pursuant to ss 18ZP(1)(d) and (2) prior to the completion of his evidence, and without providing him with the opportunity to make submissions on matters relevant to the discretions conferred by those provisions.

82 In Roberts v Harkness,[70] the Court of Appeal stated:

[I]t is the fundamental obligation of every court to ensure a fair hearing for the parties before it. The High Court recently affirmed in Condon v Pompano Pty Ltd, that procedural fairness is 'an essential attribute of a court's procedure'. The correlative right of each party to a fair hearing is firmly established at common law and - since 2006 - have been enshrined in s 24(1) of the Charter, which relevantly provides as follows:

A person charged with a criminal offence ... has the right to have the charge ... decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The existence of the fair hearing right being uncontroversial, the critical question is: 'What does the duty to act fairly require in the circumstances of the particular case?' Natural justice is 'fair play in action'. As Gleeson CJ said in Lam:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

It is an essential requirement of a fair hearing that each party be given a 'reasonable opportunity' of presenting its case, whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.

Axiomatically, what is 'reasonable' for this purpose will depend on the circumstances of the case. Matters to be taken into account in determining the practical content of fairness in the particular case will include:

• the nature of the decision to be made;
• the nature and complexity of the issues in dispute;
• the nature and complexity of the submissions which the party wishes to advance;
• the significance to the party of an adverse decision (what is at stake); and
• the competing demands on the time and resources of the court or tribunal.

One of the key considerations in determining the content of fairness in a particular case is the statutory framework governing the decision-making process. This is most obviously the case with administrative decision-makers whose powers are conferred by statute, but it is also true of courts. As the plurality said in Pompano:

To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.[71]

83 In a similar regard in HT v The Queen,[72] Kiefel CJ, Bell and Keane JJ observed:

It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding. This obligation requires not only that courts be open and judges impartial but the person against whom a claim or charge is made by given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case. In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made.

Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept, rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise.[73]

84 A decision under s 18ZP is clearly a situation where an adverse decision has there great significance for the participant. What was 'at stake' for the appellant was not only his liberty but also the opportunity to continue to obtain treatment and supervision under the DTO. Furthermore, the importance of an offender being provided with an opportunity to be heard on an application under s 18ZP is reflected in the requirement in s 18ZP(4)(a) that they be provided with notice of such a hearing.

85 The issues in dispute at the hearing of the application to cancel were numerous and complex. The application for cancellation dated 25 November 2020 relied upon s 18ZP(1)(d), while the memorandum prepared by the second respondent dated 14 December 2020 set out a number of issues relating to the appellant's compliance and engagement with the program as well as concerns about his attitude, honesty and housing situation in addition to the allegation that he had tampered with a urine specimen. Section 18ZP(1)(d) requires consideration of not only the offender's past behaviour and compliance or non-compliance with the treatment and supervision part of their DTO but also a consideration of the purposes of that part of the order being achieved going forward.

86 Therefore, the application which the Magistrate was called upon to determine was far from straightforward. In particular there was a difficult question of the weight to be given to a finding that the appellant had interfered with the urine testing process when considering the likelihood that the purposes of the DTO could be achieved going forward.

87 I recognise that the Drug Court has heavy demands on its time and resources which require Magistrates to make decisions in an expeditious and efficient manner. I accept the second respondent's submission that the Magistrate's conduct must be viewed in the context of s 1 of the Magistrates' Court Act and the rules of criminal procedure. Section 1(e) of the Magistrates' Court Act provides that the purposes of the Magistrates' Court Act include allowing for the Magistrates' Court to be managed in a way that will ensure:

(i) fairness to all parties to court proceedings; and

(ii) the prompt resolution of court proceedings; and

(iii) that optimum use is made of the Court's resources.

88 Given the demands placed upon it, and its status as a specialist court, I accept that it is appropriate for the Drug Court to adopt flexibility in its procedures. However, that does not undermine the fact that it is an essential requirement of a fair hearing that each party be given a 'reasonable opportunity' of presenting its case.

89 As has been identified above, s 18ZI allows for the Drug Court to convene case conferences in order to be informed about an offender's progress. Such case conferences allow the Drug Court to operate in a more informal and flexible manner than an 'ordinary' court hearing. However, where the Drug Court is convened for the purposes of exercising its power under s 18ZP the requirements of procedural fairness will be more stringent.

90 In this appeal, the appellant effectively makes two complaints in relation to procedural fairness:

(a) first, that he was denied procedural fairness as the Magistrate determined the application before he was cross-examined and without the appellant's counsel being able to complete submissions on the issue of whether the purposes of the treatment and supervision part of the DTO could continue to be achieved; and

(b) secondly, that he was denied procedural fairness as the Magistrate activated the whole of the custodial part of the DTO without hearing any submissions as to the penalty or appropriate action to take upon cancellation of the treatment and supervision part.

91 The hearing of the application began with two witnesses giving evidence: Mr Nazareno and Ms Sarpong. The Magistrate then asked the appellant's counsel whether he had any submissions to make. The appellant's counsel commenced by identifying that the application was brought under s 18ZP(1)(d) and submitted that the evidence of Ms Sarpong was that the continuation of the order would result in a continued account of the appellant's drug-taking, the level of his dependency as well as ongoing attempts to facilitate his rehabilitation. Accordingly, it was submitted that the application should be refused as the evidence given by Ms Sarpong was that the continuation of the order would achieve the purposes for which it was made.

92 The following exchange then occurred between counsel for the appellant and the Magistrate:

Mr Battersby: Certainty there are concerning allegations about what took place in relation to the pathology issues. Ultimately, I don't believe that's a matter that your Honour should take into account above and beyond the evidence that the drug treatment team has given and ultimately the application is put on the basis that the purposes of the order are in jeopardy but ultimately what we've heard is that the purposes of the order can be sustained if Mr Makrogiannis were to retain his ability to participate on the drug treatment order.

His Honour: If I make a finding that he's undermined the urine testing process, how do I deal with that?

Mr Battersby: It's an interesting question, your Honour, and I am curious as to what threshold Your Honour would be required to make that finding under. Certainly it had - - -

His Honour: Beyond reasonable doubt if that's what you're asking.

Mr Battersby: Yes, I concur. I think that's the appropriate threshold. If Your Honour did make that finding then certainly that may impact on the question of 18ZP but it would have to be one of the factors that Your Honour takes into account in terms of the purpose of the drug treatment order. So the continuation of the treatment and supervision is not likely to achieve one or more of the purposes. Whether or not Mr Makrogiannis gave a false sample doesn't directly impact on that assessment particularly in circumstances where he's been on a two year order for seven weeks, he has an entrenched drug addiction which the order is designed to assist. He satisfied the purposes so far in terms of the order still facilitating his rehabilitation and his compliance to date has been described as satisfactory.

So while that would certainly factor into the constellation of considerations that Your Honour would have to assess, it would be one among others I would submit.

His Honour: The difficulty that I have is that firstly we've heard evidence today that he is refusing to be fundamentally accountable by disrupting the urine testing process. As of the writing of this report, which was dated yesterday, we stil don't know where he lives despite repeated requests. He has been difficult with staff, difficult particularly with the female members of our staff to the point of being aggressive, and I think all of those - aren't I entitled to find that all of those actions suggest he's simply not willing to abide by the conditions of the order? That's where I am going with it.

Mr Battersby: Your Honour, I appreciate Your Honour's comments. It was intended that Mr Makrogiannis give evidence in relation to the screen, the pathology sample. Certainly his relevant part in terms of that incident. I'm mindful of the time and Your Honour may have concerns about what Mr Makrogiannis addresses the court on but certainly in relation to the incident with Dorevitch, it was the intentnion of defence to ask Mr Makrogiannis to give his account.

His Honour: You've got the opportunity.[74]

93 The appellant was then called and gave evidence-in-chief to the effect that he had given a 'legit sample'. Counsel for the appellant asked the Magistrate whether, given the provision of the Sentencing Act the application to cancel was brought under, the Magistrate was willing to hear evidence regarding the appellant's treatment and supervision and whether the purposes of the order are likely to be achieved by him remaining on the order.

94 With the Magistrate's consent, the appellant then gave the following evidence:

Mr Battersby: Mr Makrogiannis, what do you think the purposes of a drug treatment order are?

Mr Makrogiannis: To get me the help that I need. I asked for this order, I asked for the help. I've been given the opportunity. It's been - at times, I never really understood how it was coming across, at times I felt I was being attacked where I was wasn't, I was being over sensitive and silly and just not feeling supported. I looked at (indistinct) las week. I apologies, I said 'You were right, you were absolutely right.' I need to get out of the place, I have new accommodation, Your Honour. I'm getting (indistinct) this week if I wanted to (indistinct) get the address all confirmed and make sure Corrections are 100 per cent happy with it so its an apartment in Docklands I've been saving to get a deposit together which I now have. I've been working as well. I've been complying. I've also signed up - sorry, Endless Horizons in (indistinct), it's a big organisation within the Greek community where they're helping people get back on their feet. I start that program Monday and that's separate, I'm not interfering with this. I (indistinct) the programs because I asked you for help, you've given me that opportunity and I want to prove it. Those seven days you gave me inside, Your Honour, when I went in for sanctions, I was not happy (indistinct) came round and I saw - I get the message you were sending me. I get it and I want the help, I'm willing to do it. I've never been aggressive I've butted heads that I was being attacked and I felt that I was being picked on and I was wrong and I said that to Winnie that, 'I'm sorry, I felt that I wasn't getting the support. I wasn't utilising you properly.' I was waiting for the phone call to have the weekly schedule, I should have been calling Helen when I wasn't gelling right, I should have been on the phone to Sheridan explaining what was going on.

Mr Battersby: All right - - -

Mr Makrogiannis: (indistinct), I see the message you sent me and I got it loud and clear.

Mr Battersby: Thank you, Your Honour. I don't have any further questions.[75]

95 The Magistrate then proceeded to make the decision to cancel the treatment and supervision part of the appellant's DTO and activating all of the remaining portion of the custodial part of the appellant's DTO (after engaging in the arithmetical exercise described in s 18ZE(2)). The Magistrate did so without requiring cross-examination of the appellant and without providing the opportunity for the appellant's counsel, or indeed counsel for Corrections Victoria to make further submissions.

96 Before making a decision in relation to the cancellation of the treatment and supervision part of the DTO, the Magistrate flagged with counsel for the appellant the matters he was concerned about and his opinion that the appellant's actions suggest he was not willing to abide by the conditions of the order. The Magistrate made reference to the following factors:

(a) that the appellant is refusing to be fundamentally accountable by disrupting the urine testing process;

(b) that it was not clear where the appellant lives despite repeated requests; and

(c) that the appellant had been difficult with staff, particularly the female members staff, to the point of being aggressive.

These concerns raised by the Magistrate did not touch upon the appellant's ability to comply with the conditions of the DTO in the future, nor the question of how much of the custodial part of the DTO should be activated upon cancellation.

97 Section 18ZP(1)(d) requires looking into the future, and the Magistrate was required to allow an opportunity for submissions to made be on this point. Furthermore, in the absence of earlier submissions on penalty, it was incumbent upon the Magistrate to invite submissions on s 18ZP(2) once a decision to cancel the treatment and supervision part of the DTO was made.

98 However, the Magistrate did not elicit submissions on these points. Instead, after the Magistrate raised his concerns, the appellant was called to give evidence before the Magistrate immediately made his decision to terminate the treatment and supervision part of the DTO and activate all of the remaining custodial part of the appellant's DTO. Given the complex legislation which the Magistrate was called upon to apply and the wide-ranging considerations which were relevant, the Magistrate failed to provide the appellant with procedural fairness by not providing the opportunity for the appellant's counsel to do so.

99 While procedural fairness required the Magistrate to provide the appellant with the opportunity to make further short submissions on the issue of whether the treatment and supervision part of the DTO should be cancelled, the failure to elicit, or even provide adequate opportunity for, submissions in relation to s 18ZP(2) was an even more stark failure to provide the appellant with the necessary level of procedural fairness.

100 I do not find that anything turns on the fact that counsel for the appellant did not indicate to the Magistrate that he had anything further to say at any point after his examination of the appellant was complete. In fact, it is unsurprising he did not do so. In accordance with usual procedures, counsel for the appellant was entitled to expect that the Magistrate would invite opposing counsel to cross-examine the appellant at the conclusion of his evidence-in-chief. Instead, the Magistrate proceeded to immediately make his decision. No criticism can be made of the appellant's counsel for not interrupting the Magistrate's ruling to indicate that he had wished to make further submissions.

101 As I have identified, the reactivation of the custodial part of the DTO results in the severest consequences possible for the appellant. The participant's liberty is at stake. Further, the primary basis of the regime - to reduce crime in the community by addressing drug addiction in a rehabilitative, therapeutically-oriented manner - is diminished once the punitive, custodial part of the DTO is activated. The Legislature did not intend for such severe consequences and for the diminishing of the primary basis of the regime without the operation of rigorous procedural safeguards.

102 In this case, the Magistrate imposed the harshest possible penalty allowed by reactivation of the custodial part of a DTO directly after having heard evidence of the appellant's breach of the DTO's conditions. The appellant's response to the Magistrate's decision demonstrates his shock and dismay at the approach adopted. At the conclusion of the appellant's evidence, the Magistrate made his decision to cancel the treatment and supervision part of the DTO, in less than 120 words, to which that appellant demonstrated his surprise stating 'oh fuck'. The Magistrate continued, in less than 40 words, to impose the harshest custodial activation available without inviting any submissions on that issue.

103 The imposition of such a harsh custodial activation is a last resort available to the Magistrate under the regime. The requirements of procedural fairness operate to impose safeguards to ensure that the Magistrate has all of the appropriate information to make such a decision. It was therefore essential that submissions were invited from the parties as to the extent of the appellant's compliance in addition to 'mitigating matters in general.' It is only through such submissions that the Magistrate could have known whether all of the relevant information was before the Drug Court or whether additional information or evidence needed to be adduced.

104 In the present case, it appears that due to the procedure adopted the Magistrate failed to appreciate that the conditions involved in the treatment and supervision part of a DTO have punitive aspects - in that they limit an offender's freedom and impose positive obligations - which ought to be considered before imposing what amounts to the harshest possible custodial activation that could have been imposed on the appellant.

105 The requirement that the appellant should have been heard on these matters is not so onerous that they would undermine the necessity for proceedings in the Magistrates' Court to be resolved promptly nor would they undermine the optimum use of the Court's resources.

106 Relying on Pham, the appellant submitted on this appeal that s 18ZP required a two-stage process of making a determination under s 18ZP(1) before then separately considering, and providing the opportunity for the parties to be heard on, the issues raised by s 18ZP(2). In Pham, Redlich and Kaye JJ stated that:

[T]here is no universal rule that the principles of procedural fairness require, in each case, that a 'two stage process' be adopted, whereby the issue of the guilt must be determined before submissions are made in relation to the question of penalty or disposition. Rather, as our discussion of the cases demonstrates, the question is whether in a particular case the person who has been the subject of disciplinary proceedings, has been afforded a reasonable and fair opportunity to address the issue of penalty or disposition. As we have noted, in a number of cases, particularly where the allegations against the person are numerous or complex or where there may be multiple bases for finding guilt, that requirement may only be satisfied where a two stage procedure is adopted. This was not such a case. Contrary to the submissions made by the applicant in this case there is no established principle of law requiring that, in each case, such a procedure must be adopted.

We should however reiterate our reservations, which are to the same effect as those expressed by Spender J in Barnes, and by the Court of Appeal in Queensland in Puryer, as to the process of requiring a defendant in such proceedings to combine submissions as to liability and penalty. In our view, such a combined procedure is generally undesirable. It compels a party to advance arguments upon the assumption that facts that are in dispute have been found against them and this makes it difficult for the party to advance all that can be said in mitigation. It may, in certain circumstances, such as those set out in the preceding paragraph, work a real injustice if it is difficult to anticipate the basis upon which adverse findings were likely to be made.[76]

107 The relationship between ss 18ZP(1) and 18ZP(2), the complexities of the considerations, and the potential for ambiguity to arise in the application of these sections means that it is preferable that a two stage approach were adopted by the Magistrate; indeed, the circumstances where a two stage approach would not be adopted can be considered rare and unusual. However, I do not accept that procedural fairness or any statutory duty necessarily mandates that a Magistrate make a decision on the first step under s 18ZP(1) and then hear further submissions in relation to the questions raised by s 18ZP(2). Much of the matters relevant to s 18ZP(2), including the extent of the appellant's compliance with the treatment and supervision part of the DTO, may overlap with those relevant to the first step of the inquiry under s 18ZP, and therefore there may be circumstances where it is appropriate for a Magistrate not to adopt a two stage approach. Yet, notwithstanding whether a two stage approach was appropriate in the circumstances, procedural fairness necessitated that the appellant be provided with the opportunity to make submissions in relation to s 18ZP(2).

108 Therefore, in relation to the first question of law raised in this appeal, I find that the Magistrate erred in failing to provide the appellant with procedural fairness.

The second question: Failure to apply, or incorrect application of, the test for cancellation

109 The Appellant's second question of law concerns whether the Magistrate failed to apply, or incorrectly applied, the test for cancellation of the DTO. In particular it was asserted that the Magistrate erred by:

(a) treating interference with urine testing as the sole or primary test for cancellation under s 18ZP(1)(d); and

(b) failing to apply, or incorrectly applying, the correct test for cancellation in s 18ZP(1)(d) which requires satisfaction on the balance of probabilities that continuation of the treatment and supervision part of the order is not likely to achieve one or more of the purposes for which the order is made.

110 Under the heading 'Very Serious Non-compliance', the Framework included 'Deliberate interference with urine testing processes: addition of additive/test defeating agents, 'wizzinators', the use of synthetic or other peoples' urine' with the 'Court response' stated as:

Cancellation of DTO and referral for VicPol for investigation

This behaviour constitutes perverting the course of justice and constitutes a fundamental attack on the integrity of the Court.[77]

111 The covering page of the memorandum prepared by Winnie Sarpong dated 14 December 2020 stated:

Grounds for Application:

18 ZP 1(d) The continuation of the treatment and supervision part of the Order is not likely to achieve one or more of the purposes for which the Order was made.

As per the framework, should a participant attempt to deliberately interfere with urine testing this would be a serious breach of their DTO and will result in the cancellation of the DTO.[78]

As per the Drug Court Framework, if the allegation of tampering with a urine specimen is proven, the cancellation of [the appellant's] DTO is warranted. Likewise, with regards to his overall attitude during appointments, [the appellant] continues to externalise the blame for any issues that arise and has indicated a belief that his Drug Court Team are setting him up to fail. Therefore, given the above information, this Service respectfully recommends that [the appellant's] DTO is cancelled and he be re-sentenced due to his disregard for the Drug Court requirements, his poor attitudes, inability to adhere to the proximal goal of honesty and failures to abide by his Order conditions. Most importantly, should the allegations of tampering with a urine specimen be proven, this will indicate [the appellant] has engaged in fraudulent behaviours with the Drug Court.[79]

113 At the conclusion of the appellant's evidence the Magistrate decided to cancel the treatment and supervision part of the appellant's DTO stating the following:

His Honour: Mr Makrogiannis, you have done one or two or three things on this order in a month or so, two months you've been with us but you cannot undermine the urine testing process - - -

Mr Makrogiannis: (indistinct) fully support it.

His Honour: - - - it is a fundamental premise that you are honest and up front and I have no doubt that on 23 November you were being clever and you thought you had a way of delivering a urine sample which was cold, wasn't body temperature, there were no other problems with anybody else's testing that day except yours, you were seen pumping through some device - - -

Mr Makrogiannis: I can't understand (indistinct).

His Honour: I've heard evidence from Mr Navareno, I accept that evidence beyond any shadow of a doubt. Your order is cancelled today - - -

Mr Makrogiannis: Oh fuck.

His Honour: You owe us 193 days so that's nine months less 73 days pre-sentence detention less your seven-day sanction and when you go into custody you tell everybody in there that we catch you doing this kind of thing, that's the end of their order.[80]

Mr Makrogiannis: Your Honour, I never messed a sample, I never - all I did was shake, Your Honour (indistinct) appeal this.

Your Honour: You can appeal, you've got an appeal right. You do that to the County Court - - -

Mr Makrogiannis: Okay. ...

114 The Magistrate focussed his finding upon the appellant's interference with the urine testing process. At that stage the Magistrate made no reference to other matters which may have a bearing on his satisfaction that continuation of the treatment and supervision part of the order was not likely to achieve one or more of the purposes for which it was made. Nor did the Magistrate articulate why the finding that the appellant interfered with the urine testing process satisfied him the purposes of the order were unlikely to be achieved going forward.

115 However, at the risk of repetition, the Magistrate did make the following statement of relevance during the appellant's counsel's submissions, before the appellant was called to give evidence:

The difficulty that I have is that firstly we've heard evidence today that he is refusing to be fundamentally accountable by disrupting the urine testing process. As of the writing of this report, which was dated yesterday, we still don't know where he lives despite repeated requests. He has been difficult with staff, difficult particularly with the female members of our staff to the point of being aggressive, and I think all of those - aren't I entitled to find that all of those actions suggest he's simply not willing to abide by the conditions of the order? That's where I am going with it.[81]

116 The second respondent submitted that this statement reveals that the Magistrate was engaged in an assessment of whether continuation of the treatment and supervision part of the DTO was unlikely to achieve one or more of the purposes for which the DTO was made.

117 I do not accept that the appellant's submission that the Magistrate blindly applied the Framework. The Magistrate did not refer to the Framework in the hearing of the cancellation application. Counsel for the appellant directed the Magistrate to the appropriate test to be applied in the application under s 18ZP(1)(d) and the Magistrate appeared to be aware of that fact, asking counsel for the appellant '[i]f I make a finding that he's undermined the urine testing process, how do I deal with that?'[82]

118 The Framework is, as deposed by Ms Robertson, a core mechanism to motivate compliance with the DTO and recovery from addiction.[83] The Framework guides the exercise of the Drug Court's powers about the consequences attached to compliance or non-compliance with the ss 18ZF and 18ZG conditions of a DTO. Importantly, however, the Framework has no statutory footing and is not a piece of delegated legislation. Nothing in s 18ZP(1) suggests that the interference with urine testing, or indeed any other serious breach of a DTO, automatically results in cancellation of the treatment and supervision part of a DTO. The Framework operates, and can only operate, as guidance to Magistrates in the exercise of their discretion when discharging their duties under the Act. As de Smith has stated on the nature of judicial discretion:

[The] legal concept of discretion implies power to make a choice between alternative courses of action. If only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty. To say that somebody has a discretion presupposes that there is no uniquely right answer to [their] problem.[84]

119 Undoubtedly, the Framework's operation as guidance assists in avoiding 'the risk of inconsistency and arbitrariness which is inherent [in a court] involving a complex of discretionary assessments and judgments' such as the Drug Court. However, the Framework cannot alter the Drug Court's statutory imperative 'to do justice according to the needs of the individual case, whatever its complications may be.'[85]

120 Where the Framework is consistent with the legislative requirements, it may be of assistance to Magistrates when considering the appropriate course to take in a particular case. The Framework may also provide guidance to individuals subject to a DTO on how the Drug Court may approach certain scenarios. However, the Framework cannot be construed or permitted to operate in a manner which fetters a Magistrate's discretion under the Act. The judicial task under Subdivision 1C of the Sentencing Act requires regard to always be had to the particular circumstances relevant to each offender, including the nature of their addiction and their personal level of compliance and non-compliance, which must be assessed, weighed and decided upon.

121 However, notwithstanding my conclusion that the Magistrate did not blindly apply the Framework, I am not satisfied that the Magistrate correctly applied the test for cancellation in s 18ZP(1)(d).

122 Having regard to the pressure of work under which Magistrates operate,[86] I accept the second respondent's submission that the Magistrate's reasoning should not be 'construed minutely and finely with an eye keen attuned to the perception of error'.[87] Nonetheless, it is noteworthy that the Magistrate asked, during the hearing, 'aren't I entitled to find that all of those actions suggest he's simply not willing to abide by the conditions of the order?'.[88] The cancellation application was made under s 18ZP(1)(d) which is directed towards the purposes of the order, while s 18ZP(1)(c) to which the Magistrate appears to be referring relates to circumstances where 'the offender is no longer willing to comply with one or more conditions attached to the order'.

123 The Magistrate's ex tempore reasons makes it difficult to know whether he was considering (1)(c) at all, or in addition to, or instead of, (1)(d). This renders it harder to determine whether the correct test was applied. While I acknowledge that under s 18ZP(3) the Drug Court may take action under subsection (1) on its own initiative, in circumstances where the application to cancel was brought under s 18ZP(1)(d), procedural fairness required the Magistrate to make clear that he was considering cancellation under s 18ZP(1)(c) if that indeed was what he did.

124 The Magistrate, before cancelling the treatment and supervision part of the DTO, asked whether he was entitled to find that the appellant was not willing to comply with the order, told the appellant definitively that he cannot undermine the urine testing process, and informed the appellant that it is a fundamental premise that he is upfront and honest. Although these matters are all important considerations, they are not considerations that cover the full range of analysis necessary for a Magistrate to determine that the treatment and supervision part of the DTO is not likely to achieve one or more of its purposes. Moreover, the consideration of the integrity of the urine sampling process and the appellant's candour, although foundational considerations that go to the Magistrate's assessment of how the appellant was conducting himself under the regime, are considerations that must be intercalated, at the very least, with the express statutory purposes of the regime contained in s 18X. There is nothing before the Court to indicate that the Magistrate did so.

125 The paucity of the analysis, the treatment of certain considerations as dipositive, and the speed with which the Magistrate reached his ultimate decision make it difficult to determine the actual path of the Magistrate's reasons and which test or combination of tests he actually applied.

126 In that context, the Magistrate's statement to the appellant that 'when you go into custody you tell everybody in there that we catch you doing this kind of thing, that's the end of their order'[89] compels me to find that the Magistrate treated interference with urine testing as the sole or primary consideration for cancellation under s 18ZP(1)(d) and that he therefore incorrectly applied the test in s 18ZP(1)(d).

127 None of the Magistrate's statements during the hearing of the application reveal that he considered, as required to under s 18ZP(1)(d), whether the purposes of the treatment and supervision part of the DTO could be achieved going forward, notwithstanding his non-compliance. Crucially, the Magistrate did not expressly acknowledge or deal with the appellant's evidence to the effect that he recognised he had not been properly engaging with his treatment but that he had '[got] the message'[90] and intended to do so going forward. Given the procedure adopted by the Magistrate this evidence was unchallenged.

128 In the recent decision of Makeham v Sheppard,[91] Priest JA, Kyrou and Weinberg JJA agreeing, observed:

Plainly, the extent of the duty to set out the findings made from the evidence will depend upon the circumstances of the individual case. Indeed, having regard to the nature of the case and the issues to be determined, a magistrate's reasons may not need to be elaborate. Quite obviously, the content of the obligation will not be the same for every decision, but will vary according to the circumstances of the particular case.

In any disputed case, a magistrate should set out material findings of fact, together with any ultimate conclusions or findings reached. He or she should provide reasons for arriving at the relevant findings of fact and the conclusions based on those findings, and should give reasons applying the law to the facts as so found. That is not to say that a magistrate necessarily must make explicit findings on every argument or submission made - particularly, where they are numerous and of varying significance - but those that are important to the ultimate decision must be set out.

...

Clearly, the content of the duty to give reasons will vary from court to court and case to case. The obligation that rests upon a busy magistrate, hearing dozens of summary matters in a day, will obviously be less onerous than that which rests upon a judge of a higher court, who will not be burdened with the same daily caseload. As Roberts-Smith J observed in Hardcastle, the realities of pressure of work in the Magistrates' Court must be acknowledged. Thus, it might be expected that in many summary criminal hearings, it will be practical for a magistrate only to give relatively brief reasons.[92]

129 I acknowledge that the obligation on a Magistrate of the Drug Court to give reasons is less onerous that that which rests upon a judge of the County Court or Supreme Court. However, I consider that the reasons of a Magistrate of the Drug Court permanently cancelling the treatment and supervision part of a DTO and activating the custodial part of the DTO is a decision of a nature which requires reasons identifying the test being applied in addition to explaining how or why the Magistrate was satisfied that the continuation of the treatment and supervision part of the DTO is not likely to achieve one or more of its purposes under s 18ZP(1)(d).

130 As I have stated, satisfaction of s 18ZP(1)(d) could not automatically flow from a finding that the appellant had interfered with the urine testing process. Such a finding was required to be considered alongside other matters relevant to the ability of the purposes of the order being achieved going forward.

131 I have already found that the Magistrate erred in failing to provide the appellant with procedural fairness. In addition, I find that - perhaps as a symptom of the procedures adopted - the Magistrate failed to apply the correct test when considering the cancellation application as the Magistrate's reasons failed to engage with the matters he was required to consider under s 18ZP(1).

132 Finally, I note that while this question of law focussed on the Magistrate's failure to apply the correct test under s 18ZP(1), the Magistrate's reasons do not reveal that he engaged in the reasoning process required by s 18ZP(2) when deciding that all, rather than some, of the custodial part of the appellants DTO should be activated.

133 For the above reasons, the appellant's appeal under s 272 of the Criminal Procedure Act is allowed.

134 In his outline of submissions dated 19 February 2021, the appellant submitted that if the Court determines the appeal in his favour, the Court may make any order that it considers appropriate, including orders dismissing the cancellation application or remitting the matter for rehearing in the Drug Court. The appellant conceded that remitting the case for rehearing in the Drug Court would ordinarily be the appropriate order, however, in the circumstances of this matter it is open for the Court to dismiss the application to cancel the DTO or to activate some of the custodial part of the DTO, as the appellant will have already served a substantial period of the custodial part of the order activated on 15 December 2020 by the time the appeal will have been heard and determined. It was submitted that either order would avoid the potential for the appellant to be released, only to resume a custodial sentence shortly afterwards (depending on the outcome of the rehearing).[93] In the alternative, the appellant sought orders remitting the matter for rehearing in the Drug Court.

135 However, upon reviewing the transcript from the hearing of the appeal, the Court noted uncertainty as to the position of the parties in relation to the nature and content of the relief to be provided to the appellant if the substantive issues in the appeal were successful. Accordingly, the parties were asked to provide further written submissions addressing the appropriate relief that ought to be granted if the appellant's appeal was successful.

136 On 13 April 2021, the appellant provided the Court with further written submissions dated 12 April 2021 as well as an affidavit of William Grimshaw dated 12 April 2021. While on 14 April 2021, the second respondent provided the Court with supplementary written submissions dated 14 April 2021.

137 In his further submissions the appellant submitted that the orders cancelling the DTO and committing the appellant to prison for 193 days out to be quashed. The appellant, however, no longer opposed the cancellation of his DTO on a remitted hearing or in this Court. The appellant conceded that there is a prima facie case for cancellation, which is now bolstered by an alternative basis for cancellation under s 18ZP(1)(c). That is, the appellant is no longer willing to comply with one or more conditions attached to the order.

138 The appellant raised concerns about the likely impact of resuming the treatment and supervision component of the order on his post-release living arrangements, in addition to the potential of being released for a short period, before being returned to custody following a remitted hearing, which would inevitably entail a further period served in quarantine. The appellant has already served his entire seven day sanction period in December 2020 in quarantine and was again subject to 14 days quarantine from the date of the decision, the subject of this appeal.

139 The appellant now seeks the activation of some or all of the custodial part of the DTO be freshly determined, in light of the requirement to consider the extent to which he complied with the treatment and supervision part of the order pursuant to s 18ZP(2). Despite the nature of the relief primarily sought by the appellant, he does not concede any of his primary grounds of appeal.

140 The appellant maintained that the discretion under s 18ZP(2) must be guided by the recognition that the custodial part of the order represents the sentence that would have been imposed had the appellant never attempted the DTO. Participation in the DTO, even where limited, is submitted to represent additional punishment that ought to be taken into account when determining the extent of the custodial part that is to be activated. The appellant submitted that it follows that the s 18ZP(2) exercise is similar to a resentencing following a breach of a community corrections order, subject to one material distinction. Whereas sentencing entails an unfettered discretion, the s 18ZP(2) discretion is limited by the previous determination of an appropriate sentence in circumstances where there would be no engagement whatsoever on a DTO.

141 The appellant submitted that if the Magistrates' Court order cancelling the DTO is quashed, the original terms of the DTO remain extant until its expiry on 6 October 2022, unless and until it is cancelled by the Drug Court in accordance with s 18ZP. That is, the quashing of the order granting the application to cancel would result in resumption of the treatment and supervision part of the DTO. The latter could be ameliorated if the Court were to grant a stay of the treatment and supervision component of the DTO pending the remitting of the case for rehearing in the Drug Court hearing pursuant to s 272(11) of the Criminal Procedure Act.

142 Until the application to cancel the DTO is heard and determined, there would be no custodial orders in place and the appellant would be at liberty subject to the treatment and supervision part of the DTO.

143 It is submitted that if this Court quashes only the part of the original order that activated all of the custodial component of the DTO, the treatment and supervision part of the DTO would no longer remain on foot, however, the custodial portion of the order would remain pending.

144 The consequence of an order remitting the case for rehearing in the Drug Court would potentially place the appellant in a position of being returned to custody after a short period of conditional liberty. It is submitted that this would have a particular impact due to the likelihood of serving further time in quarantine and would add further to the burden of imprisonment. The appellant submitted that the impact could be avoided by this Court standing in the shoes of a Magistrate of the Drug Court in determining the question pursuant to s 18ZP(2), as empowered by s 272(9) of the Criminal Procedure Act.

145 The appellant has filed an affidavit of William Grimshaw affirmed 12 April 2021 referring the Court to the Framework and exhibiting conference feedback sheets ('the feedback sheets') that provide a summary of how the appellant progressed during the relevant review period. The documents also included incentive and sanction summary documents. Mr Grimshaw's affidavit explains that, under s 18ZI of the Sentencing Act, the presiding Drug Court Magistrate convenes a case conference on review hearing days. During the case conference, the Drug Court team discusses the participant's feedback sheet against the framework. As a result of this discussion, a provisional incentives and sanction summary is generated by the Drug Court, illustrating the sanctions and credits accrued during the relevant review period. The participant can then dispute these sanctions in the Drug Court review hearing, usually through a Victoria Legal Aid duty lawyer. The presiding Drug Court Magistrate then makes a finding which is reflected in the final incentives and sanctions summary for the relevant review period.[94]

146 The appellant's progress on the DTO was substantially reviewed four times in review hearings held on 22 October 2020, 5 October 2020, 19 November 2020 and 3 December 2020. The Magistrate presided over all of these review hearings.[95]

147 The appellant submitted that in the alternative, and given the unequivocal nature of the Magistrate's findings, that if the Court were to remit the matter it should be determined by the Court differently constituted.

148 It was submitted by the appellant that a review of the documents exhibited to Mr Grimshaw's affidavit along with the chronology prepared on behalf of the appellant annexed to the further written submission, that the Court should take a wider and more beneficial appraisal of the appellant's level of participation on the DTO, and that the Court should, in particular, take the following into account in choosing not to activate all of the custodial component of the order:

(a) the appellant's overall satisfactory compliance with his DTO as attested to by his case manager, Winnie Sarpong; and

(b) the appellant's consistent attendance and engagement with drug and alcohol counselling (by phone) for the duration of the DTO.

149 The appellant notes that the order activating all of the custodial component of the DTO stated as being 193 days was in error. It is submitted that the nine month term (or 270 days) should have resulted in the imposition of 190 days imprisonment when the pre-sentence detention of 73 days and the prior seven day sanction term were subtracted as required by s 18ZE.

150 The position of the second respondent, as outlined in her supplementary submissions dated 14 April 2021, is that the Court should exercise its discretion to remit the matter back to the Drug Court.

151 That course is said to be the only appropriate outcome in the case for four reasons. First, the second respondent submitted that there is no compelling reason to depart from the general principle that in successful cases reviewing the determinations of specialist courts, such as the Drug Court, the ordinary order is to remit the matter for rehearing.[96] In this regard, the second respondent relied upon the legislative structure of sub-division 1C including the express prohibition in s 18Y on any court other than the Drug Court making a DTO, and suggested that this court should be careful not to make any order that requires it to undertake tasks that have been committed by Parliament to the Drug Court.

152 Secondly, the second respondent submitted that the treatment and supervision portion of the appellant's DTO has been cancelled and there is no legislative power to resurrect it. The second respondent was not able to identify any authorities considering whether the treatment and supervision part of a DTO could be resurrected, but submitted that it can be presumed that Parliament did not intend for a person to be able, upon a successful appeal, to resume a previously cancelled treatment and supervision part of a DTO. An offender's particular case management plan for treatment and supervision is complex and time-bound and, in a situation like the one confronting the appellant, the treatment and supervision part of the DTO would likely have fallen out of date and relevance. It was submitted that if the appellant now wished to access the benefit of further treatment and supervision, his current circumstances and needs, and his willingness to comply with the treatment and supervision part of the order would need to be carefully reassessed by the Drug Court alongside considerations of whether the necessary resources and facilities were available.

153 Furthermore, the second respondent submitted that the extensive limitations on the right to appeal a decision of the Drug Court set out in s 18ZR support a presumption that Parliament did not intend any court, other than the Drug Court, to be able to make, reactivate or resurrect a DTO or otherwise permit an offender to return to the treatment and supervision part of a DTO which has been cancelled. In particular, the second respondent identified that under s 18ZR(2)(iv) an appeal on the merits cannot be brought to the County Court in relation to a decision to cancel the treatment and supervision part, or the custodial part, of a DTO. While s 18ZR(1) states if the County Court is hearing an appeal under ss 254 or 257 of the Criminal Procedure Act against a sentence imposed by the Drug Court, the County Court cannot make a DTO. It was submitted that if the County Court considers a DTO may be appropriate, the only choice open to them is to refer the matter to the Drug Court for consideration.

154 Thirdly, the second respondent submitted that even if such a power existed, this court cannot compel the Drug Court to accept the appellant back, or compel the appellant to consent to treatment and supervision. In this regard, the second respondent noted that DTOs provide a judicially-supervised, therapeutically-oriented, integrated drug or alcohol treatment regime,[97] and submitted that this Court is not in a position to know whether sufficient resources and facilities are available to assist the appellant. Furthermore, the second respondent noted that the Drug Court is legislatively prohibited from making a DTO unless the offender agrees in writing to the making of the order and to comply with the treatment and supervision part of the order.[98]

155 Finally, the second respond submitted that this Court should not make a determination that 'some' of the custodial portion of the DTO be activated as, in doing so, the appellant is asking this Court to exercise substantially the same discretion as exists in s 18ZP(2). The second respondent submitted that such an order is not permitted under the Sentencing Act and is inappropriate in the circumstances. It was particularly emphasised that this court has been tasked with a judicial review, not a merits review, and any consideration of the appropriateness or otherwise of the length of the custodial portion of the appellant's DTO to be activated is beyond the scope of review.

156 While conceding that this Court's powers on review under s 272 of the Criminal Procedure Act are broad, the second respondent noted that s 18ZE of the Sentencing Act states:

[D]espite anything to the contrary in this Act, an offender is not to serve the custodial part of a drug treatment order, and that part of the order does not commence, except in accordance with an order under this subdivision activating that part of the order.

Section 18ZE then sets out requirements for the Drug Court in activating some of the custodial part of a DTO, and how the remaining length of that part of the order is to be calculated.

157 The second respondent stated that when ss 18ZE and 18ZP(2) are read in conjunction with the purposes of a DTO, and the many limitations on how the Drug Court can act in relation to a DTO, it suggests that no court other than the Drug Court can make an order activating some of the custodial part of a DTO.

158 The second respondent also submitted, that even if it were possible for this Court to make a determination that 'some' of the custodial portion of the appellant's DTO should be activated, it would not be appropriate in the circumstances. The second respondent suggested that doing so would essentially require this Court to rehear the matter on its merits and re-sentence the appellant. She submitted that this Court is not in a position to consider the appellant's offending and what custodial sentence it warrants and no information is before the Court to allow it to do this. In particular, the second respondent stated that the Court Book provided to this Court does not contain details of the appellant's underlying offending, the Court has not heard submissions about the appropriate sentence or the required consideration of 'the extent to which the offender complied' with the treatment and supervision part of the DTO, and in the absence of this information or submissions about sentencing this Court could not undertake a resentencing exercise.

159 This is an appeal on a question of law under s 272 of the Criminal Procedure Act. Section 272(9) provides:

After hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates' Court with or without any direction in law.

An order under that subsection, other than an order remitting the case for rehearing to the Magistrates' Court, may be enforced as an order of the Supreme Court.[99]

160 Orders made under s 272(9) are not in the nature of prerogative relief,[100] instead s 272(9) confers a wide discretion upon this court with respect to the outcome of the appeal, allowing the Court to make 'any order that it thinks appropriate' in the circumstances.

161 Section 272(9) has been held to provide this Court with the jurisdiction to, where appropriate, determine the charge subject to an appeal,[101] or to resentence an offender.[102] While in Clubb v Edwards, Kennedy J observed:[103]

Where the Court determines that a Magistrate has made an error of law, the Court may consider refusing to make an order remitting the matter where it could clearly be said that the error did not affect the result.

162 I consider that in providing this Court with the broad power to make 'any order that it thinks appropriate' in s 272(9), the Parliament intended to provide this Court with the flexibility to address the specific circumstances of the case before it, constrained by what is 'appropriate' in those circumstances. Where the circumstances of a particular case make it appropriate to do so, s 272(9) enables the Court to fashion orders which best serve the interests of justice.

163 Such an approach was adopted by Robson J in Powell v Olsen.[104] Mr Powell had been charged and found guilty of intentionally and without lawful excuse destroying the electric fence belonging to Mr Weaver and fined $1,000 without conviction and ordered to pay Mr Weaver restitution of $200 with a stay of 2 months. Mr Powell appealed against the order under s 272 of the Criminal Procedure Act, claiming that the Magistrate erred in law in finding him guilty.

164 Justice Robson found that the Magistrate had erred in law by failing to find that the prosecution was obliged to prove that the electric fence was not a fixture, and in not finding that the prosecution had failed to do so, and in finding that Mr Powell had to establish a lawful excuse. On the question of relief under s 272(9), Robson J concluded:

In these circumstances, and especially having regard to the error in addressing the fixture defence, I have decided not to remit the case for rehearing. Mr Powell honestly believed that the fence was built on his land. Mr Weaver took a risk in building a fence on land that he knew was claimed to be owned by Mr Powell. The appropriate course was to decide the issue of ownership in the civil courts if necessary. I do not think justice would be served by putting Mr Powell through another hearing where there is little to suggest a conviction would be obtained.[105]

165 The remedial flexibility which s 272(9) provides the Court was also recognised by T Forrest J in Bchinnati v Connolly where his Honour observed:

As to the issue of this court's power to set aside the orders for amendment, it is unnecessary to determine whether those orders, if they are invalid, are "nullities." Section 272(9) provides that after hearing and determining the relevant appeal this court may make "any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates' Court with or without any direction in law." The order or orders must be appropriate in the circumstances of the case, but neither nullity nor invalidity are preconditions of that broad remedial power.[106]

166 The parties submissions on relief raise two issues that require consideration. The first is whether orders quashing the Magistrate's order cancelling the treatment and supervision part of the DTO would have the effect that the original terms of the treatment and supervision part of the DTO remain extant until its expiry on 6 October 2022. The second is whether it is appropriate for this Court itself should determine what part of the custodial sentence should be activated or whether orders should be made remitting the case for rehearing in the Drug Court

167 In relation to the first of those issues, I acknowledge that an order having the effect that the treatment and supervision part of the appellant's DTO remains extant would be confronted with a number of practical difficulties, identified by the second respondent. The regime created by subdivision 1C does not contemplate the manner in which an offender would resume the treatment and supervision part of a previously cancelled DTO upon a successful appeal. As the second respondent submitted, an offender's particular case management plan for treatment and supervision is complex and time-bound and if the appellant now wishes to access the benefit of further treatment and supervision his current circumstances and needs would need to be assessed.

168 Nonetheless, I do not accept the second respondent's submissions to the effect that an order of this Court under s 272(9) of the Criminal Procedure Act quashing or setting aside the Magistrate's decision to cancel the treatment and supervision part of the appellant's DTO could not have the effect that the treatment and supervision part of a DTO remain extant. While not confined to orders in the nature of prerogative relief, s 272(9) empowers this Court to make any order it thinks appropriate. Had the appellant wished to continue under the treatment and supervision part of the DTO and maintained his opposition to its cancellation on any remitted hearing, then it may have been appropriate for orders to be made having that effect. Indeed, this would appear to be the typical result of orders setting aside a Magistrate's cancellation of the treatment and supervision part of a DTO.

169 The practical issues raised by such orders no longer need to be directly confronted in the present case. The appellant has indicated that he is no longer willing to comply with one or more conditions attached to the order, raising concerns about the likely impact of resuming the treatment and supervision component of the DTO on his post-release living arrangements as well as the potential of being released for a short period before being returned to custody following a remitted hearing. Accordingly, the appellant has now conceded that the treatment and supervision part of the DTO should be cancelled under either s 18ZP(1)(c) or (d). As such, were this Court to make orders setting aside the Magistrate's orders and remitting the case to the Drug Court for rehearing the practical issues in relation to the 're-activation' of the treatment and supervision part of the order could be avoided through the granting of a stay of the treatment and supervision part of the DTO pending a remitted hearing on the portion of the custodial part of the DTO which should be activated under s 18ZP(2)(a).

170 The second issue raised by the parties submissions on relief poses greater difficulties.

171 The starting point for the court in considering what is 'appropriate' involves consideration of the nature, function and form of the decision under appeal. This is a case arising out of a specialist division of the Magistrates' Court, the Drug Court, which has a high level of expertise and skills in dealing with drug affected people and people with addictions such as the appellant. The material provided by the appellant confirms the specialist nature of the Drug Court and the skills and expertise required by presiding Magistrates to determine what part of the order represents the sentence that would have been imposed had the appellant never attempted the DTO.

172 I accept that Walsh J's observations in Forster v Jododex Australia Pty Ltd that it would 'ordinarily be a wise exercise' for an appeal court to use its discretion to decline to 'undertake ... tasks which have been committed by the Parliament to a specialized tribunal' are apt in relation to appeals from the Drug Court.[107]

173 Given my findings that the appellant was denied procedural fairness and that the Magistrate incorrectly applied the test in s 18ZP(1), I consider that it would ordinarily be appropriate that the Magistrate's orders be set aside and that orders be made remitting the case for rehearing in the Drug Court to determine the cancellation application in accordance with law. However, in the present case there are a number of other matters which have a bearing on the appropriate orders to be made under s 272(9).

174 The parties have informed the Court that the end date for the sentence the appellant is serving is 11 June 2021. Accordingly, if the treatment and supervision part of the order were now cancelled under s 18ZP(1)(c) or (d) - a course which the appellant no longer opposes - there would only be approximately 50 days of the custodial part of the order capable of being activated under s 18ZP(2)(a).

175 If the appellant had maintained his opposition to cancellation and was successful in a remitted hearing of the cancellation application, the treatment and supervision part of his DTO would remain extant until its expiry on 6 October 2022, notwithstanding the fact that he has already completed the majority of the custodial part of that order. While the continued access to treatment such an order provides would appear to be desirable for the appellant's rehabilitation, it is understandable that the appellant no longer wishes to be subject to the punitive aspects of such an order having already spent a long period in custody.

176 The appellant's change in position may also have been influenced by the delay in the determination of his appeal to this Court. The appellant's original notice of appeal was filed on 11 January 2021. The appeal was not ultimately heard before me until 29 March 2021.

177 If orders were made setting aside the orders of the Magistrate and remitting the matter to the Drug Court, there would be no custodial orders in place and the appellant would be at liberty subject to the treatment and supervision part of the DTO until the application to cancel the DTO is heard and determined. However, if this Court remits the matter to the Magistrates' Court constituted by a different court, there will be some delay, even if small, before the matter is finally determined. The consequence is that the appellant will be released, will have the issue of what part of his sentence is to be activated hanging over his head, and may then be imprisoned again.

178 Measures in place due to the COVID-19 pandemic also mean that if returned to custody the appellant may have to serve further time in quarantine. He served his entire seven day sanction period in December 2020 in quarantine, as well as a further 14 day period in quarantine upon the activation of the custodial part of his DTO from the date of the decision subject of this appeal.

179 A further and most regrettable aspect of this case is that the appellant has not had the benefit of the treatment and supervision part of the DTO which is designed to treat the underlying drug addiction. Instead, the appellant has been in custody since 21 December 2020 under onerous requirements placed on prisoners due to the COVID-19 pandemic.

180 Nonetheless, I ultimately do not consider that it would be appropriate for this Court to seek to stand in the shoes of the Drug Court and determine for itself the amount of the custodial part of the appellant's DTO to activate in accordance with s 18ZB(2)(a). As I have acknowledged, subdivision 1C is intended to be applied by the Drug Court in its capacity as a specialist division of the Magistrate's Court. The denial of procedural fairness in the original cancellation hearing also means that all the material which may have been before the Court in the cancellation proceeding is not presently before this Court. For example, the second respondent may have wished to cross-examine the appellant on his compliance with the treatment and supervision part of the DTO, as well as to make submissions on the appropriate course under s 18ZP(2). If the cancellation application were to be re-heard on its merits I consider it most appropriate that it be done so before the Drug Court.

181 However, I note that, on the material before me, it appears that if I made orders remitting the case for rehearing in the Drug Court it is unlikely that all of the custodial part of the DTO would be activated under s 18ZP(2)(a) once proper regard is given to the extent to which the appellant complied with that part of the order. The evidence is that during the seven weeks the appellant participated in the DTO he showed overall satisfactory compliance with his DTO as attested to by Ms Sarpong, his case manager, and he consistently attended and engaged with drug and alcohol counselling (by phone) for the duration of the DTO. Furthermore, upon any order remitting the case for rehearing in the Drug Court it would be appropriate for regard to be had to the fact that the errors of law in the original cancellation has potentially deprived the appellant the opportunity of continuing under the treatment and supervision part of the order.

182 It would therefore appear that the likely practical effect of remitting the case for rehearing in the Drug Court would be that the appellant would be released only to - at most - have a short period of the remaining approximately 50 days the custodial part of his DTO activated under s 18ZP(2)(a).

183 In his original written submissions, the appellant suggested - in reliance on DPP (Nauru) v Fowler[108] - in the circumstances of this case the public interest in the proper administration of justice and the interests of the accused could be balanced through orders which would avoid the potential for the appellant to be released, only to resume a custodial sentence shortly afterwards (depending on the outcome of the rehearing), given that he will have already served a substantial period of the custodial part of the order by the time this appeal is heard and determined.

184 In DPP (Nauru) v Fowler, the High Court considered s 14(3) of the Appeals Act 1972 (Nauru) which provided that:

Subject to the special provisions of this Act, the Supreme Court shall, if it allows an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered or, if the interests of justice so require, order a new trial.

185 The High Court held that this section imposed a two-stage test, stating:

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused. The alleged misuse by the respondent of his position as a senior officer of the Phosphate Corporation might have been regarded as a reason in favour of granting a new trial, whereas, on the other hand, the facts that the respondent was no longer on the island of Nauru and that the offences were thought to warrant only one month's imprisonment and a small fine might have been thought to provide arguments to the contrary. These were matters that should have been weighed by the Supreme Court in deciding how its discretion should be exercised.[109]

186 This test has been applied by the Court of Appeal in relation to ss 277 and 326E of the Criminal Procedure Act which require that Court, upon allowing an appeal against conviction, to set aside the conviction and, inter alia, either order a new trial or enter a judgment of acquittal.[110]

187 In R v Thomas (No 3),[111] Maxwell P and Buchanan and Vincent JJA observed that an important principle underlying the High Court's observations in Fowler is that:

[A]n appellate court must be careful not to usurp the functions of the properly-constituted prosecutorial authorities entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions...[112]

Intervention is justified, however, to ensure that the subjection of an individual to the continued operation of the criminal justice system is not itself a source of oppression or unfairness.

...

It is of crucial importance that our criminal law structures operate and can be seen to do so in accordance with their stated values. This can present a particular problem in a case in which an appeal against conviction has been allowed by reason of the commission of some error of law by a trial judge or because the trial has otherwise miscarried. Wickham, J, in the Western Australian Court of Criminal Appeal, addressed this concern in his judgment in Rabey v R:

Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spent some time in prison and has already been through one trial and an appeal.

The factors to be taken into account in the exercise of the discretion to direct an acquittal or a new trial in the event of a successful appeal have not been clearly identified. The cost and complexity of any re-trial, the seriousness of the offence involved, the likely outcome in terms of penalty, the length of time during which the individual has been subject to criminal law process, and a multitude of personal factors could all assume relevance. We have not attempted in this list to cover the field with respect to the matters to be taken into account, but simply to draw attention to the array of features that could possess significance in a given situation.[113]

188 I consider that similar considerations are relevant to the question of the 'appropriate' orders to be made in the unusual circumstances of this appeal.

189 In the present circumstances no question arises of there being insufficient evidence capable of justifying cancellation under s 18ZP(1), particularly in light of the appellant's concession that the treatment and supervision part of the DTO should now be cancelled. However, I consider that there is an important question of whether there are circumstances that might render it unjust to the appellant for the matter to be remitted to the Drug Court for the determination of how much of the custodial part of the DTO should be activated under s 18ZP(2)(a). This calls for a balancing of the public interest in the proper administration of justice with the interests of the appellant in determining the appropriate orders to be made in this case.

190 Accordingly, in considering the appropriate orders to be made I recognise the cumulative impact of the following factors:

(a) the appellant has already served the majority of the custodial part of the DTO;

(b) the appellant has already experienced extensive restrictions on his freedom and a range of positive obligations imposed upon him whilst subject to the treatment and supervision part of the DTO;

(c) if orders were made remitting the case for rehearing in the Drug Court, the appellant would be released from custody for a short period before facing the risk of re-imprisonment a short time later, likely causing him great anxiety, particularly given the possibility of further time spent in quarantine if re-imprisoned;

(d) the likely practical result of remitting the case for rehearing in the Drug Court would see the appellant have a relatively short period - if any - of the remaining approximately 50 days the custodial part of his DTO activated under s 18ZP(2)(a), thus making it futile to do so;

(e) the errors of law in the decision to cancel the treatment and supervision part of the DTO potentially deprived the appellant of the rehabilitative opportunities under that order;

(f) the appellant has been through numerous steps including a DTO assessment report, a plea and conviction before the Drug Court, hearings before the Drug Court to determine compliance with the DTO, the cancellation application before the Drug Court, and the appeal before the Supreme Court, and an additional hearing before the Drug Court on this matter would be oppressive;

(g) the optimum use and appropriate allocation of court resources, and the public inconvenience and expense involved, militates against remitting the matter to the Drug Court; and

(h) the course of this matter, and the delay in the determination of this appeal, has potentially contributed to the appellant's decision to no longer contest the cancellation of the treatment and supervision part of the DTO.

191 In those circumstances, it would not be in the interests of justice to remit the matter to the Drug Court. Rather than remitting the matter to the Drug Court or deciding the application under s 18ZP(2) myself, I consider that it is appropriate for the orders cancelling the treatment and supervision part of the DTO and activating all of the remaining custodial part of the DTO be set aside and that the time already served by the appellant under the custodial part of the DTO be treated as fully satisfying the sentence imposed upon him for his original offending.

192 In doing so I note that this is an unusual case. In the unique and difficult circumstances of this case such an approach best balances the public interest in the proper administration of justice with the interests of the appellant.

193 In relation to the public interest in the proper administration of justice I note that the current case does not involve a question of whether the appellant should be retried for an offence and, accordingly, this approach does not involve entry of a judgment of acquittal for the offences of which he was convicted and for which the DTO was imposed. Furthermore, the appellant was not charged with an offence in relation to the allegation that he interfered with the urine testing process. Instead, an application was made for the cancellation of the treatment and supervision part of the DTO. Accordingly, the hearing of that application does not serve a public interest of 'hear[ing] and determin[ing] finally whether the [appellant] has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment'.[114]

194 I acknowledge there is a strong public interest in offenders serving the full sentence imposed upon them for offences for which they have been convicted. However, in the present case the Magistrate's decision to cancel the treatment and supervision part of the DTO and activate the entirety of the custodial part of the DTO which remained capable of being served was vitiated by error due to a denial to afford the appellant procedural fairness. The custodial part of the DTO represented the sentence which would have been imposed on the appellant for his original offending had the DTO not been imposed. However, as a result of the denial of procedural fairness the appellant's compliance with the treatment and supervision part of the DTO was not adequately considered by the Magistrate in deciding to activate the entirety of the custodial part of the DTO. Accordingly, the punitive elements of that part of the order were not taken into account and the fact that imposition of the entirety of the custodial part of the DTO could involve a greater punishment than that which would otherwise have been imposed appeared to go unacknowledged.

195 In those circumstances, I consider that any remaining public interest in the appellant serving the exact portion of the custodial part of the DTO which would have been activated under s 18ZP(2)(a) remitting the case for rehearing in the Drug Court is outweighed by the oppression or unfairness such remittal would cause the appellant.

196 I will make the following orders under s 272(9) of the Criminal Procedure Act:

1. That the appeal be allowed.

2. That the orders of the Magistrates' Court of Victoria at Melbourne on 15 December 2020 in case 202007990, cancelling the treatment and supervision part of the DTO under s 18ZP(1) and activating all of the remaining custodial component of the DTO under s 18ZP(2)(a) be set aside.

3. That the days the appellant served in custody since 15 December 2020 to today (plus seven days previously served pursuant to s 18ZL and 73 days pre-sentence detention) constitute the entirety of the custodial part of the DTO.

4. That the appellant is discharged from the DTO.

[1] Commenced by way of notice of appeal filed on 11 January 2021 as amended on 2 February 2021.

[2] [1980] HCA 13; (1980) 144 CLR 13.

[3] R v Proom [2003] SASC 88; (2003) 85 SASR 120, 129 [46] (Doyle CJ).

[4] R v Henry (1999) 46 NSWLR 346, 411 [338].

[6] Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2001, 2191 (Rob Hulls, Attorney-General).

[10] Sentencing Act 1991 (Vic) s 7(1)(ac).

[11] See, e.g., Sentencing Act 1991 (Vic) s 18ZT.

[12] See ibid s 18Z(1).

[13] Ibid s 18Z(3).

[14] See ibid ss 18Z(1)(a) and 18Z(5).

[15] Ibid s 18ZC(1).

[16] Ibid s 18ZC(2).

[17] Sentencing Act 1991 (Vic) s 18ZC(3).

[18] Ibid s 18ZD(2).

[19] Ibid s 18ZE(1).

[20] Ibid s 18ZI(1).

[21] Ibid s 18ZI(2).

[22] See ibid s 18ZH.

[23] See ibid s 18ZJ.

[24] See ibid s 18ZK.

[25] Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2001, 2193 (Rob Hulls, Attorney-General).

[28] See Sentencing Act 1991 (Vic) s 18ZN.

[29] See Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2001, 2194 (Rob Hulls, Attorney-General).

[30] The convictions giving rise to that sentence included for the offences of trafficking methylamphetamine, possessing cocaine, dealing with property suspected of being proceeds of crime, failing to stop a vehicle on police direction and driving whilst disqualified, see 'The Drug Treatment Order dated 6 October 2020' exhibited as Exhibit LR-1 to the Affidavit of Louis Robertson affirmed 18 January 2021.

[32] 'Chain of Custody Form signed by Domenic Nazareno on 23 November 2020' exhibited as Exhibit LR-3 to the Affidavit of Louis Robertson affirmed 18 January 2021; and 'Incident Report Form completed by Domenic dated 23 November 2020 and unsigned' exhibited as Exhibit LR-4 to the Affidavit of Louis Robertson affirmed 18 January 2021.

[33] 'Application for Cancellation dated 25 November 2020' exhibited as Exhibit LR-5 to the Affidavit of Louis Robertson affirmed 18 January 2021.

[34] 'Application for Cancellation Drug Treatment Order memorandum prepared by Winnie Sarpong dated 14 December 2020' ('Second Respondent's Report') exhibited as Exhibit LR-6 to the Affidavit of Louis Robertson affirmed 18 January 2021.

[35] 'Drug Court of Victoria: Incentives & Sanctions Framework 2018-2019 - v4 dated December 2018' ('the Framework') exhibited as Exhibit LR-2 to the Affidavit of Louis Robertson affirmed 18 January 2021.

[36] Appellant's Outline of Submissions flied 19 February 2021, [4].

[37] See Second Respondent's Report (n 34).

[38] 'Transcript of Proceedings, Corrections Victoria v Kon Makrogiannis (Magistrates' Court of Victoria at Melbourne, 202007990, Magistrate Parsons, 15 December 2020) exhibited as Exhibit LR-1 to the Affidavit of Louis Robertson affirmed 5 February 2021 ('Cancellation Application Transcript') as corrected in 'Table of Relevant Differences of 15 December 2020 hearing in Melbourne Drug Court' exhibited as Exhibit LR-2 to the Affidavit of Louis Robertson affirmed 5 February 2021 ('Table of Differences').

[42] Cancellation Application Transcript (n 38), T17.28-31.

[46] Ibid T21.08-10, as corrected in Table of Differences (n 38), 2.

[48] 'Court Order Cancelling the Appellant's Drug Treatment Order dated 15 December 2020' exhibited as Exhibit LR-7 to the Affidavit of Louis Robertson affirmed 18 January 2021.

[49] See Sentencing Act 1991 (Vic) s 18ZP(2).

[50] Appellant's Outline of Submissions dated 19 February 2021, [18].

[51] Transcript of Proceedings, Makrogiannis v Magistrates' Court of Victoria & Anor (Supreme Court of Victoria, S ECR 2021 0006, Incerti J, 29 March 2021) T27.01-T28.17; T49.01-13.

[52] [2016] VSCA 256.

[53] Pham v Legal Services Commissioner [2016] VSCA 256 [166].

[54] Citing Re Minister for Immigration and Multicultural Affairs; Ex-parte Miah (2002) 206 CLR 57; see also DPP v Kaba [2014] VSC 52; (2014) 44 VR 526, 544 [58] and the decisions cited therein where personal liberty was described as 'the most elementary and important of all common law rights'.

[55] Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2001, 2193 (Rob Hulls, Attorney-General).

[56] Second Respondent's Report (n 34) 1, referring to the entry in the Framework (n 35) 9, regarding 'deliberate interference with urine testing processes'.

[57] Cancellation Application Transcript (n 38) T22.05-08 as corrected by Table of Differences (n 38), 2.

[58] Ta v Thompson [2012] VSC 446 [28] (Whelan J).

[59] Roberts v Harkness [2018] VSCA 215.

[60] See Cancellation Application Transcript (n 38) T18.01-11.

[61] Citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 504 (Kitto J); Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585 (Mason J).

[62] Second Respondent's Outline of Submissions filed 4 March 2021 [24].

[63] Ibid, referring to Cancellation Application Transcript (n 38) T18.01-11.

[64] Second Respondent's Outline of Submissions filed 4 March 2021 [29].

[65] Under s 18ZP(2)(b) the Drug Court may 'deal with the offender if it had just convicted him or her of each offence, other than by making an order under section 7(1)(a).' Sentencing Act 1991 (Vic) s 7(1)(a) is the power to 'record a conviction and order that the offender serve a term of imprisonment' upon finding a person guilty of an offence.

[66] See Ferguson v Tasmania [2011] TASSC 51; McCullough v Larner [2012] TASSC 35; Parker v Shaw (2017) 31 Tas R 14.

[67] (2017) 31 Tas R 14.

[68] Parker v Shaw (2017) 31 Tas R 14, 22 [18].

[69] Parker v Shaw (2017) 31 Tas R 14, 22, 22-3 [19].

[70] (2018) 57 VR 334.

[71] Roberts v Harkness (2018) 57 VR 334, 354-5 [46]-[50] (Maxwell P, Beach and Niall JJA) (citations omitted).

[72] [2019] HCA 40; (2019) 93 ALJR 1307.

[73] HT v The Queen [2019] HCA 40; (2019) 93 ALJR 1307, 1313 [17]-[18] (citations omitted).

[74] Cancellation Application Transcript (n 38) T16.26-T18-21.

[75] Cancellation Application Transcript (n 38) T20.16-T21-21 as corrected by Table of Differences (n 38), 2.

[76] Pham v Legal Services Commissioner [2016] VSCA 256 [66]-[67].

[78] Second Respondent's Report (n 34) 1 [emphasis in original].

[79] Second Respondent's Report (n 34), 5.

[80] Cancellation Application Transcript (n 38) T21.22-T22.12 as corrected by Table of Differences (n 38), 2.

[82] Cancellation Application Transcript (n 38) T17.05-06.

[83] Affidavit of Louis Robertson affirmed 18 January 2021, 2 [8].

[84] SA de Smith and JM Evans (eds), De Smith's Judicial Review of Administrative Action (Oceana Publications, 4th ed, 1980) 278.

[85] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 519-520.

[86] See, eg, Morgan v DPP (NSW) [2020] NSWSC 1605 [47] (Campbell J).

[87] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280, 287 approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

[88] Cancellation Application Transcript (n 38) T18.09-11.

[89] Cancellation Application Transcript (n 38), T22.07-08, as corrected by Table of Differences (n 38), 2

[90] Cancellation Application Transcript (n 38), T21.08-10, as corrected in Table of Differences (n 38), 2.

[91] [2020] VSCA 242.

[92] Makeham v Sheppard [2020] VSCA 242 [37]-[38], [41].

[93] Relying on DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630 to state this would balance the public interest in the proper administration of justice with the interests of the accused.

[94] Affidavit of William Grimshaw affirmed 12 April 2021 [3].

[96] Relying on Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 427 (Walsh J).

[97] Sentencing Act 1991 (Vic) s 18Z(3)(b).

[98] Ibid s 18Z(3)(b).

[99] Criminal Procedure Act 2009 (Vic) s 272(10).

[100] Bchinnati v Connolly [2014] VSC 623, [21] (T Forrest J).

[101] See, eg, DPP v Farmer [2010] VSC 343, [37].

[102] See, eg, Rodger v Wojcik [2014] VSC 308, [40].

[103] [2020] VSC 49.

[104] Powell v Olsen [2012] VSC 381.

[105] Powell v Olsen [2012] VSC 381 [25].

[106] Bchinnati v Connolly [2014] VSC 623 [34].

[107] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 427 (Walsh J).

[108] [1984] HCA 48; (1984) 154 CLR 627, 630.

[109] [1984] HCA 48; (1984) 154 CLR 627, 630.

[110] See, eg, R v Joseph Terrence Thomas (No 3) (2006) 14 VR 515; Bauer (pseudonym) v R (No 2) [2017] VSCA 176; Roberts v R [2020] VSCA 277; Mokbel v DPP (Cth) [2021] VSCA 94.

[111] [2006] VSCA 300; (2006) 14 VR 512.

[113] R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512, 517-8 [27], [29]-[30].

[114] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 47 (Brennan J); see also DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630.