Cooper v Director of Public Prosecutions [2023] NSWCA 65 | Case summary

JUDGMENT

WHITE JA: This is a Summons for judicial review of a decision of a judge of the Drug Court terminating the applicant's program in the Drug Court. The applicant seeks to quash the decision on the grounds of jurisdictional error or error of law on the face of the record.
On 28 September 2021, the applicant was convicted in the Local Court criminal jurisdiction of the Drug Court (Drug Court Act 1998 (NSW) ("the Act") s 24(1)(b)) on 10 counts, to all of which he pleaded guilty. He was sentenced to an aggregate sentence of imprisonment of 27 months. At the time of his sentence, he had been in custody for 186 days. The sentence was immediately suspended to allow the applicant to commence his program. He was thereupon released into the community. He commenced his program on that day.
Conditions of the program included that the applicant attend a group session every Friday from a start date to be advised by his counsellor. He acknowledged that he would commit to phone counselling sessions by setting aside the time and focus to do so, and to be engaged in all counselling sessions. Further conditions were that he reside in a specified rehabilitation centre unless given leave by his treatment provider and case manager to reside at another nominated address. He was to sleep there each night unless he had prior approval of the Court or his case manager to be absent overnight, and was not to change that address until a new proposed address had been assessed as suitable by his case manager.
On 1 November 2021, the applicant was arrested and charged with 41 new counts of dishonestly obtaining financial advantage by deception. The offences with which he was charged were alleged to have occurred between 28 January 2020 and 28 October 2020.
One of the charges dealt with by the Court on 28 September 2021 concerned a fraudulent application by him under the Special Disaster Grant Scheme established following bushfires whereby he attempted to obtain a money grant of $75,000. The new charges also related to attempts, some of them successful, to obtain money from the scheme and from various charities. The charges included the allegedly fraudulent receipt of moneys totalling $52,500 from St Vincent de Paul, the Salvation Army and the Australian Red Cross; $32,999 from Service NSW; and $1,000 from the Australian government.
The applicant was refused bail and thus was held in custody from 1 November 2021.
On 26 November 2021, the Director of Public Prosecutions ("DPP") applied to the Drug Court (her Honour Acting Judge Keogh) to have the applicant's Drug Court program terminated. When the applicant's matter was called on in the Drug Court List, the solicitor from the DPP said: "PAPANIS: Your Honour, the application is to have Mr Cooper's Drug Court program terminated. Very briefly, Mr Cooper was charged on 1 November this year with 41 fraud charges, they're next listed for police mention at the Penrith Local Court on 3 December. The DPP has elected on those matters and he is currently bail refused on those matters. HER HONOUR: Elected to proceed on indictment? PAPANIS: Yes, your Honour."
Ms Papanis informed the judge that there was not then an EAGP (Early Appropriate Guilty Plea) compliant brief, and it was not anticipated that the matter would be ready for sentence for quite some time.
No formal process seeking termination of the applicant's program was filed, but no formal process was required (s 26 of the Act). The grounds of the application, as articulated orally for the DPP, were that:

when the applicant was found to be eligible for admission to the program the new 41 charges were unknown to the court;
the new charges were serious and far more grave than the original referred charge relating to the attempt to obtain money from the bushfire relief funds;
the Crown had originally had concerns about the appropriateness of his being admitted to the program and "…the admission [scil. issue?] of that inappropriateness becomes relevant again. When the Court considers his progression on the program with those charges coming before the Drug Court";
there would certainly be a large sentence applicable to the new matters were they to come before the Drug Court;
there was a real likelihood that media attention would continue and that could put a question mark over the Drug Court program for other participants, given the likely publicity and community expectation that the matters charged would call for significant prison time and that he not be permitted to serve that time in the community; and
in summary, the applicant was currently unavailable for the program, as he was bail refused and the nature of the additional charges were too serious.

The solicitor for the applicant opposed the application on grounds which may be summarised as follows:

the applicant commenced the Drug Court program in late September and had made good progress for a young man that had had significant problem with drugs;
the charges are themselves eligible charges under s 72A (scil. s 5) of the Act;
there was delay in the Crown laying the further charges, which was unexplained;
the object of the Act is to assist people to get on top of their drug addictions;
the Drug Court had a District Court jurisdiction in sentence;
community expectations were irrelevant;
an application had been lodged with the Supreme Court for bail;
if he received bail he could resume the program;
the Drug Court could initially sentence him in respect of the additional matters;
if the applicant were not allowed to come back onto the program, he would be resentenced on the existing matters in the Drug Court on 28 September, and on a sentence in the District Court on the additional matters, he faced a risk that the principle of totality would not be appropriately applied in the District Court sentence;
the applicant was motivated to complete the program; and
"With the promising start he's made, I'd ask the Court to consider not terminating his Program; having the matter adjourn; see if we can get him bail; having the further Initial Sentence and then hopefully restart his Program".

Neither solicitor referred the judge to the terms of the legislation she was to apply, or to how it was engaged. It can be inferred that both the judge and the practitioners were familiar with the legislation.
The judge gave ex tempore reasons for terminating the applicant's program. The transcript of her Honour's reasons is headed "JUDGMENT - Section 10(1)(b) argument".
The assumption in the parties' submissions was that the applicant would plead guilty to the new charges. The judge proceeded on the same assumption. That assumption was warranted in the circumstances because a person can only be admitted to a program if the person has pleaded guilty to an offence and has been found guilty of that offence (s 7A(2)(b)). The applicant's submission was that his program should not be terminated because there was a reasonable prospect that, in respect of the new charges, he would be given a further initial sentence and resume his program.
The primary judge observed that it had been submitted that general and specific deterrence would invite the necessity to impose a custodial sentence and call for the defendant to serve a term of full time imprisonment. Her Honour accepted that submission. Her Honour said: "There is a public interest, obviously in the defendant serving a sentence by way of imprisonment. I have already indicated considerations of specific and general deterrence. When considering the principles of open justice, the public is better served by having these kinds of matters openly scrutinised so issues such as general deterrence when raised are, as I said, scrutinised by the public. … …I do note that Mr Cooper is someone with a considerable criminal history. There is no doubt that over the years he has been someone who has abused illegal drugs. What concerns me is, as I said, the easy access to these funds and the planning that went into accessing them. His accessing of them included fabricating his involvement in a business or businesses and providing false addresses, which indicated he resided in fire-affected areas. On one occasion I understand he provided false medical information. The offences were not committed on impulse, they involved some planning. Of course, it is not the case that offending needs to be committed whilst someone is under the influence of a prohibited drug, but the planning and the dishonesty needs to be noted. In my view the issue of deterrence looms large and there is a public interest in the defendant's penalty or sentence being open to scrutiny and that terms of imprisonment are (probably) appropriate."
Her Honour rejected the submission of the DPP that the issue of media attention was relevant.
Her Honour concluded: "There is another matter that concerns me and that is that Mr Cooper now is not available to meet his obligations under the program has [sic] he is currently bail refused. The matters are progressing through the Local Court and will take a significant period before they are ready to be dealt with by the District Court. Additionally, there are still several charges in the wings. As I understand it there are three further charges. I do not know what the value of those are. I am aware this court has allowed others on the program who are facing significant period of imprisonment and at least on one occasion I am aware of for significant fraudulent activity, but in my view the general deterrence that is required to be addressed in this case due to the misuse of public funds and charitable funds to assist victims of natural disaster, is one that really requires a sentence of fulltime imprisonment rather than if you like the benefits that are available through the therapeutic program offered by the Drug Court. For these reasons, issues of general deterrence, the probable penalty that must be imposed and his current unavailability despite the fact there is a proposed Supreme Court Bail application, in my view the fresh matters are not appropriate although he is otherwise eligible and there are otherwise eligible matters the situation is the additional matters are not appropriate and so his program should be terminated."

Consideration

Ground 1 of the Summons asserts jurisdictional error on the ground that the judge did not make the "determination" required by s 10. The chapeau to s 10 does not refer to a "determination", but to whether the judge is satisfied that a drug offender has failed to comply with his or her program. If there is any issue about that question, then it would be expected that a judge would say whether or not he or she was satisfied that a drug offender had so failed to comply. In this case, the judge said "…Mr Cooper now is not available to meet his obligations under the program [as] he is currently bail refused". As that has been the position since 1 November 2021, it must have been common ground before the judge that, since 1 November 2021 (not 3 November, as the judge stated), the applicant had not complied with his program. He was unable to do so as he was in prison. Nonetheless, he had failed to comply with his program. As Mr Fernandez for the applicant accepted, this meant that the first criterion of jurisdiction was established. It should be understood from the sentence quoted above that the judge was so satisfied.
The next question was whether the judge was satisfied that the applicant was "unlikely to make any further progress in the program", or whether his further participation posed an unacceptable risk to the community that he might re‑offend.
Whether the applicant could make any further progress in the program would depend first upon whether he obtained bail, then upon whether, in respect of the further offences, it appeared to the Court that he was an eligible person who could be referred to the Drug Court to be dealt with for those offences, and then upon whether, on such a referral, the Drug Court would determine under s 7A(2)(c) that it would be appropriate for him to participate in a program under the Act.
The judge did not speculate on whether the applicant might obtain bail. There was no issue that he was an eligible person. The judge's reasons, like the parties' submissions, went directly to the third matter. Her Honour found that a sentence of full time imprisonment was the "probable penalty that must be imposed". This meant that her Honour was of the view that the Drug Court would not determine that, in respect of the further offences, it would be appropriate for him to participate in a program under the Act.
The applicant submitted that the judge addressed the wrong issue by focussing on whether she considered it would be appropriate for the applicant to be admitted to the program when convicted of the additional charges (s 7A(2)(c)). But that was evidently perceived to be critical to whether the applicant was unlikely to make any further progress on the program.
It is understandable and not inappropriate that, in a busy court, the parties would address on this last issue which was perceived to be determinative. No submission was advanced by the solicitor appearing for the applicant that, even if it were ultimately determined that the applicant should not be admitted to the program in respect of the further offences to which it was assumed he would plead guilty, his program should nonetheless not be terminated, because his continued participation in the program until such a determination was made could enhance his prospects of obtaining a favourable final sentence in respect of the original charges.
I accept that the judge's satisfaction that a drug offender has failed to comply with his or her program and is satisfied of at least one of the matters in s 10(1)(b) of the Act are jurisdictional facts on which the authority of the judge to decide to terminate the program depends. For the reasons above, I do not accept that the judge could not be, or was not, satisfied that the applicant had failed to comply with his program, nor that she could not be, or was not, satisfied that the applicant was unlikely to make any further progress in the program.
For the same reasons, I do not accept that the judge misconceived her function by not having regard to the considerations in s 10(1)(b). The heading to her judgment is some indication that she had regard to that provision, but the telling point is that her reasons address the submissions advanced that an extensive prison term for the new charges was warranted and that that meant that the applicant would be unable to progress further.
For the same reasons, I do not accept that the alleged irrelevant considerations referred to in ground 2(c) were irrelevant, certainly in the sense of their being forbidden. They were all relevant to an assessment of whether the applicant would be unlikely to make any further progress in the program, as he would be unable to do so if sentenced to imprisonment and it was not thought appropriate, having regard to his antecedents, for him to participate in the program. This is subject to a qualification that, if released on bail, he might make further progress that would count in his favour on a final sentence on the initial charges, but no such argument was advanced for her Honour's consideration.
I do not infer that the judge was also satisfied that the applicant's further participation in the program posed an unacceptable risk to the community that he might re-offend. Whilst her Honour's findings as to the seriousness of the further charges, and the planning involved, might justify her being satisfied also of this element, that would not necessarily follow.
Because the same grounds were relied upon in relation to both the first ground of review (jurisdictional error) and the second ground (error of law on the face of the record), it might be thought that if the first ground were rejected, the second ground should also be rejected. That is not necessarily so, but it is in this case. The DPP submitted that the "record" did not include the reasons of the judge. The DPP accepted, correctly in my view, that because the application was made orally, the record included the oral application for the order terminating the applicant's participation in the program and the grounds upon which the application was made. This is by way of analogy to a formal process by which proceedings are commenced. By the same analogy, in the absence of a formal process, the record should include the grounds advanced in opposition to the claim. It would only be if regard could not be had to the submissions made to the judge by both parties that the record (being the judge's reasons) might disclose error of law. Without knowing the issues to which the judge's reasons were directed, it might be thought that the judge had focussed on a wrong issue, as the applicant contended.
Contrary to the submission of the DPP, the reasons of the primary judge formed part of the record. The judge made an "ultimate determination" within the meaning of s 69(4) of the Supreme Court Act 1970 (NSW) in a proceeding. The decision finally determined the applicant's right to participate in the program. Although the decision was not a final determination "of" proceedings in the Drug Court because the applicant still had to be finally sentenced, it was an ultimate determination "in" the Drug Court proceedings (Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 at [235] (Wright J); approved in Secretary, Department of Communities and Justice v KH & Ors [2022] NSWCA 221 at [65]-[66]).
In Hockey v Yelland (1984) 157 CLR 124 at 143; [1984] HCA 72, Wilson J said that: "Ordinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication."
Where the application is not made by the filing of a document and there are no pleadings, but a record is kept by the keeping of a transcript of the application and the grounds in support of and in opposition to the application, I accept that the record can include that transcript. As Wilson J said in Hockey v Yelland at 143, it is for the court undertaking the review to determine what constitutes the record in the particular case.
It is only possible to determine if there is an error of law in the reasons of the judge by having regard to the grounds advanced for and against the application. Having regard to the focus of those grounds the judge did not commit an error of law.
For these reasons I propose that the Amended Summons be dismissed. Neither party sought an order for costs. The orders I propose are: 1. Extend the time for the filing of the applicant's Summons for Judicial Review to 22 April 2022. 2. Amended Summons dismissed.
BRERETON JA: The Drug Court Act 1998 (NSW) ("the Act") establishes a scheme under which drug dependent persons who plead guilty to criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs. A court before which a person is charged with an offence must ascertain whether he or she appears to be an eligible person and, if so, whether he or she is willing to be referred to the Drug Court to be dealt with for the offence. [1] The Drug Court may deal with a person referred to it in relation to an offence if satisfied "that the person is an eligible person"; that the person has pleaded guilty to and been convicted of the offence; that, having regard to the person's antecedents, it would be "appropriate" for the person to participate in a program under the Act; and that the person accepts the conditions imposed by the Act and the conditions that the Drug Court proposes to impose. [2] If so satisfied, the Drug Court is to deal with the person by convicting the person and sentencing him or her (the "initial sentence"), and then make an order imposing conditions on the person that he or she has accepted for his or her program, and an order suspending execution of the sentence for the duration of the person's program. [3] Upon termination of the programme (which may be if the Court is satisfied that the offender has substantially complied with the program, or if the offender requests the Court to terminate the program, or if the Court decides to terminate the program under s 10(1)(b)), the question of sentence is revisited, having regard inter alia to the nature of the offender's participation in his or her program. [4]
Section 10 makes provision for failures to comply with the program, relevantly as follows: "10 Proceedings for non-compliance with program (1) If it is satisfied, on the balance of probabilities, that a drug offender has failed to comply with his or her program, the Drug Court - (a) may, in accordance with the program, impose any one or more of the sanctions specified in the program as sanctions that the Court may impose on the drug offender, or (b) if it is also satisfied, on the balance of probabilities, that the offender is unlikely to make any further progress in the program or that the offender's further participation in the program poses an unacceptable risk to the community that the person may re-offend - may decide to terminate the program."
On 28 September 2021, on account of ten offences to which he had pleaded guilty ("the first charges") in respect of which he had been referred to the Drug Court, the applicant James Cooper commenced such a program. He progressed "reasonably well" in the program until 1 November 2021, when he was charged with a further 41 offences ("the new charges"), said to have been committed prior to his commencing his Drug Court program, and refused bail, as a consequence of which he could no longer comply with various requirements of the program. On 26 November 2021, by which time a release application to the Supreme Court was pending, the Drug Court on the application of the Director of Public Prosecutions made an order terminating the applicant's program, purportedly under s 10(1)(b). The applicant seeks relief by way of judicial review of that determination, contending that it involved jurisdictional error or error of law on the face of the record.
The factual background and the relevant statutory provisions are more comprehensively set out in the judgment of White JA, which I have had the benefit of reading, as I have had also the judgment of Kirk JA. I agree with their Honours that although the Drug Court did not explicitly find that the applicant had failed to comply with his program so as to engage s 10(1) (namely, "that a drug offender has failed to comply with his or her program"), that fact could not have been and was not in issue, and acceptance of it was implicit. [5] I also agree with their Honours that the Drug Court did not form the opinion (as the DPP contended her Honour had) that the applicant's further participation in the program posed an unacceptable risk to the community that he might re-offend, as referred to in s 10(1)(b). [6]
That leaves the question on which their Honours differ, that is whether the Drug Court failed to address or misconceived the jurisdictional issue posed by s 10(1)(b), namely whether the applicant "is unlikely to make any further progress in the program". There is no express reference, in the arguments or the reasons, to that question. That is not necessarily dispositive, and if it could be inferred that the Drug Court had indeed addressed that issue, notwithstanding the absence of specific reference to it in argument or the reasons, there would be no jurisdictional error. However, neither the submissions of the parties, nor her Honour's reasons - which are more fully extracted above by White JA [7] - refer to that question. The Drug Court's reasons are exclusively concerned with the new charges, and whether they are "appropriate" to be dealt with by that Court, and culminated in the following passage (emphasis added): "I am aware this court has allowed others on the program who are facing significant period of imprisonment and at least on one occasion I am aware of for significant fraudulent activity, but in my view the general deterrence that is required to be addressed in this case due to the misuse of public funds and charitable funds to assist victims of natural disaster, is one that really requires a sentence of fulltime imprisonment rather than if you like the benefits that are available through the therapeutic program offered by the Drug Court. For these reasons, issues of general deterrence, the probable penalty that must be imposed and his current unavailability despite the fact there is a proposed Supreme Court Bail application, in my view the fresh matters are not appropriate although he is otherwise eligible and there are otherwise eligible matters the situation is the additional matters are not appropriate and so his program should be terminated."
From that passage, it appears that her Honour was addressing, as the decisive issue, whether the new charges were appropriate to be dealt with in the Drug Court. The very expression "in my view the fresh matters are not appropriate although he is otherwise eligible and there are otherwise eligible matters the situation is the additional matters are not appropriate and so his program should be terminated" bespeaks that her Honour was considering eligibility and appropriateness of those matters for the program, which are the relevant considerations under s 7A(2)(a) and (c) when considering whether the Drug Court may deal with a person under this section in relation to an offence; and the conclusion is expressed in terms that because the new matters are not appropriate, the program should be terminated.
However, this was not the occasion for determination whether the new charges were appropriate for the program. That was a matter to be determined only when those new matters were referred to the Court. I accept that the fact that he was currently "bail refused" in respect of them and that it was likely that they would not be considered appropriate could permissibly have been taken into account on the question whether further progress was unlikely, and I have not overlooked the argument that in addressing these matters her Honour was doing no more than prognosticating on the likely fate of the new charges so as to inform an assessment of the likelihood of the applicant making any further progress, which would not have been impermissible. But there is nothing to indicate that her Honour appreciated that the question for decision turned not on the "appropriateness" of the new charges, but on the likelihood of any further progress under the existing program.
Jurisdiction under s 10(1)(b) is triggered by a failure to comply with the program, and is an alternative to a sanction (under s 10(1)(a)) for the failure to comply. Thus paragraphs (a) and (b) provide alternative responses to a failure to comply with the program. A proper consideration of the issue posed by s 10(1)(b) begins with the non-compliance (or breach) which engages the section, and consideration of what is an appropriate response to that breach, which may be termination if no further progress is likely. As the test requires that the applicant be "unlikely to make any further progress" (emphasis added), it required consideration of whether some further progress might be made in the meantime, even if he were likely eventually to go into fulltime imprisonment as a result of the new charges. The Drug Court's reasons contain no indication that regard was had to the circumstance that the relevant breach was involuntary in the sense that participation was precluded while he was bail refused, a situation which might well have come to an end had his then pending bail review application succeeded. This, and the focus on whether the new charges were "appropriate" - are indicative not merely of a failure to have regard to a relevant consideration and the taking into account of an irrelevant one - which would of themselves suffice to establish jurisdictional error - but more significantly of a misunderstanding of the jurisdiction being exercised.
I do not overlook that the proceedings were conducted in a busy list, by practitioners and before a judge who were familiar with the legislation, and that the reasons were ex tempore, and address the issues that were argued. However, the outcome cannot be saved from jurisdictional error by the circumstance that the parties chose to fail to address the true issue, thus inviting the Court to do likewise.
In my opinion, the Drug Court misconceived its function as involving determination whether the new offences were "appropriate", and failed to address the essential issue, which was whether the applicant was unlikely to make any further progress in the program. That was jurisdictional error. I agree with the orders proposed by Kirk JA.
KIRK JA: The circumstances in which this judicial review application is made, and details of the statutory scheme, are set out in the judgment of White JA. As explained by his Honour, on 28 September 2021 the applicant commenced his program in the Drug Court having been sentenced with respect to 10 charges (the first set of charges). Execution of the sentence imposed for those charges was suspended for the duration of the applicant's program pursuant to s 7A(2)(b) of the Drug Court Act 1998 (NSW) (the Act).
Subsequently, on 1 November 2021, the applicant was charged with a further 41 counts relating to dishonestly obtaining financial advantage by deception (the second set of charges), the conduct for which occurred prior to him commencing his Drug Court program. He was refused bail on the second set of charges, as a consequence of which he could no longer comply with various requirements of his Drug Court program for the first set of charges. In that context the first respondent, the Director of Public Prosecutions (DPP), applied for termination of the applicant's program.
The issue for the Drug Court to determine in the decision under challenge was whether or not to terminate the applicant's participation in the Drug Court program with respect to the first set of charges. The Court was not determining whether or not it was appropriate that the second set of charges should be dealt with in that Court.
The issue of termination fell to be determined pursuant to s 10(1) of the Act. That section gives the Drug Court a discretionary power to terminate the program of a drug offender participant. There are two statutory preconditions that must be met in order to enliven the Court's discretion, the second of which itself contains two alternatives: 1. that the Court is satisfied, on the balance of probabilities, that the participant had failed to comply with their program (this precondition is set out in the chapeau of s 10(1)); and 2. pursuant to s 10(1)(b), that the Court is satisfied, on the balance of probabilities, either that the participant: 1. is unlikely to make any further progress in the program, or 2. that the offender's further participation in the program poses an unacceptable risk to the community that the person may re-offend.
As explained by White JA at [37], these are jurisdictional preconditions to the exercise of the power which the Court must consider in order to reach a decision on an application to terminate. If the two preconditions are met - ie if the Court reaches the relevant degree of satisfaction on each - then the Court has a discretion whether or not to terminate the participant's program (the Court "may decide to terminate the program"). A failure to consider and be satisfied of the two preconditions is not merely an error going to the identification of relevant issues, the formulation of relevant questions or the determination of what is relevant evidence: cf Craig v South Australia (1995) 184 CLR 163 at 179-180; [1995] HCA 58. Nor is it merely a failure to comply with a directory legal requirement. The preconditions are structured as an "essential preliminary to the exercise of a statutory power": Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [92].
As White JA describes at [38], and taking account of the conditions of the applicant's program identified above at [3], it appears that there was no real dispute that the Drug Court would be satisfied that the applicant had failed to comply with his program as a consequence of being remanded in custody. The issues then were whether or not the Drug Court should be satisfied of the second precondition by reference to one of the two alternatives in that precondition, and, if so satisfied, how the Court should exercise its discretion.
It is not apparent from the transcript of argument in the Drug Court that attention was properly directed to these legal issues by either party. The submissions are summarised by White JA at [9]-[10] above. Notably, the submissions put on behalf of the DPP focused on the second set of charges, leaving aside some irrelevant and regrettable submissions about what elements of the news media might say about the applicant's continued participation in the program. The culmination of the DPP submissions was that "the Court should terminate Mr Cooper's Drug Court program based on the fact that he has these charges, he's currently unavailable, he's bail refused on them and the nature of those charges are too serious". No submission was made in terms that the applicant was unlikely to make any further progress in the program, nor that the applicant's further participation in the program posed an unacceptable risk of re-offending.
The focus of her Honour's reasons was also on the second set of charges. For example, her Honour said with respect to those charges that "[i]n my view the issue of deterrence looms large and there is a public interest in the defendant's penalty or sentence being open to scrutiny and that terms of imprisonment are (probably) appropriate". Her Honour's concluding sentence neatly summarises her reasons: For these reasons, issues of general deterrence, the probable penalty that must be imposed and his current unavailability despite the fact there is a proposed Supreme Court Bail application, in my view the fresh matters are not appropriate although he is otherwise eligible and there are otherwise eligible matters the situation is the additional matters are not appropriate and so his program should be terminated."
Leaving aside the reference to current unavailability, these reasons relate to the second set of charges and whether or not it is appropriate that they be dealt with in the Drug Court. Her Honour did not address in terms whether or not the applicant was unlikely to make any further progress in his program on the first set of charges, nor whether further participation in the program by the applicant posed an unacceptable risk to the community that the person may re-offend.
As to the second of those alternative possibilities arising from s 10(1)(b), in this Court counsel for DPP (who did not appear below) submitted that "it would be open to the Court to conclude that her Honour was satisfied that there was an unacceptable risk". She referred in this regard to what the judge had said in her reasons about the need for general and specific deterrence, the seriousness of the new offences and the nature of those offences. Counsel suggested that her Honour may have been "concerned that these offences had less of a nexus to the applicant's drug use and that that is a matter relevant to the question of recidivism".
However, counsel also candidly accepted that she could not "identify in the reasons an articulation of this finding in the statutory language", and that there was no finding about the likelihood of future offending. The statutory criterion is forward-looking. The issue is whether the offender's further participation in the program - as opposed to, say, being imprisoned - poses an unacceptable risk to the community that the person may re-offend. Yet the judge's focus was on the second set of charges and how they should be dealt with. Of course, past conduct can be a guide to the assessment of future risk. But given that these offences occurred prior to his participating in the Drug Court program, no necessary inference arose that the conduct indicated a risk of recidivism if the applicant remained in the program.
It is to read too much into her Honour's references to deterrence and the nature of the new offences to conclude that she was implicitly addressing this second aspect of the s 10(1)(b). And to do so is inconsistent with the fact that her Honour's expressed conclusion focused on whether the fresh matters were appropriate to be dealt with in the Drug Court. Moreover, although this Court was not provided with a copy of the formal order made by the Drug Court, counsel for the DPP informed the Court that the relevant electronic system recorded the order as "Program discharged - no prospect to progress". The terms of the order undermine any reliance on this alternative.
As for the first alternative, it may have been open for her Honour to conclude that the applicant's prospect of obtaining bail on his second set of charges was low, such that he was unlikely to make any further progress on his current program. But that is not what her Honour addressed or found. The reference to current unavailability cannot be construed as addressing that issue.
It is conceivable that there were various ways in which the second set of charges might cast doubt on the likelihood of the applicant making further progress, such as throwing some new light on his character and tendencies. But an explanation of the link would be required.
It may have been open for her Honour to conclude - separately or additionally to any conclusion about obtaining bail - that because it was unlikely that the second set of charges would be eligible or appropriate to be dealt with in the Drug Court, and taking account of the likely timing of those matters being dealt with and his likely sentence, that meant the applicant was unlikely to make any further progress in the program (eg because he was likely soon to be subject to a term of imprisonment). But, again, that is not what her Honour addressed or found.
A conclusion that the second set of charges was not likely to be suitable for proceeding in the Drug Court does not necessarily mean that the applicant was unlikely to make any further progress in the program as imposed for the first set of charges. If the applicant had ultimately been sentenced to a significant term of imprisonment on the second set of charges, then it is likely that at that point the conditions for terminating his participation in the program on the first set of charges would be met because of his inability to participate in the program by virtue of being in prison. That eventuality would not mean that his participation in the program in the meantime was futile, at least if there was a real prospect he would obtain bail in that period.
Under the Act, when the Drug Court comes to terminate a drug offender's program - whether because they have substantially complied with (and finished) the program, or by request, or under s 10(1)(b) - then the Court "must reconsider the drug offender's initial sentence" and is to determine their "final sentence": ss 11, 12. That final sentence "is not to be greater than the initial sentence": s 12(4). By plain implication the resentencing is to take account of such progress as the offender has made on their program including, no doubt, in addressing their drug dependency. One of the criteria for being an eligible person to participate in a Drug Court program is that the person appears to be dependent on the use of prohibited or prescribed drugs: s 5(1)(d). It is clear that programs are intended to address that issue: see ss 7A(5) and (7), 8A and 16. The objects of the Act include reducing the drug dependency of eligible persons and reducing the need for such persons to resort to criminal activity to support their dependency: s 3(1). And the Act is said to achieve its objects with respect to eligible persons "by establishing a scheme under which drug dependent persons who are charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs": s 3(2).
When the time for resentencing comes the offender may have completed their program and made some limited progress. Or they may not have completed the program but have made substantial progress. Merely because it can be foreseen at a particular point in time that it is likely the program will have to be ended early under s 10(1)(b) at some time in the future does not necessarily mean that the offender will not make any progress in the program in the meantime, including in addressing their drug dependency. Nor, of itself, does it mean that the criterion in s 10(1)(b) is fulfilled. And any progress the offender has made may well reduce the final sentence imposed.
Counsel for the DPP accepted that the assessment required as to making further progress "would depend on certain matters, such as what progress had been made to date and whether there was any purpose in the completion in terms of further progress being made". Thus, as she went on to accept, the assessment involves issues of fact. The Drug Court is required to consider whether the particular participant, in light of the evidence before the Court, was unlikely to make any further progress in the program. That factual issue was simply not addressed by the primary judge here.
No doubt some allowance must be made for the facts that the application was likely made in a busy court, that the practitioners and judge were likely familiar with the legislative scheme, and that her Honour's reasons were delivered ex tempore. Nevertheless, the criterion in s 10(1)(b) was not grappled with as regards either of the alternatives. Where a judge is bound to state reasons, "the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result": Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [130]. Reflecting the submissions that had been put, her Honour appears to have been distracted by consideration of whether or not it would be appropriate for the second set of charges to be dealt with in the Drug Court. That issue may have been relevant to whether the applicant was unlikely to make any further progress in the program, or whether his continued participation in the program posed an unacceptable risk of re-offending. But it was not determinative of either.
The error was jurisdictional. It can be expressed in different ways, but put simply the Court purported to exercise the statutory power of termination without properly having considered and reached a conclusion on whether or not it was satisfied of either of the alternatives in the criterion in s 10(1)(b). Without having addressed the statutory criterion the Court could not be satisfied of it. A statutory precondition to the exercise of power was thus not met and the power of termination was unavailable. The application made on behalf of the DPP has not yet properly been determined. There was, in sum, a constructive failure to exercise jurisdiction.
This conclusion means it is unnecessary for me to address the other legal grounds raised by the applicant.
The applicant requires an extension of time to commence his proceeding but that was not opposed by the DPP. The parties agreed that each side would bear their own costs.
In my view the orders of the Court should be as follows: 1. Extend the time for the filing of the applicant's Summons for Judicial Review to 22 April 2022. 2. Set aside the order made by the Drug Court on 26 November 2021 terminating the applicant's Drug Court program. 3. Direct the Drug Court to determine the first respondent's application under s 10(1)(b) of the Drug Court Act 1998 (NSW) according to law.

Cooper v Director of Public Prosecutions

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