Magistrates - Appeal from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Cancellation of drug treatment order - Discount of eleven weeks for compliance with drug treatment and supervision unwarranted.

Sentencing Act 1997 (Tas), ss27B, 27C, 27F, 27K, 27N, 27Q.

Judgment Number: [2012] TASSC 35

CONSTABLE JULIE McCULLOUGH v HAYDEN JOEL LARNER

1 On 26 July 2011, Magistrate Hay sentenced the respondent, Mr Larner, to a drug treatment order. The custodial part of the order was described as a term of 50 weeks' imprisonment, less time served in custody. The time that had been served in custody was nine weeks, thereby reducing the term to 41 weeks' imprisonment. The drug treatment order included various conditions which attached to the treatment and supervision part of the order. These were standard conditions, many of which are stipulated in the Sentencing Act 1997. The respondent had to undergo drug treatment and comply with a comprehensive drug treatment program known as the court mandated diversion for drug offenders program or CMD program. As with all drug treatment orders, in the event that an offender showed unwillingness to comply with treatment, a court could make an order cancelling the treatment and supervision part of the order, and activating some or all of the custodial component of the order. It transpired that Mr Larner's response to the program was poor, and just several weeks after he started the program the court received a recommendation that the order be cancelled. On 2 November 2011, Magistrate Hay cancelled the treatment and supervision part of the drug treatment order. In relation to the custodial part of the order, the learned magistrate sentenced the respondent to a term of immediate imprisonment of 30 weeks, backdated to 19 September 2011. The motion to review relates to the sentence of 30 weeks' imprisonment.

2 The State seeks a review of the sentence of 30 weeks' imprisonment, contending that the learned magistrate erred in reducing the custodial term of 41 weeks' imprisonment by 11 weeks_._ The State contends that the sole basis for the discount was to give the respondent credit for his compliance with the drug treatment program and the credit was too much, given his poor response to the program. On behalf of the respondent it was contended that the reduction of 11 weeks is attributable to various factors, not just compliance with the program; the sentence of 30 weeks' imprisonment involves a reconsideration of the sentence, and amounted to a proper exercise of his Honour's sentencing discretion.

3 There are two alternative grounds of review. The first is that the Magistrate erred in fact and/or in law by imposing a sentence that was manifestly inadequate in all the circumstances of the case and in particular, erred in discounting the original custodial term by 11 weeks for the respondent's participation in the drug treatment program. The second alternative ground is that the magistrate erred in not providing any, or sufficient reasons for the discount of 11 weeks in particular, as to the factors positive to the respondent, and regarding the respondent's participation in the drug treatment program.

4 At the hearing of the review, the submissions focussed on the first alternative ground of review. The essence of the submissions made for the State was that the learned magistrate made a specific error, because the sentence of 30 weeks' imprisonment reflected a discount which was not justified. That erroneous approach rendered the sentence manifestly inadequate. The respondent's contention was that specific error did not occur and that the discount of 11 weeks was not solely due to compliance with the program. It was acknowledged that if this contention was rejected and the discount of 11 weeks was due solely to participation in the program then, in the circumstances of this case, such a discount would lack justification. It was argued for the respondent that such an erroneous approach was not taken.

5 The central question arising from the first alternative ground of review is whether the learned magistrate erred in the approach taken of discounting the custodial term by 11 weeks. There are ancillary issues that need to be determined. A list of the issues that fall for determination is as follows:

•

Clarification of the specific offences that were subject to the drug treatment order and which attracted the sentence of 30 weeks' imprisonment.

•

Whether the sentence of 30 weeks is an order activating part of the custodial term under the Sentencing Act, s27Q(2)(a), or a re-sentence under s27Q(2)(b)?

•

The factors that were reflected in the sentence of 30 weeks, and which led to a discount of 11 weeks.

•

Whether the approach taken of allowing a discount of 11 weeks was, in the circumstances of this case, erroneous in the sense of lacking in justification?

6 It is necessary to retrace the path of the proceedings to the sentencing hearing on 26 July 2011, when the original sentence, the drug treatment order, was imposed. The respondent appeared before the learned magistrate on a significant number of complaints, many of which involved offences of dishonesty. The offences were committed in the period July 2005 to March 2006. The substantive offences involved the following: stealing a motor vehicle valued at approximately $5,000; burglary of Video Ezy by driving the stolen vehicle into the shop front window and stealing $1,500 worth of DVDs and video games; burglary of Fletcher Photographics - entry gained by driving the same stolen vehicle into the shop front window causing $5,000 worth of damage, stealing cameras worth $5,776; stealing three vacuum cleaners and a set of bathroom scales from Harvey Norman worth $4,702; stealing sound systems valued at $1,256 from Kmart; stealing a mountain bike valued at $4,500; two charges of unlawful possession, each involving a mountain bike, total value $8,000; burglary and stealing involving theft of a computer laptop valued at $2,350 from The Laptop Shop; possession of a controlled drug (one tablet of morphine); destroy property by smashing a windscreen of a motor vehicle with a baseball bat; burglary of business premises "Cash and Carry", by removing a window in the roof, deactivating an alarm and endeavouring to enter premises by smashing a hole in the ceiling. The respondent failed to appear at court in relation to the last-mentioned burglary offence and was extradited from Victoria in relation to it. The total value of property stolen was approximately $26,484.

7 At the time of sentencing the respondent was 31 years of age with a history of offending in South Australia committed when he was a young man. Notably, he received a term of 18 months' imprisonment in 2000 for dishonesty and driving offences. He also has a record of offending in Victoria which post-dated the offences under review, and he served periods of imprisonment in 2009 (one year and five months) and 2010 for various offences including dishonesty. In 2007 he received a sentence of 18 months' imprisonment for trafficking in amphetamine. He has a history of offending in Tasmania for driving offences in 2005 and 2006.

8 For the purpose of sentencing the magistrate had been provided with a "Court Mandated Diversion Drug Treatment Order Assessment Report" by Laura Blackwell, Court Diversion Officer, dated 13 July 2011. It was evident that the respondent had a longstanding drug problem and that illicit drug use has persisted since early adolescence. There was specific concern in relation to cannabis and morphine. It was recommended that he be given an opportunity to participate in the CMD program.

9 His Honour made a drug treatment order. He dealt first with the custodial component of the sentence stating as follows:

"On the - essentially the dishonesty matters at complaints numbered 18041, 4860, 8353 and also 8356, 13522, 8387, 2216, 24841 and 94725 I'm going to sentence you to a period of fifty weeks imprisonment and the period that you've already spent in custody between the 17th of February 2011 and the 21st of April 2011 is to be reckoned as a period of imprisonment already served under this sentence, so it's fifty weeks less that period of time."

10 During argument on the hearing of the review, two questions emerged about the terms and effect of the custodial part of that order.

Two questions regarding the original sentencing order

11 Counsel for the respondent submitted that the custodial component of the drug treatment order was 50 weeks' imprisonment, not 41 weeks. The magistrate's comments on passing sentence include the passage, set out above at par[9], that the sentence was "50 weeks less that period of time", being time in custody. The comments are ambiguous as they could mean that the custodial part of the order is 50 weeks and that the time spent in custody of nine weeks was noted for future reference, so that in the event the order was activated, he should not be required to serve all of the 50 week term. Alternatively, the comments could mean that the custodial part was 41 weeks, having taken into account the time spent in custody.

12 Consideration of the memorandum of sentence signed by the District Registrar of the court refers to a "term of 50 weeks". However, it does not reliably assist in resolving the ambiguity. To illustrate this, the memorandum provides that "The Court sentenced you to serve a term of 50 weeks imprisonment commencing on 26th day of July 2011". On any view, this aspect of the memorandum was incorrect as the custodial part of the drug treatment order did not commence on 26 July 2011. It was the drug treatment order that commenced on that date. The statutory scheme is that the custodial part is held in abeyance, and imprisonment would only commence if activated by court order (Sentencing Act, s27F(3), and s27Q(2)(a)). While the memorandum goes on to correctly note that "you are not required to serve all or any of the custodial part of the drug treatment order unless ordered to by this Court ...", it is apparent that the record could well be inaccurate as to the detail of the order.

13 An argument advanced for the respondent to support the contention that the custodial part was 50 weeks, not 41 weeks, was that the magistrate must have backdated the term for nine weeks to a date when the respondent was not actually in custody, to reflect the period of time spent in custody: see Geale v Tasmania [2009] TASSC 28. At the time the respondent was sentenced he was not in custody. Earlier, he had spent a period of nine weeks in custody from 17 February 2011 to the 21 April 2011. This period was spent on remand after he had been extradited from Victoria in relation to a warrant for non-appearance on the burglary charge, mentioned above. If the sentence had been backdated to reflect that period spent in custody, it would be at odds with remarks made by the magistrate that the respondent was not required to serve any or all of the custodial part of the sentence unless ordered to do so. Those comments correctly reflect the terms of the Sentencing Act s27F(3), that all or any of the custodial part of the drug treatment order is not to be served unless it is activated by court order. Having regard to the comments and, more fundamentally, the very nature of a drug treatment order, it is plain that no part of the custodial part of the order was backdated.

14 I do not need to resolve the ambiguity as to whether the custodial period should be regarded as 50 weeks or 41 weeks as it could have no bearing on the appeal. It is beyond contention that 41 weeks represented the custodial period that the respondent was in jeopardy of serving if the order was cancelled. This is clear from the learned magistrate's comments when imposing the drug treatment order. On re-sentencing, the magistrate proceeded on the basis that 41 weeks was the appropriate starting point for the purpose of determining the length of the custodial part of the order that may be activated. Having cancelled the drug treatment order, and at the critical stage of re-sentencing, his Honour stated "the head sentence in my view is forty-one weeks, taking into account the time you spent in custody between the 17th February and the 21st April."

15 As an aside, relevant to any consideration of the adequacy of the sentence, it would be proper to have regard to the fact that the respondent had spent a period of nine weeks on remand, and that this factor had been taken into account by the court on sentencing. Thus, the sentence ultimately imposed of 30 weeks' imprisonment was tantamount to a period of 39 weeks.

16 There was another question about the nature of the sentencing orders imposed at the original sentencing hearing. The magistrate sentenced the respondent for three categories of offences: the dishonesty offences I have mentioned, a number of driving offences, that did not attract the drug treatment order and a number of breaches of bail and bail offences. The sentence imposed by the magistrate for the breaches of bail was a "period of four weeks imprisonment ... concurrent with the fifty weeks ...". While it is clear that the respondent did not have to serve the period of four weeks, there is an ambiguity in the sentence. Did the learned magistrate mean that the four weeks imprisonment was a term of actual imprisonment to be concurrent with the portion of the 50 weeks noted as served ie the period of nine weeks on remand? Or was the "four weeks imprisonment" an explanation for how the period of fifty weeks was reached, and the bail offences were meant to be covered by the drug treatment order? The difficulty is that the sentence of four weeks imprisonment was imposed without clarifying whether it was part of the drug treatment order. It is noted that the memorandum of sentence provides that the drug treatment order relates to the offences of breach of bail, however, it has already been seen that the memorandum in this instance is not reliable as an accurate record.

17 This group of offences could only have been the subject of a drug treatment order if the court was satisfied that "illicit drug use contributed to the commission of the offences", s27B(b)(ii) of Sentencing Act. The facts stated by the prosecutor did not suggest this was the case, and in fact it was indicated that the offences resulted from the respondent travelling interstate to see his children and ex-partner. I need to determine this point regarding the order, as there needs to be certainty in terms of the offences that are subject to this review.

18 I note that the magistrate would have been familiar with the Sentencing Act, s27B(b)(ii), and that his Honour would have been conscious that the term of 50 weeks encompassed nine weeks spent in custody. After some hesitation, I conclude that his Honour meant that the four week term was concurrent with the portion of the period of 50 weeks attributed to time served on remand. I proceed on the basis that the correct view of the sentencing order in relation to the breaches of bail is that the term of four weeks' imprisonment was backdated to the period served on remand, or to be treated as served. This is not the only view of the meaning of the order. Admittedly, if this was the intended result it would be more usual for a sentencing magistrate to speak of the sentence as having been served or backdated. Nonetheless, I consider that the correct view of the sentence is that the offences of breaches of bail do not form part of the offences before me that are the subject of the drug treatment order.

19 Having reached a determination regarding the custodial component of the drug treatment order, set out at par[9] above, his Honour went on to impose the treatment and supervision component of the order. First, he carefully explained to the respondent a number of matters, emphasising that a drug treatment order was not an easy path, and his obligations to be free of illicit drugs and not offend. He further explained what the respondent had to gain in terms of being no longer drug dependent, not having to serve the term of imprisonment, and the operation of sanctions under the Act. There was an exchange between the magistrate and the respondent during which the respondent asked whether "if you mess up bad you can actually be taken off straightaway?" and the magistrate affirmed that was the case and that he would then have to serve the sentence. The magistrate took time to explain to the respondent how the court would supervise the order and that he would receive reports about his progress; that the order would mean that "doors would open" in terms of assistance. At the end of the magistrate's explanation, he asked the respondent if he still wanted to be offered the program, and the respondent confirmed that he did, and stated that he was grateful for the opportunity. His Honour went on to address the statutory criteria for the making of a drug treatment order, and in completing the order, read out to the respondent the conditions that attached to the treatment and supervision part of the order.

20 The respondent subsequently attended court on 12 August and 26 August 2011 for reviews of his progress on the program. For each review the magistrate had a report from the court diversion officer of the CMD program. The reports provided information about the number of case management appointments and counselling sessions the respondent had attended, and the results of urinalysis. The tests were positive for illicit drugs. He showed some insight and acknowledged his struggle to abstain. The respondent attended the first appointed court date of 12 August, there was a review of his situation and the magistrate imposed four sanction days. At his court appearance on 26 August 2011, the respondent admitted he had used cannabis on that day and the learned magistrate imposed six sanction days.

21 The respondent was due to attend court on 9 September 2011 and in advance of that date a report was filed with the court by the respondent's court diversion officer applying for cancellation of the order. The respondent had attended for drug screen testing a few days after his last court date and the result had been clear. When the respondent became aware that further testing of the sample was to occur to determine the validity of the sample, he admitted that he had provided a urine sample that was not his own. The program had been alerted to the questionable validity of the sample by a report from a source that the respondent had been heard discussing his ability to cheat a drug screen test. A further matter referred to in the cancellation report was that he had been assessed by Drug and Alcohol Services as unsuitable for detoxification due to his lack of motivation and unwillingness to abstain from cannabis. The report provided that due to:

"... Mr Larner's deceptive behaviour, CMD have serious concerns in relation to Mr Larner's readiness and willingness to address his illicit drug use. It is evident that Mr Larner is at the Pre-contemplative stage of his rehabilitation, as evidenced by his substituting of a drug test, and refusal to participate in Detoxification with Drug and Alcohol Services to assist him to move through the stages of recovery. It is acknowledged Mr Larner was eventually honest in relation to his substituted drug test, however CMD have a zero tolerance policy in relation to such actions due to the impact upon not only the individual, but the credibility of the program."

22 The report usefully summarised the extent of the respondent's involvement in the program:

•

He had been a participant for six weeks.

•

He had attended seven case management appointments between 28 July 2011 and 7 September 2011.

•

Attended three counselling sessions.

•

Required to attend for drug screen testing on eight occasions, and attended six of those occasions. Only one test was clear and that was the product of his deceptive conduct.

•

Struggled to abstain and continued to use high levels of morphine and cannabis.

•

Lacked motivation to participate in "detoxification".

23 A further matter was that he had received ten sanction days and none of his sentence had yet been activated (s27N(1)).

24 At the scheduled court date of 9 September 2011 the respondent did not appear and a warrant was issued. The warrant was executed on 19 September 2011 and on 20 September the respondent was brought before the court and remanded in custody to appear on 5 October 2011. On that date an application for an adjournment was granted and the matter listed on 2 November 2011.

25 The application for cancellation was dealt with on that date. The application was opposed and it was noted that the respondent had been in custody for some weeks, had been subject to a period of "forced detox", he had a new respect for the program and he wanted a second chance. At that time the respondent was also in custody on an indictable matter. After hearing from counsel, the magistrate made an order cancelling the drug treatment order. The magistrate noted that it was unlikely that the defendant could comply with the conditions of the orders "for obvious reasons", referring no doubt to the fact that the respondent was remanded in custody on an indictable matter, and that the continuation of the treatment and supervision of the order was unlikely to achieve any of the purposes for which it was made, and to protect the integrity of the program for other users. The magistrate then considered the course to be taken. His Honour noted that he must take into account the extent of the respondent's compliance with the order, and in this regard referred to the Sentencing Act, s27Q.

26 The learned magistrate noted the following matters:

"... sentenced previously Mr Larner to a total period of fifty weeks imprisonment. The report tells me that he was on the program for some six weeks and whilst he struggled during that six weeks with illicit substances, he was certainly complaint with his initial engagements in the program, attending counselling and sessions with a counsellor, Mr Schmitt, on many occasions.

He also attended for urinalysis when required, notwithstanding that in the main he proved positive, which is not an unusual circumstance in the early stages of a drug treatment order, but of course, the significant factor I have to take into account here, is his substitution of a sample, and it's that substitution of the sample which has really caused an issue for the integrity of - or his credibility to remain in the program and severely affected the integrity of his part in the program.

But having substituted that sample, when faced with that information, put to him by his CDO, then he readily accepted that that was what he had done, and expressed remorse for it, and that's confirmed and acknowledge in the report. I've taken into account all of the factors that are highlighted on behalf of Mr Larner in the report."

27 His Honour referred to a decision of Ferguson v Tasmania [2011] TASSC 51, noting some of the facts of that case. Ferguson involved cancellation of a drug treatment order, the custodial part of that order being nine months' imprisonment. On cancellation the magistrate activated seven months of that order. The defendant applied for review and it was upheld. One of the successful grounds was that the term of imprisonment which was activated was manifestly excessive having regard to various factors. These factors included: 14 days' imprisonment served as sanctions, the defendant had been subject to the CMD program involving an intensive level of supervision for approximately 14 months; had attended many appointments with CMD, compliance with aspects of the treatment and supervision part of the order, including attaining vocational certificates, one of which involved 150 hours of training; completion of a drug program of 12 sessions; personal gains made while on the program, including obtaining full-time work, and some success with her drug addiction. As noted by me in Ferguson, the weight to be given to compliance with a drug treatment order is a matter that will depend on the facts of each case. The case was clearly distinguishable from the present one. In that case the notice to review was upheld and the defendant re-sentenced. The sentence imposed after upholding the notice to review is not particularly helpful in terms of the weight that may be given to compliance, as it did not merely reflect an adjustment of the weight to be allocated to this factor, but also took fresh account of other factors in mitigation.

28 The learned magistrate in this case, having referred to Ferguson, went on to note that the respondent was "co-operative where necessary" and had not served any of the sanction days in prison.

" ... taking into account all those favourable factors that I should take into account under the legislation, I take into account that whilst he was only on the program for a relatively short period of time, and he fell apart in a significant way, nevertheless there were some other significant factors that were positive to him.

He has a period of fifty weeks imprisonment. It's impossible to be mathematical about how much credit should be given to him for his participation in the program. In one way I suppose I could say well, usually the participants are in the program for somewhere between eighteen, twenty months, sometimes up to twenty four months. He was in it for about two months and so that's about one-tenth, and so that means that perhaps I should reduce the head sentence by about a tenth, and that is five - fifty weeks by five weeks, down to forty-five weeks. In my view that's not necessarily an approach that I should take, but as a straight mathematical approach it doesn't take into account all of the other general factors that I do have to take into account."

30 The magistrate went on to make reference to the terms of the drug treatment order and the period of 50 weeks. The respondent drew the court's attention to the period of nine weeks he had served in custody before the imposition of the drug treatment order. In order to clarify the sentence, his Honour then listened to the recording of the sentence. The magistrate noted that the custodial period was "fifty weeks less the period 17 February till the 21st April", and that the time in custody represented nine weeks, and so the custodial period was 41 weeks, and that 41 weeks was the starting point.

"The head sentence in my view is forty-one weeks, taking into account the time you spent in custody between the 17th of February and the 21st of April, and bearing in mind your participation in the program. I'm going to sentence you to a period of thirty weeks imprisonment."

32 The magistrate went on to note that the sentence was backdated to 19 September, when the respondent was taken into custody and that he had "essentially reduced the head sentence by eleven weeks".

The nature of the sentencing order under review: activation or re-sentence?

33 On cancellation of a treatment and supervision part of an order, the court is required to take account of the offender's compliance with that part and, having done so, is required to make one of two possible orders set out in s27Q(2)(a) and (b):

"(2) When cancelling the treatment and supervision part of the order under subsection (1), the court, after taking into account the extent of the offender's compliance with that part, must -

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

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

34 Section 7(a) states:

"(a) record a conviction and order that the offender serve a term of imprisonment; or ..."

35 The section provides the court with a broad discretion to impose a substituted sentence by taking one of two possible approaches. Having cancelled a drug treatment order the court may activate part or all of the custodial part of the order, imposing a term of imprisonment (s27Q(2)(a)). Alternatively, the court may impose some other sentence, that could have been imposed at the time of the imposition of the drug treatment order, other than a wholly effective term of imprisonment, s27Q(2)(b).

36 The order made by the learned magistrate imposing 30 weeks' imprisonment was not a course that could be taken under s27Q(2)(b). As a wholly effective term of imprisonment it cannot be imposed under that subsection. Further, it is clear from the learned magistrate's comments that he was activating part of the term of imprisonment pursuant to s27Q(2)(a). His comments did not revisit the original offending, and it is apparent that he did not undertake a re-sentencing of the respondent under s27Q(2)(b). The focus of the learned magistrate's consideration was the portion of the sentence that should be served.

37 The only matters his Honour referred to in determining the portion of the sentence to be activated were the two time periods that the respondent had served in custody and various matters regarding his compliance with the order. The discussion about a ten percent reduction in the sentence was an exploration of one approach, a mathematical approach, for the purpose of determining a reduction for participation in the program. While this "mathematical approach" was flawed, his Honour made it clear that that was not necessarily an approach that he was espousing or that he considered should be taken.

38 Counsel submitted that the comments made by the magistrate, set out above at pars[26], [29] and [31], revealed that the discount the magistrate allowed of 11 weeks took into account various matters and not just participation in the program. However, the magistrate's comments do not support that contention and, in fact, they show that the deduction of 11 weeks was solely attributable to compliance with the program. Undoubtedly, the magistrate was mindful of the two time periods that the respondent had spent in custody. However, I do not accept the submission that they were reflected in the discount he allowed of 11 weeks. The magistrate gave consideration to the question of whether the time spent in custody during February and April was reflected in the original sentence. The custodial component of 50 weeks was treated as reduced to 41 weeks by virtue of that period in custody. The more recent period spent in custody, as a result of the execution of the warrant, was taken into account by backdating the 30 week term of imprisonment. If either of those periods of time in custody had been reflected in the discount of 11 weeks, they would have been counted twice. There is no suggestion his Honour did that. The matters he considered, apart from the remand periods, all related to the factor of compliance. It is clear that the discount of 11 weeks was attributable to that factor.

39 The question of whether the discount of 11 weeks was justified is to be determined within the legislative context. The sentencing magistrate has a discretion as to the portion of the custodial part to be activated under s27Q(2)(a). Similarly, the court has a discretion as to the re-sentence that may be imposed under s27Q(2)(b). In both respects the court's discretion is not subject to statutory restraint, except for the requirement to take into account the extent of the offender's compliance with the treatment and supervision part of the order.

40 Key provisions of the Sentencing Act provide a framework for the exercise of that wide discretion on cancellation of the drug treatment order. They include the following:

•

The drug treatment order is only available as a sentencing option if certain statutory criteria apply, including that if the drug treatment order were not made the offender would have been sentenced to a wholly effective term of imprisonment (s27B(c)).

•

A drug treatment order as a sentencing order aims to do one or more of the following:

"(a) provide an alternative sanction to imprisonment;

(b) through an integrated, supervised and reviewable treatment regime, facilitate the offender's rehabilitation and reintegration into the community;

(c) reduce the incentive for the offender to resort to criminal activity;

(d) reduce risks to the offender's health and well-being."

(Sentencing Act, s27C(a))

•

The custodial aspect of the drug treatment order must represent the sentence of imprisonment that the court would have then imposed were it not making that drug treatment order: s27F(1).

•

The offender is not required to serve all or any of the custodial part of the drug treatment order unless it is activated by order: s27F(2).

•

There is a system of "rewards" (s27K and s27L) and "sanctions" (s27M). If an offender receives more than 13 days of imprisonment as sanctions he or she is liable to serve that period (s27N).

1">41 It is evident from the aims of the order set out above, that the drug treatment order is in itself both a sanction and an opportunity for rehabilitation. No doubt, significant resources are invested in the program, and the program is not available to all defendants or indeed, members of the community who are not offenders but who suffer drug addiction. There is force in the proposition advanced by the applicant that merely being subject to the program does not of itself warrant a discount. Further, the Sentencing Act requires consideration of an offender's compliance with the program, and that is not to be equated with the time period that a person has been subject to the program. Thus, I cannot imagine that that time period would be a useful guide in deciding upon an appropriate discount for compliance when determining the portion of the sentence that should be activated, or the substituted sentence to be imposed. That is not to suggest that the period of time that a person has been a participant in the program is an irrelevant consideration. The time period spent as a participant in the program is an aspect of the sanction involved in a drug treatment order, and also relevant to compliance.

42 Another consideration relevant to compliance is that genuine efforts to rehabilitate were meant to be rewarded and reflected in the sentence imposed, even though a person had not succeeded ultimately in rehabilitating, addressing their addiction, and that their failed attempts resulted in cancellation of the order. It seems clear from the statutory provisions that compliance is to be judged by the offender's efforts throughout the program and not merely by virtue of their level of compliance at the time that the order is cancelled. In many cases cancellation will occur due to failure to comply or co-operate at a particular stage, and yet the Act requires consideration of their compliance generally.

43 The matter of "compliance" under the Sentencing Act, s27Q, includes not only positive considerations such as co-operation and gains that were made, but also negative considerations such as lack of effort or lack of commitment to the program. It stands to reason that conduct which reveals a contemptuous attitude to the program, or which undermines the integrity of the program, should not be rewarded.

44 In this case, the respondent was a participant in the program for a period of approximately six weeks, attended three counselling sessions, six appointments for urinalysis, and seven appointments with his case manager. He made few gains and there is no sign of substantive efforts on any front. He did not reveal any real improvement in his drug taking or attitude to drug taking at any stage. Any gains he made were undermined by his deceptive conduct. That conduct was a serious act of non-compliance which had the potential to undermine the program. It was viewed in a serious light by the program co-ordinator, and that view was appropriately endorsed by the comments made by the learned magistrate.

45 In conclusion, any compliance was at the minimal end of the spectrum and so were the efforts the respondent made. Noting as well his deceptive conduct, the discount allowed of 11 weeks was devoid of justification. In the circumstances of this case, the weight attributed to the factor of compliance was unwarranted and the sentence is tainted with error. The first ground of review succeeds and so must the motion.

46 There is no need to consider the alternative ground. It presupposes that the magistrate's rationale for discounting the sentence was incomplete and that there were other operative factors that led the magistrate to discount the sentence. For the reasons I have given, that was not the case.

47 In re-sentencing, I would regard the factor of "compliance" in the circumstances of this case as not warranting any discount in the sentence. Counsel for the respondent has sought the opportunity to be heard in relation to re-sentencing. In accordance with the indication I have given I will permit that opportunity.