R v Crawford [2020] ACTSC 369 | Case summary | Zoe

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R v Crawford [2020] ACTSC 369 | Case summary | Zoe

See also the comment of Sir Anthony Mason, who wrote extracurially: ‘I am not alone in thinking that effort put into rehabilitation, rather than retribution and deterrence, is more likely to be cost effective and lead to a better world’: Anthony Mason, ‘Mandatory Sentencing Implications for Judicial Independence’ (2001) 7(2) Australian Journal of Human Rights 21, 29. Sir Anthony added, on the same page: ‘With Indigenous and young people generally, restorative justice programs have much to offer’.
After having led the nation in some criminal justice reforms, for example, the authority for children to give evidence by CCTV under the Evidence (Closed-Circuit Television) Act 1991 (ACT), the ACT’s efforts to provide diversion from the criminal justice system, especially from the imprisonment of those addicted to alcohol and other drugs, has been often ground-breaking, at least amongst leading initiatives. These include the Simple Cannabis Offence Notice, an expiation process, the Police Early Intervention Scheme, the Court Alcohol and Drug Assessment Service, and the Youth Alcohol and Drug Court.
No comprehensive and substantially resourced program was, however, established, and when this reform was implemented elsewhere, the Territory was the last Australian jurisdiction to implement a Drug Court or similar program, commencing on 3 December 2019. Central to the reform was the creation of a Drug and Alcohol Treatment Order (a Treatment Order) as a sentencing option for an offender who was found eligible.
I do not need here to go into the details, save to say that a Treatment Order under s 12A of the Sentencing Act requires the offender to undertake a course of treatment which, if successfully completed, would justify and result in a suspension of the term of imprisonment that would otherwise have to be substantially or completely served.
On 7 September 2020, I convicted Peter Crawford of 15 offences, mostly dishonesty offences, but made a Treatment Order. A condition of that Order was that he admit himself to, and remain at, the Residential Drug Rehabilitation Program (the Karralika Program), a therapeutic community program conducted by Karralika Programs Incorporated (Karralika).
Mr Crawford admitted himself to the program and remained there until 16 September 2020 when, apparently as a result of a dispute over cigarette smoking, he left without telling anyone, especially this Court, or gaining any permission from the Treatment Order Team (s 80M of the Sentencing Act).
One of the conditions of the Treatment Order required him to report to ACT Corrective Services by 4:00 pm on the next business day after leaving. He did not do so. He thus breached two of the conditions of the Treatment Order. He was arrested by ACT police on 7 October 2020 and was remanded in custody.
A bail application made on 16 October 2020 was refused (R v Crawford (No 2) [2020] ACTSC 367). The Crown has now applied for cancellation of the Treatment Order. The Facts
The basic facts have been set out above and I do not need to repeat them. After being admitted to the Karralika Program, Mr Crawford entered isolation until 11 September 2020, to meet the requirements of the COVID-19 plan of Karralika. He was then transferred to the first phase of the treatment. He was reported as being ‘highly motivated to address both his drug use and criminogenic behaviours’, ‘motivated to begin treatment’, ‘highly motivated’ since arriving at Karralika, and having ‘demonstrated [a] willingness to enter [a] 12-month rehabilitation program’.
Despite this, as noted above (at [8]), he left the Karralika Program on 16 September 2020 and did not advise anyone at Karralika of his intention or of his leaving, nor did he ask for their permission. He did not report to ACT Corrective Services as required, nor did he return to Court. He was at large a few days less than three weeks, though I understand that, on 5 October 2020, he was admitted to the Calvary Hospital Intensive Care Unit where he was arrested two days later. Police reported that, at the Calvary Hospital Intensive Care Unit, they were told that, upon his admission, Mr Crawford presented as ‘highly intoxicated’ on what was described to be ‘a cocktail of illicit substances’.
In the AFP Bail Continuation Form, admitted into evidence, it is asserted that, while at large, Mr Crawford ‘continued to evade …[p]olice’. There was, however, no detail of exactly what steps police had taken to execute the warrant that I had issued under s 80ZJ of the Sentencing Act, nor did I have any details of any active steps that Mr Crawford had taken to evade police, other than, I can and do infer, failing to present himself to them, or to any other appropriate agency, and avoiding places where he might be located by police. I also assume that, had Mr Crawford not had to admit himself to hospital, he would not have been arrested as soon as he was.
Police have been investigating a large number of property offences including the burglary of residential premises allegedly committed while Mr Crawford was in the community. Police are also investigating possible traffic offences that are also alleged to have occurred during this period. They include offences that also involve driving in a manner which endangered the safety of the public, including dishonestly driving a motor vehicle without consent and failing to stop when directed by police to do so.
At present, no charges have been laid and Mr Crawford has made no admissions to the commission of any such offences, much less has he been convicted of any. A conviction for an offence punishable by imprisonment, and the offences being investigated are such, would constitute a breach of the Treatment Order (s 80ZD of the Sentencing Act).

When sentencing Mr Crawford, as I explained in R v Crawford (No 1) [2020] ACTSC 245 (at [45]-[46]), Mr Crawford started using alcohol and illicit drugs at a relatively early age and has mainly used heroin and amphetamines. He continued to use them until relatively recently when he was incarcerated. It is fair to say that his drug use is now very entrenched.
Indeed, his drug use has, together with his neurodevelopmental disorder, stimulated, motivated and even brought about his criminality by impairing his judgement and impulse control. This, of course, does not excuse the offences he has committed, nor does he avoid responsibility for them, but it does reduce his moral responsibility and culpability to a degree, and it also shows a pathway for rehabilitation.
In this context, it is important to note that Consultant Neuropsychologist, Dr Sally McSwiggan, in a comprehensive report that she prepared for the sentencing of Mr Crawford, expressed the opinion that Mr Crawford is likely to be assisted to become substance free by a mandated residential substance abuse program from which, she notes, he is quite likely to gain benefit and that ‘a residential facility with a multidisciplinary input would likely be optimum given his presentation’. That encouraged me to make the Treatment Order.
That view was also supported by the Drug and Alcohol Treatment Assessments (Suitability Assessment) made under s 46J of the Sentencing Act. ACT Corrective Services recommended Mr Crawford as suitable for a Treatment Order but noted that this was ‘heavily influenced by Mr Crawford directly entering a residential rehabilitation program’, and that he would be assessed as not suitable ‘if he was to be released directly to the community due to his extremely poor history of non-compliance and regular re-offending while on community-based orders.’
Similarly, Canberra Health Services recommended Mr Crawford as suitable for a Treatment Order ‘on the provision that a structured residential treatment program becomes available for him’. The Karralika Program then became available. It met the stated criteria. Accordingly, the Treatment Order was made.
That seemed initially promising, as noted above (at [11]), but it soon fell apart with his departure, raising the prospect that it is unlikely that he will commit to such a program, or perhaps be able to do so for the length of it, in what will inevitably involve, personally, very difficult challenges for him, requiring him necessarily to make progress towards managing his addiction and preferably achieving abstinence.
He said to me that the traumatic experience of his hospitalisation and surgery has reinforced the necessity of his commitment to rehabilitation. I accept that he presently feels that way, but the question must be how long that will last, not necessarily because of any change of mind, or indeed dissembling, but because of the possible incapacity created by his psychological deficits and impairments. I am not dismissive, but it would be foolish not to approach this sceptically.
His criminal record is also relevant. He has 202 offences on his record. I have not analysed them in detail but the vast majority are offences of dishonesty, especially of the type very often associated with the offending of drug addicts, namely burglary and aggravated burglary, theft and minor theft, dishonestly dealing in motor vehicles and some drug possession or self-administration offences. There are offences of trespass, damaging property and unlawful possession of goods reasonably suspected of being stolen. He has a number of offences of escaping lawful custody on his record and he has breached recognizances and Good Behaviour Orders. It is a serious, worrying and depressing record, and given his history and circumstances, not completely surprising.

The first ground relied on by the Crown is that Mr Crawford will not be able to comply with the condition of the Order because of a material change in circumstances, the ground set out in s 80ZE(1)(b) of the Sentencing Act.
Because of Mr Crawford's departure from the Karralika Program and the circumstances under which he departed, his place in the program is no longer available to him. Thus, this ground has, at least at that level, been made out. He has, however, been accepted into the residential rehabilitation program at Canberra Recovery Services. So far as the evidence is concerned, there is no material difference between the two programs. As a result of representations he has made himself, he is able to be admitted to that program today.
The Crown submits, however, that Mr Crawford's behaviour demonstrates an inability to comply with the requirements of such a program. This, it is submitted, is further supported by the fact that the Treatment Order Team's capacity to assess his suitability for treatment was initially compromised by the fact that it was conducted while he was in custody.
Reliance is placed on the following statement in the Suitability Assessment of the Alcohol and Other Drugs Services of Canberra Health Services, where it was said: ‘Mr Crawford was remanded during the period of his suitability assessment so his compliance with order conditions remains partially tested.’ It was added, however, that ‘[h]e engaged well during the assessment and was co-operative’, and that he ‘presented himself as being eager to have a chance to change his life where his offending behaviours were influenced by his motivation to access drugs and or due to being drug affected.’
It is important to note that the state of the evidence about the circumstances under which Mr Crawford left the Karralika facility is limited to ‘after a brief altercation with his peers after he was allegedly found smoking cigarettes.’ I was not told any more, such as what was allegedly said or done during the altercation, which may be relevant to the actions that he then took. This is very difficult to assess, as to whether it provided some explanation that could be consistent with a continuing ability to engage with such a program, or whether it shows that he cannot, at this stage, comply.
That there is a separate ground of circumstance dealt with in s 80ZE(1)(c) of the Sentencing Act, namely that he is unwilling or unlikely to actually comply with the Treatment Order, suggests that this ground in the paragraph is intended to refer to an actual incapacity, such as if the treatment is no longer available to a participant, or if, through illness or some other circumstance, the participant’s involvement is no longer possible.
Thus, it does not seem to me to be apt to address the more difficult question of whether a participant’s attitude, behaviour or other circumstances such as, for example, conflict with other program participants, means that, as a contingent fact, the participant is not actually going to finish the treatment. Accordingly, I am not satisfied that, interpreted in this way, he is not able to comply with a treatment program, in a way that would be required by this paragraph, in circumstances that would justify cancellation of the Treatment Order.

Thus, while I should and do condemn Mr Crawford's departure from the Karralika program, his failure to report as required, and his apparent further use of illicit drugs, I accept that it is consistent with his current mental condition which is the result of his traumatic and chaotic upbringing. That does not, of course, excuse such conduct but it both explains it and also gives an opportunity to consider whether other circumstances can mitigate repetition.
In particular, I note the opinion of Mr Matt Visser, Clinical Psychologist, whose report was also in evidence. While Dr McSwiggan slightly disagreed with the diagnosis that Mr Visser had identified, she relied on his report, which was generally consistent with hers. Mr Visser commented that: There are numerous examples of Mr Crawford having executive function deficits, and his inability to think long term about the consequences of his actions provides a reasonable explanation for a range of his (particularly criminogenic) behaviour since adolescence.
This also gives a basis for addressing this particular behaviour. Mr Crawford now has directly experienced the consequences of his departure from the Karralika Program and what he faces. He has been in custody for a fortnight. He has actively sought to avoid the likely consequences of his departure, namely a lengthy period of further prison custody and the lack of rehabilitation opportunities which he says he seeks.
While this might be described as the natural aversion to an unpleasant experience such as prison, the only alternative is active participation in mandated drug rehabilitation and, in these circumstances, residential rehabilitation. Even though this may be considered by some to be a reluctance by Mr Crawford for such rehabilitation, we do know from the relevant research that mandated rehabilitation can be successful (Kelly v The Queen [2015] ACTCA 35 at [40]).
The fear of, or even antipathy to, prison is a relevant current factor likely to cause Mr Crawford to participate in a residential program to avoid the only alternative, namely prison, and having experienced the consequences, he is more likely to appreciate the need to remain there.
That such a failure, as committed by Mr Crawford, does not render him irredeemable is certainly possible. For example, Mr Kelliher referred to the decision in R v Ross [2011] ACTSC 211 at [17] where, before quoting the passage in Saga v Reid and Collett set out above (at [28]), I referred to the failure of Mr Ross to comply with the terms of a Deferred Sentence Order that I had made. When he returned before me, I had to deal with these issues of non-compliance with the conditions in the Order and I said (at [17]):

Finally, Mr Crawford has, despite his substantial failure so early in the rehabilitation process, maintained the assertion he made originally in this process that he is motivated to address his drug addiction at this point in time. Much of that is, of course, self-reported to others, whose evidence I had. That justified it being evaluated by a court with caution.
Indeed, when reported through the medium of reports to the Court from professional counsellors, psychologists, case managers and the like, and where Mr Crawford does not give evidence himself, as he did not do so before me, which would include subjecting him to cross-examination, a significant body of authority requires that limited weight be given to such statements (See R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58]-[59], R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [40], R v Niketic [2002] NSWCCA 425 at [4], R v Benbrika [2009] VSC 21 at [148], Benbrika v The Queen [2010] VSCA 281; 29 VR 593 at [586], R v Hinchcliffe [2013] NSWCCA 327 at [122]-[126] and [237]-[248], Elomar v The Queen [2014] NSWCCA 303; 300 FLR 323 at [817], and Anderson v BYF19 [2019] FCA 1959 at [69]).
There are, of course, some circumstances where this approach needs to be modified. For example, I have pointed out that the statutory regime for preparing Pre-Sentence Reports in this jurisdiction may justify them being treated somewhat differently (R v Ashman [2010] ACTSC 45 at [27]). Indeed, there may, in some cases, be corroboration of the offender's statement (R v Freestone [2010] ACTSC 87 at [35]- [36]).
Similarly, the statements made to psychologists and psychiatrists are, of course, substantially self-reported, but will be subject to clinical judgement and often, especially in the case of psychologists, subject to clinically validated testing methods (see R v Scerba (No 2) [2015] ACTSC 359 at [92]). That is indeed the case with the reports of both Mr Visser and Dr McSwiggan, who indicated that they had administered testing.
Finally, it is clear that the Crown may not be permitted to submit that little weight should be given to such statements, if the Crown does not clearly indicate that it disputes the weight to be given to the reports and opinions when tendered, that is, to those statements in which the statements of the offender are contained (see R v Milojevic [2001] NSWCCA 461 at [19]).
In this case, the statements were not subject to challenge when the relevant reports were received. In fairness, it is not so much that those reported statements are challenged, but rather that the challenge encompasses them. It is important, however, to note that there is some corroboration. Though Mr Crawford left the Karralika Program shortly after he was admitted, and while he had been in isolation for much of that period, he was in the Program, though, admittedly, only for a few days, and there was no suggestion that his reported motivation had wavered. This is a slim but not irrelevant matter.
Further, however, his commitment to return to residential rehabilitation has been significant since he has been remanded. Even allowing for the sceptical approach that this is more an avoidance of prison than a desire for rehabilitation, such avoidance would require him to undertake and continue with the rehabilitation, and that, as noted, would likely result in significant achievement of such rehabilitation, thus meeting the objectives of the Treatment Order.
The last point I wish to make in relation to this ground is with a helpful report of the U.S. National Association of Drug Court Professionals (the NADCP) in its January 1997 report ‘Defining Drug Courts: The Key Components’. As summarised by Ryan S King and Jill Pasquarella in ‘Drug Courts: A Review of the Evidence’ (Report, The Sentencing Project, April 2009):

The third ground on which the Crown relied was that set out in s 80ZE(1)(d) of the Sentencing Act, namely that ‘the continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order.’
The objects of a Treatment Order are set out in s 80O of the Sentencing Act and include the object ‘to facilitate the rehabilitation of the respondent by providing a judicially supervised, therapeutically oriented and integrated treatment regime.’
The Crown submits that Mr Crawford's behaviour undermines that object because his lack of engagement by absconding and, in particular, his failing to report or further engage with any member of the Treatment Order Team, is inconsistent with that object. This is, it is submitted, a continuation of his previous behaviour, which included the fact that he had committed the offences while on parole from other offences which were, in fact, the same kind of offences as those for which he was sentenced by me to the Treatment Order, and that, according to the Suitability Assessment of ACT Corrective Services, he ‘has a very poor history of engagement with community-based orders with prior breach action occurring due to lack of engagement, illicit drug use and re-offending.’
There was a further basis related apparently to his evasion of arrest. That referred to a breach of bail on 16 September 2020. It was mentioned on p 1 of the ACT Police Bail Consideration Form, annexed to the Affidavit of Marcus Dyason and relied on by the Crown. The warrant for arrest was issued by me for his breach of conditions of the Treatment Order.
The statement in that Form is a bald assertion that Mr Crawford ‘continued to evade … [p]olice until his arrest’. In the absence of further particulars as to what police did to execute the warrant or what, if anything, Mr Crawford did to avoid arrest, I cannot read that as meaning more than that, in addition to Mr Crawford not presenting himself to police or other agencies, he kept out of their way such as by not coming to their notice. I am not satisfied that it should be read as including any particular level of activity by either police or Mr Crawford.
In any event, these matters were relied on to reinforce the comment made on p 7 in the neuropsychological report of Dr McSwiggan, that Mr Crawford ‘currently lacks the motivation and resilience to engage and complete [drug rehabilitation] … unless mandated’. It was further relied on to show Mr Crawford's lack of skills to do so. In essence, this was a ground that supported the submission that, in the absence of secure residential rehabilitation facilities available to Mr Crawford to complete his rehabilitation, there was no regime available that would enable the objects of the Treatment Order to be achieved.
The position has changed since the Crown's written submissions were filed, and in oral submissions, this ground was not emphasised, though not abandoned. Lying behind the ground are two concerns. The first is that a treatment regime within the community would be so unlikely to succeed that the Treatment Order should not be varied to make a provision for such an alternative to the current regime. I agree with that and, if there were to be no residential rehabilitation place for Mr Crawford, I would cancel the Order.
The second may be that only a facility where Mr Crawford could not voluntarily leave would be acceptable. Apart from treatment in the Solaris Therapeutic Program in the Alexander Maconochie Centre, I am not aware of any such facility. I do not accept that submission, however. While a residential rehabilitation facility in the community, such as that conducted by Karralika and Canberra Recovery Services, or Arcadia House, which is conducted by Directions Health Services, are not secure in the same way, the degree of supervision and the arrangements for notifying breaches and departures means that there is a reasonable level of control over residents. It is not secure in the same way as a custodial facility and, indeed, this very case shows the difference, but I am satisfied that they provide a sufficient level of control and oversight.
As suggested by Dr McSwiggan, it remains the case that mandated rehabilitation, which is an alternative to prison, is not only what is available but what is likely to be successful, even though mandated. Given that there is now a place for Mr Crawford at Canberra Recovery Services in their residential rehabilitation program, I am satisfied that this ground is not made out. For the reasons referred to above, I consider that there are sufficient changes in circumstances so far as Mr Crawford is concerned, that the remaining risk that this alternative treatment will not be successful is acceptable. Ground Four
So far as concerns the final ground, namely the risk to the community as referred to in s 80ZE(1)(f) of the Sentencing Act, the Crown refers to the ongoing police investigations but accepts that no fresh charges have been laid. It seems to me that I can have little, if any regard, to this factor. Mr Crawford may never be charged and, even if charged, may never be convicted.
He is not alleged to have committed acts which endanger the safety or welfare of anyone, but which do not constitute an offence. Indeed, I have no proof, even on the balance of probabilities, that he has committed any such acts, and I certainly do not suggest that this is the correct standard of proof, thus I do not consider that I can take these investigations into any significant account.
Reliance is placed on his criminal history. It is, as noted above (at [26]), a very extensive history and of serious offences. It is true that past behaviour is the best predictor of future behaviour, but this is a generalisation that must be approached with considerable caution. Indeed, were it to be taken literally, the whole Treatment Order regime would not be relevant or worthwhile.
Current psychological research seems to suggest that the generalisation, while having some truth, is also highly dependent on a range of factors relating to the relevant comparable situations, including that the person must remain essentially unchanged. Thus without further evidence, it is unclear to me that I can merely rely on Mr Crawford's history, though it is relevant and significant and I must take it into account.
Having said that, such evidence must come from both parties. That is to say, while I need evidence of the circumstances underlying the prediction, and the circumstances under which that prediction might be varied, I must accept that an addicted person remains addicted with the same cravings and needs to fulfil them without some change or intervention, and that this often leads to criminal activity.
In this case, the added worry is that Mr Crawford left the residential rehabilitation facility so recently after being admitted, failed to report as required, and was not arrested until he was hospitalised. Such a disappearance, even without the evidence of further offending that is currently unavailable, must at least give rise to a reasonable risk to the safety and welfare of members of the community who may be a victim of the kind of crimes that addicted persons such as Mr Crawford may commit.
It is unclear on what basis he did so, at least without evidence from him, which I did not receive. I should not consider that this is a pattern likely to be repeated. In addressing the second ground, however, I have dealt with these matters. There is a risk, but I do not read the legislation as requiring a complete absence of risk; only a recognition that there is, at the very least, a reasonable likelihood that the risk will not eventuate. I believe, for the reasons that I have set out earlier in these reasons, that Mr Crawford's present situation meets that level and, accordingly, I am not satisfied that this ground has been made out. As a result, I am prepared to amend the Treatment Order and I will do so.

I add a further order. I require you to sign an undertaking to comply with the Drug and Alcohol Treatment Order as amended and other obligations under the Crimes (Sentence Administration) Act 2005 (ACT) while the Good Behaviour Order is in force.
Mr Crawford, I am putting my neck on the line for you because if you take off and do not complete the program, I will be shown to have put my trust in an untrustworthy person. So you owe me, but you owe a lot of other people. There have been people here, working to ensure that you can, as you say you want to, come to terms with your drug and alcohol addiction. It is going to be hard. You have already seen that and taking off is only going to lead you back to the life which you tell me you do not want to go back to leading.
You have got to put your effort into this. You have got to really work at it and if you do, the Court will help you. I have shown that, and it will continue, but you have got to do your part too.
[Mr Crawford replied]: I will.
What is really important is that if it gets tough, tell someone about it. Do not run off. Come back to court. You have seen that the Court can do good things. I am not saying it will happen. People would want me to say this is your last chance. Well, it virtually is. I do not give guarantees like that because circumstances are infinitely various. Who knows what is going to happen and what it will be, but I tell you that it will have to be very, very, very extraordinary for you not to go to prison for the balance of the time if you take off again like that and do not tell anyone about it.
If you take off, you will probably go back. If you do not tell anyone about it, it is a 99.99 per cent chance that you will go back to prison. Do you understand?
[Mr Crawford replied]: Yes.
If problems occur, you will see a lot of me. Raise those problems. We can sometimes solve them and sometimes the solution is, ‘Suck it up, mate. Get on with it’, all right, because you have got to play your part, but let us know and we will see what can be done. You will have case managers, you will have your counsellors, you will have people who are genuinely wanting you to succeed, but it is you who has to succeed. You have got to do it, all right?
[Mr Crawford replied]: Yes.
And running away is not committing yourself to succeeding. I do not know how more clearly I can put it except that you keep telling me you want to change, and you were quite emotional the other day and I accept that it is deeply felt, but that is in the moment.
It has got to last. It has got to continue. It has got to go on, right? I do not want to hold things over your head, but you have also got to be sensible about it. Things are held over your head. Cancellation is really on the cards, but so is rehabilitation.
[Mr Crawford replied]: Yes.
And so is a better life. There are a lot of cynics out there who would say I am wasting my time, that I am wasting all our time because it will not work. I am more optimistic than that. I hope you justify my optimism and work really hard and show that it can be done because we know it can be done. There are people throughout Australia and internationally who go through this problem and have difficulties and get there. It will be tough.
You have had a terrible early life which has led you to where you are. It will be really hard to overcome that because it is not just a matter of thinking it through. There are, you know, things in your mind that will create difficulties. All I can ask is that you do your best and that, when there are difficulties, you share them with us and not just put your head in the sand. I will see you on next Friday, probably electronically from CRS.
I hope it works well for you. I genuinely wish you good luck, but I warn you. Even if you take off, do not commit any further offences because that would completely ruin my trust, that I put people in the community at risk. I am betting on you not doing that. Keep me safe and it will be good for you. Do you understand?
[Mr Crawford replied]: Yes.
All right. You may be seated.