R v Crawford

Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Crawford (No 1) [2020] ACTSC 245 R v Crawford (No 2) [2020] ACTSC 367 R v Crawford (No 3) [2020] ACTSC 369 R v Dowling (No 3) [2021] ACTSC 210 R v Tonna (No 2) [2020] ACTSC 362

Parties: The Queen (Crown) Peter Michael Crawford (Offender)

Representation: Counsel C Muthurajah (Crown) C Duffy (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)

File Number(s): SCC 349 of 2019 SCC 170 of 2020

REFSHAUGE AJ

Introduction

1. The Drug and Alcohol Sentencing List of the ACT Supreme Court was established to administer the Drug and Alcohol Treatment Orders (Treatment Orders) created by s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), which is an important sentencing option for courts to impose on those offenders who are dependent on the consumption of alcohol or illicit drugs and whose dependency contributes substantially to the commission of the crimes for which the offender is to be sentenced.

2. As Treatment Orders were only introduced into the Sentencing Act by the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Act 2019 (ACT) which commenced on 9 October 2019, they are a relatively recent creation and, to date, only three participants have actually graduated successfully through the three phases of the regime established by the Orders. The List, of course, was established as a form of Drug Court and these have been in operation since, at least, 1989 globally and 1999 in Australia, though the first Treatment Orders were not made in this Territory until 15 January 2020.

3. As this is a relatively new sentencing disposition for the Court to use, there are many offenders who may have tried to engage in drug rehabilitation under other ACT regimes, such as Deferred Sentence Orders (s 27 of the Sentencing Act), Good Behaviour Orders with a rehabilitation condition (s 13 of the Sentencing Act) and Intensive Corrections Orders with a rehabilitation condition (s 11 of the Sentencing Act), or have sought residential drug rehabilitation or counselling without a criminal justice intervention. Of course, many fail as it takes considerable effort and often a history of failures to achieve rehabilitation from the serious challenge of defeating and managing a dependency on illicit drugs.

4. Accordingly, my general approach has been to encourage those who wish to seek rehabilitation, even after failure, to be subject to a Treatment Order, if they are suitable and consent to such a sentence, as it has significant features such as judicial supervision, along with intensive supervision and monitoring, that provide a different approach which may well succeed.

5. The corollary of this is that some will succeed and a number will not. If they do not, then the Treatment Order must or should, usually, be cancelled and the ordinary sentence of imprisonment restored in whole or in part.

6. Peter Crawford was, on his plea of guilty, convicted of 15 offences, all but two being offences of dishonesty, and was made the subject of a Treatment Order on 7 September 2020. He breached the Order and the Crown has now sought the cancellation of the Order.

7. On the hearing of the application for cancellation, I received an Affidavit of Katya Sharafeldin, made on 28 June 2021, which I read. I also received an updated Criminal Record for Mr Crawford and a letter from Calvary Hospital concerning the admission of his partner. The deponent of the Affidavit was not cross-examined and there were no challenges to the other documents admitted. I also had regard to the material already tendered in the proceedings as a whole, which were the Crown Tender Bundle and the Defence Tender Bundle, tendered for the original sentencing proceedings. This included, in particular, from the Defence Tender Bundle, a report of Mr Matt Visser, psychologist, and Dr Sally McSwiggan, neuropsychologist.

8. From this material and the material on the Court file, I make the following findings.

Background

9. The details of the facts of the various offences are set out in R v Crawford (No 1) [2020] ACTSC 245 at [13]-[21]. I rely on what was there set out and will not repeat it, save to summarise it as follows.

10. On 3 March 2019, Mr Crawford trespassed in the home of his ex-partner, whom he threatened with a hammer, and stole a pair of shoes worth $250.

11. On 13 March 2019, Mr Crawford committed a burglary of a business in Dickson, causing property damage estimated at $960 and stole electrical goods worth $350. Then, on 24 March 2019, he and a co-offender committed an aggravated burglary at a café on the University of Canberra Campus, Bruce, and stole $300 in cash and a cash register tray worth $100. He drove there in a vehicle which he dishonestly drove without the owner's consent.

12. The next day, he cycled to a newsagency in Canberra City, threatened the owner with a box cutter knife and robbed him of $2,000 in cash, the owner’s car keys, as well as his mobile phone, which he dropped on the way out.

13. Mr Crawford and his co-offender then, on 26 March 2019, committed a further aggravated burglary of a café in Forrest, vandalised the premises and stole the tip jars and a laptop. Later that evening, the two committed another aggravated burglary at a business in Hume and stole $100 in petty cash.

14. Finally, on 5 April 2019, Mr Crawford committed a burglary at a bar in Dickson and stole a safe containing $1,150.

15. I sentenced him for these offences to a total of four years imprisonment. I directed, under s 63 of the Sentencing Act, that the sentence commence on 20 May 2020 to take into account Pre-Sentence Custody. I then made a Treatment Order which required him to admit himself to the Residential Drug Rehabilitation Program at Karralika Programs Inc. (Karralika), established in 1978 to provide comprehensive rehabilitation programs for people with alcohol and other drug dependence: see R v Crawford (No 1) at [124].

16. Mr Crawford admitted himself to the program on that day, 7 September 2020, but on 16 September 2020 members of the Treatment Order Team were advised that he had left, apparently after a dispute. He did not, as he had been required to do, report to ACT Corrective Services so that the Treatment Order could be reviewed.

17. On 7 October 2020, he was arrested after he was admitted to Calvary Hospital to deal with a serious complaint and then came before the Court when the Crown sought to cancel the Treatment Order.

18. I agreed, however, to amend the Treatment Order and, as a consequence, dismissed the Crown's application. I amended the Treatment Order to provide for Mr Crawford's admission to the Residential Drug Rehabilitation Program at Canberra Recovery Services in Fyshwick: see R v Crawford (No 3) [2020] ACTSC 369 at [76].

19. Mr Crawford entered the facility on 23 October 2020, but then left that very afternoon. He says that he left and travelled to Victoria because his father, who lived in Shepparton, Victoria, was ill and he wanted to care for him. That does not explain why he did not seek permission to do so from the Court. This Court has permitted participants to travel interstate to visit sick relatives in appropriate circumstances, yet Mr Crawford did not seek that.

20. Again, he failed to report to ACT Corrective Services and made off. I issued an arrest warrant on 27 October 2020, but he was first arrested in Shepparton, Victoria, on 22 February 2021, charged with further offences committed in Victoria, namely 7 offences of burglary, 7 offences of theft, 3 offences of receiving stolen goods, 30 offences of dishonestly obtaining property by deception and 2 offences of going equipped for theft, a total of 49 offences. He was, unsurprisingly, remanded in custody and then sentenced for those offences to 119 days imprisonment on 18 June 2021, but the sentence had already been served while on remand awaiting sentence.

21. On his release from custody on 18 June 2021, he was arrested on the warrants, issued by me for his arrest in the ACT (as noted above (at [20])) that had been transferred interstate and also for an earlier burglary with which he had since been charged. An order for his extradition was then made and he was placed in the custody of ACT police and returned to Canberra, where he was remanded in custody.

22. The further burglary charge, to which I have referred above (at [21]), arose out of events which were said to have occurred at about 4:17 am on 15 September 2020. That is the day before his departure from Karralika was reported.

23. This incident involved two males allegedly taking a bicycle from a bike cage on the University of Canberra Campus, the unauthorised entry into a supermarket in Bruce and the unauthorised entry into another supermarket on the University of Canberra Campus, taking a case of Jack Daniels whisky and a safe containing $70,000 in cash.

24. Mr Crawford was identified by police from CCTV footage of the two males making towards the second supermarket from the which the thefts occurred. Mr Crawford's thumb print was also found on the interior right-hand door handle of the bi-fold doors in the office of that supermarket.

25. On 22 June 2021, I remanded him in custody and the Crown made a further application for the cancellation of the Treatment Order. The Application

26. The Crown's application for the cancellation of the Treatment Order was made under s 80ZE(1) of the Sentencing Act. The grounds of the application on which the Crown relied were as follows:

27. Mr Crawford is unwilling or unlikely to comply with a condition of a Treatment Order (s 80ZE(1)(c) of the Sentencing Act).

28. The continuation of the Treatment and Supervision part of the Treatment Order will not likely achieve the objects of the Treatment Order (s 80ZE(1)(d) of the Sentencing Act).

29. Mr Crawford poses an unacceptable risk to the safety or welfare of a person (s 80ZE(1)(f) of the Sentencing Act).

30. I have previously considered the general approach to be taken to such applications in R v Tonna (No 2) [2020] ACTSC 362 at [36]-[39]. Briefly stated, the application should be approached as including any appropriate review of the Treatment Order under s 80ZH of the Sentencing Act, including, in particular, the opportunity that should appropriately be taken under s 80ZH(4) to amend the Treatment Order so as that the causes, at least, of some of the grounds can be adequately addressed. This is what I did in R v Crawford (No 3). There has been no submission made to me since then that this construction is not correct.

31. Where there is either no alternative or no satisfactory options available to Mr Crawford, then I should consider the application in its terms. In doing so, the grounds need to be made out on the balance of probabilities. I also note that if the grounds are made out, the Court still has a discretion as to whether to make a cancellation order. Such a discretion must, of course, be exercised judicially.

32. It seems almost inevitable that, if there is not a satisfactory alternative regime or reason to permit a participant to continue under the Treatment Order, such as satisfaction that he or she would be, despite the breaches upon which the application is based, able to comply and continue satisfactorily with the necessary rehabilitation, then the Order must be cancelled.

Consideration

30. No specific alternative proposals have been made to me for Mr Crawford's rehabilitation. There is, so far as I am aware, no alternative opportunity for a residential drug rehabilitation opportunity for him to engage in within the Treatment Order regime. Nevertheless, it was submitted to me that he should be given a further opportunity to engage in rehabilitation. I will, accordingly, proceed to consider the Crown's application in its terms as well as alternative opportunities.

31. The first ground really relies on the fact that Mr Crawford has had two opportunities to undertake rehabilitation and, on both occasions, has left the residential facility within days of his admission. On both occasions, he had to be arrested and returned to the Court. In the first case, he is alleged to have committed further offences. While he has not pleaded guilty to them and they are still allegations, there is strong evidence, at the very least, to suggest that he was found in the very early hours of the morning near to where a burglary was committed and there is strong evidence, at least of a circumstantial basis, to suggest that he was involved in some way with the entry into the second supermarket on that morning and the taking of the goods from it. This is at least inconsistent with him wishing to continue with his rehabilitation.

32. It is important to note that there is no policy of this Court and no legislative mandate to require cancellation of a Treatment Order when there has been a breach on one or even two occasions, perhaps not even more. What is important in such circumstances is the breaches and what they imply for the participant's likelihood or willingness to comply with one or more conditions of the Treatment Order.

33. In this case, I am satisfied that Mr Crawford's early departure from residential drug rehabilitation facilities and his failures on both occasions to report as required, as well as his most recent departure from the jurisdiction in circumstances where he was drawn to the attention of an interstate police force by committing further offences, strongly supports a view that he is not committed to rehabilitation and does not have the necessary desire to take the hard steps necessary to succeed in rehabilitation under a Treatment Order, especially including compliance with conditions of that Order.

34. Thus, on each of the two occasions where he left a residential drug rehabilitation facility, he actually breached the conditions - not remaining in the facility and completing the program and not reporting to ACT Corrective Services when he did leave. In addition, on the second occasion he left on the very same day that he entered the facility. This was despite the Crown having before then urged that the Treatment Order be cancelled and Mr Crawford not be given a further opportunity to engage in rehabilitation: see R v Crawford (No 3) at [17], [32], [38] and [61]. He has given an explanation but not one that greatly justifies his conduct as I have mentioned above.

35. It is important to put this into context. The Defence Tender Bundle included a neurological report of Dr Sally McSwiggan. Dr McSwiggan opined that Mr Crawford “currently lacks the motivation and resilience to engage and complete drug rehabilitation unless mandated.” She also pointed out that intensive rehabilitation would be ‘optimum’ for him.

36. Further, I note that Dr McSwiggan and Mr Matt Visser, who provided a psychological report that was also included in the Tender Bundle, both came to the view that Mr Crawford had difficulties in making calm and rational choices in which he could consider the consequences of his actions.

37. This emphasised the need for residential drug rehabilitation rather than rehabilitation in the community, which led to me refusing to grant him bail soon after he had been arrested: see R v Crawford (No 2) [2020] ACTSC 367 at [17].

38. Indeed, that was a reason justifying the making of a Treatment Order, namely that the rehabilitation would be in a residential drug rehabilitation facility. This was, indeed, the basis of the recommendation in the Drug and Alcohol Treatment Assessment (the Suitability Assessment) (s 46J of the Sentencing Act) made by ACT Corrective Services, namely that a Treatment Order be made, but only if he entered a residential drug rehabilitation facility and not if the rehabilitation were to be conducted in the community.

39. That he has not completed any such rehabilitation itself suggests that this requirement remains one to be enforced.

40. I accept that he has considerable childhood disadvantage and I referred to that when sentencing him in R v Crawford (No 1) at [43]-[47]. It was, in large part, the reason for giving him a second chance: see R v Crawford (No 3) at [47]-[49].

41. While the effects of these problems do not diminish over time (see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 595; [44]), the response of the Court is not necessarily the same on each occasion. The leniency that has been afforded to him is not necessarily to be extended in the same way every time, though it must, nevertheless, be extended in the sense of recognising the effect of the childhood disadvantage, especially on the offender’s criminal culpability.

42. In this case, his conduct suggests that his capacity to comply with a rehabilitation regime in the community is compromised by his neurological situation. He says, however, he still wishes to engage in rehabilitation.

43. There is, of course, an opportunity for him to engage in rehabilitation in the Alexander Maconochie Centre through the Solaris Therapeutic Community if rehabilitation is really his wish. The structure of incarceration may give him the support he needs to maintain his commitment to it. As I have noted above (at [33]), there is presently no placement available to him in a residential drug rehabilitation facility available to this Court.

44. While the ground refers to ‘a condition of a Treatment Order’, I am satisfied that the singular includes the plural (s 145(b) of the Legislation Act 2001 (ACT)) and that Mr Crawford is not willing to comply with the conditions that require him to engage in rehabilitation in a residential drug rehabilitation facility and to comply with directions of the Court or members of the Treatment Order Team, as he has failed to do on at least two occasions that were significant.

45. This ground is then made out.

46. The second ground is related to the first in that the objects of a Treatment Order may be summarised as achieving rehabilitation and this is what the conditions of the Treatment Order, with which I have found that Mr Crawford is unwilling or unlikely to comply, are designed to achieve.

47. Thus, the object set out in s 80O of the Sentencing Act include to:

(a) facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and (b) reduce the offender's dependency on alcohol or a controlled drug; and (c) reduce the health risks associated with the offender's dependency on alcohol or controlled drugs; and (d) assist with the offender's integration into the community.

48. Until rehabilitation has occurred, objects (b) and (c) are quite unlikely to be achieved as that is the object to which they are directed.

49. Object (a) is the means of achieving rehabilitation and Mr Crawford's failure to make reasonable efforts at rehabilitation means that he is clearly unable to achieve that object. He has avoided judicial supervision by not returning to the Court and has not engaged in the therapeutic regime. In addition, the regime integrated into therapy, education and employment assistance and support are all parts of the regime which Mr Crawford has also avoided. Indeed, it may be fairly said that the fact that, on the second occasion, he left the Canberra Recovery Services on the same day that he entered it suggests that his lack of motivation for rehabilitation has actually escalated. I take into account the reason that Mr Crawford gave for leaving, but, nevertheless, it seems to me that a lack of motivation, still, is a reasonable inference that I can draw.

50. Thus, as it is clear from Mr Crawford's recent behaviour, the first object is not likely to be achieved, so objects (b) and (c), as well, will not likely be achieved.

51. As to object (d), the third phase of the Treatment Order is described as reintegration, which clearly is directed towards reintegration into the community upon rehabilitation. The goals of this are to remain drug free and accept a drug free lifestyle, to remain crime free and accept a crime free lifestyle, to stabilise social and domestic environments, to gain employment and be employment ready, and to be fiscally responsible.

52. Mr Crawford's personal circumstances are set out in R v Crawford (No 1) at [43]-[58] and it is clear from this that, without substantial assistance, such as phase 3 of the Treatment Order would have provided, his chances of successfully achieving reintegration as intended by object (d) are quite unlikely.

53. Thus, Mr Crawford's failure to engage in rehabilitation means that it is unlikely that Mr Crawford will be able to move to and achieve reintegration in the community.

54. Accordingly, I am satisfied that Mr Crawford will not achieve at least objects (a), (b), (c) and (d) intended to be achieved by the Treatment Order.

55. Finally, the third ground of the Crown's application was, in effect, that the community is at an unacceptable risk from Mr Crawford's criminal activity, which has been quite substantial: see R v Crawford (No 1) at [55]-[58]. It was largely dishonesty offences, serious enough and rightly concerning to members of the community, but also an increasing number of offences of violence which, of course, are particularly threatening, both to individuals and to the community more generally.

56. While in Victoria, as noted above (at [24]), Mr Crawford committed a large number of offences. Together with the offence he is alleged to have committed after he left Karralika in mid-September, this does reinforce what might be regarded as a generalisation that people whose dependency on drugs has not been resolved, or at least managed, are likely to commit further crimes. Care must be taken not to make this into a stereotype and make a finding of risk to the community on that basis alone, but, in my view, there is a reasonable basis for that inference in the circumstances as I have described them.

57. With Mr Crawford's unaddressed drug dependence, however, his continued criminal activity leads me to be satisfied that he will, if released into the community, pose an unacceptable risk to people in the community. Thus, in both cases he has likely put the community at risk. In the first case, this is only an allegation, though the evidence of his involvement in some way is very compelling, but that does not mean that he committed, necessarily, the actual offences charged. The allegation, however, is very strongly supportive of his involvement in criminal activity where a very large sum of money was stolen. That reinforces the likelihood that the community will be put at risk.

58. Mr Crawford has also submitted that his partner is ill and requires surgery at the Calvary Hospital. She will be in hospital from 16 July 2021, with an expected discharge date of 19 July 2021. Though I have the letter from the Hospital confirming her admission, I do not have further details. I am informed that she has no family in Canberra and, thus, would be looking to Mr Crawford for support. While it would be inhumane not to feel great empathy and sympathy for his partner, Mr Crawford has, by his prior behaviour and his predations on the community, put himself beyond being able to support her as he says he would wish to do so.

59. Accordingly, I am satisfied that this ground has been made out.

60. As all the grounds have been made out and no reasonable alternative has been provided, I am satisfied that the Treatment Order should be cancelled and I will do so.

Sentencing

61. I have been asked to make a further Treatment Order. For the reasons that are set out above, I am not satisfied that it is appropriate to make a further Treatment Order for Mr Crawford. I am not satisfied that he will engage in further rehabilitation, even in a residential drug rehabilitation facility if that were to be made available.

62. I am sensitive to the distress that this will provide to his partner, but at the end of the day this is largely at his feet, as he is the man who has committed the offences which have led to this inevitable consequence.

63. Consequent upon the cancellation of the Treatment Order, I must now impose the sentence of imprisonment that I did on 7 September 2020, or re-sentence Mr Crawford.

64. In R v Tonna (No 2) at [78]-[79], I set out some of the grounds that would justify a re-sentencing. None of them apply here and no others have been suggested.

65. The imposition of the sentence does, however, have some curiosities which I have explored in R v Dowling (No 3) [2021] ACTSC 210 at [46]-[48]. There is no reason, in this case, to partially suspend the sentence. I consider, however, that a non-parole period should be set and given the circumstances of Mr Crawford and, in particular, the relevance of the Bugmy principles, I will set a relatively short non-parole period.

66. When imposing the sentence, I understand that I must impose the whole sentence that was originally imposed on Mr Crawford. That means, of course, that the periods he has already served should be taken into account, with the appropriate way being to backdate the start of the sentence to allow for that: s 63 of the Sentencing Act.

67. Mr Crawford served 110 days in Pre-Sentence Custody prior to 7 September 2020. He has not served any such periods since then that I should take into account.

68. Mr Crawford has, however, served periods in custody under the Supervision part of the Treatment Order. Mr Crawford served two such periods, the first between his arrest on 7 October 2020 and his release on the amended Treatment Order on 23 October 2020, a total of 17 days. The second was from his arrest in Victoria and remand in the custody of ACT Police on 21 June 2021 and his sentence today, namely 2 July 2021, a total of 12 days. I will accordingly add 29 days to the period of sentence to be backdated, making a total of 139 days, which is, as I explained in R v Dowling (No 3) at [62], the preferable way to approach that aspect of the sentencing.

[His Honour then spoke directly to the offender].

69. Mr Crawford, please stand.

70. I cancel the Drug and Alcohol Treatment Order made on 7 September 2020 and amended on 23 October 2020.

71. I confirm the convictions and sentences imposed on 7 September 2020 for the offences to which you have pleaded guilty.

72. I declare that under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) the total sentence is four years imprisonment, to commence on 13 February 2021 and end of 12 February 2025.

73. I set a non-parole period of two years that commences on 13 February 2021 and ends on 12 February 2023.

74. I cancel the Good Behaviour Order made on 7 September 2020.

I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.

Associate: L Ireland

Date: 28 January 2022