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[2021] ACTSC 92
Supreme Court of the ACT
2021-03-26
Refshauge AJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - consideration of whether to order a drug and alcohol treatment assessment (a suitability assessment) when the person is assessed as being not eligible for a drug and alcohol treatment order - significant mental health issues - difficulties in comprehension due to persistent symptoms - reasonable to assess whether offender can show that they can participant in the treatment order process - suitability assessment ordered
Crimes (Sentencing) Act 2005 (ACT) ss 12A, 12A(2)(c), 46J, 46J(5), Table 46K, 80M
R v Massey (No 1) [2020] ACTSC 256
R v Pelecky [2020] ACTSC 246
ACT Supreme Court, Notice to Practitioners: Drug and Alcohol Sentencing List, 19 December 2019
Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT)
Supplementary Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT)
1. A Drug and Alcohol Treatment Order (a Treatment Order), under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), is an important and progressive sentencing option established by the ACT Legislative Assembly, which commenced on 3 December 2019.
2. Clearly, s 12A of the Sentencing Act also sets out qualifications for eligibility for a person who is seeking to be subject to a Treatment Order. Some, such as whether an offender has pleaded guilty to an eligible offence or whether the offender is subject to a 'sentencing order', can be fairly clearly identified. See, for example, R v Pelecky [2020] ACTSC 246.
3. Some, such as whether the offender is likely to be sentenced to a term of imprisonment of at least one year but not more than four years, are more complicated. Sometimes that will be easily assessed as not within that limit, for example, if the offence attracts a maximum penalty of only a fine or a term of imprisonment of less than one year. Sometimes, however, the question of whether the length of a sentence will be one year or longer can be difficult to determine, as in R v Massey (No 1) [2020] ACTSC 256. In any event, it can rarely be properly determined until sentence is actually imposed.
4. Under the statutory arrangements specified by s 46J of the Sentencing Act, a Treatment Order cannot be made until the court has ordered the responsible Directors-Generals, namely the Health Director-General and the Director-General of the Justice and Community Safety Directorate, each to prepare a Drug and Alcohol Treatment Assessment. Neither the nature and purpose of such assessments, nor the process for preparing them, are clearly set out in the legislation. The Explanatory Statement for the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) and the Supplementary Explanatory Statement for the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) are of no help, as they merely paraphrase the legislative provisions.
5. Table 46K of the Sentencing Act does set out a range of matters that must be addressed and contains indications of unsuitability for a Treatment Order. These must be, under s 46J(5) of the Sentencing Act, addressed in the 'drug and alcohol treatment assessment' (the Suitability Assessment), which the court has the power to order under s 46J(2) of that Act.
6. A Notice to Practitioners issued by the then Registrar on 19 December 2019, and available on the ACT Supreme Court website, sets out the process for an offender who wishes that a Treatment Order be made in respect of them. This sets out relevantly the following process:
6. When an offender wishes to be assessed for a drug and alcohol treatment order under s 12A of the Crimes (Sentencing) Act 2005 or the DPP seeks such an order:
a) The offender (or their legal representative) and the DPP must sign the standard threshold eligibility assessment form.
b) On receipt of the form, the Court will refer the offender to the next suitable Drug and Alcohol Sentencing List (DASL).
c) Threshold eligibility assessment will precede this appearance.
7. An offender who seeks to undertake a drug and alcohol treatment order must sign the Court's standard form consent to information sharing between the agencies that support the DASL.
8. On the offender's first appearance in the DASL, the presiding judge will determine whether the offender is:
a. referred for a full assessment in accordance with the Court's suitability assessment protocol and the matter will be listed for sentence approximately six weeks later; or
b. not suitable for further assessment and set the matter for sentencing before the Supreme Court or remit the matter to the Magistrates Court[.]
9. In supervising an offenders' (participant's) drug and alcohol treatment order, the presiding DASL judge will be supported by the Court's treatment team, to whom the Court's treatment team protocol applies.
10. A participant will be required to attend frequent DASL participant review hearings at which the presiding judge will consider the participant's compliance with their order.
11. Prior to each participant review hearing, the presiding DASL judge will discuss the participant's progress with members of the Court's treatment team.
12. At a participant review hearing, the presiding DASL judge may reward or sanction a participant. In deciding whether and how to reward or sanction a participant, the presiding judge will consider the Court's behavioural contract protocol.
7. The assessment form, referred to in [6](a) of the Notice, requests of the offender appropriate personal details and nine specific or general eligibility questions and also requires acknowledgement that the offender has been 'reviewed by the DASL team and no objections to further assessment have been raised.' This is commonly known as an 'Eligibility Assessment', being that referred to at [6](c) of the Notice, though it is a term that is used without express legislative authority. The references to 'DASL' is to the 'Drug and Alcohol Sentencing List', established to administer the making and supervision of Treatment Orders.
8. The 'treatment team' refers to the 'treatment order team' defined in s 80M of the Sentencing Act. In practice, only members of the Treatment Order Team from the agencies within Canberra Health Services, under the authority of the Health Director-General, conduct this eligibility assessment, namely Alcohol and Drug Services and Forensic Mental Health Services of Justice Health Services, both of Mental Health, Justice Health and Alcohol and Drug Services. In their reports, they relevantly give a general demographic summary of the offender and consider the offender's alcohol and drug history or psychiatric and psychological history, as the case may be, and provide a general assessment including of risk issues such as whether they have a known history of suicide or attempted self-harm or whether they have current suicidal or self-harm ideation and, in the case of Forensic Mental Health Services, an assessment of the offender's vulnerability and protective factors, and finally, for both agencies, recommendations as to the offender's suitability for progression to 'Suitability Assessment' which, similar to the 'Eligibility Assessment' referred to above (at [7]), is a term that is used without express legislative authority. It is the assessment referred to in [8](a) of the Notice.
9. In addition, offenders who seek that they be subject to a Treatment Order must give informed consent to share their information with agencies involved in 'providing treatment ... for the purposes of treatment planning and evaluation', and with some non-government support services. They must also give informed consent for the Treatment Order being made (s 12A(2)(c) of the Sentencing Act), and a form is required to be signed after the offender has had the Treatment Order carefully explained to them in a manner that is sufficient for them to make a balanced judgment as to whether to consent, and after an opportunity has been given to ask any questions about the Treatment Order and those questions have been answered.
10. It appears that the rationale for this process is that a complete Suitability Assessment is a complex and time-consuming operation. The assessments range over a wide spectrum of matters as needed to explain the relevant considerations of the seven specific matters in Table 46K of the Sentencing Act. In addition, they take at least four weeks for an offender in custody or six weeks for an offender on bail, thus delaying the progression of the matter somewhat significantly. For these reasons, such assessments should not be sought if there is no real prospect that a Treatment Order can or should be made. Such reasons, however, should not be used to the detriment of people who suffer from any disability unless they are given every opportunity to overcome that disability.
11. Walter Robert McHughes pleaded guilty in the ACT Magistrates Court on 25 March 2021 to offences of burglary, aggravated burglary and theft. The Magistrates Court then, on his pleas, committed him to this Court under s 90A of the Magistrates Court Act 1930 (ACT) with an order made for an Eligibility Assessment. I have now received those Eligibility Assessments from Alcohol and Drug Services and Forensic Mental Health Services of Justice Health Services.
12. They both identify significant mental health issues which, the author of the Forensic Mental Health Services' assessment, a registered nurse, regarded as posing 'a considerable impediment to [his] engage[ment] in DASL['s] screening process[es] in a comprehensive manner' and that, according to the author of the Alcohol and Drugs Services', a social worker, he 'is likely to find participation in a AOD [alcohol and other drug] treatment challenging due to his comprehension and persistent symptoms.' That author added that '[c]ounselling or group work is unlikely to be beneficial'.
13. These assessments were, of course, carried out quickly as they must be. Issues of comprehension are complicated and, to some extent, depend on the circumstances in which the interviews are conducted, not in the sense of the professional capacity of the interviewer, but in the sense of whether the interviewee can give the best account of him or herself. In addition, it does not allow for explanation of whether any supports or assistance can be overcome, or whether the disabilities identified can be mitigated to an appreciable extent.
14. Here, the interviews were conducted in the cells of this Court in the afternoon of the morning of the day on which Mr McHughes appeared by audio visual link in the Magistrates Court and entered his pleas of guilty, the same day on which he was committed to this Court. He was brought into court from the Alexander Maconochie Centre in order that the interviews could be conducted in person and the Eligibility Assessments prepared. I am grateful to the Court and to those who conducted the interviews for being able to conduct them so quickly and helpfully.
15. The Eligibility Assessment prepared by Alcohol and Drug Services did, however, state:
Counselling or group work is unlikely to be beneficial. He is not recommended for Suitability Assessment however further information can be provided if further assessment is required.
This suggests that further assessment is not necessarily contraindicated.
16. In this case, I accept that it is not unreasonable for Mr McHughes to have an opportunity to show whether, in a less concentrated circumstance with less pressure, he may be able to show that he can participate in the Treatment Order process and that he will be able perform adequately in the rehabilitation processes that will be required of him. Accordingly, I will order a Suitability Assessment.
17. I will, however, request that consultation be had with the Court and Tribunal Disability Liaison Officer who may be able to assist with the identity of any supports that might be available to assist Mr McHughes in his participation and comprehension of the processes of a Treatment Order and the treatment and supervision plan that will be made under such an Order. However, in the circumstances I will not list the matter for sentence at this stage, though I will ensure that a date for sentence is available shortly after the Suitability Assessments are provided to ensure that he is not disadvantaged.
18. Accordingly, I note that Walter Robert McHughes has been assessed as not eligible for a Drug and Alcohol Treatment Assessment.
19. I will order that a Drug and Alcohol Treatment Assessment be prepared.
20. I will direct that the Director-General of the Health Directorate, through Alcohol and Drug Services and Forensic Mental Health Services, and the Director-General of Justice and Community Safety, through ACT Corrective Services, prepare a Drug and Alcohol Treatment Assessment and submit it to the Court and to members of the Treatment Order Team on or before 29 April 2021.
21. I will adjourn the proceedings to 30 April 2021 at 2:30 pm for consideration and I note that it is likely that if Mr McHughes is found suitable, and possibly if he is not found suitable, and he does not want remission to the Magistrates Court, then I will sentence him on 14 May 2021.
22. I will also request the Director-General of the Health Directorate to consult with the Courts and Tribunal Disability Liaison Officer in the preparation of the Suitability Assessment.
I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge.
R
McHughes [2021] ACTSC 92