R v Tonna

[2020] ACTSC 362

Supreme Court of the ACT|2020-12-17|Before: Refshauge, AJ

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Supreme Court of the ACT

Decision date

2020-12-17

Before

Refshauge, AJ

Catchwords

CRIMINAL
LAW – JURISDICTION, PRACTICE
AND PROCEDURE – Judgment and Punishment – Sentence –
consideration of whether to

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Catchwords

CRIMINALLAW – JURISDICTION, PRACTICEAND PROCEDURE – Judgment and Punishment – Sentence –consideration of whether tocancel a drug and alcohol treatment order - noalternative residential rehabilitation facilities available – drug andalcoholtreatment order cancelled

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Tonna (No 2)

Citation: [2020] ACTSC 362

Hearing Date(s): 11 December 2020; 15 December 2020

Decision Date: 17 December 2020

Before: Refshauge AJ

Decision: 1. The Drug and Alcohol Treatment Order made on 7 October 2020, as amended on 13 November 2020, be cancelled. 2. Each of the sentences imposed on 7 October 2020 be imposed, save that the sentence for possessing a drug of dependence be reduced, under s 80ZE(3)(b) of the Crimes (Sentencing) Act 2005 (ACT), by 24 days, to commence on 26 December 2021 and end on 24 May 2022. 3. It be declared that the total sentence of 2 years 2 months and 28 days, is to commence on 27 February 2020 and end on 24 May 2022. 4. A non-parole period of 13 months and 13 days be set, to commence on 27 February 2020 and end on 8 April 2021. 5. It be recommended that depending on the rehabilitation Mr Tonna undertakes while in custody, it be a condition of his parole that he undertakes a residential rehabilitation program in New South Wales if he is found suitable, and that it also be a condition of his parole that Mr Tonna undertakes suitable family violence counselling for offenders.

Mr Tonna was convicted of six offences committed between 23 and 25 July 2019 and one further serious offence committed on 27 May 2020. The most serious offence was an aggravated burglary committed in May 2020. He was also sentenced for serious offences committed in July 2019, being two offences of contravening a Family Violence Order and an offence of assault occasioning actual bodily harm. The other offences were an offence of driving whilst disqualified and an offence of possessing methamphetamine.
I sentenced Mr Tonna to 12 months' imprisonment for the aggravated burglary offence, and a series of terms of imprisonment for the other offences, partly concurrent, totalling 2 years and 4 months' imprisonment. As Mr Tonna had spent 293 days in pre-sentence custody, I backdated the sentence to commence on 19 December 2019.
The Treatment Order originally provided that Mr Tonna would engage in rehabilitation in the community by undertaking various case management treatment programs, in particular the day program at Canberra Recovery Services, urinalysis and other programs as directed by the Treatment Order Team as defined by s 80M of the Sentencing Act. I also made a curfew condition that Mr Tonna remain at his place of residence from 9:00 pm on any day to 7:00 am the next day.
Mr Tonna's drug history is not a long one. He first used cannabis in August 2018 to medicate himself following an assault he suffered which resulted in a fracture of his jaw. He increased his use of substances until he was using methamphetamine daily (R v Tonna (No 1) [2020] ACTSC 360 at [33]). Thus, while he has not had a particularly long-term drug dependency, the circumstances in which he first used has some limited mitigatory effect by virtue of the principles enunciated in R v Henry and Others [1999] NSWCCA 111; 46 NSWLR 346 at 397-8, [273].
The offences of breaching a Family Violence Order occurred in circumstances where he appears to have been unable to accept the ending of a relationship with the respondent to the Order, with whom he had been in an intimate relationship for about four years. He later assaulted her by driving his car so that it collided with her, causing gashes to her heel and some bruising which caused some ongoing pain and temporary disability (see R v Tonna (No 1) at [9]-[10]).
Mr Tonna initially seemed to embrace the rehabilitation program generally, attending a SMART Recovery meeting on 8 October 2020 as required, but with a failure to attend one program because lateness denied his access. He seemed, nevertheless, to continue attendance the following week.
He was described as “receptive, polite and engaging” at Canberra Recovery Services counselling and “expressed motivation for change”.
He did, however, show alcohol use in his urinalysis which required a warning.
This soon became problematic, however, as he used cocaine on 19 October, 13 days after the Treatment Order was made. His urinalysis on 16 October had also returned a positive result for cocaine which showed use which he had not disclosed. Honesty is a fundamental aspect of the conduct necessary for successful rehabilitation in these circumstances.
By this time, he had gained three sanction points and there was a real concern about his commitment. He consumed cocaine yet again on 23 October 2020. Again, he explained that he had been with friends and had consumed four beers and one to two lines of cocaine. He did express positivity and was proud for not using methamphetamine and said, later, that he does not think he has an addiction problem, and that he can learn to control his cocaine use. All his friends, who worked full-time, “just used cocaine at the weekends”. He also broke his curfew, but only by a few minutes.
In the ACT Corrective Services Suitability Assessment Report, under s 46J of the Sentencing Act, the reporter noted that while Mr Tonna had prosocial and supportive family, he had antisocial companions and may need to change employment in order to avoid these companions. He clearly has not done that to date. While perhaps understandable, as altering one’s social group can be difficult, the level of motivation for reform can, perhaps in part, be measured by the capacity and willingness to address difficult matters such as these.
On 2 November 2020, however, his urinalysis again returned a positive result for cocaine. Clearly his friends and alcohol were factors in his cocaine use. Indeed he was, until 2 November 2020, using substances up to twice a week, mostly without admission, progressing to intravenous use which he admitted to using because he believed that the substances would leave his system and not be disclosed by urinalysis, a further example of a level of dishonesty that is of concern.
He had, by this time, accumulated seven points and was sanctioned by being imprisoned for 7 days. I took the view that it was then necessary to review the Treatment Order and consider other treatment options.
While he was in the Alexander Maconochie Centre, a search revealed a small plastic bag in the detainee's tobacco pouch which contained a white substance weighing 6 grams, including packaging. It is believed to be an illicit drug, that is, contraband and likely, if not probably, cocaine. Unfortunately, delays in urinalysis have meant that this is not yet confirmed. I cannot therefore so find, but what I can find is worrying. He also admitted that he had used illicit drugs while in custody.
When he returned from custody, I determined that the Treatment Order should continue but that the treatment should be at Canberra Recovery Services in its full-time residential rehabilitation program. Accordingly, as noted above (at [4]), I amended the Order and made conditions requiring him to admit himself to that program and remain there until he had completed it.
Mr Tonna's rehabilitation seemed to be progressing. He was punctual to programs, was described as “[q]uiet, yet engaged with group participation”. Then, on the afternoon of 1 December 2020, he left the Canberra Recovery Services facility.
He went to his mother's house and informed a member of the Treatment Order Team that he had done so and where he was. He presented himself to Court on 3 December 2020 and I remanded him in custody to consider the position. He wrote a letter to me explaining his decision. He first apologised for “once again letting you and your team down”. He said that he appreciated “all the work you have done for me to get me to the rehab and putting me on this order”. He admitted to using illicit drugs when he left Canberra Recovery Services as his addiction “got the better of [him]”.
He explained two reasons for his departure. The first was that another resident had created a major personal problem for him. She told him soon after his admission that she had stolen goods from his house and damaged its contents. She joked about it with others. As he said, "it was eating me inside because it reminded me of all the things I had when I worked hard and [when] my house which I was paying off got ruined”. It was by a person whom he had trusted and had been the first to give him ice. He described her behaviour as bullying and her comments as racist, which had the effect of leaving him feeling personally degraded.
He also felt targeted by the program when those like him who had been in custody were required to take extra drug tests, whilst those who had not been in custody were not.
He did not explain why he had to leave at that stage, being in Phase One of the Treatment Order Program. He came before the Court every week and could have raised this at one of those occasions. Alternatives could have been explored and changes could have been made.
I accept that this could have been challenging for him, but he chose a little too much self-centredness by placing his own views ahead of his obligations, which the privilege of an Treatment Order required of him.
Again, the sense of fairness, he says, which informed his view about the apparent differential testing regime at Canberra Recovery Services, also shows a degree of self-centredness which is not helpful and is perhaps not consistent with successful rehabilitation.
I am not justifying discrimination at all, but the difference which has been described does not seem to me to rise to that level.
He also apologised for using drugs, but his explanation seems to me to fail to show a similar level of commitment in deeds to his rehabilitation that he had expressed in words
He suggests that a rehabilitation agency that is interstate, say in New South Wales, may be more appropriate for him given his relationships with people likely to be in Canberra’s rehabilitation facilities. He has, to his credit, made enquiries of such a facility, Wayback Ltd, a Drug and Alcohol Rehabilitation Service at Harris Park, New South Wales.
When Mr Tonna was remanded in custody on 3 December 2020, he was subject to urinalysis, and this returned positive results for amphetamines and opiates. These were presumably the drugs he admitted in his letter.
The Treatment Order Team regarded Wayback Ltd as an unsuitable rehabilitation facility for him. Enquiries have been made as to other suitable agencies in New South Wales. One is full, another failed to respond, and the third available is closed for the year. There is therefore no agency available to which he can be sent to as a condition of the Treatment Order. The Application
The Crown has applied for cancellation of the Treatment Order under s 80ZE of the Sentencing Act, which empowers the Court to cancel such an Order for one of the “unsatisfactory circumstances” enumerated in the section.
The particular circumstances relied on by the Crown is in s 80ZE(1)(c), namely that “the offender is unwilling or unlikely to comply with a condition of the offender's treatment order”. The section requires that the circumstance be made out on the balance of probabilities. The Court has a discretion. Even if it finds the circumstance made out, it is not obliged to cancel the Treatment Order.
This is a complex issue because while the Order contains conditions to which the unsatisfactory circumstance is obviously directed, the Court has power to review a Treatment Order under s 80ZH of the Sentencing Act and under that section may on the review “amend the order as the court considers appropriate”: s 80ZH(4) of the Sentencing Act. Indeed, this is what I did on 13 November 2020.
While an application for cancellation simply seeks an order under s 80ZE of the Sentencing Act, it seems to me that the application must amount in the circumstances to a review of the Treatment Order, for it would be unfair and a waste of time were the Court, in considering an application to cancel a Treatment Order, to consider that amendment would be feasible and meet the unwillingness or unlikelihood of the participant complying with the conditions, that were the subject of that unwillingness or unlikelihood, but where there were satisfactory rehabilitative options that could be made conditions of the Treatment Order which would remove the unsatisfactory circumstances.
Thus, for example, were a place available at a New South Wales residential rehabilitation facility and that was otherwise appropriate, it would be proper to reject the Crown's application, not because the circumstances had not been made out but because another option which was satisfactory, and which could replace the unsatisfactory one, was then available.
It would be inappropriate either to make such an option unavailable unless an application was made under s 80ZH of the Sentencing Act at the same time or as a cross application, or alternatively, to require the Crown's application to succeed and the Treatment Order be cancelled because such an application or cross application had not been made.
If I am not construing the legislation strictly as it is drafted when I do so as I have above, then I consider that reason and common sense would require urgent amendment to ensure that it meets a sensible approach of the kind that I have described so that the object of the legislation and of a Treatment Order set out in s 80O of the Sentencing Act can be met.
Neither party took a different view on this hearing and I considered alternatives to the present condition requiring Mr Tonna to complete the residential rehabilitation program at Canberra Recovery Services.

The Crown noted in its submissions that the Treatment Order provided “extremely high support” and yet that was still unable to assist Mr Tonna to comply with his obligations under the Treatment Order.
The Crown noted further in its submission that Mr Tonna had made little actual progress and had demonstrated a poor attitude, for example when requested to comply with special provisions as to drug testing for those previously in custody. His multiple uses of cocaine, his continued use of such drugs in the community, in residential rehabilitation, and in custody, was evidence of what had been described by the Crown as his “ambivalence to the complete cessation of drug use”. A report of his progress referred to his comment that “he initially noted that he may consider recreational substance use on weekends”.
Mr Tonna is still a relatively young man at 23 years of age. As pointed out by the New South Wales Court of Criminal Appeal in R v Gordon (1994) 71 A Crim R 459 at 469, the mitigation and emphasis on rehabilitation that accompanies youth in sentencing is not confined to those under the age of 18 years. Thus, an offender over the age of 18 years, still a youth or youthful, should have access to what the Court of Appeal described as the parsimonious use of criminal sanctions which do not have rehabilitation as their primary aim (Thorn v Laidlaw [2005] ACTCA 49 at [32]).
The question is, then, at what point do these principles cease to apply? At what point do we expect a person in their 20s to be an adult, to take the responsibilities of being an adult, to shake off the immaturity of youth that attracts such principles, and to be treated as an adult?
As to be expected, there is no bright line and no general agreement. It is clear that the community expects those over 18 to start taking adult responsibility in areas such as access to voting, driving, freedom from parental control, and no longer being treated within the very different children's justice regime, that is, no longer under the jurisdiction of the Childrens Courts or juvenile detention.
The Courts have accepted that this a gradual process. For example, in R v Makisi [2004] NSWCCA 333; 151 A Crim R 245 at 255, the Court was prepared to distinguish the sentencing approach to be applied to a 25 year old rather than to a 20 year old. This approach has been applied since in Gao v R [2008] NSWCCA 234 at [20] and Ngo v R [2018] NSWCCA 296 at [77].
Mr Tonna falls right in the mid-point of that range and so it seems some factor of youth remains relevant, but he is to recognise that he is rapidly moving to adulthood for sentencing purposes.
He is prepared to attend a remedial rehabilitation facility, but in New South Wales, and indeed, has made initial enquiries, though it is at what is regarded by the Treatment Order Team as an unsuitable facility at this stage of his particular rehabilitation journey.
His mother was present in Court and has been prepared to support him. Indeed, were he to be released into the community pending entry into an acceptable New South Wales residential rehabilitation facility, she would be prepared to have him live with her under strict conditions that were described by Ms C Duffy, who appeared eloquently for Mr Tonna, as akin to him being under house arrest.
As counsel for the Crown, Ms K Reardon, pointed out in her thoughtful submissions, Mr Tonna’s mother had not been effective in the past in preventing either his continued use of illicit drugs or the breach, albeit minor, of the court ordered curfew. This is not an attractive proposition.
This is a fair point, but in justice it must be pointed out that his mother had no special obligation, even informally, imposed on her at that time to prevent this conduct, which might be different this time.
Ms C Duffy further pointed out that Mr Tonna would be able to obtain work, that he would sever his ties with his drug-using peers, and that he had a support network in place.
These were of course assertions, and I must say, fairly general ones. For example, the evidence earlier before the Court was that Mr Tonna's work was associated with those very peers that he partied with so inappropriately at the weekend. There was a lack of detail that could satisfy the Court that these most recent expressions of commitment and reform were not mere intentions or expectations, but realities that could be put in place. But perhaps more importantly, there was a lack of evidence of them being realities that Mr Tonna, at his present stage along the rehabilitation progression, would abide by and pursue with the commitment required to address his dependency.
Ms C Duffy fairly pointed to some progress that had been made. Mr Tonna had not decamped when he voluntarily left Canberra Recovery Services but had remained and reported to the Court.
While this does show some compliance, it is a slightly complex question. The problem, as I see it, is that it seems to imply that the regrettably not infrequent failure to report, in these circumstances, is a kind of norm or baseline so that doing better than that is a matter of credit.
On the contrary, the Court should probably assume that its orders will be followed and that this is the baseline and that credit is to be given for doing better than that, not merely doing what is required.
I find that slightly too hard, too black-and-white an approach for the complicated ecosystem of human experience. The reality is that we are here dealing with people who have failed to comply with society's norms, whether legislatively or judicially imposed, and it is not improper nor inappropriate to credit compliance with those norms as progress by an offender towards a non-offending lifestyle.
I shall certainly take it in that way. Mr Tonna's preparedness to face the consequences of returning to Court after leaving Canberra Recovery Services is, to some level, to his credit.
I should also take into account Mr Tonna's efforts at programs to date, which provide that there has been some progress by rehabilitation and engagement. It is important. He has engaged in some level and has shown some signs of participation. The real problem is that this has been for such a small period of time, first from 7 October to 6 November 2020, 31 days in the community, and then from 16 November to 1 December 2020, 16 days in Canberra Recovery Services.
Three other issues present themselves. Obviously, the first is that continued use of illicit drugs, to which I have referred, at each stage of his progress under the Treatment Order is of concern.
Secondly, there is a sense of entitlement in Mr Tonna's behaviour that is inhibiting his progress. It is shown in the commission of the offences involving his former partner, where it underlies his inability to recognise the end of the relationship, his invasion of her home and the physical attack on her, none of which are actions that are justified by any kind of entitlement of some ongoing relationship. It is still showing in his attitude to the drug testing regime at Canberra Recovery Services.
Thirdly, there is a continuing lack of honesty which, as I have earlier noted, is fundamental to a successful rehabilitation from drug dependency.
His failure to raise with me the difficulties he was having at Canberra Recovery Services at the weekly attendances at court, and even suggesting that a New South Wales facility might be preferable, combined with his failures to cease drug use, and his voluntary unannounced departure from Canberra Recovery Services, is a continuation of his earlier behaviour showing a poor response to court orders in the past, including to, most gravely, the Personal Protection Order granted to his former partner.
These matters would certainly have justified cancellation of the Treatment Order. Whether that would have been required if a more structured and appropriate residential rehabilitation facility had been available in New South Wales is uncertain, but in any event, that option is not presently available.
At first blush, it may seem unfair to cancel the Treatment Order because the resources necessary for it are presently unavailable. There are a number of matters to be considered in this. In the first place, I have no capacity to deal with Mr Tonna appropriately while awaiting the availability of a suitable facility. Thus, I can only remand Mr Tonna in custody either under s 80ZB(1)(e) of the Sentencing Act or by cancelling the Treatment Order.
That section, however, provides that I can cancel the suspension of the sentence of imprisonment originally imposed “for a period of at least 3 days but not more than 14 days”, and “[reinstate] the suspension at the end of the period”. This limits the time that Mr Tonna can remain in custody for having breached the condition that he remain at Canberra Recovery Services, namely for a maximum of 14 days.
Of course, the provision does not prevent me from doing this multiple times during the currency of the Treatment Order but, in my view, it would be inconsistent with the section to do it more than once for the same breach.
In this case, I am not prepared to release Mr Tonna into the community. I am not satisfied that he will not continue to use illicit drugs and I am not satisfied that, even with the best will in the world, his mother can properly supervise him. It is challenging enough at the Alexander Maconochie Centre. Thus, I cannot simply remand him further until a placement becomes available at a New South Wales residential drug rehabilitation facility. This may be a weakness in the legislation which requires attention, or it may be a matter of policy that the Legislature has implemented.
The other issue is that the limited resources are preventing Mr Tonna from accessing the rehabilitation that he is assessed to require. Under s 80S(c) of the Sentencing Act, a Treatment Order cannot be made by the Court “unless satisfied that appropriate arrangements for the administration of a treatment order are practicable”.
Ms K Reardon referred me to the reference to this in the Explanatory Statement to the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT Legislative Assembly, 2019). It says, on p 20:

I must either impose the sentence that I originally imposed or re-sentence Mr Tonna.
Re-sentencing arises where circumstances since the original sentence means that a variation of that sentence is required. For example, where an offender has made substantial efforts at rehabilitation and achieved progress, the original sentence may no longer be appropriate, in the sense that had those efforts and progress been made and achieved before sentence, a different sentence would have been imposed.
There will, no doubt, be other circumstances, such as a change in conditions since the sentence was originally imposed so that a different sentence would have been imposed, meaning that the sentence might need to be varied, as was accepted for different sentences imposed because of the effect of the response to the COVID-19 pandemic which had an effect on sentences: R v Yavuz (No 2) [2020] ACTSC 248 at [136]-[141].
In this case, I do not find that Mr Tonna has made such progress as would warrant a change in the sentence. There is no other circumstance of the kind that has been suggested to me that warrant some re-sentencing of Mr Tonna.
Accordingly, I will impose the same sentence. That sentence may, however, under s 80ZE(3)(b) of the Sentencing Act, be reduced by any period served in custody under the treatment and supervision part of the Treatment Order. Mr Tonna has now served, in all, 24 days in custody in those circumstances. There is no reason why I should not reduce the sentence accordingly.
Nevertheless, the apparent commitment to his rehabilitation should also be recognised. In this case, because the period of the sentence, as imposed on the primary sentence is, in total, more than 1 year, I may impose a non-parole period under s 65 of the Crimes (Sentence Administration) Act 2005 (ACT).
In this case, I can impose such a period, but of a shorter length than usual, with a recommendation which I may make under s 120(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) as to a condition for Mr Tonna's parole. In my view, a condition that he undertake a period of residential rehabilitation may be appropriate, depending, of course, on the circumstances, such as what rehabilitation Mr Tonna undertakes while in custody.

Mr Tonna, please stand.
I cancel the Drug and Alcohol Treatment Order made on 7 October 2020 as amended on 13 November 2020.
I impose each of the sentences imposed on 7 October 2020, save that the sentence for possessing a drug of dependence is reduced, under s 80ZE(3)(b) of the Crimes (Sentencing) Act 2005 (ACT), by 24 days, to commence on 26 December 2021 and end on 24 May 2022.
Accordingly, I declare that the total sentence of 2 years 2 months and 28 days, commences on 27 February 2020 and ends on 24 May 2022.
I set a non-parole period of 13 months and 13 days, to commence on 27 February 2020 and end on 8 April 2021.
I recommend that: (a) depending on the rehabilitation undertaken by you while in custody, a condition of your Parole Order be that you undertake a residential rehabilitation program in New South Wales, if suitable and; (b) as a condition of your parole, that you undertake suitable family violence counselling for offenders.
Mr Tonna, that is the formal order. I think you have been around long enough to understand what that Order means but basically, I am required to explain it to you.
In short terms, it says I acknowledge that you have done some good stuff and you have told me that you want to continue to do that but you really have not gone far enough. There are some real problems along the way that really do not justify me in letting you back into the community at this stage.
I appreciate that your mother is willing to have you and no doubt intends to see if she can keep you on the straight and narrow. I do not think that is fair to her and I do not think she will succeed in that, even with the best will in the world. I just do not think you are ready at this stage.
However, I accept that you are still genuine about what you want to do. I hope I am not being fooled. They are only words but you have shown some actions and some moves in the right direction but there is still a long way to go.
Therefore, I have made a very short non-parole period. You have already spent considerable time in custody, but you only have to now spend until 8 April 2021. If you behave yourself, do not commit problems in AMC, then you can apply for parole. I think you still need residential rehabilitation. If you are committed, then you will do that.
I suggest that, while you are in custody, you use your case manager to work that through, to make an application to a residential rehabilitation centre so that you can go to the Parole Board and say, “I have got a place and this is a place that I am prepared to go to and I will work at it.” If you do that, then I have no doubt that the Parole Board, the Sentence Administration Board, will grant you parole and allow you to do that.
If you do not, you will have assistance from Legal Aid, and you will have to work that through and be able to do that. The worse of the worst, I suppose, is that you can see if the Supreme Court will intervene.
Let us not go down that track. The reality is that you must put your nose to the grindstone, notwithstanding that I have had to impose a sentence on you now and send you back to custody for months. Put your nose to the grindstone, work at it, remain committed and that will mean looking out for yourself in custody and showing that the words can translate into deeds. You can actually do it if you try. Then go to the Sentence Administration Board in April 2021. It is not that far away. I am sorry it is after Christmas, but it is not that far away. You say to the Board, “I am still committed. I want to go, and I will go if you give me the chance.”
I still think you have got some problems about entitlement. You may disagree with me. You are entitled to do that. That is my assessment.
I think you would benefit from some family violence offender counselling. There are some really good programs around and I think you would benefit from that and that would assist you in reintegrating into the community and being what you can be, which is (a) a good son to your mother, as you were before 2018, and (b) a useful and productive member in the community.

R v Tonna

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