R v Winters

[2022] ACTSC 378

Supreme Court of the ACT|2022-08-15|Before: Refshauge AJ

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Source facts

Court

Supreme Court of the ACT

Decision date

2022-08-15

Before

Refshauge AJ

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Judgment and Punishment – Sentence – Re-sentence for Previous
Offences
– Breach of Treatment Order – Further Offending –

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment and Punishment – Sentence – Re-sentence for PreviousOffences– Breach of Treatment Order – Further Offending –Driving Unlicenced – Driving a Motor Vehicle Without theOwner’sConsent - Cancellation of Treatment Order - Good Behaviour Order – FurtherDrug Treatment

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 Winters (No 2)

Citation: [2022] ACTSC 378

Hearing Date: 30 June 2022

Decision Date: 15 August 2022

Before: Refshauge AJ

Decision: 1. Joshua Luke Winters’ conviction for aggravated burglary be confirmed and he be re-sentenced to 18 months imprisonment commencing from 15 January 2022 and expiring on 14 July 2023.

Joshua Luke Winters’ conviction for minor theft by joint commission be confirmed and he be re-sentenced to 2 months imprisonment commencing from 15 May 2023 and expiring on 14 July 2023.
Joshua Luke Winters’ conviction for damaging property be confirmed and he be re-sentenced to six months imprisonment commencing from 15 March 2023 and expiring on 14 September 2023.
Joshua Luke Winters’ conviction for aggravated burglary by joint commission be confirmed and he be re-sentenced to 18 months imprisonment commencing from 15 June 2023 and expiring on 14 December 2024.

Since 2019, the ACT Supreme Court has conducted the Drug and Alcohol Sentencing List to supervise the then-new sentencing option, a Drug and Alcohol Treatment Order (Treatment Order), that could be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
A Treatment Order is based on the principles of Drug Courts which have, particularly in the United States of America since 1989 and more recently in Australia, provided intensive therapy, case management and judicial supervision for those offenders whose drug and alcohol dependency substantially contributed to their offending.
Because such dependence is strongly associated with crime and, according to research, treatment for such offenders reduces crime (National Institute on Drug Abuse, Criminal Justice DrugFacts (Report, June 2020)). The privilege of such an offender being diverted from the ordinary processes of the criminal justice system and being able to access government resources available for the program is justified by the benefit to the community provided by reduced crime and the likely contribution to the community by an offender who has thereby been rehabilitated.
Further, since such an offender must, to be eligible, have been sentenced in this Court to a term of imprisonment, the expenditure of the resources offsets the cost otherwise incurred by the community of such imprisonment.
The program undertaken by an offender whose sentence is to be served under a Treatment Order is, however, subject to requirements and compliance. Thus, abstinence from drugs and alcohol is a requirement, as is regular attendance at Court and compliance with a therapeutic regime which is assessed as suitable and necessary for the offender for his or her rehabilitation.
Sanctions are imposed for breaches of these requirements. Thus, formal warnings may be issued, or a participant may be required to reflect on the breach and how they might prevent recurrence and share that reflection with the Court. More serious or repeated breaches result in what are referred to as the imposition of points, a sanction which equates one point to one day in custody, though the time in custody is not usually imposed until seven points have been accumulated. Even then, in special circumstances, the time in custody may not be required to be served and, where the breaches are serious, the periods of custody may be up to 14 days: s 80ZB(1)(e) of the Sentencing Act.
Continued, persistent or egregious breaches may result in the cancellation of the Treatment Order.
Joshua Luke Winters was convicted of various offences and sentenced to imprisonment, which was ordered to be served under a Treatment Order. He breached a condition of the Order and the Crown applied, by Application in Proceedings filed on 20 June 2022 (though, curiously, the Application was dated 28 June 2022) for the cancellation of the Order.
An affidavit of Claire Emily Daly dated 30 June 2022 was filed in support of the Application. It annexed an email from Mr Winters’ Canberra Health Services Case Manager, Ms Julie Blunden. No objection was taken to the affidavit and no challenge made to its contents.
The Crown relied also on the Treatment Order Status Reports received by the Court and all the material admitted in evidence by the Court on the sentencing hearing of the charges against Mr Winters, as to which, see R v Winters [2022] ACTSC 371 at [44]– [87]. There was no objection to this material and its contents were not challenged.
Each person serving a sentence by a Treatment Order is required to attend Court regularly, initially weekly, later fortnightly and, later still, monthly. These attendances are an opportunity to review the Treatment Order: see s 80ZH of the Sentencing Act.
Prior to the review, the Court is provided with a Status Report in which the case managers for the participant, one from the Alcohol and Drug Services and one from ACT Corrective Services, provide a report of the participant's progress. From time to time, reports from counsellors or residential rehabilitation agencies may also be included. This provides the Court with very helpful information about the participant's level of engagement and progress towards rehabilitation, as well as drawing attention to particular successes or any breaches.
These Reports are discussed in a private conference held before each such Review, with a view to assisting the Court in the judicial supervision it must exercise over the participant and to consider any action, including the imposition of sanctions, variation of the Treatment Order or its cancellation, graduation of the participant between the phases of the program, and other actions the Court may take.
From this material and the Court file, the following findings can be made.

Between 23 and 27 November 2021, Mr Winters committed two offences of aggravated burglary, one by joint commission, an offence of theft by joint commission, an offence of dishonestly driving a motor vehicle without consent, an offence of minor theft by joint commission, an offence of damaging property by joint commission, offences of driving whilst disqualified as a repeat offender, trespass and two further offences of minor theft. The circumstances are set out in R v Winters at [16]–[34].
He pleaded guilty and, on 26 April 2022, was sentenced to four years imprisonment to commence on 26 November 2021. The Court ordered that the sentence be served by a Treatment Order for two years, followed by a Good Behaviour Order. The Treatment Order required him to attend Canberra Recovery Services, a residential drug rehabilitation facility at Fyshwick, ACT, and admit himself to the program there. He did so.
A condition of the Treatment Order was that he complete the program at Canberra Recovery Services. Following his graduation from the program, other therapeutic programs would be arranged. A further condition was that, were he to be discharged from or leave the residential facility without permission, he report by 4:00 pm on the next working day to ACT Corrective Services with a view to having the Treatment Order reviewed.
Initially, Mr Winters appeared to be progressing well, settling into the program and addressing all its requirements and making a good connection with his counsellor. He faced some challenges following the death of a close family member, but continued to progress.
He did admit, however, that in early June 2022 he was “having a hard time” with emotional issues, Post-Traumatic Stress Disorder and sleep concerns. He eventually admitted that he had used a prescription-only medicine, Pregabalin, though he had not been prescribed it.
On 15 June 2022, however, a search of his room was conducted because his roommate had been found with Pregabalin tablets, which, though prescribed to the roommate, that person was suspected of selling. The search located a chip packet and Mr Winters tried to prevent the employee of the facility conducting the search from taking the packet and looking inside it. He was unable to prevent this, however, and the packet was found to contain several rounds of live ammunition. Mr Winters asserted that he was holding them for someone else.
The facility contacted police and requested that the Court address the issue.
Mr Winters appeared in Court on 16 June 2022 and was remanded in custody for seven days, when the custodial part of the Treatment Order was provisionally cancelled under s 80ZB(1)(e) of the Sentencing Act. Mr Winters was directed to reflect on the incident and provide a reflection on how it happened.
He appeared again on 24 June 2022 and the Crown foreshadowed an application to cancel the Treatment Order. The proceedings were adjourned to 30 June 2022.
Following this, the Court was informed that Canberra Recovery Services indicated that they would not readmit Mr Winters. On 30 June 2022, the Court cancelled the Treatment Order. These are the reasons for doing so.

The Court considered such applications in R v Tonna (No 2) [2022] ACTSC 362 at [34]– [39]. The approach to such applications has been set out helpfully in R v Massey (No 4) [2021] ACTSC 211 at [19]–[21] as follows: 19. The approach to the application is as follows. One ground is sufficient to require the Court to consider cancelling the Treatment Order, but each ground should be considered. A ground must be proved on the balance of probabilities. Even if one ground is, or more, or all, of the grounds are, made out, the Court is not obliged to cancel the Treatment Order and retains a discretion. The Court should also consider whether it is appropriate to review the Treatment Order under s 80ZH of the Sentencing Act at the same time and, in particular, to decide whether an appropriate amendment to the Order under s 80ZH(4) of the Sentencing Act can be made that would adequately address the unsatisfactory circumstances.
Even if there is an appropriate amendment that could be made, such as admission to another residential drug rehabilitation facility, there may not be the resources available to give effect to the amendment and s 80S(c) of the Sentencing Act would justify a cancellation of the Treatment Order in that case: R v Tonna (No 2) at [70]-[73].
At the end of this consideration, the Court retains a discretion whether to cancel the Treatment Order. That a participant has performed unsatisfactorily does not mean that this behaviour will necessarily continue. Thus, where the grounds have been made out, but there is still some reasonable hope, based on a rational assessment of the situation, that the offender will rehabilitate, the Court may decline to cancel the Treatment Order and give the participant a further chance to complete it. Such further chances, however, must be based on a careful analysis of the facts and circumstances: see R v Tonna (No 2) at [36]-[39]; [70]-[73], R v Crawford (No 3) [2020] ACTSC 369 at [27]-[29]. In the absence of such a basis for continuation, it is almost inevitable that the Treatment Order will be cancelled: see R v Crawford (No 4) [2021] ACTSC 209. This is the approach I shall take to the application.
This is the approach that will be taken on this application.

The Crown, in oral submissions, pointed out that Mr Winters had been discharged within two months of the Treatment Order being made. His conduct undermined the attainment of the objects of the Treatment Order.
The Crown also indicated that he would be facing a further charge, or charges, in respect of the ammunition that had been found in his room at Canberra Recovery Services. It is now known that, of course, that has not been prosecuted. The Crown also relied on his long and serious criminal history: see R v Winters at [105]–[109]. This non-compliance would, it was submitted, render the Treatment Order ineffectual.
Counsel for Mr Winters, Ms C Duffy, submitted that it was significant that his progress at Canberra Recovery Services, as reported in the Status Reports, was generally shown to be positive and that his discharge was for the finding of the ammunition. There was no use of illicit drugs, though it has to be noted that there was the Report of him using unprescribed medication, Pregabalin, which is a drug of concern when used by persons with a drug dependence.
Ms Duffy submitted that it was important to note that Mr Winters wished to continue with his rehabilitation and would be seeking further rehabilitation. The incident itself, she submitted, was not one which showed that his rehabilitation was at risk; it was not the use of drugs. It should further be noted, however, that the present allegation would, if proved, constitute a crime, commission of which is incompatible with his rehabilitation.
Ms Duffy further submitted that account needed to be taken of the fact that Mr Winters has spent much of his life in custody. He is now 29 years old and that experience was one to which he had become accustomed: Ms Duffy referred to it as a habit or as a lifestyle. It was always going to be hard to change that habit, as well as the dependency.
Mr Winters, she submitted, had taken responsibility for his actions. He wanted to engage in restorative justice and he had demonstrated remorse for his offending behaviour.
The wish to engage in restorative justice was admirable. It was complicated, however, as he has, at least in one sense, been sentenced, which ordinarily constitutes the end of the proceedings when the Court's power to refer is at an end. The Commissioner of ACT Corrective Services has the power to the refer a person for restorative justice once the sentence has been imposed.
In the case of sentences such as Good Behaviour Orders or Treatment Orders, the latter especially, the Court has a continuous capacity for involvement. In both cases, the Court can cancel the Order and re-sentence the offender. This appears possibly to mean that the proceedings have not ended and, accordingly, should the Treatment Order be cancelled, the sentencing option here has been re-enlivened and the proceedings do not seem to have ended. This is a beneficial interpretation of the legislation contained in the Crimes (Restorative Justice) Act 2004 (ACT), but this is the approach to its interpretation that the Court has accepted: R v Forrest [2016] ACTSC 321; 11 ACTLR 311 at 318; [39].
Not all of the offences are offences for which Mr Winters could be referred, since some have no eligible victim. Thus, the offence of driving whilst disqualified as a repeat offender is not an offence that is one where there is an identifiable victim; there is no one who can reasonably be said to have suffered harm as the result of the offence: s 6 of the Victims of Crime Act 1994 (ACT).
Similarly, the offence of damaging property by joint commission is problematic. The damage was quite likely done to the property of a corporate entity, as would appear from the fact that it was a Kingsley's Chicken store. It is possible that the operator is not a corporate entity, but there is no evidence either way.
While it might be inferred from R v Wyatt [2017] ACTSC 87 at [17] that a corporate entity can be an eligible victim, s 17 of the Crimes (Restorative Justice) Act 2004 (ACT) seems to suggest that the Act is only directed towards individual human beings as victims. For example, while a substitute victim is available for a child victim (s 17(2)), there is no indication of whether a person, as a representative, is acceptable for a corporate entity and, if so, who it might be.
That would similarly apply to the offences of aggravated burglary, the minor theft by joint commission and the trespass offences. It may apply to the offence of aggravated burglary by joint commission, for that was also a business and, while it was of a coffee shop that might been owned by an individual, there is no evidence about that.
That leaves the two offences of minor theft, namely, that of the registration plates and of the property, including cash and a bankcard, found in the Honda Jazz motor vehicle and the offence of dishonestly riding in that motor vehicle without consent.
The son of the owner of that vehicle provided a victim impact statement. A referral will be made for restorative justice for these offences and for the further offence of dishonestly driving a motor vehicle without consent, referred to below, though that may not be able to be done. That referral may not be effective, or able to be progressed, for some time. The victim himself might be too frail to participate, but that is not a decision to be made by the Court.
Ms Duffy submitted that there were a number of positive aspects of the conduct displayed by Mr Winters at Canberra Recovery Services, despite the lapse, which were consistent with his clearly expressed wish to rehabilitate when interviewed for the Drug and Alcohol Treatment Assessment (Suitability Assessments): see s 46J of the Sentencing Act.
Given that Canberra Recovery Services were not prepared to re-admit him and there was no other residential rehabilitation agency available under a Treatment Order, he wished to be released into the community to live with the mother of his child. That residence had not, however, been assessed for its suitability as a residence for a participant in the Treatment Order. Further, the Suitability Assessments clearly recommended residential drug rehabilitation as the appropriate therapeutic program for Mr Winters.

The way in which the grounds of the application should be addressed have been set out in R v Massey (No 4) at [24], [30]–[32] and [36]–[43]. This is the approach that should be taken.
The first ground is that Mr Winters is unwilling or unlikely to comply with a condition of the Treatment Order. Mr Winters has behaved inconsistently with the rules and requirements of Canberra Recovery Services.
It is important to recognise that an offender entering a strict regime, such as a residential drug rehabilitation facility will impose, where the offender has a long and entrenched dependency and has a long history of crime, especially incarceration, will find it very difficult. Habits are hard for everyone to change.
Lapses at the early stage, which Mr Winters currently occupies, can be treated more leniently than those committed later in the program, where the skills and attitudes necessary to lead a drug and crime free lifestyle are expected to have been learnt and able to be consistently applied.
Nevertheless, some, even early, lapses can be more serious. Committing further crimes is more serious than the use of drugs, for example.
While this breach of Mr Winters’ is not necessarily an indication of a pattern, it cannot be entirely dismissed. Further, it has led to his exclusion, at least for the present time, from Canberra Recovery Services. While this, by itself, would not constitute sufficient evidence of unwillingness to comply with the conditions, despite his failure, on this account to do so, it is an indication of an attitude that can be taken into account.
Accordingly, it is not sufficient to justify a cancellation of the Treatment Order on this ground, though it is relevant in a more general assessment of his suitability for a Treatment Order.
Whether the continuation of the treatment and supervision part of the Treatment Order is likely to achieve the objects of the Order is a little more problematic. The treatment and supervision part of the Treatment Order currently requires residential drug rehabilitation. There is no indication that this will not achieve the object of the Order, which are set out in R v Massey (No 4) at [30] and do not need to be repeated here.
That, however, is not practically possible, given that there is no residential drug rehabilitation facility available for him under a Treatment Order.
The present assessment is that this is required and, especially given the history of Mr Winters as referred to earlier, would not justify a community based therapeutic program. Thus, an amendment to the conditions of the Order, as required by the unavailability of preferred resources, would likely not achieve the objects of the Treatment Order.
As a result, this ground is made out.
The third ground is more problematic still. Mr Winters has not been found to have committed further offences, though he did make admissions that suggest that the Court could find that he did have live ammunition in his possession. An inference that someone could discharge the ammunition and that would result in harm to someone in the community is available, but the likelihood is so speculative that it does not seem reasonable to draw it as a likely one. Again, by itself, it would not constitute an unacceptable risk to any person, but it is part of the factual matrix on which the consideration of this matter must be undertaken.
Nevertheless, the Court was informed that no such charges have been laid and, accordingly, it cannot find that he is considered to have committed any offences while subject to a Treatment Order. Thus, he cannot be considered to have committed any further offences while subject to a Treatment Order and is considered not to have done so.
As a result, the third ground is not made out.
In all the circumstances the second ground has been made out.
The other facts, as noted in consideration of the other grounds and his situation and professional assessment of his rehabilitation needs, do justify the Court in declining to vary the conditions of the Order to permit Mr Winters to continue under the Order in the community.
Accordingly, the Order must be cancelled, as the Court did on 30 June 2022.

In May 2022, after Mr Winters had been sentenced, the prosecuting authorities issued a summons for two offences committed by Mr Winters on 2 November 2021.
Although committed nearly a month prior to the offences for which a Treatment Order was made, the events constituting the offences were captured on CCTV and by police who intercepted the motor vehicle in which Mr Winters had been driving, though it was stolen, apparently felt a need to obtain evidence of the fingerprints Mr Winters may have left in the motor vehicle, which was found in eight places on the window and the trim of the motor vehicle. That became available on 24 December 2021. It can be assumed that this delay was occasioned by the workload of the Police Forensic Fingerprint Team.
The CCTV footage was not obtained until 18 January 2022. It is unclear why it was not obtained earlier. Police also found, in the stolen vehicle when it was searched after his arrest, the receipts for a transaction in which Mr Winters withdrew some cash using a Cardless Cheque Withdrawal and a transaction at a service station, in Braddon, ACT.
As a result, Mr Winters was charged with dishonestly driving a motor vehicle without the owner’s consent, contrary to s 318(2) of the Criminal Code 2002 (ACT), and being an unlicensed driver, having never held a licence, contrary to s 31(2) of the Road Traffic (Driver Licencing) Act 1999 (ACT).
In short, the facts were that Mr Winters was driving that motor vehicle on 1 and 2 November 2021, in Kambah and in Braddon, ACT. The motor vehicle had been stolen on 26 October 2021, but there was no evidence that Mr Winters was the thief or involved in its stealing. He was seen driving to and from a service station in Braddon on 1 November 2021 and around an area in Kambah on 2 November 2021.
The motor vehicle was intercepted by police on 2 November 2021 and Mr Winters gave a false name, but was identified from police indices.
The nature of these offences is set out in the Court's decision of R v Winters at [59]– [68] and does not need to be repeated. Similarly, matters of current sentencing practice and the subjective circumstances of Mr Winters do not need to be repeated. These are also set out in R v Winters at [88]–[114], [127]–[137].
No clear explanation has been available as to why these offences could not have been prosecuted so as to be dealt with at the same time as the other offences. No adverse inference will be drawn as to the conduct of the particular authorities as there is no basis for doing so, save to express regret that it was not done.
On the other hand, given that the sentence originally imposed on Mr Winters, namely four years, was the maximum that he could have received and still been eligible for a Treatment Order, he would probably have been excluded from the benefit of being subject to a Treatment Order in that event, as it could not then have been imposed.
Mr Winters entered pleas of guilty to these charges at almost the earliest opportunity, namely, the second mention and so is entitled to a significant discount on the sentences to be imposed. Regard must also be had to totality given that there is a strong case for all the offences to have been dealt with at the same time.

After cancelling the Treatment Order, the Court may re-sentence Mr Winters or may impose the sentence that had been originally imposed.
During the Treatment Order, Mr Winters has spent 14 days in custody. Since the cancellation of the Order, he has spent 47 days in custody. These 61 days must be taken into account when imposing whichever of these options are appropriate.
Having cancelled the Treatment Order, the Court did not proceed to finalise the matter at that stage. At the request of Ms Duffy, the proceedings were adjourned to permit Mr Winters to seek an alternative residential drug rehabilitation facility at which he could continue his rehabilitation. The Court did indicate that service of the sentence under a Good Behaviour Order for the purposes of such rehabilitation was a possible outcome.
This proved somewhat complicated.
In the first place, a number of options were explored. Ultimately, a placement was found for Mr Winters at Calvary Riverina Drug and Alcohol Centre at Wagga Wagga, New South Wales. A condition of his admission, however, was that he could only be admitted while he was in the community and not in custody. Then, the facility indicated that it would only admit him if he were not subject to bail conditions. This clearly precluded the Court from making a Deferred Sentence Order to assess his progress in rehabilitation before sentence, as this Order would require him to be released on bail.
A question arose as to whether this would preclude him from being subject to release under a Conditional Liberty Order, such as a Good Behaviour Order.
An email from Calvary Riverina Drug and Alcohol Centre clarifies this position. It is only bail that is not acceptable. A Good Behaviour Order would not be unacceptable.
Mr Winters clearly requires intensive support and treatment if he is going to achieve his stated goal of rehabilitation so that he can live a drug and crime free lifestyle. While the Treatment Order has been cancelled less than two months after it was made, his progress during that time has generally been positive. The first lapse was understandable, if unacceptable. The second was also unacceptable and he was discharged from Canberra Recovery Services.
The Treatment Order was cancelled largely because it could not be administered in a way that would achieve the objects it was required to achieve. It is possible, however, that had Mr Winters also been sentenced at the time for the further offences, that would prevent the Order being made.
Mr Winters has effectively been sanctioned for the lapse, both by cancellation of the Treatment Order, which denies him both the ongoing privilege of engaging in his rehabilitation with a significant support and therapeutic interventions available but, once the cancellation has been ordered, without the possibility of a further Treatment Order for those offences. He has also been incarcerated in respect of the lapses now for 61 days, which is not an insignificant direct penalty for the breaches.
The Sentencing Act is unclear about how the options for disposition may be imposed. That is to say, if the sentence originally made is imposed, as one of the options, it is likely to be of more than 12 months. The Court then must set a non-parole period under s 65 of the Sentencing Act unless, under s 65(4), it considered that it would be inappropriate to do so. That could not be done upon the making of a Treatment Order under s 80W(2) of the Sentencing Act.
The imposition of the sentence requires the period of pre-sentence custody, and custody while under a Treatment Order to be taken into account, as it is then service of part of that period of imprisonment in the original sentence. This is usually and appropriately done by backdating the start of the sentence (s 63 of the Sentencing Act). Of course, the dates given for the original sentence will change, so that it is the length of the sentence, not the actual sentence then imposed, amended, when the start and end dates, especially for multiple offences, are specified anew in the imposed sentence. These curiosities have been discussed in R v Dowling (No 3) [2021] ACTSC 210 at [46]–[48], [59]–[62].
It is unclear, then, whether some other way of serving the period of imprisonment constitutes a re-sentencing or an imposition of the original sentence. In R v Dowling (No 3) at [48], it was suggested that to suspend a sentence and to make a Good Behaviour Order was a re-sentence, notwithstanding the similarity of such a disposition to a Parole Order which, by the setting of a non-parole period, does not seem to make it.
It does seem clearer that an order that a sentence of imprisonment be served by an Intensive Correction Order would constitute a re-sentencing, but that is by no means certain either.
In this case, the continued commitment of Mr Winters to his rehabilitation, his positive participation for the period, though very short, in Canberra Recovery Services, his abstinence from the use of the drugs on which he was dependent and his return to Court, without absconding, all suggest that, had another residential drug rehabilitation facility been available, the Treatment Order may not have needed to have been cancelled. That is by no means certain. It is also relevant that he has not committed further offences since the Treatment Order was made.
Given that Mr Winters now has a residential drug rehabilitation option, the possibility of incorporating that into an appropriate disposition arises.
To be eligible for this residential drug rehabilitation option, Mr Winters must, at first, be in the community. That is problematic, but with strict conditions in the Order, it would seem that, so long as admission to the residential drug rehabilitation facility was as assured as possible, this would be acceptable for a very short period of time.
The Court can, under s 112 of the Crimes (Sentence Administration) Act 2005 (ACT), amend a Good Behaviour Order. It seems that this would give sufficient flexibility to allow Mr Winters to proceed into the community for admission thereafter into Calvary Riverina Drug and Alcohol Centre.
The only place where Mr Winters would be able to reside in the community until admission to the Calvary Riverina Drug and Alcohol Centre is with his partner, the mother of his child. The Crown tendered, and they were admitted into evidence, two reports in connection with that woman. Those reports indicated that she also was a person who was dependent on illicit drugs and had problems with that. Indeed, they were in respect of offences of driving with a drug in her oral fluid.
In those circumstances, the Crown submitted that it would be unwise and risky to allow Mr Winters to reside with his partner until admission to Calvary Riverina Drug and Alcohol Centre. For her to drive him to her residence and for her then to drive him to Calvary Riverina Drug and Alcohol Centre would be problematic.
Mr Winters has been admitted from 10:00 am tomorrow, that is, 16 August 2022. Thus, the period for which he would be in the community is a very short period. In those circumstances it seems that it is a risk that the Court is reasonably able to make, so long as it is crystal clear to Mr Winters that further use of drugs, whether with his partner or not, and any use of drugs by his partner while or before she drives him, would result almost certainly in the cancellation of the Good Behaviour Order because he would be unable to be admitted to the Calvary Riverina Drug and Alcohol Centre. It is hoped that this would be sufficient to protect him for the very short period in which he would be in the community.
Accordingly, the Court proposes to re-sentence Mr Winters, but to make a Good Behaviour Order on the suspension of the Order.

Mr Winters, please stand. 1. Your conviction for aggravated burglary be confirmed and you be re-sentenced to 18 months imprisonment commencing from 15 January 2022 and expiring on 14 July 2023.
Your conviction for minor theft by joint commission be confirmed and you be re-sentenced to 2 months imprisonment commencing from 15 May 2023 and expiring on 14 July 2023.
Your conviction for damaging property be confirmed and you be re-sentenced to six months imprisonment commencing from 15 March 2023 and expiring on 14 September 2023.
Your conviction for aggravated burglary by joint commission be confirmed and you be re-sentenced to 18 months imprisonment commencing from 15 June 2023 and expiring on 14 December 2024.
Your conviction for minor theft be confirmed and you be re-sentenced to seven months imprisonment commencing from 15 August 2024 and expiring on 14 March 2025.
Your conviction for driving a motor vehicle without the owner’s consent be confirmed and you be re-sentenced to 10 months imprisonment commencing from 15 October 2024 and expiring on 14 August 2025.
Your conviction for theft by joint commission be confirmed and you be re-sentenced to nine months imprisonment commencing from 15 February 2025 and expiring on 14 November 2025.
Your conviction for driving while disqualified as a repeat offender be confirmed and you be re-sentenced to six months imprisonment commencing from 15 July 2025 and expiring on 14 January 2026.
Your conviction for minor theft be confirmed and you be re-sentenced to two months imprisonment commencing from 15 November 2025 and expiring on 14 January 2026.
You be convicted of driving unlicensed and be sentenced to six months imprisonment commencing from 15 October 2025 and expiring on 14 April 2026.
You be convicted of driving a motor vehicle without the owner’s consent and be sentenced to 12 months imprisonment commencing from 15 November 2025 and expiring on 14 November 2026.
That is a total sentence of four years and 10 months. The 212 days of pre-sentence custody have been taken into account and the sentence commences on 15 January 2022 and ends on 14 November 2026.
The sentences imposed are suspended and you are required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentencing Administration) Act 2005 (ACT) from today, 15 August 2022, until the end of the total sentence, 14 November 2026, on the following conditions:

R v Winters

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