Drug Court of New South Wales CITATION : In the matter of David Sharp [2007] NSWDRGC 1 PARTIES : Crown Sharp, David FILE NUMBER(S) : 24 of 2006 CORAM: His Honour Senior Judge Roger Dive CATCHWORDS: :- Compulsory Drug Treatment Orders – removal of participant prisoner from Compulsory Drug Treatment Correctional Centre – review of removal decision – revocation of Compulsory Drug Treatment Order – mandatory conditions of Compulsory Drug Treatment Orders – violence and threats of violence by participants. Drug Court Act 1998 (NSW) LEGISLATION CITED: S 106P Crimes (Administration of Sentences) Act 1999. S 106Q Crimes (Administration of Sentences) Act 1999 CASES CITED: DATES OF HEARING: 5 February 2007 DATE OF JUDGMENT: 8 February 2007 Regina: R. Atkins, Director of Public Prosecutions LEGAL REPRESENTATIVES: Offender: S Flood of counsel, instructed by the Legal Aid Commission JUDGMENT: 1 In August 2006 a prisoner, David Sharp, was referred to the Drug Court of N.S.W. for the consideration of the making of an order that would allow him to serve his sentence in the Compulsory Drug Treatment Correctional Centre ("CDTCC"). The necessary assessments were made, and the Drug Court made a Compulsory Drug Treatment Order in relation to Mr Sharp on 23 November 2006. 2 Mr Sharp was in the closed detention of Stage 1 of his Compulsory Drug Treatment Order ("CDTO") when there was an incident on 20 December 2006. Mr Sharp is alleged to have assaulted a fellow participant, Mr Brendan Symonds. 3 Ms Astrid Birgden, the Director of CDTCC, exercised the powers of the Commissioner of Corrective Services under S 106P of the Crimes (Administration of Sentences) Act 1999 and ordered the removal of Mr Sharp from the CDTCC. That order required him to be taken to another correctional centre, and to be held in separate custody. Much to the concern of Mr Sharp, he has been retained in segregation at Parklea Correctional Centre for 50 days since that transfer, and that segregated custody has been difficult and unpleasant for him. The issue 4 Section 106P(5) of the Crimes (Administration of Sentences) Act 1999 requires the Drug Court to review the Commissioner's s 106P order within 21 days (or such other period as determined by the Drug Court) of receiving notice of the removal order. The orders the Drug Court can make on review include revoking, confirming, or amending the Commissioner's order, or revoking, in accordance with s 106Q, the offender's CDTO. Section 106P(6) requires the Drug Court to have regard to, and give substantial weight to, any recommendations of the Commissioner. In Mr Sharp's case the recommendation is for the CDTO to be revoked. 5 It is apparent that any revocation of the CDTO would be under s 106Q(1)(d), as the Compulsory Drug Treatment Personal Plan for Mr Sharp had not been finalised or formally approved at time of the incident. A Personal Plan imposes conditions on the offender regarding the offender's drug treatment and rehabilitation under the CDTO, and is firstly prepared by the Commissioner, and then comes into operation when the Drug Court approves it 1 . The legislation specifies some mandatory conditions of a CDTO, including a mandatory condition that the offender must not resort to violence or make any threat of violence 2 . As I indicated during the hearing, and as conceded by Mr Flood (who appeared for Mr Sharp), I am of the view that the criteria in s 106Q(1)(a) regarding failures to comply with a Personal Plan are relevant in any consideration of revocation under the more general provisions of s 106Q(1)(d). 6 Accordingly, I am of the view that whilst this court can revoke the CDTO for any reason the Drug Court sees fit, in this case it is appropriate to look to whether there has been a failure to comply with a significant expectation regarding the behaviour of an offender in the CDTCC, whether that failure is of a serious nature, and whether the offender poses a significant risk of harming others. The Parties 7 To provide an opportunity for this issue under new legislation to be fully considered, the court sought the assistance of the Office of the Director of Public Prosecutions (which assists the Drug Court in its general jurisdiction) to put material before the court on behalf of the Director of the CDTCC. The court appreciates that assistance of Ms Atkins of the ODPP, and that of Mr Flood of counsel, instructed by the Legal Aid Commission, who assisted Mr Sharp. The legislation 8 The legislation with principal relevance to these proceedings comes from recent additions made to the Crimes (Administration of Sentences) Act 1999: 106PCommissioner of Corrective Services may make regression and removal orders in special circumstances (1)The Commissioner may order that an offender serving his or her sentence: (a) in semi-open detention (Stage 2) regress to closed detention (Stage 1), or (b) in community custody (Stage 3) regress to closed detention (Stage 1), or (c) in community custody (Stage 3) regress to semi-open detention (Stage 2). (2)The Commissioner may order that an offender serving his or her sentence in closed detention (Stage 1) or semi-open detention (Stage 2) be removed from the Compulsory Drug Treatment Correctional Centre and taken to another correctional centre and held in separate custody. (3)The Commissioner may make an order referred to in subsection (1) or (2) only if the Commissioner believes, on reasonable grounds, that: (a) the security of the community is threatened, or (b) the good order and discipline of a correctional centre may be jeopardised if the offender is not regressed or removed, or (c) the offender may be about to commit an offence, or (d) another reason exists to regress or remove the offender. (4)The Commissioner must immediately notify the Drug Court if the Commissioner makes an order under this section and must give the Drug Court his or her reasons for making the order. (5)Within 21 days (or such other period determined by the Drug Court) after receiving the notification of the Commissioner, the Drug Court must review the Commissioner's order and make an order: (a) revoking the Commissioner's order, or (b) confirming the Commissioner's order, or (c) confirming the Commissioner's order, but amending its terms, or (d) revoking, in accordance with section 106Q, the offender's compulsory drug treatment order. (6)The Drug Court when reviewing a Commissioner's order under subsection (5) is to have regard to and give substantial weight to any recommendations of the Commissioner. (7)No appeal lies against the Drug Court in relation to a decision regarding an order under subsection (5). 106QRevocation of compulsory drug treatment order (1)The Drug Court may by order revoke an offender's compulsory drug treatment order: (a) if: (i) the offender has failed to comply with a condition of the offender's compulsory drug treatment personal plan, and (ii) that failure is of a serious nature, and (iii) in the opinion of the Drug Court, the offender: (A) is unlikely to make any further progress in the offender's compulsory drug treatment program, or (B) poses an unacceptable risk to the community of re-offending, or (C) poses a significant risk of harming others or himself or herself, or (b) if the non-parole period for the offender's sentence has expired or is about to expire and the offender is serving his or her sentence in closed detention (Stage 1) or semi-open detention (Stage 2), or (c) if the offender ceases to be an eligible convicted offender (within the meaning of the Drug Court Act 1998 ), or (d) for any other reason the Drug Court sees fit. (2)In making a decision under Part 6 as to whether to make a parole order for an offender whose compulsory drug treatment order has been revoked under this section, the Parole Authority is to have regard to the circumstances that led to the revocation. (3)No appeal lies against the Drug Court's revocation of a compulsory drug treatment order. 9 Additionally, I note that under s 26 of the Drug Court Act 1998 , the Drug Court is to conduct proceedings with as little formality and technicality as the proper consideration of the matter before the court permits, and that the Drug Court is not bound by the rules of evidence, but may inform itself on any matter in such manner as it considers appropriate. The Evidence 10 The Director: 11 In accordance with the directions given by the court regarding the conduct of the case, Ms Atkins provided a bundle of materials relied upon by the Director of the CDTCC relevant to this review of the Director's Removal Order. That material included: * A progress report regarding Mr Sharp, which included the recommendation that his CDTO be revoked. * A transcript of a phone conversation between Mr Symonds and his girlfriend. * The observations and report of Assistant Superintendent Burt. * Photographs of injuries to Mr Symonds. * Photographs of Mr Sharp's hands. * A report by Assistant Superintendent Mastrone. * A Justice Health Incident/Report Form regarding injuries to Mr Sharp's knuckles. * Case notes relating to Mr Sharp's behaviour in segregation at Parklea Correctional Centre. The Prisoner 12 Mr Sharp gave evidence as to his confrontation with Mr Symonds, and as to his assault upon Mr Symonds. He freely acknowledged that he went to Mr Symonds' cell, and went into that cell, and asked Mr Symonds questions about alleged threats made by Mr Symonds. Mr Sharp gave evidence of lashing out at Mr Symonds, physically attacking him, and hitting him 3 or 5 times with open and closed fists. Mr Sharp told the court that he "sort of lost it", and that it was a spur of the moment thing. 13 Mr Sharp also gave evidence of the long lead up to this assault, whereby he had originally had a good relationship with Mr Symonds, but that the relationship declined, to the point whereby there was "pent up frustration" over ongoing issues, and he eventually told Mr Symonds to stay away from him. Those ongoing issues involved the possibility, and then failure, of Mr Symonds to divert his Buprenorphine pharmacotherapy to Mr Sharp. 14 Mr Sharp also gave evidence of still being "dirty with the bloke", which, whilst honest, does not auger well for the safety of Mr Symonds, should Mr Sharp again have possible contact with Mr Symonds. However, Mr Sharp also told the court that he would like to sit and talk with Mr Symonds about the problems. 15 Mr Flood tendered into evidence a copy of e-mails exchanged between the Director of the CDTCC and the Legal Aid Commission regarding the manner in which another scuffle at the CDTCC was dealt with. That scuffle did not led to the removal of the protagonists, or any revocation proceedings. The facts 16 I find as a fact that there was an assault by Mr Sharp upon Mr Symonds, and that the assault caused the relatively minor injuries that can be seen on the photos of Mr Symonds, and the photos of Mr Sharp's hands. It is apparent to this court that the incident was indeed an assault, and not a fight, and that Mr Symonds covered up in the assault, and did not retaliate. 17 I also accept, as Mr Sharp acknowledged through Mr Flood, that Mr Sharp may well have made the alleged threat to stab Mr Symonds, and that he tells the court that he has no intention of carrying out that threat, which was made in the heat of the moment. The arguments 18 The Court acknowledges that the environment of the CDTCC is a new and different gaol environment, and that no doubt it will take some time and effort for prisoners, especially experienced prisoners, to settle into the new expectations placed upon them. It is also the case that if prisoners are to be allowed to progress to the freedoms of Stages II and III of the CDTCC, they will be required to acquire considerable skills and techniques to cope with the frustrations, difficulties and temptations of ordinary lawful community life. 19 It has clearly come as something of a shock and a disappointment to Mr Sharp to be transferred out of the CDTCC, and into segregation at another gaol. He now finds himself facing the very severe consequences of the possible revocation of his CDTO, and the possible loss of all the advantages that flow from a CDTO. He sees that as a very harsh possible outcome from an incident that is not an uncommon event in our prisons. 20 On the other hand, it is a mandatory condition of all Compulsory Drug Treatment Personal Plans that offenders must not resort to violence or make any threat of violence. It is conceded that the behaviour of Mr Sharp would have been a failure to comply with that mandatory condition, but, as noted above, a Personal Plan for Mr Sharp had not been formally adopted or approved at the time of the incident. 21 Such a mandatory condition was no doubt included in the legislation to reflect the nature of this unique Correctional Centre, and the programs it will run. It is this Court's understanding that the CDTCC is neither designed nor staffed to provide for the segregation and separation of prisoners – for example, there is no protection classification available within the CDTCC. So safety has to be achieved in other ways, such as an ongoing emphasis on no violence whatsoever. 22 Mr Flood has rightly emphasised that the court has a discretion, given that the court "may" decide to revoke an order under s 106Q(1). 23 It is also suggested that given the segregation that Mr Sharp has endured for 50 days, that he may have indeed been sufficiently punished for his assault, and that his extensive time in segregation might be regarded as a reason not to exercise this Court's discretion to revoke his CDTO. The essential issues: 1)The question of revocation before the Court is a very serious issue, as the ramifications for Mr Sharp if the CDTO is revoked are very severe. Hence the Court is mindful of those severe consequences in the consideration of this determination. 2)The Director, on behalf of the Commissioner, has recommended the revocation, and the legislation requires the court to have regard to, and give substantial weight to, any such recommendation. 3)Mr Sharp has behaved violently, causing injury to Mr Symonds, and has also threatened further serious violence. 4)The incident is a serious, and not a trivial matter, and breaches a basic tenet of the program. 24 Given the evidence before the court, in my view there is a real risk that Mr Sharp may further assault Mr Symonds if the opportunity presented itself. There would be extensive opportunity of further violence against Mr Symonds if Mr Sharp were allowed to return to the CDTCC. 25 Having considered all of the material before the court, I am of the view that Mr Sharp's Compulsory Drug Treatment Order should be revoked. ********** 1 Section 106F Crimes (Administration of Sentences) Act 1999 2 Section 106H Crimes (Administration of Sentences) Act 1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.