Drug Court of New South Wales CITATION : In the matter of Bradley Hatfield [2008] NSWDRGC 1 PARTIES : Crown Hatfield, Bradley FILE NUMBER(S) : 25 of 2006 CORAM: His Honour Senior Judge Roger Dive CATCHWORDS: :- Compulsory Drug Treatment Order (CDTO) – Parole jurisdiction of Drug Court – grant of parole causes CDTO to expire – lack of pharmacotherapy on CDTO disadvantage to community and offender – parole granted. Drug Court Act 1998 S 50 Crimes (Administration of Sentences) Act 1999 S 106E Crimes (Administration of Sentences) Act 1999 S 106R Crimes (Administration of Sentences) Act 1999 LEGISLATION CITED: S 106Q Crimes (Administration of Sentences) Act 1999 S 106S Crimes (Administration of Sentences) Act 1999 S 106T Crimes (Administration of Sentences) Act 1999 S 126 Crimes (Administration of Sentences) Act 1999 S 135 Crimes (Administration of Sentences) Act 1999 S 135A Crimes (Administration of Sentences) Act 1999 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 30 January 2008 LEGAL REPRESENTATIVES: JUDGMENT: 1 The issue before the Drug Court is whether a prisoner, Mr Bradley Hatfield, should be granted parole. Mr Hatfield is the first participant of the Compulsory Drug Treatment Correctional Centre ("CDTCC") to become eligible for parole, so it may be helpful to set out the Court's determination more fully on this occasion. The Background 2 Mr Hatfield was sentenced by Judge Karpin in the Sydney District Court on 28 April 2006 to a total term of imprisonment of 6 years, with a 3½ year non-parole period, followed by 2½ years on parole. That non-parole period commenced on 9 September 2004, and is due to expire on 8 March 2008. As the sentence is over 3 years, the grant of parole does not automatically arise as it does for sentences under three years 1 . 3 After sentence, Mr Hatfield was referred to the Drug Court for the consideration of a Compulsory Drug Treatment Order ("CDTO"), and, following eligibility and suitability assessments, such an order was made on 23 November 2006. 4 Mr Hatfield completed Stage 1 of his CDTO on 30 May 2007, and was then allowed the opportunity of semi-open detention on Stage 2. Mr Hatfield was regressed back to Stage 1 on 21 August 2007 when he failed to comply with conditions of his Personal Plan, having attempted to disguise drug use by providing diluted urine samples, and the admitted use of cannabis, buprenorphine and heroin. He was allowed to progress to Stage 2 again on 7 November 2007. There is now a Progress Report supporting Mr Hatfield's progression to the community custody of Stage 3 of his CDTO, and that order will be made today. So as at the day he is eligible for parole, he will have completed 15 ½ months in compulsory drug treatment. The role of the Drug Court 5 The issue of parole is before the Drug Court because, by virtue of s 106T of the Crimes (Administration of Sentences) Act 1999, the Drug Court constitutes the Parole Authority for offenders in compulsory drug treatment detention, and the Senior Judge of the Drug Court constitutes the Chairperson of the Parole Authority for such matters. 6 In my view, the situation is as follows: 1. Mr Hatfield is a person who will soon be eligible for parole, as he will complete the non-parole period of his sentences on 8 March 2008 2 . 2. The Drug Court, as the Parole Authority, may only make a parole order if it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest 3 . 3. The amendments made to the Crimes (Administration of Sentences) Act 1999 when the Compulsory Drug Treatment Correctional Centre Act 2004 was passed provide avenues for the termination of a CDTO. The cessation of such an order would be necessary if Mr Hatfield is to be released onto parole. Section 106Q of the Crimes (Administration of Sentences) Act 1999 allows the Drug Court to revoke a CDTO in a number of circumstances, and section 106R sets out the effect of a revocation order. 4. Revocation is couched in negative terms, as are the effects of a revocation order, and the legislation appears to be dealing with a lack of success on program under s 106Q, and the effect of revocation accords with that, as there can be no forward date provided for the revocation to come into effect, for example, to allow commencement of parole on a future date. Indeed if the Drug Court revokes a CDTO, the court "is to issue" a warrant committing the offender to a correctional centre 4 . 5. An alternate avenue regarding the CDTO coming to an end is provided in Section 106E of the Crimes (Administration of Sentences) Act 1999. Section 106E provides: 106E Duration of compulsory drug treatment order Unless sooner revoked, an offender's compulsory drug treatment order expires: (a) at the end of the term of the sentence to which it relates, or (b) when the offender is released on parole, whichever occurs first. 7 In my view the end of the term of the sentence is a reference to the end of the total term of imprisonment. So should the duration of the CDTO for Mr Hatfield now expire because it is appropriate to release him on parole? Should Parole be granted? 8 The Drug Court Registrar has taken all the necessary administrative steps in her role as Secretary of the Parole Authority, and the Drug Court must now consider the question of parole as his non-parole period expires on 8 March 2008. I note that the operation of s 106E above is not limited to offenders who are in any particular Stage of their CDTO. 9 The Drug Court does have before it the necessary report from the Probation and Parole Service, and that report addresses a number of specific issues 5 . That report is a very positive one. The Court is told that Mr Hatfield's general behaviour and conduct could be described as excellent, however misbehaviour did lead to regression from Stage 2 to Stage 1 for ten weeks for providing "dilute" urine samples, and admitted use of cannabis, buprenorphine and heroin whilst in the Centre. 10 As at 4 January 2008 Mr Hatfield had participated in 66 occasions of day leave, and six weekend leaves on Stage 2. Compliance with external leave has continued, and the Court is aware of Mr Hatfield again having full-time employment, and of having previously worked for two months in a labouring position when in Stage 2, between June and August 2007. His latest Progress Report, dated 23 January 2008, describes his behaviour and conduct in Stage 2 as "excellent, both within the CDTCC community and whilst on external leave from the centre". He has met all of the requirements for progression to Stage 3, which will take effect from today. 11 As part of his CDTCC program, Mr Hatfield successfully participated in 30 sessions of the "Think First" program, and was a valued group member in the weekly Process groups which address relapse prevention and interpersonal issues. He has also completed a variety of skills programs, including first aid, horticulture, drama therapy and some literacy tutoring. 12 Mr Hatfield has been assessed as falling in the low to medium category for recidivism, and has strong post-release plans, whereby he will be working full-time and residing with his sister. He has strong family support, and they are good pro-social models. In the ordinary course of events, given such a report, Mr Hatfield could expect to be granted parole on the first available date. 13 In Mr Hatfield's case, the report recommends that Mr Hatfield remain on his CDTO, and engage in the community custody of Stage 3 as a transition to parole in approximately six months time. Whilst such a proposal would provide some continuity in the provision of support in the community, the Probation and Parole Service can also provide close support for Mr Hatfield, and over the quite lengthy period of parole that applies to Mr Hatfield by virtue of his sentence. Mr Hatfield will need to make the transition from his CDTO to Parole in a matter of months in any case. 14 The Drug Court, like the Parole Authority, has immense experience in dealing with offenders who are addicted to illicit drugs. Seventy percent of prisoners identify drugs and/or alcohol as the reason for their offending. It is also a fact that many persons who make a sustained recovery from drug addiction do relapse into drug use again. That is the nature of addiction. 15 Sadly, many prisoners with drug addiction issues return to drug use after release, despite their treatment and their determination to remain drug free. It is also a well-established fact that in the days and months after release from gaol, prisoners are at high risk of death from overdose. That is because, amongst other factors, their general tolerance to drugs has diminished considerably, they have no tolerance to opioids and no awareness of the purity of drug currently available on the street. 16 It is, of course, the expectation that because Mr Hatfield has now achieved significant periods of abstinence from drug use during his CDTO, and has learnt new skills to maintain his drug free status, he will remain free of illicit drug use. However if Mr Hatfield did relapse into drug use after release, whoever is then responsible for maintaining and assisting Mr Hatfield in the community on any supervised order would need to consider an effective plan to ensure he was safe, and that his recovery was as swift and effective as possible. 17 Given the unfortunate emphasis placed on non-pharmacotherapy treatment plans in the Compulsory Drug Treatment program, stabilisation on pharmacotherapy would not be possible on Stage 3 of his CDTO, but would be available in a parole setting. To ignore the possible need of pharmacotherapy after release to the community would be to the community's, and Mr Hatfield's, detriment. 18 In summary, it is apparent that Mr Hatfield is eligible for parole, and that his release on parole, subject to many conditions, is appropriate in the public interest, which is the issue of primary importance. The court has, as required, had regard to the need to protect the safety of the community and the need to maintain public confidence in the administration of justice. I also note that Mr Hatfield will have the assistance of Stage 3 of a CDTO for a period of approximately one month before becoming eligible for parole. I see no particular advantage to the community accruing if parole is refused and Mr Hatfield is required to remain on the CDTO, only to transfer to parole later. Indeed, there is the potential disadvantage of a lack of a pharmacotherapy option. 19 None of the above is intended to suggest that Mr Hatfield is seen as likely to relapse into drug use and crime. If that were the case, then parole would not be appropriate. The court, as the Parole Authority, must be both well informed and careful when exercising this role so as to ensure the community, and Mr Hatfield, are as safe as possible. 20 The court has also noted the following specific issues: + The sentencing judge set a non-parole period, and found special circumstances in fixing that non-parole period. + The offender has participated in extensive external leave programs, as set out above, and has the strong support of family. + The offender has suitable post release plans, and has full-time employment. 21 Accordingly, the following orders will be made: 1. The Personal Plan for Mr Hatfield to progress to Stage 3 is approved, and the Community Supervision Order is made. 2. Parole will be granted, effective from 8 March 2008. The grant of parole will cause his CDTO to expire on that date. 3. The parole conditions are as attached, and include additional conditions over and above the standard conditions: 1 Section 50 Crimes (Administration of Sentences) Act 1999 2 Section 126 Crimes (Administration of Sentences) Act 1999 3 Section 135 Crimes (Administration of Sentences) Act 1999 4 Section 106S Crimes (Administration of Sentences) Act 1999 5 Section 135A 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.