Drug Court New South Wales Medium Neutral Citation: In the matter of WHITE [2012] NSWDRGC 1 Hearing dates: 6 March 2012 Decision date: 03 April 2012 Before: His Honour Senior Judge Roger Dive Decision: Mr White is a suitable and appropriate person for the making of a second CDTO. Catchwords: Meaning of "eligible convicted offender", "suitable person", "appropriate in all of the circumstances"- second application for a Compulsory Drug Treatment Order - new offences committed when released to parole supervision - legislation aimed at "the most entrenched and serious group of drug addicted offenders" Legislation Cited: S 5A Drug Court Act 1998 S 18D Drug Court Act 1998 S 106B(a) Crimes (Administration of Sentences) Act 1999 Cases Cited: R v Tewake [2005] NSWDRGC 2 Category: Principal judgment Parties: Crown White, Michael (Offender) Representation: R. Atkins, for Director of Public Prosecutions M. Dalitz, Legal Aid Commission, for offender File Number(s): 37 of 2011 Judgment The issue: 1The offender, Michael White, has been sentenced at both the Blacktown and Parramatta Local Courts to some lengthy terms of imprisonment for offences of break, enter and steal. The sentencing courts referred him to the Drug Court for the consideration of a Compulsory Drug Treatment Order (CDTO). 2There is no dispute that he is an "eligible convicted offender" as defined in s. 5A of the Drug Court Act 1998 ("the Act"). The Court must now decide under s 18D of the Act as to whether he is a "suitable person" for a CDTO, and whether "it is appropriate in all of the circumstances that the sentence be served by way of compulsory drug treatment detention". A key issue is that Mr White had only recently been the subject of a lengthy CDTO, and committed new crimes soon after release to parole at the end of that order. 3The Office of the DPP has traditionally assisted the Drug Court by taking a role in screening referred offenders as to eligibility and appropriateness issues. In relation to Mr White, Ms Atkins, for the DPP, submits that Mr White is not an appropriate person in all the circumstances. Mr Dalitz, from the Legal Aid Commission, has assisted Mr White to pursue the making of a CDTO. Background: 4The following quite complicated factual background draws closely on the helpful submissions of Ms Atkins: 5Mr White has been to the CDTCC before. In November 2007 Mr White was referred to the Drug Court for the consideration of a CDTO in relation to 16 counts of break, enter and steal, as well as a number of offences to be taken into account on a Form 1. For those offences Mr White received a sentence with a total term of six years and three months, with a non-parole period of three years and three months. When he appeared before the Drug Court, Mr White was found to be eligible and suitable for the CDTCC program, and the Drug Court made a CDTO on 7 February 2008. Mr White was, at the time of that referral, also subject to a balance of parole period for similar offending from Wagga Wagga District Court, with an expiry date of 16 October 2008. 6Mr White was transferred to the CDTCC on 12 February 2008, and remained on Stage 1 until progressing to Stage 2 on 15 October 2008. He then progressed to Stage 3 on 23 April 2009. On 30 August 2010 a recommendation for parole was made, and he was released to parole by order of the Drug Court on 6 November 2010, with a balance of supervised parole until 25 October 2013. 7Supervision with the Probation and Parole service began on release, and Mr White reported on 8 November 2010 to Blacktown District Office, and was supervised by that office until being taken back into custody. Mr White was arrested on 1 March 2011 for re-offending that had occurred on 18 February 2011, being one matter of break, enter and steal. Mr White was sentenced on this matter by Blacktown Local Court to a total term of two years, with a non-parole period of 18 months. On 11 March 2011, Mr White's parole was revoked in relation to the balance of the sentence the subject of a CDTO, being a period of 2 years 8 months and 8 days. 8Whilst back in custody, Mr White was charged with eight further counts of break, enter and steal. These offences occurred between 20 January and 18 February 2011. These matters were referred to the Drug Court for the consideration of a Drug Court program, however, on 23 August 2011, Mr White was found to be unavailable for the Drug Court program, as Mr White was still serving the un-expired non-parole period attached to the sentence imposed at Blacktown Local Court. All matters were remitted back to Parramatta Local Court on 30 August 2011. 9On 30 August 2011 Mr White was sentenced in respect of the eight additional matters to a total term of four years with a non-parole period of three years, and then referred to the Drug Court for consideration of a CDTO. At the time of referral, Mr White's earliest release date was 28 February 2014. 10Mr White's referral was screened by the DPP, and it was noted on screening, that, whilst Mr White was an "eligible convicted offender" pursuant to section 5A of the Drug Court Act, there were two issues identified. The first issue is the question of availability, as at the time of referral Mr White was parole revoked on the balance attached to the 2008 CDTO, which would see him remain in custody until 8 November 2013. The second is the issue of "suitability" and "appropriateness", as Mr White had re-offended within two months of being released to parole from his previous CDTO. 11The court convened a case management meeting on 15 November 2011, and as a result a suitability assessment report was sought from the multi-disciplinary team to address the later issue. 12That report, dated 7 December 2011, assesses Mr White as being both suitable and appropriate, and recommends that a CDTO being made. A supplementary report of 18 January 2012, which was sought to consider the question of evidence as to drug addiction, provides some evidence of such, and does not depart from the earlier assessments and recommendation. 13The potential parole barrier has been removed, as there is a letter with the court file from the Director and Secretary of the State Parole Authority, indicating that the Authority would give favourable consideration to rescinding the revocation of parole if "Rescission is required to participate in the CDTCC, the offender is otherwise eligible, and, it is considered appropriate for him to participate in CDTCC." The submissions 14Whilst a number of barriers to the making of a CDTO for Mr White have been overcome, Ms Atkins has raised, as is the role of the ODPP, the question of suitability and appropriateness in the light of his immediate return to serious crime and his poor response to parole supervision. 15The Drug Court has long-standing policies in its original jurisdiction as to limiting return to the Drug Court within, generally speaking, a three-year period. No such policy has been defined in relation to the CDTCC jurisdiction, and indeed an issue I emphasised in this hearing was that the hearing was about Mr White's application, and not about any perceived need for a policy regarding repeat CDTO applications. There have been two previous applications by former participants, however this is the first time the question of appropriateness has been examined in detail. 16There is no argument regarding the fact that the legislation governing the CDTCC is beneficial legislation, and that its provisions should be construed generously (for authorities on beneficial legislation see R v Tewake [2005] NSWDRGC 2). One of the objects of compulsory drug treatment, as provided in s 106B(a) of the Crimes (Administration of Sentences) Act 1999, is to provide for "drug dependent persons who repeatedly resort to criminal activity to support that dependency". Mr Dalitz has noted that it is threshold condition of entry to the CDTCC that the applicant has been sentenced to the higher tier of available penalties. It is also a threshold issue that they are recidivists, as they must have been convicted of at least two offences in the five years prior to the sentence referred to the Drug Court. 17In the Second Reading speech in the Legislative Council, The Hon. John Della Bosca referred to the program targeting "a hard-core group of offenders with long-term drug addiction and an associated life of crime and constant imprisonment. It is for offenders who have failed to enter or complete other voluntary or court-based treatment programs." And further "The program sits at the end of the continuum of drug diversion programs in N.S.W aimed at breaking the drug-crime cycle." And further "The aim is to achieve better outcomes for the state's most desperately entrenched criminal addicts by assisting them to become drug free and crime free, to take personal responsibility, and to achieve a more productive lifestyle". 18So it is clear, from both the legislation and the Second Reading Speech, that the legislation is specifically aimed at the most entrenched and serious group of drug addicted offenders. Resolution 19Turning to Mr White's situation, a number of factors are apparent: 1. Mr White is a long-term, recidivist offender, and has spent much of the last 15 years in custody. 2. He has not overcome his drug addiction, or his strong inclination to fund that drug habit by committing crimes. He very quickly regressed when on parole, and even committed break and enters on the day he was seeing his parole officer. 3. Mr White maintains that he did not address a crucial issue from his childhood during his prior CDTO, and only now appreciates that he needs to address that issue. 4. The treatment partners at the CDTCC support his return, so there is no apparent barrier to the establishment of a therapeutic relationship with those partners. 20Mr White did extremely well in the CDTCC program between February 2008 and November 2010, which included 18 months in the community on Stage 3, and a total of over two years of access to the community. That is probably his most successful period of recovery in decades. 21Repeated opportunities of a CDTO cannot be the long-term answer to Mr White's recidivist behaviours, and there is a legitimate concern that Mr White may only be able to stay away from crime and drugs with the highest levels of support and supervision. In my view however the situation has not been reached whereby this second opportunity of a CDTO should be refused. 22The personal plans developed for Mr White on each of the stages of his CDTO will need to be guided by what has occurred after his last order. And any future access to the lower level of support of parole will, of course, need to be guided by his recent history of relapse to both drugs and crime. 23However, I am of the view that Mr White is a suitable and appropriate person for the making of a second CDTO. ********** 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. Decision last updated: 21 June 2012