The Queen v Jamie Griggs [1999] ACTSC 73 (12 July 1999)

Last Updated: 6 October 1999

THE QUEEN v JAMIE GRIGGS [1999] ACTSC 73 (12 July 1999)

CATCHWORDS

INFORMATION (PROCEEDINGS) - dismissal of - alleging breach of recognizance - offender subject to treatment order under Drugs of Dependence Act 1989 (ACT) and recognizance - offender subject to supervision of Director of ACT Corrective Services or nominee under recognizance - whether nominee empowered to direct offender as to performance of treatment order - whether "reasonable direction" - whether offender's failure to follow direction constitutes breach of recognizance - no power in Director or nominee to give directions as to performance of treatment order - s 124(2) Drugs of Dependence Act 1989 (ACT) - ss 556B, 556C, Crimes Act 1900 (ACT)

PROBATION OFFICER - appointment of - whether officer nominated by Director of ACT Corrective Services was a "probation officer" under Drugs of Dependence Act 1989 (ACT) - whether appointment made by "responsible officer" - ss 121, 123(1) Drugs of Dependence Act 1989 (ACT)

WORDS AND PHRASES - "reasonable directions", "probation officer", responsible officer"

Drugs of Dependence Act 1989 (ACT), ss 121, 123, 124(2)

Crimes Act 1900 (ACT), ss 556B(1)(a)(ii)(B), 556C

No. SCC 112 of 1998

Judge: Higgins J

Supreme Court of the ACT

Date: 12 July 1999

IN THE SUPREME COURT OF THE )

) No. SCC 112 of 1998

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

JAMIE GRIGGS

REASONS FOR RULING

Judge Making Ruling: Higgins J

Where Made: Canberra

Date of Ruling: 13 May 1999

Date of Reasons for Ruling: 12 July 1999

1. The accused, Jamie Griggs, was brought before this court by warrant dated 31 March 1999. He had, on 19 March 1999, been convicted of an offence of armed robbery. As part of his sentence, he was placed on a Treatment Order pursuant to s 123 of the Drugs of Dependence Act 1989 (ACT) (DOD Act). He had also been released, as is permitted by s 123(6) of that Act, upon a recognizance under s 556B(1)(b) of the Crimes Act 1900 (ACT).

2. The terms of the Treatment Order included the following:

"...the offender is to:

(a) Attend for admission into the Odyssey House residential rehabilitation program or such other program as may from time to time be approved."

3. The reference to that "other program" being approved is a reference to the powers of a treatment assessment panel established under Division 3, ss 130 to 138 of the DOD Act.

4. The offender was also required to attend as required before the Treatment Panel (initially monthly).

5. The Panel had power, under s 143 of the DOD Act, to vary the period or place of attendance for treatment.

6. It was also a term of the recognizance into which the offender entered on 19 March 1999 that he:

"...accept the supervision of the Director of ACT Corrective Services or his nominee and obey all reasonable directions of the Director or his nominee and shall comply with the terms of a Treatment Order."

7. The Director had, it was accepted, nominated Ms Louise Chia to be the offender's probation officer. However, although nothing turns on it in this case, it may be noted that she was not a "probation officer" within the meaning of s123(1) of the DOD Act. She had not been so appointed by a "responsible officer" - see s 121 of the DOD Act.

8. At the same time, the offender had, in relation to a second count, been remanded on bail for twelve months for sentence then. It was a term of that bail that the offender comply with both the recognizance and the Treatment Order.

9. It was admitted by the offender that, although he attended at Odyssey House as required by the Treatment Order, he did not remain there and complete the program.

10. On 25 March 1999, he spoke to his probation officer. The effect of that conversation was not entirely clear. It is evident that the offender's understanding of it was different from that of Ms Chia.

11. As reported by Ms Chia it was:

"He stated that he wanted to discharge himself from the program because he didn't want to stay and doesn't need rehabilitation. He also stated that he was being interviewed by staff at Odyssey with regard to bringing drugs into the residence."

12. The offender's understanding was that Ms Chia had directed him to stay with the program until she had consulted the Treatment Panel.

13. The written report from Odyssey House merely stated:

"On 25^th March, 1999 Mr Griggs left the facility against the advice of staff."

14. Ms Chia also reported that the Treatment Panel had been contacted on 25 March 1999 concerning the offender's desire to quit the program and he "...was given a clear direction to remain at Odyssey House".

15. The offender, in fact, contacted Mr Maurice O'Connor, a representative of the Treatment Panel on 25 March 1999. He was told by Mr O'Connor to report to the Alcohol and Drug Program Community Unit. The Treatment Panel report states:

"He [the offender] stated that he was returning to Canberra, and asked for direction regarding his Treatment Order. He was told to attend the Alcohol and Drug Program Community Unit on Friday 26 March, to speak to a duty counsellor and to the co-ordinator of the Treatment Referral Program."

16. The Panel could not, it seems, be reconvened to reassess the offender's case until 8 April 1999.

17. According to Mr O'Connor, a member of the Panel, Ms McCarthy, did tell Ms Chia, on 25 March 1999, that it was proposed to "advise" the offender to remain at Odyssey House. However, Mr O'Connor, who spoke that same day to the offender to pass on that advice, found he had already left Odyssey House and was at the bus depot at Campbelltown. Consequently, he did not carry out that intention. Instead, he directed the offender as noted above.

18. The offender did attend as directed by Mr O'Connor. He was then further directed to attend counselling daily and to appear before a meeting of the Panel on 8 April 1999.

19. He attended counselling as directed. He appeared on 8 April before the Panel. It determined to reassess the treatment options in order to determine whether the Treatment Order should be varied or revoked. He was to reappear on 22 April 1999.

20. That situation was changed by reason of the execution of the arrest warrant which had been issued on 31 March 1999 on the information of Ms Chia sworn that day.

21. The complaint particularized in the warrant recited, relevantly:

"...on 25 March 1999 JAMIE GRIGGS discharged himself from the Odyssey House program after being told by ACT Corrective Services to remain in the program.

...the said JAMIE GRIGGS has failed to comply with the conditions of the recognizance entered into and acknowledged by him on 19 March 1999."

22. Ms Chia in her affidavit of 31 March 1999 stated:

"(b) On 25 March 1999 I spoke to Mr Griggs. He told me that he wanted to leave Odyssey House. I directed him to remain there. On 25 March 1999 Mr Griggs discharged himself from the Odyssey House program."

23. The warrant was executed on 16 April 1999. The offender remained in custody until 13 May 1999. The information was then dismissed.

24. I then indicated I would later give written reasons further explaining my decision. These are those reasons.

25. As it happened, there was little dispute as to the facts.

26. Ms Chia believed the offender had been directed on behalf of the Panel to remain at Odyssey House. He had not. She herself had done so, but in terms that left it open to the offender to believe that the Panel might direct otherwise. Mr O'Connor, on behalf of the Panel, did so. It did not appear that the offender had, in fact, breached the rules of Odyssey House, but he had been accused, amongst others, of possession of heroin although none was, it seems, found. The offender felt, whether correctly or not, that he had been unfairly treated and the program's suitability for him needed reassessment. He had also been withdrawing from methadone at the time.

27. On his return to Canberra, as I have noted, he complied fully with directions given by, or on behalf, of his Treatment Panel.

28. He did not, however, comply fully with directions given by Ms Chia to attend upon her, nor submit to urinalysis in accordance with her directions. However, this non-compliance was influenced by the fact that he was aware that ACT Corrective Services had instituted breach action. That does not fully explain or excuse his non-compliance. He also conceded some drug use between 25 March and 16 April.

29. Notwithstanding that, the matter before the court was an information purportedly laid pursuant to s 556C of the Crimes Act 1900. That complained only of the offender leaving Odyssey House contrary to the directions of ACT Corrective Services. That was the only breach of recognizance alleged.

30. The requirement to be at Odyssey House was imposed by the Treatment Order. It was variable, in accordance with the terms of that Order, if the Treatment Panel chose to do so. It did so, to the extent that it chose not to direct the offender to remain at Odyssey House and agreed to consider his request to reassess that requirement.

31. It is an offence under s 124(2) of the DOD Act for an offender, without reasonable excuse, to refuse or fail to comply with a Treatment Order. The Treatment Panel was satisfied that the offender had complied with the Order. Whilst that is not conclusive, it is of significance.

32. I am not satisfied that Ms Chia gave a "clear direction" to the offender to remain at Odyssey House, but in so far as what she said was intended by her, or was to be understood, as a "direction", it seems to me that such a direction could only have been given by, or on behalf, of the Treatment Panel.

33. A supervising officer appointed by the Director, ACT Corrective Services, has the power to give "reasonable directions" to a person subject to supervision: see s 556B(1)(a)(ii)(B) of the Crimes Act 1900. However, a failure to comply with a direction, if proved, is not an offence. Instead, pursuant to s 556C(4), the offender becomes liable to be resentenced and to forfeiture of any monetary security provided for by the recognizance.

34. In this case, a breach of the Treatment Order, had it occurred, would also have been a breach of the recognizance under s 556B(1)(b) as well as being an offence under the DOD Act. As it happens, it would also have breached the offender's bail conditions. I do not need to consider whether the offender could be proceeded against for each of those alleged breaches or only one of them.

35. As it happens, the only relevant breach alleged is the failure to obey Ms Chia's direction to remain at Odyssey House.

36. However, that very question is one over which the Treatment Order, pursuant to the DOD Act, gives authority, absent any court order to the contrary, to a Treatment Panel. It follows that, if there was an inconsistency between a direction pursuant to the powers granted under the recognizance and the directions or other advices emanating from the Treatment Panel, the latter must prevail. It, at least, would cause the direction given by Ms Chia to fail the test of being a "reasonable direction".

37. Indeed, it is not open, in my view, for the Director or his nominee to give any directions concerning the carrying into effect of a Treatment Order. The power to give such directions can only rest with one or other of the supervising authorities. It should not be open for an offender to receive conflicting directions.

38. It therefore follows that this offender, so long as he was acting as directed or permitted by the Treatment Panel in the carrying out of the Treatment Order, was not in breach of recognizance, even if the Director's nominee, Ms Chia, had purported to direct him otherwise. That does not diminish the Director's authority to give directions not covered by the Panel's authority under the Treatment Order, nor to institute breach proceedings, if warranted, in pursuance of the power of overall supervision afforded the Director under the recognizance.

39. For those reasons, the information alleging breach of recognizance was dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Ruling herein of his Honour, Justice Higgins.

Associate:

Date: 12 July 1999

Counsel for the Crown: Mr A Robertson

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Accused: Ms P Russell

Solicitor for the Accused: Darryl Perkins Solicitors

Dates of Hearing: 19 & 23 April, 13 May 1999

Date of Reasons for Ruling: 12 July 1999