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This article was written by Andrew Fraser - Managing Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

R v McHughes: The Drug and Alcohol Sentencing List (ACT)


The difficulties of sentencing people who have drug, alcohol and mental health issues are manifold and complex. Parliaments in many jurisdictions have wrestled with these problems and this has seen the emergence of drug courts and in the ACT, the Drug and Alcohol Sentencing List (DASL) in the Supreme Court. Courts struggle in finding the right option when dealing with offenders with these issues and often look for alternatives to full-time custodial sentences, even where professional assessments might suggest that such alternatives are not viable. This was the case in the recent ACT Supreme Court decision of R v McHughes [2021] ACTSC 92 which was decided by Acting Justice Refshauge. This article outlines the examination that decision gave to the assessment processes followed when referring a matter to the Drug and Alcohol Sentencing List.

R v McHughes

The defendant, in this case, pleaded guilty to burglary, aggravated burglary and theft, with maximum penalties of 14, 20 and 10 years respectively. He was committed for sentence from the ACT Magistrates Court to the ACT Supreme Court.

Routine initial assessments were made in relation to keeping the defendant out of prison and placing him on a Drug and Alcohol Treatment Order. Those assessments were largely against such a course.

The Drug and Alcohol Sentencing List

Justice Refshauge outlined the system in relation to Drug and Alcohol Treatment Orders, which commenced only on 3 December 2019. To be eligible to be placed on such an order, an offender must be likely to be sentenced to a term of imprisonment of at least one year but not more than four years.

His Honour then looked at the reports required and found that parliament had been silent on “the nature and purpose of such assessments” and on “the process for preparing them”. These matters were not set out in legislation and both the Explanatory Statement and the Supplementary Explanatory Statement from the relevant minister were “of no help, as they merely paraphrase the legislative provisions.”

To be assessed for a Drug and Alcohol Treatment Order, the defendant and the prosecution must sign “the standard threshold eligibility assessment form”. The court then refers the matter to the appropriate (DASL) list. The threshold eligibility assessment is completed prior to the court appearance.

At the court appearance, the presiding judge will either:

  • Refer the defendant for a full assessment in accordance with the court’s suitability assessment protocol. In this case, the matter will be listed for sentence approximately six weeks later; or
  • Determine that the defendant is not suitable for further assessment and set the matter for sentencing.

A participant in the DASL needs to attend frequent review hearings at which the judge will consider his or her compliance. At such hearings, the judge may reward or sanction the participant.

R v McHughes allowed further assessment for Drug and Alcohol Sentencing List

Justice Refshauge found there were broadly two assessments happening in the system. Firstly an “eligibility assessment” should make recommendations as to where a defendant should progress to a “suitability assessment”. In the same manner as an “eligibility assessment”, the judge found that a “suitability assessment” was “a term used without express legislative authority”.

A complete Suitability Assessment is a complex and time-consuming operation, meaning such an assessment should not be sought “if there is no real prospect that a Treatment Order can or should be made”, the judge said.

Justice Refshauge had before him two eligibility assessments, one from Alcohol and Drug Services and the other from Forensic Mental Health Services of Justice Health Services. Both assessments had been carried out quickly in the cells on the morning that the offender was committed to the Supreme Court.

The judge said, “They both identify significant mental health issues which, the author of the Forensic Mental Health Services’ assessment, a registered nurse, regarded as posing ‘a considerable impediment to [the offender’s] engagement in DASL’s screening processes in a comprehensive manner’ and that, according to the author of the Alcohol and Drugs Services’, a social worker, he ‘is likely to find participation in a AOD [alcohol and other drug] treatment challenging due to his comprehension and persistent symptoms’,” His Honour said. “That author added that ‘counselling or group work is unlikely to be beneficial’.

“Issues of comprehension are complicated and, to some extent, depend on the circumstances in which the interviews are conducted, not in the sense of the professional capacity of the interviewer, but in the sense of whether the interviewee can give the best account of him or herself.’

On top of that, it did not allow for an explanation of any supports or assistance, or of whether the disabilities identified could be mitigated to an appreciable extent. His Honour ruled, “I accept that it is not unreasonable for [the offender] to have an opportunity to show whether, in a less concentrated circumstance with less pressure, he may be able to show that he can participate in the Treatment Order process and that he will be able to perform adequately in the rehabilitation processes that will be required of him.”

Therefore, notwithstanding the negative assessments, he ordered the further suitability assessment, giving the offender another chance to avoid prison.

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