A recent Court decision has stimulated discussions on whether conditions of rehabilitation should be ‘harsh’ to be considered as quasi-custody. Many have raised whether restrictions on liberty during residential rehabilitation should justify backdating the sentence.
The applicant entered a plea of guilty to the charge of offence of supplying a prohibited drug in not less than the large commercial quantity, in the Local Court. He was committed to the District Court for sentence.
In May 2022 the applicant was sentenced in the District Court for the offence. The applicant was sentenced to a term of 3 years and 6 months imprisonment and a non-parole period of 1 year and 9 months.
The applicant filed a notice of his application for leave to appeal against the sentence imposed by the District Court. The fourth ground of appeal argued was that the discretion of the sentencing judge miscarried when departing from the original position that 50% of the period in residential rehabilitation ought to be counted as quasi-custody.
The applicant completed a 12 month residential rehabilitation programme. The applicant was observed to be the most outstanding client in the programme, the report noting that he “demonstrated deep remorse for his actions/behaviour and has displayed a strong mindset to never revert to his old ways”.
Conditions of residential rehabilitation did not amount to a form of punishment?
Her Honour was of the view that the restrictions during the applicant’s rehabilitation did not amount to quasi-custody deserving of credit for 50% dueto the nature of the facilities and the condition of residence provided by the rehabilitation provider, Connect Global. Connect Global was located in “tranquil bushland on the water…had access to facilities such as swimming pool, tennis courts and fishing.
The CCA was of the view that “there was very little about the applicant’s 11 month rehabilitation at Connect Global that was custodial in nature, e.g. the conditions in which the applicant lived were hardly spartan or harsh.
A reduction in sentence does not entirely depend on the whether the residential rehabilitation programs are effective, rather the rationale behind it is to take into account the restriction on the accused’s liberty during the period of rehabilitation. In order to qualify for a lesser sentence or backdating of a sentence, the conditions of the rehabilitation program “must closely resemble imprisonment, imposing a form of punishment on the accused” The question whether the conditions imposed during the rehabilitation program amounts to quasi-custody deserving of a credit of 50% is a “question of fact”.
Relevant factors to consider when determining whether residential programs closely resemble a form of punishment:
- Whether the environment is a disciplined one, and how strict that discipline is.
- Whether the person is subject to restrictions.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice, Specific legal advice should always be sought separately before taking any action based on this publication.
