STATE OF TASMANIA v RACHELLE MAREE O’BRIEN 22 FEBRUARY 2024
COMMENTS ON PASSING SENTENCE ESTCOURT J
On 7 May 2021 the respondent, Rachelle Maree O’Brien, who was born on 18 April 1986, was sentenced by me to a Drug Treatment Order. The custodial component of that order was 24 months, which the respondent was not required to serve unless she was ordered to do so as a result of non-compliance with the treatment and supervision part of the order. A number of core and program conditions were imposed on the order.
On 4 August 2021 the respondent failed to appear in Court and a warrant was issued for her arrest, which was executed on 22 August 2021. On the following day, the respondent was ordered to serve sanction days. She was re-assessed following her release from custody and Community Corrections recommended she continue on the order.
On 24 December 2021 the respondent failed to appear in Court as required for case management and a warrant was issued for her arrest, which was executed on 7 January 2022. As a result of her non-attendance, she was charged with a breach of bail offence.
On 17 January 2022, Community Corrections indicated in the Magistrates Court that an application would be made to cancel the treatment and supervision part of the order. On 28 January 2022 the matter was adjourned to this Court for determination of that question pursuant to s27QA of the Sentencing Act 1997.
Application was then made to me to cancel the treatment and supervision part of the order and to sentence the respondent pursuant to s27Q(2) of the Sentencing Act.
The State submits that I can be satisfied on the balance of probabilities that the continuation of the treatment and supervision part of the order is unlikely to achieve one or more of the purposes for which the order was made. At least one of the purposes for which the order was made was to limit the respondent’s drug use which was a significant cause of her offending.
I am so satisfied.
The basis of the application was set out in the CMD application to cancel the Drug Treatment Order. In summary, it was the opinion of the court diversion officer, who is responsible for overseeing the respondent’s participation on the order, that she had failed to engage meaningfully with the conditions the order. In particular, the court diversion officer was of the opinion that the respondent’s ongoing illicit substance use and failure to engage with various service providers suggests that the order is unlikely to achieve one or more of the purposes for which it was made.
Of note, the respondent had only attended urinalysis appointments on 17 occasions of a possible 42 scheduled appointments. That lack of regular attendance meant that the CMD program was unable to manage the order, as there is no ability to accurately gauge the respondent’s level of substance abuse.
Whilst it is accepted by the State that the respondent has experienced difficulties with her mental health over the life of the order, her engagement with treatment options has been limited. In the absence of engagement with service providers to address these issues, and in light of the respondent’s lack of regular attendance at urinalysis appointments, it is submitted that the order is unlikely to achieve one or more of the purposes for which it was made.
The respondent says that she had these mental health issues when she was assessed as suitable and commenced on the order, that she has had a significant period of abstinence in her past and only relapsed after the death of her partner and that she had also been a victim of family violence. All of that appears to be true but it does not explain her inabilities to comply with the requirements of the order, or the likelihood of a future ability to comply.
Having read and considered the assessment report, I am satisfied that for the reasons explained in the report it is appropriate to cancel the Drug Treatment Order.
The respondent has served a total of 23 sanction days, and, accordingly, taking into account those days and time served since then, and, taking into account the extent to which the respondent did make an effort to comply with the Drug Treatment Order, and the recent submissions made on her behalf by Mrs McShane, the respondent is sentenced to a period of 21 months’ imprisonment backdated to 17 May 2023. She is not to be eligible for parole until she has served half of that sentence.