The Supreme Court held that the Magistrate erred in cancelling a DATO and imposing imprisonment on four grounds: inadequate reasons that failed to disclose a path of reasoning connecting the evidence to the statutory criteria in s 18ZP(1)(c), (d) and (e); failure to consider alternatives to cancellation including variation of the DATO under s 18ZL(3), such as adding a residential rehabilitation condition; misapplication of the statutory tests by conflating inability to complete the existing order with the distinct statutory preconditions for cancellation; and denial of procedural fairness by relying on cognitive difficulties not raised with counsel, an untested allegation of a threat to kill, and prior conduct in leaving court without notice to counsel. The Court emphasised, following Jurd v the King [2024] VSCA 224, that s 18ZP(1)(c) addresses subjective willingness to comply and is not a power to sanction past non-compliance, and that cancellation with activation of imprisonment is an option of last resort.
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