dependency act and instead sentencing him to probation as in other cases for regular ovation the reason the court abuse its discretion is considering the findings rehabilitation by allowing eligible defendants to elect rehabilitative treatment instead of traditional sentencing and to restore substance abuse antics to good health and youth useful citizenship under the act if the co has reason to believe that an individual suffers from alcoholism or other drug addiction and he is eligible to make election provided by the statute the court shall may be sentenced to probation under the act and shall be subject to certain terms and conditions if he elects to submit to treatment and if he's accepted treatment by designated program what the statute pro s is that if this person elects to undergo treatment the court shall order an examination to determine whether one person suffers from alcoholism or other drug addiction and two is likely to be rehabilitated through treatment this examination is then vital to the court and if the court finds that the defendant suffers from alcoholism or other drug addiction and is likely to be who really rehabilitated through treatment the individual shall be placed on probation and under the supervision of a designated program for treatment unless and this is what i submit guidance the courts discretion if all of the person to task probation unless given consideration to the nature and circumstances of the offense and the history character and condition of the individual the court is of the opinion that either no significant relationship exists between the addiction or alcoholism and the crime committed or that imprisonment or periodic imprisonment is necessary for the protection of the public as to each of these issues or honors the court specifically found that the defendant suffers from alcoholism and substance abuse that he was under the influence of alcohol and drugs at the time of the incident and this is also confirmed by the task evaluation and information that was brought forth in the sensing hearing the court specifically found that the defendant was a candidate for task that he was quote in need of those services and was likely to be rehabilitated through those services and that there was a significant relationship between the addiction or alcoholism and the crime committed and that imprisonment was not necessary for the protection of the public because of those findings the court was required to place mr bennett's going to task probation the reasons that the court did not please mr do the court also believe that a conviction not a prison but it conviction would be more appropriate considering the circumstances of the offense the defendant's background  it would be a different argument your honour's i would be in a much different position if the court had said considering the circumstances of this offense considering mr dunn's goes back around i feel that imprisonment is appropriate to protect the public if that had been the case i would not be here in front of your honor's arguing that the court was not in its discretion or that it had to let had to allow mr dentist bill to submit to treatment if the court had sentenced him to imprisonment but the fact that the court had made the finding in a prison it was not necessary and specifically found all the other conditions president quite frankly the reasons that the court gave were not within its discretion therefore the court urged by failing to sentence mr dumbs feld as probation and i'm asking the court to remand this case back to the trial court with some guidance as to its discretion and to sentence time period so the court felt i guess in a sense that other people would be in more need of the task service more from the task probation that was available resources were limited but he actually sat when he was sentence reminding the court of course that the system and was sentenced to probation the conditions of which noted that the defendant prince receiving treatment and it was working very well for him that based upon the defendant's criminal conduct and his subsequent battery of his that matter the trial disability benefits were affected by a criminal conviction as opposed to incarceration where this bill the benefits would be through the period incarceration to come back into court and he would reconsider whether or not probation was appropriate now quite frankly based on these record it appears to people that what this trial judge w was careful and thoughtful in determining what he believed was an appropriate sentence for this defendant and it was important to him that this defendant receive the felony conviction you need to have perfectly clear conviction was the appropriate very necessary yes he did say but if it affects the security disability come back into court so he you know and i'll get some reconsideration and then the other arisa there  is no language in the statue regarding a requirement for this probation it does to me at least and in section that the court on the basis of the report other information right that such an individual suffers from alcoholism or other drug addiction and has likely to be rehabilitated through treatment the individual shall be placed on probation and under the supervision of the designated program for treatment i guess that's where i mean that that's the statutory language  i it does face shall they are a name well what we found was you have been in inpatient rehabilitation treatment for alcohol and substance abuse you have been in past probation is not going to be camilla tate you if you've been rehabilitated if you are you know went through alcohol and substance abuse treatment if you had abstained from both of those for the last thirteen anyone that suffers an addiction problem as serious as the nature of this appears to be as a result rehabilitated after thirteen months of think every study and every professional would tell you that but isn't that the  price task that there is no record of conviction more i mean he has demonstrated i think in and in a compelling manner that he is seeking to overcome  our problems with drugs and alcohol and to manage this serious mental illness for which i would hope that we wouldn't seek punishment for or to punish him for is perhaps even better for you than it has probation would that's all in the sense in that under those circumstances based on criminal activity in your you've already started that and what i'm saying is those decisions were within his discretion to do and it doesn't amount to use discretion to make those choice found that he was a task eligible in every regard allowed to do that i don't think he he would have done what he did if it hadn't been for the fact that the defendant had been gone treatment if he had not had that  he's a schizophrenia who's drinking and doing illicit drugs on top of the drugs he takes from his it's a free media and he badly needed that treatment and whoever advised him to seek it and seek it now gave him in no way shape or form think this record this judge in any way punished this defendant for doing if he didn't have a substance abuse problem at all and it was one of us that were out on the street and did what he did that night and had his criminal history we'd be in prison we wouldn't be talking about what type of treatment pointed to the circumstances of the offense and wishes to stress some of the negatives regarding that and and therefore considering all of those things the court was in its discretion to decide mr graham so should have a conviction  as opposed to receive the benefits of test probation to repeat again your honour's if the court had sat because of those circumstances because of the harm or whatever regarding the circumstances or but that's not the issue because the court found even considering all of those facts and aspects and in prison it was not necessary here for protection of the public and so all this statute does not say find all those conditions president that they should get a task unless they belong in prison for the protection of the public or you think that conviction is more appropriate then you can do that that's not what the statute statute is very clear with regards to discretion that is provided to the trial court and quite simply the fact that the judge felt mr dems go needed a conviction as opposed to task was not within his discretion because of the specific findings that the court made it quite frankly i think this is a very simple case because of the detail of record finding that the trial court made and because of those findings it is my position honors that the statu required that mr dunn still be placed on test probation i think it's also important to note because i believe the court has already acknowledged to be the logical aspect of this but even case law conclusion based upon defendant's eleven months of sobriety and his apparent ability to hold down a job sends a clear message to those seeking treatment under the act any successful effort to control your disease or seek treatment  will be held against you the court felt that that was not within the trial court's discretion that case and that would clearly frustrate the purpose of the act so again whether it's someone has sought treatment before sentencing or whether it is your honor noted they were incarcerated in a friday unable to use a list substances or alcohol the fact is that if they are still determined by the experts to suffer from alcoholism or dependence and if they can be rehabilitated to treatment that regardless of the time period where they have not used or receive some treatment before that does not make them in our people for task again because of the specific finding