Allred v Director of Public Prosecutions

[2025] ACTCA 25

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Allred v DPP

Citation: 

[2025] ACTCA 25

Hearing Date: 

11 March 2025

Decision Date: 

18 July 2025

Before:

McCallum CJ, Mossop and Loukas-Karlsson JJ

Decision: 

The appeal is dismissed.

Catchwords: 

APPEAL – CRIMINAL LAW – Appeal from sentence in Drug and Alcohol Sentencing List (DASL) – where appellant with long history of drug use and offending sentenced to a Treatment Order in the DASL – where appellant unwilling or unable to comply with the Treatment Order – where Treatment Order cancelled and original sentence imposed – whether sentencing judge considered relevant considerations – whether sentence manifestly excessive – appeal dismissed

APPEAL – CRIMINAL LAW – Appeal from sentence in Drug and Alcohol Sentencing List (DASL) – where Treatment Order cancelled and original sentence imposed – whether assertion that the sentence imposed is manifestly excessive is an appeal against the original sentence – imposition involves only a limited exercise of judicial power

STATUTES – INTERPRETATION – Drafting – interaction between general sentencing provisions and the imposition provisions in the Crimes (Sentencing) Act 2005 (ACT) – where drafting s 80ZE(3) “odd” and “curious” – issue unnecessary to decide in this appeal

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT), s 110

Crimes (Sentencing) Act 2005 (ACT), ss 63, 65, 80W, 80ZB, 80ZD, 80ZE

Cases Cited: 

Barron v Laverty [2019] ACTSC 198; 346 FLR 442

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

DPP v Allred (No 2) [2024] ACTSC 243

DPP v Allred [2023] ACTSC 184

DPP v Stewart (No 2) [2024] ACTSC 163

House v The King (1936) 55 CLR 499

Le Clair v The Queen [2017] ACTCA 19

R v Cook (No 2) [2024] ACTSC 27

R v Dowling (No 3) [2021] ACTSC 210

The Queen v Meyboom [2012] ACTCA 48

Parties: 

Jackson Allred ( Appellant)

Director of Public Prosecutions ( Respondent)

Representation: 

Counsel

J Maher ( Appellant)

M Howe ( Respondent)

Solicitors

Hugo Law Group ( Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 27 of 2024

Decision Under Appeal: 

Court/Tribunal:           ACT Supreme Court

Before:   Christensen AJ

Date of Decision:       30 July 2024

Case Title:                 DPP v Allred (No 2)

Citation: [2024] ACTSC 243

THE COURT:

Introduction

1․This is an appeal against a decision by Christensen AJ (the sentencing judge) in DPP v Allred (No 2) [2024] ACTSC 243 (Allred (No 2)) to impose a sentence that had been the subject of a drug and alcohol treatment order (Treatment Order) made by Refshauge AJ.

2․On 27 July 2022, the appellant committed offences by driving a stolen car whilst disqualified from driving. The appellant pleaded guilty on 28 February 2023 to two offences arising from that incident:

(a)dishonestly drive motor vehicle without consent (CAN 750/2023); and

(b)drive while disqualified (as a repeat offender) (CAN 2106/2023).

3․On 14 August 2022, the appellant committed further offences by driving a car dangerously, at high speed, through a lengthy police pursuit, while still disqualified from driving. The appellant was arrested and held in custody the following day. The appellant pleaded guilty on 9 February 2023 to three offences arising from the incident in August:

(a)aggravated dangerous driving (as a repeat offender) involving circumstances of aggravation of failing to stop for police and driving with a prescribed drug in his oral fluid (SC CAN 3/2023);

(b)drive motor vehicle at police (CAN 7995/2022); and

(c)drive while disqualified (CAN 7990/2022).

4․The appellant was on parole and bail for previous offending at the time of both incidents. Two days after the incident in August, the appellant’s parole was revoked and the appellant was ordered to serve the balance of his sentence of imprisonment for previous offending in full‑time custody.

5․The appellant was referred to the Drug and Alcohol Sentencing List (DASL) following his pleas of guilty to the July and August offences. The appellant was assessed by ACT Corrective Services as likely to have a severe substance disorder. That assessment described, and the appellant confirmed, that he was using drugs at the time of both incidents which substantially contributed to his offending. The appellant, who was aged 30 at the time he was sentenced by Refshauge AJ, had a long history of heroin and methamphetamine use and served his first sentence of imprisonment at the age of 18. The appellant had made previous attempts at rehabilitation, including most recently, attempting to undertake the Solaris program while in custody from September to October 2022. All previous attempts at rehabilitation had been unsuccessful.

6․On 17 July 2023, the appellant was sentenced by Refshauge AJ to an overall sentence of three years and 10 months’ imprisonment, commencing on 16 January 2023 and ending on 15 November 2026, subject to a Treatment Order from 17 July 2023 to 15 November 2026. The sentence commencement date took into account 182 days of pre-sentence custody. The sentence remarks of Refshauge AJ are set out in DPP v Allred [2023] ACTSC 184 (Allred).

7․Pursuant to s 80W of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the custodial part of the appellant’s Treatment Order was suspended, with the appellant released from custody in order to engage with the treatment program and supervision parts of the Treatment Order. The appellant was subject to the standard conditions of a Treatment Order, including an undertaking not to return a positive drug test and to undertake treatment in relation to his drug dependency.

8․The appellant almost immediately failed to comply with the Treatment Order, and received his first sanction within 10 days of the Treatment Order being imposed after admitting to substance use and missing a scheduled case management appointment. The appellant was found to have used illicit substances on multiple occasions while under the Treatment Order, and was sanctioned multiple times for “disrespectful behaviour, non-engagement, and being late to appointments”: Allred (No 2) at [16]. As a result, the appellant’s Treatment Order was provisionally cancelled on four occasions, during which he was returned to custody. The sentencing judge identified four occasions upon which the Treatment Order was provisionally cancelled, resulting in a total of 42 days in custody.

9․As highlighted by the appellant in his submissions, prior to the final period of provisional cancellation, he was admitted into the Canberra Recovery Services residential rehabilitation program on 13 March 2024 for three days, and then again on 25 March 2024. On 31 May 2024, the appellant was discharged from the program for suspected use of gamma hydroxybutyrate (GHB) while participating in the program. The appellant denied using GHB while in the program. On 4 June 2024, the appellant was subsequently held in custody after being observed to be under the influence of a prescription medication. The Director then applied for the cancellation of the appellant’s Treatment Order.

10․On 18 June 2024, the sentencing judge cancelled the appellant’s Treatment Order pursuant to s 80ZE(1) of the Sentencing Act. The transcript of proceedings on 18 June 2024 shows that the Treatment Order was cancelled as the sentencing judge was satisfied that:

(a)the appellant would not be able to comply with the condition of the Treatment Order to participate in a residential rehabilitation program because such a program was no longer an option for the appellant;

(b)the appellant was unwilling or unlikely to comply with that condition of the Treatment Order, considering both the most recent discharge from the residential rehabilitation program and the appellant’s “engagement or lack thereof” with the treatment program as a whole; and

(c)the continuation of the treatment and supervision part of the Treatment Order was not likely to achieve the objects of the order, considering the rehabilitation programs available and the conduct of the appellant throughout the term of the Treatment Order.

11․The appellant was held in custody for a further 42 days following the cancellation of his Treatment Order, from 18 June 2024 to 29 July 2024.

Decision under appeal

12․Having cancelled the appellant’s Treatment Order, the sentencing judge was required to determine whether it was appropriate to impose the sentence of imprisonment suspended under the custodial part of the appellant’s Treatment Order, or resentence the appellant, pursuant to s 80ZE(2) of the Sentencing Act. Submissions from the appellant and the Director on the question of imposition or resentence were heard on 1 July 2024.

13․At that hearing, the appellant submitted that the case was appropriate for resentencing. His submissions emphasised that:

(a)he had not faced any fresh charges while on the Treatment Order; and

(b)he had had periods of positive engagement with the Treatment Order.

14․On 30 July 2024, the sentencing judge made orders imposing the appellant’s suspended sentence under the custodial part of the Treatment Order, with a non-parole period of two years, one month and 10 days, commencing on 7 November 2023 and ending on 16 December 2025. The non-parole period was 55 percent of the overall term of imprisonment of three years and 10 months.

15․The sentencing judge found (at [23]-[26]) it was not appropriate to resentence the appellant for reasons which included that:

(a)the absence of reoffending was not determinative, nor significantly informative, as any reoffending would instead enliven considerations under s 80ZD of the Sentencing Act;

(b)the periods of positive engagement were counteracted by the appellant’s overall high degree of non-compliance; and

(c)despite being given further opportunities to engage with the Treatment Order and being reminded of his obligations, the appellant did not engage in a way that demonstrated a sustained commitment to rehabilitation and, consequently, the promises to engage with rehabilitation advanced in submissions before the sentencing judge were “empty promises in the circumstances”.

Grounds of appeal

16․The appellant now seeks that the orders of the sentencing judge to impose the suspended sentence be set aside, and that the appellant be resentenced. The appellant relies on the following grounds:

(a)Ground 1: The sentencing judge erred by imposing the suspended part of the Treatment Order without having sufficient regard to the appellant’s lack of reoffending since the Treatment Order was made and the appellant’s periods of compliance with rehabilitation.

(b)Ground 2: The sentencing judge erred in the way the sentences were accumulated, in circumstances where the appellant stood for sentence in respect of conduct on two occasions which were close in time, and involved a course of conduct with common features and criminality.

(c)Ground 3: The total effective sentence imposed was manifestly excessive.

17․In relation to Ground 2, particulars were given identifying that the appellant’s contention was that the sentencing judge erred in making the sentence for driving at police (CAN 7995/2022) wholly cumulative upon the sentence for aggravated dangerous driving (SC CAN 3/2023) when those offences were part of the same course of conduct.

18․In submissions, the parties agreed that Ground 2 itself was effectively a particular of Ground 3. Whether Ground 3 is made out depends on whether this court agrees with the appellant’s submissions on Ground 2. The two grounds will therefore be dealt with together.

Ground 1: Failure to take account of material considerations

Appellant’s submissions

19․The appellant’s first ground of appeal complains of the sentencing judge not “having sufficient regard to” the appellant’s lack of offending since the Treatment Order was made and the appellant’s periods of compliance with rehabilitation. Counsel for the appellant accepted in oral submissions that a House v The King error (House v The King (1936) 55 CLR 499) would only arise if there was a failure to take a material consideration into account. Notwithstanding that the sentencing judge made express reference to both the lack of offending and the appellant’s periods of compliance, the appellant submitted:

(a)the absence of reoffending was equally if not more significant when considering whether to impose a sentence or resentence an offender under s 80ZE than it was when considering the similar question under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act);

(b)the significance of the absence of reoffending in the approximately 11 months since the making of the Treatment Order had to be assessed against his very long-term history of illicit drug use and offending;

(c)the imposition of the suspended sentence, which required the service of at least one year and 10 months in full-time custody before the appellant became eligible for release on parole, was “a disproportionate response to the breaching conduct” and failed to reflect the absence of reoffending; and

(d)similarly, although the sentencing judge made specific reference to the appellant’s periods of compliance with the Treatment Order, these were “effectively disregarded” and hence not taken into account as a material consideration.

Consideration

20․In his concurring judgment in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [51], Gageler J described that, where a House v The King error is asserted, it is necessary to establish that the sentence under appeal either (1) turned on one or more specific errors of principle or fact, or (2) in the totality of the circumstances was unreasonable or plainly unjust. The Crown appeal to the Court of Criminal Appeal in that case had included grounds asserting that the sentencing judge had failed to “properly” determine or acknowledge particular facts. Of those grounds, Gageler J said (at [53]): “They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account.” Another ground of appeal was framed by reference to the “weight” the sentencing judge had placed on the offender’s subjective circumstances. Of that, Gageler J said: “It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.”

21․So too here. Insofar as Ground 1 asserts a failure to have “sufficient regard to” the lack of reoffending and periods of compliance, that is a challenge to the weight given to particular factual matters. It is incapable of establishing a specific error in the first category of House v The King errors described in Bugmy. However, the appellant pressed this ground of appeal as though it involved a claim that, notwithstanding the sentencing judge’s references to the lack of reoffending and periods of compliance, her Honour had in fact failed to take those matters into account.

22․As counsel for the appellant properly accepted during the course of his oral submissions, to succeed on such a ground was a “tall order” in circumstances where the sentencing judge had made express reference to both such factual issues. However, it was not, at least theoretically, impossible to succeed. It could be the case that particular factual circumstances might be of such significance in the context of a particular statutory scheme that, if they were established, a particular discretionary outcome would necessarily follow. In such circumstances, it might be possible to find that, even though a decision‑maker had made reference to the circumstances in question, the outcome indicated that those circumstances had not in fact been considered.

23․However, that theoretical possibility is a long way from the present case. The sentencing judge made multiple references to the lack of reoffending and the extent of compliance both when reciting the factual circumstances and as part of her consideration of what to do:

(a)In her reasons at [6], the sentencing judge reproduced part of the decision in R v Cook (No 2) [2024] ACTSC 27 at [10], which referred to the necessity to consider “the extent to which there was compliance with the treatment and supervision part of the order”.

(b)At [8], the sentencing judge referred to the Director’s submissions that “there were periods of positive engagement” with the Treatment Order.

(c)At [10]-[11], the sentencing judge referred to the submissions on behalf of the appellant that:

(i)he had complied with the requirements to attend court;

(ii)he had not reoffended while subject to the Treatment Order; and

(iii)he had positively engaged with the Treatment Order for a period and spent time in residential rehabilitation.

24․Under the heading “Compliance with Treatment Order”, the sentencing judge reviewed what she described as the “disappointing” compliance with the Treatment Order. In addition to reviewing all of the different ways in which the appellant had failed to comply with the treatment order, she referred at [17]-[21] to “occasions for optimism”, which included the appellant:

(a)achieving his longest period of sobriety since he was a child;

(b)graduating from the Canberra Recovery Hub day program;

(c)engaging positively in aspects of family and home life and prosocial activities;

(d)engaging with mechanisms to address causes of underlying trauma; and

(e)having “solid engagement” with aspects of the Canberra Recovery Services residential rehabilitation program, which he almost completed.

25․Under the heading “Consideration”, in which the sentencing judge indicated that it was not appropriate in the circumstances to resentence, she made specific reference to:

(a)there being no reoffending, but said that fact was “not determinative, nor significantly informative” having regard to s 80ZD (which addresses orders that can be made where an offender is convicted or found guilty of an offence punishable by imprisonment committed while a Treatment Order is in force); and

(b)the fact that there “was a period of, and occasions of, positive engagement”.

26․It is very clear that the sentencing judge gave substantive consideration to both the lack of reoffending and the periods of compliance with rehabilitation. The findings of the sentencing judge as to the lack of reoffending and the periods of compliance with rehabilitation were not, in the circumstances of the case and the statutory context in which the decision was made, such as to compel the conclusion that it was appropriate to resentence the appellant rather than impose the sentence. Even in the context of a statutory regime addressing a sentencing option very clearly focused upon the rehabilitation of drug offenders, it was well open to the sentencing judge to determine, notwithstanding the absence of reoffending and the limited periods of compliance with rehabilitation, that imposition of the suspended sentence rather than resentence was appropriate. The sentencing judge made specific reference to:

(a)the fact that relapses were associated with unaddressed trauma which it was necessary for the appellant to address for him to progress in rehabilitation and achieve freedom from drug dependency: at [24];

(b)the overall “high degree of non-compliance despite numerous opportunities being given”: at [25]; and

(c)the numerous warnings given as to the consequence of non-compliance: at [25]‑[26].

27․The sentencing judge concluded that, despite further opportunities and reminders of his obligations, the appellant “did not engage with the Treatment Order in a way demonstrative of sustained commitments to rehabilitation”: at [26]. In those circumstances, imposition of the sentence already determined was clearly an alternative available to the sentencing judge in the proper exercise of her discretion.

28․Even if the ground of appeal is understood as asserting a failure to take into account material considerations, as distinct from a complaint about the weight which those considerations were given, this ground of appeal must be dismissed.

Grounds 2 and 3: Accumulation and manifest excess

Appellant’s submissions

29․The appellant addressed Grounds 2 and 3 together as the asserted error in relation to the way the sentences were accumulated, with Ground 2 being, in substance, a particular of the assertion that the total sentence was manifestly excessive. That involved recognition, consistently with the decision in The Queen v Meyboom [2012] ACTCA 48 at [65], that an apparent failure to apply concurrency and accumulation principles was not necessarily erroneous unless the total sentence was manifestly inadequate or excessive.

30․Counsel for the appellant recognised that these grounds of appeal may be considered to be a challenge to the original sentencing decision of Refshauge AJ because it was that decision which determined the length of the individual sentences and the degree of concurrency or accumulation between them. Having regard to the absence of any appeal against the decision of Refshauge AJ, counsel for the appellant appeared to submit that the terms of s 80ZE(3) were sufficient to indicate that necessarily involved in a decision under s 80ZE(2) to impose a sentence that had been suspended pursuant to a Treatment Order was an exercise of judicial power which could be challenged on the basis that it resulted in a sentence which was manifestly excessive. He did this by pointing to s 80ZE(3), which referred to the power of the court to determine whether the offender is to serve “all or part” of the previous sentence and the capacity of the court to reduce the sentence by any period served in custody under the treatment and supervision part of the Treatment Order. It was therefore submitted, at least impliedly, that it was open to challenge the imposition of the sentence by the sentencing judge on the ground that the original sentence was manifestly excessive and not moderated by any order made by the sentencing judge at the time of its imposition.

31․The appellant submitted that, although Refshauge AJ had referred (Allred at [105]-[109]) to the relevant principles applicable to the fixing of sentences for multiple offences and the totality principle, in the circumstances, his Honour had failed to apply those principles. Counsel submitted that the driving at police and aggravated dangerous driving formed part of a single course of conduct and that the offences were factually intertwined and had common features of criminality. Despite that, the sentence of 15 months for aggravated dangerous driving was made wholly cumulative upon the sentence of 13 months for driving at police.

32․The submissions pointed to the limited degree of concurrency involved in the overall sentence imposed: nine months of concurrency in an overall sentence of 46 months. The appellant submitted that the degree of accumulation and lack of concurrency meant that the way in which the sentences were structured resulted in a manifestly excessive head sentence.

Consideration

33․The first issue that is necessary to determine is whether or not it is open to challenge the sentencing judge’s imposition of the sentence on the grounds of manifest excess in circumstances where there was, and is, no appeal in relation to the decision of Refshauge AJ.

34․In Barron v Laverty [2019] ACTSC 198; 346 FLR 442 at [65], Murrell CJ explained that, when proceeding to impose a suspended sentence under s 110(2)(a) of the Sentence Administration Act, the sentence to be imposed is the sentence that was a product of the original exercise of judicial power and there is no fresh exercise of judicial power at the point of imposition. The imposition merely gives effect to the suspended sentence of imprisonment that was earlier imposed and, as a consequence, there is no scope to alter the original sentence.

35․However, counsel for the appellant pointed out that there is a difference between the language of s 110 of the Sentence Administration Act and the language in s 80ZE. Section 110 merely empowers the court to “impose the suspended sentence”. In contrast, although s 80ZE maintains the basic distinction between imposing the suspended part of the sentence and resentencing, the section is more complex, relevantly providing:

(2) If the court decides to cancel a treatment order under subsection (1) the court must make an order cancelling the treatment order and, taking into account the extent to which the offender has complied with the treatment and supervision part of the order, either—

(a) impose the sentence of imprisonment that was suspended under the custodial part of the treatment order; or

(b) if the court considers it appropriate in the circumstances—resentence the offender for each offence in relation to which the treatment order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and alcohol treatment orders).

(3) If the court orders the imposition of a sentence of imprisonment under this section, the court—

(a) must order whether the offender is to serve all or part of the sentence by full-time detention at a correctional centre; and

(b) may reduce the sentence by any period served in custody under the treatment and supervision part of the treatment order, taking into account the extent to which the offender complied with that part of the order.

36․Subsection (3) has been identified by judges administering the drug and alcohol sentencing list as “odd” in R v Dowling (No 3) [2021] ACTSC 210 at [46] and “curious” in DPP v Stewart (No 2) [2024] ACTSC 163 at [33]. The particular features of relevance here are that subs (3)(a) provides that the court must order whether the offender is to serve “all or part” of the sentence imposed in full-time detention, and that subs (3)(b) empowers the court to reduce the sentence having regard to time spent in custody. It is these features that were the subject of comment by Refshauge AJ in Dowling, who pointed to the fact that a non-parole period could be set under s 65 of the Sentencing Act: at [47].

37․However, as Christensen AJ pointed out in Stewart, subs (3) appears to be designed to work with ss 80W(3) and (4), which expressly empower the setting of a non‑parole period if the sentence is longer than 30 days, notwithstanding that s 65 of the Sentencing Act would otherwise require the sentence to be one year or longer: at [34].

38․We agree with the earlier characterisation of the provisions as “odd” or “curious”. There are mixed indications within the provisions of the Act relating to Treatment Orders, and within s 80ZE in particular, as to whether the legislature was attempting to integrate the process of imposition of sentences derived from cancelling Treatment Orders with generally applicable sentencing provisions relating to non-parole periods and backdating, or to provide a self-contained regime in the imposition provisions (ss 80ZB, 80ZD and 80ZE) to address such issues.

39․For the purposes of this case, it is only necessary to address the meaning of these provisions in a limited respect. It is sufficient, in order to reject the appellant’s contention, to conclude that the reference to “all or part” of the sentence in s 80ZD(3)(a) does not require or permit a substantive reconsideration of the earlier determined sentence that was suspended pursuant to the Treatment Order. Rather, it is a more confined exercise relating to the imposition of a non-parole period or its equivalent. That conclusion may be reached because there are insufficient indications that the legislature intended a reconsideration of the earlier sentence and because of the fact that to interpret the paragraph to allow a substantive reconsideration of the earlier sentence would be inconsistent with the fundamental distinction between imposition in subs (2)(a) and resentence in subs (2)(b).

40․The end result of this is that imposition of the sentence involves only a limited exercise of judicial power. It involves:

(a)determining a non-parole period; and

(b)determining whether to reduce the sentence by any period served in custody under the treatment and supervision part of the Treatment Order.

41․It does not involve a wholesale redetermination of the appropriateness of the sentence that was previously determined and partially suspended under the Treatment Order. To the extent to which any complaint about the sentence imposed by Refshauge AJ might have been relevant to the decision as to whether to impose or resentence, no such submission was made to the sentencing judge and hence the failure to consider the issue would not indicate any House v The King error.

42․For those reasons, if the appellant was to challenge the sentence imposed by Refshauge AJ on House v The King grounds, he needed to have sought leave to appeal out of time against that decision. Although there were some suggestions during the course of the appeal that he might, counsel for the appellant did not clearly do so.

43․Had he sought that leave, we would have declined it on the ground that the challenge would not have succeeded. That is for the following reasons:

(a)The appellant accepted that the issue that he raises in Ground 2 about accumulation of sentences may only succeed if he established that the total sentence imposed was manifestly excessive. As a consequence, Ground 2 would be treated as a particular of Ground 3.

(b)There is no single correct approach to the structuring of multiple sentences, and there are a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise: Le Clair v The Queen [2017] ACTCA 19 at [56] (the Court).

(c)It may be accepted that, given the commonality of some of the conduct in question, there would ordinarily be a degree of concurrency between the sentence on the charge of driving at police and the sentence on the charge of aggravated dangerous driving. However, that of itself does not establish error.

(d)There is no complaint that the individual sentences imposed were manifestly excessive.

(e)The offending involving the aggravated dangerous driving charge was particularly serious. It was described by Refshauge AJ as follows (at [15]‑[25], [27]):

On 14 August 2022, police responded to a call at about 11.40 am from a citizen who had seen an Audi motor vehicle being driven erratically on Heagney Crescent, Chisholm, ACT. The citizen described the driving as follows: ‘[the driver], he's all over the road. He's passed out and went onto my side of the road, his window’s all smashed, his boot's open, he's driving like an idiot.’

The citizen followed the vehicle, keeping on the phone with police. At about 11.52 am, police in a marked police vehicle saw the Audi vehicle and commenced pursuing it.

Police attempted on two occasions to deploy tyre-deflation devices, but Mr Allred evaded them.

Police, now in two cars, followed Mr Allred who was driving the Audi through a number of streets. At one stage, police activated their emergency lights and sirens. The pursuit was recorded on the dashcam fitted to the police motor vehicle, and, as noted above (at [6]), a portion of it was played in Court. The commentary showed that, between periods of dangerous driving, Mr Allred did drive appropriately and within the speed limit and that the traffic was moderate or low at various points in time.

He did, however, cross to the incorrect side of the road at times and drove in excess of the speed limit, crossing solid road marking lines. At one stage, as the Audi motor vehicle approached an area where police were standing in full police uniform, Mr Allred drove the motor vehicle onto the median strip to evade them. As a police officer ran to intercept him and pick up the tyre-deflation devices and redeploy it in the direction of the Audi motor vehicle, Mr Allred drove in his direction and recklessly drove towards him, though swerving at the last minute to avoid colliding with him. This was the basis of the charge of driving at police and being reckless about the police officer's safety.

Mr Allred then drove away and drove onto the incorrect side of the Monaro Highway, which had then a line of heavy traffic. Police decided it was too dangerous to continue the pursuit and discontinued it.

This caused police to direct traffic from where the Audi motor vehicle was being driven while it was driving erratically between the south-bound lanes.

Later, at the intersection of Monaro Highway and Tralee Street, Hume, ACT, police resumed the pursuit, re-activating their vehicles’ emergency lights and sirens. Again, Mr Allred drove the Audi motor vehicle across the median strip into oncoming traffic, but did not stop as the lights and sirens were directing him to do.

The police officer then drove at the Audi motor vehicle, causing Mr Allred to cross the median strip and return to the correct side of the road. Police followed the Audi motor vehicle, but it later turned into Bugden Avenue, Fadden, ACT, and the police lost sight of it.

Later again, police on patrol saw the motor vehicle in Castleton Crescent, Gowrie, ACT, but it was driven onto the footpath on the green belt near the playing fields, and police again lost sight of it.

Later, police found the Audi motor vehicle to be bogged in the green belt at Gowrie. Mr Allred got out of the motor vehicle and walked away along the footpath on the green belt, followed by police. Mr Allred said that he had a firearm and threatened to shoot himself.

…

Mr Allred was taken to hospital by ambulance, and a sample of his blood was taken. It was analysed by the ACT Government Analytical Laboratory and was shown to contain methamphetamine.

(f)The Director points correctly to the following features of the offending and the appellant’s subjective circumstances:

(i)the prolonged duration of the incident;

(ii)the excessive speed and multiple breaches of road rules involved;

(iii)the impact on other drivers who were forced to take evasive action to avoid colliding with the appellant;

(iv)the presence of methamphetamine in the appellant’s blood;

(v)the appellant being on conditional liberty, namely both parole and bail, during the incident; and

(vi)the appellant’s significant criminal history, particularly for dangerous driving.

(g)While the driving at police charge formed a part of the dangerous driving, it was a temporally limited and discrete part of the much longer offending.

(h)The maximum sentence of imprisonment available for the charge of driving at police was 15 years. The maximum sentence of imprisonment available for aggravated dangerous driving was five years. The aggregate of the two sentences imposed by Refshauge AJ was a sentence of 28 months’ imprisonment.

(i)The appellant had a long history of illicit drug use, particularly methamphetamine and heroin.

(j)He also had a significant criminal record described by Refshauge AJ as “a long history of criminal offending” (see Allred at [82]-[83]).

(k)When the overall conduct, comprising the aggravated dangerous driving and the driving at police, is considered together, it could not be concluded that an aggregate sentence of 28 months’ imprisonment in the subjective circumstances of the appellant was manifestly excessive. Nor, having regard to the other offending for which he was sentenced, could the overall sentence of three years and 10 months be considered to be manifestly excessive.

44․As a consequence, had an application for leave to appeal out of time been made in relation to the sentence imposed by Refshauge AJ, we would have refused that leave.

Error as to the length of the sentence imposed

45․One error, not the subject of a ground of appeal, that was identified by the appellant in the approach taken by the sentencing judge was that, instead of imposing only that part of the sentence that had been suspended under the Treatment Order (three years and four months), her Honour imposed the whole of the sentence (three years and 10 months). This error gave rise to no adverse consequences so far as the appellant was concerned because her Honour backdated the sentence so as to take into account the fact that the additional six‑month period had already been served. In fact, as the Director pointed out, the imposition of the whole of the sentence had a beneficial consequence for the appellant in that it shortened the non-parole period to which he was subject under the imposed sentence. In order to explain why this was the case, it is necessary to go into the detail of the sentence that was imposed and the sentence that would have been imposed had the starting point been to impose three years and four months.

46․The total sentence imposed was three years and 10 months’ imprisonment, commencing on 7 November 2023 and ending on 6 September 2027. The non‑parole period was 55 percent of the total term of imprisonment, being two years, one month and 10 days. That had the effect that the non-parole period ended on 16 December 2025.

47․It is apparent that the duration of the non-parole period was arrived at by the application of the percentage to the sentence imposed, as distinct from the selection of a period of years and months and the calculation of the percentage being derived from that.

48․Had the total sentence imposed been only the portion of the sentence that was suspended under the Treatment Order, three years and four months, then 55 percent of that would have been a period of 22 months, or one year and 10 months. The sentence would have started on 7 May 2024, six months later than the sentence actually imposed, and ended on 6 September 2027, the same date as the sentence actually imposed. It would mean that the non‑parole period of 22 months would start on 7 May 2024 and end on 6 March 2026, substantially later than under the sentence actually imposed.

49․If the error as to which part of the sentence was to be imposed were remedied, the Director did not submit that the non-parole period should be amended in the manner that would be required if a consequential amendment was made to the non-parole period so as to reflect the sentencing judge’s intention that the appellant serve 55 percent of the sentence imposed in full‑time custody.

50․The position is, therefore, that the sentence imposed appears to be contrary to the requirements of the statute, but:

(a)that error is not the subject of a ground of appeal;

(b)it has not given rise to any practical consequence adverse to the appellant, but instead has given him a benefit; and

(c)if the error was to be corrected, the Director does not contend that any alteration should be made to the non-parole period adverse to the appellant.

51․Counsel for the appellant submitted, in relation to the length of the sentence imposed or the non-parole period, that “if the court considered there was merit in either of those grounds as far as the specific error[s] … asserted are concerned”, then the appellant sought leave to include them in the notice of appeal. He would then contend that this court should find the errors established and resentence the appellant. That was an unsatisfactory position to adopt because it did not involve any unequivocal application for leave to amend the notice of appeal that could be responded to by the Director and determined by the court. We would refuse leave to amend the notice of appeal to include the assertion of error relating to the term of the sentence imposed or the non-parole period because the establishment of those grounds of appeal would not impugn the decision to impose the sentence and only the concession by the Director would protect the appellant from an increase in the length of his non-parole period.

52․The refusal of leave to amend the notice of appeal means that it is not necessary to address additional issues about the operation of subs (3)(b) that were not the subject of argument. Those are issues which arise out of the “odd” and “curious” language of s 80ZE(3). The first issue would be how periods of custody during the existence of the Treatment Order should be dealt with. The sentencing judge dealt with them through backdating. That would certainly be consistent with the usual approach under s 63 of the Sentencing Act to addressing time spent in custody. However, s 80ZE(3)(b) refers to the sentence being reduced rather than backdated. How this provision is intended to operate in relation to the generally‑applicable power to backdate a sentence in s 63 is, as pointed out above at [38], not clear. If only reduction as distinct from backdating is permitted, then that would raise a further issue, namely, whether what is being imposed is a single period of suspended imprisonment as a result of the Treatment Order, as distinct from the multiple individual sentences for the various offences. While the sentencing judge proceeded on the basis that it was the latter, if that was the case then the process of reducing the sentence to take into account pre‑sentence custody would become difficult as it is not clear which of those sentences would be reduced. On the other hand, if what was being imposed was a single period of imprisonment, then reduction of that period would be relatively straightforward. However, for the reasons given, these issues do not need to be addressed in this case.

Orders

53․The order of the Court is:

(1)The appeal is dismissed.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: