Director of Public Prosecutions v Baudinette

[2024] ACTSC 157

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Baudinette

Citation: 

[2024] ACTSC 157

Hearing Date: 

13 May 2024

Decision Date: 

21 May 2024

Before:

Christensen AJ

Decision: 

See [78].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint commission aggravated robbery – possess knife without reasonable excuse – commission of offences during an Intensive Correction Order – where the Intensive Correction Order had been cancelled by Sentence Administration Board prior to imposition of sentence – not in the interests of justice to cancel – insight and efforts towards rehabilitation – Drug and Alcohol Treatment Order imposed

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT) ss 65, 79

Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33, 35, 63, 80S, 80T, 80O

Crimes Act 1900 (ACT) s 382

Criminal Code 2002 (ACT) s 310

Cases Cited: 

DPP v Dunn [2022] ACTSC 355

DPP v McIntosh (No 3) [2022] ACTSC 348

Hogan v Hinch (2011) 243 CLR 506

R v Baudinette [2014] ACTSC 155

R v Campbell [2021] ACTSC 359

R v Folauhola (No 2) [2024] ATSC 87

R v XXL [2022] ACTSC 24

Texts Cited: 

Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT)

Parties: 

Director of Public Prosecutions ( Crown)

Alexander John Baudinette ( Offender)

Representation: 

Counsel

G Meikle ( DPP)

G Le Couteur ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 9 of 2024

SCC 10 of 2024

CHRISTENSEN AJ:

Introduction

1․Alexander John Baudinette is to be sentenced for an offence of aggravated robbery contrary to s 310(a) of the Criminal Code 2002 (ACT) and a related summary charge of possessing a knife without reasonable excuse contrary to s 382(1) of Crimes Act 1900 (ACT).

2․Mr Baudinette seeks that he be given an opportunity to engage with a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

Aggravated robbery

3․On Friday 11 August 2023 at about 5:00pm, Mr Baudinette and another male went into the Sydney Tools store in Mitchell. They spent some 23 minutes walking around the store through the various aisles.

4․While they were doing so, a grey Hyundai bearing stolen NSW registration plates parked at the rear of the store. The vehicle was being driven by a female person.

5․After walking through the aisles, the other male picked up a Lincoln L2250 compressor which was displayed to the left of the entry sliding doors and exited the store with it. A staff member was monitoring the live closed circuit television (CCTV) and saw this happen.

6․The staff member followed the male to the car. The male was attempting to load the compressor into the boot. The staff member approached him and asked if he was going to pay for it. The male then dropped it on the ground and the staff member picked it up.

7․At about this time, Mr Baudinette approached the car. He approached the staff member and said words to the effect of “is everything alright”. Mr Baudinette then produced a small knife with a four-inch blade from his pocket. He was standing in an aggressive stance and holding the knife in the staff member’s direction within close proximity.

8․The staff member dropped the compressor and walked away.

9․Mr Baudinette attempted to load the compressor into the boot. He was then assisted by the other male who picked it up and loaded it on the rear seat. Mr Baudinette, the other male, and the female then drove away.

10․Mr Baudinette was identified as one of the male offenders from the CCTV footage.

11․The compressor was valued at $235 and was not recovered.

Nature and circumstances of the offence: s 33(1)(a) Sentencing Act

12․The value of the item stolen was not significant, but any theft from a retail store involves broader financial implications to the business, and ultimately to the community when businesses may increase prices to recuperate losses. In addition, the store will have experienced inconvenience from the loss.

13․The circumstances of the theft suggest that there was a level of planning, but it was, overall, not a sophisticated example of this type of offending. The threat involved the use of a knife, which was serious, but it was not accompanied by verbal aggression or actual force. There was close proximity to the victim, with physical aggression in terms of his stance and the use of the knife, as well as multiple persons involved.

Effects on victims: s 33(1)(f) Sentencing Act

14․Mr Baudinette being in company at the time of his offending establishes that it is an aggravated form of the offence, but that would be established with only one other person involved. Here, the victim was confronted with a group of three people and with Mr Baudinette producing the knife while presenting aggressively. The victim, who was engaged in his employment and was entitled to feel safe, no doubt experienced immediate fear and distress, as well as likely ongoing concerns and impacts from the offence committed against him.

Possess knife without reasonable excuse

15․As to the second offence, two days after the aggravated robbery, on Sunday 13 August 2023 at about 6.30pm, police who were conducting patrols in Lyneham saw Mr Baudinette. He was arrested and police indicated that they were going to search him.

16․He said to police, “I have a knife on me”. A grey and white camouflaged handled flick knife with a 15-centimetre black blade was located tucked into Mr Baudinette’s waist band on the right side of his hip.

17․Mr Baudinette told police he did not have any reason to have the knife. The knife was seized.

18․The knife possessed establishes this as a serious example of this type of offence. It had a relatively long blade, was of a flick type with camouflage markings, and was concealed on his person. There was immediate acknowledgment by Mr Baudinette of his possession of the knife, reducing somewhat the risk to police during the search.

Subjective circumstances

19․Mr Baudinette recently turned 40 years of age. He was aged 39 years at the time of the offending.

20․He was born and raised in Canberra with one sibling. He had what he described as a generally unremarkable upbringing within a positive home environment. This changed when he was about 11 years of age, when his parents divorced, and a childhood friend passed away from cancer. These events had significant impacts on him and are said to have been the start of his descent into anti-social behaviours.

21․These behaviours include that he [redacted] and he associated with the “wrong crowd” at school, leading to him to cease schooling with a Year 10 certificate.

22․He began a descent into illicit substance abuse, with cannabis at 14 years of age, alcohol at 16 years of age, and methamphetamine at 17 years of age. His substance abuse escalated after he sustained a back injury in 2012, with abuse of prescription medications, and then methamphetamine and opioid use.

23․In the context of this substance abuse, Mr Baudinette has engaged in criminal offending for much of his adult life. This has involved offences of burglary, theft, assault and driving offences. He has spent periods in custody from when he was 30 years of age: R v Baudinette [2014] ACTSC 155. At that time, when sentenced by Burns J in 2014, it was said (at [15], [19], [20]):

It is quite clear that there is a connection between your drug abuse and your criminal offending. …

You have failed to demonstrate a consistent commitment to addressing your drug addiction, without which I am satisfied that you are of significant risk of reoffending.

I am satisfied that you still have reasonable prospects for rehabilitation but only if you address your drug addiction. Unfortunately, you have demonstrated unwillingness at this time to address your drug addiction whilst you were in the community.

24․After serving that sentence, Mr Baudinette returned to a life that included substance abuse, criminal offending, and further periods in custody. The offending has included two offences of possessing a knife without reasonable excuse, with the most recent of those resulting in a sentence of imprisonment to the rising of the court in 2022.

25․The most recent sentence imposed on Mr Baudinette was for offending related to the theft of vehicles, trespassing on Commonwealth premises, and defacing public property committed in September 2022. An intensive correction order was imposed (see below at [43]).

26․Despite his substance abuse and criminal offending, Mr Baudinette has had periods of successful engagement with employment. He completed a masonry apprenticeship and obtained a Certificate II in Construction. He operates as a sole trader and has worked in the construction industry, including as a bricklayer. His longest period of consistent employment was approximately 10 years, but Mr Baudinette reflects that his employment has been greatly impacted by his drug dependency and multiple periods of incarceration.

27․Mr Baudinette has the support of his mother, and positive relationships with his father and younger brother. He has had a long-term relationship for approximately 20 years, that has been ‘on and off’ due to his poor behaviour. Mr Baudinette’s partner has provided a letter of support for him to the Court. She describes that she is here to support him and is hopeful for the future.

28․Mr Baudinette and his partner share an 18-year-old daughter, of whom he is significantly proud. Mr Baudinette has expressed insight as to his substance abuse having greatly impacted his partner and daughter. His daughter confirms that they have a close relationship, however, she desires to see him change and create a positive, crime and drug free life for himself.

29․Mr Baudinette does not have any diagnosed mental health conditions, but he reports having experienced anxiety and depression. He is currently prescribed with anti-depressant medication while in custody, which has been beneficial. He is also prescribed with Buvidal to treat his opioid dependence, a treatment that Mr Baudinette has described as “life changing”.

30․He requires ongoing physiotherapy for a shoulder injury sustained while in custody, and he anticipates requiring further medical support for this in the community.

Other relevant sentencing considerations

31․The maximum penalty for the offence of aggravated robbery is 25 years imprisonment and/ or 2500 penalty units. The maximum penalty for the transferred charge of possessing a knife without reasonable excuse is 6 months imprisonment and/ or 10 penalty units.

32․The possess knife offence is a distinct act from the aggravated robbery offence. The totality principle is informative in determining the individual sentences and the overall sentence to be imposed.

33․It is appropriate in this matter to consider each offence quite distinctly as differing sentencing considerations arise, albeit both were committed in a context of substance abuse.

Plea of guilty and remorse: ss 33(1)(j), 33(1)(w) and 35 Sentencing Act

34․In relation to both offences, Mr Baudinette pleaded guilty at a late mention stage in the Magistrates Court and was committed for sentence to the Supreme Court for the purposes of appearing in the Drug and Alcohol Sentencing List.

35․While the plea of guilty was at a relatively later stage, it is one that still carries significant utilitarian value as a plea of not guilty was never entered. That is, a brief of evidence was not required, nor was a hearing date ever set. It is apparent that the plea of guilty came to be indicated in advance of it being entered. I am satisfied that a discount in the order of twenty five percent is appropriate.

36․Mr Baudinette expressed that he felt embarrassed, ashamed, and guilty after watching the footage from the offending. He reflected to Community Corrections that “there was no need” for his behaviour and recognised that his actions impacted an innocent member of the community who was “just working in his job”. ACT Health Services report that Mr Baudinette reflected that his behaviour only “reinforces that I need to get a handle on it, before I get any older”.

37․Community Corrections describe Mr Baudinette as accepting “responsibility for his actions, demonstrat[ing] remorse for his commission of the offences, and provid[ing] insight in terms of how his behaviour had impacted others. In a letter Mr Baudinette provided to the court, he also demonstrates this, expressing that he would “like to acknowledge the seriousness of the charges I’m facing and the distress that must have caused to the people involved”.

Pre-sentence custody: s 63 Sentencing Act

38․Mr Baudinette was remanded in custody from his arrest on 13 August 2023, but then began serving a period of imprisonment relating to a breach of an intensive correction order on 15 August 2023 (see below at [45]). From 17 October 2023, he has remained in custody in relation to these charges. A total of 222 days is to be taken into account as time held in custody solely in relation to these offences.

Current sentencing practice: s 33(1)(za) Sentencing Act

39․Informative as to the appropriate sentence is current sentencing practice. Recently, Mossop J in DPP v Smith [2024] ACTSC 99 at [36] observed Barrett v The Queen [2016] ACTCA 38 at [40] and said, “for aggravated robbery, where there was a plea of guilty, most sentences were in the range of 30 months to 4 years”.

40․On behalf of Mr Baudinette, it was submitted that the Court should consider what was said by Refshauge AJ in R v Campbell [2021] ACTSC 359 at [50] (Campbell). This provides to the effect that while a common sentence for aggravated robbery is three years imprisonment, this is not a mandatory sentence, and a number of decisions have involved lesser or longer terms of imprisonment. In Campbell, his Honour considered a number of authorities and observed that sentences from two years imprisonment have been imposed.

41․These authorities, and the authorities considered therein that inform an apparent range, do reveal the limitations of reliance on other authorities. None of them provides identical, or largely similar, factual or subjective circumstances. They do though suggest that the aggravated robbery offending here is towards the lower end of objective seriousness for this type of offence.

Parity

42․The application of the parity principle does not arise. The prosecution informed the Court that the proceedings against the other male offender remain to be finalised in the Magistrates Court, and the proceedings against the female person were discontinued.

Intensive Correction Order

43․On 17 April 2023, Mr Baudinette was sentenced for the offences as outlined above at [25]. A term of six months imprisonment was imposed to be served by way of an intensive correction order (ICO). The conditions of the ICO included a curfew condition.

44․The offences now the subject of sentence were committed four months into the ICO. In addition, the information provided to the Court includes that on 1 and 5 August 2023, Mr Baudinette was not present at his home during the period of the curfew when a check was done by police.

45․It is apparent that on the material provided to the Court that the Sentence Administration Board (Board) addressed the apparent breach of the curfew condition. On 15 August 2023, the Board cancelled the ICO on the basis of unsatisfactory compliance with the conditions of the order. Mr Baudinette was ordered to return to custody to serve a period of two months and two days imprisonment.

46․The action taken by the Board did not address the breach of the order by way of the reoffending. The relevant portions of s 65 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) provide –

(1)This section applies if, after an offender was sentenced to serve intensive correction, the offender commits, and is convicted or found guilty of –

(a)an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment;

…

(2)The sentencing court must, as soon as practicable –

(a)cancel the intensive correction order, unless cancellation is not in the interests of justice; and

(b)if the court cancels the intensive correction order – order that the remainder of the offender’s sentence to be served by full-time detention.

47․The section is clear that the circumstances here require this Court to proceed in accordance with s 65(2). The difficulty with that though is that the ICO has already been cancelled on grounds separate from the reoffending. Further to that, but for this cancellation, the order would otherwise have been completed had it been served to the expiry date. Section 79 of the Sentence Administration Act provides that the court retains a power to act in accordance with s 65, but it is not clear what, if any, action the court can or should take in the current circumstances.

48․The parties assisted with a number of authorities: DPP v Dunn [2022] ACTSC 355 (Dunn) and DPP v McIntosh (No 3) [2022] ACTSC 348 (McIntosh). In addition, R v XXL [2022] ACTSC 24, and the authorities cited therein, has considered an issue of this type.

49․While helpful, none of these authorities have dealt with a circumstance where the cancellation was one ordered by the Board prior to the sentence and ICO breach proceeding, and where the term of the ICO has since passed. However, the circumstance that the order has already expired, and what an appropriate order is in such a circumstance, is analogous.

50․The parties were in agreement that it is appropriate to proceed in the manner as occurred in McIntosh and Dunn. That is, that while s 65 is enlivened, and the court can proceed to cancel an order previously cancelled by the Board, it is generally not in the interests of justice within the meaning of s 65(2)(a) to cancel an ICO that has already expired.

51․I agree with the parties. While I am satisfied that a breach by reoffending in the course of the ICO occurred, I am not satisfied that it is in the interests of justice to cancel the order. No further orders are required. The fact that Mr Baudinette committed the offences while he was, at the time of the offending, subject to an ICO, will though inform the determination as to the appropriate sentence.

52․I also agree with what has been said in other decisions of this court that have considered the apparent anomalies in these provisions that there are matters for the legislature to address: see, e.g., R v Folauhola (No 2) [2024] ATSC 87 at [15] (McWilliam J) and Dunn at [61] (Mossop J).

Consideration

53․Mr Baudinette squandered the opportunity afforded to him with the ICO. While the breach offending occurred towards the end of the order, his compliance otherwise was not entirely satisfactory, and the breach offending was of a serious nature. This level of
non-compliance does not bode well for his ability to comply with a community based sentence order.

54․In relation to both offences, I am satisfied that no other penalty other than imprisonment is appropriate. This was conceded on Mr Baudinette’s behalf in respect to the aggravated robbery offence.

55․In relation to the possession of a knife offence, it was submitted that a penalty other than imprisonment is appropriate, but if the Court considered otherwise, the term of imprisonment be one of the rising of the court. I do not agree. Mr Baudinette’s criminal history does not entitle him to any leniency, and a strongly deterrence sentence and one that denounces this conduct is plainly warranted. A short period of full-time imprisonment will be imposed.

56․Similarly, a strongly deterrent sentence is warranted in respect to the aggravated robbery offence. It demonstrates an escalation in the type of criminal offending by Mr Baudinette and it must be understood by him, and other like-minded individuals, that not insignificant periods of imprisonment will be imposed for such behaviour. A sentence that otherwise reflects all of the purposes of sentencing is required: s 7 of the Sentencing Act. I have determined that a period of two years and four months imprisonment, prior to the application of the plea of guilty discount, is appropriate.

Drug and Alcohol Treatment Order

57․Mr Baudinette seeks that any term of imprisonment be served by way of a Drug and Alcohol Treatment Order. On his behalf, it was submitted that this would provide an opportunity for him to break the cycle of risk factors that lead to his offending behaviour.

58․Mr Baudinette expresses a preference that any Treatment Order be by way of a day program, but he understands that a more rigid form of program is likely necessary. He expresses a preference that this be with the Arcadia program, given that it is reasonably restrictive, and he considers it the most beneficial of those he has previously attended. Upon his release from a residential program, he has available to him suitable housing with his partner and daughter.

Eligibility for Treatment Order: ss 12A and 80S Sentencing Act

59․In relation to the aggravated robbery offence, the term of imprisonment to be imposed, which followed a plea of guilty and is being imposed in circumstances where Mr Baudinette will not be subject to a sentencing order for another offence, is such that Mr Baudinette is eligible for a Treatment Order: s 12A of the Sentencing Act.

60․Before his most current remand, and at the time of the offending, Mr Baudinette was engaged in daily methamphetamine and unprescribed medication use. He has insight that this combination of substances was dangerous. He describes that it caused him to lose control and engage in “ridiculous affairs” which were “out of character”. Urinalysis tests were positive for illicit substances around the time of the offending the subject of sentence.

61․I am satisfied that Mr Baudinette is dependent on a controlled drug and his dependency substantially contributed to the commission of the offence: s 12A(2)(a)(i) and (ii) of the Sentencing Act. I am also satisfied that Mr Baudinette will live in the ACT for the term of the sentence except as directed by the court: s 12A(2)(a)(iii) of the Sentencing Act.

62․Mr Baudinette has given informed consent to the order as required by s 12A(2)(c) of the Sentencing Act.

Suitability for Treatment Order: s 80T Sentencing Act

63․Mr Baudinette has had many previous opportunities to engage in rehabilitation. This includes the Solaris Therapeutic Communities Program while in custody, and day programs with Arcadia, Matrix and Canberra Recovery Hub. As already observed, he squandered his most recent opportunity for this with the ICO, and his criminal history reveals that he has squandered previous similar opportunities.

64․There must be great hesitation in providing a further opportunity for a community based and rehabilitative focused sentence order for Mr Baudinette. To do so comes with a concerning risk that he will once again not embrace the opportunity, and that there will be further offending behaviour.

65․He is assessed as being of a high risk of general offending. The risk factors that lead to this conclusion are his significant criminal record, drug dependency, anti-social companions, unemployment, and mental health concerns.

66․Community Corrections find that Mr Baudinette is not suitable for a Treatment Order, with reference to these risk factors and that there has been previous substantial
non-compliance with previous court orders. Community Corrections emphasise that there is a significant possibility of reoffending and/ or failure to comply with a community based order.

67․These concerns are entirely understandable and have caused a hesitation in the decision to make a Treatment Order for Mr Baudinette. I have also though considered that if this Court were not to provide a further opportunity for rehabilitation, this is reflective of a notion that there are people for whom growth and change is not achievable. Human experience and knowledge suggest otherwise. As does the experience and knowledge of the Drug and Alcohol Sentencing List.

68․Many participants who had previously not achieved rehabilitation, have been able to do so with the comprehensive supports available through a Drug and Alcohol Treatment Order. A Drug and Alcohol Treatment Order is designed to comprehensively address the very risk factors that arise for Mr Baudinette. This is reflected in the objects of a Treatment Order (see s 80O of the Sentencing Act) and in the Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) to the introduction of this form of sentence order –

[Drug and Alcohol Courts] deal with offences that relate to serious drug and alcohol use. They provide a unique response to a group of high risk and high need offenders who have serious issues with drug and/ or alcohol use. They aim to achieve long-term behavioural change by taking a problem-solving approach to dealing with an offender’s behaviour, and support the development of a pro-social lifestyle. [Drug and Alcohol Courts] provide targeted and structured health and justice while holding the person accountable for their offences.

69․I also observe that Mr Baudinette does demonstrate a capability to not engage with substance misuse, with periods of abstinence during his adolescence while he was engaged in a masonry apprenticeship, and while engaged with employment as an adult. While subject to community corrections orders, Mr Baudinette has returned negative results from testing for illicit substances between April and July 2023, and then again while in custody in January 2024.

70․The oft cited words of French CJ in Hogan v Hinch (2011) 243 CLR 506 at 537 that “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest” are applicable here. The prosecution relied on this in not opposing the imposition of a Treatment Order, with it submitted that the purposes of sentencing and the circumstances of this matter lead to such a conclusion provided that the order requires direct release to a residential rehabilitation program. The prosecution did though emphasise that this must be regarded as a “final opportunity”.

71․Community Corrections do provide that if sentenced to a Treatment Order, Mr Baudinette would benefit most from attending and completing a residential rehabilitation program. This would provide the supervision and structure necessary to address his drug dependency and support his transition back into the community. Community Corrections also recommended a curfew condition, and that Mr Baudinette must not possess a knife or weapon in a public place.

72․ACT Health Services, who found Mr Baudinette to be suitable for a Treatment Order, also recommend that a residential rehabilitation program is appropriate. It is described as the mechanism by which Mr Baudinette will have the “optimal chance for successful recovery, community reintegration, and reestablishment of full-time employment in a substance-free capacity”. ACT Health Services have confirmed Arcadia House Residential Program have availability for Mr Baudinette from the date of sentence.

73․Mr Baudinette has expressed, in both the assessment process and a letter addressed to the Court, a strong desire to be sentenced to a Treatment Order, recognising that this was his final chance to rehabilitate, address his long-standing drug addiction, and create a crime and drug free life for himself. He wants to be present for his family, describing that he “need[s] to help and support them”. He also expresses a strong desire to re-enter full-time employment.

74․Importantly, Mr Baudinette also demonstrates insight into the challenges he faces in transitioning back into the community. He has set out a post release plan as to how he intends to address these challenges. Mr Baudinette describes understanding of what a Treatment Order involves and anticipates that with the level of drug testing and support available he will be able to address his problems honestly without hiding, running away, and letting them build up until they are out of control.

Determination

75․I consider that a Treatment Order is appropriate, having taken into account the relevant sentencing considerations that apply to Mr Baudinette, that there is no information as to concerns of a victim about their safety or welfare, and the objects of a Treatment Order: s 12A(2)(b) of the Sentencing Act.

76․I am satisfied that Mr Baudinette is both eligible and suitable for a Treatment Order:
ss 80S, 80T of the Sentencing Act. The remaining term of imprisonment to be served will be suspended for the purposes of a Treatment Order.

77․Mr Baudinette must understand though that this is what should be regarded as the last opportunity. As much as it has been said that everyone is capable of rehabilitation, there is also a limit to the patience and tolerance of the community, and the court – and I expect his partner and daughter – for such opportunities to be afforded. If Mr Baudinette does not embrace the opportunity on this occasion, he can expect the suspended portion of the sentence of imprisonment will be imposed.

Orders

78․For those reasons the following orders are made:

(1)Alexander John Baudinette be convicted of possess knife without reasonable excuse (CAN 8003/2023) and he be sentenced to 1 month imprisonment, reduced from 40 days on account of the plea of guilty, to commence on 14 October 2023 and end on 13 November 2023.

(2)Alexander John Baudinette be convicted of joint commission aggravated robbery (CAN 10617/2023) and he be sentenced to 1 year 9 months imprisonment, reduced from 28 months on account of the plea of guilty, to commence on 14 November 2023 and end on 13 August 2025.

(3)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Alexander John Baudinette in respect of the eligible offence of joint commission aggravated robbery (CAN 10617/2023, of which Alexander John Baudinette has been convicted and for which he has been sentenced for a total term of 1 year 9 months imprisonment.

(4)It be noted that conviction and sentence imposed for the eligible offence have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.

(5)The Drug and Alcohol Treatment Order be for 1 year 2 months 24 days from today, 21 May 2024, to 13 August 2025.

(6)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 12 months from today, 21 May 2024, to 20 May 2025.

(7)The Custodial Part of the Drug and Alcohol Treatment Order for the eligible offence here be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 21 May 2024, until 13 August 2025.

(8)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Alexander John Baudinette be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 21 May 2025, until the end of the total sentence, 13 August 2025, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.

(9)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:

(a)The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;

(b)Alexander John Baudinette undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time;

(c)Alexander John Baudinette travel directly on release from custody to admit himself into the residential drug and rehabilitation program conducted by Directions Health Service (Arcadia House) at Level 6, Cosmopolitan Building, Woden Square, 21 Bowes Street, Woden and remain there until he has completed the program;

(d)Alexander John Baudinette obey all reasonable directions of the person in charge of the program at Directions Health (Arcadia House) and the facility and comply with all the rules and obligations of the program and the facility;

(e)Should Alexander John Baudinette leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed;

(f)Alexander John Baudinette not possess a knife or weapon in a public place;

(g)Alexander John Baudinette not return a positive test sample under alcohol and drug testing;

(h)Alexander John Baudinette not consume or use alcohol, cannabis, illicit drugs and prescription drugs not prescribed to him; and

(i)Alexander John Baudinette comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.

(10)Alexander John Baudinette be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force before he leaves the Court precincts.

(11)Alexander John Baudinette be directed to appear in person or via electronic means in Court on Tuesday 28 May 2024 at 11:30am.

[Her Honour then spoke directly to the offender:]

Mr Baudinette, that is a lot of legal words. What it means in essence is that you have been sentenced to a total period of one year and 10 months imprisonment. The sentence in respect to the possession of the knife has already been served. That was for a period of one month.

The additional part of the sentence, one year and nine months, relates to the aggravated robbery. You are to serve part of that sentence by way of a Treatment Order, and that will be for a period of 12 months. After that period of 12 months, you will be on a good behaviour order until the end of the sentence order. So that is approximately two and a half months until the sentence concludes.

That period of the Treatment Order is quite short in the scheme of how long rehabilitation can take. But I have considered all of the material, and despite the challenges you have had in the community in the past and your transition from custody, you strike me as someone who can do this. You have made that commitment to wanting to change your life at this point, and this is your opportunity to do that.

I think you recognise that this is your final opportunity. You will have hanging over your head the one year and nine months imprisonment.

If you do not commit and embrace this opportunity for rehabilitation, you can expect that the Court will impose that period of time and you will be back in custody for a lengthy period. No one here wants to see that happen. There is going to be a team of people who will be available to work with you, and that includes the Court.

You will be coming to see us regularly. What we ask of you is to do your best efforts under the rehabilitation but also to be honest. If things are not working for you, if there are slip-ups, tell us about them. The team is there to support you through this journey. It is going to be harder than sitting in prison.

[Mr Baudinette sought clarity as to the residential rehabilitation component of the order]

All the information before me suggests that residential rehabilitation is your best opportunity at this point. You have tried day programs in the past and it has not worked. I know you are probably keen to get home with your partner and your daughter, but what we are asking you to do at this point is to really focus on your recovery and focus on yourself, and residential rehabilitation gives you that opportunity to do it. If there are difficulties, talk to the treatment team.

It is unlikely that things work in the sense that it is one chance, and you are out and back to custody, but it can be that way. It really depends on you and how much commitment you are putting into it and how much you're communicating.

So make sure you are talking to people if there are struggles, or if you are having difficulties with the program or with the residential side of it, talk to people. That is the best way you can deal with that. So, at this point, see it as it is – residential rehabilitation for the next 12 weeks at [redacted]. It is not forever. So lean into it, commit to it, keep in touch with everyone in the team, and I look forward to seeing how you go.

I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen

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