Director of Public Prosecutions v Eichmann (No 3)
[2025] ACTSC 258
•19 June 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Eichmann (No 3) |
Citation: | [2025] ACTSC 258 |
Hearing Dates: | 12 March 2025; 10 June 2025 |
Decision Date: | 19 June 2025 |
Before: | Christensen AJ |
Decision: | See [38] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and punishment – Sentence – treatment order previously cancelled pursuant to s 80ZE – imposition or resentence – consideration of compliance with drug and alcohol treatment order – further offending while on treatment order – theft by way of joint commission – suspended sentence not appropriate – deterrent effect of parole period necessary –offender intends to move back to Queensland upon release to continue rehabilitation – family support and prosocial environment available – early release on parole with recommendation to facilitate continued rehabilitation in Queensland – lengthy period of supervision in the community |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 63, 80ZE |
Cases Cited: | DPP v Eichmann (Supreme Court of the Australian Capital Territory, Refshauge AJ, 21 November 2023) |
Parties: | Director of Public Prosecutions (DPP) Kiran James Eichmann (Offender) |
Representation: | Counsel G Meikle (DPP) C Duffy (Offender) |
| Solicitors ACT Director of Public Prosecutions (DPP) Legal Aid ACT (Offender) | |
File Number: | SCC 338 of 2022, SCC 339 of 2022, SCC 241 of 2023, SCC 148 of 2025 |
CHRISTENSEN AJ:
Introduction
1․Kiran Eichmann is to be sentenced in the finalisation of a review following a cancellation of his drug and alcohol treatment order (treatment order).
2․The circumstances of his cancellation were particularly disappointing given the opportunity that Mr Eichmann was afforded following his initial noncompliance with the treatment order. The extent of this disappointment for the Court, the treatment team, and importantly, the community, is compounded by the fact that Mr Eichmann’s
noncompliance extended to further offending.3․He has since been sentenced for much of that further offending in the Magistrates Court. One charge remains to be considered, and it was committed to the Supreme Court for sentencing. In addition, the Supreme Court is to now consider what is to occur with respect to the treatment order that was cancelled.
Background
4․On 21 November 2023 Mr Eichmann was sentenced with respect to offences of aggravated robbery, driving offending, and possessing an offensive weapon with intent. This was offending that occurred in May and July 2022. He was sentenced to a total term of 4 years and 1 month imprisonment. A two month period of pre-sentence custody was applied to an offence of driving while disqualified as a repeat offender (CAN 6666/2022) and this sentence was regarded as served. The remainder of the sentence, being a period of 3 years, 11 months, and 1 day, was suspended for the purposes of a treatment order: DPP v Eichmann (Supreme Court of the Australian Capital Territory, Refshauge AJ, 21 November 2023). The entirety of that sentence order was to be completed by 21 October 2027.
5․Mr Eichmann initially engaged well with the order, however, this was not maintained, and he absconded. He went to Queensland and spent time engaging in further rehabilitation and being with family. After some eight months, he returned to the ACT and handed himself in. His progress with rehabilitation at that stage, and the accountability he demonstrated, led the Court to decline a cancellation application brought by the prosecution on 13 August 2024: DPP v Eichmann (No 2) [2024] ACTSC 260.
6․Essentially, Mr Eichmann was afforded a further opportunity for rehabilitation under the treatment order. He again demonstrated positive compliance initially and was engaging with a residential rehabilitation program. However, this was, again, not maintained and Mr Eichmann, again, absconded. A warrant was issued for his arrest on 11 October 2024.
7․On 25 October 2024, Mr Eichmann was arrested on the warrant, and with respect to the further offending. The further offending involved unauthorised entry of a motor vehicle, make off without payment, and obstruct territory public official.
8․On 12 November 2024 the prosecution again applied for cancellation of the treatment order. This was not opposed by Mr Eichmann, in circumstances where there had been complete disengagement with the order and further offending. The treatment order was cancelled pursuant to s 80ZE(1)(e) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), that is, on a basis that continuation of the treatment and supervision part of the order was not likely to achieve the objects of the order.
9․On 3 June 2025, Mr Eichmann was sentenced in the Magistrates Court in relation to the summary offences committed in October 2024. He was convicted and fined a total of $2,800.00 with no time to pay.
Sentence matter
10․The offence the subject of sentence is one of theft by way of joint commission contrary to s 308 of the Criminal Code 2002 (ACT) (Criminal Code). The offence carries a maximum penalty of 10 years imprisonment, 1000 penalty units, or both.
11․The offending involves the theft of seven electrical items including drones and vacuum cleaners valued at a total of $2809.85. On 24 October 2024 at about 5:18pm, Mr Eichmann and a co-offender entered the Jaycar store in Tuggeranong and took the electronic items from the shelves. They then walked out of the store without making payment.
12․Mr Eichmann was located by police in the afternoon of the following day. The stolen property was recovered from the vehicle he was located in. The circumstances of Mr Eichman’s detection by police led to Mr Eichmann being charged with the offences that were sentenced in the Magistrates Court. I accept, as submitted on his behalf, that the totality principle is of application in that all of the offending in this period was in the nature of a ‘crime spree’.
13․The co-offender has not yet been sentenced.
14․It was unsophisticated offending. Relative to the scope of offending that falls within an offence contrary to s 308 of the Criminal Code, which carries a significant maximum penalty, it was not a serious offence. It was essentially an offence of shoplifting. Nonetheless, shoplifting is a type of offence that warrants deterrence, and this was a serious example of shoplifting given the number of items and financial value of the property stolen. I am satisfied that only a term of imprisonment is appropriate. This is particularly so given Mr Eichmann committed this offence while on conditional liberty, that is, subject to the treatment order, which is an aggravating factor on sentence.
15․Mr Eichmann pleaded guilty to this offence in the Magistrates Court after an initial plea of not guilty. The matter was listed for hearing, and he indicated a plea of guilty in advance of the hearing. I regard a reduction in the range of 20 per cent to be appropriate.
Imposition or resentence?
16․As to the offences the subject of the treatment order, the Court is to now finalise the review and determine whether to impose or re-sentence Mr Eichmann: s 80ZE(2) Sentencing Act.
17․On behalf of Mr Eichmann, resentence was sought. The prosecution did not press against this course, that is, for imposition of the sentences, having regard to the change of circumstances that have occurred since Mr Eichmann was originally sentenced and the periods spent in residential rehabilitation. I agree that in this matter that is plainly the only appropriate course.
Time in custody
18․During the course of the treatment order and following cancellation of the order, Mr Eichmann has spent the following periods in custody:
(a)2 August 2024 – 20 August 2024: 19 days
(b)2 September 2024 – 9 September 2024: 8 days
(c)25 October 2024 – 19 June 2025: 238 days
19․However, a period of 7 days during this period is attributable to the sentences imposed in the Magistrates Court. Accordingly, the total period of days spent in custody for the purposes of backdating the sentence per s 63 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is 258 days.
20․In addition, Mr Eichmann has spent a total of 85 days in residential rehabilitation during the course of the treatment order (21 November 2023 – 29 December 2023; 20 August 2024 – 2 September 2024; 9 September 2024 – 11 October 2024). The prosecution accepted that this could appropriately be regarded as ‘quasi custody’, but not be applied in a strict ‘day for day’ sense. In this matter, I consider it appropriate to take this period in ‘quasi-custody’ into account in determining the appropriate penalty with respect to the minor theft offence. This will result in only a nominal term of imprisonment being required to be served for that offence.
Resentence exercise
21․I have carefully considered the original remarks on sentence. I agree with the prosecution that the only appropriate sentences are ones of imprisonment, and that the appropriate terms are in the order of those previously imposed. I also agree with the manner in which the totality principle and the parity principle were applied previously.
22․In so concluding, as his Honour did, I have had regard to the impact on the victims of the offending. Particularly significant in that regard is the victims of the aggravated robbery. They were employees of a pharmacy who were exposed to Mr Eichmann holding a nail gun and a hammer, and to his co-offender holding a syringe.
23․However, I would regard the appropriate reductions for the pleas of guilty to be slightly different to those that were applied originally. The reductions previously applied were in the order of 16 per cent for the most serious offending.
24․Mr Eichmann initially pleaded not guilty to each of the offences, other than the obtaining property by deception charge, and then came to enter pleas of guilty after negotiations. The matters were then committed for sentence to the Supreme Court. I regard a reduction in the order of 20 per cent, with rounding as necessary, to be appropriate for those charges. As to the obtaining property by deception charge, a plea of guilty was entered at a mention stage in the Magistrates Court and then the matter was committed for sentence. A reduction in the order of 25 per cent is appropriate.
25․It warrants also observing that Mr Eichmann’s subjective circumstances have changed, although not to such an extent so as to alter the appropriate head sentences. Rather, this is informative as to when it is appropriate that Mr Eichmann becomes eligible for parole.
26․Since the original sentence decision, Mr Eichmann has engaged with rehabilitation programs. This was under both occasions during which he was subject to a treatment order, and also while he has most recently been in custody. He has not though successfully completed any such program, and he has not demonstrated an ability to achieve sustained abstinence or rehabilitation, at least while in the ACT.
27․Nonethless, Mr Eichmann expresses a strong motivation and intention to achieve rehabilitation. He expresses in a letter to the Court that he wants to be present for his aging parents, and to not be a person who hurts or scares others. He wants to be a positive contributing member of our community.
28․Mr Eichmann also demonstrates insight into his substance dependency challenges. As observed in the original sentence decision, Mr Eichmann commenced substance misuse from an early age. He explains in the letter to the Court that this led to methamphetamine use from when he was 19 years of age and that he “could never predict the detrimental impact [heavier drugs] would have” on him “until it was too late”. He describes having lost track of the amount of people that have been hurt, physically and psychologically, directly and indirectly, by his drug use and the things that he has done to maintain it. In 2018, he moved to Canberra and used heroin for the first time. He describes this changing everything and that he “didn’t care what [he] did or who [he] hurt to get on, as long as [he] got on”. He now feels shame and remorse for this.
29․Mr Eichmann’s early dependency on substances is informative as to his moral culpability in terms of his challenges in addressing his substance dependency. It is also though apparent that with Mr Eichmann now aged 35 years, and his having repeatedly failed to address his dependency, community protection is elevated in the resentence exercise.
Consideration
30․Recognising the prospects of rehabilitation, the prosecution was not heard against a sentence outcome that involved either a partial suspension of the sentence or an earlier eligibility for parole than might have otherwise been the case. In so recognising, I did not understand the prosecution to be ignoring that there has been significant
noncompliance with the treatment order, including further offending. The Court shares the prosecution’s concerns in this regard.31․However, the further offending was far from the same level of seriousness that Mr Eichmann was originally sentenced for. It also reflects, as the original sentence proceeding did, that Mr Eichmann’s core criminogenic risk is his substance dependency. Addressing this is the mechanism by which further offending will be prevented, and community protection achieved.
32․In the circumstances, I do not consider a partial suspension of the term of imprisonment is appropriate. Mr Eichmann has had a form of that opportunity with the treatment order, and he flouted it. The deterrent effect of a parole order is necessary.
33․The essential issue becomes consideration of Mr Eichmann’s prospects of rehabilitation to determine the appropriate period before he is eligible for parole. His noncompliance with the treatment order would appear detrimental to these prospects, as does Mr Eichmann’s apparent challenges in completing a rehabilitation program.
34․The consistent issue that has arisen for him in this regard is his challenge in maintaining abstinence while in the ACT. During the period he returned to Queensland, he achieved abstinence and developed prosocial associations. He achieved this to such an extent that his return to the ACT was done voluntarily with a view to taking accountability for having absconded. However, the challenge for him with serving a community based sentence in the ACT, being isolated from family and the prosocial associates that he had developed, again proved too difficult and Mr Eichmann lapsed into substance dependency and offending behaviour.
35․It is in Queensland that Mr Eichmann has the support network of his family, and the necessary distance from substance use associates in the ACT. The support network and prosocial environment in Queensland is something that is again available to him. So much so is borne out in correspondence from his parents and his aunt who speak of their support of him and their belief in his capability to address his substance dependency. He has previously demonstrated an ability to achieve rehabilitation in that jurisdiction, in an environment where he is not influenced by the negative associations he has in the ACT.
36․Mr Eichmann intends upon his release from custody to travel immediately from the Alexander Maconochie Centre to a point of departure to facilitate his return to Queensland. He has already made enquiries as to his ability to arrange for a transfer of any parole order to occur in preparation of release. He has a comprehensive relapse prevention plan that contemplates his goals upon release in Queensland. I am satisfied that on the available information, Mr Eichmann has every intention to immediately leave the ACT and return to Queensland in order to achieve rehabilitation.
37․Accordingly, his prospects of rehabilitation, of finally achieving abstinence and not engaging in further offending, are strong. This favours an early release on parole, on a date that will have the motivating factor of allowing him to be present in the community at a time that is typically important for families. An early release on parole will also enable a lengthy period of supervision once in the community to enforce his rehabilitative intentions. I will include in that parole order a recommendation that indicates the Court’s support for Mr Eichmann being facilitated to return immediately to Queensland upon release from custody.
Orders
38․For those reasons the following orders are made:
(1)Pursuant to s 80ZE(2)(b) of the Crimes (Sentencing) Act 2005 (ACT), Kiran James Eichmann is resentenced.
(2)The conviction of Kiran James Eichmann of fail to stop motor vehicle for police as a repeat offender (CAN 6665/2022) is confirmed, and he is sentenced to 4 months imprisonment, reduced from 5 months imprisonment on account of the plea of guilty, to commence on 4 October 2024 and end on 3 February 2025.
(3)The conviction of Kiran James Eichmann of aggravated robbery (CAN 6668/2022) is confirmed, and he is sentenced to 2 years, 1 month, and 18 days imprisonment, reduced from 32 months imprisonment on account of the plea of guilty, to commence on 4 February 2025 and end on 21 March 2027.
(4)The conviction of Kiran James Eichmann of ride/drive motor vehicle without consent (CAN 6670/2022) is confirmed, and he is sentenced to 9 months, 20 days imprisonment, reduced from 12 months imprisonment on account of the plea of guilty, to commence on 22 December 2026 and end on 11 October 2027.
(5)The conviction of Kiran James Eichmann of possess offensive weapon and disabling substances with intent (CAN 6669/2022) is confirmed, and he is sentenced to 2 months imprisonment, reduced from 3 months on account of the plea of guilty, to commence on 12 October 2027 and end on 11 December 2027.
(6)The conviction of Kiran James Eichmann of driver with prescribed drug in oral fluid (CAN 6667/2022) is confirmed, and he is sentenced to 1 month imprisonment, reduced from 40 days imprisonment on account of the plea of guilty, to commence on 12 November 2027 and end on 11 December 2027.
(7)The conviction of Kiran James Eichmann of obtain property by deception (CAN 5445/2023) is confirmed, and he is sentenced to 7 months, 15 days imprisonment, reduced from 10 months imprisonment on account of the plea of guilty, to commence on 12 December 2027 and end on 26 July 2028.
(8)On the charge of theft (CAN 10728/2024), Kiran James Eichmann is convicted and he is sentenced to the rising of the Court.
(9)The total sentence is 3 years, 9 months, and 23 days imprisonment, commencing on 4 October 2024 and ending on 26 July 2028.
(10)A nonparole period of 1 year, 1 month and 28 days is imposed to commence on 4 October 2024 and end on 1 December 2025.
(11)It is recommended to the Sentence Administration Board under s 120(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) that:
(a)When released on parole, Kiran James Eichmann be required as a condition of the parole to reside at a location in Queensland.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 25 June 2025 |
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