Director of Public Prosecutions v Hagan (No 2)
[2025] ACTSC 468
•17 October 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Hagan (No 2) | |
Citation: | [2025] ACTSC 468 | |
Hearing Date: | 17 October 2025 | |
Decision Date: | 17 October 2025 | |
Before: | McWilliam J | |
Decision: | Drug and Alcohol Treatment Order cancelled, offender resentenced. | |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCE LIST – cancellation application – whether offender unwilling or unlikely to comply with conditions of treatment order – whether continuation of treatment and supervision component of treatment order unlikely to achieve the objects of the order – treatment order cancelled – offender resentenced | |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33, 80ZE, 80ZH | |
Cases Cited: | DPP v Hagan [2024] ACTSC 257 DPP v Lock (No 2) [2025] ACTSC 281 | |
Parties: | Director of Public Prosecutions Matthew Scott Hagan ( Offender) | |
Representation: | Counsel J Churchill ( DPP) E Small ( Offender) | |
| Solicitors ACT Director of Public Prosecutions Legal Aid (ACT) ( Offender) | ||
File Numbers: | SCC 91 of 2024 SCC 92 of 2024 | |
McWILLIAM J:
Matthew Hagan (the participant) was sentenced on 19 August 2024 for a series of offences involving the lighting of fires in a suburban area in October 2023. A total effective term of imprisonment of 2 years was imposed: DPP v Hagan [2024] ACTSC 257 (Hagan).
In order to take account of the time the participant had already spent in custody referrable to the offending, the sentence was backdated to commence on 25 October 2023 and end on 24 October 2025: Hagan at [43], [58]. A Drug and Alcohol Treatment Order was then imposed for the remainder of the sentence, pursuant to s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), from 19 August 2024 to 24 October 2025, being a period of 1 year, 2 months and 6 days (Treatment Order): Hagan at [58]. While the Treatment Order was in place, the custodial part of the participant’s sentence was suspended.
Under a Drug and Alcohol Treatment Order, there are various treatment pathways. Generally, a participant will start in residential rehabilitation for a period of three to four months before transitioning to the community and continuing on a day program offered by a number of service providers. Alternatively, it may be considered appropriate that the participant commence treatment under a day program from the outset. Again, the reasons why that might be considered appropriate vary. It may be that the offender has just completed a substantially equivalent program while in custody, or it may be that the participant’s personal circumstances mean that residential rehabilitation would be counter-productive (for example, if they were to lose access to stable accommodation and become homeless).
In this case, at the time that Christensen AJ imposed the Treatment Order, there was a known issue about this participant. Although the nature of his offences (akin to arson) did not exclude him from eligibility (only offences involving “serious violence” or sexual offences are excluded under s 12A of the Sentencing Act), they did exclude him from participation through residential rehabilitation. Christensen AJ stated the following at [56]:
In determining the suitability of such an order, I have had regard to the prosecution submission that it is unlikely that Mr Hagan would, if an escalation of treatment options became necessary, be eligible for a residential rehabilitation program given the nature of his offending. I am satisfied that appropriate arrangements for the administration of a treatment order remain practicable in the circumstances: s 80S(c) Sentencing Act. The current recommendations are such that residential rehabilitation is not envisaged as necessary. In the event it was to become so, cancellationof the order may be considered: 80ZE Sentencing Act.
What her Honour contemplated has come to fruition.
Application for cancellation
By Application in Proceeding filed in Court on 9 September 2025 (but foreshadowed a little over a week before that date), the prosecution has applied under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) to cancel the Treatment Order on two grounds:
(a)The participant is unwilling or unlikely to comply with a condition of the Treatment Order; or
(b)The continuation of the treatment and supervision part of the Treatment Order is not likely to achieve the objects of the order.
The Court’s power to cancel a Drug and Alcohol Treatment Order
The discretion that is enlivened by the prosecution’s application is that prescribed by s 80ZE of the Act. Section 80ZE(1) is in the following terms (emphasis added):
(1)The court may cancel a treatment order if it is satisfied on the balance of probabilities that—
(a)before the order was made, inaccurate or misleading information about the offender or the offender's circumstances was given to the court or an assessor who prepared a drug and alcohol treatment assessment in relation to the offender, and as a result of the information, the making of the order was inappropriate; or
(b)the offender will not be able to comply with a condition of the offender's treatment order because the circumstances of the offender have materially changed since the order was made; or
(c)the offender is unwilling or unlikely to comply with a condition of the offender's treatment order; or
(d)the continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order; or
(e)the offender withdraws the offender's consent to the treatment order; or
(f)the offender poses an unacceptable risk to the safety or welfare of a person.
It can be seen that the application in the present case was brought under paragraphs (c) and (d) of the section.
Should the Treatment Order imposed in respect of the participant be cancelled?
The participant ultimately accepted that the criteria emphasised above were satisfied. Based on the history briefly described above, I am satisfied on the balance of probabilities that in all the circumstances, cancellation of the Treatment Order is appropriate.
The participant should be resentenced
The consequences of the decision to cancel the Treatment Order are set out in s 80ZE(2) of the Sentencing Act, which provides as follows:
(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).
As the words of the section make clear, the Court has two options: the first is to impose the sentence of imprisonment that was originally imposed under the custodial part of the treatment order. The second is to resentence the offender. This is a discretionary decision which depends on each participant’s circumstances.
Here, it is appropriate in the circumstances to resentence the participant for each offence in relation to which the Treatment Order was made because:
(a)The participant still has reasonable prospects of achieving the underlying objective of the Treatment Order, but just not within the time now available on the order.
(b)The participant has been accepted into a rehabilitative day program and has not been convicted of further offences while attempting to rehabilitate under the Treatment Order.
(c)The prosecution properly did not seek that further time in custody was warranted to give effect to the sentencing considerations under ss 7 and 33 of the Sentencing Act.
Since the Treatment Order was made, the participant has spent further time in custody which will also be taken into account by way of backdating. The participant's counsel relied upon the decision of DPP v Lock (No 2) [2025] ACTSC 281 where Christensen AJ took into account all the time that had been spent in custody while the participant was on the treatment order, including time when the participant was working off points that had been sanctioned as part of the administration of the order.
The discretion of the court to take into account time served in custody is a broad one and it is not the case that the court must take into account any time served in custody on a day-for-day basis. In this case, the circumstances are such that I consider 10 days in custody should be taken into account by way of backdating because those days were not referrable to the participant working off points. I was not persuaded that the circumstances here justified taking into account additional time spent, because such time was expressly referrable to accommodating the system of sanctions that operates by way of administration of the Treatment Order. This is not to be taken as fettering the discretion of any judge in subsequent cases; it is just what I consider to be appropriate in the circumstances applying to Mr Hagan.
Otherwise, I will adopt the objective and subjective sentencing considerations discussed by Christensen AJ in the earlier decision of Hagan.
Orders
The orders of the Court are:
(1)A review of the drug and alcohol treatment order made on 19 August 2024 is conducted pursuant to s 80ZH of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
(2)Pursuant to s 80ZE(1)(c) and (d) of the Sentencing Act, the drug and alcohol treatment order made on 19 August 2024 is cancelled.
(3)Pursuant to s 80ZE(2)(b) of the Sentencing Act, Matthew Scott Hagan is resentenced.
(4)The conviction for the offence of cause a bush fire (CAN 67/2024) is confirmed, and the sentence of 14 months and 6 days’ imprisonment (reduced from 18 months on account of his guilty plea) is imposed and backdated to commence on 7 October 2025 and end on 12 December 2026.
(5)The sentence is to be suspended immediately, upon the offender entering into a good behaviour order for a period of 14 months from 17 October 2025 to 16 December 2026 with the following conditions:
(a)The core conditions under ss 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT);
(b)Pursuant to ss 13(4)(g) and 95 of the Sentencing Act, a probation condition (as defined in the Sentencing Act) including that:
(i)The offender report to ACT Corrective Services on or before 4:00pm on Monday 20 October 2025.
(ii)Thereafter, the offender is to submit to the supervision of the Director-General responsible for administering the sentence or their delegate, for as long as deemed necessary, including to comply with any reasonable directions targeted at supporting the offender’s rehabilitation, including abstention from controlled substances, such as urinalysis.
(iii)Any urine analysis tests that the offender is directed to provide are to return a negative result for illicit substances.
(c)Pursuant to s 13(4)(c) of the Sentencing Act, the offender is to complete the CRH day program or such other rehabilitation program as is directed by the Director-General responsible for administering the sentence or their delegate for as long as deemed necessary.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: |
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