Director of Public Prosecutions v Higgins (a pseudonym)
[2024] ACTSC 225
•15 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Higgins (a pseudonym) |
Citation: | [2024] ACTSC 225 |
Hearing Date: | 11 July 2024 |
Decision Date: | 15 July 2024 |
Before: | Hopkins AJ |
Decision: | See [84]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – unauthorised possession of prohibited firearm – driving while right to drive suspended damage property – minor theft – offending while on conditional liberty – assistance to law enforcement authorities – insight and remorse – Bugmy principles – Drug and Alcohol Treatment Order Assessment – previous unsuccessful attempts at rehabilitation – nonlinear path for rehabilitation – Drug and Alcohol Treatment Order imposed |
Legislation Cited: | Crimes (Restorative Justice) Act 2004 (ACT) Pt 6 Crimes (Sentencing) Act 2005 (ACT) ss 10, 12A, 36, 80O, 80S, 80T Criminal Code 2002 (ACT) ss 312, 321, 403 Firearms Act 1900 (ACT) ss 7, 42, sch 1 Road Transport (Driving Licensing) Act 1999 (ACT) s 31A Road Transport (Vehicle Registration) Act 1999 (ACT) s 18 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Taylor [2023] ACTSC 39 Hogan v Hinch [2011] HCA; 243 CLR 506 O’Brien v The Queen [2015] ACTCA 47 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Cartwright (1989) 17 NSWLR 243 R v Hagen [2022] ACTSC 362 R v Henry [1999] NSWCCA 111; 46 NSWR 346 The Queen v Ngata [2015] ACTSC 356 Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 York v The Queen [2005] HCA 60; 225 CLR 466 |
Parties: | Director of Public Prosecutions ( Crown) Daniel Higgins (a pseudonym) ( Offender) |
Representation: | Counsel E Bayliss ( Crown) E Wallis ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 335 of 2023 SCC 336 of 2023 |
HOPKINS AJ:
Introduction
1․Daniel Higgins, you are to be sentenced for a significant number of offences, including offences of aggravated burglary, damage property and unauthorised possession of a prohibited firearm. These are serious offences. For this reason, a substantial term of imprisonment must be imposed upon you.
2․Because you are dependent on illicit substances and this dependency substantially contributed to your offending, and indeed your history of offending, you have asked that I make a Drug and Alcohol Treatment Order (Treatment Order). This would suspend the sentence of imprisonment and enable you to address your substance use dependency. It would enable you to work towards your rehabilitation in the community under strict supervision with intensive support.
3․You have spent significant periods of your life in prison as a consequence of a cycle of addiction and offending. To this point, your efforts at rehabilitation have been unsuccessful.
4․Despite this, I consider that you are ready to do the hard work required of you under a Treatment Order. I will impose a total sentence of two years and six months imprisonment, backdated to commence on 21 December 2023, and make an order suspending that sentence on condition that you engage in a treatment and supervision program for a period of 18 months. That treatment and supervision program will first require you to spend 12 months in a community based residential rehabilitation program.
5․I will now explain why this is the appropriate sentence and why it is appropriate for you to be given the opportunity to pursue your rehabilitation under a Treatment Order.
The offences
6․On 15 September 2015, you committed the offence of unauthorised possession of a prohibited firearm (CC 1224/2024), with a maximum penalty of 10 years imprisonment: s 42(a)(ii) of the Firearms Act 1900 (ACT) (Firearms Act).
7․On 26 April 2023, you committed the offences of driving while your right to drive was suspended (CAN 5158/2023), using an unregistered vehicle (CAN 5159/2023) and minor theft (CAN 5156/2023).
8․The driving offences each have a maximum penalty of a fine of $3,200: s 31A(1) of the Road Transport (Driver Licencing) Act 1999 (ACT) and s 18(a) of the Road Transport (Vehicle Registration) Act 1999 (ACT). The offence of minor theft has a maximum penalty of 6 months imprisonment: s 321 of the Criminal Code 2002 (ACT) (Criminal Code).
7a.On 27 April 2023, within a period of under three hours, in the company of an unknown offender, you committed three aggravated burglaries (CAN 4148/2023; CAN 4150/2023 and CAN 4151/2023), each with a maximum penalty of 20 years imprisonment: s 312 of the Criminal Code.
8a.During the same period, you committed a further offence of damage property (CAN 7432/2023), with a maximum penalty of 10 years imprisonment: s 403 of the Criminal Code.
9․For each offence where a term of imprisonment can be imposed, a fine can also be imposed in addition to or instead of imprisonment.
10․The facts of each offence, together with features relevant to the assessment of their seriousness, can be summarised as follows:
Unauthorised possession of a prohibited firearm – CC 1224/2024
11․At 8:40am on 15 September 2015, police attended your residence for the purposes of executing a search warrant. During the search, they located a loaded .22 magnum lever action firearm with the barrel and butt stock removed in a car at the property, as well as a bag containing ammunition.
12․Following your arrest, you admitted to ownership and told police that you had the firearm and ammunition for your protection.
13․The firearm was a prohibited firearm: s 7 and sch 1 of the Firearms Act. You did not hold a licence to possess it.
14․The firearm is not the most serious type of firearm that falls within the category of prohibited firearms. It was, however, loaded and capable of being fired. There is no suggestion of use or intended use of the firearm.
Drive suspended, unregistered and minor theft – CAN 5158/2023; CAN 5159/2023; CAN 5156/2023
15․At about 4:20pm on 26 April 2023, you drove an unregistered car into a service station in Dickson, ACT. Your licence had been suspended due to unpaid fines. You fuelled up the car and then left without paying.
Aggravated burglary at Kippax Shopping Centre – CAN 4151/2023
16․Just after 3 am the following morning, on 27 April 2023, you and an unknown co-offender drove to the Kippax Shopping Centre, ACT (Shopping Centre). Both of you were wearing balaclavas and gloves. One of you forced open the sliding doors to the shopping centre whilst the other obtained a snatch strap from the car boot.
17․You and the unknown co-offender entered the Shopping Centre through the sliding doors to attach the snatch strap to an automatic teller machine (ATM) inside, with the other end being attached to the car. The two of you then returned to the car. The car was driven forward in an attempt to dislodge and remove the ATM. The strap broke. It was reattached and a further attempt to dislodge the ATM was made before the strap again broke. You and your co-offender then left in the car.
18․In the course of the aggravated burglary, extensive damage was caused to the sliding door through which you entered the Shopping Centre. The value of this damage is unknown.
19․In assessing the seriousness of the offence, it is important to note that the premises was commercial, rather than residential, and the offence was committed at a time of day that was likely calculated to minimise the risk that anyone would be present. No one except for you and your co-offender was in fact present.
20․The timing and nature of the offence, the attempt to disguise your identity and the presence of a snatch strap all indicate that there was a degree of planning and premeditation. The offence was, however, unsophisticated.
Aggravated burglary at McKellar Soccer Club – CAN 4150/2023
21․At about 4:20 am that same morning, you and an unknown co-offender drove to the McKellar Soccer Club (Soccer Club). The car was reversed up to the front of the Soccer Club and then you and your co-offender used a metal bar over a period of about 5 minutes to pry open the front sliding door. After succeeding, you both entered the Soccer Club for approximately 20 seconds before leaving, taking receipts of no significant value with you. In the process of gaining entry, you caused between $1000 and $2000 worth of damage to the doors.
22․Again, the premises was commercial, you and your co-offender made an effort to disguise your identity and the timing of the offence made it unlikely that anyone would be present. No one was in fact present. There was some degree of planning and pre-meditation, but the offence was similarly unsophisticated.
Damage property at Ampol Mitchell – CAN 7432/2023
23․At about 4:40 am that same morning, you and a co-offender drove to the Ampol service station in Mitchell, ACT. You unsuccessfully attempted to open the main entrance of that petrol station, causing damage to the entrance door. The extent and nature of the damage is unknown.
24․Although it may be inferred that the property damage was caused in an attempt to enter the service station, you are not charged with attempted aggravated burglary and are not to be sentenced as if you committed that offence.
Aggravated burglary at Harmonie German Club – CAN 4148/2023
25․Finally, at about 5 am on 27 April 2023, you and an unknown co-offender entered the Harmonie German Club (“German Club”) in Narrabundah, ACT. Your means of entry is unknown.
26․CCTV footage shows you and your co-offender taking cash from vending machines whilst you were inside.
27․Police arrived at that location at around 5:15 am. They saw you and your co-offender leaving the German Club.
28․You were placed under arrest. Your co-offender evaded arrest by crawling back inside the German Club and running away.
29․At the time of arrest, you had $270 in cash and a car key to the vehicle used to transport you to the site of the aggravated burglary in your possession.
30․Inside the front entrance to the German club, police found a jimmy bar, a laptop computer belonging to the German Club and a bag containing cash in the sum of $908.80.
31․As with the other two offences, committed as part of this course of conduct, the premises targeted was commercial and the timing was calculated to reduce the risk that anyone would be present. There was some premeditation and planning, but the offence was unsophisticated.
Conditional liberty
32․At the time of the 2015 and 2023 offences, you were in the community subject to conditional liberty, either as a consequence of a sentencing order or a grant of bail. This breach of conditional liberty is a betrayal of the trust that was placed in you by the Court, and of the opportunity you were given to pursue your rehabilitation. It is an aggravating factor, though it does not increase the objective seriousness of your offending. It is also an indication that, if you are to break your cycle of addiction and offending, a different approach is necessary.
Plea of guilty, acceptance of responsibility and remorse
33․You pleaded guilty at an early opportunity. This means that the community was spared significant expense. I will reduce your sentences of imprisonment by 25 percent to take account of this fact.
34․Your early plea of guilty is also an acceptance of responsibility and is consistent with remorse.
35․You gave evidence in your sentencing hearing, reading a letter you had written to the Court. In that letter, you expressed shame and remorse for your offending and demonstrated insight into the harm you caused.
36․I accept that you have taken full responsibility for your offending and are remorseful for what you have done. True remorse and acceptance of responsibility can be a foundation for change.
Assistance to authorities
37․You have provided significant assistance to law enforcement authorities, the nature and extent of that assistance is set out in a “letter of assistance” provided by the Australian Federal Police. A non-publication order was made in relation to the content of this letter.
38․Your lawyer and the prosecutor agreed that your sentence should be reduced because of the assistance you have provided.
39․The reduction is intended to reward those who provide assistance and encourage others to provide assistance in order to receive a similar benefit: s 36 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act); Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 at 60-63 [58]-[71] (Will). This “reflects the strong public interest in breaking the criminal culture of silence and encouraging persons who have committed crimes to assist police”: DPP v Taylor [2023] ACTSC 39 at [35] (DPP v Taylor); see also, Will at 63 [71]; R v Cartwright (1989) 17 NSWLR 243 at 253 (Cartwright). The reduction is also intended to take account of the risk of reprisal and threat to safety that may result from breaking the culture of silence: York v The Queen [2005] HCA 60; 225 CLR 466 at 468 [3].
40․In determining whether to impose a lesser sentence, I am required to assess the degree of assistance that you provided: s 36(2) of the Sentencing Act. I am also required to consider the matters set out in s 36(3) of the Sentencing Act: see also, Cartwright at 252-3; The Queen v Ngata [2015] ACTSC 356 at [57].
41․There was some disagreement between your lawyer and the prosecutor about the appropriate reduction. It is ultimately a matter for discretion.
42․There is no doubt you have provided significant assistance and placed yourself at moderate risk of reprisal.
43․I will reduce each sentence of imprisonment imposed upon you by a total of 40 percent, taking into account both your plea of guilty and your assistance to authorities.
Criminal history
44․You have a lengthy criminal record. You have committed a significant number of dishonesty offences over many years, including a large number of offences of burglary. This demonstrates that your offending on this occasion is not an aberration. Instead, it is a continuation of a pattern of offending. It also demonstrates the extent to which dependence on illicit substances, and involvement in associated offending, has shaped your life.
45․You have served lengthy sentences of imprisonment which have not succeeded in enabling you to address your cycle of addiction and related offending.
Time in custody
46․At the time of the sentencing hearing, you had spent 203 days in custody solely in relation to the offences for which you are to be sentenced. I will backdate your sentence of imprisonment to commence on to 21 December 2023 to take account of your time in pre-sentence custody.
Subjective circumstances
47․Mr Higgins, I accept that you had experiences as a child that no child should have to face.
48․You gave evidence of these experiences by way of the letter you read to the Court after giving a solemn affirmation to tell the truth. The evidence you gave went beyond what was contained in the Drug and Alcohol Sentencing List Suitability Report (DASL Suitability Report) and the Drug and Alcohol Treatment Assessment Report (DATA Report). It was, however, largely consistent with those reports. You were not cross-examined, and your evidence was not challenged.
49․Now aged 40, you were born in [redacted] and raised in the rural New South Wales town of [redacted]. You are the [redacted] and felt isolated and unaccepted as a child. Your father drank alcohol heavily and was violent, including towards you. You recounted times when he would “snap” and threaten to get firearms, as well as an occasion when he hit you with a girth strap from a saddle. This left you with injuries that required you to take two weeks off school. [redacted]. What you describe is not an environment in which a young child can feel safe and thrive.
50․You said that by the age of 12, you started hanging out with older boys and began drinking alcohol.
51․Then, at age 14, after your family moved to [redacted], you left school and began working as a farmhand on a rural property. You worked there for approximately two years. It was at this property that you [redacted].
52․At the age of 16 you disclosed what had happened to you to a friend whilst you were drinking with him. His response was to laugh at you. This must have been very difficult for you.
53․It was on this occasion that you were first introduced to methamphetamine, which later became your drug of choice and the substance on which you have been most dependent.
54․Your friend’s older brother arrived. He was heavily intoxicated. He was around 10 years older than you and a large man. He told you to get in his ute, taking you for a drive. You felt intimidated by him. He offered to inject you with methamphetamine and, as I understand it, you did not feel like you could say no.
55․Following this night, [redacted]. This must have been very traumatic for you.
56․From this point, your use of drugs and alcohol increased. It is apparent from your criminal record that you became locked in a cycle of addiction and criminal offending.
57․The High Court in the case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44] (Bugmy) has made clear that sentencing courts must give “full weight” to the impact of adverse childhood experience. This is to recognise that there are lines of force that shaped your life as a child that continue to impact you today, explaining your descent into addiction and a cycle of offending. This reduces your “moral culpability” and the weight to be given to “punishment, denunciation and general deterrence”: see also R v Hagen [2022] ACTSC 362 at [40].
58․Further, your age and maturity at the time that you commenced alcohol use, along with the age and circumstances in which you commenced methamphetamine uses, means that you did not have the same capacity to consider the consequences of your actions, or resist pressure put upon you, as an adult: R v Henry [1999] NSWCCA 111; 46 NSWR 346 at [273] (Wood CJ), at [335]-[355] (Simpson J).
59․In 2009, your distress about your life circumstance was such that [redacted]. This caused your lung to collapse. When you were released from hospital, you relocated to Queensland. While in Queensland, for a period you managed to stabilise your life, working in the mines and having a relationship [redacted].
60․Sadly, you returned to illicit substance use and the relationship ended. Later, you returned to Canberra [redacted]. This relationship was marred by illicit substance use and associated criminal offending.
61․Leading up to the offending on 26 and 27 April 2023, for which you are to be sentenced, you were homeless, struggling with addiction to methamphetamine and with maintaining a relationship with your [redacted]. The challenges you experienced during this period result in you [redacted].
Prospects of rehabilitation and healing
62․Your history of substantial non-compliance with community based sentencing orders and bail conditions is deeply concerning. It is this, together with the extent of your substance use dependency that caused the authors of the DATA Report to find that you are not suitable for a Treatment Order.
63․Of particular concern is the fact that you were granted bail on 14 August 2023 to participate in a community based residential rehabilitation program, and then immediately absconded after testing positive for using illicit substances. You tested positive because you had been using illicit substances while in the prison-based rehabilitation program within the Alexander Maconochie Centre. You remained at large until you were arrested and remanded in custody on 11 December 2023.
64․It is against this background that you seek an opportunity to return to the community based residential rehabilitation program to complete a 12-month period of rehabilitation. You have been accepted into this program. You have been found suitable for a Treatment Order by the authors of the DASL Suitability Assessment.
65․I must decide whether you should be given this opportunity. In her written submissions, the prosecutor said that whilst you have, to this point, betrayed the opportunities given to you progress your rehabilitation in the community, this has been, in significant part, because your addiction has not been successfully treated. She notes, in effect, that a Treatment Order incorporating a long period of residential rehabilitation may give you the best opportunity to address your substance dependency.
66․Your lawyer identified two circumstances that she said should give the Court confidence that you have the motivation and commitment to succeed on a Treatment Order. Firstly, she noted that you are currently engaged in family law proceedings to enable you to have contact with [redacted]. As she observed, unless you break the cycle of addiction and offending, you have little, if any, prospect of achieving your goal. I accept that this goal is deeply important to you. This means that you have a strong motivation to succeed. In addition, your lawyer said that you have been abstinent from illicit substance use since your return to custody on 11 December 2023. There is no independent evidence of this. If true, this would be a significant achievement.
67․What is clear is that you know that you will be tested on entering the community based residential rehabilitation program. Should you test positive for illicit substances, you will almost certainly be discharged from the program and returned to custody. Almost inevitably, this would mean the cancellation of your Treatment Order, with you serving a significant part of what remains of your sentence before being eligible for parole.
68․As you have acknowledged, demonstrating significant insight, that there is no alternative community based rehabilitation option with the capacity to meet your treatment needs, other than a lengthy period of residential rehabilitation.
69․There are a number of other factors that have the capacity to support your rehabilitation. You have [redacted] with whom you have phone contact. Strengthening your relationship with them and demonstrating to them that you can face and address your addiction is significant motivation. You have the support of a sister who wrote a letter to the Court. It is clear from that letter that she loves you and believes in your capacity to change. You are having fortnightly telephone contact with your mother, after a period of being out of contact for 12 months. Developing this relationship also has the capacity to support you.
Sentencing purposes
70․For those offences for which a sentence of imprisonment may be imposed, I am satisfied that no sentence other than imprisonment is appropriate having regard to the seriousness of your offending: s 10 of the Sentencing Act.
71․You must be adequately punished in a way that is just and appropriate. This requires consideration of the nature of your offending, the harm you caused and your moral culpability, judged by reference to the difficult experiences you faced as a child and young person, which are linked to your descent into addiction to illicit substances.
72․Your sentence must deter you and others from offending. Your experience as a child and young person does, however, reduce the extent to which you can be considered an appropriate vehicle for general deterrence. In plain speech, that means your experience as a child and young person, and its ongoing impact on you, reduces the extent to which an example can be made of you to deter others from committing offences.
73․The sentence must recognise the harm you have caused to the community by your offending. I note that you have expressed a desire to engage in restorative justice. I will recommend that the director-general of corrections consider a referral of your offences of aggravated burglary to the ACT Restorative Justice Unit at a time deemed appropriate during the term of your sentence: Crimes (Restorative Justice) Act 2004 (ACT) Pt 6
74․Importantly, the sentence must be designed to promote your rehabilitation and protect the community. Ultimately, “[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”: Hogan v Hinch [2011] HCA; 243 CLR 506 at [32] (French CJ). In your case, rehabilitation depends upon you being able to address your addiction and the underlying causes of that addiction. Your history of incarceration and the failure of prison to address your cycles of addiction and offending suggest that the intensity of supervision and support offered under a Treatment Order may provide the best potential for you and for the community.
Totality
75․I am required to fix an appropriate sentence for each offence, consider questions of accumulation and concurrency and then step back and ensure that the total sentence imposed on you reflects the overall criminality of your offending, such that the aggregate sentence is just and appropriate for all of the offences: O’Brien v The Queen [2015] ACTCA 47 at [26].
76․Further, the overall sentence must “hold out a proper measure of hope for, and encouragement to, rehabilitation and reform”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 341.
77․The offences of aggravated burglary and property damage you committed within a three-hour period in the early hours of 27 April 2023 can be understood as a course of conduct. This warrants a greater degree of concurrency than might otherwise have been afforded because there was little time between offences for you to reflect and consider your actions.
Drug and Alcohol Treatment Order
78․Mr Higgins, you have asked to serve your sentence as a Treatment Order to enable you to address your drug dependence and the underlying causes of this dependence.
79․You are eligible for a Treatment Order. You have pleaded guilty and will be convicted and sentenced to a total period of imprisonment of between 1 and 4 years for eligible offences, and you are not subject to a sentencing order for another offence: s 12A of the Sentencing Act.
80․I am satisfied on the balance of probabilities that you are dependent on a controlled drug, that this dependency substantially contributed to the commission of the offences and that you will live in the ACT for the term of the sentence except as directed by the court: s 12A(2)(a) of the Sentencing Act.
81․I consider that it is appropriate to make a Treatment Order having regard to applicable sentencing considerations, information given to the court relating to victim concerns and the fact that you have given informed consent: ss 12A(2)(b) and 12A(2)(c) of the Sentencing Act.
82․I consider that a Treatment Order is appropriate having regard to the objects of such an order to facilitate your rehabilitation, reduce your dependency and associated health risks, assist your reintegration into the community and promote community safety: ss 12A(2)(b)(iii) and 80O of the Sentencing Act. You are eligible for a Treatment Order.
83․Further, I am satisfied, having regard to the treatment and suitability assessments before the Court, that a Treatment Order is suitable for you, that it is appropriate for you to serve a sentence suspended in accordance with a Treatment Order and that appropriate arrangements for the administration of that order are practicable: ss 80S and 80T of the Sentencing Act.
Orders
84․For those reasons I will make the following orders:
(1)Daniel Higgins be convicted of aggravated burglary – intent to steal (CAN 4151/2023) and he be sentenced to 12 months imprisonment, reduced from 20 months imprisonment on account of his plea of guilty and assistance to authorities, commencing on 21 December 2023 and ending on 20 December 2024.
(2)Daniel Higgins be convicted of aggravated burglary – intent to steal (CAN 4150/2023) and he be sentenced to 12 months imprisonment, reduced from 20 months imprisonment on account of his plea of guilty and assistance to authorities, commencing on 21 June 2024 and ending on 20 June 2025.
(3)Daniel Higgins be convicted of aggravated burglary – intent to steal (CAN 4148/2023) and he be sentenced to 12 months imprisonment, reduced from 20 months imprisonment on account of his plea of guilty and assistance to authorities, commencing on 21 December 2024 and ending on 20 December 2025.
(4)Daniel Higgins be convicted of damage property (CAN 7432/2023) and he be sentenced to 6 months imprisonment, reduced from 10 months imprisonment on account of his plea of guilty and assistance to authorities, commencing on 21 September 2025 and ending on 20 March 2026.
(5)Daniel Higgins be convicted of unauthorised possession of a prohibited firearm (CC 12224/2017) and he be sentenced to 6 months imprisonment, reduced from 10 months imprisonment on account of his plea of guilty and assistance to authorities, commencing on 21 December 2025 and ending on 20 June 2026.
(6)Daniel Higgins be convicted of minor theft (CAN 5156/2023) and he be sentenced to imprisonment until the rising of the court.
(7)Daniel Higgins be convicted of drive while right to drive suspended (CAN 5158/2023) and no further penalty be imposed.
(8)Daniel Higgins be convicted of use unregistered/suspended vehicle (CAN 5159/2023) and no further penalty be imposed.
(9)The total term of imprisonment imposed is 2 years 6 months imprisonment, commencing on 21 December 2023 and ending on 20 June 2026.
(10)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made in respect of the eligible offences set out in Orders 1-5, namely aggravated burglary – intent to steal (CAN 4151/2023), aggravated burglary – intent to steal (CAN 4150/2023), aggravated burglary – intent to steal (CAN 4148/2023), damage property (CAN 7432/2023), unauthorised possession of a prohibited firearm (CC 12224/2017).
(11)It be noted that the convictions and sentences imposed for the eligible offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.
(12)The Drug and Alcohol Treatment Order be for 1 year 11 months 6 days from today, 15 July 2024, to 20 June 2026.
(13)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 18 months from today, 15 July 2024, until 14 January 2026.
(14)The Custodial Part of the Drug and Alcohol Treatment Order for the eligible offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 15 July 2024, until the end of the total sentence, 20 June 2026.
(15)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Daniel Higgins 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, 15 January 2026, until the end of the total sentence, 20 June 2026, with a probation condition that he accept the 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 including as to alcohol and drug testing, counselling and treatment.
(16)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
1․ The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;
2․ Daniel Higgins 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;
3․ Daniel Higgins travel directly on release from custody on Monday 15 July 2024 in the company of an employee of [redacted] and admit himself into the residential drug and rehabilitation program conducted by [redacted] and remain there until he has completed the program but not for less than 12 months unless otherwise directed by the person in charge of his program at [redacted];
4․ Daniel Higgins obey all directions of the person in charge of his program at [redacted] and the facility at the program and comply with all the rules and obligations of the program and the facility;
5․ If Daniel Higgins is discharged from or leaves the program before the 12 months’ duration of the program or in duration as otherwise directed by the person in charge of his program at [redacted], he report to the ACT Corrective Services by 4:00pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed;
6․ Daniel Higgins not consume alcohol, illegal drugs, or prescription drugs not prescribed to him;
7․ Daniel Higgins not return any positive results for alcohol, illegal drugs or prescription drugs not prescribed to him on any drug or alcohol testing; and
8․ Daniel Higgins comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(17)Daniel Higgins 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.
(18)Daniel Higgins be directed to appear in Court, in person or by electronic means, on Friday 26 July 2024 at 11:30am.
(19)It be noted that Daniel Higgins has indicated a willingness to engage in restorative justice, and it is recommended that the director-general (corrections) refer the offences of aggravated burglary – intent to steal (CAN 4151/2023), aggravated burglary – intent to steal (CAN 4150/2023), aggravated burglary – intent to steal (CAN 4148/2023) for restorative justice pursuant to Pt 6 of the Crimes (Restorative Justice) Act 2004 (ACT) at a stage as deemed appropriate by the director-general (corrections) during the Drug and Alcohol Treatment Order.
Final Words
85․Mr Higgins, serving your sentence in this way will be challenging. Facing and recovering from you addiction will be very difficult. You know this far better than I do. It has been your lived experience.
86․You now have a new opportunity to climb this mountain. You will be closely supervised. You will be subject to regular drug and alcohol testing. You will be required to attend court regularly to speak with a judge. For a time, this will happen every week, likely by way of audio-visual link. These check-ins will keep you accountable.
87․If you use alcohol or illicit substances, then you will face sanctions. If you do not attend appointments, or stay in touch with your case managers, or comply with the requirements of the order or the behavioural protocol, you will face sanctions. These may include a return to prison for a period of 7-14 days or longer.
88․In your case, you must understand that any failure to comply with your obligations within the residential rehabilitation program may lead to you being exited from that program. You should expect that if this occurs you will almost certainly be returned to prison.
89․Finally, if you commit further offences that subject you to imprisonment, then your order will be automatically cancelled.
90․I do not say this to scare you. Just to ensure that you know the challenge you face.
91․But along with supervision, you will receive support. You will have the support of the experienced rehabilitation team at [redacted] and peer mentors in that program. You will have two case managers, one from Corrective Services and one from ACT Health, Alcohol and Drug Service. When you are facing challenges or feeling triggered you will need to talk to those who can support you, including your case managers. They have a lot of experience. They can help you.
92․You should also talk to your case managers and those supervising and supporting you about your successes. Remember, each step you take up the mountain will give you a better view. Each step can be a source of pride for you. Each step will make others proud.
93․If there are steps back along the way, then you will still remember that view. With courage you will continue to climb.
94․Ultimately your case managers want you to succeed. They want to see you reach the summit of that mountain – to enjoy the view from the top.
95․It is important for you to know that I want you to reach the top of that mountain too, as will other judges you speak to along the way. We too will celebrate your successes.
96․Hard work, abstinence, honesty and trust will get you there. You have the strength to do this. I wish you luck.
| I certify that the preceding ninety-six [96] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Hopkins Associate: Date: 28 January 2025 |
Corrigendum: 28 January 2025
Redact the reasons for sentence in accordance with the orders of Christensen AJ on 27 September 2024.
Amend the numbering of [7] and [8] on page 4 of the reasons for sentence to [7a] and [8a] to rectify numbering duplication.
Redact the name of the treatment program from [84] to [91].
In the cover page, in “file numbers”, omit “SCC 355 of 2023 SCC 356 of 2023” and replace with SCC 335 of 2023 SCC 336 of 2023”.
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