Director of Public Prosecutions v Jacka
[2024] ACTSC 376
•25 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Jacka |
Citation: | [2024] ACTSC 376 |
Hearing Date: | 22 October 2024, 5 November 2024 |
Decision Date: | 25 November 2024 |
Before: | Christensen AJ |
Decision: | See [79] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aggravated burglary – aggravated robbery – assault – damage property offences – recidivist robbery offender – objects and nature of a treatment order – prosecution case not overwhelmingly strong – moral culpability reduced with reference to childhood disadvantage and early addiction – administration of a treatment order – drug and alcohol treatment order imposed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 116 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | Director of Public Prosecutions ( Crown) Mitchell Lloyd Jacka ( Offender) |
Representation: | Counsel E Wren, D Armstrong ( Crown) A Fraser ( Offender) |
| Solicitors ACT Director of Public Prosecutions Fraser Criminal Law ( Offender) | |
File Numbers: | SCC 154, 155 of 2024 |
CHRISTENSEN AJ:
Introduction
1․Mitchell Jacka is to be sentenced for eight offences as follows:
(a)Aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT) (Criminal Code), carrying a maximum penalty of 25 years imprisonment, a fine of 2500 penalty units, or both (CAN 2024/ 2259);
(b)Assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (Crimes Act), carrying a maximum penalty of 5 years imprisonment (CAN 2024/2260);
(c)Aggravated burglary contrary to s 312 of the Criminal Code, carrying a maximum penalty of 20 years imprisonment, a fine of 2000 penalty units, or both (CAN 2024/2869);
(d)Four offences of damage property contrary to s 116(3) of the Crimes Act, carrying a maximum penalty of 2 years imprisonment, a fine of 50 penalty units, or both (CAN 2024/3386); and
(e)Unauthorised entry to motor vehicle contrary to s 754(1) of the Criminal Code carrying a maximum penalty of 10 penalty units (CAN 2024/3387).
2․The offending occurred during what both parties described as a “crime spree” over the weekend of 16 and 17 February 2024. The offending was serious, causing significant harm to the victims of the robbery and the assault, and property damage during a burglary of an apartment complex carpark.
3․Mr Jacka seeks that the inevitable terms of imprisonment to be imposed are served by way of a drug and alcohol treatment order (treatment order). The objects of a treatment order include to reduce an offender’s dependency on controlled drugs and promote community safety by reducing offending caused by such a dependency: s 80O Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
4․As will become apparent, Mr Jacka is eligible for a treatment order in terms of the periods of imprisonment to be imposed. The prosecution opposes the imposition of such an order. The sentencing exercise in this matter requires close consideration of the prospects of rehabilitation, and whether a treatment order is capable of fulfilling all of the purposes of sentencing.
Offending on 16 February 2024
5․The victim of the aggravated robbery offence is the co-owner of a local supermarket in Mitchell. At about 5:01pm on 16 February 2024, a customer known to the victim came into the store. A male person, later identified as Mr Jacka, came in behind this customer. Mr Jacka was wearing a long-sleeved jumper, pants and a hat.
6․Mr Jacka went to the bottle-shop area of the store. He went to a corner of the
bottle-shop containing toilet paper and other non-alcoholic items. The victim became suspicious as customers don’t usually go to this corner when in the bottle shop.7․The customer known to the victim attended at the counter and the victim had a conversation with him for about three minutes. The customer went to leave. As the customer did so, Mr Jacka approached the counter, carrying a red shopping basket with items. The victim said “hi” to him. He did not reply.
8․The victim scanned Mr Jacka’s items, being a pack of toilet paper and a pack of butane gas cans. She looked down to read the total cost, and then looked up at Mr Jacka. As she looked up, she saw that he had a knife in his hand. It was about 30 centimetres in length, with a silver, straight-edged blade, and an orange and black handle.
9․Mr Jacka said approximately four times in a soft voice “all the money out”, while pointing the knife in the victim’s direction. The victim used a key to unlock the till and grabbed an unknown quantity of $10 notes out. She placed it on the counter, and Mr Jacka repeated “all the money out” in a louder voice.
10․The victim thought she was in trouble and was very scared. She backed away from the counter and jumped over an adjacent counter to get away. She landed on the ground on her right side, got up, and ran outside towards a nearby barbershop. She said to a male who was there, “someone’s robbing me, he has a knife”. This male is the victim of the assault offence.
11․The male victim and two other people who were nearby ran out of the barbershop and into the first victim’s store. The male victim entered the store and Mr Jacka was walking towards him with a knife. The male positioned a metal chip rack between them. Mr Jacka then ran towards another exit on the south side of the store. The male followed him, and Mr Jacka said, “I’m going to stab you, I have a knife”.
12․Mr Jacka had the cash till and knife in his hands. The male victim hit the till and knocked it out of Mr Jacka’s hands. The male kept trying to hit the knife out of Mr Jacka’s hands, while keeping the metal rack between them. Mr Jacka was pushing his way out of the store. During the course of this, the male victim sustained a small laceration to his arm, a mark on his leg, and a scratch on his wrist.
13․Mr Jacka ran out of the retail centre, towards his Ford Territory vehicle which had a box trailer attached. He took off in the vehicle, mounting a concrete gutter at speed, causing the vehicle to jolt aggressively.
14․Police were called. There was money on the ground as well as the till. An audit of the till later determined that $420.00 had been taken.
15․The first victim spoke to police, and she said that she was “angry” as she works “7am to 7pm every day, by herself lifting heavy boxes” and she didn’t deserve what happened. The male victim told police that he thought the offender was going to stab him.
16․The police investigation linked the Ford Territory to the offender, as did distinctive identification features of Mr Jacka that were observable from closed circuit television (CCTV) footage from the robbery. On 17 February 2024 at approximately 2:20am, police were conducting mobile patrols in Kaleen when they saw the Ford Territory. Police obtained a search warrant and located items that further linked Mr Jacka to the robbery.
17․The prosecution submitted that the robbery that occurred here was in the nature of the “common” type referred to in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry). That is, it involved the use of a knife against a vulnerable victim with relatively limited planning, limited actual violence, and a small amount taken. I accept this submission. Nonetheless, while not, overall, a sophisticated example, there are aspects of sophistication, such as the timing of when Mr Jacka approached the counter, the initial use of a soft voice, and asking for more money from the till.
18․Also of concern is Mr Jacka’s escalation to violent conduct to get away from the store and the community members who were, bravely, trying to stop him. The approach to sentencing with respect to this aspect is informed by the application of the totality principle, given the assault occurred in the context of Mr Jacka trying to escape from the shop following the robbery. With this conduct, Mr Jacka caused modest physical injuries but likely not insubstantial psychological injury. His conduct was persistent, and included verbal threats while holding a knife.
Effect on the victim of the robbery
19․The victim was plainly immediately terrified by Mr Jacka’s actions. In getting away from him, after he pointed a knife at her, she moved away at such pace that she fell. The effect on the victim extends well beyond this immediate distress. In a victim impact statement, the victim expresses the profound impact that Mr Jacka’s actions have had on her life.
20․The victim describes living in fear and that a lifetime scar has been left on her. She describes being continuously haunted by the memory of the offender’s conduct, and no longer feeling safe in the community and at her business premises. The impact on her wellbeing has affected her ability to engage with her business and she has become forced to sell her business, with a financial loss. The supermarket was a place of joy and love to her, but is now a source of fear and anxiety. It is with “a lot of pain and tears” that the victim is closing this chapter of her life.
Offending on 17 February 2024
21․At approximately 2:30am on 17 February, the aggravated burglary and related offences occurred at an apartment complex in Belconnen. This offending was reported to police the following day.
22․Police investigations, with reference to CCTV footage, established that Mr Jacka entered the apartment complex carrying a knife of a similar appearance to that used in the robbery. Mr Jacka was with another male, Mr Kaine Lock (the co-offender). Mr Lock has not yet been sentenced.
23․The agreed facts provide that the footage shows that:
(a)At approximately 2:30am, the offenders entered the complex by forcing entry to a doorway. They entered the carpark by way of a stairwell for access to particular units.
(b)At approximately 2:34am, they approached two red Honda motorbikes. These motorbikes were later observed to be damaged. One had damage to the ignition including broken plastic around the keyhole and two cut wires. A piece of cutlery had been jammed into the ignition. The other also had damage to the ignition, but the nature of this damage is not provided in the facts.
(c)At about 2:37am, the offenders attempted to break into a white Toyota Landcruiser. This commences the conduct relating to one of the property damage charges. The facts provide that at 3:35am, the offenders then entered this vehicle by smashing the glass panel beside the driver’s side rear passenger window. They searched the vehicle. The facts provide that they “took some items”, but this is not charged.
(d)At about 3:03am, Mr Jacka forced entry to the driver’s door of a Mitsubishi Lancer and searched the vehicle. The co-offender then assisted him in searching the vehicle. This conduct establishes the unauthorised entry to the motor vehicle charge. Per the particulars of one of the property damage charges, the conduct in relation to this vehicle also involved causing damage to the steering alignment of the vehicle.
(e)At about 3:55am, the offenders departed the apartment complex.
24․The police investigations included a telecommunications warrant with respect to Mr Jacka’s telephone number.
25․At about 5:30pm on 27 February 2024, WIN News reported on the aggravated robbery at the supermarket, with the offender’s face blurred out.
26․At about 6:07pm, a phone call occurred between Mr Jacka and an associate. During this call, Mr Jacka said to his associate “yeh, nah didn’t say my name. Blurred me face and that out, which is good”. During the call, Mr Jacka appears to express that his mother had been able to identify him. Mr Jacka said during the call that it was “weird” that there was a request to contact Crime Stoppers with information as “they already know”.
27․On 28 February 2024 at about 1:10pm, ACT Policing Media reported on the aggravated robbery. At about 4:14pm on that date, Mr Jacka had a phone conversation with a person who I infer from the description in the facts is a relative, likely his mother. During this conversation, Mr Jacka says “fucking hell” in response to receiving information that associates were contacting his relative about what was on a “Police Facebook thing”. One of his associates watched “it” and could “see you”. Mr Jacka says “great … go to the shop and get a drink”.
28․On 29 February 2024 at about 6:40pm, Mr Jacka was located in the backyard of an address in Evatt. He was arrested and cautioned and subsequently participated in a record of interview in which he said:
(a)he was involuntarily given “G” via a cup of coffee by a female at Hawker flats on the day of the robbery;
(b)he does not remember what happened between drinking the cup of coffee and crashing his vehicle at the Kaleen Coles (what the crash is a reference to is not explained in the agreed facts);
(c)he walked to the Giralang oval and was picked up by a person named Kaine Weir (subsequent police investigations were unable to confirm the existence of this person);
(d)Mr Jacka got a lift back to meet a friend at the Hawker Hotel, at the back of the Hawker Woolworths near the drive-through bottle shop, and they procured a hotel room under his friend’s girlfriend’s name;
(e)Mr Jacka, his friend, and the girlfriend then attended the co-offender’s partner’s flat in Hawker. The co-offender’s partner was also present;
(f)they all partied except for the offender who just smoked cigarettes;
(g)between 1am and 2am the next day, Mr Jacka, his friend, and his friend’s girlfriend returned to their hotel room at the Hawker hotel, where Mr Jacka passed out in an armchair; and
(h)at about 9:45am, Mr Jacka woke up and packed up the room to check out.
29․During the interview, Mr Jacka identified himself on the CCTV footage from the aggravated burglary. He did not identify the co-offender. He presented with confusion about the footage and the facts provide that he “did not appear to recall the incident”.
30․Police investigations confirmed a booking with the Belconnen Way Hotel and Serviced Apartments for 19 to 22 February 2024, in the name of Mr Jacka’s friend’s girlfriend.
31․The extent to which Mr Jacka lacked recollection of the offending was the subject of cross examination of him at the sentence hearing. He maintained an absence of memory of the incident and maintained that he had involuntarily been given substances in that period. There is no basis upon which to not accept that evidence.
32․Mr Jacka, however, accepts the conduct occurred, with reference to the CCTV footage. The facts provide that a not insignificant period of time was spent in the carpark, indicative of a concerning level of confidence as to his willingness to engage in the offending behaviour. There was an extent of planning and premeditation given the possession of the knife, although it was not, overall, as the prosecution conceded, a sophisticated example of this offence. It did involve both forms of aggravation, being the possession of the weapon and having been committed with another person.
33․The time at which the entry occurred limited the prospect of residents of the apartment complex being exposed to the offending, and fortunately no one directly was. There will still have been impacts, though, on the residents, with alarm and distress caused by the entry to the complex and the vehicles, and financial impacts for the owners of the vehicles that were damaged. The extent of damage caused was not insignificant and was done to multiple vehicles, and therefore, victims.
Criminal history
34․Mr Jacka has a lengthy criminal history, one from both the Australian Capital Territory (ACT) and New South Wales. [redacted].
35․[Redacted], he commenced with a driving offence, and went on to engage in further offending, including offences of a serious nature in the ACT. This included an offence of causing grievous bodily harm in 2009, an offence of attempted arson in 2011, and offences of furious/reckless/dangerous driving in 2013, all of which he was imprisoned for.
36․In August 2017, Mr Jacka was sentenced for offences including five offences of aggravated robbery committed in April and May 2017. Those robbery offences were more serious than the offending that occurred here. They had higher levels of sophistication and involved the use of firearms. Mr Jacka was sentenced to a total of seven years imprisonment with a nonparole period of four years: R v Jacka [2017] ACTSC 225 (R v Jacka). The parole period was set to commence from May 2017.
37․In October 2017, Mr Jacka was sentenced in the Magistrates Court for offences that occurred in May and September 2016, and March 2017. That is, the offending occurred either before, or proximate to, the robbery offending. This sentence was for offences including possession of stolen property, driving and minor drug offending. He was sentenced to a term of imprisonment that resulted in the nonparole period remaining the same. That is, he was eligible for parole from 8 May 2021, with the sentence to end on 7 June 2024.
38․Mr Jacka’s criminal history also shows, consistent with his description of his life trajectory, that he has had periods without offending behaviour. In accordance with his criminal history, substantial periods without offending behaviour were from November 2014 to May 2016, and from December 2017 to the current offending in February 2024.
Subjective circumstances
39․Mr Jacka’s criminal history needs to be considered in the context of the principles from Bugmyv The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), which I am satisfied are enlivened. That is, Mr Jacka’s moral culpability is reduced with reference to the circumstances of his childhood. I would add to that, his early exposure to substance use reduces his moral culpability: Henry; and see, for example, DPP v Longmore [2024] ACTSC 278 and MF v R [2024] NSWCCA 42. The reasons for these findings follow, with reference to Mr Jacka’s subjective circumstances.
40․Mr Jacka was born thirty five years ago in Victoria, the third eldest of four brothers and one half-sister. The information before the Court is that Mr Jacka described his “early upbringing” as “normal” until he was eight years old. From then, he moved between his family home, [redacted]. He witnessed and experienced family violence, and exposure to alcohol misuse. He disclosed a diagnosis of Attention Deficit Hyperactivity Disorder when he was a child and describes himself as a “pretty uncontrollable kid” with outbursts of anger. [redacted]. He ceased attending formal education at age 13, and did not finish Year 7. He was expelled from two high schools due to fighting and being disruptive.
41․His substance use began with cannabis at 9 years of age. He was a daily user of cannabis by 12 years of age, and increased his use until he ceased this substance by 22 years of age. He first consumed alcohol at 13 years, progressing to drinking almost daily until 19 years of age. He first used methylamphetamine at 15 years, gradually increasing until his use peaked from 22 to 27 years of age. During this period in adulthood, he also started using heroin.
42․Curiously, on behalf of Mr Jacka, it was not pressed that the Court would find the Bugmy principles are enlivened, and that Mr Jacka’s moral culpability for the offending is reduced. It was submitted that the Court have regard to his childhood circumstances in a more general sense. The prosecution submitted that the Bugmy principles are not enlivened in Mr Jacka’s case.
43․In R v Jacka, his Honour Justice Elkaim described Mr Jacka’s childhood in similar terms to those set out above at [40] (albeit, his Honour’s description was more succinct). As to his childhood, his Honour said, “I will take his deprived upbringing into account” (at [16]). His Honour also took into account Mr Jacka’s introduction to drugs at a young age (at [21]).
44․The boundaries of Bugmy have not been “clearly or definitively delimited”: Nasrallah v R [2021] NSWCCA 207 at [11] per Bell P. It is not necessary that they are, at least in this matter. Suffice to say, I am satisfied that on the information available to the Court, Mr Jacka’s moral culpability for his offending is reduced. The impacts from his formative years, and the impact of this on his early introduction to drug dependency, are enduring and are appropriate to weigh in a mitigatory sense in the sentencing exercise.
Prospects of rehabilitation
45․Mr Jacka is described as having protective factors available to him in terms of family support, and support from a long-term partner. I would extend to this that he has available motivations to rehabilitate, being his desire to be there for his mother who is unwell, and to be a father to his children.
46․Mr Jacka’s partner, and the mother of three of his children, provides a letter in support of him. She explains how well Mr Jacka had been doing – being an excellent person, dad and partner – until sustaining a back injury. He returned to substance use after challenges obtaining necessary medication, and this caused his “downward spiral”.
47․His partner describes the reasonable and appropriate boundaries and expectations she has set to protect herself and their children upon his release from custody, while also setting out her intentions to provide rehabilitative support.
48․Further, Mr Jacka demonstrates a depth of remorse and insight that is encouraging as to his prospects of rehabilitation. He has provided a letter to the Court, but one that is plainly directed to the victims instead. This is not typical in a letter that an offender provides to the court. Typically, an offender will provide to the court a letter in the nature of providing an explanation for the offending and expressing their intention to change.
49․Mr Jacka has though expressed what I accept as a genuine insight into the harm that his offending caused. It is appropriate to set it out in full (with editing for clarity). He says:
To the victims I have hurt, traumatised and put out. I am truly sorry for everything I have done. If I could change everything I would. I would truly give my left arm to take back my actions, hurt, pain and grief [I caused]. The person I was on that day isn’t who I am. That person is someone I have been working so hard to rid myself of and he is finally gone out of mine and everyone’s life. The person you see here today is going to work tirelessly to be a member of the public and a loving, caring partner, son and father and to give back whenever and wherever possible. I truly hate myself for what I have done and I deserve to live with it forever. I am truly sorry for everything.
50․In his evidence in court, Mr Jacka continued to demonstrate his remorse and insight, expressing that he is “disgusted in [him]self” for the pain, grief and anguish he has caused.
Conditional liberty
51․At the time of the offending, Mr Jacka was on conditional liberty. This was for a parole order from the ACT sentence imposed for the robbery offences. The offending occurred three months before the seven year term of imprisonment expired, and the remainder of the term was imposed when the parole was cancelled. His engagement with this parole order is described as being largely satisfactory until late 2023, when Mr Jacka injured his back and was no longer able to work.
52․Mr Jacka was also on an intensive correction order imposed in NSW for property and firearm offending. The order was for 2 years and 6 months and was to expire four months after the offending the subject of this sentencing exercise occurred.
53․That Mr Jacka was on conditional liberty at the time of the offending is an aggravating factor on sentence. It is also indicative that if Mr Jacka’s offending behaviour, plainly borne out of his drug dependency, is to cease, a different approach is necessary.
Pleas of guilty
54․Mr Jacka pleaded guilty to the offences in the Magistrates Court. This was before a brief of evidence was prepared and after negotiations at an early stage of the proceeding. The charges were committed and transferred to the Supreme Court for sentence.
55․In relation to the aggravated robbery offence, the prosecution submitted that a significant reduction was not warranted as the case for the offence was “overwhelmingly strong”: s 35(4) Sentencing Act. This submission was made with reference to what were described as “significant admissions” in the phone conversations, the use of the same knife in both series of offending, and items found in the vehicle, being a vehicle matching the description from the robbery. On behalf of Mr Jacka, it was submitted that while the case may “indeed have been considered strong”, a significant discount on sentence could be considered.
56․On the information provided to the court, which did not include the CCTV footage from the robbery, the prosecution case was a circumstantial one as to identity. I do not accept that there were “significant admissions” as the prosecution contended. There were ambiguous representations that, to establish the case beyond reasonable doubt, relied on inferences favourable to the prosecution being drawn in a context of at least one exculpatory representation (“going to the shop to get a drink”). There were not clear and unambiguous admissions to committing the robbery, or the assault. This includes that there was not an admission made during the record of interview.
57․While the prosecution case for the aggravated robbery offence was strong, I do not consider that it was overwhelmingly strong. Accordingly, the court is not precluded from making a significant reduction for the plea of guilty. I assess the appropriate reduction to be in the order of 25 per cent having regard to the time at which it was entered, and that the victims were spared from being required to give evidence.
58․For the same reasons, for the remaining offences where imprisonment is an available penalty, a reduction for the significant utilitarian value of the pleas of guilty in the order of 25 per cent is appropriate.
Current sentencing practice
59․In relation to the robbery offence, the prosecution referred the Court to a number of authorities, acknowledging the limitations that these provide. I have considered each of the authorities provided and find R v Murphy [2021] ACTSC 94 to be of most assistance. In that matter, the offender robbed a convenience store with a knife, displaying it to the shop assistant and leaving with approximately $230. The offender was 40 years of age. He had a significant criminal history, including for robbery, and was on conditional liberty at the time of the offending. He had drug and alcohol issues. His prospects of rehabilitation were less than what Mr Jacka’s are, with it described that they were “at best guarded” (at [52]). He was sentenced to 4 years imprisonment, reduced to 3 years on account of his plea of guilty, with a nonparole period.
60․As to the burglary and related offences, I have considered the authority of R v Horne [2017] ACTSC 36, relied on by the prosecution as to assessment of the objective seriousness of these offences. This authority also considers current sentencing practice for offences of this type, finding that for the offence of aggravated burglary “terms of imprisonment ranged from six months to four years and six months with most sentences in the range of two years to two years and six months” (at [52]). Relevantly, that analysis considered all forms of this type of offence. Here, the offending was an example of offending with low objective seriousness, having regard to the location burgled. Mr Jacka is also not a recidivist offender for this form of offence, permitting some leniency given deterrence is not as strongly indicated.
Pre-sentence custody
61․Mr Jacka has been in custody since he was arrested on 29 February 2024. He was initially remanded in custody on the offences the subject of sentence, but from 7 March 2024, was a sentenced prisoner following revocation of the parole order. He resumed being on remand from 29 August 2024 and has remained so until the date of sentence decision. A total of 97 days in presentence custody applies.
62․It is appropriate to backdate the sentence to take into account this period on remand: s 63 Sentencing Act. It is also appropriate, in determining a just and appropriate sentence, to take into account that Mr Jacka has spent a total of some nine months in custody: Mill v The Queen (1988) 166 CLR 59.
Consideration
63․The only appropriate sentences to be imposed are ones of imprisonment where such a maximum penalty is available. In determining the appropriate terms, and total effective sentence, the totality principle is applicable. The “crime spree” nature of the offending is relevant, but it is also appropriate to ensure that the harm caused to each individual victim is recognised. In this matter, I consider it appropriate to order the terms to be served consecutively, with a degree of moderation in the terms to avoid a crushing sentence.
64․As will become apparent, the individual sentences and total effective term to be imposed falls within the statutorily prescribed period for which a treatment order is an available sentence: s 12A(1)(b)(ii) Sentencing Act.
65․The issue becomes whether Mr Jacka is eligible for such an order with regard to the other considerations in s 12A, and otherwise whether such an order is an appropriate and suitable one.
66․As to his eligibility per s 12A(2), I am satisfied on the balance of probabilities that Mr Jacka is dependent on a controlled drug and that his dependency substantially contributed to the commission of the offence. He continues to require supports to address his drug dependency, having returned a positive test sample as recently as September 2024. He will also live in the ACT for the term of the sentence, with his proposed residence with family members found suitable by ACT Corrective Services.
67․There is no information as to concerns of the victim about their safety or welfare from Mr Jacka: s 12A(2)(b)(iii) Sentencing Act.
Appropriateness of a treatment order for offender
68․With those matters in mind, it is necessary to then consider whether such an order is appropriate for Mr Jacka, in accordance with the considerations prescribed in ss 12A(2)(b) and (c) of the Sentencing Act.
69․The prosecution submitted that the only appropriate sentences to reflect the seriousness of the offences, Mr Jacka’s history, and the purposes of sentencing, are ones of fulltime imprisonment. The imposition of a treatment order was opposed. It was submitted that a treatment order, being a sentence that is served “entirely in the community”, represents a more lenient sentencing option than one served in custody. It was submitted that such a sentencing order places at the forefront the offender’s prospects of rehabilitation, and would afford undue leniency in the sentence.
70․I do not accept that a treatment order, by its nature, is one that necessarily raises the sentencing purpose of rehabilitation above other sentencing purposes, nor that it is one that implicitly involves leniency.
71․The experience of the Drug and Alcohol Sentencing List is that many participants on treatment orders describe prison as “easy” in comparison. A treatment order demands of a participant growth and rehabilitation, an experience requiring participants to confront the causes of their drug dependency, and to confront and acknowledge the harm they have likely caused to community members, and their family. A treatment order demands of a participant that they are accountable for their offending behaviour, and for their rehabilitation. The administration of the order includes:
(a)close oversight by the court, with an ability for the court to rapidly return a participant to custody as warranted;
(b)close oversight by case managers from ACT Corrective Services and ACT Health Services, with requirements to comply with reasonable directions as to engagement in rehabilitation programs, counselling, and appointment attendance;
(c)typically, a curfew that is regularly monitored by police when a participant is not in residential rehabilitation;
(d)restrictions on the ability to travel outside of the ACT, and a restriction on participation in activities unless they are therapeutically beneficial;
(e)routine urinalysis testing, with consequences for detection of substances irrespective of the explanation for how this occurred; and
(f)expectations of progress towards employment and/or study, and development of pro-social family relationships, friendships, and activities.
72․It is erroneous to characterise a treatment order as a lenient sentencing option. It is an order that involves a form of restriction on an offender’s liberty. While it may not be a restriction of liberty in the traditional sense, it remains that the freedoms that a
law-abiding citizen enjoys are not afforded to a treatment order participant during the course of their treatment order.73․It is also erroneous to characterise a treatment order as one that inherently places rehabilitation of an offender above other purposes of sentencing. The oft cited words of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 are applicable, being that “[r]rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”. In essence, and consistent with the objects of such an order (s 80O Sentencing Act), a treatment order is readily capable of fulfilling all purposes of sentencing in equal measure: s 7 Sentencing Act.
Suitability of a treatment order for offender: ss 80S, 80T of the Sentencing Act
74․I have considered the drug and alcohol assessment reports prepared. Both ACT Corrective Services and ACT Health find Mr Jacka suitable for a treatment order. He is described as being capable of living a drug-free lifestyle, evident from his periods of abstinence while on parole. But, he is described as requiring more treatment and support to maintain long-term recovery.
75․Mr Jacka has prepared a comprehensive relapse prevention plan, one that demonstrates insight into his “triggers” for substance use and strategies to avoid this. He recognises, though, that external supports would be beneficial for him. He expresses that “getting” a drug and alcohol treatment order is his biggest goal as he views it as “perfect to keep [him] on track”. He has goals to be honest, to “be the man and person [he] knows [he] is and can be”, and to “get back to work and stay out of trouble”. He is a qualified mechanic and has other licences and certificates in the construction industry enabling him to gain employment in the future.
76․Amongst other courses completed while in custody, Mr Jacka completed the Solaris Therapeutic Community program in July 2024. He has continued engagement with that program, including receiving an accolade for his professionalism in a community role. The information from the Solaris program includes that Mr Jacka has made significant progress in terms of understanding his treatment issues and demonstrating behavioural change. Mr Jacka has been honest and open with staff and has been actively working to address his substance misuse issues.
77․The information available to the court includes that Mr Jacka has available to him, from the date of the sentence order, a rehabilitation program that is appropriate for his therapeutic needs.
Conclusion as to imposition of treatment order
78․I am persuaded that Mr Jacka is an appropriate and suitable candidate for a treatment order, and that a sentence outcome involving such an order is just and appropriate in all of the circumstances. Mr Jacka demonstrates capacity to rehabilitate, and not engage in offending behaviour. He has a genuine intent to rehabilitate which he is strongly motivated to do.
Orders
79․For those reasons the following orders are made:
(1)On the charge of aggravated robbery (CAN 2024/2259), the offender is convicted and sentenced to 33 months imprisonment, reduced from 44 months on account of the plea of guilty, to commence on 9 August 2024 and end on 8 May 2027.
(2)On the charge of assault occasioning actual bodily harm (CAN 2024/2260), the offender is convicted and sentenced to 4 months imprisonment, reduced from 5 months on account of the plea of guilty, to commence on 9 May 2027 and end on 8 September 2027.
(3)On the charge of aggravated burglary (CAN 2024/2869), the offender is convicted and sentenced to 6 months imprisonment, reduced from 8 months on account of the plea of guilty, to commence on 9 September 2027 and end on 8 March 2028.
(4)On the charge of damage property (CAN 2024/2871), the offender is convicted and sentenced to 1 month imprisonment, reduced from 40 days on account of the plea of guilty, to commence on 9 March 2028 and end on 8 April 2028.
(5)On the charge of damage property (CAN 2024/3385), the offender is convicted and sentenced to 1 month imprisonment, reduced from 40 days on account of the plea of guilty, to commence on 9 April 2028 and end on 8 May 2028.
(6)On the charge of damage property (CAN 2024/3386), the offender is convicted and sentenced to 1 month imprisonment, reduced from 40 days on account of the plea of guilty, to commence on 9 May 2028 and end on 8 June 2028.
(7)On the charge of damage property (CAN 2024/3387), the offender is convicted and sentenced to 1 month imprisonment, reduced from 40 days on account of the plea of guilty, to commence on 9 June 2028 and end on 8 July 2028.
(8)On the charge of unauthorised entry to motor vehicle (CAN 2024/3384), the offender is convicted and no penalty is imposed.
(9) The total period of imprisonment of 3 years and 11 months will commence on 9 August 2024 and end on 8 July 2028.
(10)A Drug and Alcohol Treatment Order pursuant to s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Mitchell Lloyd Jacka in respect of the eligible offences set out in Orders 1 to 7, of which Mitchell Lloyd Jacka has been convicted, and for which he has been sentenced for a total term of 3 years and 11 months imprisonment.
(11)The drug and alcohol treatment order be for 3 years, 7 months, and 14 days, to commence on 25 November 2024 and end on 8 July 2028.
(12)The Custodial Part of the drug and alcohol treatment order for the eligible offences here be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 25 November 2024 until 8 July 2028.
(13)The Treatment and Supervision Part of the drug and alcohol treatment order be for 1 year and 6 months, to commence on 24 November 2025 and end on 24 May 2026.
(14)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Mitchell Lloyd Jacka 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, 25 May 2026, until the end of the total sentence, 8 July 2028, 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.
(15)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)Mitchell Lloyd Jacka 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;
(c)Mitchell Loyd Jacka reside at 29 Keenan Street, Evatt ACT 2617 or as directed by the Treatment and Supervision Team.
(d)Mitchell Lloyd Jacka not leave his place of residence between the hours of 9pm and 7am, other than for a medical emergency or as directed by the Treatment and Supervision Team, and he present himself to the front door of the residence if required by an officer of ACT Policing.
(e)Mitchell Lloyd Jacka not return a positive test sample under alcohol and drug testing;
(f)Mitchell Lloyd Jacka not consume or use alcohol, cannabis, illicit drugs and prescription drugs not prescribed to him; and
(g)Mitchell Lloyd Jacka comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(16)Mitchell Lloyd Jacka 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.
(17)Mitchell Lloyd Jacka be directed to appear in person for DASL review in Court at 11:30am on Friday, 18 October 2024.
| I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 30 January 2025 |
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