Director of Public Prosecutions v Jember (No 2)
[2025] ACTSC 213
•22 May 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Jember (No 2) |
Citation: | [2025] ACTSC 213 |
Hearing Date: | 8 May 2025 |
Decision Date: | 22 May 2025 |
Before: | Christensen AJ |
Decision: | See [24] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – s 80ZE cancellation of a drug and alcohol treatment order – unlikely to comply with a condition of a treatment order – likelihood of achieving objects of order – imposition or resentence – low level of compliance with treatment order – aid and abet burglary – drug trafficking – driving while disqualified – sentence of imprisonment imposed – nonparole period imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 63, 65, 80W, 80ZB, 80ZD, 80ZE, 80ZH |
Cases Cited: | DPP v Jember [2024] ACTSC 311 |
Parties: | Director of Public Prosecutions ( Crown) Fasil Jember ( Offender) |
Representation: | Counsel J Churchill ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 74, 75, 108, 109 of 2024 |
CHRISTENSEN AJ:
Introduction
1․This matter comes before the Court for finalisation of review proceedings during which the drug and alcohol treatment order (treatment order) of Mr Jember has been cancelled: ss 12A, 80ZE, 80ZH Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The Court is now determining whether to impose the original sentence or to resentence Mr Jember.
Background
2․On 11 October 2024, Mr Jember was sentenced to a total term of three years and four months imprisonment: DPP v Jember [2024] ACTSC 311 (DPP v Jember). Mr Jember was sentenced, after reduction for the pleas of guilty, as follows:
Charge
Sentence
Aid and abet burglary
SCCAN 2024/123
1 year, 8 months imprisonment
Trafficking in a controlled drug (methylamphetamine)
CAN 2023/9562
1 years, 4 months imprisonment
Driving while disqualified
CAN 2023/9565
4 months imprisonment
3․The total term of imprisonment was to commence on 20 February 2024 and end on 19 June 2027, having been backdated to commence earlier to take into account a period of 234 days on remand: DPP v Jember at [47].
4․Mr Jember had sought that he have the opportunity to serve his sentence by way of a treatment order. He was found suitable for such an order by ACT Corrective Services and Canberra Health Services: DPP v Jember at [52]. With “measured optimism” (DPP v Jember at [60]), the Court found Mr Jember suitable for such an order, and found that it was an appropriate one to support him to finally address “the root cause” of his offending: DPP v Jember at [61].
5․The drug and alcohol treatment order was for a period of 2 years, 8 months, and 9 days, commencing on 11 October 2024 and concluding on 19 June 2027. The treatment and supervision part was for a period of 18 months: DPP v Jember.
Compliance with treatment order
6․Mr Jember’s compliance with the treatment order was consistent with what is often a non-linear journey from entrenched drug dependency. He engaged in cannabis use on occasions in the early stage of the order. Nonetheless, there were multiple occasions of negative results for substances from urinalysis testing. However, there were also some occasions of non-attendance at urinalysis testing. Sanction points were imposed and accrued, with this responded to by Mr Jember with a renewed commitment to abstinence from substances and to his family. He was reported as being motivated to be with his family during the Christmas period, and as engaging in long term consequential thinking.
7․However, the occasions of positive compliance with the order were not maintained. While Mr Jember did progress to engaging in some employment, he engaged in further cannabis use. The treatment order was first provisionally cancelled on 4 February 2025, and he was returned to custody. After serving the period in custody that corresponded to his accrued sanction points, the suspension of the term of imprisonment was reinstated on 14 February 2025: s 80ZB(1)(e) Sentencing Act. At this stage, Mr Jember was described as reflective of the consequences arising from his decision making.
8․The decision making he engaged in included use of substances while in custody. Subsequent testing found this to be use of cannabis and methamphetamine. This was the first occasion of a return to use of methamphetamine while Mr Jember was on the treatment order. Thereafter, there were occasions of methamphetamine use which Mr Jember disclosed, and he was sanctioned for. On 17 March 2025, the Court was informed of an incident of Mr Jember breaching his curfew, and his treatment order was again provisionally cancelled. The treatment order was, in accordance with s 80ZB(1)(e) of the Sentencing Act, reinstated on 25 March 2025.
9․On 3 April 2025, the Court was informed that Mr Jember had been arrested for alleged offending that was said to have occurred on 30 March 2025. Mr Jember was in custody in relation to the fresh charges, and his treatment order was again provisionally cancelled. He has remained in custody since that time.
10․It is relevant to emphasise two matters that were positive with respect to Mr Jember’s engagement with the treatment order. Firstly, the status reports demonstrate that he was consistent in his attendance at court and in his responsiveness to the treatment team. He progressed in his efforts of taking accountability for his occasions of noncompliance. Secondly, he engaged successfully with a rehabilitation day program, completing this on 26 February 2025.
Cancellation of treatment order
11․Despite these positive aspects, there were, overall, numerous examples of noncompliance with the order such that it was cancelled on 8 May 2025. This followed an application for cancellation by the prosecution pursuant to s 80ZE of the Sentencing Act. The grounds of the application were:
(a)That the offender is unwilling or unlikely to comply with a condition of the offender’s treatment order: s 80E(1)(c) Sentencing Act; and/or
(b)The continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order: s 80ZE(1)(d) Sentencing Act.
12․The Court found, while sufficient that one ground be established to succeed on the application, that both grounds were established. There was no basis to exercise the discretion not to cancel (R v Massey (No 4) [2021] ACTSC 211 at [21]), nor to confirm or amend the order per s 80ZH(6) of the Sentencing Act. With reference to his history of noncompliance with the order, it was established on the balance of probabilities that Mr Jember was unlikely to comply with conditions of the order, nor was continuation of treatment and supervision likely to achieve the objects of the order.
13․Of particular concern was that Mr Jember’s escalation in substance use, in terms of the substances involved, occurred after successful completion of a rehabilitation program. Mr Jember expressed during the cancellation application a willingness to engage further in rehabilitation, in particular, a residential rehabilitation program. However, his likelihood of finally achieving rehabilitation through such a measure was regarded as unlikely given his history.
14․It is relevant to emphasise that the material provided to the Court for the purposes of the cancellation application included information as to alleged offending that occurred on 30 March 2025. Mr Jember has not been convicted of these matters, and it was unnecessary in the circumstances to make any determinations in relation to those allegations. It was relevant only for the Court to understand the seriousness of the allegations, and the prospect of Mr Jember being available, in terms of being in the community, to engage further in a treatment order. While involving a degree of speculation as to what his remand status will be in the future, it was apparent that he is unlikely to be capable of compliance with a treatment order at least in the short term. Nonetheless, the application for cancellation was granted irrespective of the further alleged offending, and the remand status of Mr Jember, with the Court determining the application with reference to his history of noncompliance with the treatment order.
Imposition or resentence?
15․Cancellation of the treatment order having occurred, the Court is to then turn to determining whether to impose the original sentence orders or to resentence: s 80ZE(2) Sentencing Act.
16․The prosecution submitted that imposition of the original sentence order was the only appropriate course given the level of noncompliance that occurred. On behalf of Mr Jember, it was submitted that the Court consider the occasions when positive progress was made. Examples of this were drawn to the Court’s attention including the positive engagement with the rehabilitation program, examples of ‘clean’ urinalysis testing, engagement with employment, and engagement with family and in prosocial activities. It was submitted that these positive examples of compliance could inform that resentence was appropriate, or, alternatively, inform the determination as to when a nonparole period was to be set following imposition.
Consideration
17․While there was not further offending that is in the nature of the original offending, alleged or otherwise, this is not determinative as to the appropriate course at this stage. In R v Cook (No 2) [2024] ACTSC 27 at [10], as to a cancellation pursuant to s 80ZE of the Sentencing Act it was observed that:
[A] preliminary consideration is the extent to which there was compliance with the treatment and supervision part of the order. Having considered that, the court then turns to consider if it is appropriate in the circumstances to resentence. If it is not, the suspended portion is imposed.
18․I note that in DPP v Stewart (No 2) [2024] ACTSC 163 (DPP v Stewart (No 2)) at [27], it was observed that s 80ZE of the Sentencing Act (in contrast to cancellations pursuant to ss 80ZB and 80ZD of the Sentencing Act), may contemplate that there is a legislated default position of imposition. No submissions were made as to this in the current matter. In any event, it continues to be an issue unnecessary to decide.
19․It is plain that the only appropriate course with respect to Mr Jember is one of imposition. Mr Jember’s compliance with the order was not reflective of a solid, consistent, and sustained effort. While there were positive aspects as to his engagement with the treatment order, his periods of positive compliance were limited, and were amongst repeated examples of noncompliance. Mr Jember never fully demonstrated the necessary level of commitment to the opportunity for rehabilitation that was afforded to him. The Court’s “optimism” (DPP v Jember at [43]) in Mr Jember’s prospects of rehabilitation were again frustrated. Further, there are no circumstances that would tend towards it being appropriate to resentence. The examples of positive progress are not compelling in this regard, and there are no circumstances known to the Court that suggest there are significant differences relevant to the sentencing exercise to what were known at the original sentence proceeding. The sentence of imprisonment that was suspended under the custodial part of the treatment order is to be imposed.
Time in custody
20․As observed above, Mr Jember spent 234 days in presentence custody prior to the original sentence. This is to be again taken into account. Further, during the treatment order, a total of 70 days were spent in custody (4 February 2025 to 14 February 2025; 17 March 2025 to 25 March 2025; 3 April 2025 to 22 May 2025). The imposition will be backdated to reflect these periods, a total of 304 days: ss 63, 80W(4), 80ZE(3)(a) Sentencing Act.
21․I note that given the terms of s 80ZE(3), the decision to reduce the sentence by any period served in custody under the treatment and supervision part of the order appears to be discretionary: s 80ZE(3)(b) Sentencing Act. The section appears to provide that the discretion is to take “into account the extent to which the offender complied with [the treatment and supervision] part of the order” in deciding whether to make any
reduction. Exactly what is meant by this subsection is not entirely clear: DPP v Stewart (No 2) at [33]-[35]; R v Dowling (No 3) [2021] ACTSC 210 at [46]-[48].22․Nonetheless, the prosecution supported that there be recognition of the periods spent in custody in any order for imposition, and it is therefore unnecessary to determine the meaning of the subsection in this matter. The orders will reflect that the offender is to serve the sentence by full-time detention at a correctional centre (s 80ZE(3)(a)), recognising that the Court must take into account any period during which the offender has already been held in custody in relation to the offences (s 63(2)), and recognising that the Court may set a nonparole period in accordance with s 65 of the Sentencing
Act: s 80W Sentencing Act.
Nonparole period
23․It appears to be uncontroversial that the determination as to the setting of a nonparole period following an imposition of a cancelled treatment order sentence is informed by the principles that typically inform the setting of a nonparole period. Reflective of these, Mr Jember’s prospects of rehabilitation are relevant. As already observed, optimism in this regard has been frustrated, although it remains that there was some positive compliance with the order, including completion of a rehabilitation program. Nonetheless, it also remains that community protection is to be considered: R v Ruwhiu [2023] ACTCA 18 at [109]. The minimum period of imprisonment that justice requires to be served limits the prospect of leniency in the setting of the nonparole period.
Orders
24․For those reasons, the following orders are made:
(1)The cancellation of the drug and alcohol treatment order made on 11 October 2024 is confirmed.
(2)Pursuant to s 80ZE(2) of the Crimes (Sentencing) Act 2005 (ACT), the sentence of imprisonment under the custodial part of the drug and alcohol treatment order made on 11 October 2024 is imposed.
(3)The conviction of Fasil Jember of aid and abet burglary (SCCAN 2024/123) is confirmed and the sentence of 1 year and 8 months imprisonment is imposed to commence on 22 July 2024 and ending on 21 March 2026.
(4)The conviction of Fasil Jember of trafficking in a controlled drug (methylamphetamine) (CAN 9562/2023) is confirmed and the sentence of 1 year and 4 months imprisonment is imposed to commence on 22 March 2026 and ending on 21 July 2027.
(5)The conviction of Fasil Jember of driving while disqualified (CAN 9565/2023) is confirmed and the sentence of 4 months imprisonment is imposed to commence on 22 July 2027 and end on 21 November 2027.
(6)The total sentence imposed is 3 years and 4 months, to commence on 22 July 2024 and end on 21 November 2027.
(7)A nonparole period is imposed to commence on 22 July 2024 and end on 31 July 2026.
| I certify that the preceding twenty four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 22 May 2025 |
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