Director of Public Prosecutions v John (No 2)

[2024] ACTSC 199

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v John (No 2)

Citation: 

[2024] ACTSC 199

Hearing Date: 

3 June 2024, 18 June 2024, 25 June 2024

Decision Date: 

27 June 2024

Before:

Christensen AJ

Decision: 

See [95]-[96].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – s 80ZD cancellation of Drug and Alcohol Treatment Order – breach by commission of offence while subject to Treatment Order – s 80ZC suspension of treatment and supervision part – statutory construction – “subject to” a sentencing order – temporal co-existence of the Treatment Order and a sentencing order – s 34AA submissions on range of sentences – where time in custody prior to sentencing has exceeded length of the sentence – s 80ZD cancellation not enlivened – Treatment Order amended

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – take motor vehicle without authority – damage property – offending while on conditional liberty – nature and circumstances of the offence – term of imprisonment imposed – time served

Legislation Cited: 

Criminal Code 2002 (ACT) ss 310, 318, 403

Crimes (Sentence Administration) Act 2005 (ACT) s 86

Legislation Act 2001 (ACT) ch 14, ss 138, 141

Crimes (Sentencing) Act 2005 (ACT) ss 10, 12, 12A, 33, 34AA, 35, 35A, 63, 80W, 80ZC, 80ZD, 80ZE, 80ZH

Cases Cited: 

DPP v Deighan (No 2) [2023] ACTSC 295

Lacey v Attorney-General (Qld) (2011) 242 CLR 573

R v Burge (No2) [2024] ACTSC 20

R v Rosewarne [2021] ACTSC 217

R v Rowlands (No 2); DPP v Rowlands [2024] ACTSC 143

R v Tran [1999] NSWCCA 109

UD v Bishop [2021] ACTSCFC 1; 292 A Crim R 334

Veen v The Queen (No 2) (1988) 164 CLR 465; 33 A Crim R 230

Texts Cited: 

Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT)

Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2023 (ACT)

Supreme Court of the Australian Capital Territory, Behavioural Contract Protocol – Sanctions and Incentives, 30 September 2021

Parties: 

Director of Public Prosecutions ( Crown)

Matthew John ( Offender)

Representation: 

Counsel

G Meikle ( DPP)

C Duffy ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 318 of 2022

SCC 62 of 2024

CHRISTENSEN AJ:

Introduction

1․Matthew John is a participant in the Drug and Alcohol Sentencing List (DASL) who comes before the Court following the commission of offences during the term of his Drug and Alcohol Treatment Order (Treatment Order). The commission of the offences led to the provisional suspension of the treatment and supervision part of the Treatment Order pursuant to s 80ZC of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

2․Mr John is to be sentenced in relation to the offences, and the review proceeding in respect to the Treatment Order is to be considered under s 80ZH of the Sentencing Act. It is convenient in this matter to address firstly the matters for sentence, followed by consideration and determination of the review of the Treatment Order.

Background

3․On 28 August 2023, Mr John was sentenced for an offence of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code). A sentence of two years and eight months imprisonment was imposed. The sentence was backdated to commence on 22 July 2022, with the balance of one year, six months and twenty-one days suspended and incorporated into the custodial part of the Treatment Order pursuant to s 80W of the Sentencing Act.

4․The treatment and supervision part of the Treatment Order was imposed to commence on the same day as the suspension of the balance of the term of imprisonment and end on 20 March 2025. No good behaviour order was made under s 80ZA of the Sentencing Act. Thus, the sentence order ends on 20 March 2025.

5․Mr John was admitted to the Canberra Recovery Services residential rehabilitation program on 28 August 2023. He successfully completed this program and graduated on 24 November 2023.

6․On 7 December 2023, Mr John committed the offences of taking a motor vehicle without consent contrary to s 318(1) of the Criminal Code and damaging property contrary to
s 403(1) of the Criminal Code (the sentence offences).

7․The following day, on 8 December 2023, Mr John attended at court for a scheduled appearance as part of the Treatment Order. During this court appearance, Mr John made admissions to having consumed alcohol and methamphetamine: s 80ZM of the Sentencing Act. He was formally warned, and a reflection was requested: Supreme Court of the Australian Capital Territory, Behavioural Contract Protocol – Sanctions and Incentives, 30 September 2021. Upon leaving the court precinct, Mr John was arrested and charged in relation to the sentence offences. He was remanded in custody by the Magistrates Court.

8․As a result of this, on 15 December 2023, the Supreme Court provisionally suspended the treatment and supervision part of the Treatment Order pursuant to s 80ZC of the Sentencing Act. Mr John has remained in custody since his arrest while the sentence offences have progressed through the court process. On 7 March 2024, following a plea of guilty being entered, the offences were committed for sentence to the Supreme Court.

Sentence offences

9․As already observed, the sentence offences involve two offences committed on 7 December 2023. The offence of take motor vehicle without consent has a maximum penalty of imprisonment for five years and/ or 500 penalty units. The offence of damage property has a maximum penalty of 10 years imprisonment and/ or 1,000 penalty units.

Nature and circumstances of the offences: s 33(1)(a) of the Sentencing Act

10․The vehicle that was taken without consent and was damaged was a Kawasaki Ninja motorcycle.

11․Mr John was at the house of an associate in Isabella Plains. There were multiple people present on 7 December 2023, and they consumed illicit substances. Shortly after 10am, Mr John and his associates went to a next door house and took the motorcycle. Mr John pushed it back to his associate’s house.

12․At that time, the owner of the vehicle was at home with his partner. The victim saw the vehicle being taken and contacted police.

13․Before police attended, Mr John used an angle grinder to damage the steering column and fuel cap. This is described in the facts as being “severe damage”. The damage caused enabled the vehicle to be driven without a key.

14․The facts provide that shortly after, Mr John rode the vehicle away from the premises.

15․At about 10.30am, police were near to the victim’s address, and they saw the motorcycle being ridden on a nearby street. Police were unable to locate the vehicle, or the person driving it.

16․Police investigations led to Mr John’s partner being arrested at about 11am. She informed the police that she was present when the vehicle was taken by Mr John. Another of the associates was also arrested. He denied any knowledge of Mr John’s presence in respect to the vehicle. Both associates were released from custody and the information provided to the Court by the prosecution is that no other person was charged in respect to the offending.

17․The facts provide that Mr John “later realised that the vehicle belonged to [the victim], who was an old friend. As such, the defendant later met up with [the victim] at the Gowrie Shops Car Park and handed [him] back the vehicle … after handing the vehicle back … the defendant made no attempt to hand himself into police”.

18․As already observed, Mr John was arrested the following day in relation to these offences. Mr John declined to participate in a record of interview.

Loss or damage and effect on the victims: ss 33(1)(e), 33(1)(f) of the Sentencing Act

19․The value of the vehicle is not known, nor is the cost of the repairs to the vehicle from the damage. Presumably, the value of the motorcycle was not insignificant, but it was not at the value of a car, and the motorcycle was returned. The damage caused appears to have been relatively significant, such that there were likely financial implications for the victim.

20․Further, the victim likely experienced frustration and inconvenience from the offences. The circumstances of the taking of the vehicle were likely also alarming for the victim and his partner.

Consideration

21․The prosecution submitted that, in assessing the objective seriousness of the offence of take motor vehicle without consent, the court should have regard to the vehicle having been driven by the offender for a period of time. However, Mr John is not charged in relation to, nor to be sentenced for, such conduct. I adopt what was said by Murrell CJ in R v Rosewarne [2021] ACTSC 217 at [123] as to the considerations that inform the objective seriousness of the offence of take motor vehicle without consent as being –

(a)the degree of planning;

(b)the motive for the offence, including whether it was undertaken to facilitate another offence;

(c)whether the taking caused damage to the vehicle (unless separately charged) and whether the vehicle was recovered.

22․The considerations that Murrell CJ identified were not intended by her Honour to be exhaustive, but there is no basis, given the elements that establish the offence, upon which the considerations could extend to a person having driven the vehicle beyond what was required to establish the taking of the vehicle. Here, there was no such driving involved in the taking of the vehicle.

23․I do accept the prosecution submission as to some other features said to be salient in assessing the objective seriousness of this offence. That is, the vehicle was taken from the victim’s home, it appears to have been opportunistic offending involving limited planning and premeditation, and that the vehicle was returned to the victim.

24․I would add to this that there is a brazenness to the offending that is of concern and suggests a need to reflect specific deterrence in the sentence to be imposed. Further, there is nothing to suggest the motivation for the offending was to facilitate another offence.

25․The prosecution otherwise submitted that the duration of the vehicle having been taken appears to have been for the better part of a day and that this is informative in assessing the objective seriousness of the offence. I accept that this is informative to the extent that it informs the loss to, and the effect on, the victim.

26․Mr John pleaded guilty to both offences at a stage when the matters were in the Magistrates Court, with a relatively early indication of this intention and no brief of evidence having been prepared. There is a high utilitarian value to the plea of guilty such that if it is necessary to quantify the appropriate discount it would be 25 per cent. This early plea of guilty otherwise indicates Mr John’s remorse and insight, as does his actions in returning the motorcycle to the victim.

27․The prosecution did submit that the case was one that was ‘overwhelming strong’ such that there ought not be a significant reduction for the plea of guilty: s 35(4) of the Sentencing Act. This submission was partially premised on Mr John having returned the vehicle to its owner, and as such, it was submitted that a reduction may still arise due to assistance in administration of justice: s 35A of the Sentencing Act. I am not persuaded that the case was overwhelmingly strong given that, on the extent of information known to the Court, the return may have only formed part of a circumstantial case. The information available to the Court is that the direct evidence involved inconsistent witness accounts.

28․I am though satisfied that the return of the vehicle enlivens consideration of s 35A. Whether the court imposes a lesser penalty in such circumstances remains discretionary, and any lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence. Here, I have had regard to the recovery of the vehicle, and the circumstances in which it was returned, in assessing the objective seriousness and the remorse demonstrated. I am not persuaded that any additional reduction, beyond that already determined for the plea of guilty, is appropriate.

29․The prosecution submission, one seemingly at least partially premised on an assessment of objective seriousness that erroneously included reliance on Mr John having driven the vehicle, was that no penalty other than imprisonment is appropriate:
s 10 of the Sentencing Act. It was further submitted by the prosecution that a period of
full-time imprisonment that involved the time spent remanded on pre-sentence custody would not be inappropriate. This is a submission that the court may consider: s 34AA of the Sentencing Act.

30․On behalf of Mr John, it was submitted that there was an acceptance that imprisonment was appropriate given the offending occurred while Mr John was subject to conditional liberty.

31․As said in R v Rowlands (No 2); DPP v Rowlands [2024] ACTSC 143, applying R v Tran [1999] NSWCCA 109 at [15], the betrayal of the opportunity of a Treatment Order is regarded very seriously and should weigh against the offender. There are, as observed by Norrish AJ in DPP v Deighan (No 2) [2023] ACTSC 295, “degrees of seriousness of breaches of conditional liberty”. A breach involving a Treatment Order is a serious example of this aggravating factor on sentence, given the privilege entailed in such an Order and the betrayal of the trust that the court and the community place in a participant afforded such an opportunity.

32․I agree that the breach of conditional liberty that occurred here is of significance in determining the appropriate sentence to be imposed. It was not only a breach of a Treatment Order but was one that occurred only some two weeks after completion of residential rehabilitation. The offending was not of a similar nature to the original offending, but it occurred in circumstances of a similar nature, arising when there had been engagement in illicit substance use with associates.

33․However, the nature and circumstances of the offending here lead to a conclusion that this was an offence of low objective seriousness. It lacks features of seriousness that typically arise in offences of this type, such as the taking of a vehicle in the early hours of the morning following a burglary of the house to obtain the keys. The motorcycle was returned within a relatively short timeframe, and the financial implications involved, while no doubt not insignificant for the victim, are, relatively, insubstantial for offending of this type.

34․As already observed, the brazenness of the take motor vehicle offending does merit a level of deterrence in the sentence to be imposed. As does Mr John’s criminal history. Mr John’s criminal history does not involve offending of the same complexion of the sentence offences, but it does demonstrate that the sentence offences are not “uncharacteristic aberrations” and that Mr John manifests “a continuing attitude of disobedience”: Veen v The Queen (No 2) (1988) 164 CLR 465; 33 A Crim R 230 at 239 (Veen (No 2)). Mr John’s criminal history reflects offending behaviour in New South Wales and the ACT [redacted] His offending involves primarily drug and driving offences, and some occasions of assault and burglary. He has been previously imprisoned in both jurisdictions.

35․While the criminal history cannot of course be “given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity” of the sentence offences, it leads to a conclusion that not only deterrence, but punishment and protection of the society are relevant sentencing purposes: Veen (No 2) at 238-9. The other purposes of sentencing, as provided in s 7 of the Sentencing Act, are also relevant in determining the appropriate sentence. In addition, there is the feature of the offending having occurred while on a Treatment Order, which, as already observed above at [30]-[31], is an aggravating factor.

36․I conclude that having considered possible alternatives, no penalty other than imprisonment is appropriate.

37․Mr John has been remanded in custody in relation to the charges since 8 December 2023, a total of 202 days. It is appropriate that the term be backdated in accordance with s 63 of the Sentencing Act.

38․It is also appropriate that there be a level of concurrency between the sentences to be imposed to give effect to the totality principle. The orders will otherwise reflect that the damage caused to the vehicle was separately charged and does not inform the objective seriousness of the take motor vehicle offence.

Cancellation proceeding

39․The prosecution submitted that if a sentencing order is imposed with respect to the sentence offences, then cancellation is mandatory per s 80ZD(3) of the Sentencing Act. If though a sentencing order was not imposed, then cancellation is discretionary under
s 80ZD(2)(d).

40․However, the terms of the section mean that it is not simply whether such an order is imposed, but whether the offender “is subject to” such an order. Section 80ZD, as in effect from 9 November 2023, provides –

80ZD Breach of treatment order—commission of offence

(1)This section applies if—

(a)an offender to whom a treatment order applies commits an offence against a law in force in Australia or elsewhere (a further offence) while subject to the order; and

(b)the further offence is punishable by imprisonment; and

(c)the court—

(i)   convicts the offender of the further offence; or

(ii)     is satisfied that the offender was convicted by another court, in the ACT or elsewhere, of the further offence.

(2)If the offender is not subject to a sentencing order for the further offence, the court may—

(a)make no order in relation to the treatment order; or

(b)give the offender a warning about the need to comply with the offender’s treatment order obligations; or

(c)make an order amending the treatment and supervision part of the order; or

(d)make an order cancelling the treatment order.

(3)If the offender is subject to a sentencing order for the further offence, the court must make an order cancelling the treatment order.

Note A sentence of imprisonment suspended under a treatment order is not part of a suspended sentence order (see s 12 (7)).

(4)If the court cancels a treatment order under subsection (2) (d) or (3), the court must either—

(a)impose the sentence of imprisonment that was suspended under the custodial part of the treatment order; or

(b)if the court considers it appropriate in the circumstances—resentence the offender for each offence in relation to which the treatment order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and Alcohol Treatment Orders).

(5)If the court orders the imposition of a sentence of imprisonment under this section, the court—

(a)must order that the offender serve all or part of the sentence by full-time detention at a correctional centre; and

(b)may reduce the sentence by any period served in custody under the treatment and supervision part of the treatment order, taking into account the extent to which the offender complied with that part of the order.

(6)The court may make an order under this section on its own initiative or on application by—

(a)the offender; or

(b)the director of public prosecutions; or

(c)a member of the treatment and supervision team; or

(d)a person prescribed by regulation.

(7)If the court makes an order under this section, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to—

(a)the offender; and

(b)any other person the court considers should receive the notice.

(8)Failure to comply with subsection (7) does not invalidate the treatment order.

(9)In this section:

sentencing order—see section 12A (9).

41․A sentencing order for the purposes of s 80ZD is defined in s 12A(9) of the Sentencing Act as –

(9)In this section:

…

sentencing order means any of the following:

(a)an order for imprisonment by full-time detention;

(b)a suspended sentence order;

(c)an intensive correction order;

(d)a deferred sentence order;

(e)a parole order;

(f)an order under a law in force in Australia that corresponds to an order mentioned in paragraphs (a) to (e).

42․As will become apparent from the orders, a sentencing order is to be imposed. That is, a period of full-time imprisonment is imposed for the sentence offences. The term of the order is such that, as at the time of the review proceeding in respect to the Treatment Order, the period of full-time imprisonment will have been served.

43․A preliminary issue then arises as to whether mandatory cancellation is pursuant to
s 80ZD(3) or whether there is a discretion pursuant to s 80ZD(2)(d). That is, whether Mr John is “subject to” a sentencing order at the time of the review of his Treatment Order.

Statutory construction

44․The prosecution submitted that even in circumstances where the full-time imprisonment has been served, that mandatory cancellation is enlivened. It was submitted that both a textual and a purposive analysis lead to this conclusion. The defence representative did not make any submissions contrary to this.

45․I accept the prosecution submissions as to the approach to be taken for the statutory interpretation exercise that is to be undertaken. That is, Ch 14 of the Legislation Act 2001 (ACT) (Legislation Act) is relevant, as are the common law presumptions that operate in statutory interpretation. The prosecution also, appropriately, emphasised the centrality of legislative purpose in the interpretive process: UD v Bishop [2021] ACTSCFC 1; 292 A Crim R 334 at [68].

46․Adopting a textual analysis, with reference to the statute as a whole, the prosecution submitted that “is subject to” is properly read as not requiring a temporal co-existence between the offender being subject to a sentencing order and the court acting under
s 80ZD(3) of the Sentencing Act. It was submitted that undue emphasis ought not be placed on the choice of tense given the tense otherwise utilised in the section. It was submitted that the point in time at which s 80ZD is applied is ultimately arbitrary and that the section is best read as to whether the offender is subject to a sentencing order as a further condition precedent to mandatory cancellation, and no more.

47․The prosecution further submitted that if the court was against their submission as to there being no requirement for temporal co-existence, then in any event, the requirement is met at the time of sentence being passed as the offender is still made subject to an order on that date. The prosecution emphasised s 10(2) of the Sentencing Act, which states that “the court may, by order, sentence the offender to imprisonment”. It was submitted that s 63, as to the direction a court may make, provides a mechanical feature for an order under s 10(2), rather than altering the nature of the order.

48․The prosecution also relied on a purposive interpretation and submitted that the legislature was concerned with a sole question as to what the quality of the sentence imposed for the further offence was. The prosecution submission is that if the answer to that question is a ‘sentencing order’ as defined under s 12A(9), then s 80ZD(3) is enlivened.

49․The prosecution submission with reference to solely a textual reading of the section may have some persuasive force. It can be accepted that if the question as to whether a participant faces mandatory cancellation, without any scope for judicial discretion, hinges on the time at which the court comes to consider the application of s 80ZD, then there is potential for contortion or unfairness.

50․In working out the meaning of s 80ZD, ascertaining the legislative purpose becomes of significance: ss 138 and 141 of the Legislation Act. In doing so, the court is concerned with the intention disclosed by the meaning of the language used, that is, the purpose resides “in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction”: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 592 [44].

51․Here, the legislative history of the provision is informative as to this.

52․Up until 8 November 2023, the original the relevant subsections of 80ZD provided –

…

(2)If the sentence imposed on the offender for the further offence is not a sentence of imprisonment, the court may –

(a)make no order in relation to the treatment order; or

(b)give the offender a warning about the need to comply with the offender’s treatment order obligations; or

(c)make an order amending the treatment and supervision part of the order; or

(d)make an order cancelling the treatment order and either—

(i)   impose the sentence of imprisonment that was suspended under the custodial part of the treatment order; or

(ii) if the court considers it appropriate in the circumstances—resentence the offender for each offence in relation to which the treatment order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and alcohol treatment orders).

(3)If the sentence imposed on the offender further offence is a sentence of imprisonment, the court must make an order cancelling the treatment order and imposing the sentence of imprisonment that was suspended under the custodial part of the treatment order.

(emphasis added)

53․The legislature was seemingly concerned to draw a distinction between further offences that involved a sentence of imprisonment, of whatever form – or “mechanical feature” to adopt the prosecution description – and offences for which a sentence of imprisonment was not imposed.

54․The legislative intent as to this can be ascertained from the Explanatory Statement to the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) (2019 Explanatory Statement). This provides, in the explanation to the breach provisions where there has been further offending –

In order to comply with their obligations under the treatment and supervision part of a DATO, the offender must be within the community to attend appointments and participate in programs. This section applies if the offender is held in custody after being charged with further offences … the court must make an order provisionally suspending the treatment and supervision part of the DATO until the offender is no longer in custody, or the court makes an order cancelling the DATO.

55․It is also relevant to observe that in the 2019 amendments that introduced the Drug and Alcohol Treatment Order provisions, the 2019 Explanatory Statement provides in respect to s 12A –

Paragraph 12A(1)(c) requires the offender not to be subject to a ‘sentencing order’ for another offence, as the DATO is a highly intensive order which requires the offender to engage with multiple agencies in order to address both the offender’s criminogenic and therapeutic risk factors. Requiring the offender to comply with multiple orders would undermine the basis for the order and would jeopardise the sentencing goals.

56․It is apparent that the legislature was concerned to ensure that there was not an inconsistency in orders that an offender was subject to. That is, a period of full-time imprisonment is plainly inconsistent with the ability to achieve the objects of a Treatment Order, as is the ability to be subject to both a Treatment Order and another type of order involving forms of engagement with Corrective Services.

57․The 2019 Explanatory Statement suggests that the legislature was not concerned with whether the further offending was of such a nature that the s 10 threshold of the Sentencing Act was crossed such that the only appropriate sentence order was a term of imprisonment. Rather, the legislature was concerned to avoid inconsistency in orders.

58․In November 2023, s 80ZD of the Sentencing Act was amended with the provision introduced as set out above at [39]. A significant change was made, being one that enforces the conclusion as to the original legislative intent.

59․Section 80ZD was amended such that the focus was not simply on whether there was a sentence of imprisonment imposed, but whether the offender was subject to a particular form of sentencing order, being an order plainly inconsistent with meeting the obligations of a Treatment Order. Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2023 (ACT) (2023 Explanatory Statement) provides in respect to this particular amendment –

The Bill proposes the following amendments to the Sentencing Act and Sentence Administration Act:

…

h. Clarify that section 80ZD of the Sentencing Act only applies to offences committed during the treatment order.

i. Allow the court discretion to cancel a treatment order and resentence the offender for each offence; and

j. Clarify the inconsistency between sections 80ZD and 12A(1)(c) and (9) of the Sentencing Act with respect to terminology for sentencing orders.

60․As to (i) above, the Explanatory Statement provides –

Sections 80ZD(2) and (3) of the Sentencing Act empower the court to cancel an offender’s treatment order if an offender has breached their treatment order by conviction for an offence punishable by imprisonment.

This Bill inserts the new subsection (3A) to section 80ZD to increase the flexibility of the court when cancelling a treatment order under subsection (2) or (3). This Bill provides that where the court cancels the treatment order under subsection (2) or (3), the court may either impose the sentence of imprisonment that was suspended under the custodial part of the treatment order; or if the court considers it appropriate in the circumstances, resentence the offender for each offence under the treatment order in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing.

(emphasis added)

61․Further as to this aspect of the amendment, it is provided –

This clause omits ‘sentence imposed on the offender for the further offence is not a sentence of imprisonment’ and substitutes ‘offender is not subject to a sentencing order for a further offence’.

This clause improves consistency between the provisions relating to treatment orders within the Sentencing Act, as it replaces the phrase ‘sentence of imprisonment’ with ‘sentencing order’. Clause 37 provides a definition for ‘sentencing order’ with reference to section 12A(9).

A risk associated with this clause is that a ‘deferred sentence order’ is listed as a ‘sentencing order’ under section 12A(9), which may impact a specific cohort of offenders who receive a deferred sentence order in another jurisdiction.

In the ACT, a deferred sentence order cannot be imposed on an individual that is already liable to a sentence of imprisonment, which means that an offender subject to a treatment order cannot also be subject to a deferred sentencing order for a further offence. Accordingly, there is no conflict between this clause and the existing operation of section 80ZD within the ACT.

However, there is a risk that a deferred sentence order may be imposed on an offender who is subject to a treatment order in another State or Territory. If a deferred sentence order is imposed in another jurisdiction, the offender may be at risk of having their treatment order cancelled under section 80ZD(3).

(emphasis added)

62․As to (j) –

This Bill amends section 80ZD of the Sentencing Act to replace the term ‘sentence of imprisonment’ with ‘sentencing order’ as defined in section 12A(9), to increase consistency within the Sentencing Act.

63․This amendment was further explained in the 2023 Explanatory Statement as –

The new subsection (3A) [subsection (4) once amended] provides the court with the option to resentence the offender instead of automatically imposing the sentence of imprisonment suspended under the treatment order, increasing the range of orders the court may make other than a sentence of imprisonment.

…

This clause inserts subsection (8), which defines sentencing order with reference to section 12A(9), to improve consistency between the provisions relating to treatment orders in the Sentencing Act.

(emphasis added)

64․While there is, as the prosecution submitted, an apparent intention to address consistency of orders where a deferred sentence order is involved, as shown above at [60], there is otherwise an emphasis on improving general consistency for the Treatment Order provisions, while also promoting the availability of discretion for the court.

Consideration of “subject to” under s 80ZD

65․Having had regard to the legislative history of the provision, it is apparent that the legislature has been concerned to ensure a DASL participant is not required to comply with orders that are inconsistent with meeting the therapeutic requirements and goals of a Treatment Order. The apparently deliberate inclusion that a participant be “subject to” certain orders, and the legislative intent as to when and why such orders are relevant, cannot be subject to a form of bowdlerisation, nor ignored. The issue is not, as the prosecution submitted, one of the quality of the order imposed, but the quality of the order an offender is subject to.

66․The intention is not to render a participant unable to comply with a Treatment Order if the further offending warrants a term of imprisonment. The focus is not on the seriousness of the further offending, but rather, on the likelihood of operative inconsistency in orders. The “mechanical feature” of the order an offender is subject to is relevant.

67․Subject to the discussion below at [68], all of the forms of sentencing orders that exclude imposition of, or continuation on, a Treatment Order, are concerned with a form of order that limits the availability and practicality for effective engagement with a Treatment Order.

68․Nonetheless, it might be considered that a suspended sentence order may not always be of this character: s 12 of the Sentencing Act. It is conceivable that a good behaviour order imposed with a suspended sentence may not, in practice, involve onerous requirements inconsistent with a Treatment Order if the good behaviour order imposed only core conditions. There would though still be a requirement to comply with directions: see s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) and, on a practical application of such orders, an inconsistency in administrative oversight by Community Corrections. The inclusion of this form of order in the meaning of ‘sentencing orders’ under s 12A(9)(b) does not alter my view.

69․This is not to say that the seriousness of the further offending is not a relevant consideration in determining the appropriateness of a participant’s continuation on a Treatment Order where such offending has occurred. But this is not necessarily determinative of what is to occur. Rather, the provisions are intended to afford the court a discretion as to the appropriate order for a participant, having regard to any other orders that they may be subject to at a particular point in time.

70․Here, it comes back to whether, at the time of review of the Treatment Order arising from the breach of the order by way of offending, Mr John is subject to a sentencing order that precludes him from engaging with a Treatment Order. Having considered the statutory framework and legislative intent within which s 80ZD operates, there is no textual or purposive reason why a term of imprisonment, which has been served by the time the
s 80ZD review occurs, enlivens mandatory cancellation of the Treatment Order.

71․This interpretation does not preclude the court from retaining an ability to cancel the order if the further offending warrants such a conclusion (see below at [75]). It simply gives effect to the legislative intent that there is a temporal co-existence between the sentencing order for any further offending and the stage at which the review is undertaken.

72․I have given careful consideration as to whether such an interpretation is contrary to best achieving the purpose of the Sentencing Act and specifically the Drug and Alcohol Treatment Order provisions, given the risk of contortion and unfairness as submitted by the prosecution. I am not satisfied that it ultimately is. Such a risk is present for any offender wishing to participate in the DASL. For example, they may have outstanding summary charges at the time their Supreme Court sentence comes to be finalised such that they could be precluded from being eligible or suitable for a Treatment Order:
ss 80S and 80T of the Sentencing Act. Or an offender may be subject to a sentencing order for previous offending by the time they come to be considered for threshold eligibility for a Treatment Order under s 12A(1)(c) of the Sentencing Act and this precludes them from such an order.  

73․Such circumstances, that can arise as a result of court processes, are not without precedent in the DASL. Nor are examples of participants who have committed further offences but not been exposed to cancellation given the form of sentencing order imposed. The approach of the court has been, appropriately, to apply the legislative provisions, giving effect to their intent, to the individual circumstances as they arise. This ensures that, to the extent possible, the provisions are applied fairly, consistently, and in accordance with the legislature’s intention. What will occur here with Mr John is simply another example of this.

74․I also observe that I do not accept the prosecution submission that the interpretation as determined by the Court in this decision risks “inspiration” in DASL participants to delay finalisation of fresh charges to potentially secure an outcome that enables them to continue on a Treatment Order where there has been further offending behaviour.

75․Firstly, this is not a basis to favour one interpretation over another, particularly in the absence of such a clear legislative intent. Secondly, for this to occur, the parties would be ignoring their obligation to assist the court. Thirdly, the prosecution can seek a review of a Treatment Order where the treatment and supervision part has been provisionally suspended pursuant to s 80ZC at any time: see s 80ZH(2)(b)(ii) of the Sentencing Act.

76․For example, here, there was no impediment for the prosecution to initiate a review and seek that the court cancel the Treatment Order at any time following Mr John having been charged. It was not necessary that the proceeding for the sentence of the offences be finalised before the court, but rather, that the court be satisfied that the review is in the interests of justice. While s 80ZD would not be available in the absence of a conviction, a variety of basis for cancellation are available for the court to consider where unsatisfactory circumstances arise: see s 80ZE of the Sentencing Act.

77․The prosecution did not do so, and accordingly, the court is left here to determine the appropriate outcome having regard to the circumstances as they now arise. For Mr John, the appropriate orders for the sentence offences will be periods of imprisonment that have been served. Accordingly, at the review and determination of his Treatment Order pursuant to ss 80ZH and 80ZD of the Sentencing Act following the imposition of the orders for the sentence offences, Mr John is not subject to a sentencing order. Section 80ZD(3) thus does not apply.

Section 80ZD(2) of the Sentencing Act

78․That does not though finalise the determination in this matter. The Court must still consider which of the discretionary orders available under s 80ZD(2) is appropriate.

79․Initially during the hearing of this proceeding, Mr John, through his counsel, did not seek an opportunity to continue on the Treatment Order, indicating an intention to secure
full-time employment upon his release from custody. He, quite properly, recognised that such a course would not enable him to meet his Treatment Order obligations.

80․Subsequent to that appearance, Mr John, again through his counsel, indicated that he did seek an opportunity to continue on the Treatment Order. In accordance with the procedural fairness that s 80ZH envisages for a review (see R v Burge (No2) [2024] ACTSC 20 at [11]), evidence was adduced from Mr John and the treatment and supervision team as to the appropriate order.

81․Mr John expressed that he made a quick decision against continuation on the Treatment Order in the context of the court proceeding. He said that as soon as court finished, he thought he had made the wrong choice and he contacted his lawyer about this. He said that he was confident that he would benefit from the counselling available under the Treatment Order, and that he has available to him a prosocial environment with his sister. He is interested to engage in employment but understands the importance of complying with the Treatment Order as a priority initially. Mr John said that he has not used substances while in custody and that there is value for his being on a Treatment Order as he doesn’t “want drugs in [his] life anyway”.

82․Health Services supported the continuation of the Treatment Order, with no contrary views expressed by other therapeutic members of the treatment and supervision team. It was recommended that there be a strong warning as to the need to comply with the order, and that there be an extension of the treatment and supervision part of the order. It was proposed that Mr John be required to participate in a day rehabilitation program.

83․From the outset, the prosecution submitted that it is appropriate that there be cancellation of the Treatment Order for the following reasons –

(a)The offender was less than four months into the order at the time of the offending;

(b)The offender had graduated from residential rehabilitation less than two weeks prior to the offending, and so it is difficult to see what confidence the court and the community could have in the efficacy of treatment for this offender; and

(c)The further offending was by no means trivial.

84․The prosecution emphasised that the period of time remaining on the Treatment Order is such that there is a compression of time for treatment and supervision that limits the ability to achieve the therapeutic goals.

85․It was submitted that if the Treatment Order was not cancelled, that any amended order should include a requirement for a day program, a transitional opportunity that Mr John did not have previously. Further, it was submitted that Mr John, having sought an opportunity to continue on the Treatment Order, has demonstrated a willingness to “not take the easy road … [but] to take the hard road” with rehabilitation rather than imprisonment.

86․On behalf of Mr John, it was emphasised that prior to the offending behaviour, he had been doing very well with his progress on the Treatment Order. He completed residential rehabilitation with no sanction points or substance use. He has then engaged with rehabilitation programs available to him while in custody and has expressed his willingness to recommence at Phase 1 of the Treatment Order.

Determination: s 80ZH of the Sentencing Act

87․I accept the prosecution submission that the offending occurring a short time after release from residential rehabilitation is of concern. However, this factor, and that it occurred within four months of the imposition of the order are not necessarily indicative of unsuitability for a Treatment Order. The non-linear nature of rehabilitation is something very familiar to this court.

88․Of more relevance is the nature and circumstances of the offending behaviour. I accept that it was not trivial, but it was of low objective seriousness and not a nature similar to the original offending. The circumstances in which it occurred are indicative of a rehabilitation lapse that, again, is reflective of the non-linear nature of rehabilitation. It is not demonstrative of Mr John having an inability to rehabilitate.

89․Mr John demonstrates a level of insight into the circumstances that led to the offending behaviour and commitment to continuing his rehabilitative efforts with the support available through a Treatment Order.

90․The community’s interest in achieving the objects of a Treatment Order for Mr John remain, and there is no reason why the objects cannot still be achieved: see s 80O of the Sentencing Act. I conclude that this is so even in circumstances where the recommendation for an extension of the treatment and supervision part of the order cannot be applied as Mr John’s original sentence involved only a Treatment Order with no period of a good behaviour order.

91․While plainly the period of time remaining, eight months and 22 days, is less than might be therapeutically preferred, it is not an insignificant period, and it is a period that still enables opportunity for solid rehabilitative progress before the completion of the sentence order.

92․Mr John has already engaged successfully in a residential rehabilitation program, he has engaged with some rehabilitation activities while in custody, and he has prosocial supports available to him. There is a basis upon which to have optimism that Mr John can still achieve successful completion of the objectives of the Treatment Order in the period of time remaining.

93․I conclude that in all the circumstances it is appropriate that Mr John be warned about the need to comply with his Treatment Order obligations: s 80ZD(2)(b) of the Sentencing Act. Consequential orders will be made that will have the Treatment Order reinstated with necessary amendments: ss 80ZC and 80ZH(6) of the Sentencing Act.

Orders

94․For those reasons the following orders are made:

95․In the proceeding of SCC 62 of 2024:

(1)Matthew John be convicted of take motor vehicle without authority (CAN 12117/2023) and he be sentenced to 4 months imprisonment to commence from 8 December 2023 and end on 7 April 2024.

(2)Matthew John be convicted of damage property (CAN 12118/2023) and he be sentenced to 2 months imprisonment to commence from 8 March 2024 and end on 7 May 2024.

96․In the proceeding of SCC 318 of 2022:

(3)Pursuant to s 80ZD(2)(b) of the Crimes (Sentencing) Act 2005 (ACT), Matthew John be given a warning on the need to comply with the offender’s treatment order obligations.

(4)Pursuant to s 80ZD(2)(c) of Crimes (Sentencing) Act 2005 (ACT), the Drug and Alcohol Treatment Order made on 28 August 2023 be amended as follows:

(a)Omit conditions 4, 5 and 6.

(b)Add at the end of the Order the following conditions:

“10. Matthew John not consume alcohol, cannabis, illicit substance and prescription drugs not prescribed to him.

11. Matthew John reside at [redacted] and he not leave his place of residence between the hours of 6:00pm each day and 8:00am the next day other than for a medical emergency and present himself to the front door of his residence if required by an officer of ACT Policing.

12. Matthew John admit himself into the drug rehabilitation day program at Canberra Recovery Hub in Braddon, ACT no later than Monday 1 July 2024, and he complete the program and obey all rules and obligations of the program and the facility, and obey all reasonable directions of the person in charge of his program.”

(c)Matthew John return for DASL Review in person on Tuesday 2 July 2024 at 12:30pm before Christensen AJ.

(5)It be noted that availability for transitional housing at the Canberra Recovery Services for Matthew John is to be ascertained should the residence in [redacted] be found not suitable for accommodation.

I certify that the preceding ninety-six [96] numbered paragraphs are a true copy of the Reasons for Judgment and Sentence of her Honour Acting Justice Christensen

Associate: J Liu

Date: