Director of Public Prosecutions v Kay (No 2)

[2025] ACTSC 300

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Kay (No 2)

Citation: 

[2025] ACTSC 300

Hearing Date: 

15 July 2025

Decision Date: 

15 July 2025

Before:

Christensen AJ

Decision: 

See [7] 

Catchwords: 

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – drug and alcohol treatment order – early graduation from treatment and supervision part of treatment order – rehabilitation achieved – objects of treatment order achieved – perseverance – building a quiet life – no sanctions imposed while on treatment order – order amended – good behaviour order

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT) ss 80O, 80ZH

Cases Cited: 

DPP v Kay [2024] ACTSC 284

Parties: 

ACT Director of Public Prosecutions

Andrew Allan Kay ( Participant)

Representation: 

Counsel

G Meikle (DPP)

K McGowan ( Participant)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Participant)

File Numbers:

SCC 14 of 2024

CHRISTENSEN AJ:

Introduction

1․On 13 September 2024, Andrew Kay was sentenced in the Drug and Alcohol Sentencing List: DPP v Kay [2024] ACTSC 284 (DPP v Kay). 

2․Mr Kay was sentenced in relation to firearm offences arising from the manufacture of firearms by 3D printing.  His offending in that regard occurred in the context of substance dependency that developed from a pattern of using alcohol and polysubstances as a maladaptive coping strategy: DPP v Kay at [38].

3․He was sentenced to a total term of three years imprisonment, with a drug and alcohol treatment order imposed.  The treatment and supervision part of the order was to be for a period of 12 months, until 12 September 2025, to be followed by a good behaviour order until the conclusion of the sentence on 8 May 2027.  Mr Kay had spent some six months in custody prior to the imposition of sentence.  He has not returned to custody since that time. 

4․Mr Kay has achieved his rehabilitation goals, and those of the treatment team with respect to his rehabilitation.  As of July 2025, the treatment team have recommended that the treatment and supervision part of the order be concluded, and that Mr Kay be continued under the order with supervision by way of good behaviour.  This reflects an early progression under the treatment order, some two months early, and reflects the significant positive rehabilitative progress that Mr Kay has demonstrated. 

5․Having regard to the position of the treatment team, I am satisfied, pursuant to s 80ZH of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that it is in the interests of justice to review the treatment order.  On Mr Kay’s behalf, it is sought that the order made on 13 September 2024 be amended to commence the good behaviour order component.  The prosecution supports the application. 

6․The Court agrees that such a progression is appropriate. Mr Kay has achieved the objects of the treatment order provided by s 80O of the Sentencing Act:

80O Objects of drug and alcohol treatment orders

The objects of making a treatment order in relation to an offender is to—

(a)facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and

(b)reduce the offender’s dependency on alcohol or a controlled drug; and

(c)reduce the health risks associated with the offender’s dependency on alcohol or controlled drugs; and

(d)assist with the offender’s integration into the community; and

(e)promote community safety by reducing the level of criminal activity caused by alcohol or controlled drug dependence in offenders.   

Orders

7․For those reasons, the following orders are made:

(1)A review of the drug and alcohol treatment order made on 13 September 2024 and last amended on 3 December 2024 is conducted pursuant to s 80ZH(1) of the Crimes (Sentencing) Act 2005 (ACT).

(2)Condition 9 of the order made on 13 September 2024 and last amended on 3 December 2024 is amended as follows:

(9)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Andrew Allan Kay 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, being 16 July 2025 until the end of the total sentence, being 8 May 2027, 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 including as to alcohol and drug testing, counselling and treatment.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen

Associate:

Date:         15 July 2025

Remarks to participant on graduation

Andrew, we now move to celebrate your graduation from the treatment and supervision part of your drug and alcohol treatment order.

It is an opportunity to celebrate the hard work you have done since September 2024, when your treatment order commenced, and also the work that you have done towards rehabilitation that commenced before the treatment order.    

It is an opportunity to recognise what you have achieved in meeting the expectations of the treatment team, the Court, and the community.  It is also an opportunity for reflection as to the journey of rehabilitation that you have undertaken.

Your journey of rehabilitation is one that has taken place on the lands, amongst the waterways, and under the sky of the Traditional Custodians of this Country. I acknowledge this, and I pay my respect to the Elders past and present. 

I also take this opportunity to acknowledge, and to thank, the members of the treatment team and all who have supported Andrew in his rehabilitation.  For Andrew, this includes the providers at the Matrix Day program, and his counsellors.  It also includes his family members, for whom you expressed your gratitude for their support during the treatment order.  I expect they are immensely proud of your progress and achievement. 

Prior to the treatment order, you reported challenges with maintaining abstinence from substances beyond a period of some weeks.  You did not complete to conclusion rehabilitation programs.  Nonetheless, you remained committed to achieving rehabilitation and sought a treatment order to support you in your recovery. 

You steadfastly committed to what was asked of you under the treatment order.  You engaged positively and respectfully with treatment providers, and with members of the treatment team.  You have maintained engagement with pharmacotherapy to good effect.  It has now been a period of some 17 months, since early 2024, since you used illicit substances.

It was not, to use your words, always “smooth sailing”.  You had to adjust to life in the community after the structure of custody and a rehabilitation program.  You experienced the difficult loss of a family member.  But you persevered, and you prioritised your recovery.   You did not accrue a single sanction during the course of the order, and progressed early through the phases of the treatment order.   

You committed to developing a solid daily routine, including exercising, and engaging in house and furniture repairs in the home you share with a close friend and her son.  You are now engaging in employment, and supporting your family members. 

Descriptions given of you during the treatment order include that you were a “star pupil”, that you demonstrate “leadership qualities”, and that you were “highly motivated”.  Descriptions you gave of yourself during the treatment order were commonly that you were “all good”.  At one point you expressed that it was “happy days for me”.  You have created the life that you expressed at the time of sentence was your goal to achieve.  That is, one that is drug and crime free.   You have described it as a “quiet life”, one which you find contentment in.   

It gives me immense pleasure to observe that you have achieved this.  The experience of this Court shows that that is not easy to do.  I hope that you are proud of yourself in the progress you have made.  The Court and the treatment team are certainly proud of you.  You demonstrate to the other participants what can be achieved if there is a genuine commitment made to changing and rebuilding your life. 

Andrew, well done.  We wish you well for the future.