Director of Public Prosecutions v KS (a pseudonym) (No 4)
[2025] ACTSC 49
•21 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v KS (a pseudonym) (No 4) |
Citation: | [2025] ACTSC 49 |
Hearing Date: | 21 February 2025 |
Decision Date: | 21 February 2025 |
Before: | Christensen AJ |
Decision: | See [7] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – drug and alcohol treatment order – objects of order achieved – early graduation from treatment order – young participant – rehabilitation achieved – motorbikes – carpentry –order amended |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 80O, 80ZA, 80ZH |
Cases Cited: | DPP v KS (a pseudonym) (No 2) [2023] ACTSC 298 |
Parties: | Director of Public Prosecutions ( Crown) KS (a pseudonym) ( Participant) |
Representation: | Counsel J Churchill ( DPP) S Brown ( Participant) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Participant) | |
File Number: | SCC 347 of 2022 |
CHRISTENSEN AJ:
Introduction
1․KS (a pseudonym) was sentenced by McCallum CJ on 23 October 2023 to a drug and alcohol treatment order (treatment order): DPP v KS (a pseudonym) (No 2) [2023] ACTSC 298 (DPP v KS (No 2)).
Amongst other matters, he was sentenced for offending in 2021 and 2022 involving firearms, arson, theft, and driving offending. The total sentence imposed was one of three years and 8 months imprisonment, with KS having spent by that time a period of some 18 months in custody. At the sentence hearing, McCallum CJ observed that KS “has had a difficult life of instability and chaos underpinned by substance abuse, to which he was exposed from an early age by the adults who were supposed to nurture and take care of him”: DPP v KS (No 2) at [107].
The term was suspended for the purposes of a treatment order. The treatment and supervision part of the order was to be for a period of two years, until 22 April 2025, followed by a good behaviour order.
KS has progressed with his rehabilitation to such an extent that as of February 2025, the Drug and Alcohol Sentencing List treatment team (treatment team) have recommended that KS be graduated from the treatment and supervision part of the treatment order. It is a credit to KS, who was aged only 21 years at the time of sentencing, that he is graduating from the treatment order, and he is doing so early. It is to be hoped that this achievement of rehabilitation brings some measure of comfort to the victims of his offending.
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 KS’s behalf, it is sought that the order of 23 October 2023 be amended, such that KS will graduate to the next stage of the sentence of imprisonment suspended under the custodial part of the order. The prosecution supports the application.
The Court agrees that such a progression is appropriate. KS has achieved the objects of the treatment order: s 80O Sentencing Act.
Orders
For those reasons, the following orders are made:
(1)A review of the drug and alcohol treatment order made on 23 October 2023 is conducted pursuant to s 80ZH(1) of the Crimes (Sentencing) Act 2005 (ACT).
(2)Order 5 of the orders made on 23 October 2023 be amended to read as follows:
“The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be from 23 October 2023 until 21 February 2025.”
(3)Order 7 of the orders made on 23 October 2023 be amended to read as follows:
“Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), the offender 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, 22 February 2025, until the end of the total sentence, 22 June 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.”
Remarks to participant on graduation
KS, 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 October 2023, when your treatment order commenced. It is an opportunity to honour what you have achieved in meeting the expectations of the treatment program, of the Court, and of the community. It is also an opportunity for reflection as to the journey of rehabilitation that you have undertaken.
This occasion, and your journey of rehabilitation, is one that has taken place on the lands, amongst the waterways and the sky of the Traditional Custodians of this Country. I acknowledge this and thank the Custodians for caring for Country for thousands of generations. I pay my respect to their Elders past and present.
I also take this opportunity to express the Court’s gratitude to the members of the treatment team, the previous members and the present members. And I thank all of those who have supported KS in his rehabilitation. Their commitment to their roles involves infinite patience, care, and support for the participants, and an occasion such as this reflects the significance of their valuable contributions.
This work of the treatment team in respect to KS has required a particular level of patience as, at times, it has felt like parenting a teenager. As one of the younger participants on a treatment order, there have been occasions of a frustrating adolescent attitude to deal with. But, as parenting often involves, with patience and guidance, we have seen positive growth in your maturity.
This has only been able to occur though because you, KS, did not completely turn away from what was available under the treatment order. For that, you are also to be thanked today. For being willing to listen, to accept help, and being willing to do what was asked of you.
It has been my privilege to witness a part of your journey and engage with you in the time that I have sat as a judge in the Drug and Alcohol Sentencing List. This is particularly so, because I first came across you in a previous role I held as a prosecutor. I would never have thought then that I would be seeing the young man that is before me today.
To enable me to understand and fully appreciate how far you have come, I have read the court records, including the original sentence decision of her Honour McCallum CJ. Reflective of the wisdom that the Chief Justice embodies, her Honour remarked at that time that “if the community can provide [you] with comprehensive, wrap-around support, [you] may be able to use this opportunity to address [your] drug addiction”.
You did this and more. You engaged with rehabilitation services, reconnected with family members, became an uncle that your nephew can look up to, and got into a gym routine.
Your history before the courts has been lengthy, and, you may not appreciate this, it has contributed to the development of sentencing law in the ACT: see R v KS [2022] ACTSC 133; 18 ACTLR 160. This history shows that the person in Court today is a completely different person to the person who has previously appeared in our courts. Gone is the person who was involved in serious criminal offending that disrespected other community members. Instead, before the Court today is a young man who has built a bright future for himself, who will contribute positively to our community.
From the occasions that you have come before the Court, it is also apparent that you have had the support of an employer, and you continue to have that support. You have repaid that by becoming a valued employee with your carpentry apprenticeship. You have succeeded in your work despite having a few occasions of injuries that paused your ability to work.
These were not injuries always obtained during your apprenticeship, but rather, injuries occurring now that you spend weekends enjoying dirt bike riding rather than offending. This Court has observed like a concerned parent as you have come in with your various injuries, but, like a parent, we have been so pleased to see you embracing interests that are ultimately much better for you than what you were previously involved in. You now understand the happiness and fulfilment that can come from camping, fishing, and motorbike riding.
By your side in this journey has been a close friend, that, again like a parent, this Court has been pleased to see become a girlfriend that provides you with steadfast support.
The journey you have undertaken during the treatment order was not an easy one. It was not without bumps along the way, and it required you to make a commitment for a sober life.
As one of the youngest participants on a treatment order, you did not have the same motivation of having reached a cross-roads in your life that many of the older participants have. Nonetheless, you have shown that you have an innate strength and determination to build a better life for yourself and your family. You turned away from what was a likely easier course of substance use and being around negative peers, and have instead walked towards a life with promise.
To have achieved this at such a young age, with the challenges you have experienced in the past, provides an inspiration to the other participants on treatment orders.
KS – we are proud of you, and we hope that you are proud of yourself. Well done. We wish you well for the future.
| 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: 21 February 2025 |
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