Director of Public Prosecutions v McColl
[2025] ACTSC 214
•22 May 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v McColl |
Citation: | [2025] ACTSC 214 |
Hearing Date: | 22 May 2025 |
Decision Date: | 22 May 2025 |
Before: | Christensen AJ |
Decision: | See [41] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aggravated burglary – damage property – aggravated dangerous driving – offending while on drug and alcohol treatment order – no legislated consequence – egregious breach of conditional liberty – aggravating factor on sentence – time in custody – reform from substance dependency – rehabilitation achieved – promotion of rehabilitation in sentencing exercise – suspended term of imprisonment imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | DPP v McColl; R v McColl (Supreme Court of the Australian Capital Territory, Refshauge AJ, 4 August 2023) |
Parties: | Director of Public Prosecutions ( Crown) Robert Malcolm McColl ( Offender) |
Representation: | Counsel J Churchill ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ( Offender) | |
File Numbers: | SCC 70 of 2023 SCC 124 of 2025 |
CHRISTENSEN AJ:
Introduction
1․Robert McColl is to be sentenced with respect to offences committed during the term of a drug and alcohol treatment order (treatment order). The treatment order was imposed on 2 June 2022 for offences including aggravated robbery and driving offending. A total sentence of 3 years and 11 months imprisonment was imposed, with the treatment and supervision part of the order initially for a period of two years: R v McColl [2022] ACTSC 386 (R v McColl).
2․Following the commission of the first series of offending during the treatment order, in December 2022, Mr McColl spent a period of some six months in custody. The Court then determined that it was appropriate to defer the sentencing exercise with respect to the further offending in circumstances where, other than the offending behaviour, Mr McColl was demonstrating solid rehabilitative progress during the treatment order: DPP v McColl; R v McColl (Supreme Court of the Australian Capital Territory, Refshauge AJ, 4 August 2023) (unreported).
3․To Mr McColl’s credit, he embraced the opportunity afforded to him and went on to successfully graduate from the treatment and supervision part of the treatment order on 20 September 2024: R v McColl (No 3) [2024] ACTSC 291 (R v McColl (No 3). Since then he has continued on that trajectory of reform, and, on 25 April 2025, he completed the original sentence order. He complied with his good behaviour obligations during the remainder of that sentence.
4․For the reasons that follow, it is appropriate to sentence Mr McColl in a manner that supports that trajectory, rather than disrupts it.
10 December 2022 offending
5․On 10 December 2022, Mr McColl committed the following offences:
(a)One offence of aggravated burglary, contrary to s 312(a) of the Criminal Code 2002 (ACT) (Criminal Code), carrying a maximum penalty of 20 years imprisonment, 2000 penalty units, or both; and
(b)Two offences of damage property, one by way of joint commission, contrary to s 403 of the Criminal Code and carrying a maximum penalty of 10 years imprisonment, 1000 penalty units, or both.
6․The offending involved a neighbour of a then friend of Mr McColls. At about 7:30pm on 10 December 2022, there was an altercation between the friend and the neighbour. During the commotion, a number of people who lived on the street crowded around the front of one of the houses. This included Mr McColl. Mr McColl was seen to be pacing outside of the house, and he was also verbally abusive towards the owner of the house. This person, that is, the owner of the house, was assaulted by the then friend of Mr McColl.
7․Police were contacted as a result of the altercation, and they arrived at about 8pm. Mr McColl’s friend was arrested, and the owner of the house went to the hospital at about 9pm.
8․At about 10pm, Mr McColl returned to the house and closed circuit television footage captured him smashing the windscreen of a Ford Falcon that was parked to the side of the house. He then went with another person to the inside of the house and a neighbour could hear property being damaged. She contacted the owner of the house. They returned home at about 10:06pm.
9․The owner returned home to find that the interior of the house had been significantly damaged. Police were again contacted and attended. Police observed there to be multiple areas with blood splattered across items that had been damaged. Two televisions were smashed, there were multiple holes in the gyprock walls and a hole in an internal wooden door, a computer monitor was smashed, and three fish tanks were smashed, causing water to flood the floors. In addition to the damage to the vehicle, a rear glass sliding door was smashed to enable access to the house. Subsequent forensic examinations identified a shoe mark impression in the damaged gyprock, and extremely strong support for the proposition that Mr McColl was the source of the blood.
10․On 13 January 2023, Mr McColl was arrested in relation to these offences, and he participated in a record of interview the following day. He told police that he was at the home of his friend when that friend got into the altercation with his neighbour. Mr McColl said that he was disappointed when his friend was arrested. He told police that he went back to his father’s house at about 10pm. When asked if he had any role in the entry to the home and the damage caused, Mr McColl responded with “no comment”. Mr McColl told police he had been inside of the victim’s house in 2019 to “smoke weed”.
11․This was an unusual example of this type of offence. On one view, it was a concerning home invasion done with an intention to cause damage and with a retributive intention. On another view, it is a relatively mild example of the offence done deliberately at a time when it would not involve an interaction with the occupants of the house. On either view, it has aspects of seriousness in terms of the motivation for the offending, and the extent and nature of the damage caused. This is particularly so in relation to the property damaged inside of the house, with the property damage to the vehicle less serious.
12․Any unlawful entry to the home of another person is serious, involving a violation of privacy and inevitably causing alarm and impacts on the victim’s sense of safety and security. There will have also been significant financial impacts and inconvenience caused to the victims. This extends to the likely harm caused to the victim’s fish, who I infer were in the tanks and likely perished as a result of the offending. The method of entry itself caused damage, and is indicative of a bold disregard for another community member and his home.
13․The increased maximum penalty accounts for the aggravating feature of the offending involving multiple people, and the particulars of the charges are such that a substantial degree of concurrency is appropriate for the penalties to be imposed.
14․I am satisfied that the only appropriate penalty for each offence is one of imprisonment. Nothing less is warranted to particularly reflect deterrence, denunciation, and accountability in the sentences to be imposed.
15․Pleas of guilty were entered in the Magistrates Court at an early stage of the proceeding. A full reduction in the order of 25 per cent is warranted.
25 May 2024 offending
16․The next offending involves an offence of aggravated dangerous driving contrary to
ss 7, 7A(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). The particulars of the charge provide that Mr McColl was a first offender and that he failed to comply with a request or signal given by a police officer to stop the vehicle. It is a ‘rolled up’ form of the offence.17․The offence carries a maximum penalty of 3 years imprisonment, 300 penalty units, or both. An automatic minimum license disqualification of 3 months applies.
18․On 25 May 2024 at about 10:44pm, police conducting mobile patrols in Higgins observed a Holden Astra travelling on Belconnen Way. Police observed the Astra turn aggressively at a roundabout turning onto Kingsford Smith Drive. Police approached the vehicle and ascertained that it was registered to Mr McColl and that there was a P plate on the vehicle.
19․Police manoeuvred their vehicle so that they were positioned next to the Astra and used search lights to obtain a clear view of the driver. Police recognised Mr McColl. They drove directly next to the vehicle for about five seconds for a distance of about 100 metres.
20․A short time later, Mr McColl began to accelerate beyond the 80 kilometres sign posted speed limit. Police manoeuvred to be behind the vehicle and activated their emergency lights and siren. Mr McColl failed to stop and accelerated heavily, continuing north bound on Kingsford Smith Drive. Police estimate a speed exceeding 130 km/h was reached. Police deactivated their lights and sirens, at a time when police were travelling at
120 km/h, due to the excessive speeds involved and they lost sight of the Astra.21․At about 11:48pm, police were again travelling on Kingsford Smith Drive when they again observed the Astra. It was turning right onto Alpen Street in Spence. Police followed the vehicle and attempted to maintain observation of it. Due to the excessive speed, police lost sight of the vehicle.
22․At about 11:55pm police attended at Mr McColl’s address. A short time later they observed the Astra drive past the police vehicle and head towards Kingsford Smith Drive. Police followed and activated their emergency lights and siren indicating for the vehicle to stop.
23․Mr McColl again failed to stop for police, and he accelerated heavily. He turned left onto Kingsford Smith Drive and police followed. As the vehicle turned onto Kingsford Smith Drive, another police patrol was travelling towards the Astra. Mr McColl swerved onto the wrong side of the road toward the oncoming police vehicle, before swerving back onto the correct side of the road and accelerating heavily. Due to the dangerous manner of driving, police disengaged and lost sight of the vehicle.
24․On 27 May 2024, police located the vehicle at Higgins Oval carpark and seized it. On 30 May 2024, Mr McColl attended at the police station and informed police that he wanted to hand himself in. However, when police asked him further about his attendance, he refused to answer and left the station. On 3 June 2024, Mr McColl attended another police station and he admitted to the police that he was the driver of the vehicle.
25․Any offending of this type is serious, particularly because it risks the safety of other road users and the police. The time when the driving occurred was such that less road users were exposed to that risk, albeit the risk was far from ameliorated. There were high speeds involved, on multiple occasions, and two occasions of failing to stop for police. The second occasion of this included conduct of driving on the wrong side of the road towards a police vehicle. While the distance travelled was not lengthy, the dangerous driving occurred over an extended period.
26․Driving offending with serious aspects of this type merits strongly deterrent sentences and I am satisfied, even where it involves a first offender who subsequently admitted their involvement, that no penalty other than imprisonment is warranted. In so concluding, I observe that while Mr McColl is a first offender for this specific offence, he has been previously convicted of a serious driving offence, indicating that strongly deterrent sentences are warranted.
27․Pleas of guilty were entered in the Magistrates Court at an early stage, warranting a full reduction in the order of 25 per cent.
Subjective circumstances
28․Mr McColl is now 22 years of age. He was aged 19 years at the time of the first offending and aged 21 years at the time of the later offending. His offending has occurred within a context of being a youthful offender.
29․His subjective circumstances are set out in detail in R v McColl and R v McColl (No 3)). A decision as to the imposition of a sanction point for alcohol consumption during the treatment order is also informative as to Mr McColl’s subjective circumstances: R v Bonfield (No 2); R v McColl (No 2); R v Williams (No 3) [2022] ACTSC 377. These authorities make plain that the Bugmy principles (Bugmy v The Queen [2013] HCA 37; 249 CLR 571) are enlivened in the sentencing exercise. I do not though consider that either R v Verdins [2007] VSCA 102; 16 VR 269 or R v Henry [1999] NSWCCA 111; 46 NSWLR 346 are of application, as they were in the previous sentencing exercise, in the absence of any submissions to this effect on this occasion.
30․By way of update to Mr McColl’s subjective circumstances, his rehabilitation engagement was confirmed in the current sentencing exercise. He completed the Solaris Therapeutic Program, followed by a day rehabilitation program. I was also informed that he continues to have the support of his father.
31․Mr McColl gave evidence at the sentence hearing. He expressed his remorse for his offending behaviour, describing that there are “no words” for how stupid the burglary and property damage was. As to the driving offending, he described that he “panicked” when he saw the police and that he tried to rectify it by approaching the police himself in the days following the offending. He acknowledged that he has made “horrible mistakes” and that he has been able to turn his life around by distancing himself from negative associates and focusing on his own substance dependency recovery.
32․Mr McColl described that he now has stable housing, he has a car, and he is engaged with part time work as a Muay Thai coach. He works with children and adults to support them in their self defence and fitness goals. He has the strong support of his own coach. Mr McColl reflected in his evidence that he used to believe that his life was not one worth living, or that he would ever be able to have a “normal” life. He has that now, and reflected that he is no longer on a pathway that would have resulted in a shorter life with much more pain.
Conditional liberty
33․As already observed, the offending occurred while Mr McColl was subject to the treatment and supervision component of the treatment order. The first series of offending was committed some six months into the treatment order, and the last offence was committed shortly before the end of the treatment and supervision part.
34․As observed in R v Slattery (No 3); DPP v Slattery [2025] ACTSC 125, the treatment order having now expired limits the legislated consequences for offending during the treatment and supervision part of that order: at [130], [145]. It is left to be considered as an aggravating factor on sentence.
35․In so considering, in my view, it should be regarded as a very serious form of aggravation of the sentence by way of breaching conditional liberty. A treatment order is a privilege, and the breaching of such an order by way of offending is an egregious breach. As the prosecution submitted, there was a “flagrant disregard” for the community based opportunity. This is a significant aspect of aggravation on the sentence.
Consideration
36․Mr McColl presents a challenging sentencing exercise. He is to be sentenced for serious offences committed while on conditional liberty. However, the person before the Court today to be sentenced is not the person who committed those offences. Since that time, Mr McColl has demonstrated his rehabilitation, and his commitment to abstinence and a life free from offending behaviour. I consider it appropriate to give primacy to the promotion of rehabilitation in the sentencing exercise. In the circumstances, this is through a sentence that does not disrupt Mr McColl’s current positive rehabilitative progress which results in him being a valued member of our community.
37․Nonethless, it remains that only terms of imprisonment are appropriate to reflect the seriousness of the offending and the other sentencing purposes that remain to be fulfilled. In imposing the appropriate terms, as observed above, significant concurrency is warranted for the offences within the first series. For the further offence, I consider an entirely consecutive term is appropriate given the distinct nature of this offending.
38․As noted above (at [2]), Mr McColl spent 204 days (6 months, 22 days) in custody following his arrest for the first series of offending. While I am loath to take this into account in a manner that does not involve backdating the sentence given the risk of a distortion to current sentencing practice for offending of this type, in this matter, it is appropriate to proceed in this way. This is because the period reflects there being consequences for offending while subject to a treatment order. There was a not insignificant period that was spent in custody following the first series of offending. Mr McColl has already experienced the deterrent effect of fulltime imprisonment from further offending while subject to a treatment order. The period spent in presentence custody has been informative, and taken into account, in this way.
39․The issue then becomes whether any further fulltime custody is appropriate. The prosecution did not press that any further period of fulltime imprisonment is warranted, and on behalf of Mr McColl it was sought that the terms of imprisonment to be imposed be fully suspended. I agree this is appropriate given the promotion of rehabilitation in the sentencing exercise.
40․I do not consider it necessary that the good behaviour order include a probation condition for the purposes of supervision, and it was not pressed that such a condition be included. Mr McColl has been subject to supervision since June 2022, with the extent of supervision reducing over that period. With reference to his current subjective circumstances, he demonstrates that he does not require further supervision by Corrective Services. He will have the deterrent effect of a suspended term of imprisonment, with a full appreciation of the consequences that will occur if he breaches that order.
Orders
41․For those reasons, the following orders are made:
(1)On the charge of aggravated burglary (intent to damage) (CAN 639/2023) the offender is convicted and sentenced to 18 months imprisonment, reduced from 24 months on account of the plea of guilty, to commence on 22 May 2025 and end on 21 November 2026.
(2)On the charge of damage property (joint commission) (CAN 803/2023) the offender is convicted and sentenced to 6 months imprisonment, reduced from 8 months on account of the plea of guilty, to commence on 22 July 2026 and end on 21 January 2027.
(3)On the charge of damage property (CAN 640/2023) the offender is convicted and sentenced to 1 month imprisonment, reduced from 40 days on account of the plea of guilty, to commence on 22 December 2026 and end on 21 January 2027.
(4)On the charge of aggravated furious, reckless, dangerous driving (CAN 12094/2024) the offender is convicted and sentenced to 9 months imprisonment, reduced from 12 months on account of the plea of guilty, to commence on 22 January 2027 and end on 21 October 2027.
(5)The total period of imprisonment of 2 years and 5 months, commencing 22 May 2025 and ending on 21 October 2027, is to be fully suspended from today, 22 May 2025, until the end of the total sentence, 21 October 2027.
(6)Robert McColl is required to sign an undertaking to comply with the offender’s good behaviour obligations pursuant to s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 2 years and 5 months, from 22 May 2025 to 21 October 2027.
| I certify that the preceding forty one [41] 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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