Director of Public Prosecutions v McConnell-Imbriotis

[2023] ACTSC 256

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v McConnell-Imbriotis
Citation:	[2023] ACTSC 256
Hearing Date:	11 September 2023
Decision Date:	11 September 2023
Before:	Berman AJ
(1)  The matter is adjourned.
Decision:
(2)  The matter be listed in the Registrar’s call over list on 8

August 2024 at 9:00am with a view of setting a date for a sentencing hearing prior to 15 September 2024.

(3) Bail to continue under its present terms.

Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – purpose of sentencing – protection of community – rehabilitation – Griffiths remand – deferred sentence
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 27, 118
Cases Cited:	Griffiths v R [1977] HCA 44; 137 CLR 293 R v KS [2022] ACTSC 133; (2022) 18 ACTLR 160
Parties:	Director of Public Prosecutions (DPP)
Daniel McConnell-Imbriotis (Offender)
Representation:	Counsel
C Daly (DPP) N Deakes (Offender)
Solicitors
ACT Director of Public Prosecution Legal Aid (Offender)
File Numbers:	SCC 168 of 2022 SCC 169 of 2022
BERMAN AJ:
Introduction
1․	The fundamental purpose of sentencing offenders is ultimately to protect the community.
Often courts achieve that aim by imposing significant and sometimes even harsh
sentences on offenders in order to both deter them and others who may be tempted to
commit similar offences. Sometimes however, protection of the community is best
achieved by imposing a sentence on an offender which promotes that offender's
rehabilitation.
2․	In the matter before me, the offender, Daniel McConnell-Imbriotis, has committed a
number of serious offences. Notwithstanding that he has spent approximately seven
months in custody bail refused in relation to those offences, the offences are of such
seriousness that the prosecutor submitted that nothing less than full-time custody is the
appropriate outcome.
3․	For reasons which I will explain shortly, Mr Deakes, who appears for the offender,
submitted that the only alternative to full-time custody which is available in his client's
case, namely a suspended sentence, is the appropriate outcome. Mr Deakes recognises
that asking for a suspended sentence in the present case is, to put it colloquially, a big
ask.

Subjective Features

4․	The offender, after being granted bail, moved out of the Australian Capital Territory. He
now lives in Sydney where he has more family support than he did whilst living in
Canberra and where he has engaged in a residential rehabilitation program. The
evidence tendered to me today suggests that it would be highly counter-productive for
the offender, and the community, for him to return to live in the Australian Capital Territory
because of the substantial risk that he would re-engage with undesirable influences here
and commit further offences.
5․	Given that alternatives to imprisonment such as an Intensive Correction Order require
that the offender live in the Australian Capital Territory, the sentencing outcomes in the
present matter are starkly different. On the one hand, full-time custody, which is no doubt
a significant sentence indeed, and the other, a suspended sentence which although a
sentence of imprisonment has none of the constraints that might ordinarily be thought to
be required given the nature of the offender's offences.
6․	Mr Deakes makes application that sentencing of his client be deferred to enable him to
complete his We Help Ourselves (WHOS) rehabilitation program.
7․	The prosecutor does not oppose that order being made and, indeed, suggests that the
period of adjournment should be significant to enable us all to know what Mr McConnell-
Imbriotis is going to do once he completes the WHOS program in February next year. It
is well understood that those who have completed residential rehabilitation programs
sometimes relapse after completing the program and a period from February to perhaps
August next year will enable the offender to demonstrate that he is not going to be one
of those who relapses, or if he does, it will enable the Court to know that his prospects
for rehabilitation are not nearly as good as they appear to be at the moment.
8․	In a relatively recent decision of this Court, R v KS [2022] ACTSC 133; (2022) 18 ACTLR
160, McCallum CJ held that the common law Griffiths remand (Griffiths v R [1977] HCA
44; 137 CLR 293) was still available in this jurisdiction despite the passage of section 27
of the Crimes (Sentencing) Act 2005 (ACT). Were I to defer sentence under that statutory
provision, section 118 of the Act requires that I state in general terms the penalty that
the offender might receive if the offender complies with the order and bail conditions, and
the penalty that the offender might receive if he does not comply with the order or bail
conditions.
9․	I would not want to foreclose any sentencing option so I will not defer passing sentence
under section 27 but will defer passing sentence through the common law power of a
Griffiths remand.

Orders

10․ I make the following orders:

(4)	The matter is adjourned.
(5)	The matter be listed in the Registrar’s call over list on 8 August 2024 at
9:00am with a view of setting a date for a sentencing hearing prior to 15
September 2024.
(6)	Bail to continue under its present terms.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman.

Associate:

Date: