Director of Public Prosecutions v Powell
[2025] ACTSC 282
•7 July 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Powell |
Citation: | [2025] ACTSC 282 |
Hearing Date: | 1 July 2025 |
Decision Date: | 7 July 2025 |
Before: | Christensen AJ |
Decision: | See [85] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aggravated burglary – additional offences – offending in 2014 and 2024 – firearm stolen – home invasion – community protection – parity – guarded prospects of rehabilitation – eligibility for treatment order – duration of sentence – structure of sentence – NSW parole revocation order – ineligible for treatment order as subject to sentencing order – imprisonment and parole order |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 116 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | Director of Public Prosecutions (DPP) Timothy Michael Powell (Offender) |
Representation: | Counsel J Melloy (DPP) S Lynch (Offender) |
| Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service (Offender) | |
File Numbers: | SCC 310 of 2024 SCC 311 of 2024 SCC 395 of 2024 SCC 396 of 2024 SCC 23 of 2025 |
CHRISTENSEN AJ:
Introduction
1․Timothy Powell is to be sentenced for two offences of aggravated burglary, one which occurred in 2014 and one which occurred in 2024. It is accepted that terms of imprisonment will be imposed. Mr Powell seeks to serve the terms of imprisonment by way of a drug and alcohol treatment order (treatment order): s 12A Crimes (Sentencing Act) 2005 (ACT) (Sentencing Act).
2․He has been found suitable for a treatment order by ACT Corrective Services and Canberra Health Services. However, the prosecution opposes the imposition of a treatment order, raising firstly issues as to his eligibility, and otherwise that the order is submitted to not be appropriate or suitable for Mr Powell.
3․I have concluded that Mr Powell is not eligible for a treatment order given the total period of imprisonment to be imposed. An eligibility issue also arises from a New South Wales (NSW) order revoking his parole meaning he is to serve a period of imprisonment in that jurisdiction. A parole eligibility will be set that has regard to his prospects of rehabilitation.
2014 offending
4․The offending in 2014 involves an offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code), carrying a maximum penalty of 20 years imprisonment, 2000 penalty units, or both (CAN 2014/11304).
5․In addition, Mr Powell seeks that additional offences be taken into account pursuant to Pt 4.4 of the Sentencing Act, and I will do this in the manner explained by Mossop J in DPP v Vincent (No 2) [2023] ACTSC 379 at [64] (DPP v Vincent (No 2)). The additional offences are:
(a)Take motor vehicle without authority by joint commission, contrary to s 318(1) of the Criminal Code and carrying a maximum penalty of 5 years imprisonment, 500 penalty units, or both (CAN 2024/11370); and
(b)Theft by joint commission, contrary to s 308 of the Criminal Code and carrying a maximum penalty of 10 years imprisonment, 1000 penalty units, or both (CAN 2024/11371).
6․Towards the end of 2014, the victim of the offending, his wife, and his adult son resided on a large semi-rural block in Pialligo. The property had a garage and a second residence where the victim’s sister resided. On the evening of Sunday 26 October 2014, all occupants of the property were home. The victim secured the house and went to sleep at about 10pm.
7․Between about 2am and 6:30am Mr Powell and a co-offender, Luke Barrett, entered the outside bar area situated at the side of the house and enclosed under a pergola.
8․The agreed facts for the purposes of Mr Powell’s sentence provide that “acting jointly, either the accused, the co-offender or both” approached the bar and took a bottle dispenser holding four bottles of spirits. Mr Barrett then picked up a Leatherman utility tool which belonged to the victim’s son, and which was located under the bar. Mr Powell moved a box of wine which belonged to the victim from under the bar.
9․Acting jointly, they then entered the unlocked garage. From the top shelf of a cupboard a .410 single barrel shotgun wrapped in a blanket was removed and from inside the cupboard a green gun bag containing a few shells for the shotgun was removed. The shotgun and shells belonged to the victim.
10․The victim’s white 1995 Nissan Navara dual cab utility was parked next to the house. It was unlocked with the keys inside. Either both or one of the offenders drove away from the premises in the utility, taking with them the four bottles of spirits, the gun, gun bag, and shells.
11․Located on the ground near where the vehicle had been parked was the Leatherman utility tool. Subsequent forensic examinations linked both offenders to items moved during the offending.
12․On 17 November 2014, a warrant was issued for Mr Powell’s arrest.
13․On 3 December 2014, the white utility was located and recovered from a residence in Kingston. It was returned to the victim, albeit it had been driven by someone else in the meantime meaning Mr Powell’s involvement in the taking of the vehicle facilitated the victim’s vehicle being used without permission for a not insignificant period.
14․The location of the shotgun remains unknown.
15․The circumstances of the aggravated burglary are themselves not particularly serious. The statutory aggravation, accounting for the increased maximum penalty, involves committing the offence with only one other person. It was an entry to only outside areas of the residential property, with no damage caused. It was not sophisticated conduct.
16․While the entry occurred at a time when occupants were likely to be, and were at home, fortunately, they were not disturbed by the entry. Nonetheless, the offending will have caused alarm, and inconvenience, to the victim and his family members.
17․Significant property was stolen. The theft of a firearm, which remains unrecovered, is serious and warrants a sternly deterrent sentence. The victim’s vehicle was also taken, an item of significant financial value. Further, ammunition and alcohol was taken, with the particulars of the charge providing that a total of about $500.00 of property was taken.
18․Mr Powell’s role in the offending, in accordance with the agreed facts, was equal to his co-offender’s. That is to say that they both played a substantive role. It is not clear whether there was any planning or premeditation, but both the entry into a rural property, and the obtaining of a firearm tends towards a degree of premeditation or planning having occurred. I consider the feature of the firearm having been stolen elevates the seriousness beyond a typical offence of aggravated burglary of a residential premises. I am readily satisfied that the only appropriate penalty is one of imprisonment.
19․As to the co-offender, he was sentenced in the Supreme Court on 6 July 2016: R v Barrett [2016] ACTSC 167 (R v Barrett). It is relevant to note that Mr Barrett was sentenced for an offence of burglary contrary to s 311 of the Criminal Code, carrying a maximum penalty of 14 years imprisonment. He was also sentenced on a basis of being knowingly concerned in the burglary. It was observed in the co-offender’s sentence that his role was “significantly less than that of the co-offender as he merely kept a lookout”: R v Barrett at [10].
20․It is apparent that the basis upon which Mr Barrett was sentenced involved a lesser role in terms of his moral culpability than that of Mr Powell, and that the applicable maximum penalty was less. There were no additional offences to be taken into account. The subjective circumstances of the offenders are not dissimilar, although the co-offender was subject to conditional liberty at the time of the offending. The co-offender was sentenced to a starting point of 3 years imprisonment, reduced to 31 months on account of the plea of guilty. A nonparole period of 22 months was set.
21․With respect to this offence, and the later offence, the prosecution submitted that Refshauge AJ’s observation in R v Mathews [2020] ACTSC 364 as to what statistics show for sentencing of offences of burglary and aggravated burglary is relevant. That is, that “terms of imprisonment ranged from six months (22 per cent) to four years and six months (6.5 per cent) with most sentences in the range of two years to two years and six months …” (at [46]). In addition, the prosecution relied on Tracey v The Queen [2020] ACTCA 51 as to current sentencing practice in respect of the burglary and aggravated burglary offences, albeit acknowledging the limitations that such authorities provide. It is notable that the authority provided does not involve the theft of a firearm, and parity is of significance in the current sentencing exercise.
22․From what I can ascertain from the material provided for sentence, Mr Powell’s arrest for this offence was delayed due to a warrant being issued after his first appearance in the ACT courts, and thereafter from periods of imprisonment in NSW for unrelated offending. The prosecution submitted that the delay that occurred does not enliven principles as to a reduction in sentence. This was submitted to be because the three ways in which delay is typically relevant, being firstly that it provides an opportunity to demonstrate rehabilitative progress, secondly, by ‘uncertain suspense’, and thirdly, that the offender’s present situation calls for flexibility and fairness, do not arise here.
23․I mostly accept this. The delay that occurred was in essence as a result of the offender’s conduct. He has not demonstrated progress with rehabilitation in the meantime. Nonetheless, he is a much older man than he was at the time of the 2014 offending, and “sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach: Mill v the Queen [1988] HCA 70; 166 CLR 59 at 64.
24․Mr Powell first appeared in the ACT courts in relation to this offending on 19 June 2015, however, was soon after in custody in NSW. He then next appeared in the ACT in April 2024. He came to plead guilty in the Magistrates Court, although this followed a plea of not guilty and provision of the brief of evidence. The matter was then committed for sentence to the Supreme Court. I assess the appropriate reduction to be in the order of 20 per cent.
2024 offending
25․The offending in 2024 involves a charge of aggravated burglary by joint commission contrary to s 312 of the Criminal Code, carrying a maximum penalty of 20 years imprisonment, 2,000 penalty units, or both (CAN 2024/3960).
26․In addition, Mr Powell seeks that additional offences be taken into account pursuant to Pt 4.4 of the Sentencing Act and I will also do this in accordance with DPP v Vincent (No 2). These offences are:
(a)Two offences of common assault by joint commission contrary to s 26(1) of the Crimes Act 1900 (ACT) and carrying a maximum penalty of two years imprisonment (CAN 2025/1187; CAN 2025/1188);
(b)One offence of damage property contrary to s 116(3) of the Crimes Act 1900 (ACT) and carrying a maximum penalty of 6 months imprisonment and/or 50 penalty units (CAN 2024/3961); and
(c)One offence of minor theft contrary to s 321 of the Criminal Code and carrying a maximum penalty of 6 months imprisonment, 50 penalty units, or both (CAN 2024/6795).
27․The victim of the offences resided at an address in Evatt in early 2024. She had allowed a friend, who is the co-accused Amanda Brown, to stay with her for a number of days. She came to tell Ms Brown that she was no longer welcome. Ms Brown’s belongings were stored at the victim’s residence after Ms Brown left.
28․The agreed facts provide that Ms Brown became aware from other friends that the victim had started selling some of the belongings. Ms Brown also became aware that some of her belongings were placed at the front of the residence for her to collect.
29․The agreed facts provide that on 1 April 2024, Ms Brown attended at the victim’s residence and caused damage within the house. As a result, police were contacted.
30․The following day, on 2 April 2024, the victim was at her residence with her son, who was aged about 18 months. The victim heard a loud vehicle drive along the street. Closed circuit television (CCTV) footage captured a silver Holden Commodore with NSW registration plates entering the driveway of the residence.
31․Ms Brown and Mr Powell got out of the Commodore and approached the front door. Ms Brown knocked on the door and yelled out to the victim. She shouted words to the effect of “I want my shit” and “you’re a dead slut”. The victim yelled back, telling them to “fuck off”. The victim told Ms Brown that her son was at the residence. The CCTV footage shows that Ms Brown kicked the front door of the residence repeatedly.
32․The victim contacted triple zero. She told police that Ms Brown was attempting to “kick in her front door”. The agreed facts provide that Ms Brown can be heard yelling and screaming, and banging and kicking the door during the call.
33․A short time later, Ms Brown and Mr Powell entered the side of the residence through a gate and walked to the rear of the residence. Whilst walking to the back door, Mr Powell picked up a small axe situated by an old refrigerator in the rear of the residence. Ms Brown began kicking at the back door. Mr Powell then used the axe to break a hole in the door to gain access to the residence. Whilst this was occurring, Ms Brown was swearing and yelling at the victim.
34․Ms Brown entered the residence and approached the victim and her son. She tried to take the child by pulling him to remove him from the victim. At this time, Mr Powell stood behind Ms Brown. Ms Brown then told the victim that she would hold her son whilst Mr Powell “bashed her”. During this interaction, Ms Brown swung her arms towards the victim, connecting twice with the victim’s face. As a result of these hits, the victim’s lip was split. The child had a number of red marks and bruises on his back, chest and legs. He was crying during the incident.
35․A short time later, the victim moved herself and her son to the bathroom and locked the door. Ms Brown kicked at the bathroom door until the bottom right corner of the door broke and began to swing in.
36․Shortly after, the co-offenders ran out of the front door of the residence. CCTV footage captured Mr Powell carrying a black bag which contained the victim’s wallet, identification cards, Medicare card, and approximately $150.00 in cash.
37․Police later obtained phone calls made by Mr Powell while he was in the Alexander Maconochie Centre. He can be heard speaking about his involvement in respect of the events on 2 April in a number of calls.
38․Photographs provided in the evidence at sentence show the damage caused to the rear door and an internal bathroom door. It was not insignificant damage that will have caused inconvenience and financial implications to repair. The theft of the property, while not significant in value, will have also caused inconvenience and financial implications to replace.
39․Of most concern though is what will have likely been significant distress caused to the victim from what would have been a frightening incident that caused lasting impacts. She was attacked in her own home, with a verbal and physical altercation, that involved her young son. They were both physically harmed during the offending. There were two offenders involved, accounting for the increased maximum penalty.
40․I agree with the prosecution’s characterisation of the offending as being a form of home invasion, with aspects of vigilantism, or retaliation. On behalf of Mr Powell, it was characterised as motivated by a grievance held by Ms Brown, which I also accept is an appropriate characterisation. On any description, it was a serious form of such an offence, being as it involved persistent attempts to enter, damage caused, and the verbal and physical altercation. It is an aggravated burglary particularised as being done with an intent to cause harm. While the offending did not involve an aggravating feature of a weapon or implement used while in the residence, I am readily satisfied that the only appropriate penalty is one of imprisonment.
41․While Mr Powell’s role was not as serious as Ms Browns, being that he appears to have less culpability in terms of premeditation and he was not directly responsible for the verbal and physical aspects, his presence increased the intimidation and inherent threat involved in the offending. He was also the offender responsible for ultimately achieving access to the residence and he used a concerning implement to do so, albeit opportunistically. He is then also solely responsible for taking the victims items. Overall, I assess his role in the offending as being less, but not significantly so, than Ms Brown’s role.
42․Ms Brown is yet to be sentenced for her role in the offending.
43․Pleas of guilty were entered in the Supreme Court. This was at an arraignment, before the matter was listed for trial and criminal case conference. While the pleas of guilty were entered at a later stage than those in the earlier charge, the utilitarian value involved is not dissimilar. I assess the appropriate reduction to be in the order of 20 per cent.
44․The prosecution assisted with authorities as to current sentencing practice for aggravated burglary involving forms of home invasion: R v Saipani (No 2) [2020] ACTSC 228; R v Minnis [2014] ACTSC 268 (R v Minnis); R v Catanzariti [2020] ACTSC 326 (R v Catanzariti); Simonds v The Queen [2013] ACTCA 13 (Simonds v The Queen); DPP v Djerke (No 2) [2023] ACTSC 341 (DPP v Djerke (No 2)). The range of circumstances involved in those authorities, and the sentences imposed, limit their assistance. Nonethless, it warrants observing that in R v Catanzariti, where a teenager was present and no physical assaults occurred, a sentence of two years and four months after a reduction for the plea of guilty was imposed on a youthful offender. In R v Minnis and Simonds v The Queen, there where again adolescents present, but implements were involved. A total sentence of six years imprisonment was imposed for an aggravated burglary and assault occasioning actual bodily harm offences in R v Minnis. In Simonds v The Queen, a total sentence of three years and four months was imposed, after a reduction for the plea of guilty, being in total a sentence of five years and six months imprisonment.
Subjective circumstances
45․Mr Powell is now aged 42 years and was aged 32 years at the time of the 2014 offending and aged 41 years at the time of the 2024 offending. He has a relationship with a partner which started shortly before his most recent arrest, and he himself has four children, some of whom he has had contact with while in custody.
46․Mr Powell is a Wiradjuri man who was born in NSW and lived in Queanbeyan from the age of two years. He describes a challenging childhood marked by traumatic experiences, and parental substance misuse, expressing that “it’s hard not to try it [substances] when you’re seeing it all the time”. He first used cannabis at 11 or 12 years, heroin at 13 years, methamphetamine from 19 or 20 years, and misuse of other substances, and dependency, followed. He was also exposed to domestic violence during his childhood and had a difficult relationship with his father as a result. His mother has since passed away, and he has an “okay” relationship with his father now, and has siblings with whom he has various levels of contact.
47․It is not in issue that the principles from Bugmy (Bugmy v The Queen [2013] HCA 37; 249 CLR 571) are enlivened and that the principle as to early exposure to substances from Henry (R v Henry [1999] NSWCCA 111; 46 NSWLR 346) is enlivened. Mr Powell’s moral culpability for his offending is reduced, noting on both occasions the offending occurred in a context of substance dependency. Mr Powell describes that he was “struggling and was using whatever I could get my hands on”.
48․Mr Powell completed his education up to midway through year eight and later undertook a chef’s apprenticeship for eight months. He has since held various roles in trades, with a sporadic employment history. He has construction certifications and is interested in securing outdoor employment once in the community. His physical and mental health are not impediments to his achieving this.
49․Mr Powell has an extensive criminal history, including from prior to the 2014 offending. It is a criminal history primarily from NSW. He has been previously convicted of burglary offences, property offences, drug offences, violence offences, and driving offending. His criminal history limits leniency and elevates the need for deterrence and community protection in the sentencing exercise.
50․He has previously been the subject of warrants, has been imprisoned, and has been subject to community based orders. The 2024 offending occurred while subject to parole in NSW, being an aggravating factor on sentence.
51․Since being in custody in the ACT, he was granted day bail to attend a funeral in April 2025 and he complied with the terms of the bail. However, Corrective Services caution that there have been recurrent refusals to provide a urine sample for testing while in custody, and note that there was a positive result for substances in May 2025. Corrective Services observe that Mr Powell’s lack of compliance in this regard suggests that he is yet to commit to an abstinence-based lifestyle.
52․As long ago as 2001, Mr Powell was ordered by a NSW court to engage with drug and alcohol counselling or rehabilitation. His engagement in any such treatment has been limited. He has not, to this day, achieved rehabilitation from substance dependency, and the consequential role it has had in his offending behaviour. I was informed though at the sentence that he is now engaged with an opioid maintenance pharmacotherapy program to good effect.
53․Mr Powell also now has goals to develop life skills and not fall into the same traps that he has previously, and he wants to have a relationship with his children. He expresses a willingness to engage in counselling, and he also recognises that he requires support with problematic gambling. He identifies a rehabilitation day program as the preferred treatment option, and Canberra Health Services have identified such a program that Mr Powell has been assessed as suitable for. He has available to him a justice housing property that is suitable for him to reside in while he engages with rehabilitation.
Time in custody and totality
54․Mr Powell spent 1 day in custody, on 19 June 2015, following the 2014 offending. Following the 2024 offending he has been in custody since 2 April 2024. During that time, Mr Powell served a sentence for other offending, from 13 November 2024 to 12 December 2024. Accordingly, a period of 432 days applies following the 2024 offending (2 April 2024 – 12 November 2024; 13 December 2024 - 7 July 2025).
55․It is also relevant to observe that Mr Powell has now spent a continual period in custody since April 2024. This is relevant in considering the totality of the sentence to be imposed.
56․While the offending occurred on distinct occasions and involves distinct offending which might typically result in entirely cumulative sentences, I am conscious that a ‘crushing’ sentence is to be avoided. This is particularly so given the extent to which delay favours a ‘flexible’ approach to the sentencing. To give effect to this, I will formulate a sentence that involves a level of concurrency.
Eligibility for Treatment Order
57․To be eligible for a treatment order, Mr Powell cannot be sentenced to a total term that exceeds four years imprisonment: s 12A(1)(b)(ii) Sentencing Act. The prosecution submitted that the total term to be imposed may exceed the legislated threshold for eligibility, while on behalf of Mr Powell, it was submitted that it would not.
58․It was submitted on behalf of Mr Powell that an approach in structuring the sentence could be adopted that involved either utilising presentence custody to dispose of a charge (see e.g. DPP v Smith (No 2) [2024] ACTSC 126); taking into account presentence custody by reducing the sentences rather than backdating (see, e.g., DPP v Djerke (No 2); or with an approach that prioritises rehabilitation in the sentencing exercise (see, e.g. DPP v Saunders [2025] ACTSC 160; DPP v Hiscox (No 2) [2025] ACTSC 230; R v Slattery (No 3); DPP v Slattery [2025] ACTSC 125).
59․I am not persuaded that any such approach is appropriate in this matter. The sentencing exercise here involves sentencing for two disparate offences (one with an application of parity), offending separated significantly in time, with serious offending on both occasions, committed by an offender with uncompelling prospects of rehabilitation.
60․The total sentence to be imposed exceeds the legislated threshold such that Mr Powell is not eligible for a treatment order.
Subject to a sentence order
61․In addition, with respect to eligibility, the prosecution raised whether Mr Powell was eligible for a treatment order, submitting that because of the NSW parole order that he may be considered as “subject to a sentencing order for another offence”: s 12A(1)(c) Sentencing Act. While unnecessary for me to decide given the conclusion I have otherwise reached as to eligibility, I make the following observations so as to avoid the potential for a drain of resources with a treatment order assessment in the event a similar circumstance arises again.
62․The issue of eligibility arises because of what s 12A of the Sentencing Act provides, relevantly:
12ADrug and alcohol treatment orders
(1)This section applies if—
…
(c)the offender is not subject to a sentencing order for another offence.
…
(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).
63․The prosecution submits that Mr Powell is “subject to” “a sentencing order” because of the parole order from NSW. On behalf of Mr Powell it is submitted that the terms of the NSW order are such that Mr Powell is not ineligible. That is, that the NSW order is not a “sentence order” as defined in s 12A(9), being instead a warrant, or, in the alternative, if it is a “sentence order”, Mr Powell is not “subject to” such an order. Resolution of this issue requires consideration as to the nature of the NSW order, and the meaning of “subject to a sentencing order” in this context.
The NSW order
64․The 20 March 2024 NSW order is one titled “Warrant”, being a warrant for apprehension and detention in accordance with the Crimes (Administration of Sentences) Act 1999 (NSW). The warrant has been issued by the State Parole Authority (SPA) and sets out that the SPA has revoked the parole of Mr Powell on 9 February 2024. This warrant authorises:
any police officer to apprehend [the offender] and return the offender to a correctional centre to serve the portion of his/her term of imprisonment unexpired on 9 February 2024 being:-
BALANCE OF PAROLE: 1 year 3 months 1 week 5 days
65․The warrant further provides that it is:
sufficient authority for a police officer to apprehend [the offender] and convey the offender to a correctional centre and for the Governor of the correctional centre to detain the offender until the completion of the offender’s sentence.
66․It follows that the first consideration is whether this amounts to a “sentencing order” as provided by s 12A(9) of the Sentencing Act. This involves consideration of the meaning to be applied to the terms in subs 9(a), (e) and (f).
Subsections 9(e) and (f) – a parole order that corresponds
67․The dictionary to the Sentencing Act defines “parole order” with reference to s 117 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act). Section 117 of the Sentence Administration Act provides:
parole order, other than in part 7.6 (Interstate transfer of parole orders), means a parole order under—
(a)section 126 (Parole applications—decision after inquiry without hearing); or
(b)section 129 (Parole applications—decision after hearing).
68․Sections 126 and 129 of the Sentence Administration Act are concerned with the decision made either after inquiry without hearing, or after hearing. Both sections provide that the board, being the Sentence Administration Board, must, as one of the outcomes available to the board, “make a written order (a parole order) granting the offender parole on the date stated in the order”. That is, a parole order is a written order that grants an offender parole on a date stated in the order.
69․In an application of uncontroversial statutory interpretation principles, the order here is not a ‘parole order’ as defined. That is, it is not a written order that grants the offender parole on the date stated in the order, this being the definition of a parole order as provided by s 117 of the Sentence Administration Act, and, by extension, s 12A(9)(e) of the Sentencing Act. Rather, this corresponding order in NSW is indeed doing the opposite, and is a ‘parole revocation order’: ss 3, 171 Crimes (Administration of Sentences) Act 1999 (NSW).
Section (9)(a) – an order for imprisonment by full-time detention
70․This does not though resolve the issue. Section 12A(9)(a) of the Sentencing Act provides that to be eligible for a treatment order, an offender is not to be “subject to” a “sentencing order” with this defined to include “an order for imprisonment for full-time detention”. The issue then becomes whether the NSW order is such an order.
71․It appears to me that it is. The terms are not further defined in the Sentencing Act, but they do not need to be. The NSW order plainly contemplates what it says, that is, an order for imprisonment by full-time imprisonment. The terms of the warrant are clear that it provides for the imprisonment of Mr Powell in full-time detention immediately upon execution of the warrant.
72․On behalf of Mr Powell, it was submitted that the order only amounts to Mr Powell being liable for imprisonment for full-time detention. That is, that he is not ‘subject to’ such an order, only that there is a prospect he will be. The prosecution submitted that being ‘liable’ in this circumstance amounts to the offender being subject to a sentencing order.
73․The resolution of this issue then turns on what is meant by ‘subject to’ for the purposes of s 12A of the Sentencing Act. In DPP v John (No 2) [2024] ACTSC 199; 21 ACTLR 191, while considering the meaning of ‘subject to’ in a different context, I observed:
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.
…
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.
…
67. … 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.
74․That is, with reference to the purpose and text of the legislation, to be eligible for a treatment order, an offender cannot be required to serve imprisonment by full-time detention. To do so would render a treatment order impracticable, and impossible.
75․While here Mr Powell is not currently serving full-time detention in NSW, and when and until he is extradited by, or surrenders to, NSW authorities for that purpose, he is not serving the detention, it would be stretching the limits of the legislation if the circumstance that arises here was not regarded as one involving the offender being “subject to” a sentence order. For the purposes of interpretation of s 12A(9)(a) of the Sentencing Act in this circumstance, “subject to” extends to “liable to”.
76․This interpretation also reflects a further issue of suitability for the order that was raised by the prosecution. This was that it would be contrary to achieving therapeutic goals for Mr Powell to be confined to the ACT during the course of his treatment order, with knowledge that any therapeutic progress risked being undone upon his inevitable return to NSW custody. On behalf of Mr Powell, it was submitted that rather, such a circumstance will encourage commitment to the treatment order.
77․I agree with the prosecution in this regard. While it is not without precedent that participants on treatment orders are the subject of warrants in NSW (see, e.g. R v Snow [2021] ACTSC 342), this is in circumstances where the outstanding matters are minor in character, and they do not share the certainty of imprisonment that arises here. While this circumstance may facilitate commitment to remaining in the ACT, it is difficult to envisage that an offender is capable of achieving the long-term stability that a treatment order is designed to support when there is an inevitability of future lengthy imprisonment. The circumstance of the warrant here also elevates the prospect of an extradition application immediately upon release from the AMC, entirely frustrating the imposition of a treatment order.
78․Accordingly, Mr Powell, being subject to a parole revocation order in NSW, is not eligible for a treatment order as he is “subject to an order for imprisonment by full-time detention”.
Victim’s safety or welfare
79․An additional eligibility issue that arises with respect to Mr Powell relates to s 12A(2)(b)(ii) of the Sentencing Act, which provides that the Court is to consider whether a treatment order is appropriate taking into account, inter alia, “any information given to the court relating to the concerns of a victim about the victim’s safety or welfare”.
80․In their treatment order assessment, Corrective Services noted that one victim indicated that they have continued concerns regarding their need for protection from Mr Powell. It was not made clear who this victim is and, accordingly, it is difficult to assess whether this was a basis upon which a treatment order was not appropriate for Mr Powell. Had it been necessary to decide, I would have sought further information and submissions from the parties in respect to this.
Consideration
81․The offending here involved two serious examples of aggravated burglary. One resulted in the theft of a firearm, and the other involved a type of home invasion where a young child was exposed to the offending. Sentences that reflect denunciation, accountability, and deterrence are warranted.
82․The enduring impacts of Mr Powell’s childhood experiences are also important, but with an absence of progress towards rehabilitation to date, community protection remains elevated. I accept, as submitted on Mr Powell’s behalf, that the most effective guarantor of community protection is rehabilitation. But to elevate promotion of rehabilitation as the mechanism to achieve community protection in the sentencing exercise, it is necessary that there is at least solid prospects of rehabilitation being achieved. It is difficult to conclude this in relation to Mr Powell. In addition to his limited progress with rehabilitation to date, he does not present with remorse and insight into the seriousness of his offending. His prospects of rehabilitation, at this stage, are at most guarded.
83․This is not to say that Mr Powell is not without prospects of rehabilitation. Both Corrective Services and Canberra Health Services have acknowledged these prospects in finding Mr Powell suitable for a treatment order. But a treatment order is not the available mechanism for Mr Powell to achieve such rehabilitation. I will factor his prospects in this regard into the nonparole period that is to be set.
84․It was submitted that the Court consider a lenient nonparole period with a recommendation for a rehabilitation program as occurred in DPP v Hodge [2025] ACTSC 82. Mr Hodge had, though, better prospects for rehabilitation, and likely required an opportunity for rehabilitation in a service not available in the ACT. Mr Powell is yet to engage in any rehabilitation programs while in the custodial environment, and I consider it appropriate that he start in that environment. It will then be a matter for the Sentence Administration Board to assess when and how he is best placed to return to the community.
Orders
85․For those reasons the following orders are made:
(1)On the charge of aggravated burglary (CAN 2014/11304) the offender is convicted and sentenced to 2 years, 8 months imprisonment, reduced from 3 years and 4 months imprisonment on account of the plea of guilty, to commence on 30 April 2024 and end on 29 December 2026.
(2)On the charge of aggravated burglary (CAN 2024/3960) the offender is convicted and sentenced to 3 years imprisonment, reduced from 3 years and 9 months imprisonment, on account of the plea of guilty, to commence on 30 April 2026 and end on 29 April 2029.
(3)The total period of imprisonment is 5 years, to commence on 30 April 2024 and end on 29 April 2029.
(4)A nonparole period is imposed to commence on 30 April 2024 and end on 29 April 2027.
(5)The offences of common assault (CAN 2025/1187, CAN 2025/1188), damage property (CAN 2024/3961) and minor theft (CAN 2024/6795) are taken into account with the offence of aggravated burglary (CAN 2024/3960).
(6)The offences of take motor vehicle without consent (CAN 2024/11370) and theft (CAN 2024/11371) are taken into account with the offence of aggravated burglary (CAN 2014/11304).
| I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 31 July 2025 |
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