Director of Public Prosecutions v Sims

[2024] ACTSC 49

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Sims

Citation: 

[2024] ACTSC 49

Hearing Date: 

22 February 2024

Decision Date: 

29 February 2024

Before:

Hopkins AJ

Decision: 

See [101], [108].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order Assessment – forcible confinement – aggravated robbery – childhood disadvantage – references to Bugmy Bar Book – rehabilitation – Drug and Alcohol Treatment Order imposed

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT) ss 12A, 35A(2), 80A, 80S, 80T

Crimes Act 1900 (ACT) s 34

Criminal Code 2002 (ACT) s 310

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

Evans v The Queen [2021] ACTCA 19

Green v The Queen (2011) 244 CLR 462

Hogan v Hinch [2011] HCA; 243 CLR 506

Laipato v The Queen [2020] ACTCA 35

Lowe v The Queen (1984) 154 CLR 606

O’Brien v The Queen [2015] ACTCA 47

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Avery [2018] ACTSC 64

R v Ayuel [2020] ACTSC 213

R v Barlow [2017] ACTSC 90

R v Blackburn; R v QH [2021] ACTSC 284

R v Cartwright (1989) 17 NSWLR 243

R v Froome [2018] ACTSC 152

R v Hagen [2022] ACTSC 362

R v Henry [1999] NSWCCA 111; 46 NSWR 346

R v Le Clair; R v Yeboah [2016] ACTSC 126;

R v Musolino [2018] ACTSC 3

R v Ndlovu [2017] ACTSC 244

R v Pham [2015] HCA 39; 256 CLR 550

R v Sanderson [2016] ACTSC 277

R v Smith [2016] ACTSC 317

R v Williams [2016] ACTSC 389

Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50

Texts Cited:

Bugmy Bar Book Committee, ‘Child Sexual Abuse’ in The Bugmy Bar Book Project (Sydney NSW; The Public Defenders; November 2019)

Parties: 

Director of Public Prosecutions ( Crown)

Jack James Sims ( Offender)

Representation: 

Counsel

S Saikal-Skea ( Crown)

J Banwell ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 307 of 2022

HOPKINS AJ:

Introduction

1․Jack Sims, you are to be sentenced for offences of aggravated robbery and forcible confinement that you committed, as part of a group, in the early hours of 9 June 2022. These are serious offences involving a significant degree of violence. For this reason, a substantial term of imprisonment must be imposed upon you.

2․Because you are dependent on illicit substances and this dependency substantially contributed to your offending, and indeed your history of offending, you have asked that I make a Drug and Alcohol Treatment Order (Treatment Order). This would suspend the sentence of imprisonment and enable you to address your substance use dependency. It would enable you to work towards your rehabilitation in the community under strict supervision with intensive support.

3․You have spent significant periods of your life in prison as a consequence of a cycle of addiction and offending. This cycle started when you were a child. It relates closely to traumatic experiences you had as a child. Experiences that no child should have to face.

4․To this point your efforts at rehabilitation have been unsuccessful.

5․I consider that you have demonstrated your readiness to do the hard work required of you under a Treatment Order. I will impose a total sentence 2 years and 6 months imprisonment and make an order suspending that sentence on condition that you engage in a treatment program for a period of 18 months.

6․I will now explain why this is the appropriate sentence and why it is appropriate for you to be given the opportunity the pursue your rehabilitation under a Treatment Order.

The offences

7․You have pleaded guilty to two offences. One offence of forcible confinement pursuant to s 34 of the Crimes Act 1900 (ACT) with a maximum penalty of 10 years imprisonment. And one offence of aggravated robbery pursuant to s 310 of the Criminal Code 2002 (ACT) with a maximum penalty of 25 years imprisonment. Both offences were committed jointly with Haylie Sibley (‘Ms Sibley’) and Natalie Hyde (‘Ms Hyde’).

8․The victim of your offending will be identified by the pseudonym ‘Matthew’.

9․The offences were committed in circumstances where a debt was said to be owed by Matthew to Ms Hyde. Between 6 and 8 June 2022, Ms Sibley and Ms Hyde both sent text messages to Matthew about this debt.

10․Late in the evening of 8 June 2022, after a text message exchange, Ms Hyde demanded that Matthew return house keys in his possession.

11․In response to this demand, Matthew arrived at 22 Abrahams Crescent, Conder shortly after midnight, in the early hours of 9 June 2022. He parked his white Toyota Landcruiser in the driveway. 

12․Ms Sibley drove your white Subaru into the driveway, blocking his exit. You were in the front passenger seat of that car.

13․You got out of the car and into the front passenger seat of Matthew’s car. Ms Sibley approached and told Matthew to get inside the house. Together, you and Ms Sibley searched for the keys to the house, whilst yelling at Matthew to get inside the house. The keys were located.

14․Once inside, you demanded that Matthew sit on the lounge. Matthew did not comply. You swung a socket wrench at him, which missed.

15․You and Ms Sibley took his phone and accused him of owing money and being an undercover police officer.

16․You and Ms Sibley went through Matthew’s phone, locating two numbers for the Tuggeranong Police Station that had been saved due to an unrelated incident on the previous evening.

17․You became angry and struck Matthew on the top of his head and then to his face, causing a black eye.

18․Ms Hyde then arrived at the house with others. As soon as Ms Hyde entered the residence, she walked up to Matthew and started hitting him on the back of the head. She then forced him to drink a liquid that made him feel dizzy and have difficulty speaking.

19․Matthew’s phone was searched again, and Ms Hyde took an undisclosed amount of money, estimated to be $50, from his person.

20․The group became increasingly angry, hitting Matthew harder and speaking about killing him. 

21․Matthew convinced the group to let him go to the bathroom. Once there he managed to kick out a window and escape. He collapsed out the front of a nearby house and was given assistance by a person who lived there. Police were called.

Impact on the victim

22․As a result of the offences, Matthew suffered lacerations, abrasions and bruising to his face around his right eye. He also had a wound to the top of his head requiring three staples, and abrasions to his right knee and hands.

23․Although there is no victim impact statement, there can be no doubt that the experience would have been terrifying for him. He will live with the memory of his powerlessness and the fear he experienced for the period in which he was confined and robbed by you and your co-offenders.

Objective Seriousness

24․Matthew was forcibly confined for over an hour by a group of five people in a residential home in the middle of the night.

25․It can be inferred from prior text message exchange and the way in which the offences were committed that there was some degree of planning. It is not clear what exactly was planned, as compared to what unfolded once the offending commenced.

26․It was conceded by the prosecutor that Ms Hyde was the “instigator” and the “ringleader”.

27․The purpose of the group was to extract money from Matthew. I am satisfied beyond reasonable doubt that there was a plan to confine Matthew for this purpose. It is not clear that there was an intention, at the outset, to rob him.

28․The offending does have the character of violence associated with the sale and supply of illicit substances. However, I am not satisfied to the relevant standard that this conclusion can be drawn, particularly in circumstances where the agreed facts make explicit reference to a dispute about “money for rent”. 

29․While Matthew was confined, you swung a wrench at his head. You hit him on the top of his head and punched him in the face.  The head and face are vulnerable areas of the body. His injuries demonstrate the degree of force. He was also hit by others in the group.

30․Matthew was forced to drink an unknown liquid that caused him to feel dizzy and have trouble speaking. He was searched and his property stolen from him. The amount of property was not significant. The degree of actual and threatened violence was.

31․The extent of his fear must have been significant.

32․These are all matters that must be considered in assessing the seriousness of your offending: see R v Williams [2016] ACTSC 389 at [53].

33․An assessment of the objective seriousness of each offence cannot be undertaken without recognising that the violence involved in the forcible confinement overlapped with the violence involved in the robbery.

Plea of guilty, assistance to authorities, remorse and acceptance of responsibility

34․You pleaded guilty five days prior to the commencement of your trial, which was due to commence on 18 September 2023. Though this was a late plea, it cannot be described as “last minute”. You are entitled to a reduction of your sentence even though the trial proceeded because your co-offenders did not plead guilty. I consider that the appropriate reduction is approximately 10 percent.

35․You then gave evidence at the trial after being called by the prosecution. Your lawyer submitted that this provided assistance in the administration of justice, warranting a reduction in your sentence. In determining whether to reduce your sentence on this basis and, if so, the extent of that reduction, I am required to assess the degree of assistance that you provided: s 35A(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The reduction is intended to provide a reward to those who provide assistance and encourage others to provide assistance in order to receive a similar benefit: Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 at [58]-[63] (Will).

36․I was taken through the transcript of your evidence at trial by the prosecutor. She submitted that the evidence you gave and the way in which you gave it did not provide any assistance to the prosecution of your co-offenders.

37․I am not persuaded that the evidence you gave under the compulsion of a summons did provide assistance. On a reading most favourable to you, your evidence was unhelpful because of your lack of memory of the events, which was a consequence of your illicit substance use at the time. That said, it is open to find that you were in fact seeking to help your co-offenders. In these circumstances, I cannot find that there is any degree of assistance provided or the genuine co-operation to be rewarded: see Will at 63 [71]; R v Cartwright (1989) 17 NSWLR 243 at 253. Further, I am not satisfied that compliance with the summons and giving evidence, without more, is behaviour that can or should be rewarded: Will at [81].

38․What you said in evidence at trial with respect to pleading guilty “to get it over with” also makes it difficult to find that you are particularly remorseful for your offending and the impact it had on Matthew. You have however accepted responsibility for what you did.

39․You told the authors of the Drug and Alcohol Treatment Assessment Report (Treatment Assessment Report) and the Drug and Alcohol Sentencing List Suitability Assessment Report (Suitability Assessment Report) that you were significantly under the influence of illicit substances at the time of your offending. You said this followed a protracted period of heavy substance use. You said you believed you were experiencing “drug induced psychosis”. According to the authors of these reports, you acknowledged the impact of your actions, stated that you were remorseful and spoke with some insight into your offending.

40․Whilst your intoxication by illicit substances is no excuse for your offending, it does provide a significant degree of explanation. You have had a long history of dependence on illicit substances, commencing when you were a child. This dependence is inextricably linked to significant traumatic experiences you faced as a young person. These experiences have shaped you. You were harmed. In turn you have harmed others, including Matthew.

41․What happened to you as a child and the experiences you faced are not your fault. You must, however, take responsibility for the harm you have caused. You must also take responsibility for your healing and for ensuring that you do not cause further harm through ongoing offending.  It is your resolve to address your dependence on illicit substances, and face the underlying trauma, that led you to seek a Treatment Order.

Criminal history and conditional liberty

42․You are now 32 years of age. You have a significant criminal record that commenced in [redacted]. You have spent periods of time in [redacted]. I will return to how this came about and the impact it had upon you shortly.

43․Your adult criminal record includes a significant number of dishonesty offences, amongst these are offences of burglary and theft. It is important to note that your record does not establish a significant history of violent offending. There is a single offence of assault occasioning actual bodily harm dating from 2014.

44․On 12 January 2021 you were sentenced to a total of two years and seven months in prison for a spate of burglaries and associated offending committed in the first half of 2020. That sentence was suspended after you had served 13 months on condition that you be of good behaviour.

45․The offences that you are to be sentenced for today were committed whilst you were subject to this good behaviour order. This is relevant to determining the appropriate sentence. It is an aggravating factor. It is also an indication that, if you are to break your cycle of offending, a different approach is necessary. 

Time in custody and completion of your previous sentence

46․On 2 May 2023, you were resentenced in relation to the offences that were the subject of the good behaviour order. The total term of imprisonment then imposed on you was one year and seven months with a non-parole period of eleven months. You did not apply for parole and your sentence ended on 20 February 2024.

47․Importantly, this means that you are no longer subject to a ‘sentencing order’ that would prevent the making of a drug and alcohol treatment order: s 12A(1)(c) of the Sentencing Act.

48․Your sentence will not be backdated to take account of any of the time you spent in custody prior to 21 February 2024. This period of imprisonment remains important in considering the appropriate sentence to impose upon you. This is particularly the case because of the work you have done during this time to create a foundation for the opportunity to pursue your rehabilitation in the community.

49․You have remained in custody for the offences that you are to be sentenced for today since 20 February 2024.

Subjective circumstances

50․Mr Sims, the reports before the Court establish that you had an “unremarkable” childhood until the age of 15. You were raised by your mother and father, together with your two sisters. You maintain a close relationship with your mother and your sisters.

51․You were not exposed to alcohol, drug use or family violence in the home. Though your father did smoke cannabis and used heroin when you were in your primary school years, this was apparently not in your presence. Though there must be questions about the extent to which your father was a good role model, there is no doubt that you loved him.

52․You were diagnosed with attention-deficit/hyperactivity disorder (ADHD) at the age of 5, receiving care from a paediatrician until you were 15. When untreated, your ADHD results in you having difficulties with hyperactivity, impulse control, attention and emotion regulation. As a young child, you were also engaged with a speech pathologist and occupational therapist. This suggests that you may well have faced a significant degree of challenge in your early years that is not recorded in the evidence before the court.

53․At the age of 15, you witnessed the death of your best friend by suicide. Shortly after this, you became involved with the “wrong crowd”, a fact that is consistent with your description of yourself as a “crowd pleaser” who is easily influenced.

54․You commenced offending and found yourself in [redacted] for an extended period. There you suffered the trauma [redacted]. The relationship between child sexual abuse and the development of addiction as a consequence of using illicit substances to manage psychological trauma are now well understood: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 3, 11 cited in Bugmy Bar Book Committee, ‘Child Sexual Abuse’ in The Bugmy Bar Book Project (Sydney NSW; The Public Defenders; November 2019).

55․At the age of 16, [redacted] you commenced drinking alcohol and smoking methamphetamine and heroin.

56․At the age of 17 you and one of your sisters witnessed the passing of your father after his struggle with cancer. Your attempts to resuscitate him [redacted] were unsuccessful and he died in your arms.

57․Your mother reports that over the 12 months following your father’s death you were exposed to more grief and loss, with your uncle passing and another friend committing suicide. You found him hanging in a tree in the backyard.

58․You found yourself unable to cope with these traumatic experiences and turned to alcohol and illicit drugs as a coping mechanism to manage your emotions.

59․At the age of 18, you were drinking alcohol daily, to the point of passing out. You also increased your use of methamphetamine. You began to inject the substance after you experienced being held down and administered your first shot.

60․From the age of 18 you were doing whatever you had to do to afford illicit substances, committing offences that have seen you spend much of your adult life in prison.

61․Your traumatic experiences as a child and the way in which they link to your drug and alcohol use and the development of substance use addiction at an early age is an important consideration in sentencing.

62․The High Court in the case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44] (Bugmy) has made clear that sentencing courts must give “full weight” to the impact of adverse childhood experience. This is to recognise that there are lines of force that shaped your life as a child that continue to impact you today, explaining your descent into addiction and a cycle of offending. This reduces your “moral culpability” and the weight to be given to “punishment, denunciation and general deterrence”: see also R v Hagen [2022] ACTSC 362 at [40].

63․Further, your age and maturity at the time that you commenced drug and alcohol use means that you did not have the capacity to consider the consequences of your actions in the same way as an adult: R v Henry [1999] NSWCCA 111; 46 NSWR 346 at [273] (Wood CJ), at [335]-[355] (Simpson J).

64․There is limited information about your experience of education and employment. Plainly your schooling was interrupted. You completed year 10 whilst [redacted]. You have been employed sporadically including in landscape gardening and concreting.

65․Until your most recent period of imprisonment, you have continued to use illicit substances whilst in custody whenever they are available to you. In past custodial periods, you have also been subject to discipline for poor behaviour.

66․When out of custody, you have had a poor history of compliance with court orders. You have continued to use illicit substances and commit offences to obtain these substances.

67․Unless your drug dependency, underlying trauma and mental health issues are addressed, the cycle of offending is likely to continue.

Current custodial period and a foundation for change

68․During your current custodial period of over one year and seven months, commencing 21 July 2022, your behaviour has changed.

69․You have completed a number of courses and programs, including a pre-employment program with Quality Training in Construction. A letter from the Chief Executive Officer of that program, dated 23 March 2023, reports that you have completed all units and competencies. You worked hard with energy and enthusiasm. As a result, you have been offered an apprenticeship upon release that may well be available to you once you have progressed sufficiently in your community-based rehabilitation plans.

70․You completed the 12-week Karralika Solaris Therapeutic Community Program, graduating on 28 April 2023. This is the first structured rehabilitation program you have engaged in.

71․A letter dated 12 April 2023 from the case manager of the program notes that you were “actively demonstrating behaviour change and identification of treatment issues”; that you displayed “significant strength in [your] ability to display vulnerability and willingness for change”; and that you were “actively engaged in emotional regulation and esteem work”. 

72․I am told that, apart from one lapse in January 2024, you have remained abstinent from illicit substance use since your graduation.

73․In contrast to previous periods of custody, since 21 July 2022 you have not been the subject of any disciplinary action for poor behaviour. 

74․You have engaged well with psychiatric treatment and care, including regular reviews. You are prescribed medication, including for opioid dependence, ADHD, and bi-polar disorder. You also report to having been diagnosed with complex post-traumatic stress disorder, because of your experience in [redacted]. You have developed, and demonstrated, the courage to speak about this experience and to reach out for help.

75․As a consequence of seeking help for your mental health, you now have the support of a National Disability Insurance Scheme package.

76․Taken together, this is an indication that you have developed greater insight into your illicit substance use and the underlying drivers of that use. It is also an indication that you are motivated to change.

77․You have developed a detailed relapse prevention plan. I have read that plan. It too demonstrates insight and sets out concrete and practical ways you can address the inevitable challenges that will arise in maintaining abstinence and working towards healing.

78․Importantly, you are able to identify clear goals for your future.

79․You are motivated to do well to make your mother proud. You have her support and the support of your sisters, one of whom lives with your mother as her carer. Your mother has not been well and has spent recent periods in hospital. You are committed to change so that you can be there for her.

80․You have been accepted into the Karralika Matrix day program.

81․You have been found suitable for the Justice Housing Program and been allocated a home.

82․Critically, you have been assessed as suitable for a Treatment Order.

Current sentencing practice

83․I was directed to a number of comparative sentences to enable me to consider current sentencing practice: R v Froome [2018] ACTSC 152; R v Musolino [2018] ACTSC 3; R v Avery [2018] ACTSC 64; R v Smith [2016] ACTSC 317; R v Ndlovu [2017] ACTSC 244; R v Ayuel [2020] ACTSC 213; R v Le Clair; R v Yeboah [2016] ACTSC 126; R v Barlow [2017] ACTSC 90; R v Sanderson [2016] ACTSC 277. I have considered other cases involving forcible confinement: R v Blackburn; R v QH [2021] ACTSC 284; Laipato v The Queen [2020] ACTCA 35 and Evans v The Queen [2021] ACTCA 19. These cases have been of assistance to me.

84․Comparable sentences illustrate, but do not define, the possible range of sentences available: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53].

Parity

85․Your co-offenders Ms Hyde and Ms Sibley were sentenced on 27 February 2024. I have considered a transcript of the reasons for the sentences and the sentences imposed.

86․This was necessary because there must be an avoidance of unjustified disparity between the sentences imposed upon offenders involved in the same criminal conduct.

87․This is based upon the principle of equality before the law that requires that like cases be treated alike and unlike cases differently: Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606.

88․There are difficulties in comparing your case with the cases of Ms Hyde and Ms Sibley. This is in part because their sentences were imposed by reference to facts found at trial after they pleaded not guilty. These facts are somewhat different to the agreed facts in your case. Most importantly, in your case, for the reasons set out above, I cannot find that your offending took place in an attempt to recover a drug related debt or that the offending took place in the context of the sale or supply of drugs.

89․Ms Hyde’s circumstances are most relevant for comparison. She was the “instigator” and the “ringleader” of the offences. Whilst this would suggest her role was more significant than yours, it is clear that you engaged in more serious acts of physical violence in the course of the forcible confinement. Your acts of violence commenced prior to her arrival at the address where the offence took place. To some degree these features balance one another out.

90․You both have significant criminal records associated with illicit substance use. However, it is clear that your record of offending is more serious and you have spent longer periods of your life in prison. This is balanced with the fact that your experiences of childhood disadvantage and trauma appear more profound and debilitating.

91․For these reasons I consider that there is little justification for disparity as between you and Ms Hyde.

92․Ms Hyde received a sentence of 30 months imprisonment for forcible confinement and 24 months imprisonment for aggravated robbery. The term of imprisonment for the aggravated robbery charge was cumulative as to 3 months, taking the total sentence for these offences to 33 months. Ms Hyde did not plead guilty.

Sentencing purposes and consideration

93․No sentence other than imprisonment is appropriate having regard to the seriousness of your offending.

94․In sentencing you today, I am required to consider the purposes of sentencing set out in s 7 of the Sentencing Act.

95․You must be adequately punished in a way that is just and appropriate. This requires consideration of the nature of your offending, the harm you caused and your moral culpability, judged by reference to your experiences of childhood trauma, grief and loss which is linked to your descent into addiction to illicit substances: Bugmy at [44].

96․Your sentence must deter you and others from offending, particularly from violent offending committed by a group that involves such disregard for the liberty, autonomy and safety of others.  The trauma you experienced as a young person does, however, reduce the extent to which you can be considered an appropriate vehicle for general deterrence. In plain speech, that means your experience as a young person and its ongoing impact on you reduces the extent to which an example can be made of you to deter others from committing offences.

97․The sentence must recognise the harm you caused to Matthew and denounce the conduct you engaged in. It is important that you understand that I am not denouncing you as a person. You are responsible for your offending, but it does not define you.

98․Importantly, the sentence must be designed to promote your rehabilitation and protect the community. Though these purposes can conflict, ultimately, as stated by French CJ in Hogan v Hinch [2011] HCA; 243 CLR 506 at [32] “Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”. In your case, rehabilitation depends upon you being able to address your addiction and the underlying causes of that addiction. Your history of incarceration and the failure of prison to address your cycles of addiction and offending suggest that the intensity of supervision and support offered under a Treatment Order may provide the best potential for you and for the community.

Totality

99․The two offences for which you are to be sentenced must be considered separately. An appropriate sentence must be fixed for each. And yet, each offence is not, in reality, discrete or separate. The aggravated robbery of Matthew took place during the course of his forcible confinement. The violence involved and harm caused by each is inextricable from the other. This means there is a high degree of overlap. Inevitably, this means there must be a high degree of concurrency, or overlap, between the sentences imposed on you. Ultimately, the totality principle requires me to step back and ensure that the total sentence imposed on you reflects the overall criminality of your offending, such that the aggregate sentence is just and appropriate for the offences: O’Brien v The Queen [2015] ACTCA 47 at [26].

100․Further, the overall sentence must “hold out a proper measure of hope for, and encouragement to, rehabilitation and reform”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 341.

Orders

101․For those reasons I will make the following orders:

(1)Jack James Sims be convicted of forcible confinement (CAN 6796/2022) and be sentenced to 27 months imprisonment, reduced from 30 months on account of his plea of guilty, commencing 21 February 2024 and ending 20 May 2026.

(2)Jack James Sims be convicted of aggravated robbery (CAN 6794/2022) and be sentenced to 22 months and 14 days imprisonment, reduced from 25 months on account of his plea of guilty, commencing on 7 October 2024 and ending on 20 August 2026.

(3)The total sentence is 30 months imprisonment commencing 21 February 2024 and ending on 20 August 2026.

Drug and Alcohol Treatment Order

102․Mr Sims, you have asked to serve your sentence as a Treatment Order to enable you to address your drug dependence and the underlying causes of this dependence.

103․You are eligible for a Treatment Order. You have pleaded guilty, been convicted and sentenced to a total period of imprisonment of between 1 and 4 years for two eligible offences, and you are not subject to a sentencing order for another offence: s 12A of the Sentencing Act.

104․I am satisfied on the balance of probabilities that you are dependent on a controlled drug, that this dependency substantially contributed to the commission of the offences and that you will live in the ACT for the term of the sentence except as directed by the court: s 12A(2)(a) of the Sentencing Act. 

105․I consider that it is appropriate to make a Treatment Order having regard to applicable sentencing considerations, information given to the court relating to victim concerns and the fact that you have given informed consent: ss 12A(2)(b) and (c) of the Sentencing Act.

106․I consider that a Treatment Order is appropriate having regard to the objects of such an order to facilitate your rehabilitation, reduce your dependency and associated health risks, assist your reintegration into the community and promote community safety: ss 12(a)(b)(iii) and 80A of the Sentencing Act. You are eligible for a Treatment Order.

107․Further, I am satisfied, having regard to the treatment and suitability assessments before the Court, that a Treatment Order is suitable for you, that it is appropriate for you to serve a sentence suspended in accordance with a Treatment Order and that appropriate arrangements for the administration of that order are practicable: ss 80S and 80T of the Sentencing Act.

Orders

108․For those reasons I will make the following orders:

(1)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Jack James Sims in respect of the eligible offences of forcible confinement (CAN 6796/2022) and aggravated robbery (CAN 6794/2022), of which Jack James Sims has been convicted and for which he has been sentenced to a total term of 30 months imprisonment.

(2)It be noted that convictions and sentences imposed for the eligible offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.

(3)The Drug and Alcohol Treatment Order be for 29 months and 23 days from today, 29 February 2024, to 20 August 2026.

(4)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 18 months from today, 29 February 2024, until 28 August 2025.

(5)The Custodial Part of the Drug and Alcohol Treatment Order for the eligible offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 29 February 2024, until 20 August 2026.

(6)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Jack James Sims 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, 29 August 2025, until the end of the total sentence, 20 August 2026, 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.

(7)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:

1․ The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;

2․     Jack James Sims undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time;

3․     Jack James Sims not return a positive test sample under alcohol and drug testing; and

4․     Jack James Sims comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.

(8)Jack James Sims be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force before he leaves the Court precincts.

(9)Jack James Sims be directed to appear in Court on Friday 1 March 2024 at 11:30am.

109․Mr Sims, serving your sentence in this way will be challenging. Facing and recovering from you addiction and the underlying trauma will be very difficult. You know this far better than I do. It has been your lived experience.

110․You now have a new opportunity to climb this mountain. You will be closely supervised. You will be subject to regular drug and alcohol testing, three times a week to begin with. You will be required to attend court regularly to speak with me or another judge. For a time, this will happen every week. These check-ins will keep you accountable.

111․If you use alcohol or illicit substances, then you will face sanctions. If you do not attend appointments, or stay in touch with your case managers, or comply with the requirements of the order or the behavioural protocol, you will face sanctions. These may include a return to prison for a period of 7-14 days or longer.

112․If you commit further offences that subject you to imprisonment, then your order will be automatically cancelled.

113․I don’t say this to scare you. Just to ensure that you know the challenge you face.

114․But along with supervision, you will receive support. You will have two case managers, one from Corrective Services and one from ACT Health, Alcohol and Drug Service. You will be required to check in with them regularly, to talk about how you are going in achieving your treatment goals. When you are facing challenges or feeling triggered you will need to talk with them. If you lapse and use, then you should tell them. They have a lot of experience. They can help you.

115․You should also talk to your case managers about your successes. Remember, each step you take up the mountain will give you a better view. Each step can be a source of pride for you. Each step will make others proud.

116․If there are steps back along the way, then you will still remember that view. With courage you will continue to climb. 

117․Ultimately your case managers want you to succeed. They want to see you reach the summit of that mountain – to enjoy the view from the top.

118․It is important for you to know that I want you to reach the top of that mountain too, as will other judges you speak to along the way. We too will celebrate your successes.

119․Hard work, abstinence, honesty and trust will get you there. You have the strength to do this. I wish you luck.

I certify that the preceding one hundred and nineteen [119] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Hopkins

Associate: J Liu

Date: