DPP v Booth

The breach

5. On 25 February 2025, while subject to the Treatment Order, the participant committed an offence of unlawful possession of stolen property. He committed a further two offences, namely assaulting a frontline community service provider and resisting arrest, on 17 September 2025.

6. On 27 January 2026, the participant was sentenced in the Magistrates Court to a total effective sentence of one year and 20 days, backdated to commence on 17 September 2025 and conclude on 6 October 2026. The consequences of the breach

7. The legislation is clear as to the first consequence of a breach of a Treatment Order where a sentencing order is imposed for a further offence, as was the case here. The court must cancel the Treatment Order: s 80ZD(3) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

8. The court must now either impose the sentence of imprisonment that was suspended or, if the court considers it appropriate in the circumstances, resentence the offender for each offence in relation to which the Treatment Order was made: s 80ZD(4) of the Sentencing Act. If the court decides to resentence the offender, it may do so in any way in which the court could deal with the offender if it had convicted the offender of the offences at the time of resentencing, except by way of a further Treatment Order: s 80ZD(4)(b) of the Sentencing Act.

The original sentence should be imposed

9. For reasons that follow, I have determined it is appropriate to impose the original sentence.

10. Generally applicable principles have been set out in authorities such as R v Cook (No 2) [2024] ACTSC 27 at [19]-[20]: 19․ Plainly, a high level of non-compliance with the treatment and supervision part of the Treatment Order tends towards imposition of the suspended portion, while positive compliance tends towards a conclusion of it being appropriate in the circumstances to resentence. 20․ As has been repeatedly said, an opportunity for a Treatment Order is a privilege. A defiance of that privilege warrants little opportunity for it being appropriate to engage in a resentence exercise. Such an approach ensures that the suspended imprisonment portion provides a deterrent effect for compliance, while also ensuring that current and potential participants on the Drug and Alcohol Sentencing List appreciate the privilege available to them and the likely consequences for non-compliance. That is, non-compliance with a Treatment Order will, in the absence of compelling circumstances that lead to a conclusion that it is appropriate to resentence, results in imposition of the suspended sentence of imprisonment.

11. In that case, Christensen AJ was exercising a similar discretion arising under s 80ZE(1) of the Sentencing Act. Even so, there is no presumption in favour of imposing the original sentence. Beyond that, the manner in which the discretion is to be exercised is heavily fact dependent. Considerations will likely include the circumstances which brought about the cancellation, the nature of the original offending and subjective features informing any non-compliance.

12. The circumstances here involve a breach where the participant had been given two opportunities to engage in rehabilitation. The first was the imposition of the Treatment Order itself in November 2024.

13. The participant had difficulties in complying with the Treatment Order. He disengaged completely in March 2025, and a warrant was issued for non-attendance at court. He was arrested in July 2025.

14. A subsequent application for cancellation was dismissed on 19 August 2025, and the participant was given a second opportunity to rehabilitate by entering the residential rehabilitation program at Canberra Recovery Services. He was due to enter that program on the same day but absconded immediately upon his release from custody.

15. A further warrant for his arrest was issued on 21 August 2025. He was arrested on 17 September 2025, the day he committed two of the offences that are the subject of the breach.

16. I accept that the participant had carer responsibilities for his father who has since passed away and that he is affected by grief. The subjective factors discussed in Booth at [43]- [46] – which led to the opportunity to undertake a Treatment Order in the first place – will also have contributed to the choices the participant made. However, in circumstances where little to no effort at rehabilitation has been achieved despite several opportunities, the conclusion that the original sentence should be imposed is compelling.

Structure and totality considerations

17. Although on an imposition of the original sentence it is not appropriate to adjust the structure initially imposed by Christensen AJ for the nine offences, I have considered it appropriate to make the imposition of the sentence partially concurrent with the existing sentence that the participant is serving, for totality considerations (pursuant to s 71(2) of the Sentencing Act).

18. There is a further complicating factor, in that by the orders made by Christensen AJ on 18 November 2024, the sentence for the offence of driving a motor vehicle without consent (CAN 5317/2024) had been partially served at the time the Treatment Order was imposed. I have dealt with this in imposing only the suspended portion of the sentence.

Non-parole period

19. The non-parole period set by the Magistrates Court in respect of the breach offending, being 17 September 2025 to 1 June 2026, is automatically cancelled: s 66(3) of the Sentencing Act.

20. The court must then impose a non-parole period, but any such period set must not make the participant eligible to be released on parole earlier than if the primary sentence had not been imposed: s 66(4) of the Sentencing Act.

21. Section 66(2) provides for the court to set a non-parole period in accordance with s 65 as if it had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the further term of the sentence.

22. Having regard to s 71 of the Sentencing Act, which enables the court to make directions about partial concurrency, I have interpreted that to mean the total of the terms as they are actually imposed. Thus, in the circumstances here, the court has adjusted for totality by ordering partial concurrency between the two sentences. The non-parole period is set by reference to that adjusted term and not the two terms entirely consecutively.

23. As discussed with the parties during the hearing, in setting the non-parole period I will also take into account matters of totality in the additional length of time that the participant has and will spend in custody since the original sentences were imposed, as well as the difficulties that the participant has encountered in his struggles following the death of his father.

Orders

24. For the above reasons, the orders of the Court are: (1) Pursuant to s 80ZD(3) of the Sentencing Act, the Drug and Alcohol Treatment Order made on 18 November 2024 is cancelled. (2) Pursuant to s 80ZD(4)(a) of the Sentencing Act, the sentence of imprisonment suspended under the custodial part of the Drug and Alcohol Treatment Order is imposed. (3) Pursuant to s 71(2) of the Sentencing Act, I direct that the primary sentence is to be made partially concurrent with the existing sentence imposed in the Magistrates Court which commenced on 17 September 2025. (4) For CAN 5317/2024, the offence of drive motor vehicle without consent, the conviction is confirmed and the remaining sentence of imprisonment for three months and 11 days is imposed, to commence on 1 June 2026 and conclude on 11 September 2026. (5) For CAN 5316/2024, the offence of fail to stop for police (first offender), the conviction is confirmed and the sentence of imprisonment for three months is imposed, to commence on 15 July 2026 and conclude on 14 October 2026. (6) For CAN 3033/2024, the first offence of burglary, the conviction is confirmed and the sentence of imprisonment for eight months is imposed, to commence on 15 October 2026 and conclude on 14 June 2027. (7) For CAN 5177/2024, the second offence of drive motor vehicle without consent, the conviction is confirmed and the sentence of imprisonment for six months is imposed, to commence on 15 June 2027 and conclude on 14 December 2027. (8) For CAN 5176/2024, the offence of obtain financial advantage, the conviction is confirmed and the sentence of imprisonment for 25 days is imposed, to commence on 15 December 2027 and conclude on 8 January 2028. (9) For CAN 3034/2024, the second offence of burglary, the conviction is confirmed and the sentence of imprisonment for nine months is imposed, to commence on 9 January 2028 and conclude on 8 October 2028. (10) For CAN 5178/2024, the offence of common assault, the conviction is confirmed and the sentence of imprisonment for four months is imposed, to commence on 9 August 2028 and conclude on 8 December 2028. (11) For CAN 3037/2024, the offence of minor theft, the conviction is confirmed and the sentence of imprisonment for two months is imposed, to commence on 9 December 2028 and conclude on 8 February 2029. (12) For CAN 3038/2024, the offence of possession of stolen goods, the conviction is confirmed and the sentence of imprisonment for one month is imposed, to commence on 9 February 2029 and conclude on 8 March 2029. (13) The total term of imprisonment imposed is two years, nine months and eight days, commencing on 1 June 2026 and ending on 8 March 2029. (14) A non-parole period of two years is set, to commence on 17 September 2025 and end on 16 September 2027.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam.

Associate: Date: