DPP v Cooper

1. This judgment makes two decisions following the hearing of an Application in Proceeding filed in court on 25 November 2025 (but foreshadowed as early as 14 October 2025), whereby the prosecution applied under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) to cancel an order made in respect of a person participating in the drug and alcohol treatment programme administered by the court.

2. The first decision is to cancel a Drug and Alcohol Treatment Order that was made in respect of Michael Lesley Cooper (the participant) on 12 December 2023 (Treatment Order). The second is that he will return to custody as part of being resentenced for the offending that was the subject of that Treatment Order.

3. These reasons explain why those decisions have been made. In essence, the participant was unable to achieve sufficient progress in terms of his drug and alcohol rehabilitation to merit the Treatment Order being continued, but he had put in significant effort and the circumstances that had passed since the date of the Treatment Order were such that it would have been unjust to simply impose the original sentence. The result is that following a return to custody in consequence of the cancellation, he will then have an opportunity in the community to attempt different methods of intervention (including other programs that may be culturally appropriate or interstate) that may be better suited to his needs.

The original sentence the subject of the Treatment Order

4. The participant was sentenced on 12 December 2023 for 10 offences, committed in three separate series on 24 February 2022, 26 and 27 March 2022, and 6 February 2023. A total effective term of imprisonment of four years was imposed.

5. Taking into account the time the participant had already spent in custody referrable to the offending, the sentencing was backdated by 12 days to commence on 1 December 2023 and end on 30 November 2027. The Treatment Order was then imposed for the remainder of the sentence, pursuant to s 12A of the Sentencing Act, from 12 December 2023 to 30 November 2027, being a period of three years, 11 months and 19 days. While the Treatment Order was in place, the custodial part of the participant’s sentence was suspended. What occurred between 1 December 2023 and 25 November 2025

6. The participant attempted two residential drug rehabilitation programs in 2023 and 2024, the first in CRS and the second at Karralika in April 2024. In between each of those two programs, his Treatment Order was provisionally cancelled on 21 March 2024.

7. He exited Karralika in October 2024 prior to completion of all the stages. However, he did achieve the “shield” stage of that particular program, which demonstrated some progress.

8. Since that period, he has had a repeated history of being unable to abstain from using illicit substances, with each use being a breach of the Treatment Order. He has spent numerous periods in custody as a result of accruing sanction points for use. There was also a warrant executed in May 2025 when the offender failed to attend court and evaded police.

9. In addition to this, the participant has an unfortunate medical history in that he has not attended urinalysis testing or court appearances due to apparent illness. There are now 29 medical certificates that have been relied upon by the participant to excuse non-attendance.

10. The periods of demonstrated abstinence from illicit substances are rare, but they do exist. Taking this year as the most recent indicator of willingness and ability to comply with the order, he did have a two-week period at the end of February, a couple of consecutive tests demonstrating three to four days without drug use in July, a full week in August and again, he managed a full week in October.

Application for cancellation

11. The prosecution’s application to cancel the Treatment Order relies on the following two grounds: (a) The offender is unwilling or unlikely to comply with a condition of the Treatment Order. (b) The continuation of the treatment and supervision part of the Treatment Order is not likely to achieve the objects of the order.

The court’s power to cancel a Drug and Alcohol Treatment Order

12. The discretion that is enlivened by the prosecution’s application is that prescribed by s 80ZE of the Sentencing Act. Section 80ZE(1) is in the following terms (emphasis added): (1) The court may cancel a treatment order if it is satisfied on the balance of probabilities that— (a) before the order was made, inaccurate or misleading information about the offender or the offender's circumstances was given to the court or an assessor who prepared a drug and alcohol treatment assessment in relation to the offender, and as a result of the information, the making of the order was inappropriate; or (b) the offender will not be able to comply with a condition of the offender's treatment order because the circumstances of the offender have materially changed since the order was made; or (c) the offender is unwilling or unlikely to comply with a condition of the offender's treatment order; or (d) the continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order; or (e) the offender withdraws the offender's consent to the treatment order; or (f) the offender poses an unacceptable risk to the safety or welfare of a person.

13. It can be seen that the application in the present case was brought under the emphasised paragraphs (c) and (d) of the section.

The Treatment Order imposed in respect of the participant should be cancelled

14. The participant has now spent two years pursuing rehabilitation through this order. He has another two years of his existing sentence. The history briefly described above indicates that the participant is trying, but it has been so difficult for him. One indicator of the difficulty was that during the period of his order, when appearing at court for a check-in, he contemplated withdrawing his consent to continue the Treatment Order. He ultimately persevered, as the alternative of years of further full-time custody was plainly an undesirable outcome at that time.

15. On occasion, the participant has managed to remain abstinent for a week at a time. However, the pattern that has emerged over the past year is of fairly consistent use of illicit drugs, interspersed with medical absences and periods of short-term custody.

16. The court has not interrogated the medical certificates, but there are really only two possibilities that give rise to such a significant history of absences for medical reasons while on the Treatment Order. The first is that the participant has very significant medical issues that require a different approach to be taken to drug rehabilitation than that available on the court-administered program. The second is that the participant is unwilling to disclose the true extent of his drug use through testing, attending court and complying with the requirements of the behavioural protocol. Either circumstance leads to a conclusion that the abstinence-based program administered through the court is unlikely to achieve success for this participant.

17. Based on the history, I consider that while the participant remains willing to continue attempting sustained abstinence through the program, he is unlikely to comply with its conditions sufficiently to really progress. It must be borne in mind that one of the objectives of a Treatment Order is to promote an offender’s rehabilitation. Simply trying the same approach over and over again is demoralising for a participant and likely to be counterproductive to the end goal, which is to stabilise participants to the point where they can integrate into the community in a pro-social way and thereby reduce drug-related crime.

18. I am satisfied on the balance of probabilities that in all the circumstances, cancellation of the Treatment Order is appropriate for either or both of the reasons propounded by the prosecution.

The participant should be resentenced

19. The consequences of the decision to cancel the Treatment Order are set out in s 80ZE(2) of the Sentencing Act, which provides as follows: (2) If the court decides to cancel a treatment order under subsection (1) the court must make an order cancelling the treatment order and, taking into account the extent to which the offender has complied with the treatment and supervision part of the order, either— (a) impose the sentence of imprisonment that was suspended under the custodial part of the treatment order; or (b) if the court considers it appropriate in the circumstances—resentence the offender for each offence in relation to which the treatment order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and alcohol treatment orders).

20. As the words of the section make clear, the court has two options. The first is to impose the sentence of imprisonment that was originally imposed under the custodial part of the treatment order: s 80ZE(2)(a) of the Sentencing Act. The second is to resentence the offender: s 80ZE(2)(b) of the Sentencing Act. This is a discretionary decision which depends on each participant’s circumstances: see DPP v Tonna (No 2) [2020] ACTSC 362 at [78]-[79], where some of the kinds of considerations that would lead to resentencing were set out.

21. Here, it is appropriate in the circumstances to resentence the participant for each offence in relation to which the Treatment Order was made because: (a) While the Treatment Order may now be unlikely to achieve the objects set out in s 80O of the Sentencing Act, the participant was successful in completing the CRS residential treatment program. He also completed over half a year at Karralika. (b) To impose the suspended part of the original sentence would require the full term of imprisonment of three years, 11 months and 19 days to be served without reference to any time served since the original sentence was imposed. Here, the participant has spent a considerable amount of time in full-time custody in relation to provisional cancellations. While that time may not necessarily translate to time served on the sentence (as those days are referable to sanction points imposed under the Treatment Order), to ignore the fact that such periods in full-time custody have occurred would work an injustice on the participant. (c) The participant has also spent time in the community and not reoffended. As the prosecution submitted, that should be a given on any Treatment Order, but it does provide support for the inference that the participant is not beyond rehabilitation, and it is simply that there may be other programs that are a better fit.

22. As to the applicable principle upon cancellation of a Treatment Order, recently in Figura v DPP [2025] ACTCA 48, the Court of Appeal stated relevantly at [49]: An offender extended the opportunity through a DATO to serve a period of imprisonment in the community to address the challenge of addiction, and who fails to adequately demonstrate compliance with the conditions of that opportunity, should not expect to receive a lesser sentence if the DATO is cancelled for non-compliance, particularly where that non-compliance occurs early in the DATO. The purpose of a DATO is to support offenders to address the primary criminogenic risks factor driving them to engage with the criminal justice system and thereby protect the community from future harm. Non-compliance with the conditions of the opportunity afforded undermines the capacity of the sentence to serve the interest that the community has in offender rehabilitation. Where there has been no demonstrated rehabilitation, and no significant sacrifice to an offender in complying with the DATO for the period prior to cancellation, there will be no basis upon which to reduce the sentence originally imposed.

23. The Court of Appeal was there dealing with circumstances where the original sentence had been imposed, rather than a resentence. However, the same principle broadly applies in my view, in that while there may be good reasons to re-sentence to take into account subsequent circumstances, the offender should not be perceived to be “better off” or advantaged under a re-sentence when compared with the original sentence that had been imposed but suspended at the outset. The integrity of the program and the incentive under the Treatment Order depends upon non-compliance not being rewarded with a lesser sentence.

24. The original tender bundle was before the court on the cancellation application. Having considered that material and the subsequent circumstances outlined above, to the extent that the sentencing objectives and mandatory considerations set out in s 33 of the Sentencing Act require consideration again, they have been comprehensively addressed by Refshauge AJ in his reasons on sentence delivered on 12 December 2023 and I respectfully adopt his Honour’s reasons.

25. The real question is how to allow for subsequent events, given the court’s broad discretion to take into account time spent in custody while under the Treatment Order and other matters. It is not the case that the court must take into account any time served in custody on a day-for-day basis (that is similarly not the case when s 63 of the Sentencing Act is utilised in sentencing the offender). In this matter, much of that time was expressly referrable to accommodating the system of sanctions that operates by way of administration of the Treatment Order. However, as I have said, significant allowance for periods spent in full-time custody is appropriate in the participant’s circumstances (which include the participant’s willingness, engagement and continued participation being evident).

26. Further, the legal representative for the participant helpfully drew the court’s attention to R v Hyde [2020] ACTSC 301 at [38], where Murrell CJ stated that it was common to allow for the period spent in full-time residential rehabilitation at the rate of 50 per cent of full-time imprisonment. While that should not be elevated to a rule of inflexible application, in this case, given the treatment components that were completed in residential rehabilitation and the strict conditions imposed by the service providers, I consider it appropriate to adopt a similar approach.

27. In the circumstances here, I consider: (a) Four and a half months should be taken into account in allowance for the period spent in full-time residential rehabilitation; and (b) Two and a half months should be taken into account in relation to the periods of full-time custody that the offender has spent.

28. I will therefore allow seven months by way of backdating the sentence to commence on 6 May 2025. For the purposes of calculating the start date of the sentence, I have also taken account of the 12 days referrable to the offending that were backdated by Refshauge AJ. That results in the first offence of aggravated burglary being reduced by 12 days. I say this lest there be any perception that the sentence for that offence is less than the sentence imposed by Refshauge AJ.

29. I have decided to suspend a significant part of the sentence in recognition of the time spent pursuing the Treatment Order and the consistent participation in that process, notwithstanding the repeated breaches. I have also had regard to the period spent in continuous custody prior to the original sentence being imposed, referable to other offending as part of overall totality considerations at this point in the offender’s sentence.

30. It should be made very clear that this is not the end of the rehabilitation road for this offender. The manner in which the order is to be served reflects the intention that the primary objective of rehabilitation for this offender still be pursued. The combination sentence has been crafted to reflect the consequences of non-compliance with a Treatment Order (a further period of incarceration) but then to provide a lengthy period under a suspended sentence regime, which is intended to permit the offender to pursue other forms of treatment under supervision. It is hoped that he will ultimately succeed in his efforts to beat his addiction. That is what is in his best interests, as well as the longer-term interest of the community.

Orders

31. The orders of the Court are: (1) Pursuant to s 80ZE(1)(c) and (d) of the Crimes Sentencing Act 2005 (ACT), the drug and alcohol treatment order made on 12 December 2023 in respect of Michael Cooper is cancelled. (2) The offender is resentenced as follows: (a) In respect of the offence of aggravated burglary (CAN 8199/2022), the offender is convicted and sentenced to a term of imprisonment for 24 months, reduced to 18 months and 18 days on account of his guilty plea, to commence on 6 May 2025 and conclude on 23 November 2026. (b) In respect of the offence of driving a motor vehicle without consent (CAN 8400/2022), the offender is convicted and sentenced to a term of imprisonment for 10 months, reduced to eight months on account of his guilty plea, to commence on 24 November 2026 and conclude on 23 July 2027. (c) In respect of the offence of taking a motor vehicle without consent (CAN 8405/2022), the offender is convicted and sentenced to a term of imprisonment for 12 months, reduced to 10 months on account of his guilty plea, to commence on 24 January 2027 and conclude on 23 November 2027. (d) In respect of the offence of theft (CAN 8409/2022), the offender is convicted and sentenced to a term of imprisonment of 12 months, reduced to 10 months on account of his guilty plea, to commence on 24 April 2027 and conclude on 23 February 2028. (e) In respect of the offence of drive while disqualified (repeat offender) (CAN 8403/2022), the offender is convicted and sentenced to a term of imprisonment for four months, reduced to three months on account of his guilty plea, to commence on 24 December 2027 and conclude on 23 March 2028. (f) In respect of the second offence of drive while disqualified (repeat offender) (CAN 8408/2022), the offender is convicted and sentenced to a term of imprisonment for five months, reduced to four months on account of his guilty plea, to commence on 24 December 2027 and conclude on 23 April 2028. (g) In respect of the offence of burglary (CAN 1804/2023), the offender is convicted and sentenced to a term of imprisonment for 15 months, reduced to 12 months on account of his guilty plea, to commence on 24 April 2028 and conclude on 23 April 2029. (h) In respect of the offence of minor theft (CAN 1805/2023), the offender is convicted and sentenced to a term of imprisonment for one month and six days, reduced to one month on account of his guilty plea, to commence on 24 March 2029 and conclude on 23 April 2029. (i) The total term of imprisonment is three years, 11 months and 18 days, to commence on 6 May 2025 and conclude on 23 April 2029. (j) The sentence will be suspended from 5 May 2026 upon the offender signing an undertaking pursuant to s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act) to comply with the core conditions of the order set out in s 86 of the CSA Act. (k) A probation condition is imposed, requiring the offender to: (i) accept supervision by the Commissioner of ACT Corrective Services or their delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate; and (ii) obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and any targeted treatment.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: