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1. Ivan Djerke stands to be sentenced after pleading guilty to two offences of aggravated robbery by joint commission, contrary to s 310 of the Criminal Code 2002 (ACT). In each case, the circumstance of aggravation is the fact that, at the time of the robbery, both Mr Djerke and his co-offender were carrying weapons. Each offence carries a maximum penalty of imprisonment for 25 years, a $400,000 fine or both. The co-offender has also pleaded guilty but is to be sentenced separately upon the finalisation of other charges.

2. The offences involved the invasion of two homes over consecutive evenings in April 2022. On each occasion, the occupants were home and there was actual violence. There is no doubt that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) is met. That section provides: … (2) The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. …

3. The offences committed by Mr Djerke were of considerable seriousness and plainly require the imposition of sentences of imprisonment. The central question in the present sentencing exercise is to determine whether the sentences must be served by full-time imprisonment.

4. Mr Djerke has a lengthy history of addiction to prohibited drugs, primarily heroin and methylamphetamine. His use of those drugs has been both the cause of, and his perceived solution to, many of his problems. He has a significant criminal history. There is no doubt that his use of drugs was the reason for his offending on this occasion. Mr Djerke is now aged 47 and asks the Court to permit him to serve his sentences under a Drug and Alcohol Treatment Order (DATO): see s 12A of the Crimes (Sentencing) Act.

5. The Prosecutor submitted that a DATO would not be appropriate in the present case for two principal reasons. First, it was submitted that the offences are simply too serious to warrant that course. Secondly, and as a related point, it was submitted that, to reflect the seriousness of the offences, the total sentence would have to exceed four years, which is the legislative maximum for the imposition of a DATO. Separately, the Prosecutor expressed a well-founded concern as to whether Mr Djerke will be able to comply with such an order. Facts

6. It is necessary to begin by making an assessment of the objective seriousness of the offences. The facts may be summarised as follows. The first offence was committed on 14 April 2022 at about 5.00am. Both offenders entered a home in Kambah through an unlocked door, wearing masks, gloves and hoods and with at least one knife. Mr Djerke had previously met the occupant, who was at home and asleep at the time. The victim awoke and the co-offender held a knife approximately 12-inches in length to her finger, demanding any drugs and money, while Mr Djerke rifled through the house.

7. When the victim was unable to provide anything, one of the offenders punched her in the right side of her face. The prosecution acknowledges that they are unable to say which offender that was and accordingly neither offender can be sentenced on the basis that it was him that inflicted the punch.

8. After about two minutes, Mr Djerke held a knife near the neck of the victim, demanding that she provide her phone and laptop and their passwords. The victim wrote down a password incorrectly and, again, an unidentified one of the two men punched her left cheek. She then entered the passwords directly into her phone and laptop while Mr Djerke wrote them down. The offenders instructed her to lie on her stomach in a bedroom while they left, taking her phone, laptop, car key and three toolboxes. They drove away in her Subaru Forrester. About $300 was subsequently transferred from her bank account and that account was used to order food delivered to Mr Djerke’s address.

9. The following evening at about 7:30pm, the two men entered another home in Holt by making a hole in the back laundry door. The occupants, two 18-year-old siblings and their mother and aunt, were home at the time. Mr Djerke had known the two women for several years and believed one was a drug dealer. The offenders again wore masks during the invasion. Mr Djerke kicked open a bedroom door where one of the women was located. He was holding a machete. He swore at her and told her to get on the ground, demanding money from her.

10. The co-offender entered the bedroom of that victim’s daughter with a crowbar, also demanding money and threatening her, as a result of which she gave him her phone. Her brother entered the room and tasered the co-offender, who responded by hitting him with the crowbar, cutting him on his arms and stomach. The co-offender also threatened to harm the victims’ dog. Mr Djerke then pulled the co-offender away and he returned the phone and apologised. The two men then left, taking a speaker and the closed-circuit television system hard drive with them.

11. Mr Djerke was arrested on 17 April 2022 and has been in custody on remand since that date. As at today, he has spent a total of 584 days in custody. He initially pleaded not guilty to the offences and was committed to this Court for trial. However, he entered pleas of guilty to both offences on 28 July 2023 after a criminal case conference and before a trial date had been set.

12. Mr Djerke was on conditional liberty at the time of the offending, having been granted bail in the Magistrates Court for family violence offences. Those matters have since been finalised.

Objective seriousness

13. In determining the seriousness of the offences, it is of course relevant to have regard to the actual use of the weapons and the fact that the offences were committed in company. Each of those considerations is an element of the aggravated form of the offence and it would be wrong to regard them as aggravating the offence. However, the offences are aggravated by a number of factors.

14. First, there must have been some degree of planning on Mr Djerke’s part as he evidently targeted homes of people he knew, thinking that they may have drugs or money and attending those homes armed and masked. That said, I accept, as submitted by counsel for Mr Djerke, that the offending was committed during the course of what might be termed an “ice bender” when neither offender could be said to be planning in any particularly sophisticated way. I note in that context that, having taken the possessions they took from the second house, the offenders then ordered food multiple times using the stolen funds and that Mr Djerke had the food delivered to his own address.

15. A further aggravating factor is that the homes were targeted at night or early in the morning when there was a greater likelihood that the occupants would be home and, in the first instance, where the victims were vulnerable, being asleep at the time. I have noted that there was actual and threatened violence involved in both offences, although there is no evidence that Mr Djerke was the author of any of the actual violence.

16. The second offence is aggravated by the fact that young people were at home at the time although again I note that the offenders, once implored by the young people to have regard to that fact, apologised and returned the phone of one of them.

17. It is an aggravating factor that items were taken from each home. Whilst the value of some of the items was small, they included the Subaru Forrester, although that was recovered. As submitted by the Prosecutor, the items taken would be likely to have caused significant inconvenience to the occupants as well as financial hardship.

18. Finally, there was the damage to the door on the second home invasion.

19. I have already also noted the fact that Mr Djerke was on conditional liberty at the time of the offending.

20. The offences must, in light of those factors, be considered to be offences of considerable seriousness, warranting substantial terms of imprisonment.

21. There were five victims in total. One provided a victim impact statement in which he described the break-in as “an utterly terrifying experience”. There were threats to the occupant and their dogs. The victim noted that the trauma of that night has extended far beyond the physical harm caused to him and that it has left him and his sister with emotional and psychological scars marked by “fears, anxiety and nightmares”. I do not doubt that the other victims would have experienced similar distress.

Subjective circumstances

22. Turning to Mr Djerke’s subjective circumstances, as already noted he is now aged 47. He has a significant criminal history, including several breaches of conditional or community supervision orders. He has one prior conviction for an offence of this kind, committed some time ago. The penalty imposed at that time was a term of imprisonment for five years with a non-parole period of three years. The material before me does not disclose the nature of that offence or whether he was sentenced after entering a plea.

23. The Prosecutor submitted that Mr Djerke’s age and his lengthy criminal history point to his having an ingrained addiction which renders him unable to comply with court orders. I note, however, that in a review of the Drug and Alcohol Sentencing List prepared by the Australian National University, the empirical evidence is that older participants can have greater success on a DATO: see ACT Drug and Alcohol Sentencing List: Outcome Evaluation, 66. That is thought to be because they will have reached a point where they have a better appreciation of the negative impact of drug abuse on their lives and are better equipped emotionally to develop the resolve necessary to make some change: 35.

24. Mr Djerke has expressed the kind of resolve to which that report refers. In his suitability assessment for a DATO, he said to the author of that report, “if you’re lucky you get 70 summers on earth. I’ve pissed away 48 of them and I don’t want to waste any more”. Mr Djerke also gave evidence at the sentence hearing. He was an impressive witness. He spoke enthusiastically of the work he has undertaken whilst in the Alexander Maconochie Centre, mostly recently working as a peer mentor.

25. In respect of his work as a peer mentor, there is a reference in the material provided on sentence which appears to be from someone who supervises him, or at least has contact with him in that context, which, in short, gives a rave review. The reference says that Mr Djerke is very supportive of new inmates, helping them to adjust to prison life, explaining routines and expectations and so on.

26. Separately, I note that the material before me indicates that Mr Djerke enjoys extensive support from his immediate family. I will not go into the detail of the references but there is a reference from his mother, his brother, his sister and his daughter. Each of those references expresses optimism about Mr Djerke’s capacity at this point to turn the corner, as it were.

27. The ongoing support of Mr Djerke’s family is all the more precious in light of the trauma he has suffered in the past. The pre-sentence report reveals that he had a difficult and violent upbringing. His father was a violent alcoholic who used to beat his mother and who also displayed violence towards the children. The letter from the mother states that Mr Djerke suffered particularly in that context. The father died when Mr Djerke was about 8 years old. Thereafter, his mother had to work about 80 hours in a week to support her four children. During that time, Mr Djerke enjoyed some support from a neighbour to whom he referred as “Nan”. She died when he was in his early teens. Most recently, in 2019, whilst he was in custody, his eldest sister died, apparently (based on the material before me) after a long battle with anorexia nervosa.

28. Those many and compounding traumas have plainly had an impact on Mr Djerke but one which, according to his evidence, he now seems ready to turn into a positive. He said in evidence that he has come to appreciate that his mother is older. He has recognised that “gaol is easy when you don’t have to deal with why you are there”. He said he wants to try to do something different to understand why he behaves the way he does and, most importantly, he does not want his mother to die thinking she failed her son. He wants to prove that he can do better.

29. Mr Djerke’s engagement with prohibited substances began at an early age, at least 10 if not 9 based on the material before me. After a short period, he turned to what became his long-term drug of choice, heroin, although he has also more recently used methylamphetamine. There is no dispute that the principles in the decision of the High Court in Bugmy are enlivened in this case. It is well understood that drug addiction, particularly an addiction acquired at such a tender age, is a medical rather than a moral issue and one which requires considerable support from a range of disciplines in order to be overcome.

30. Turning to Mr Djerke’s moral culpability for the offences, as already indicated, I accept that the offences were very serious and Mr Djerke’s part in them was troubling. That said, I also accept that he was significantly affected by drugs at the time of his offending and was on something of a bender, having not slept for several days. One of the references in support of Mr Djerke before me states that he is an entirely different person when he is not under the influence of prohibited drugs; that he is a kind and generous man who will do anything for someone who seeks his support.

31. The Prosecutor noted that Mr Djerke has undertaken rehabilitation programs in the past and has failed. Mr Djerke addressed that in his evidence, stating that previously, when he has been on parole, the support from being clean whilst in custody lapses abruptly and that in the past this has led him back to failures. He has had lengthy discussions with the people and services who support participants on DATOs and has an understanding of the intense support provided and the work he will have to do to comply with the order. He has expressed the view, and has conveyed this to the people who will be his counsellors, that he requires lengthy and intensive support to adhere to a treatment order. He said that it is only in his recent time in custody that he has come to mature and realise the impact of drugs on his life.

32. I note that Mr Djerke is said in one of the reports to have adopted that rhetoric on prior occasions. As submitted by the prosecution, there is some reason for concern as to whether he will be able, on an ongoing basis, to comply with the conditions of the order. On the other hand, when one looks at a person in the position of Mr Djerke, one can see a continuous cycle of offending, arrest, release, relapse into drug use and further offending. In my view, the best interests of the community will be served by Mr Djerke being offered the intensive, wraparound support that is provided in the Drug and Alcohol Sentencing List so as to give him his best chance of breaking that cycle.

Sentence

33. The prosecutor submitted that there should be a significant degree of accumulation between the two sentences. He submitted that the origin of the totality principle is to avoid a “crushing sentence” but submitted that a partial level of accumulation would not be crushing. He submitted, and I accept, that the two sentences must not be wholly concurrent because they must reflect the impact of the offences on two separate groups of victims.

34. Ms Baker-Goldsmith, who appeared for the offender, submitted that an appropriate sentence could be brought under the cap of four years for a DATO. She submitted, first, that the Court could take into account the course of conduct to which I have referred, reflecting the fact that, while two offences were committed, they were committed during the same drug psychosis and effectively (so far as the offender’s perception is concerned) on the same day, as he was not sleeping at that time.

35. Separately, Ms Baker-Goldsmith noted that it is not inappropriate for the Court to have regard to pre-sentence custody without backdating the sentence. Support for that submission may be found in the decision of Mossop J in DPP v Parlov [2023] ACTSC 147 at [46]-[47], where it is noted that this approach has been adopted previously (such as in R v McCallum [2020] ACTSC 15 at [81]-[82]) or else recognised as a possibility (Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 at [65]; R v Ngerengere (No 3) [2016] ACTSC 299 at [62]).

36. Uninformed by authority, I would have been concerned that to adopt that course would reflect an artificial manipulation of the sentence. Having considered the decision in Parlov and the objects of the DATO provisions in the Crimes (Sentencing) Act, I have instead come to the view that the cap of four years was not intended to preclude people like Mr Djerke from having the benefit of a DATO, but is rather a reflection of a policy that any longer period would be unmanageable and more difficult in terms of the administration of the list.

37. The third point made by Ms Baker-Goldsmith in submitting that an appropriate sentence could be brought under four years was the fact that the offender is entitled to a discount to reflect the utilitarian value of his plea of guilty in the order of 15%. She submitted that the starting point of any sentence would not result, after application of the discount, in a sentence exceeding four years in total.

38. Finally, Ms Baker-Goldsmith reminded me of the matters to which I have already referred, being the consideration of the application of Bugmy principles. The offender’s moral culpability for the offences must be assessed in the context of his upbringing of family violence, trauma, exposure to alcohol abuse, early introduction to drugs and the loss of several important family members.

39. The parties provided supplementary submissions to the Court in relation to a question I asked during the proceedings on sentence as to the possibility that the Court could impose a full-time sentence of imprisonment, backdated for one offence, and a DATO for the second sentence. The submissions did not produce agreement on that issue but in any event I have decided not to take that approach.

40. One of the matters on Mr Djerke’s record, to which I have already referred, is an earlier offence for which he was sentenced to a term of imprisonment for five years. In my view, that is an appropriate starting point for each offence in the present case. That will be reduced to four years and three months to reflect the value of the plea. I consider that there should be accumulation between the two sentences of one year. That would give a total sentence of five years and three months. However, adopting the approach in Parlov, the course I propose to take is to impose a sentence that has regard to the time served without backdating the sentence to that date.

Sentence

41. For those reasons, I impose the following sentences: (1) Ivan Djerke is convicted of the aggravated burglary in Kambah (SC CAN 193/2022) and sentenced to a term of imprisonment of three years and eight months, commencing on 21 November 2023 and expiring on 20 July 2027. (2) Ivan Djerke is convicted of the aggravated burglary in Holt (SC CAN 194/2022) and sentenced to a term of imprisonment for three years and eight months, commencing on 21 November 2023 and expiring 20 July 2027.

Drug and Alcohol Treatment Order

42. As the total period of those sentences is three years and eight months, Mr Djerke is eligible, at least in terms of the length of his sentence, to be considered for a DATO.

43. He has been assessed as suitable for such an order by both Canberra Health Services and Corrective Services. They have provided a healthcare plan and Mr Djerke is able to enter residential rehabilitation in the Canberra Recovery Services (CRS) program today. He has specifically requested that this be a 12-month program where ordinarily participants spend only 3 months in residential rehabilitation. The Drug and Alcohol Sentencing List team have therefore arranged for Mr Djerke, after his time in the CRS program, to spend at least a further nine months in Karralika residential rehabilitation. For the reasons I have given, I am satisfied that that is an appropriate course.

44. Accordingly, I make the following further orders. (3) I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for Ivan Djerke in respect of the primary offence, being the aggravated burglary in Kambah (SC CAN 193/2022), of which he has been convicted and for which he has been sentenced to 3 years and 8 months imprisonment. (4) I order that that order extend to the second offence, being the aggravated burglary in Holt (SC CAN 194/2022), for which Ivan Djerke has been convicted and sentenced also to 3 years and 8 months imprisonment. That is an associate offence to the primary offence. (5) I note that convictions and sentences imposed for the primary and associated offence have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the order. (6) I order that the Drug and Alcohol Treatment Order be for a period of 3 years and 8 months from today, that is 21 November 2023 to 20 July 2027. (7) The treatment and supervision part of the Drug and Alcohol Treatment Order will be a period of 18 months from today, that is 21 November 2023 to 20 May 2025. (8) The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offence is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today. (9) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), I require Ivan Djerke 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, 21 May 2025, until the end of the total sentence, 20 July 2027, 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. (10) I note that the Treatment and Supervision Part of the Drug and Alcohol Treatment Order is subject to the core conditions set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) and the additional conditions as follows: (a) I direct that Ivan Djerke travel directly from this Court to the CRS facility, Fyshwick, and admit himself to the residential drug rehabilitation program by 1:00pm today; (b) I direct that Ivan Djerke complete the residential drug rehabilitation program at CRS, not leave the facility until he has completed the course and comply with all the directions of the person in charge of the program and all the rules of the program and the facility; (c) Should Ivan Djerke leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4:00pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed; (d) That Ivan Djerke 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; (e) Ivan Djerke not return a positive test sample under alcohol and drug testing; and (f) Ivan Djerke comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. (11) I direct Ivan Djerke 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 precinct today. (12) I direct Ivan Djerke to appear by AVL on 24 November 2023 at 12:30pm in the Drug and Alcohol Sentencing List.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: 20 March 2024