DPP v Drew [2025] ACTSC 440

1. Jack Drew is before the court for sentence, having pleaded guilty to the following offences: (a) CAN 2995/2024: Aggravated robbery by joint commission, contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) (and by virtue of s 45A of the Criminal Code); and (b) CAN 2992/2024: Aggravated burglary, contrary to s 312 of the Criminal Code.

Facts

2. The aggravated robbery occurred on 28 November 2023, when in the company of a co-offender. The offender took eight Rexona antiperspirant cans and a pack of 40 medium tidy wave garbage bags from a Coles supermarket in Wanniassa. In the course of the offending, a store attendant began filming the offender and his co-offender. The offender swore at the store attendant and suddenly turned towards her and gestured to her with an aggressive stance. The store attendant filmed the offender walk through the self-serve check-out counters and towards the exit. The co-offender came from behind the store attendant and poured Cold Power blue liquid detergent over her head and face, which temporarily inhibited the attendant’s ability to see clearly and allowed the offender to exit the supermarket. The store attendant attempted to follow the offender and the co-offender, but they walked out of sight. The attendant returned to the store highly distressed. As a result of the pain and stinging she was experiencing, she was unable to open her eyes properly.

3. The aggravated burglary occurred on 5 March 2024, when the offender entered a residential home of one of his friends in Monash at about 1:30am in the morning. He was not invited to the home and entered as a trespasser by raising the garage door and gaining entry to the residence through an internal door. He had a balaclava over his face and carried a small red and black hatchet in his right hand. He stood in the doorway of his friend’s bedroom with the axe raised to be level with his chest.

4. The friend’s brother had been awoken by their dogs barking. He observed the offender’s conduct and moved towards the offender, grabbed the offender’s wrists and began yelling. A short time later, the friend heard the yelling. He opened his bedroom door and grabbed the centre of the axe. The three men began to wrestle. During the interaction, the offender’s balaclava was removed and the friend and his brother recognised the offender, as they had known each other for a number of years through school. The offender was rendered unconscious for a brief period of time. After the offender regained consciousness, the friend picked up the axe and demanded that the offender comply with his directions. They began to wrestle again. The friend struck the offender in his right leg with the rear of the axe head. The friend’s brother contacted police and requested attendance. The friend and his brother managed to move the offender to the front of the residence and held him against the bonnet of a parked car, awaiting police arrival. They arrived a short time later. The offender was transported to Canberra Hospital with injuries.

The court’s task

5. The offender is to be sentenced in accordance with the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), and the mandatory relevant considerations set out in s 33 of the Sentencing Act, insofar as they are relevant. The principle of individualised justice also applies, as to which see MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

6. In respect of the aggravated burglary, and applying the principles set out in DPP v Kinder [2025] ACTSC 431 at [9] and [10], I have taken into account: (a) The residential nature of the premises. (b) The offence occurred in the middle of the night, when it was likely that the premises would be occupied. (c) There were in fact people occupying the premises when it was burgled and the offender wrestled with two of them. (d) The conduct was an isolated occurrence. (e) There was some degree of planning, as indicated by the use of the balaclava and the fact that the offender travelled to the friend’s house. (f) The statutory feature of aggravation was the presence of a weapon, the nature of which was one easily capable of being used to inflict harm.

7. Although the lack of rationale underlying the offence and the conduct itself was “bizarre” (as the offender submitted), the features of the conduct are fairly typical, namely trespassing in a home where people were sleeping, at night, with an intention to harm, with a weapon.

8. With regard to the aggravated robbery by joint commission, drawing from the features set out in Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49]-[51], the offender was responsible for the taking of the items. The use of force was inflicted by the co-offender, although part of the context was the escalation of the incident by the offender. Although there was more than one item taken, the value of the items taken remained modest.

9. The prosecution accepted that this was not the most serious offence of aggravated robberies, and I agree that on the scale of conduct, what occurred, while serious, falls at the lower end.

Subjective features (s 33(1)(m) of the Sentencing Act)

10. The offending occurred while the offender was on conditional liberty at the time, which is an aggravating factor: see KQE v DPP [2024] ACTCA 7 at [40]. The offender also has a history of offences involving violence or the threat of violence, meaning that he is not entitled to leniency.

11. However, he is only 19 years old and was 18 at the time of the offending. Accordingly, principles applying to youthful offenders apply. As stated in DPP v Eneliko [2025] ACTSC 306 at [40]: The law recognises (see principally Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 at [34]-[36]) that such young adults lack the insight, judgment, and self-control of an older offender, and that there are greater prospects of rehabilitation as there is still opportunity for growth. Furthermore, the principles as to youthful offenders also provide that the effect of incarceration in an adult prison will likely impair, rather than improve, the prospects of successful rehabilitation.

12. The offender has enjoyed the benefit of a stable and supportive family environment and his parents have communicated that ongoing support to the court. There are a number of mental health challenges which are unnecessary to repeat here. I have taken them into account. In addition, the offender commenced risk-taking behaviour from approximately Year 6, which led to drinking and smoking behaviours that have now evolved to drug consumption, volatile substance abuse and alcohol addiction. As discussed in the suitability assessment report, his alcohol addiction is a major issue in his life and a key factor in his offending behaviour. At its peak, his chroming use involved 20 cans per day. He has a history of engagement with the youth justice system. He was affected by alcohol on the night of the aggravated burglary offence (s 33(1)(p) of the Sentencing Act). That does not excuse the offence, and it has to be said that even the intoxicated state does not explain the extreme behaviour that occurred.

13. Since the offending, the offender has taken the significant rehabilitative step of successfully completing two months of residential rehabilitation at the Canberra Recovery Service. That is a positive indication of what he may be able to achieve, if given the opportunity. Plea of guilty (ss 33(1)(j) and 35 of the Sentencing Act)

14. The offender pleaded guilty at an early opportunity in relation to the aggravated robbery and there was utilitarian value in the plea. Applying the principles set out recently in DPP v Tate [2025] ACTSC 327 (Tate) at [34]-[37] and taking into account the objective seriousness of the offending above and the victim impact discussed separately in these reasons, I consider it appropriate to exercise the court’s discretion to apply a 25% discount.

15. In relation to the aggravated burglary offence, the offender pleaded guilty at a relatively early stage, but the prosecution submitted that the case against the offender was overwhelming. Applying the principles set out in Tate at [40], I consider the case was overwhelming. The offender was apprehended at the scene with the balaclava and the hatchet. There were two eye-witnesses able to give direct evidence of the offender in the house. A discount of 8% is thus appropriate.

Victim impact statements (s 33(1)(f) of the Sentencing Act)

16. There were four victim impact statements before the court, some of which were read by the victims themselves.

17. Three were given by those who were in the house when the aggravated burglary occurred. Confronting a person in a balaclava with a hatchet standing at the friend’s bedroom door while he slept was plainly a terrifying experience for all involved. They now have ongoing thoughts of what might have occurred, had the offender’s friend not had his brother and his brother’s girlfriend staying with him that night. The victims each speak of a mix of negative emotions, from confusion, fear and anger to ongoing irritability, lack of trust and severe anxiety. They refer to the night haunting them forever and to flashbacks. They are hypervigilant and slept in shifts for months. They sleep poorly now, as their sense of security is non-existent and that in turn affects their mood. The impact on the two males who were involved in attempting to disarm the offender has been life altering.

18. The mother of the friend and his brother also prepared a victim impact statement. She has known the offender since primary school and had always welcomed him into her home like he was family. She has suffered vicarious trauma following the offence. She also has ongoing anger, arising from the betrayal of someone close to her family. She described her fear, anxiety, and feelings of guilt at not being there. She remains tearful, trying to make sense of what the offender was thinking that night, entering a sleeping person’s bedroom armed with a hatchet. Remorse (s 33(1)(w) of the Sentencing Act)

19. The offender has written to the court, expressing his remorse, guilt and shame in committing “a massive mistake” that not only put him in custody but lost him his close friendships. He does not blame the alcohol. He blames himself and he cannot understand why he did what he did. Although such letters are sometimes dismissed as self-serving, particularly when not given under oath, I accept that the offender has demonstrated remorse in the circumstances of this case.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

20. The offender drew attention to DPP v Makoi (No 3) [2023] ACTSC 337 at [64] and I have had regard to the decisions there-cited, applying the principles set out in [65] of that judgment. I have also had regard to DPP v Stasinos [2023] ACTSC 179 and the cases discussed at [46]-[55]. Both cases refer to R v Catanzariti [2020] ACTSC 326, where a broad sentencing practice was discussed by Murrell CJ at [57]-[60].

21. In respect of the aggravated robbery, the parity principle also applies, as to which see: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [29]-[31]. Here, the co-offender was convicted and sentenced to a good behaviour order for 18 months. Significantly though, there are differences in the roles played by the two. The offender here was the person who actually took the items from the store and acted aggressively towards the store attendant, although the co-offender inflicted the use of force. The co-offender’s criminal history and other subjective features were also such as to make the circumstances in which she came before the court more favourable in terms of leniency.

Pre-sentence custody

22. The offender has spent 209 days in custody solely referrable to the subject offences. This will be taken into account by way of backdating, pursuant to s 63(1) of the Sentencing Act, but it also affects the parity considerations when deciding upon the form a sentence might take which involves the same offending but a different offender. This offender is in a very different position from his co-offender, who was not held in custody for a considerable period of time awaiting sentence (and who was not also being sentenced for a much graver offence).

Totality

23. The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited). There are two offences here, which occurred at different times with vastly disparate criminality and separate victims. There is little role for concurrency to play, although as part of the totality considerations and stepping back to view the sentence overall, a small adjustment will be made.

Disposition

24. The imposition of a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act. However, as emphasised at [20] of the judgment of Murrell CJ in R v Minnis [2014] ACTSC 268, relied upon by the prosecution: … General deterrence is of considerable importance. Home invasions are abhorred by the community and it is important to send a strong message in relation to the unacceptability of such conduct, particularly when committed in the circumstances of the subject offences. Punishment, denunciation and accountability are all important sentencing purposes. …

25. The gravity of the offending here, combined with the time the offender has spent in custody, his subjective circumstances and the very significant impact to the victims in respect of the aggravated burglary, mean that no sentence other than imprisonment is now appropriate. However, such a sentence should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30].

Should a Treatment Order be made?

26. For reasons that follow, I have determined that disposition by way of a Treatment Order is the appropriate outcome.

27. First, I have taken into account the relevant sentencing purposes. The time that the offender has already spent in full-time custody referrable to the offending has achieved the objectives of personal deterrence, punishment and denunciation, as well as recognising the considerable harm and impact visited upon the victims. The lengthy period in custody may also be seen to give effect to general deterrence. Further effect will be given to general deterrence and denunciation through the length of the total effective sentence to be imposed and ensuring that it is proportionate to the gravity of the offending.

28. That means that the court’s focus at this point turns to rehabilitation and how best to protect the community in the longer term.

29. Second, I have considered the objects of a Treatment Order set out in s 80O of the Sentencing Act as follows: (a) facilitating the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; (b) reducing the offender’s dependency on alcohol or a controlled drug; (c) reducing the health risks associated with such dependency; (d) assisting the offender’s integration into the community; and (e) promoting community safety by reducing re-offending.

30. Plainly, removing the criminogenic risk factors of drug consumption, volatile substance abuse and alcohol addiction must be given immediate priority. It is through rehabilitation that the long-term protection of the community will be promoted.

31. Third, I am satisfied of the other formal requirements for a Treatment Order: (a) On the reports provided to the court, the offender is both eligible and suitable for a Treatment Order: ss 80S and 80T of the Sentencing Act. (b) There was a strong degree of correlation between the offender’s dependency on volatile substance use and alcohol addiction and his offending: s 12A(2)(a)(i) and (ii) of the Sentencing Act. (c) The offender has consented to the Treatment Order, having been given a clear explanation of what it involves: s 12A(2)(c) of the Sentencing Act. (d) The offender will live in the ACT for the duration of the sentence except as directed by the court: s 12A(2)(a)(iii) of the Sentencing Act. (e) There are no concerns relating to the safety or welfare of any victim: s 12A(2)(b)(ii) of the Sentencing Act.

32. I conclude that a Treatment Order is the clear and obvious choice for this offender: s 12A(2)(b). It recognises that this is a youthful offender who needs support and targeted intervention.

33. It is not necessary to set a non-parole period because the making of a Treatment Order means that the sentence becomes an “excluded sentence of imprisonment” under s 64 of the Sentencing Act. Orders

34. The orders of the Court are: (1) For the offence of aggravated robbery contrary to s 310 of the Criminal Code by virtue of s 45A of the Criminal Code (CAN 2995/2024), the offender is convicted and sentenced to a term of imprisonment of 12 months, reduced to nine months on account of his guilty plea, to commence on 4 March 2025 and conclude on 3 December 2025. (2) For the offence of aggravated burglary contrary to s 312 of the Criminal Code, (CAN 2992/2024), the offender is convicted and sentenced to a term of imprisonment of 20 months, reduced to one year, six months and 12 days on account of his guilty plea, to commence on 29 November 2025 and conclude on 9 June 2027. (3) The total sentence of imprisonment is for a period of two years, three months and six days. Drug and Alcohol Treatment Order (4) A Treatment Order under s 12A of the Sentencing Act is made for Jack Drew in respect of the eligible offence of aggravated burglary (CAN 2992/2024), for which he has been convicted and for which he has been sentenced to a term of imprisonment for one year, six months and 12 days. (5) That Treatment Order is extended to the eligible offence of aggravated robbery (CAN 2995/2024) for which Mr Drew has been convicted and for which he has been sentenced to a term of imprisonment of nine months in total. (6) The convictions and sentences imposed for the said eligible offences are hereby incorporated into the Treatment Order in the Custodial Part of the Order. (7) A Treatment Order is made for one year, eight months and 12 days from today, 29 September 2025 to conclude on 9 June 2027. (8) The Treatment and Supervision Part of the Treatment Order is for 17 months from today, 29 September 2025 until 28 February 2027. (9) The Custodial Part of the Treatment Order for the eligible offences will be suspended under s 80W of the Sentencing Act from today, 29 September 2025, until 9 June 2027. (10) Under s 80ZA of the Sentencing Act, Mr Drew is 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) (CSA Act) from the day after the end of the Treatment and Supervision Part of the Treatment Order, 1 March 2027, until the end of the total sentence that is the subject of the Treatment Order, 9 June 2027. (11) A probation condition is imposed that Mr Drew 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. (12) For the Treatment and Supervision Part of the Treatment Order: a. The core conditions of the Order set out in s 80Y of the CSA Act are hereby imposed. b. Mr Drew is to travel to Canberra Recovery Services (CRS) on 29 September 2025 and admit himself to the drug rehabilitation residential program at that facility by 12:00pm. c. Mr Drew is directed to complete the drug rehabilitation residential program at CRS or any other program of intervention, treatment or counselling he is directed to complete, including urinalysis or case management that may be required by any member of the Treatment and Supervision Team. d. Mr Drew is to obey all reasonable directions of any person in charge of the program and all the rules of the program and the facility, which may include directions about where he resides, with whom he associates and his attendance from time to time. e. Following completion of the residential component of the drug rehabilitation program, Mr Drew is not to leave his approved place of residence between any curfew hours directed by the Treatment and Supervision team, other than for a medical emergency, and he is to present himself to the front door of the residence if required by an officer of ACT Policing. f. Should Mr Drew leave or be discharged from the program before completing it, he is to report to ACT Corrective Services by 4:00pm on the next business day with a view to having his Treatment Order reviewed. g. Mr Drew is not to consume or use alcohol, cannabis, illicit drugs, volatile substances or prescription drugs not prescribed to him. h. Mr Drew is to comply with any directions of the court from time to time about attendance at court in person or by electronic means. (13) Pursuant to s 12A(6) of the Sentencing Act, I direct that written notice of the order, together with a copy of these orders, be given to the offender.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: