• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

1. This was a sentencing proceeding which resulted in the offender, James Gregory Elliott, being sentenced on 11 May 2026 to a term of imprisonment for five years, one month and three days. Due to the time which the offender had already spent in custody, the sentence was also suspended from that date, and a drug and alcohol treatment order was imposed for three years, six months and 22 days.

2. At the time the judgment was delivered, reasons were reserved because an issue of statutory construction had arisen and there were time constraints for admitting the offender into a residential rehabilitation facility later that day. I now publish the reasons.

3. The offender pleaded guilty to the following offences:

Charge number Offence Maximum penalty

CAN 12067/2024 Aggravated burglary by joint Fine of $320,000, commission, contrary to s 312 of the imprisonment for 20 Criminal Code 2002 (ACT) (Code) by years, or both. virtue of s 45A of the Code.

CAN 12068/2024 Burglary, contrary to s 311 of the Code. Fine of $224,000, imprisonment for 14 years, or both.

CAN 1722/2025 Aggravated burglary by joint Fine of $320,000, commission, contrary to s 312 of the imprisonment for 20 Code by virtue of s 45A of the Code. years, or both.

CAN 10171/2024 Obtain property by deception, contrary Fine of $160,000, to s 326 of the Code. imprisonment for 10 years, or both.

CAN 10173/2024 Aggravated burglary by joint Fine of $320,000, commission, contrary to s 312 of the imprisonment for 20 Code by virtue of s 45A of the Code. years, or both.

CAN 10174/2024 Aggravated burglary by joint Fine of $320,000, commission, contrary to s 312 of the imprisonment for 20 Code by virtue of s 45A of the Code. years, or both.

CAN 10907/2024 Drive motor vehicle without consent, Fine of $80,000, contrary to s 318(2) of the Code. imprisonment for five years, or both.

CAN 10903/2024 Drive while disqualified (repeat Fine of $16,000, offender), contrary to s 32(1)(a) of the imprisonment for one year, or both. Road Transport (Driver Licensing) Act Automatic 1999 (ACT) (Driver Licensing Act). disqualification of 24 months.

CAN 10904/2024 Drive while disqualified (repeat Fine of $16,000, offender), contrary to s 32(1)(a) of the imprisonment for one Driver Licensing Act. year, or both. Automatic disqualification of 24 months.

CAN 10909/2024 Drive while disqualified, contrary to s Fine of $16,000, 32(1)(a) of the Driver Licensing Act. imprisonment for one year, or both. Automatic disqualification of 24 months.

CAN 10905/2024 Make off without payment, contrary to s Fine of $8,000, 323 of the Code. imprisonment for six months, or both.

CAN 10911/2024 Possess ammunition, contrary to s 249 Fine of $1,600. of the Firearms Act 1996 (ACT).

CAN 10910/2024 Unlawful possession of stolen property, Fine of $8,000, contrary to s 324 of the Code. imprisonment for six months, or both.

CAN 10912/2024 Unlawful possession of stolen property, Fine of $8,000, contrary to s 324 of the Code. imprisonment for six months, or both.

The court’s task

4. The court must sentence the offender for the above offences in accordance with the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which include (in summary form) making the offender accountable and denouncing and adequately punishing his conduct, deterring the offender and other people from committing the same or similar offences, recognising the harm done to the victims of the crimes and the community and promoting the offender’s rehabilitation. Those considerations have been taken into account in the reasoning that follows.

5. The mandatory relevant considerations set out in s 33 of the Sentencing Act have also been considered below insofar as they relate to the offender’s circumstances, and in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56]. Additional offences that must or can be taken into account (s 33(1)(b) of the Sentencing Act)

6. The offender has elected to have the following charges arising from the same incidents also taken into account under s 57 of the Sentencing Act: (a) Theft by joint commission, contrary to s 308 of the Code by virtue of s 45A of the Code (SCCAN 405/2025, attaching to CAN 12067/2024 as the principal offence). (b) Ride in stolen motor vehicle, contrary to s 318 of the Code (CAN 3112/2025, attaching to CAN 12067/2024 as the principal offence). (c) Theft, contrary to s 308 of the Code (CAN 12069/2024, attaching to CAN 12068/2024 as the principal offence). (d) Drive stolen motor vehicle without consent, contrary to s 318 of the Code (CAN 3113/2025, attaching to CAN 12068/2024 as the principal offence). (e) Theft by joint commission, contrary to s 308 of the Code by virtue of s 45A of the Code (CAN 1723/2025, attaching to CAN 1722/2025 as the principal offence). (f) Theft by joint commission, contrary to s 308 of the Code by virtue of s 45A of the Code (CAN 10175/2024, attaching to CAN 10173/2024 as the principal offence). (g) Aggravated burglary by joint commission, contrary to s 311 of the Code by virtue of s 45A of the Code (CAN 3125/2025, attaching to 10173/2024 as the principal offence). (h) Theft by joint commission, contrary to s 308 of the Code by virtue of s 45A of the Code (CAN 10176/2024, attaching to CAN 10174/2024 as the principal offence).

7. Applying R v Campbell [2010] ACTCA 20 at [46]-[50] (and the authorities there-cited), greater weight is given to personal deterrence and denunciation and punishment because the additional serious offences will not be the subject of separate punishment. Generally, this has the result of increasing the sentence about to be imposed. The other relevant principles (such as totality) also apply.

8. Section 57(3) of the Sentencing Act further provides that any penalty imposed for the offences for which the offender is sentenced cannot exceed the maximum penalty for each offence, notwithstanding that the additional offences are taken into account.

Consequences of offending

9. The offender was subject to a suspended sentence order at the time the index offences were committed. This has the result that, upon conviction, he will be in breach of the good behaviour order imposed on 3 April 2024. The court must therefore cancel the good behaviour order and either impose the suspended sentence or re-sentence the offender: s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act).

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

Facts of the offences

10. The facts set out below have been drawn from a statement of agreed facts that was before the court.

Offending on 27 July 2024

11. On 27 July 2024 at 2:30am, the offender arrived at Anaconda Fyshwick in a white Mitsubishi Outlander.

12. The vehicle was a hire car which had previously been taken from a residence without the consent of the person who had hired the vehicle, and without the consent of the hire vehicle company.

13. The offender exited the passenger side of the vehicle (CAN 3112/2025). He was wearing black clothing, including black gloves and a black balaclava, and was carrying an orange concrete saw.

14. The offender used the concrete saw to remove a yellow bollard in front of the metal roller door at the rear of the store. The driver of the vehicle reversed into the roller door four times, causing it to buckle in enough to allow the offender to enter through a gap in the door (CAN 12067/2024). The driver then exited the vehicle and followed the offender through the gap in the roller door.

15. The offender and driver walked through the store. The offender took a small rubber mallet from the store (SCCAN 405/2025). The offender and driver then departed in the Mitsubishi Outlander.

Offending on 28 July 2024

16. At about 1:24am on 28 July 2024, the Mitsubishi Outlander stopped at the loading dock of JB HiFi in Fyshwick. The offender exited the vehicle from the driver’s side (CAN 3113/2025). He was wearing a dark balaclava and carrying an orange concrete saw.

17. The offender used the concrete saw to cut into and remove a yellow bollard. He got into the driver’s side of the vehicle and reversed the vehicle into and through the roller door of the store (CAN 12068/2024). The offender then exited the vehicle, placed an LG OLED TV into the boot of the vehicle, and drove off (CAN 12069/2024). Offending on 8 August 2024

18. At 4:23am on 8 August 2024, the offender and another male approached Beer Wine and Spirits in Kambah. The two men broke through a glass window and entered the store (CAN 1722/2025).

19. The offender was wearing black clothing, including black gloves and a black balaclava. He was carrying a crowbar and two large bags.

20. The other man used an angle grinder to cut open the padlock to a cigarette cabinet. Both men took cigarettes from the cabinet, which were worth $10,755.56 in total. The other man took $1,810.00 worth of alcohol. The offender also took the cash register drawer and a charity box containing coins (CAN 1723/2025).

21. The two men then left the store through the broken window.

Offending on 5 September 2024

22. On 5 September 2024 at 4:34am, the offender used a card belonging to “DE” to purchase a packet of cigarettes valued at $74.99 (CAN 10171/2024). DE’s card had been stolen from his vehicle at some time between the evening of 4 September and early morning of 5 September 2024.

Offending on 13 September 2024

23. At 4:20am on 13 September 2024, a white Kia drove up to the gates to the carpark at the rear of Repco Mitchell. Two individuals exited the vehicle and opened the carpark gates. The vehicle then drove through those gates.

24. The offender approached the rear door to Repco and forced it open, causing damage to the door and lock. He entered the premises and exited shortly after (CAN 3125/2025). The offender then departed in the Kia.

25. At 4:45am the same day, the white Kia parked outside Beautopia Mitchell. The offender approached the store. He was wearing black clothing, including black gloves and a white and black bandana, and carrying a large bag.

26. The offender and an unknown woman, who had also travelled in the Kia, entered the store (CAN 10173/2024). The offender took a significant number of hair extensions and the till (CAN 10176/2024). The woman took several hair care appliances. The two then departed in the Kia. Offending on 17 September 2024

27. On 17 September 2024 at 2:00am, a white Kia parked at Franklin shops. The offender exited from the driver’s seat of the Kia. He was dressed in black, including black gloves, a black face mask and a black cap.

28. Two women exited from the passenger seats of the vehicle. The offender opened the boot of the vehicle and grabbed a crowbar and a concrete saw. He approached the entry to the Franklin Tobacconist and used the crowbar to force entry into the store (CAN 10174/2024).

29. The offender and the two women entered the store and took a large number of cigarettes (CAN 10176/2024). The three then departed in the Kia.

Offending between 18 and 30 October 2024

30. On 19 October 2024, the offender drove a white Mitsubishi Triton into National Storage in Mitchell (CAN 10903/2024). The vehicle had been taken from a business without the consent of that business.

31. On 28 October 2024, the offender parked the same vehicle at Coles Express service station in Wanniassa (CAN 10904/2024). After filling up the vehicle with approximately $120 worth of fuel, the offender drove away without paying for the petrol (CAN 10905/2024).

32. On 29 October 2024, the offender was observed driving the vehicle in Weston (CAN 10909/2024).

33. Altogether, the offender drove the vehicle without the consent of its owner between 18 and 30 October 2024 (CAN 10907/2024).

Offending on 31 October 2024

34. The offender was arrested on 31 October 2024. At the time of his arrest, a key belonging to the white Mitsubishi Triton was located in the offender’s pocket (CAN 10912/2024).

35. The same day, a search warrant was executed at a storage unit in Mitchell. Police located boxes of unopened power tools (CAN 10910/2024) and six boxes of ammunition (CAN 10911/2024).

Features of the offences relevant to objective seriousness

36. The facts of the offending have been set out above as part of this consideration. It remains to evaluate their objective seriousness, which is undertaken wholly by reference to the nature of the offending, with the maximum penalty for each offence acting as a yardstick against which to assess the seriousness of the conduct.

37. For efficiency, the offences have been grouped by conduct with similar features.

Burglary and aggravated burglary

38. It need hardly be said that burglaries are serious offences, as reflected in the maximum penalties of 14 years for the offence simpliciter and 20 years for the aggravated offence. Following DPP v Clissold [2023] ACTSC 250 at [33] and the cases there-cited, I have taken into account as being relevant: (a) The nature of the premises that were burgled (with commercial premises generally being less serious). (b) Whether damage, not separately charged, was caused to the premises. (c) Whether the occupants of the premises were present at the time the burglaries were committed. (d) The motivation for the burglaries. (e) Whether the burglaries were pre-meditated, planned or organised, and their level of sophistication.

39. The aggravated burglary at Anaconda Fyshwick was of commercial premises and was committed at a time when it was unlikely that other people would be present. These features lessen the objective seriousness of the offending. However, the seriousness is increased by the fact that damage was caused to the roller door of the premises and that there was a degree of premeditation, as evidenced by the offender bringing tools and wearing clothing to disguise his identity. The offending was motivated by private financial gain, with the offender seeking to obtain money to fund his drug habit. I consider that this offence falls at the low to mid-range of objective seriousness.

40. The burglary at JB HiFi Fyshwick was similar, with the commercial premises unoccupied at the time of the burglary, though they were damaged by the offender’s conduct. Again, there was some planning involved and the offence was motivated by private financial gain. The offending is of lower objective seriousness.

41. The aggravated burglary at Beer Wine and Spirits Kambah was of commercial premises and again committed at a time when it is likely that no other people would be present. However, damage was caused to the window of the premises and to the lock on the cigarette cabinet. In addition, the offending seems to have been at least somewhat premeditated, given that the offender was carrying tools and wore clothing meant to disguise his identity. The motivation for the offending was to obtain money that could be used to buy drugs. This offence falls at the mid-range of objective seriousness.

42. The aggravated burglary at Beautopia Mitchell was again of a commercial premises at a time where people were unlikely to be present. No damage was occasioned during the burglary. The offender wore clothing meant to disguise his identity, which indicates a degree of planning. The offending was motivated by private financial gain. The objective seriousness of this offending is low.

43. Finally, the aggravated burglary at Franklin tobacconist was of commercial premises at a time when others were unlikely to be present. There is no information on the facts about any damage being caused to the premises. There was a degree of premeditation, as evidenced by the offender bringing tools and wearing clothing to disguise his identity. Once again, the offender was motivated by private financial gain. This offence also falls at the low to mid-range of objective seriousness.

Drive motor vehicle without consent

44. The five-year maximum penalty indicates that the legislature also views this offence relatively seriously. Applying R v Massey (No 3) [2021] ACTSC 156 at [29], the following considerations inform the objective seriousness of the offence: (a) The period of driving and the length of distance driven; (b) Whether the vehicle was used in the commission of another offence; (c) Whether the offender was the driver and not only the passenger; (d) The manner of driving, unless subject to a separate charge; (e) Whether the vehicle was damaged; and (f) Whether the vehicle was returned to the owner.

45. This offending involved driving a stolen motor vehicle on three occasions within two weeks. As such, the offence is a rolled-up charge encompassing a greater degree of criminality. The vehicle was used in the commission of an offence of making off without payment, and this increases the objective seriousness of this charge. Further, the offender was the driver in the vehicle as opposed to the passenger. The vehicle was ultimately recovered, and the facts do not suggest that the vehicle was damaged. Taking these features together, I consider that this offence was of low to medium objective seriousness. Obtain property by deception

46. As stated in Dukic v Tadic [2025] ACTSC 455 at [18], the obtaining of a modest amount of money through the dishonest use of someone else’s credit card will be at the lower end of objective seriousness for this offence. The features generally relevant to considering the objective seriousness of obtaining property by deception were outlined in DPP v Singh [2024] ACTSC 202 at [24] and the cases there-cited. I have considered the following factors: (a) The amount of money involved ($74.99). (b) The lack of any apparent premeditation and sophistication. (c) The short time period over which the offence was committed, namely a single use of someone else’s credit card to purchase goods. (d) While there was no repeated offending and therefore no evident intention to continue use of the card unless the police became aware of the breach, that may have been a product of the card being blocked. (e) The level of dishonesty or breach of trust was fairly typical of this type of conduct.

47. I consider that this offence was of low objective seriousness.

Driving while disqualified

48. Applying R v Law [2021] ACTSC 351 at [35], I have taken the following features into account: (a) The number of prior offences of the same type. (b) Whether the driving was wilfully disobedient to the court’s order. (c) Whether the driving was associated with the commission of other offences (noting that the court must not doubly sentence the offender). (d) The duration and distance of the driving. (e) How recently the disqualification was imposed. (f) The manner of driving (again, noting that the court must not doubly sentence the offender if the manner of their driving was the subject of a separate charge).

49. Here, there were three charges of driving while disqualified. The offender’s criminal history shows that he had previously committed a further three offences of the same type. I am satisfied that the offender knew he was prohibited from driving at the time he committed these offences. The driving was associated with the offender’s charge of making off without payment and, while this is a separate offence and care must be taken not to impose overlapping sentences, the connection is relevant. The driving took place over a period of less than two weeks, and the distance travelled is unknown. The disqualification was imposed on the offender about a year before the offending occurred. There is nothing before the court to suggest that the offender’s driving was unsafe or dangerous in nature. The combination of these features results in each instance of the conduct falling in the low range of objective seriousness.

Making off without payment

50. I have considered the amount of money which ought to have been paid: R v Sampson [2018] ACTSC 59 at [11]. In this case, the offender failed to pay for $120 worth of fuel. This offending is also of low objective seriousness.

Possessing ammunition

51. Following R v Massey [2018] ACTSC 221 at [8], relevant features include the quantity and nature of the ammunition. Here, the offender possessed six 50-round boxes of firearm ammunition. This falls at the low range of objective seriousness.

Unlawful possession of stolen property

52. In assessing the objective seriousness of these offences, features that may be significant include the nature of the stolen property, its value, how easy it is to replace, and the length of time over which the property was possessed unlawfully: DPP v Brymer [2025] ACTSC 430 at [31].

53. Here, the stolen property possessed by the offender was a car key and several unopened boxes of power tools. These items have monetary value (though the facts are silent as to the precise amount) but were not of sentimental value. The length of time for which the offender possessed the stolen property was unclear. I am satisfied that this offending was of low objective seriousness.

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

54. There were no victim impact statements in this case, and the court does not speculate as to specific victim impact. However, that does not mean that the offences were victimless crimes. Plainly the stores involved are corporate victims, and the costs and inconvenience of the repairs to those premises are obvious. The loss of a person’s car or credit card are similarly obvious inconveniences arising from the conduct involved here. Pleas of guilty (ss 33(1)(j) and 35 of the Sentencing Act)

55. The offender’s pleas of guilty enliven the discretionary considerations under s 35(3) of the Sentencing Act. The circumstances in which the pleas were entered were in advance of a trial, and before various pre-trial applications were heard and prior to a scheduled criminal case conference. Each plea had utilitarian value. I have determined that a discount of 20% is appropriate for each of the offences, apart from the possession of ammunition offence (which is a fine only offence).

Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

56. The offender is 40 years old. His background was before the court through four reports. Those reports indicate a disadvantaged childhood, and I have given this full weight including a reduction in moral culpability: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [43]-[44]. The offender has supportive relationships with his parents and has two children with whom he currently has no contact.

57. The offender completed Year 12 and has a Certificate III in carpentry. He has a long, albeit sporadic, history of employment.

58. The offender has been a drug user for much of his life. There have been periods where he has led a pro-social life, but prior to the offending he relapsed into heavy substance use and struggled with homelessness. I will return to this below as it contributed to the offending and requires targeted intervention.

59. The offender has a number of diagnosed mental health issues. This influences the court and the approach to be taken to the sentences here. Having regard to the content of the psychological report prepared for the court by a qualified professional, and the nature of the mental illnesses, I consider that the application of Verdins principles is appropriate (as to which see R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 at [32]). It lessens the importance of general deterrence in the offender’s circumstances. The application of these principles is not to be viewed as sounding in any additional reduction (over and above that arising from the application of the Bugmy principles) with regard to the offender’s moral culpability, but it influences the crafting of the appropriate sentence now.

60. The offender’s criminal history is significant and reveals consistent re-offending since 2019, including for dishonesty offences similar to those currently before the court. This disentitles him to leniency but also reinforces that a different approach is called for if the offending/custody cycle is to be broken.

61. Further, much of the offending occurred while the offender was on conditional liberty, as he was subject to a suspended sentence order at the time the index offences were committed. This is an aggravating factor: see KQE v DPP [2024] ACTCA 7 at [40].

Remorse (s 33(1)(w) of the Sentencing Act)

62. I accept the offender has demonstrated genuine remorse. He accepts responsibility for his offending conduct and shows insight into what motivated that conduct.

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

63. The prosecution helpfully provided a table of cases which have comparable offending, including R v Nicholas; R v Palmer [2019] ACTCA 36; R v McCurley [2020] ACTSC 140; and R v Ayling [2019] ACTSC 229. The offences in McCurley were generally of a higher degree of seriousness from the conduct here. For example, one of the burglary and aggravated burglary offences involved premises providing services to vulnerable members of the community and a number of the motor vehicle offences involved the use of vehicles as battering rams.

64. Part of considering comparable sentencing practice includes having regard to the operation of the principle of parity where appropriate. Here, the co-offender in respect of CAN 10174/2024 was sentenced to a term of imprisonment for nine months in respect of the aggravated burglary and associated minor theft, with the latter being separately charged. That differs from how the conduct has been charged here, with the theft offence in this case being taken into account as an additional offence attaching to the primary offence. I have taken those nuances into account.

Pre-sentence custody

65. As at the date of sentence, the offender has spent 557 days in custody referable to the offending. This time will be taken into account by way of backdating his sentence and this too influences the ultimate disposition.

Disposition – a sentence of imprisonment is appropriate

66. The sentences to be imposed must be such as to hold the offender accountable for the wrongs that he has done. A custodial sentence is a sentence of last resort but given the offender’s likely inability to pay any fine and the gravity of offending (including the fact that much of it was committed while on conditional liberty), such sentences are appropriate here. Totality considerations

67. The sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [37], cited in R v Lindsay [2020] ACTCA 25 at [32]. Accepting that as a starting point, totality considerations require consideration here. 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. Here, I have endeavoured to structure the sentence so that: (a) As sought by the prosecution, there is a “healthy degree of cumulation” for the offences of greater objective seriousness. Further, each offence has a separate period of time attributable solely to that offence, in recognition of there being separate victims and to avoid the sense of there being any discount for multiple offences. (b) As submitted by counsel for the offender, the offences before the court occurred in four spree-like courses of conduct (s 33(1)(c) of the Sentencing Act). Further, a number of the offences were of a similar kind and were able to comprehend the criminality of the other offence. That warranted a degree of concurrency. (c) Further concurrency in the sentences to be imposed is also necessary to ensure the overall sentence is not crushing. That principle ties in with the complementary principle that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30].

68. By virtue of the number of offences committed, the length of the total effective sentence imposed, including the previously suspended sentence, will be five years, one month and three days.

Can and should a drug and alcohol treatment order be made?

69. There is a preliminary question as to whether a treatment order can be made under s 12A of the Sentencing Act because of the length of the sentence of imprisonment to be imposed in respect of this offender. I have determined that it is available here, but that conclusion is not straightforward. The broad reasons for that conclusion are: (a) The purpose of section 12A is rehabilitative and therapeutically driven. (b) There were amendments made to the Sentencing Act that indicated a shift in legislative intention, so as to expand the availability of a treatment order, not reduce it. (c) Consistent with that therapeutic purpose, jurisprudence of this court has treated the four-year limit in the section as applying to the total period of time for sentences that have not been completely served (and thus for which a treatment order may be made), as opposed to the total length of the sentence including any offences that have no remaining term to be served because of the period backdated for pre-sentence custody.

The legislative history to the section shapes its interpretation

70. Section 12A(1) currently provides (emphasis added): Drug and alcohol treatment orders (1) This section applies if— (a) an offender pleads guilty to an eligible offence; and Note … (b) the Supreme Court convicts the offender of the eligible offence and sentences the offender to a term of imprisonment for— (i) if the offender is convicted of 1 eligible offence only—at least 1 year but not more than 4 years; or (ii) if the offender is convicted of more than 1 eligible offence—a total period of at least 1 year but not more than 4 years; and (c) the offender is not subject to a sentencing order for another offence.

71. Other parts of the section providing relevant context are s 12A(4) and (9): (4) To remove any doubt–– (a) the offender must not be subject to more than 1 treatment order at any particular time; and (b) a treatment order may apply to more than 1 eligible offence dealt with in the same sentencing proceeding; and (c) sentences for multiple offences may be served concurrently or consecutively (or partly concurrently and partly consecutively), subject to subsection (1) (b). … (9) In this section: "eligible offence" means an offence that is not— (a) a serious violence offence; or (b) a sexual offence. …

72. The Explanatory Statement for the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) (2019 Amendment Bill) explained the legislative intention to target “high risk and high need offenders” using an intensive problem-solving approach. The explanation given for the time parameters, which at the time did not allow for the combining of sentences that may have been less than a year, was as follows (p 15): Paragraph 12A(1)(b) states that the offender needs to be sentenced by the Supreme Court to a sentence of imprisonment of at least one year but not more than four years. The effect of this paragraph is to limit the availability of the DATO firstly to indictable offences, and then further by requiring that the Supreme Court imposes a sentence of imprisonment of at least one year.

73. That stated intention to limit the availability of a treatment order to indictable offences was curious in circumstances where in the Territory an indictable offence is one punishable by imprisonment for longer than two years (or otherwise declared to be an indictable offence): s 190 of the Legislation Act 2001 (ACT). However, even if that was the original intention, such intention had evidently changed when s 12A(1)(b) was amended.

74. That amendment occurred through the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Act 2023 (ACT) (2023 Amendment Act), which commenced on 9 November 2023. It deleted the requirement that any one sentence of imprisonment be for a minimum duration, as explained in the Explanatory Statement to the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2023 (ACT) at pp 15- 16: This clause clarifies that the court may make a treatment order for 1 or more eligible offences that result in a term of imprisonment of a total period of at least 1 year but not more than 4 years. This clause expands the eligibility criteria for a treatment order, which enables more offenders that may benefit from drug and alcohol treatment to be eligible for the DASL. This clause is intended to operate with reference to the total period that a person will spend imprisoned under the imposed sentence(s), including sentences served concurrently and consecutively. For example, an offender sentenced to the following would be eligible for a treatment order pursuant to subsection (1)(b)(ii): • 2 periods of imprisonment for 9 months and 3 months to be served consecutively, resulting in a total period of 12 months imprisonment. • 2 periods of imprisonment for 3 years and 2 years to be served concurrently, resulting in a total period of 3 years imprisonment. While each period taken individually would add up to 5 years imprisonment, the concurrent serving of the sentences amounts to a total effective period of 3 years imprisonment. Accordingly, the offender would still be eligible for a treatment order, as the total period of imprisonment to be served does not exceed 4 years.

75. Insofar as legislative intention may be gleaned from the words of the explanatory statement, the points to note are that: (a) The legislature wanted to enable more offenders to benefit from the availability of a treatment order. (b) The legislature was not concerned about numerous sentences that individually may add up to numbers exceeding four years. (c) The intention was concerned with the total period a person “will spend imprisoned” and the total period “to be served”. The effect of pre-sentence custody is not a consideration.

76. However, the 2023 Amendment Act also effected a change to the requirement that the sentence be fully suspended and provided for the sentence to take account of periods of time spent in custody prior to the sentence being imposed. The relevant part of the Explanatory Statement stated (p 16): Clause 7 Section 12A(2) This clause omits the term ‘fully’ in section 12A(2) as a consequential amendment to give effect to the amendment to section 12A(3) of the Sentencing Act. Clause 8 Section 12A(3) This clause substitutes section 12A(3) to clarify that if a sentence is taken to have started on a day before the day the sentence is imposed, the court must suspend the remaining part of the sentence beginning on the day the sentence is imposed.

77. That amendment created a disharmony in that sentences for multiple offences and sentences which included a backdated component of full-time imprisonment were introduced (or confirmed), but the consequences not reconciled. The Sentencing Act still has a number of difficulties with the treatment order regime created by s 12A of the Sentencing Act, which could (and probably should) be clarified by the legislature. The difficulties with which the court is presently concerned are: (a) The Sentencing Act provides for combination sentences in s 29. It does not mention that a treatment order may be made in combination with a sentence of full-time detention, but s 12A(3)(a) clearly contemplates that a combination sentence is available, because it speaks of a sentence “taken to have started on a day before the day the sentence is imposed”. A suspended sentence does not include a treatment order: s 12(7) of the Sentencing Act. (b) Section 12A(3)(a) was amended to enable a treatment order to be available in cases where backdated sentences were imposed. However, the four-year limit on the length of the sentence prescribed by s 12A(1)(b), which previously operated only from the date of imposition of the sentence, was not similarly amended to make it clear that the four-year limit operated only on sentences where there was a remaining term to be served (and that it did not apply to offences with sentences that, through pre-sentence custody, had already been served).

78. In the absence of clarification, the s 12A regime is interpreted purposively, pursuant to s 139 of the Legislation Act. That means the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation, whether or not that purpose is expressly stated in the statute.

79. Here, the underlying purpose of s 12A is to facilitate rehabilitation, reduce drug dependency and its associated health risks, assist with reintegration and promote community safety: s 80O of the Sentencing Act.

80. When a court works out the meaning of the statute, it is working out what the legislature meant by the words that were used. The task may include not just resolving ambiguous or obscure provisions, but confirming or displacing the apparent meaning of the Act, finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable, or finding the meaning of the Act in any other case: s 138 of the Legislation Act.

81. As it stands (and as the prosecution submitted), the apparent meaning of the four-year limit is that it applies to a sentence for one or multiple offences regardless of when the sentence is taken to have commenced.

82. One of the consequences of that interpretation is that sentences for offences that have already been fully served as at the date of imposition (because of time spent in custody prior to sentence) are picked up and affect the length of time of the sentence to be considered when determining whether s 12A applies.

83. That consequence appears to have been inadvertent, because it is necessarily implicit from the nature of a treatment order that it cannot apply to sentences for offences that have been fully served at the date of imposition. Those sentences should not fall within the contemplation of the section at all.

84. In my view, the apparent meaning of total period is displaced once the therapeutic purpose behind providing for the making of a treatment order is understood. The timing parameters of between one and four years are directed to serving the therapeutic purpose of the section. Those parameters acknowledge that it takes a significant investment of time to rehabilitate from drug use, with some residential programs lasting for up to a year before an individual may transition to the community. There is then a period of time stabilising in the community without the wrap around support of a residential program. There is thus little utility in imposing an intensive treatment order for a period shorter than a year and that is why there is a lower limit of a year.

85. The upper limit of four years is also therapeutic. It allows a treatment order to be made that includes (for example) a treatment component for two years followed by a good behaviour order for two years. The upper limit recognises that extended engagement with treatment, and indeed with the justice system, can be counterproductive and set people up to fail.

86. The existence of an upper parameter was not directed to excluding sentences of certain seriousness. There are two reasons for that. The first is that the mechanism for excluding offences of certain seriousness in this section is through the definition of ‘eligible offence’. The Explanatory Statement to the 2019 Amendment Bill (p 17) discussed this: Subsection (9) defines ‘eligible offence’ as being an offence which is not a serious violence offence or a sexual offence. A ‘serious violence offence’ is defined as meaning an offence of murder, manslaughter, or one of intentionally or recklessly inflicting grievous bodily harm. This is to reflect that the [DATO] is aimed at high-risk offenders. Violent offenders will still be ineligible if the court does not consider the order appropriate, or if their offending was not substantially contributed to by a drug or alcohol dependency.

87. The second reason can be seen from the 2023 Explanatory Statement. Although it referred to sentences which, when combined, were less than four years, that implicitly recognises that the total length of a sentence is not necessarily an indicator of seriousness and may instead be attributable to a number of minor offences. For example, an offender who is being sentenced for many low-level theft and burglary offences that are directly attributable to supporting a drug habit. That is precisely the type of high-risk, high-need offender at whom s 12A is targeted. Collectively, the total sentence to be imposed for those offences may be more than four years. However, if a period of pre-sentence custody has been served, the remaining total sentence for offences that are not fully absorbed by pre-sentence custody may be under the four-year limit. To interpret s 12A so that a treatment order was not available in such circumstances would be contrary to the very mischief that the section was designed to address.

88. That does not mean that the seriousness of an offence is irrelevant because, as mentioned in the extract from the Explanatory Statement above, the court retains the discretion not to impose a treatment order if it does not consider the order appropriate, and considerations such as the level of seriousness of an offence inform that discretion.

89. Accordingly, the interpretation that best achieves the legislative purpose is one that displaces the apparent meaning. What the Legislative Assembly meant by the words that are used was that s 12A applies where, for sentences that have not been fully served as at the date of imposition, the total period of the sentence is between one and four years. In other words, if the combined total of the sentence for offences that have not been fully served at the date of imposition falls between one and four years, a treatment order becomes an available option, subject to the other statutory criteria being met.

90. Such an interpretation means that sentences which are spent as at the date of imposition do not count towards the four-year limit. That is also logical because a sentence for an offence that has concluded at the date of imposition due to time already served is self-evidently not a sentence to which a treatment order can attach. As I have said, they should be carved out of the ‘total period’ to which s 12A(1)(b)(ii) refers.

91. That is how the jurisprudence appears to have understood the four-year limit, as seen in cases such as: DPP v Saunders [2025] ACTSC 160 at [63]-[64]; DPP v Smith (No 2) [2024] ACTSC 126 at [169]-[170]; and DPP v Whitall [2025] ACTSC 111 at [101]. I have also taken that approach in DPP v Brymer [2025] ACTSC 430. However, as far as I am aware, no case has expressly grappled with the precise words of the section since it has been amended and that is why I have considered it in detail here, with the benefit of considered argument and assistance from the parties’ legal representatives.

92. Applying that interpretation, part of the sentence to be imposed here concerns the six months remaining from a sentence that had previously been suspended. Because the offender had already been convicted for those offences, it falls outside the application of s 12A. The sentences for the remaining offences total a period of four years, seven months and three days.

93. However, the offender has spent 557 days in custody. The lengthy time that the offender has served in custody also means that by the time the sentence was imposed, two of the offences were spent, with a term of imprisonment of three years, six months and 22 days to be imposed and potentially served by way of a treatment order. That term is within the four-year limit and thus, that criterion of s 12A was satisfied here.

Other statutory considerations relevant to the making of a treatment order

94. Dealing with the s 80T requirements, I have considered the drug and alcohol treatment assessment for the offender that was before the court. It found the offender was suitable for a treatment order and recommended the order.

95. Dealing with s 12A(2) requirements, I am satisfied on the balance of probabilities that the offender is still dependent on alcohol or a controlled drug and that the offender’s dependency substantially contributed to his offending. The reports confirm that the offender will live in the ACT for the term of the sentence except as might be directed by the court.

96. I have considered the relevant sentencing considerations. Having regard to the lengthy period of time already spent in custody, many of the purposes of sentencing, such as denunciation, punishment and specific deterrence have been achieved. I have had regard to the objects of a treatment order discussed above (at [79]). The offender’s mental health challenges and drug addiction warrant the court now prioritising reintegration into the community and protection of the community as part of that process. There is also a risk of institutionalisation that points strongly to supervision and support being required. The offender has consented to the treatment order, having been given a clear explanation of what it involves. In my view, he is a person who would benefit from the targeted intervention, support, supervision and gradual reintegration that the treatment order regime provides, and I was not aware of any concerns relating to the safety or welfare of any victim: s 12A(2)(b)(ii) of the Sentencing Act. I therefore consider the order to be appropriate.

97. 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.

Automatic disqualification periods

98. There are automatic disqualification periods attached to the driving while disqualified offences (CAN 10903/2024, 10904/2024, and 10909/2024), namely 24 months for each offence under s 32(5)(b) of the Driver Licensing Act.

99. I will not order a reduction in the disqualification periods, but I will exercise the discretion under s 69 of the Road Transport (General) Act 1999 (ACT) to order that the disqualification periods run concurrently, applying my earlier reasoning in DPP v XK [2023] ACTSC 141 at [87]-[105], including the overlapping nature of the conduct and principles of totality. Accordingly, a two-year period of disqualification applies from the date of these orders.

Orders

100. The orders of the Court made on 11 May 2026 are: (1) For CAN 12072/2023, burglary, the suspended sentence is cancelled pursuant to s 110 of the CSA Act and the remainder of the suspended sentence is imposed, being a term of imprisonment of six months, backdated to commence on 31 October 2024 and conclude on 30 April 2025. (2) For CAN 12067/2024, aggravated burglary by joint commission, contrary to s 312 of the Code by virtue of s 45A of the Code, the offender is convicted and sentenced to a term of imprisonment for one year and four months, reduced to one year and 22 days on account of his guilty plea, backdated to commence on 1 February 2025 and conclude on 22 February 2026. (3) For CAN 12068/2024, burglary, contrary to s 311 of the Code, the offender is convicted and sentenced to a term of imprisonment for one year and two months, reduced to 11 months and six days on account of his guilty plea, backdated to commence on 5 June 2025 and conclude on 10 May 2026. (4) For CAN 1722/2025, aggravated burglary by joint commission, contrary to s 312 of the Code by virtue of s 45A of the Code, the offender is convicted and sentenced to a term of imprisonment for one year and three months, reduced to one year on account of his guilty plea, to commence on 11 May 2026 and conclude on 10 May 2027. (5) For CAN 10173/2024, aggravated burglary by joint commission, contrary to s 312 of the Code by virtue of s 45A of the Code, the offender is convicted and sentenced to a term of imprisonment for one year and six months, reduced to one year, two months and 12 days on account of his guilty plea, to commence on 1 November 2026 and conclude on 12 January 2028. (6) For CAN 10174/2024, aggravated burglary by joint commission, contrary to s 312 of the Code by virtue of s 45A of the Code, the offender is convicted and sentenced to a term of imprisonment for one year and two months, reduced to 11 months and six days on account of his guilty plea, to commence on 1 September 2027 and conclude on 6 August 2028. (7) For CAN 10907/2024, drive motor vehicle without consent, contrary to s 318(2) of the Code, the offender is convicted and sentenced to a term of imprisonment for one year and two months, reduced to 11 months and six days on account of his guilty plea, to commence on 11 April 2028 and conclude on 16 March 2029. (8) For CAN 10903/2024, drive while disqualified, contrary to s 32(1)(a) of the Driver Licensing Act, the offender is convicted and sentenced to a term of imprisonment for four months, reduced to three months and six days on account of his guilty plea, to commence on 15 January 2029 and conclude on 20 April 2029. (9) For CAN 10904/2024, drive while disqualified, contrary to s 32(1)(a) of the Driver Licensing Act, the offender is convicted and sentenced to a term of imprisonment for four months, reduced to three months and six days on account of his guilty plea, to commence on 22 March 2029 and conclude on 27 June 2029. (10) For CAN 10909/2024, drive while disqualified, contrary to s 32(1)(a) of the Driver Licensing Act, the offender is convicted and sentenced a term of imprisonment for four months, reduced to three months and five days on account of his guilty plea, to commence on 25 April 2029 and conclude on 29 July 2029. (11) For CAN 10171/2024, obtain property by deception, contrary to s 326 of the Code, the offender is convicted and sentenced to a term of imprisonment for three months, reduced to two months and 12 days on account of his guilty plea, to commence on 10 July 2029 and conclude on 21 September 2029. (12) For CAN 10910/2024, unlawful possession of stolen property, contrary to s 324 of the Code, the offender is convicted and sentenced to a term of imprisonment for two months, reduced to one month and 18 days on account of his guilty plea, to commence on 28 August 2029 and conclude on 15 October 2029. (13) For CAN 10912/2024, unlawful possession of stolen property, contrary to s 324 of the Code, the offender is convicted and sentenced to a term of imprisonment for two months, reduced to one month and 18 days on account of his guilty plea, to commence on 1 October 2029 and conclude on 18 November 2029. (14) For CAN 10905/2024, make off without payment, contrary to s 323 of the Code, the offender is convicted and sentenced to a term of imprisonment for one month and 10 days, reduced to one month and two days on account of his guilty plea, to commence on 1 November 2029 and conclude on 2 December 2029. (15) For CAN 10911/2024, possess ammunition, contrary to s 249 of the Firearms Act, the offender is convicted and fined $400 with 12 months to pay. (16) Pursuant to s 69 of the Road Transport (General) Act 1999 (ACT), the offender’s driver’s licence is automatically disqualified for a period of 24 months, from 11 May 2026 to 10 May 2028. (17) The total effective sentence, including the imposed suspended sentence, is for five years, one month and three days, from 31 October 2024 to 2 December 2029. (18) A Treatment Order under s 12A of the Sentencing Act is made for James Gregory Elliott in respect of the eligible offences of: (a) CAN 1722/2025: Aggravated burglary by joint commission. (b) CAN 10171/2024: Obtain property by deception. (c) CAN 10173/2024: Aggravated burglary by joint commission. (d) CAN 10174/2024: Aggravated burglary by joint commission. (e) CAN 10907/2024: Drive motor vehicle without consent. (f) CAN 10903/2024: Drive while disqualified (repeat offender). (g) CAN 10904/2024: Drive while disqualified (repeat offender). (h) CAN 10909/2024: Drive while disqualified (repeat offender). (i) CAN 10905/2024: Make off without payment. (j) CAN 10910/2024: Unlawful possession of stolen property. (k) CAN 10912/2024: Unlawful possession of stolen property. (19) The convictions and sentences imposed for the said eligible offences, for which the offender has been sentenced to a total period of imprisonment for three years, six months and 22 days, are hereby incorporated into the Treatment Order in the Custodial Part of the Order. (20) A Treatment Order is made for three years, six months and 22 days from today, 11 May 2026 to 2 December 2029. (21) The Treatment and Supervision Part of the Treatment Order is for two years from today, 11 May 2026 until 10 May 2028. (22) The Custodial Part of the Treatment Order for the eligible offences will be suspended under s 80W of the Sentencing Act from today, 11 May 2026, until 2 December 2029. (23) Under s 80ZA of the Sentencing Act, Mr Elliott is required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the CSA Act from the day after the end of the Treatment and Supervision Part of the Treatment Order, 11 May 2028, until the end of the total sentence that is the subject of the Treatment Order, 2 December 2029. (24) A probation condition is imposed that Mr Elliott 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 obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment. (25) For the Treatment and Supervision Part of the Treatment Order: (a) The core conditions of the Order set out in s 80Y of the Sentencing Act are hereby imposed. (b) Mr Elliott is to travel to Canberra Recovery Service (CRS) on 11 May 2026 and admit himself to the residential rehabilitation program at that facility by 12:00pm. (c) Mr Elliott 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 Elliott 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 program at CRS or any equivalent residential program, Mr Elliott 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 Elliott leave or be discharged from any residential or day 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 Elliott is not to consume or use alcohol, cannabis, illicit drugs, or prescription drugs not prescribed to him. (h) Mr Elliott is to comply with any directions of the court from time to time about attendance at court in person or by electronic means. (26) 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 one hundred [100] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam.

Associate: Date: