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[2026] ACTSC 22
General information, not legal advice.
Supreme Court of the ACT
2026-02-09
McWilliam J
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Hooper (No 2) Citation: [2026] ACTSC 22 Hearing Date: 6 February 2026 Decision Date: 9 February 2026 Before: McWilliam J Decision: Application to cancel drug and alcohol treatment order dismissed. Catchwords: CRIMINAL LAW – DRUG AND ALCOHOL SENTENCE LIST – cancellation application – whether offender unwilling or unlikely to comply with conditions of treatment order – whether continuation of treatment and supervision component of treatment order unlikely to achieve the objects of the order – where residential rehabilitation available and supervision component of treatment order able to be extended to achieve objects of the order Legislation Cited: Crimes (Sentencing) Act 2005 (ACT), ss 12A, 80ZB, 80ZE
Cases Cited: DPP v Hooper [2025] ACTSC 164 R v Massey (No 4) [2021] ACTSC 211 Parties: Director of Public Prosecutions James Thomas Hooper (Offender) Representation: Counsel J Churchill (DPP) E Wilson (Offender) Solicitors ACT Director of Public Prosecutions Legal Aid (ACT) (Offender) File Numbers: SCC 196 of 2024 SCC 212 of 2024 McWILLIAM J: Introduction
James Hooper (the participant) was sentenced on 28 April 2025 in respect of three aggravated burglary and two burglary offences. A total effective term of imprisonment of three years, four months and 30 days was imposed: DPP v Hooper [2025] ACTSC 164.
Pursuant to s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), a Drug and Alcohol Treatment Order was imposed with the treatment and supervision period commencing on 28 April 2025 and concluding on 27 April 2026, with a good behaviour order operating for the remainder of the sentence, until 26 September 2028 (Treatment Order): Hooper at [67]. While the Treatment Order was in place, the custodial part of the participant’s sentence was suspended.
Under a Drug and Alcohol Treatment Order, there are various treatment pathways. Generally, a participant will start in residential rehabilitation for a period of three to four months before transitioning to the community and continuing on a day program offered by a number of service providers. Alternatively, it may be considered appropriate that the participant commence treatment under a day program from the outset. Again, the reasons why that might be considered appropriate vary. It may be that the offender has just completed a substantially equivalent program while in custody, or it may be that the participant’s personal circumstances mean that residential rehabilitation would be counter-productive (for example, if they were to lose access to stable accommodation and become homeless).
In this case, the participant commenced in a day program. The agreed chronology before the court and the history of the participant’s progress indicates that the participant has struggled both with his ongoing addiction and with his ability and willingness to undertake the treatment and comply with the supervision requirements.
Application for cancellation
That has crystallised into the prosecution bringing an application under s 80ZE of the Sentencing Act to cancel the Treatment Order, filed 30 January 2026. The Prosecution seeks that the original sentence be imposed or alternatively, that the Participant be resentenced.
The grounds of the application are: (a) The participant is unwilling or unlikely to comply with a condition of the Treatment Order; or (b) The continuation of the treatment and supervision part of the Treatment Order is not likely to achieve the objects of the order.
The court’s power and applicable principles
The discretion that is enlivened by the prosecution’s application is that prescribed by s 80ZE of the Sentencing Act. Section 80ZE(1) is in the following terms (emphasis added): (1) The court may cancel a treatment order if it is satisfied on the balance of probabilities that— (a) before the order was made, inaccurate or misleading information about the offender or the offender's circumstances was given to the court or an assessor who prepared a drug and alcohol treatment assessment in relation to the offender, and as a result of the information, the making of the order was inappropriate; or (b) the offender will not be able to comply with a condition of the offender's treatment order because the circumstances of the offender have materially changed since the order was made; or (c) the offender is unwilling or unlikely to comply with a condition of the offender's treatment order; or (d) the continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order; or (e) the offender withdraws the offender's consent to the treatment order; or (f) the offender poses an unacceptable risk to the safety or welfare of a person.
It can be seen that the application in the present case was brought under paragraphs (c) and (d) of the section.
The applicable principles have been set out in a case helpfully provided by the participant’s legal representative, R v Massey (No 4) [2021] ACTSC 211 at [19]-[21]: 19. The approach to the application is as follows. One ground is sufficient to require the Court to consider cancelling the Treatment Order, but each ground should be considered. A ground must be proved on the balance of probabilities. Even if one ground is, or more, or all, of the grounds are, made out, the Court is not obliged to cancel the Treatment Order and retains a discretion. The Court should also consider whether it is appropriate to review the Treatment Order under s 80ZH of the Sentencing Act at the same time and, in particular, to decide whether an appropriate amendment to the Order under s 80ZH(4) of the Sentencing Act can be made that would adequately address the unsatisfactory circumstances. 20. Even if there is an appropriate amendment that could be made, such as admission to another residential drug rehabilitation facility, there may not be the resources available to give effect to the amendment and s 80S(c) of the Sentencing Act would justify a cancellation of the Treatment Order in that case: R v Tonna (No 2) at [70]-[73]. 21. At the end of this consideration, the Court retains a discretion whether to cancel the Treatment Order. That a participant has performed unsatisfactorily does not mean that this behaviour will necessarily continue. Thus, where the grounds have been made out, but there is still some reasonable hope, based on a rational assessment of the situation, that the offender will rehabilitate, the Court may decline to cancel the Treatment Order and give the participant a further chance to complete it. Such further chances, however, must be based on a careful analysis of the facts and circumstances: see R v Tonna (No 2) at [36]-[39]; [70]-[73], R v Crawford (No 3) [2020] ACTSC 369 at [27]-[29]. In the absence of such a basis for continuation, it is almost inevitable that the Treatment Order will be cancelled: see R v Crawford (No 4) [2021] ACTSC 209. This is the approach I shall take to the application.
Briefly, it can be seen that there are two aspects to the court’s statutory task. The first is to consider whether one or more grounds of the section are satisfied. If so, the second is to consider whether to exercise the court’s discretion to cancel the order.
One or more grounds of 80ZE(1) of the Sentencing Act are satisfied
As to the first of those matters, the participant’s history while being subject to the Treatment Order indicates that he has been both unwilling to comply with conditions of the order and that the continuation of the treatment and supervision part of the order in its present terms is not likely to achieve the objects of the order. The participant accepted that the statutory criteria for enlivening the court’s power emphasised above were satisfied.
Based on the court record and the agreed factual chronology before the court, the participant has attempted two different day programs at separate institutions, but his attendance was sporadic and he failed to complete either of them. He has been twice offered a place in the Karralika residential program but did not proceed in any substantial way on either occasion, for reasons relating to his own willingness. Throughout May 2025 to January 2026, he has been consistently unable to abstain from drug use. He has on a number of occasions been in custody for a reset in accordance with the consequences of the behavioural protocol that each participant voluntarily agrees to abide by as part of the supervision and treatment requirements of the order. Most recently, in breach of court directions, he failed to attend court on a number of occasions for check-ins, and in further breach of the order, he failed to enter into Karralika residential program, ultimately resulting in his arrest and his latest period of incarceration. He is now unwilling to enter Karralika and in any event, the highly coveted spot that was held open for him for many weeks has now been taken up by someone else.
Accordingly, I am satisfied on the balance of probabilities of the existence of grounds (c) and (d) of s 80ZE of the Sentencing Act. The Treatment Order imposed in respect of the participant should not be cancelled
However, I have decided not to cancel the order in respect of the participant for four reasons: (a) The court has the power to extend the treatment and supervision part of the Treatment Order, so that it continues beyond April 2026. The ability to allow additional time to complete treatment is an important mitigating circumstance when giving consideration to whether or not the treatment and supervision part of the order is likely to achieve its objects over the entirety of the sentence. (b) The participant’s attitude has changed, in that he is now willing to enter into residential rehabilitation. That change in attitude will be essential for any prospect of success on any such rehabilitation program. That is not to say that his attitude has been entirely lacking in the past. At times he has tried very hard to beat his drug addiction when attending day programs and it is fair to say that the process of trying to abstain from drug use and achieve rehabilitation is not a linear one. He has at times made poor choices, but he has also suffered some setbacks that are not his fault. These have affected his mental health and his ability to make the right choice. I accept that there have been occasions in this participant's history where life has simply got the better of him and that has had an impact on his ability to refrain from drug use. (c) The participant’s personal circumstances have also changed, in a way that is likely to create a drive to beat drug addiction that is more acute than previously. He is expecting a child, indeed his first child, with his current partner. And he will be keenly aware that if he is not able to beat his drug addiction this time, that he is likely to lose access to the daily care and responsibility of the imminent child. (d) Perhaps most critically, there has been a change of circumstances in relation to the availability of a residential rehabilitation program for the participant. He has been offered a spot, which is available today, in the CRS rehabilitation program and he is willing to attend that program. He is also willing to have his treatment and supervision part of the order extended so that he can comply and continue in that program and essentially have one last shot at trying to get himself free of drugs. And I consider that it is appropriate that he be given that one last chance.
Accordingly, and notwithstanding the strong basis that the application had at the time that it was brought, the application is dismissed. Conclusion and Orders
For those reasons, the orders of the Court are: (1) The cancellation application is dismissed. (2) Pursuant to s 80ZB(1)(e) of the Crimes (Sentencing) Act 2005 (ACT), the suspension of the sentence of imprisonment under the custodial part of the drug and alcohol treatment order made on 28 April 2025 is reinstated. (3) James Hooper is directed to appear in court for DASL Review in person or via AVL on Tuesday 17 February 2026 at 12.30pm. (4) James Hooper is directed to attend CRS by 12pm today and to admit himself at that facility and remain and complete the program. (5) If he is exited or leaves CRS for any reason, he is to present to court by 4pm on the day of exit or, if exited after 4pm, by 10am the next morning. (6) Otherwise, the previous orders and conditions of the treatment and supervision part of the order continue to apply.
I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date:
DPP
Hooper (No 2)