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[2025] ACTSC 281
General information, not legal advice.
Supreme Court of the ACT
2025-07-04
Christensen AJ
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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 Lock (No 2) Citation: [2025] ACTSC 281 Hearing Date: 3 July 2025 Decision Date: 4 July 2025 Before: Christensen AJ Decision: See [30] Catchwords: CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – 80ZH review of drug and alcohol treatment order – non compliance with treatment order – s 80ZE cancellation – discretion to continue order declined – whether to impose or resentence – extent of non-compliance warrants imposition of original sentence – nonparole period to facilitate continued rehabilitation and oversight in community Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 80W, 80ZB, 80ZE, 80ZH Cases Cited: DPP v Lock [2025] ACTSC 204 Parties: Director of Public Prosecutions Kaine Lock (Offender) Representation: Counsel S Pitney (DPP) E Wilson (Offender) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Offender) File Numbers: SCC 326, 327 of 2024 CHRISTENSEN AJ: Introduction
This matter comes before the Court for the purposes of a review of the participant’s drug and alcohol treatment order (treatment order) in circumstances where the prosecution have applied for cancellation: s 80ZH Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
The prosecution seeks cancellation pursuant to s 80ZE of the Sentencing Act, contending that: (a) The participant is unwilling or unlikely to comply with a condition of the treatment order: s 80ZE(1)(c); and/or (b) The continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order: s 80ZE(1)(d); and/or (c) The continuation of the treatment and supervision part of the order poses an unacceptable risk to the safety or welfare of a person: s 80ZE(1)(f).
Mr Lock opposes cancellation of the treatment order. He asserts that he remains committed to rehabilitation and that a treatment order is the mechanism by which he will be able to achieve this.
Background
On 19 May 2025, Mr Lock was sentenced to a treatment order: DPP v Lock [2025] ACTSC 204 (DPP v Lock). This was for property offending that was committed in February and August of 2024. A total term of one year and six months imprisonment was imposed.
The treatment order was imposed in circumstances where Mr Lock was found suitable for such an order by both ACT Corrective Services and Canberra Health Services and the prosecution did not oppose the order. It was also imposed in circumstances that recognised the period available under the remainder of Mr Lock’s sentence for treatment and supervision was condensed (see DPP v Lock at [52]). However, given the availability of a residential rehabilitation program and the desirability of community protection being achieved if Mr Lock’s substance dependency was addressed, a treatment order was imposed.
Compliance with the order
Mr Lock’s compliance with the treatment order has been poor. He did initially engage with the residential rehabilitation program, however this was not maintained. He came to be exited from that program some seven days after it commenced due to substance use during a community activity. Thereafter, he was required to engage with a day program and while he did so to an extent, there was continued occasions of substance use and non attendance for urinalysis.
This led to a provisional cancellation of the order on 17 June 2025 and a return to custody. Upon completion of the period in custody, the treatment order was reinstated: s 80ZB(1)(e) Sentencing Act. Mr Lock was afforded a further opportunity to engage in the rehabilitation he asserted he was motivated to achieve.
He returned to the day program, however, within a matter of some three days was asked to leave due to being under the influence of substances. His treatment order was again provisionally cancelled, and he was returned to custody.
Cancellation application
The prosecution submit that Mr Lock has not conducted himself in a manner that is demonstrative of a willingness or likelihood of compliance with the treatment order. It is submitted that this behaviour during the treatment order gives no confidence as to it being likely that the objects of the order will be achieved. The prosecution emphasised that Mr Lock has not demonstrated any period of sustained abstinence from substances.
On behalf of Mr Lock it is acknowledged that the Court would likely be satisfied on the balance of probabilities as to the grounds relied upon by the prosecution. However, it was submitted that the Court exercise the available discretion (ss 80ZE(1), 80ZH(6) Sentencing Act) to continue Mr Lock on the treatment order.
This submission was made with reference to Mr Lock’s commitment to rehabilitation. Mr Lock is submitted to recognise that a cancellation and imposition of his treatment order is unlikely to result in any further substantial period in custody given the original sentence orders. Nonetheless, Mr Lock is submitted to recognise that a treatment order is capable of providing more rehabilitative support than he would otherwise receive and that such an order is best placed to support his rehabilitation once in the community.
There can be no doubt that Mr Lock’s journey of rehabilitation reflects the non-linear nature of rehabilitation from substance dependency that commonly occurs. There can also be no doubt that he still demonstrates an intention and motivation to rehabilitate. To his credit, Mr Lock has returned to court on each occasion of noncompliance with the order, evidencing a willingness to be accountable. He has not further offended during the order. Additionally, in the material provided on the review, Mr Lock has provided a letter in which he speaks of having now made the decision to “stop using”, this being a promise he has now made to his Nan. He says that the gravity of such a promise means that it is one that he will not break.
Nonetheless, I am not satisfied that a treatment order is the mechanism by which the stated intentions as to rehabilitation can be achieved for Mr Lock. The information before the Court at the review also included that Mr Lock no longer has available to him a day based rehabilitation program, and that no residential rehabilitation programs are currently available through the drug and alcohol sentencing list providers.
In any event, I am satisfied that Mr Lock’s inability to commit to the order and progress with his rehabilitation evidences that he is unlikely to comply with conditions as to not engaging in substance use and to engage with rehabilitation programs. Accordingly, the continuation of the treatment order is not likely to achieve the objects of the order. This is particularly so given the condensed period available under Mr Lock’s order for treatment and supervision to occur.
As to the third basis upon which the prosecution sought cancellation, I am not satisfied that this is established on the material relied upon at the hearing. The prosecution submission as to this related to alleged conduct of Mr Lock on occasions he participated in urinalysis testing and had interactions with nursing staff. It was not pressed that evidence be adduced as to this given the primary reliance on the other grounds of the application.
I am satisfied that the order is appropriately cancelled on the grounds that the participant is unwilling or unlikely to comply with a condition of the order, and that the continuation of the treatment and supervision part of the order is unlikely to achieve its objects.
As to the discretion sought to be exercised to continue Mr Lock on the order nonetheless, Mr Lock was informed on the occasion that his order was reinstated that he was being granted a “last chance”. He himself acknowledges this in the letter he has provided to the Court. He also acknowledges that continuing on the order would involve “another last chance”, but he asserts that on this occasion he would show that he is serious about his recovery.
I am not persuaded that he is, at least to the extent that he currently has the capability to be serious about his recovery. During the treatment order, despite it only being for a short period, he has had opportunities of residential rehabilitation, a day-based program, accountability measures through urinalysis, case managers, and the Court. The deterrent effect of the prospect of a return to custody under the treatment order was insufficient to secure his compliance even with all of the available supports. Mr Lock may intend to, and be motivated to rehabilitate, but a treatment order is not the mechanism by which this can be achieved.
The treatment order imposed on 19 May 2025 is cancelled.
Imposition or resentence?
The Court is to then consider whether to impose the sentence of imprisonment that was suspended under the custodial part of the treatment order, or whether to resentence the offender: s 80ZE(2) Sentencing Act.
The prosecution submitted that given the extent of non-compliance, imposition was plainly the only appropriate course. It was submitted that the Court would not be optimistic as to Mr Lock’s prospects of rehabilitation in determining the eligibility for parole.
On behalf of Mr Lock, it was submitted that irrespective of whether the Court imposed the sentence or engaged in a re-sentence exercise, an order that saw his release from custody in the very near future was appropriate to encourage his intentions to rehabilitate.
Reliance was also placed on a letter of support for Mr Lock from his partner. She speaks of the difficulties that Mr Lock has experienced, including an experience in the custodial environment that exacerbates the challenges he has from continued incarceration. She also speaks of his positive attributes and his potential for rehabilitation with the appropriate supports.
I am not satisfied that resentence is appropriate. The extent of noncompliance is such that imposition is plainly warranted, and no circumstances arise that favour resentence. The original terms of imprisonment are to be imposed.
Determination
The issue then becomes the time at which Mr Lock is to be eligible for release from custody. He served a substantial period of presentence custody before the original sentence proceeding, a total of 319 days (see DPP v Lock at [39]). In addition, he has served a further period of 16 days (17 June 2025 – 24 June 2025; 27 June 2025 – 4 July 2025) during provisional cancellation of the order. Accordingly, the sentences to be imposed are to be backdated to take these periods, a total of 335 days, into account.
Upon imposition, the Court is empowered to set a nonparole period: ss 80ZE(3), 80W(4) Sentencing Act.
Mr Lock does continue to demonstrate the intention and motivation to rehabilitate that was evident at the original sentence proceeding. I find though that the previous optimism of this being achieved has been depleted. The extent to which leniency can be afforded is limited.
Nonetheless, there is a basis to find that continued incarceration without any leniency in the parole order has the potential to be detrimental to Mr Lock’s potential to rehabilitate, and ultimately community protection. It remains, as it did at the original sentence decision, that addressing his substance dependency is the mechanism by which community protection is to be achieved.
I will set an eligibility for parole that does not deter Mr Lock from fulfilling the promise he has made to his Nan, while also enabling continued oversight in the community upon release.
Orders
I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 7 July 2025
DPP
Lock