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[2022] ACTSC 348
plaintiff. The proceedings were noted as conducted in the Director of Public Prosecutions’ own name, with filed documents permitted to use that title; the intensive correction order was cancelled and the...
The Sentence Administration Board had already cancelled McIntosh’s intensive correction order when he committed another offence. The Supreme Court nevertheless decided it could also cancel the order under s 65, because Board cancellation and court cancellation have different legal consequences. Since cancellation was not shown to be contrary to the interests of justice, the court cancelled the order and directed that the remainder of the sentence be served in full-time detention. The court also updated the proceeding title to use the Director of Public Prosecutions’ name.
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2,239 words · generated 02/10/2026
In DPP v McIntosh (No 3), Mossop J dealt with two matters: the title of a criminal proceeding after a change in prosecution practice, and the consequences of further offending while the offender was serving a sentence by way of an intensive correction order (ICO).
2 cited instruments linked from this judgment.
The history began with sentences imposed on 6 August 2020. McIntosh received 19 months’ imprisonment for causing grievous bodily harm by an unlawful act and a further two months’ imprisonment for common assault. Those prison terms were suspended upon his entering a 24-month good behaviour order [2]. After an offence of possessing an offensive weapon with intent on 23 December 2021, he was sentenced in the Magistrates Court to two months’ imprisonment on 17 March 2022. Mossop J dealt with the resulting breach of the good behaviour order on 21 July 2022, imposing 10 months’ imprisonment to be served by intensive correction, with 50 hours of community service [2].
On 24 August 2022, McIntosh damaged property at the home where he lived with his mother. The conduct involved punching a wall and using a baseball bat to damage a door. He was convicted and fined $1,500 on 8 November 2022 [3]. Because he had been serving the 10-month sentence by intensive correction when the property damage occurred, the magistrate committed him to the Supreme Court to be dealt with under s 65 of the Crimes (Sentence Administration) Act 2005 (ACT). As Mossop J explained, that provision required the court to cancel the ICO unless cancellation was not in the interests of justice [3].
A complication had arisen in parallel. On 20 September 2022, the Sentence Administration Board had found a breach of condition 5 of the ICO proved and cancelled the order. Condition 5 required McIntosh to be subject to supervision by the Director-General and to obey all reasonable directions [4]. Consequently, when the matter came before the Supreme Court, the order for which cancellation was sought had already been cancelled by the Board [5].
Mossop J identified a further difference between the two types of cancellation. Under s 73, the Board could undo its own cancellation after the offender had served at least 30 days of the sentence by full-time detention. That mechanism did not apply to a cancellation by the sentencing court [5]. The court therefore treated it as the least undesirable interpretation of the legislation that s 65 permitted court cancellation despite the prior Board cancellation [6]. As cancellation was not argued to be contrary to the interests of justice, and the judge considered the offender’s history and offences, the court cancelled the ICO and directed that the remainder of the sentence be served in full-time detention [7]-[8].
The separate title issue arose because the indictment had originally been brought in the name of the Queen. Following the Queen’s death, the Director’s practice was to prosecute in the Director’s own name. Mossop J regarded this as a change in title rather than substance, authorised by s 7 of the Director of Public Prosecutions Act 1990 (ACT), and ordered that the proceedings and filed documents could use the Director’s name [1], [8].
The central interpretive problem was not whether the Board had cancelled the order. It had done so on 20 September 2022 [4]. The difficulty was how s 65 should operate when the court was later asked to deal with further offending, even though the ICO was already cancelled. Mossop J recognised the apparent logical problem: in ordinary terms, an order that has already been cancelled cannot simply be cancelled again [5]-[6].
The judgment’s answer rested on the difference in legal consequences between Board cancellation and court cancellation. The Board’s cancellation could be undone by the Board under s 73 after the offender had served at least 30 days in full-time detention. The judgment states that no equivalent mechanism applied where cancellation was by the sentencing court [5]. Reading s 65 as unavailable once the Board had acted would therefore leave those distinct consequences without effect in this situation. Mossop J did not describe the statutory drafting as clear or ideal. Instead, he chose what he called the “least undesirable interpretation”: that the court could cancel an ICO that the Board had already cancelled [6].
The court then applied the statutory interests-of-justice qualification. Section 65, as described in the judgment, required cancellation unless cancellation was not in the interests of justice [3]. No one submitted that the exception applied. Mossop J also considered the offender’s history and the nature of the offences and concluded there was no reason why cancellation would not be in the interests of justice [7]. On that basis, he treated the statutory consequence as obligatory: cancellation under s 65(2)(a), followed by an order under s 65(2)(b) that the remainder of the sentence be served by full-time detention [7].
The reasons do not set out a detailed balancing test for the interests-of-justice exception, nor do they identify a comprehensive list of factors that must be considered. The stated application is tied to the offender’s history and the nature of the offences, together with the absence of any submission opposing cancellation [7]. It would go beyond this judgment to treat those considerations as an exhaustive test.
The title issue was dealt with separately. Section 7 of the Director of Public Prosecutions Act 1990 (ACT) authorised the Director to prosecute, including in a manner other than prosecution in the name of the Queen. The judge considered the change to be one of title, not substance, and found no apparent statutory or other barrier to changing the title in this proceeding [1]. The operative order clarified that the proceeding was conducted in the Director’s name and that filed documents could be so entitled [8].
The judgment describes a statutory gap or ambiguity rather than a settled rule resolving every possible sequence of Board and court action. Before this decision, the relevant practical sequence had arisen: the Board cancelled an ICO under s 64, then the offender was committed to the court under s 65 following further offending. Mossop J said the legislation did not appear to contemplate that circumstance and did not explain how an order already cancelled could be cancelled again [5].
The court supplied an interpretation for the matter before it. The key reasoning was that Board cancellation and court cancellation have different consequences, especially because the Board could undo its cancellation under s 73, while that did not apply to court cancellation [5]-[6]. The judgment therefore supports the proposition that, in this circumstance, s 65 can be treated as authorising court cancellation notwithstanding an earlier Board cancellation.
The decision did not amend the legislation or purport to provide a complete framework for every interaction among ss 64, 65 and 73. It also did not examine legislative history, canvass alternative interpretive methods in detail, or address every possible factual variation. Mossop J expressly observed that the drafting issue might need legislative attention [6]. He also noted a similar practical concern about cancellation of good behaviour orders that had already expired, but did not decide that issue [6].
The title ruling is narrower. The Director’s practice had changed following the Queen’s death, and the court considered that s 7 permitted prosecution in the Director’s own name [1]. The order addressed the title and future filing of documents in this proceeding. The judgment does not discuss broader constitutional or procedural consequences of the change.
At [1], Mossop J said the move from prosecution in the Queen’s name to prosecution in the Director’s own name “reflects a change in title rather than a change in substance.” In plain English, the judge treated the change as identifying the prosecutor differently, without changing the underlying prosecution. The order recorded that the Director was conducting the proceeding in the Director’s own name and permitted documents to use that title [8].
At [5], the judge identified the central practical problem: the offender had been committed to the court to cancel an ICO “which has already been cancelled.” The legislation did not explain how that could happen. The point was not that the Board’s cancellation had failed. Rather, the court had to decide what work s 65 could still do when the Board had already exercised its power.
At [6], the court called its interpretation the “least undesirable” one. This wording is important because it signals that the judge recognised an awkward fit between the statutory text and the real sequence of events. The interpretation was supported by the distinct consequences of Board cancellation and court cancellation, not by a claim that the legislative drafting expressly described this precise sequence.
At [7], the judge recorded that there had been no submission that cancellation was “not in the interests of justice.” The judge then considered the history and nature of the offences and found cancellation to be in the interests of justice. The resulting order followed the statutory structure: cancel the ICO and require full-time detention for the balance [7]-[8].
The final order specified that the sentence imposed on 21 July 2022 commenced that day and ended on 20 May 2023. The remainder was to be served in full-time detention starting on 13 December 2022 [8]. That is the operative result in this case; the reasons do not purport to determine the sentence consequences in other cases.
The most direct factual setting is one where an offender is serving a sentence by way of an ICO, commits a further offence during that period, and is then brought before a court under s 65 after the Sentence Administration Board has already cancelled the ICO under s 64. In that setting, this judgment supports the interpretation that the court may still cancel the order under s 65, because the consequences of Board and court cancellation differ [5]-[6].
The statutory exception remains material. Section 65, as described in the reasons, provides for cancellation unless doing so is not in the interests of justice [3]. In McIntosh, no submission was made that the exception applied, and the judge considered the history and nature of the offences [7]. The judgment does not decide how the exception should be applied where cancellation is contested or where materially different facts are present.
The decision may also be relevant where a prosecution was originally titled in the Queen’s name and the Director’s current practice is to prosecute in the Director’s own name. Mossop J ordered a title change in this proceeding, relying on s 7 and treating the change as one of title rather than substance [1], [8]. The judgment does not determine the effect of every possible procedural irregularity arising from a title change.
The reference to good behaviour orders that have already expired is an observation, not a holding. The judge said similar issues arise there and might need legislative consideration, but no expired order was before the court for decision [6]. That comment should not be treated as establishing a rule about those orders.
The text of this judgment contains no later judicial decisions applying, distinguishing, approving or criticising DPP v McIntosh (No 3). The source therefore does not establish how later courts have treated its interpretation of s 65. No subsequent authorities should be inferred from the two cases mentioned in the judgment.
The judgment does refer to R v McIntosh [2020] ACTSC 208 and R v McIntosh [2022] ACTSC 185 at [2]. Those citations explain the offender’s earlier sentences and the prior breach proceeding. They are not described as authorities for the statutory interpretation issue decided in DPP v McIntosh (No 3).
For legal research purposes, the decision’s stated contribution is its case-specific interpretation of the interaction between ss 64, 65 and 73 where Board cancellation precedes court consideration under s 65. Whether later courts have adopted or confined that interpretation cannot be determined from this judgment alone.
The most evident open issue is legislative: how should the statutory scheme expressly address an ICO that the Board has already cancelled before a court is asked to act under s 65? Mossop J identified the logical difficulty and observed that the legislative drafting did not explain the circumstance [5]-[6]. The judgment’s interpretation resolves the particular matter, but the reasons do not set out a complete statutory procedure for all possible sequences of action.
A related question concerns how the interests-of-justice exception should be assessed in a contested case. Here, cancellation was not opposed on that basis, and the judge referred to the offender’s history and the nature of the offences [7]. The reasons do not identify a comprehensive set of factors or decide how competing considerations should be weighed.
The judgment also leaves open the analogous issue it raises concerning good behaviour orders that have expired before the court is asked to deal with a breach [6]. The observation signals a possible issue for legislative attention but does not determine its answer.
Finally, this source does not reveal whether later decisions have followed, distinguished or otherwise interpreted the ruling. Any claim about its subsequent treatment would require sources beyond the judgment provided.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
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 McIntosh (No 3) Citation: [2022] ACTSC 348 Hearing Date: 13 December 2022 Decision Date: 13 December 2022 Before: Mossop J Decision: See [8] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of intensive correction order by further offending – interpretation of requirement for court to cancel order where order previously cancelled by the Sentence Administration Board – consideration of need for law reform – offender did not contest cancellation – intensive correction order cancelled and sentence of full-time imprisonment imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Title of proceedings – Amendment of title of proceedings following death of the Queen – order made Legislation Cited: Crimes (Sentence Administration) Act 2005 (ACT), ss 64, 65, 73 Director of Public Prosecutions Act 1990 (ACT), s 7 Cases Cited: R v McIntosh [2020] ACTSC 208 R v McIntosh [2022] ACTSC 185 Parties: ACT Director of Public Prosecutions Brett Thomas McIntosh (Offender) Representation: Counsel S Janackovic (DPP) Self-represented (Offender) Solicitors ACT Director of Public Prosecutions Self-represented (Offender) File Number: SCC 6 of 2020
MOSSOP J: Introduction
This matter was originally prosecuted pursuant to s 7 of the Director of Public Prosecutions Act 1990 (ACT) in the name of the Queen. The indictment is entitled “the Queen against Brett Thomas McIntosh”. Following the death of the Queen, it has been the practice of the Director to prosecute matters in his own name. That is something which is authorised by s 7. In relation to matters such as this, in which there are proceedings both before and after this change of practice, there is an issue as to whether the proceedings should be titled as they were under the previous practice notwithstanding the death of the Queen or whether the title of the proceedings should be amended so as to reflect the current practice of the Director to prosecute in the Director’s own name. Pursuant to the statute, all prosecutions are in fact conducted by the Director (“The director may prosecute … but nothing … prevents the director from prosecuting … in any other manner”). The change from prosecuting in the name of the Queen to prosecuting in the Director’s own name reflects a change in title rather than a change in substance. The Director now prosecutes in his own name as authorised by that section. So far as proceedings such as this are concerned, there does not appear to be any statutory or other barrier to amending the title of the proceedings so that they reflect the current practice. That can simply be done by noting that the proceedings are now conducted by the Director in his own name. However, in order to ensure that there is no problem in the registry, I will make an order noting that the proceedings are conducted in the name of the Director of Public Prosecutions and any documents filed in the proceedings may be so entitled.
The offender was sentenced by Robinson AJ on 6 August 2020 to 19 months’ imprisonment for causing grievous bodily harm by an unlawful act and a further two months’ imprisonment for common assault: R v McIntosh [2020] ACTSC 208. The sentence of imprisonment was suspended upon the offender entering into a good behaviour order for a period of 24 months from 6 August 2020. On 23 December 2021 the offender committed the offence of possessing an offensive weapon with intent. On 17 March 2022 he was sentenced in the Magistrates Court to two months’ imprisonment. As that offending involved a breach of the good behaviour order associated with the suspension of sentence, I dealt with him for that breach on 21 July 2022. He was sentenced to 10 months’ imprisonment to be served by intensive correction along with 50 hours of community service: R v McIntosh [2022] ACTSC 185.
On 24 August 2022 he committed the offence of destroying or damaging property not exceeding $5000 in value. This involved him punching a wall and using a baseball bat to cause damage to a door in the residence where he lived with his mother. On 8 November 2022 he was convicted and fined $1500. The magistrate who sentenced him committed him to the Supreme Court to be dealt with under s 65 of the Crimes (Sentence Administration) Act 2005 (ACT). That was because he was, at the time of the offence, serving a sentence by way of intensive correction and s 65 requires the court as soon as practicable to cancel the intensive correction order unless cancellation is not in the interests of justice.
However, in parallel to these events, the Sentence Administration Board on 20 September 2022 had conducted a hearing into an alleged breach of condition 5 of the intensive correction order which required the offender to be subject to supervision of the Director-General and obey all reasonable directions. The Board found that breach proved and decided to cancel the intensive correction order.
The position is, therefore, one in which an offender is committed to this court in order to cancel an intensive correction order which has already been cancelled. The drafting of the legislation does not appear to contemplate this circumstance. It therefore does not explain how, logically, an intensive correction order which has already been cancelled may be cancelled again. Yet, there is a difference in the consequences of cancellation of an intensive correction order by the Board under s 64 of the Crimes (Sentence Administration) Act and cancellation by the sentencing court under s 65 of the Crimes (Sentence Administration) Act. That is because a Board cancellation may be undone by the Board itself after the offender has served at least 30 days of the sentence by full-time detention: s 73. That does not apply in relation to a cancellation by the sentencing court.
Notwithstanding the logical difficulty with cancelling an intensive correction order that has already been cancelled, having regard to the different consequences of cancellation by the Board and cancellation by the sentencing court it is the least undesirable interpretation of the legislation to treat it as permitting cancellation by the court of an intensive correction order previously cancelled by the Board. I observe that similar issues arise in relation to cancellation of good behaviour orders which have already expired and the difference between the legislative simplicity and the messiness of reality may need to be considered by the legislature at some stage.
In the present case there was no submission that cancellation was “not in the interests of justice”. I agree that there is no reason why cancellation would not be in the interests of justice. In my view, having regard to the history and nature of the offences committed by the offender cancellation is in the interests of justice. In those circumstances, the court is obliged to cancel the intensive correction order: s 65(2)(a) and order that the remainder of the offender’s sentence be served by full-time detention: s 65(2)(b).
The orders of the Court are: 1. Note that the proceedings are now conducted by the Director of Public Prosecutions in his own name and any documents filed in the proceedings may be so entitled. 2. Pursuant to s 65(2) of the Crimes (Sentence Administration) Act 2005 (ACT) the intensive correction order made by the court on 21 July 2022 in relation to a sentence of imprisonment commencing on 21 July 2022 and ending on 20 May 2023 is cancelled and the remainder of the offender’s sentence is to be served by full-time detention commencing today and ending on 20 May 2023.
I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 14 December 2022
DPP
McIntosh
The proceedings were noted as conducted in the Director of Public Prosecutions’ own name, with filed documents permitted to use that title; the intensive correction order was cancelled and the remainder of the sentence ordered to be served in full-time detention from 13 December 2022 to 20 May 2023.