DPP v Rose [2025] ACTSC 469

1. Joe Daniel Rose (offender) is before the court for sentence having pleaded guilty to the following offences:

Reference number Offence Maximum Penalty

CAN 11135/2024 Trafficking in a controlled drug other Fine of $160,000, 10 years’ than cannabis (methamphetamine), imprisonment, or both. contrary to s 603(7) of the Criminal Code 2002 (ACT) (Code).

CAN 2664/2025 Possessing a prohibited firearm 10 years’ imprisonment. without licence or permit, contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT) (Firearms Act).

2. The offender has also pleaded guilty to the following related offences, which have been transferred to the Supreme Court pursuant to pt 8 of the Supreme Court Act 1933 (ACT) (Supreme Court Act):

Reference number Offence Maximum Penalty

CAN 11133/2024 Possessing a knife without Six months’ imprisonment, a reasonable excuse, contrary to s fine of $1,600, or both. 382(1) of the Crimes Act 1900 (ACT) (Crimes Act).

CAN 11316/2024 Possessing ammunition for a firearm Fine of $1,600. without licence or permit, contrary to s 249(1) of the Firearms Act.

CAN 11317/2024 Dealing with proceeds of crime, Two years’ imprisonment, a contrary to s 114C of the Crimes Act. fine of $32,000, or both.

3. A requirement of s 68D(2) of the Supreme Court Act is that the court considers that it is in the interests of justice to deal with the related offences. That is the case here because it is a more efficient use of court resources and promotes finality in dealing with the offender.

Facts

4. In the early morning of 7 November 2024, the offender was found by police lying in the southbound lane of Florey Drive, Macgregor ACT, seemingly asleep and snoring, without a shirt.

5. Parked off the road, with a helmet placed on the fuel tank and a key in the ignition, was a grey Yamaha motorcycle with ACT registration plates. There were no visible signs of a collision or accident on either the offender or the motorcycle.

6. The police woke the offender and moved him from the roadway. Upon waking, the offender began sweating profusely, coughing and displaying seizure-like symptoms. The offender told police he had not been riding the motorcycle and had not crashed it. He declined to be assessed by paramedics.

7. Near the motorcycle, a black backpack identified by the offender as his property was located. The bag was searched and the police located, among personal items, a sawn-off shotgun loaded with two 12-gauge Winchester rounds and a large machete in a sheath.

8. The offender was cautioned and placed under arrest. Following a search of the offender, police located the following items in his trouser pocket: (a) Eleven $50 notes, one $20 note and some coins in Australian currency, totalling $1,121.15; (b) A clear clip-seal bag of white crystalline substance, later confirmed to be 8.932 grams of methamphetamine; and (c) A small quantity of clear clip-seal bags.

9. Following the search, the offender’s condition deteriorated, and he was assessed by paramedics and subsequently transported to North Canberra Hospital under police guard.

The offender will be sentenced to a term of imprisonment

10. Recognising that a sentence of imprisonment is a sentence of last resort (s 10 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act)), the offender accepted that, for four of the five offences, a sentence of imprisonment was appropriate. He sought that a drug and alcohol treatment order (Treatment Order) be imposed. I agree that is the appropriate course to take here and will briefly explain why.

The court’s task and the sentencing considerations

11. I will deal with the established legal principles affecting the court’s discretion briefly. In sentencing the offender for the driving offences, the court has, at the forefront of its consideration, the purposes of sentencing set out in s 7 of the 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 an offender’s rehabilitation.

12. 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].

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

13. A number of established general principles guide the assessment of the nature and circumstances of the offences, which includes the objective seriousness of the conduct. They have been applied here as follows: (a) There is a theoretical spectrum from the least serious instance of the offence to the most serious. That spectrum takes into account both the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. (b) In assessing the nature of the crime, the court takes an objective approach, in the sense that the court does not consider matters personal to the offender and determines the seriousness ‘wholly by reference to the nature of the offending’: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. (c) The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. (d) 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 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

14. It is also preferable to articulate the factors that inform the character of an offence’s objective seriousness: Miller at [22]; and Laipato v The Queen [2020] ACTCA 35 at [156]. In that regard, I accept the useful submissions of the prosecution and the offender as to the features that are relevant here. They were broadly consistent and include the following:

15. In relation to the offence of trafficking in controlled drugs, following Bui v The Queen [2015] ACTCA 5 at [41]: (a) The role of the accused. Here the offender’s role was no higher than a street level user/dealer. (b) The quantity of drug. While the weight is not of chief importance, it remains a relevant factor. Here, the quantity was 8.932g. The trafficable quantity of methamphetamine is 6g. (c) The motivation for the offence. The purpose of profit is a more serious matter. Here, the motivation for the offending appears to be for personal use, with the financial gain tied to the offender’s addiction.

16. To this may be added the nature of the drug being trafficked. In DPP v Snowden- Crowhurst [2025] ACTSC 73 at [10], McCallum CJ regarded the sale of methylamphetamine as more serious than the sale of MDMA, based on the court’s experience and knowledge of the harm that drug in particular can cause, because of the impact it has on people’s behaviour.

17. In relation to the offence of possessing a prohibited firearm, following R v Guy [2022] ACTSC 373 at [53] and the cases there-cited, features informing the objective seriousness of the offending include: (a) the number of firearms, noting that more serious penalties apply for various numbers of firearms possessed; (b) the nature and type of the firearm; (c) the capacity of the firearm to be discharged, especially whether it is loaded; (d) whether it is easy to conceal the firearm; (e) where the firearm was located and, especially, whether it was properly secured or easily accessible to others; (f) the length of time for which the offender had had possession of the firearm; (g) the circumstances in which the firearm came into the offender’s possession; (h) the reason why the offender had it in his possession.

18. The number of firearms possessed was one. That is reflected in the lower maximum penalty for an offence under s 42(1)(a)(iii) of the Firearms Act (which deals with 1-2 prohibited firearms). The nature of the firearm, being a double-barrelled shotgun, was at the upper end of seriousness. Such a firearm has the ability to kill or cause serious injury. The most serious feature is that it was loaded. However, the offender did not use the firearm and was not charged with use. The circumstances in which the firearm came into the offender’s possession are unclear, as is the motivation for carrying a loaded firearm in a backpack.

19. With regard to the possession of ammunition offence, two rounds of ammunition were located loaded within the firearm. The motivation was obviously for the purpose of use in the prohibited firearm, but beyond that, the intention of the offender is not clear.

20. With regard to the possession of a knife without reasonable excuse, following Chatfield v Badman [2015] ACTSC 209 at [11], I have considered both the nature of the particular knife and the nature of the offender’s conduct vis-à-vis that item. Here, the knife was a machete, which was accepted to be a sizeable item capable of great damage. It falls at the upper end of the range of items falling within the definition of a knife (which includes anything with a blade). The machete was in the backpack, not on display and not on the offender’s person. The purpose or motivation for the possession was not specified.

21. With regard to the dealing with proceeds of crime offence, following cases such as DPP v Hyde [2024] ACTSC 44 at [28], the money found was a modest amount in the context of dealing in methylamphetamine. I find that it was at the low end of objective seriousness for this offence.

22. The conduct generally constitutes a typical example of this combination of offending.

Plea of guilty (ss 33(1)(j) and 35 of the Sentencing Act)

23. In respect of the four offences where terms of imprisonment will be imposed, having regard to the mandatory matters for consideration under s 35(2) of the Sentencing Act, I have exercised the discretion under s 35(3) of the Sentencing Act to reduce the sentences that would otherwise have been imposed by 12% each because: (a) The offender pleaded guilty. (b) The timing of the pleas had modest utilitarian value (as to which, see Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]), in that he indicated an intention to do so prior to the hearing, with sufficient time to spare relevant witnesses from preparing to give evidence, although the pleas were entered on the day of the hearing. (c) The offences are serious, but their gravity is not of a kind where a percentage-based approach might be considered inappropriate.

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

24. The offender’s subjective features were outlined in the Suitability Assessment Report, the contents of which has been accepted. In summary, he is a 34-year-old Wiradjuri and Kamilaroi man. He describes a positive childhood, largely due to the care and support of his mother, who raised him along with his six siblings. He maintains positive relationships with both of his parents, who separated when he was two years old, as well as with all of his siblings (all of whom appear to lead pro-social lives without the severity of drug use). His mother also gave evidence during the hearing, which I accept, of her ongoing support and ability and willingness to accommodate her son if he were sentenced to a Treatment Order.

25. The offender first started using drugs at a young age. There is some discrepancy among the reports and submissions of whether this was as young as 12 or 13 years old, but it does not influence the outcome here. His first contact with the criminal justice system occurred at age 23, which was during a period where the offender reported his drug use had become unmanageable.

26. The offender is currently single with no dependents. He says that his previous relationships have been affected by his substance use and contributed to instability in his life.

Criminal antecedents of the offender (s 33(1)(m) of the Sentencing Act)

27. The offender has a lengthy criminal history for similar offending. It disentitles him from leniency. In addition, he was on conditional liberty at the time of his offending. Although I accept that this is not relevant to the objective seriousness of the offending (see Smith v The Queen [2011] NSWCCA 163 at [26]), it does operate as a separate aggravating feature.

28. However, as submitted by the offender, the court must approach that feature of the offending with care to avoid double punishment: Kelly v Ashby [2015] ACTSC 346 at [61]. The offender’s parole was revoked as a result of the current offending, and he has now served his time for that breach of the conditional liberty. Financial circumstances of offender (s 33(1)(n) of the Sentencing Act)

29. The offender has been in custody for a significant period of time prior to sentence and the sentence to be imposed will leave him with little capacity to work at the outset, although from the evidence given in the witness box by the offender and his mother, he does have some capacity to work.

Whether offender was affected by alcohol or control drug (s 33(1)(p) of the Sentencing Act)

30. The offender was affected by what appears (from his comments to the report writers) to have been GHB. His drug addiction is addressed separately below.

31. His addiction also appears to be the underlying reason for the offending (s 33(1)(v) of the Sentencing Act) although this does not constitute any excuse.

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

32. The offender gave evidence in the witness box, from which I have inferred that he does have insight into his offending and accepts responsibility for it. Although the prosecution submitted there was little evidence of remorse, the offender drew attention to part of the Suitability Assessment Report which was before the court, where the following is recorded: Mr Rose expressed significant remorse and shame following the event, which influenced his decision to plead guilty to avoid viewing the associated closed-circuit television (CCTV) footage. He acknowledged that accepting the GHB was a critical error and referred to the experience as a “timebomb”. He further noted that during periods of substance use, he tends to disengage from familial relationships. Current sentencing practice (s 33(1)(za) of the Sentencing Act)

33. The prosecution and offender have referred to various authorities throughout their submissions. In addition to those already mentioned, I have been referred to DPP v Nurzynski [2024] ACTSC 176; DPP v Payne [2024] ACTSC 306; and DPP v Kay [2024] ACTSC 284 in respect of firearms offences. I have taken all these cases into account to ensure consistency in sentencing practice. The objective in doing so is for consistency in the application of principle, not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48]. Pre-sentence custody

34. While the offender has spent almost a year in custody since being arrested for the offences the subject of this proceeding, only 135 days of the time in custody are referrable to this offending. The balance of the time in custody is due to the offender’s New South Wales parole order being cancelled on 26 November 2024, and the offender serving his New South Wales term of imprisonment until 24 June 2025. The time that the offender has spent in custody will be taken into account by backdating the sentence, pursuant to s 63(1) of the Sentencing Act.

Totality

35. 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). The circumstances of this case warrant a substantial degree of concurrency due to the various offences all being charged during a single incident and arising out of the same facts. However, there does need to be a degree of accumulation to recognise the different criminality and separate offences.

36. I have also accepted the offender’s submission that any pre-sentence custody time served influences totality considerations (not just the time referrable to the index offending): see R v Elphick (No 2) [2015] ACTSC 23 at [91]-[92]; and DPP v Muell [2024] ACTSC 184 at [102].

Disposition – a Treatment Order should be made

41․ I have determined that disposition by way of a Treatment Order is the appropriate outcome.

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

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

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

40. As the prosecution submitted, the offender has not had the benefit of a rehabilitative program with an intensive structure before. The offender gave evidence that he considers the supervision and support that a court-supervised Treatment Order provides are necessary for him to manage his addiction. I am of the firm view that the long-term protection of the community will be promoted through the offender attempting to minimise his drug use and the drug-related criminal activity as a result.

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

42. I therefore conclude that a Treatment Order is the clear and obvious choice for this offender: s 12A(2)(b). It is not necessary to set a non-parole period because the making of a Treatment Order means that the sentence becomes an “excluded sentence of imprisonment” under s 64 of the Sentencing Act.

Orders

43. The orders of the Court are: (1) For the offence of trafficking in a controlled drug other than cannabis (methamphetamine), contrary to s 603(7) of the Code (CAN 11135/2024), the offender is convicted and sentenced to a term of imprisonment of 12 months, reduced to 10 months and five days on account of his guilty plea, backdated to commence on 7 June 2025 and conclude on 11 April 2026. (2) For the offence of possessing a prohibited firearm without licence or permit, contrary to s 42(1)(a)(iii) of the Firearms Act (CAN 2664/2025), the offender is convicted and sentenced to a term of imprisonment for 14 months, reduced to 11 months and 27 days on account of his guilty plea, to commence on 20 October 2025 and conclude on 16 October 2026. (3) For the offence of possessing a knife without reasonable excuse, contrary to s 382(1) of the Crimes Act (CAN 11133/2024), the offender is convicted and sentenced to a term of imprisonment for eight months, reduced to six months and 24 days on account of his guilty plea, to commence on 1 June 2026 and conclude on 24 December 2026. (4) For the offence of possessing ammunition for a firearm without licence or permit, contrary to s 249(1) of the Firearms Act (CAN 11316/2024), the offender is convicted and fined $250 with 12 months to pay. (5) For the offence of dealing with proceeds of crime, contrary to s 114C of the Crimes Act (CAN 11317/2024) the offender is convicted and sentenced to a term of imprisonment for 6 months, reduced to 5 months and 3 days on account of his guilty plea, to commence on 1 August 2026 and conclude on 3 January 2027. (6) The total effective sentence is one year, six months and 28 days, to commence on 7 June 2025 and conclude on 3 January 2027. Drug and Alcohol Treatment Order (1) A Treatment Order under s 12A of the Sentencing Act is made for Joe Daniel Rose in respect of the eligible offence of possessing a prohibited firearm without licence or permit (CAN 2664/2025) for which he has been convicted and for which he has been sentenced to a term of imprisonment of 11 months and 27 days. (2) The Treatment Order is extended to the following further eligible offences of: (a) Trafficking in a controlled drug other than cannabis (methamphetamine) (CAN 11135/2024) for which he has been convicted and sentenced to a term of imprisonment of 10 months and five days; (b) Possessing a knife without reasonable excuse (CAN 11133/2024) for which he has been convicted and sentenced to a term of imprisonment for six months and 24 days; and (c) Dealing with proceeds of crime, contrary to s 114C of the Crimes Act (CAN 11317/2024) for which he has been convicted and sentenced to a term of imprisonment for five months and two days. (3) The conviction and sentences imposed for the said eligible offences are hereby incorporated into the Treatment Order in the Custodial Part of the Order. (4) A Treatment Order is made for one year, two months and 15 days from today, 20 October 2025 to conclude on 3 January 2027. (5) The Treatment and Supervision Part of the Treatment Order is for one year from today, 20 October 2025 until 19 October 2026. (6) The Custodial Part of the Treatment Order for the eligible offence will be suspended under s 80W of the Sentencing Act from today, 20 October 2025, until 3 January 2027. (7) Under s 80ZA of the Sentencing Act, Mr Rose is required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Treatment Order, 20 October 2026, until the end of the total sentence that is the subject of the Treatment Order, 3 January 2027. (8) A probation condition is imposed that Mr Rose 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. (9) 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 Rose is to travel to Canberra Recovery Hub (CRH) on 20 October 2025 and admit himself to the drug rehabilitation day program at that facility by 12:00pm. (c) Mr Rose is directed to complete the drug rehabilitation day program at CRH 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 Rose 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) Mr Rose 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 Rose leave or be discharged from the program before completing it, he is to report to ACT Corrective Services by 4:00pm on the next business day with a view to having his Treatment Order reviewed. (g) Mr Rose is not to consume or use alcohol, cannabis, illicit drugs, or prescription drugs not prescribed to him. (h) Mr Rose is to comply with any directions of the court from time to time about attendance at court in person or by electronic means. (10) 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 forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: