DPP v Scott

1. Brett Scott (the participant) is before the court following a withdrawal of consent from continuing with a drug and alcohol treatment order (Treatment Order) which was made on 26 November 2024 by Baker J: DPP v Scott [2024] ACTSC 378.

2. At the time the Treatment Order was imposed, the participant had been sentenced in respect of one count of joint commission aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT), by virtue of s 45A of the Code (CAN 541/2024). He was sentenced to a term of imprisonment for two years and three months, which was backdated to commence on 3 May 2024 and expire on 2 August 2026. The remaining one year, eight months and eight days of the sentence was imposed by way of a Treatment Order with two components, the first being treatment and supervision for 12 months, and the second being a good behaviour order following completion of the treatment and supervision component.

3. While the original sentence envisaged that the participant would be well into the good behaviour part of the Treatment Order by this point, the participant’s progress on the order has not proceeded in the manner anticipated. That circumstance has been partially a product of choices made by the participant, however it must be acknowledged that some of the difficulties have been matters outside his control, including the unavailability of suitable residential rehabilitative programs and the lack of accommodation due to a fire that occurred to the premises he was renting. This has meant that instead of progressing under the Treatment Order, he has in fact now served a substantial part of the sentence in custody. While in custody, he did complete eight weeks of the 12-week Solaris programme.

Power to cancel the Treatment Order

4. Among the list of matters enlivening the court’s discretionary power to cancel a treatment order is the circumstance where an offender withdraws their consent to the treatment order: s 80ZE(1)(e) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Following a review on 27 March 2026, for various reasons related to the history of the order, which was not straightforward, I was satisfied on the balance of probabilities that this was the case.

5. If the court decides to cancel a treatment order under s 80ZE(1), the court must make an order cancelling the treatment order and then, taking into account the extent to which the offender has complied with the treatment and supervision part of the order, either impose the sentence of imprisonment that was suspended under the custodial part of the treatment order or resentence the offender, if the court considers it appropriate, albeit the option of a treatment order is no longer available: s 80ZE(2) of the Sentencing Act.

The offender should be resentenced

6. I have recently discussed the principles guiding the exercise of discretion in DPP v Booth (No 3) [2026] ACTSC 79 at [10]-[11]. The circumstances guiding the exercise of discretion include the mandatory consideration of the extent to which the offender has complied with the treatment and supervision part of the order and the uncommon factual circumstances pertaining to this participant outlined above. This is a case where it is appropriate to resentence.

The court’s task on resentencing

7. The court’s task in resentencing the offender is the same as the process engaged when the offender was initially sentenced, with consideration given to the sentencing purposes set out in s 7 of the Sentencing Act, the mandatory relevant considerations set out in s 33 of the Sentencing Act and the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 at [56].

8. For the purposes of resentencing, the court had before it the material that was before Baker J, the participant’s history of what occurred during the Treatment Order and additional material relied upon by the participant in the form of a letter from the Ngunnawal Bush Healing Farm, indicating that he has secured a place in their next programme commencing on 22 April 2026.

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

9. A consideration of the nature and circumstances of the offence includes an assessment of the objective seriousness of the offence. I have set out my understanding of the principles guiding that assessment in previous cases, with DPP v Brymer [2025] ACTSC 430 at [25]-[26] being an example. The court takes an objective approach, with proportionality to the seriousness of the offence in mind and the maximum penalty for the offence as a yardstick.

10. The factors that inform the character of an offence’s objective seriousness (The Queen v Miller [2019] ACTCA 25 at [22]; Laipato v The Queen [2020] ACTCA 35 at [156]) were set out in Scott at [103]-[104]. Having read the material, I adopt Baker J’s assessment. Subjective features (s 33(1)(m) of the Sentencing Act)

11. I also adopt without repeating the participant’s background, criminal history and challenges as discussed in Scott at [19]-[32] and the further consideration given at [107]- [108]. In particular, the offender’s mental health challenges affect his ability to reintegrate into the community. But if he can overcome those challenges, he has all the makings of a contributing member of society. He has been a regular mentor while in custody, most recently in the form of a peer listener, and he has looked after family members, at times in preference to his own interests. He is still committed to rehabilitation and still dealing with drug use, which was related to the offending (s 33(1)(v) of the Sentencing Act) as seen from the facts of the offending (Scott at [6]-[16]) and the offender’s attribution of the offending to heavy alcohol use at the time (Scott at [106]), as well as the factual finding that drug dependency substantially contributed to the commission of the offence: Scott at [121].

12. The participant still requires ongoing intervention by way of psychological support and drug and alcohol rehabilitation.

Victim impact statements and injuries from offending (ss 33(1)(e) and (f) of the Sentencing Act)

13. As recorded by Baker J, the victim impact statement described lingering effects which the offending had upon the victim, which included an ongoing psychological injury in the form of post-traumatic stress disorder, for which the victim was seeking support: Scott at [18].

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

14. The offender’s plea of guilty enlivens discretionary considerations to apply a discount, with consideration given to the statutory matters set out in s 35(2) of the Sentencing Act, some of which have been set out above. Given the high utilitarian value here, it is appropriate to similarly adopt the 25% discount applied in Scott at [113].

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

15. Baker J accepted that the offender’s remorse was genuine: Scott at [31]. There has been no evident change to that attitude since the original sentence.

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

16. The sentencing practice was discussed in the initial sentence that was imposed: Scott at [114]. Given the frequency with which aggravated robbery is committed, the features of the offending vary, but it is apparent that a sentence where a significant period of full-time custody is served is a fairly typical outcome. In addition, there are parity considerations arising from the other co-offenders now having been sentenced by reference to the initial sentence that was imposed with regard to this participant.

Pre-sentence custody

17. The participant had the benefit of a backdated sentence of 206 days to take into account the time that he had spent in custody up to the point of the original sentence. Since that period, the participant has spent a further 377 days in custody, which in this case it is appropriate to take into account, treating it as time in custody prior to the resentence.

Disposition – a sentence of imprisonment remains appropriate

18. Taking into account the sentencing purposes, it is clear that a sentence of full-time imprisonment remains appropriate and that will be imposed. However, given the substantial period of time that has been served, the objectives of punishment and denunciation as well as general deterrence have been achieved, as has the recognition of harm to the victim. There have been rehabilitative attempts that have been made in the meantime and that will continue, but the sentencing objective that requires the greatest weight at this point is how best to protect the community going forward.

19. It is here that the court has a distinct advantage in having worked with the participant over many months. My view is that he is able to survive and sustain more stable mental health and abstinence from substances in a custodial environment (accepting that currently the fact of custody does not appear to be any barrier to access to such substances). It is when he is in the community without structure and routine as a form of support that his mental health deteriorates and the lapses turn into relapses and ultimately disengagement. From what I have seen while administering the Treatment Order, there is some evidence that he is institutionalised.

20. The preferable course is not to deal with the remainder of the sentence by way of parole, in circumstances where the application process itself and its determination may absorb the remaining critical time that could be devoted to attempting successful reintegration. Suspending the remaining portion of the sentence with targeted conditions and close supervision to assist with setting him up to succeed in the community is the more appropriate option.

21. By way of addressing the requirements of s 96 of the Sentencing Act, I am satisfied that there is a rehabilitation program suitable for the offender in the form of the Bush Healing Farm and that it is appropriate for the offender to undertake that program. The evidence established that it is available to this participant in three weeks. I will craft the sentence so that he has a short period in the community to settle and move into his newly available accommodation before then getting involved in the structured support that will provide.

22. In terms of psychological support, I recommend that he take full advantage of any service able to be accessed through Corrective Services while subject to a good behaviour order, to set himself up with a mental health plan and strategies for coping in the community.

Orders

23. The orders of the Court are: (1) For the offence of joint commission aggravated robbery (CAN 541/2024), the conviction of Brett John Scott is confirmed and a term of imprisonment is imposed for two years and three months, backdated by 583 days, to commence on 25 August 2024 and expire on 24 November 2026. (2) The sentence is suspended from 31 March 2026 on the condition that the offender enter into a good behaviour order for the remainder of the sentence (1 April 2026 to 24 November 2026) including the following conditions: (a) He is to undertake to comply with the core conditions pursuant to ss 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT). (b) A rehabilitation program condition (pursuant to s 13(4)(c) of the Sentencing Act) that the offender commence and complete an appropriate rehabilitation program by a recognised service provider. (c) A supervision condition (pursuant to s 13(4)(g) of the Sentencing Act) that the offender is to report to ACT Corrective Services on or before 4pm on Wednesday 1 April 2026 and thereafter to submit to the supervision of the Director-General responsible for administering the sentence or their delegate for as long as deemed necessary, including to comply with any directions targeted at counselling support or supporting the offender’s abstention from controlled substances, such as urinalysis.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: