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Background

2. The offences the subject of the sentence order that has been breached were first dealt with by this court on 5 November 2021: R v Sheather [2021] ACTSC 290 (R v Sheather). Mr Sheather was sentenced for offences of aggravated robbery, aggravated burglary, common assault and damage property. The offending occurred in December 2020, and was offending that was committed while Mr Sheather was subject to a good behaviour order. Mr Sheather was sentenced to a total term of 37 months imprisonment, and was subject to a drug and alcohol treatment order.

3. The treatment order came to be cancelled in September 2022 (R v Sheather (No 2) (Supreme Court of the Australian Capital Territory, Refshauge AJ, 8 September 2022)), and Mr Sheather was then resentenced on 2 April 2024 (R v Sheather (No 3) [2024] ACTSC 86 (R v Sheather (No 3)). At the time of that resentencing, Mr Sheather had not reoffended. He was resentenced to a total term of 36 months imprisonment, partially suspended with a good behaviour order for a period of 28 months and six days.

4. On 16 December 2024, Mr Sheather returned to the court for a breach of the good behaviour order: DPP v Sheather (No 4) [2024] ACTSC 403 (DPP v Sheather (No 4)). He was not consistently complying with supervision and had committed a drug driving offence on 3 November 2024. ACT Corrective Services recommended that the supervision provision be removed, and imposition of the original sentence was not pressed. This reflected, while serious that there was a ‘breach of a breach’ (DPP v Sheather (No 4) at [8]), that the breach was not a serious example, and that Mr Sheather continued on a pathway of rehabilitation. Mr Sheather was resentenced to a suspended term of imprisonment with a good behaviour order for a period of two years, four months, and six days.

Breach

5. Now, Mr Sheather comes before the Court having engaged in a ‘breach of a breach of a breach’, and plainly not having continued on his pathway of rehabilitation. Rather, on 27 December 2024, 12 days after he was resentenced to a suspended term and good behaviour order, Mr Sheather committed serious offences. These were offences of aggravated dangerous driving and driving while disqualified.

6. It is also established on the material now available to the Court that on 15 December 2024, the day before Mr Sheather was resentenced, he committed an offence of aggravated dangerous driving. This does not form part of the current breach proceeding, the offending having occurred during the previous suspended sentence that is no longer extant due to the resentence exercise on 16 December 2024. Nonetheless, it is informative as to the Court’s understanding regarding prospects of rehabilitation at the time of resentence being misguided.

7. On 11 June 2025, Mr Sheather was sentenced in the Magistrates Court in relation to all of these offences. He was sentenced to a total term of seven months imprisonment, which concludes on 24 July 2025.

Resentence or imposition?

8. It is not in issue that there has been a breach of the suspended sentence and that accordingly the Court is to proceed pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act). That is, the Court must cancel the good behaviour order and either impose the suspended sentence imposed for the offence, or re-sentence the offender for the offence: s 110(2) Sentence Administration Act.

9. The suspended sentence imposed for the offence, at this time, is a period of two years, four months, and six days, being the suspended sentence of 16 December 2024. It appears, in contrast to what the provisions may to an extent provide in relation to imposition following cancellation of a treatment order (Allred v DPP [2025] ACTCA 25 (Allred v DPP) at [39]), that no fresh exercise of judicial power is available when proceeding pursuant to s 110(2)(a) of the Sentence Administration Act: Barron v Laverty [2019] ACTSC 198 (Barron v Laverty) at [65] (albeit, in Barron v Laverty, where the sentences were imposed, an eligibility date for parole was set in circumstances where the appellant was also resentenced for other offences).

10. Here, an order of imposition without scope for further orders under the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) appears, in accordance with the legislative provisions not providing any express or contrary intention, to apply even where the suspended sentence was one imposed following a resentence exercise, and where the original sentence imposed involved a drug and alcohol treatment order. It follows, with the parties unable to identify any authorities (in the time available) that have considered this issue, that the entire suspended sentence is imposed, with no further orders, such as parole eligibility or suspension, available or permitted.

11. Such an approach appears consistent with the legislature having seen fit to express only that the Sentencing Act is of application where there is a re-sentence: s 110(4) Sentence Administration Act. This suggests that even though s 64 of the Sentencing Act does not exclude the application of Pt 5.2 to an imposed sentence, sentencing options available under that Act, including a nonparole order, are not available.

12. Incidentally, this interpretation may also go some way to explaining why the legislature saw fit to include the “odd” or “curious” (Allred v DPP at [38]) subs (3) in s 80ZE of the Sentencing Act where a confined exercise on imposition (Allred v DPP at [39]) is permitted. In contrast to a typical imposition of a suspended sentence, the imposition of a treatment order sentence may need to reflect periods in custody during the treatment order, give effect to periods of positive compliance, and may appropriately enliven consideration of parole eligibility. In contrast, an application of s 110(2)(a) of the Sentence Administration Act simply involves imposition of the suspended sentence imposed for the offence.

13. The prosecution submitted that imposition of the original sentence is well within range, but acknowledged there were factors favouring resentence. In particular, that the further offending, while serious, is still less serious than the original offending and it is of a different character.

14. Further in favour of resentence at this time, the outcome submitted as appropriate on behalf of the offender, is that Mr Sheather remains committed to rehabilitation and has protective factors available in that regard. While in custody, he has engaged with the SMART recovery program. He has achieved sobriety. Upon his release from custody, he will have the continued support of his parents, including having housing and employment available with his father. His parents also intend to support him in managing his ADHD, including ensuring his medication is maintained. Mr Sheather himself has explained in letters to the Court the changes that he intends to put in place, with the time he has spent in custody having been spent thinking about the different future he wants. He desires to make his “family proud”.

15. As observed from the outset, a difficult decision has to be made. Mr Sheather is before the Court with respect to offences that occurred in December 2020, having breached the orders with respect to those offences with serious offending, but offending of a dissimilar nature. He has demonstrated since December 2020 an ability to progress with rehabilitation, and he remains committed to doing so. He continues to have available to him protective factors to support this. He has not though fully embraced the opportunities afforded to him and has breached orders by reoffending and, in the past, by noncompliance with supervision. There is a limit to the extent to which the Court can, and will, tolerate noncompliance with court orders. This is particularly so where there has been a flagrant breach by reoffending. In order for suspended sentences to be effective sentencing orders, there must be consequences upon a breach.

16. Nonetheless, I conclude that it would be disproportionate to the breach to impose the suspended sentence imposed for the offences. In so determining, I have had regard to the nature of the breaching offences, that a sentence of imprisonment has been imposed with respect to those, and that there has, since the original sentence was imposed, been some examples of positive progress with rehabilitation. There are also matters in Mr Sheather’s current subjective circumstances that warrant reflecting in the orders on this breach proceeding. The Court will engage in a re-sentence exercise of the offender: s 110(2)(b) Sentence Administration Act.

Resentence exercise

17. It is unnecessary to detail, again, the original offending, the subjective circumstances of the offender and other sentencing considerations, including as to the appropriate reduction for a plea of guilty. These have been considered in detail in R v Sheather, R v Sheather (No 3), and R v Sheather (No 4).

18. However, it is relevant to observe with respect to Mr Sheather’s current subjective circumstances, the information that was tendered on his behalf on this breach proceeding. In addition to the matters observed above at [14], Mr Sheather has experienced a traumatic incident while in custody on this occasion. This resulted in him being hospitalised. Mr Sheather’s mother explains her fear for the safety of her son, and that he has experienced significant depression and distress while in the custodial environment.

19. Nonetheless, the repeated nature of the breaches of community based orders does not engender confidence in Mr Sheather’s ability to comply with a community based order, including with supervision. These repeated breaches, in particular with the most recent example of further offending, elevate community protection in the resentence exercise. They also warrant recalling, as was observed in R v Sheather (No 4), that a continual drain on Corrective Services resources for no tangible benefit is not desirable. The prospect of non-compliance with supervision is such that a sentence order involving any form of supervision would be futile. Time in custody

20. While not all of the periods in custody are strictly related to the offences that were the subject of the original sentence decision, it is relevant in this matter to consider the totality of time that Mr Sheather has spent in custody since the offences were committed in December 2020. He has experienced a deterrent effect from this. The periods are:

Reason for custody Period Remand following original offences 74 days Remand from cancellation of treatment order 164 days Remand following November 2024 offence 1 day Remand and sentence following December 2024 offences 210 days Total: 449 days (~15 months)

21. In addition, as detailed in the previous proceedings, Mr Sheather has spent periods in ‘quasi custody’, being residential rehabilitation, as well as being subject to periods of stringent bail conditions.

22. Further, throughout this period, there have also been delays in finalisation of proceedings that are not attributable to Mr Sheather, but rather, reflect the progress of the matters in the court. During this time, Mr Sheather has had periods during which he demonstrated progress towards rehabilitation: R v Sheather (No 3) at [14]-[15].

Determination

23. At the time Mr Sheather was originally sentenced, all sentencing purposes were reflected in the sentencing order, and Mr Sheather was sentenced, having spent a short period of time in presentence custody, to a community based sentence order. This matter now comes to be considered some four years and seven months since the original offending, with Mr Sheather having spent not insignificant periods in custody and quasi custody in that time.

24. Further, in that time, Mr Sheather has served portions of the sentence as ordered by the Court, being some engagement with a treatment order, some periods in custody, and some periods in the quasi custody of residential rehabilitation, and with stringent bail conditions imposed. He has, in a sense, served not insignificant portions of the original order imposed on him, and he has experienced delay, during which he demonstrated rehabilitative progress, throughout the proceeding. He will experience hardship in the custodial environment. All of this is necessary to reflect in the resentence exercise. Further, in the circumstances of this matter, at this stage the court is, through a resentence exercise, more so reflecting sentencing purposes directed towards the repeated breaches that have occurred and giving effect to deterrence and denunciation of this.

25. I acknowledge that the sentencing orders I will impose far from reflect the seriousness of the original offending, including the harm caused to the victims. I also acknowledge that it is less than desirable to impose sentence orders that risk distorting current sentencing practice. Nonetheless, the just and appropriate outcome in this matter requires such an approach.

Orders

26. For those reasons the following orders are made: (1) The breach of the suspended sentence and good behaviour order made on 16 December 2024 is proved. (2) The sentence order of 16 December 2024 is cancelled and Daniel Nicholas Sheather is re-sentenced. (3) The conviction of Daniel Nicholas Sheather of aggravated robbery (CAN 1722/2021) is confirmed, and a sentence of four months and four days imprisonment is imposed, reduced from five months imprisonment on account of the plea of guilty, to commence on 23 July 2025 and conclude on 26 November 2025. (4) The conviction of Daniel Nicholas Sheather of aggravated burglary (CAN 14712/2020) is confirmed, and a sentence of three months and 18 days imprisonment is imposed, reduced from four months imprisonment on account of the plea of guilty, to commence on 23 July 2025 and conclude on 9 November 2025. (5) The conviction of Daniel Nicholas Sheather of common assault (CAN 14718/2020) is confirmed and he is sentenced to the rising of the court. (6) The conviction of Daniel Nicholas Sheather of damage property (CAN 14715/2020) is confirmed and he is sentenced to the rising of the court. (7) The total sentence of imprisonment is one of four months and four days, to commence on 23 July 2025 and end on 26 November 2025.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 23 July 2025