DPP v Whittaker [2025] ACTSC 441

1. Shane Jeffrey James Whittaker is before the court having pleaded guilty to one indictable offence and four summary offences transferred to the Supreme Court.

2. The indictable offence is one count of dishonestly drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT) (Criminal Code) (CAN 2424/2024). The maximum penalty for the drive stolen motor vehicle charge is $80,000, 5 years’ imprisonment, or both.

3. The transferred charges are: Reference number Offence Max. Penalty CAN 2419/2024 Possession of more than a small quantity of $8,000 fine, drug of dependence, contrary to s 169(2) of six months’ the Drugs of Dependence Act 1989 (ACT). imprisonment, or both. CAN 2420/2024 Drive while disqualified, contrary to s 32(1)(a) $16,000 fine, of the Road Transport (Driver Licensing) Act 12 months’ 1999 (ACT) (Driver Licensing Act). imprisonment or both. 24-month minimum disqualification period. CAN 2423/2024 Drive with prescribed drug in oral fluid, $1,600 fine. contrary to s 20(1) of the Road Transport Automatic (Alcohol and Drugs) Act 1977 (ACT) disqualification (Alcohol and Drugs Act). for three months. CAN 7541/20244 Possess knife without reasonable excuse, $1,600 fine, contrary to s 382(1) of the Crimes Act 1900 six months’ (ACT) (Crimes Act). imprisonment, or both.

4. In respect of the drug drive offence, s 84A of the Legislation Act 2001 (ACT) applies, which gives the offender the benefit of any lower penalty, if the relevant penalty for the offence is increased before sentence.

5. Upon conviction for these offences, the offender will be in breach of two good behaviour orders that had previously been imposed on 22 September 2023 in the Magistrates Court for separate offences. All of the offending the subject of this sentence occurred within the period of the good behaviour orders.

Facts

6. The offences arose out of conduct on 23 February 2024. The offender was riding a Yamaha motorcycle and was approaching a random breath testing site on Athllon Drive in Greenway at about 2:37pm. Police saw the offender do a U-turn on the motorcycle before arriving at the site, by mounting the raised medium strip and driving back along Athllon Drive. Police immediately acted to search the area to stop the motorcycle. They located the offender at about 2:50pm, driving on the footpath. The offender continued riding, then travelled onto a green belt at the end of a road (classified as a road-related area) for about 100m before the motorcycle slipped and collided with a garden bed. The offender attempted to run from police but was directed to get on the ground and place his hands behind his back. He complied, was arrested and tested for alcohol and drugs. He returned a positive for what was later analysed to be methylamphetamine.

7. The offender told police he was riding his friend’s motorcycle and that he was carrying his friend’s backpack. In the offender’s riding jacket, the police located a sizeable black single-edged folding knife. In the backpack was a small satchel carrying a substance which was later analysed to be methylamphetamine. The motorcycle was subsequently confirmed as being stolen.

The court’s task

8. The offender is to be sentenced in accordance with the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), and the mandatory relevant considerations set out in s 33 of the Sentencing Act, insofar as they are relevant. The principle of individualised justice also applies, as to which see: 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)

Drive without consent

9. Applying the general principles set out in DPP v Brymer [2025] ACTSC 430 at [25]-[26] and having regard to the features discussed at [50], the features relevant to the drive without consent are as follows: (a) The offender rode the vehicle for at least 13 minutes. The nature of the driving involved mounting a median strip, doing a U-turn to avoid detection through random breath testing and riding on a green belt at the end of a cul-de-sac. The driving was not the subject of a separate charge. (b) There was no damage reported to the vehicle and it was recovered. (c) The vehicle was used in the commission of other criminal activity, namely the drive while disqualified and drive with prescribed drug in oral fluid offences. That increases the objective seriousness of the offending, but as the prosecution accepted, the circumstances are less serious than (for example) if the vehicle was used to facilitate a robbery.

10. Taking those features into account, the conduct falls at the lower end.

Drive disqualified as a repeat offender

11. The offence itself is of less objective seriousness, as indicated by the maximum penalty. The fact that this was a repeat offence is an element of statutory aggravation and does not separately increase the seriousness of the offence. The other features of the driving overlap with those discussed above.

Drive with drug in oral fluid

12. The offender had one prescribed substance (methylamphetamine) in his oral fluid. This was a first offence. It is a low-level example.

Possession of knife without reasonable excuse

13. The knife was discovered as part of a search and I accept this is a typical example of offence that in the circumstances, was also of low-level objective seriousness.

Possess more than a small quantity of drug of dependence

14. The offender possessed 1.927 grams of methylamphetamine. I accept the prosecution’s submission that this is a typical example of offending of this type. Victim impact statements (s 33(1)(f) of the Sentencing Act)

15. No victim impact statements were before the court.

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

16. The court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offences: s 35(3) of the Sentencing Act. It is necessary to consider the particular circumstances in which the pleas were entered, including the statutory matters set out in s 35(2) of the Sentencing Act.

17. Here, the offender pleaded guilty to the charges after successful plea negotiations and after a brief of evidence had been prepared. Some of the statutory considerations have been addressed separately elsewhere in these reasons, such as the seriousness of the offences. Utilitarian value is a primary consideration: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]; and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49]. There was utilitarian value for each of the pleas here.

18. The applicable discount for a guilty plea is a matter of discretion: Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]. While there is no tariff, guiding principles have been set out in R v Nicholas; R v Palmer [2019] ACTCA 36 at [49]-[53]. Here I have accepted that in all the circumstances, a discount of 20% is appropriate.

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

19. The offender is now in his mid-late thirties. Without detailing what is contained in the reports before the court, I accept he had a socially disadvantaged upbringing, and I have taken that into account. I consider that Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) factors apply to the offending, in the sense of reducing his moral culpability to some extent.

20. The offender also has a number of mental health challenges for which he fortunately is receiving treatment. He does currently have the support of his mother and his partner (as indicated by her letter to the court).

21. The offender’s criminal antecedents are substantial and similar to the offending here. They disentitle him to leniency. The fact that the offending occurred while he was on conditional liberty is a circumstance of aggravation and creates a tension with the application of the Bugmy factors in terms of moral culpability.

22. The offender has employment as a tiler and is undertaking further study. He has some capacity to earn and therefore to pay a fine (s 33(1)(n) of the Sentencing Act), although he will need time to pay. Probable effect of any sentence/order on the offender’s family/dependants (s 33(1)(o) of the Sentencing Act)

23. The offender is the father of three children, aged 13, eight and six. His eldest child has special needs, including a diagnosis of autism. The 13-year-old has been in Mr Whittaker’s full-time care (along with his partner) since the age of 10. His two younger children have resided with his mother in Googong since their birth.

24. I accept that a sentence of imprisonment would create particular challenges in respect of him being the primary carer for his eldest child.

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

25. The offender was affected by methamphetamine at the time of the offences. However, as this is an element of one of the offences, it does not arise for separate consideration on gravity.

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

26. There is some remorse evident among the engagement between the offender and the report writers.

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

27. The prosecution drew the court’s attention to the cases of R v Bower (No 2) [2022] ACTSC 388; R v McColl [2022] ACTSC 386; R v Subasic [2022] ACTSC 380; R v Ware (No 2) [2021] ACTSC 360 and R v Rosewarne [2021] ACTSC 217. The defence did not rely on any cases but I have taken the cases discussed above into account, noting that considerations given to sentencing practice have the objective of achieving consistency in principle, not of binding 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]. The offending here generally constituted typical examples of relatively common offences, and there was no one sentence that I singled out as being directly comparable.

Pre-sentence custody

28. The offender has spent two days in custody referable to this offending. This time will be taken into account pursuant to s 63 of the Sentencing Act.

Totality

29. 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). In the present case, the offences under consideration may properly be viewed as being part of a course of conduct (s 33(1)(c) of the Sentencing Act), and a significant amount of concurrency arises as a result.

Disposition

30. The imposition of a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act. I consider a fine remains appropriate for the drug drive offence. In respect of the other offences, the offender accepted that the threshold was crossed, and the issue is really the length of those sentences and the manner in which they are to be served.

31. There is a difficulty here, in that the offender has been found unsuitable for a Drug and Alcohol Treatment Order. Having read the reports, I accept that opinion. However, the reason for the unsuitability is because the offender has already completed a residential and day program at Directions Arcadia House. He reported that he had remained abstinent since commencing the programs in October 2024. He has attended Narcotics Anonymous and Alcoholics Anonymous on a regular basis. He remains engaged with his long-term counsellor and has felt a positive effect from his treatment.

32. This offender has, in effect, undertaken his own drug and alcohol treatment order while awaiting sentence. Voluntary treatment for matters that may have contributed to the offence is a relevant consideration under s 33(1)(t) of the Sentencing Act. He is to be commended for that. He has been found suitable for an intensive corrections order (ICO), however that outcome very much depends upon the outcome of the breaches of good behaviour order.

Breach of Good Behaviour Order – should the order be cancelled or the suspended sentence imposed?

33. The critical matter affecting the sentencing considerations is the fact that upon conviction, the offender will be in breach of two good behaviour orders, each imposed by way of a suspended sentence on 22 September 2023. The offending in each case involved driving while disqualified (CAN 807/2014; CAN 3104/2023). In each case, a total of three months’ imprisonment was imposed.

34. I have recently discussed the applicable principles in DPP v Rohrlach (No 2) [2025] ACTSC 192 at [9]-[16]. Applying those principles here, although I expressed a preliminary view at the hearing that I was minded to cancel the good behaviour orders and resentence, having now a greater appreciation of the history of those sentences, I have decided that it is appropriate to impose the sentences that were previously suspended.

35. As submitted by the prosecution, the offender had served five months and two days of his good behaviour order prior to 23 February 2024 when the offending occurred. This was a low proportion of the terms imposed, being 18 months and 24 months respectively.

36. It is apparent that little rehabilitation had been achieved at the time of the breaches. The prosecution drew attention to the community service condition that had been imposed, which the offender consistently failed to attend.

37. The offending conduct is of the same nature as the conduct for which the offender received the suspended sentences.

38. The breach itself consists of further offending. That is of a nature serious enough that it would not be disproportionate to impose the sentences that were suspended.

39. The conduct constituting the breach evinces a clear intention to disregard the fact of the orders. It cannot be said that the offender did not understand that further offending would be a breach of his obligations under the terms of the good behaviour order.

40. Further, the offender’s history of receiving good behaviour orders which have then been breached is relevant when considering the extent of judicial and community resources previously devoted to him. What I had not appreciated at the hearing when I indicated I was leaning towards an ICO was that the drive while disqualified conduct in January 2014 (CAN 807/2014) has already been the subject of resentence for breach on 22 September 2023. There comes a point where the principled exercise of the discretion means that the court really has no other option but to now impose that sentence.

41. All of those features amount to a clear case where the suspended sentences, each for a period of three months, must be imposed.

42. Regrettably, this means the ICO for which the offender was found suitable will become unavailable, because an ICO has been excluded as part of any combination sentence: see s 29 of the Sentencing Act. Even without the consequences arising from the breach of two good behaviour orders, having properly digested the full criminal history, I accept the prosecution’s concerns about the offender’s apparent ongoing inability to comply with orders that are imposed upon him. Long periods requiring compliance, whether under good behaviour orders or an ICO, are setting him up to fail.

43. Principles of totality arise for consideration when the outcome of these two additional sentences is factored in. Adjustment has been made for total concurrency in that regard, notwithstanding that the original drive while disqualified offences occurred years apart. By way of explanation for that adjustment, my view is that the criminality of one sentence is substantially comprehended by the sentence imposed for the other. In addition, the rehabilitative steps that have since been undertaken following the imposition of those sentences and the breach conduct, while not sufficient to avoid imposition of the term of imprisonment, nevertheless are matters affecting the length of time that must then be served for those sentences when they are ultimately imposed.

44. For this offender, a short period in full-time custody referable entirely to the breaches of the good behaviour orders is likely to have a significant specific deterrent effect and be proportionate to the level of criminality that the court is dealing with here. I emphasise that no one wants to send a person in the offender’s position to full-time custody. He is a person who has experienced significant disadvantage in his childhood, who has belatedly achieved a degree of rehabilitation, who has particular mental health considerations and importantly, in my view, the primary care of a child who has their own significant challenges. Disconnecting him from family, employment, his counselling routine and potentially his study have all weighed heavily in attempting to craft a sentence that properly reflects all the sentencing objectives and strives not to undo the rehabilitation that has been achieved to date.

45. However, the offender has been given opportunity after opportunity to manage his behaviour with regard to his driving history. The integrity of the justice system depends upon those who breach orders being held to account, even with the strong subjective case that I accept the offender has. General deterrence and denunciation cannot be ignored. Unfortunately for him, this offender’s consistent breaches of court orders and disqualification periods has reached a point where full-time custody is regrettably the only proper course. I have borne in mind that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30]. That is achieved by the outcome of the exercise of discretion under s 110 of the Sentencing Act for the previously suspended sentences. I will therefore fully suspend the terms of imprisonment for the offending on 23 February 2024, so as to result in the full-time custodial component being the minimum period that will accomplish each of the sentencing considerations discussed above.

46. In terms of the disqualification periods prescribed in s 30 of the Alcohol and Drugs Act (6 months) and s 32(5)(b) of the Driver Licensing Act (24 months), I will not alter those default or automatic periods, but I will make an order that each of the disqualification periods run concurrently pursuant to s 69 of the Road Transport (General) Act 1999 (ACT) (General Act). The disqualification period applying upon conviction for the offending that was dealt with in the Magistrates Court on 22 September 2023 (which was the subject of one of the good behaviour orders) has now expired. Orders

47. The orders of the Court are: (1) For CAN 807/2014, the offence of drive while disqualified, pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), the good behaviour order is cancelled, and the sentence of imprisonment of three months is imposed, to commence on 27 September 2025 and conclude on 26 December 2025. (2) For CAN 3104/2023, the offence of drive while disqualified, pursuant to s 110 of the CSA Act, the good behaviour order is cancelled, and the sentence of imprisonment of three months is imposed to commence on 27 September 2025 and conclude on 26 December 2025. (3) For CAN 2424/2024, drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code, the offender is convicted and sentenced to a term of imprisonment of 10 months, reduced to eight months on account of his guilty plea, to commence on 27 November 2025 and conclude on 26 July 2026. (4) For CAN 2420/2024, drive while disqualified, contrary to s 32(1)(a) of the Driver Licensing Act, the offender is convicted and sentenced to a term of imprisonment for five months, reduced to four months on account of his guilty plea, to commence on 1 April 2026 and conclude on 31 July 2026. (5) For CAN 2423/2024, drive with prescribed drug in oral fluid, contrary to s 20(1) of the Alcohol and Drugs Act, the offender is convicted and fined $400 with 12 months to pay. (6) For CAN 7541/2024, possess knife without reasonable excuse, contrary to s 382(1) of the Crimes Act, the offender is convicted and sentenced to a term of imprisonment of one month, to commence on 1 July 2026 and conclude on 31 July 2026. (7) For CAN 2419/2024, possession of more than a small quantity of drug of dependence, contrary to s 169(2) of the Drugs of Dependence Act 1989 (ACT), the offender is convicted and sentenced pursuant to s 13 of the Sentencing Act to a good behaviour order for a period of six months, to commence on 26 December 2025 and conclude on 25 June 2026. (8) The total term of imprisonment of 10 months and five days is suspended from 26 December 2025, upon the offender entering into a good behaviour order for eight months, to commence on 26 December 2025 and conclude on 25 August 2026 with the following conditions: a. Undertake (in writing) to comply with the Good Behaviour obligations specified in s 85 of the CSA Act; b. An additional probation condition to 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 c. Obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment. (9) Pursuant to s 30 of the Alcohol and Drugs Act, s 32(5)(b) of the Driver Licensing Act and s 69 of the General Act, for CAN 2420/2024 and CAN 2423/2024, the offender’s driver’s licence is automatically disqualified for a wholly concurrent period of 24 months, from 29 September 2025 to 28 September 2027.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: