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1. On 24 February 2026, Ali Al Kinani (the offender) pleaded guilty in the Magistrates Court to the following charges and was committed for sentence: (a) Count 1: obtaining financial advantage by deception, contrary to s 134.2(1) of the Criminal Code (Cth) (CAN 41529/2025); and (b) Count 2: using a forged document to influence a Commonwealth public official, contrary to s 145.1(1) of the Criminal Code (CAN 41533/2025).

2. The offender came before me for sentence hearing on 22 July 2026.

Two preliminary matters

3. At the sentence hearing, the offender’s counsel sought an eligibility assessment for a drug and alcohol treatment order (DATO) under s 12A of the Crimes (Sentencing) Act 2005 (ACT). The failure of the offender’s representatives to raise this matter prior to the date set for the sentence hearing, as it should have been, has occasioned considerable delay in this matter.

4. In any event, the Crown opposed this course, submitting that in respect of the federal offender, the Court did not have the power to make a DATO. Further, the Crown submitted, even if a DATO were available it should not be ordered, as the Court could not be satisfied in the terms of s 12A(2)(a)(ii) of the Sentencing Act that the offender’s dependency on alcohol or a controlled drug “substantially contributed to the commission of the offence”.

5. The first of these preliminary matters is the subject of this present ruling.

Is a DATO available for federal offenders?

The DATO provisions

6. Section 12A of the Sentencing Act provides: 12A Drug and alcohol treatment orders (1) This section applies if— (a) an offender pleads guilty to an eligible offence; and Note A reference to an offender in this section does not include a young offender (see s 8(1)(b)). (b) the Supreme Court convicts the offender of the eligible offence and sentences the offender to a term of imprisonment for— (i) if the offender is convicted of 1 eligible offence only—at least 1 year but not more than 4 years; or (ii) if the offender is convicted of more than 1 eligible offence—a total period of at least 1 year but not more than 4 years; and (c) the offender is not subject to a sentencing order for another offence. (2) The court may make an order (a drug and alcohol treatment order) that suspends a sentence of imprisonment for an eligible offence on condition that the offender agrees to complete a treatment program, but only if— (a) the court is satisfied on the balance of probabilities that— (i) the offender is dependent on alcohol or a controlled drug; and (ii) the offender’s dependency substantially contributed to the commission of the offence; and (iii) the offender will live in the ACT for the term of the sentence except as directed by the court; and (b) the court considers the order appropriate, taking into account— (i) the relevant sentencing considerations applying to the offender; and (ii) any information given to the court relating to the concerns of a victim about the victim’s safety or welfare; and (iii) the matters set out under section 80O; and Note Section 80O sets out the object of a drug and alcohol treatment order. (c) the offender gives informed consent to the order being made after the offender is given— (i) a clear explanation of the treatment order that contains sufficient information to enable the offender to make a balanced judgment about whether or not to consent to serve the sentence under the order; and (ii) an opportunity to ask any questions about the order, and those questions have been answered and the offender appears to have understood the answers. (3) A drug and alcohol treatment order, in suspending a sentence of imprisonment, must— (a) if the sentence is taken to have started on a day before the day the sentence is imposed—suspend the remaining part of the sentence beginning on the day the sentence is imposed; or (b) in any other case—fully suspend the sentence. (4) To remove any doubt–– (a) the offender must not be subject to more than 1 treatment order at any particular time; and (b) a treatment order may apply to more than 1 eligible offence dealt with in the same sentencing proceeding; and (c) sentences for multiple offences may be served concurrently or consecutively (or partly concurrently and partly consecutively), subject to subsection (1)(b). Note Words in the singular number include the plural (see Legislation Act, s 145(b)). (5) The court must not impose a lesser sentence of imprisonment on the offender than the circumstances of the offence would ordinarily require only to allow the court to make a treatment order. (6) If the court makes a treatment order, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender. (7) Failure to comply with subsection (6) does not invalidate the treatment order. (8) This section is subject to part 5.4A (Drug and alcohol treatment orders). Note A treatment order may not be made in relation to an offender who is under 18 years old (see s 46I). (9) In this section: eligible offence means an offence that is not— (a) a serious violence offence; or (b) a sexual offence. sentencing order means any of the following: (a) an order for imprisonment by full-time detention; (b) a suspended sentence order; (c) an intensive correction order; (d) a deferred sentence order; (e) a parole order; (f) an order under a law in force in Australia that corresponds to an order mentioned in paragraphs (a) to (e). serious violence offence means an offence against any of the following provisions of the Crimes Act 1900: (a) section 12 (Murder); (b) section 15 (Manslaughter); (c) section 19 (Intentionally inflicting grievous bodily harm); (d) section 20 (Recklessly inflicting grievous bodily harm). sexual offence means an offence against the Crimes Act 1900, part 3. treatment program—see section 80Z (1)(a).

7. Other sections of the Sentencing Act are relevant but will not be set out in full.

8. Section 46J provides that the court may order a drug and alcohol treatment assessment and adjourn the proceedings for the assessment to be prepared. This is what the offender requested in this case. The ordering of such an assessment is a necessary preliminary step in an offender obtaining a DATO. Section 80T provides that the court must not make a DATO unless the court has considered a drug and alcohol treatment assessment in respect of the offender.

9. Detailed provisions for DATOs are set out in Part 5.4A of the Sentencing Act. It is not necessary to refer to those provisions in detail save for s 80O, which provides: 80O Objects of drug and alcohol treatment orders The objects of making a treatment order in relation to an offender is to— (a) facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and (b) reduce the offender’s dependency on alcohol or a controlled drug; and (c) reduce the health risks associated with the offender’s dependency on alcohol or controlled drugs; and (d) assist with the offender’s integration into the community; and (e) promote community safety by reducing the level of criminal activity caused by alcohol or controlled drug dependence in offenders.

10. Under s 80V, a DATO must include a custodial part and a treatment and supervision part.

11. Section 80W provides for the custodial part of treatment orders: 80W Custodial part of treatment orders (1) A treatment order must include a part (the custodial part) that— (a) imposes a sentence of imprisonment of a term mentioned in section 12A(1)(b); and (b) suspends the sentence of imprisonment as mentioned in section 12A(3), unless the court under this part either provisionally cancels the suspension or cancels the treatment order. (2) Despite section 65 (Nonparole periods—court to set), the court must not set a nonparole period for a sentence of imprisonment imposed on an offender under the custodial part of the treatment order. (3) A sentence of imprisonment suspended under the custodial part is to be served by full-time detention at a correctional centre only if the court makes an order under this part cancelling the treatment order and imposing the sentence of imprisonment. Note The court may cancel a treatment order and sentence an offender to full-time detention or decide to resentence an offender to a different sentence including full-time detention (see s 80ZB, s 80ZD and s 80ZE). (4) If the court makes an order under this part cancelling the treatment order and imposing a sentence of imprisonment, the court— (a) must state when the period of full-time detention starts and ends; and (b) despite section 65, may set a nonparole period for the period of full-time detention if the period of full-time detention is more than 30 days. (5) Part 5.2 (Imprisonment—nonparole periods) applies to a nonparole period set under paragraph (4)(b) as if the nonparole period had been set under that part. Note Pt 5.2 deals with setting and review of nonparole periods.

12. Breach of DATOs is dealt with in s 80ZB, which provides a great deal of flexibility in the way in which the court may respond to breaches. Part IB of the Crimes Act 1914 (Cth)

13. This part makes provision for the sentencing imprisonment and release of federal offenders.

14. For present purposes the key section is s 20AB. This relevantly provides: 20AB Additional sentencing alternatives (1) A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if: (a) subsection (1AA) applies to the sentence or order; and (b) under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and (c) the first-mentioned court is: (i) empowered as mentioned in paragraph (b); or (ii) a federal court. (1AA) This subsection applies to a sentence or order that is: (a) known as any of the following: (i) an attendance centre order or attendance order; (ii) a community based order; (iii) a community correction order; (iv) a community custody order; (v) a community service order; (vi) a community work order; (vii) a drug or alcohol treatment order or rehabilitation order; (viia) a residential treatment order; (viii) a good behaviour order; (ix) an intensive correction order; (x) an intensive supervision order; (xi) a sentence of periodic detention or a periodic detention order; (xii) a sentence of weekend detention or a weekend detention order; (xiii) a work order; or (b) similar to a sentence or order to which paragraph (a) applies; or (c) prescribed for the purposes of this subsection. … (3) Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).

15. Failure to comply with an order made under s 20AB is dealt with in s 20AC. This section provides a mechanism for bringing before the court a person who is alleged to have failed to comply with an order made under subsection 20AB(1). The action the court can take is dealt with in subsection (6): (6) Where, in accordance with this section, a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) appears or is brought before the court by which the sentence was passed or the order was made, the court (whether or not constituted by the judge or magistrate who passed the sentence or made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions, may: (a) without prejudice to the continuance of the sentence or order, impose a pecuniary penalty not exceeding 10 penalty units on the person; (b) revoke the sentence or order and, subject to subsection (7), deal with the person, for the offence in respect of which the sentence was passed or the order was made, in any manner in which he or she could have been dealt with for that offence if the sentence had not been passed or the order had not been made and he or she was before the court for sentence in respect of the offence; or (c) take no action. The Judiciary Act 1903 (Cth)

16. An understanding of how the Judiciary Act operates is fundamental to the resolution of the present issue.

17. The offender in the present case has been charged with a federal offence, and thus the proceedings attract federal jurisdiction. Laws of the ACT cannot confer jurisdiction upon this Court to hear and determine these proceedings. Instead, this Court is vested by virtue of s 68(2) of the Judiciary Act with a “like jurisdiction” in respect of federal offences as it has in relation to ACT offences.

18. Section 68 provides: 68 Jurisdiction of State and Territory courts in criminal cases (1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for: (a) their summary conviction; and (b) their examination and commitment for trial on indictment; and (c) their trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith; and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section. (2) The several Courts of a State or Territory exercising jurisdiction with respect to: (a) the summary conviction; or (b) the examination and commitment for trial on indictment; or (c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

19. The exercise by this Court of the “like jurisdiction” in respect of federal offences is relevantly regulated by: (a) Laws of the ACT respecting the procedure for trial and conviction on indictment, which pursuant to s 68(1) “apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth”; and (b) Part IB of the Crimes Act 1914.

20. Territory sentencing laws were held in Putland v The Queen [2004] HCA 8; 218 CLR 174 at [4], [34] and [121] to come within the class of laws described by s 68(1).

21. As explained by Gageler CJ, Gleeson and Beach-Jones JJ in The King v McGregor [2026] HCA 3 at [16]-[19]: When engaged, s 68(1) operates by picking up and applying the text of the State and Territory laws ‘without change to [their] meaning’ so far as they are ‘applicable’ to persons who are charged with offences against a law of the Commonwealth. The appellant's submissions as to the limits on the extent to which s 68(1) picks up and applies the Sentencing Procedure Act were framed by reference to three ‘qualifications’ on the operation of s 68(1) described by Kiefel CJ, Gageler and Gleeson JJ in Attorney-General (Cth) v Huynh as follows. The first qualification is that s 68(1) does not pick up and apply the text of a State or Territory law to the extent that, in so applying that law as Commonwealth law, the State or Territory law is inconsistent with the Constitution or another Commonwealth law. Thus, in Putland it was held that Pt 1B (as Pt IB was then called) of the Crimes Act did not intend to "cover the field" or be "comprehensive" or "exhaustive" with respect to the sentencing of offenders who commit offences against a law of the Commonwealth. The second qualification is that, similar to s 68(2) of the Judiciary Act, s 68(1) picks up and applies State and Territory laws ‘by analogy’. The process of picking up and applying by analogy has been described as involving a ‘translation’ of the relevant State or Territory law but in a manner that leaves the law's meaning unchanged. Thus, for example, where s 68(2) operates upon a law that contains a reference to the ‘Attorney-General’ (for the State of New South Wales) having a right of appeal under the Criminal Appeal Act, that law can be ‘translated’ to include the Attorney-General of the Commonwealth as having that right. Similarly, a law upon which s 68(2) operates that contains a reference to the Director of Public Prosecutions (for Victoria) having a right of appeal under the Crimes Act 1958 (Vic) against sentence can be ‘translated’ to include the Attorney-General of the Commonwealth as having that right (with that right in turn capable of being exercised by the Commonwealth Director of Public Prosecutions. With the similarly worded aspect of s 79(1) of the Judiciary Act, references to ‘courts’ in State or Territory legislation can be taken to include references to federal courts and even specific references to State or Territory courts are capable of being ‘translated’ so as to include federal courts. The third qualification is that, where a particular provision of a State or Territory law is ‘an integral part of a State [or Territory] legislative scheme’, s 68(1) does not pick up some but not all of the scheme ‘if to do so would be to give an altered meaning to the severed part of the State [or Territory] legislation’. That is to say, s 68(1) ‘does not apply the text of a State or Territory law where to apply the text divorced from its State or Territory context would give that text a substantively different legal operation’. (Footnotes omitted.)

22. Before moving to the Crown’s arguments, it is worth noting the following. First, as noted in McGregor, in Putland the High Court specifically held that Part IB did not cover the field with respect to the sentencing of Federal offenders. As Gleeson CJ observed in Putland at [23], a conclusion that Part IB covered the field “depends upon a misunderstanding of its history, an exaggeration of its comprehensiveness, and the attribution to the legislature of a policy which cannot be discerned in the legislation”.

23. Secondly, it is striking how facilitative are the terms of s 20AB of the Crimes Act 1914. Subsection (1AA) specifically includes an order that is “known as…a drug or alcohol treatment order or rehabilitation order”. Then, subsection (3) provides that the provisions of the Territory law with respect to such a sentence “shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1)”.

The Crown’s arguments

24. Against that background, the Crown advanced a number of arguments that the provisions governing DATOs were inconsistent with Part IB of the Crimes Act 1914. Thus, it was argued, the provisions were not picked up by s 68(1) of the Judiciary Act.

25. First, the Crown argues that the objects of DATOs provided for in s 80O create “additional and inconsistent requirements” when deciding a sentencing order for a federal offender.

26. In response, the offender submits that the objects as identified in s 80O do not introduce any requirements, let alone inconsistent requirements. Section 80O simply sets out the purpose of the order.

27. I accept the offender’s submission. It is clear that when sentencing a federal offender the court must have regard to s 16A of the Crimes Act 1914. Section 80O does not interfere with that process.

28. The exact functioning of that process was considered by the New South Wales Court of Criminal Appeal in Vamadevan v The King [2024] NSWCCA 223 in relation to intensive corrections orders provided for under New South Wales legislation. Adopting what the Court said at [57] to the present case, the steps to be undertaken by a sentencing court before a DATO can be imposed on a federal offender under s 20AB(1) of the Crimes Act 1914 are as follows: 1. First, the sentencing court must be satisfied ‘after having considered all other available sentences’ that ‘no other sentence is appropriate in all the circumstances of the case’ other than a sentence of imprisonment: s 17A(1) [Crimes Act 1914]. 2. Secondly, the sentencing judge must ‘impose a sentence… that is of a severity appropriate in all the circumstances of the offence’: s 16A(1) [Crimes Act 1914]. 3. Thirdly, if none of the disentitling provisions contained in the [Crimes (Sentencing) Act 2005] apply, then the sentencing court may consider whether or not to impose [a DATO]. In doing so, the sentencing judge is obliged to consider the matters in s 16A of the Crimes Act [1914].

29. Secondly, the Crown submits that the requirement for a DATO to include a custodial component, which as described above is essentially the imposition of and suspension of a sentence of imprisonment, is fundamentally inconsistent with s 19AB and s 19AC of the Crimes Act 1914. Section 19AB provides that if the court imposes a head sentence for a federal offence or offences exceeding 3 years, it must fix a single non-parole period. Section 19AC provides that when the court imposes a sentence of imprisonment that does not exceed 3 years it must make a recognizance release order and must not fix a non-parole period.

30. The Crown argument on this point is that Part IB creates “an exhaustive regime prescribing how periods of incarceration are to be fixed” which leaves no application for Territory law in this field. The Crown relies on Hili v The Queen [2010] HCA 45; 242 CLR 520 at [22] where it was said: …it is to be observed that State and Territory provisions relating to the fixing of the period an offender must serve in prison, before being released, or eligible for release, are not picked up by s 68(1). Division 4 of Pt IB of the Crimes Act, concerning the fixing of non‑parole periods and the making of recognizance release orders with respect to federal offenders, makes exhaustive provision for the subject with which it deals. Because it makes exhaustive provision for that subject, State or Territory laws relating to the fixing of non‑parole periods are not picked up by, and therefore are not applied by, s 68(1) of the Judiciary Act.

31. This submission overlooks the fact that Part IB of the Crimes Act 1914 provides for the imposition of suspended sentences in s 20(1)(b).

32. More fundamentally, the availability of alternative sentencing options is provided for in s 20AB itself. It is s 20AB which confers the jurisdiction upon this Court when sentencing a federal offender. As the offender submits in the present case, ss 19AB and 19AC have no work to do in circumstances where an alternative sentence pursuant to s 20AB is imposed by the court. The terms of s 20AB are clearly facilitative, particularly subsection (3). The only express limitation in s 20AB is in relation to non-parole offences mentioned in s 19AG, which are not relevant to the present matter.

33. As the New South Wales Court of Criminal Appeal explained in Vamadevan whilst discussing the imposition of an intensive corrections order as provided by New South Wales legislation pursuant to s 20AB (at [32]): Section 20AB explicitly permits a sentencing court to make an order ‘of a kind’ identified in s 20AB(1AA). Section 20AB(1AA) includes an order ‘known as’ an intensive correction order, which is listed in paragraph (a)(ix). What an intensive correction order involves is given content by the relevant State or Territory law, specifically ss 70-73B of the NSW Sentencing Act. These provisions give the intensive correction order sentencing option under s 20AB(1AA)(a)(ix) its ‘colour and meaning’: Homewood v R [2023] NSWCCA 159 at [4] per Beech-Jones CJ at CL.

34. The same applies here, mutatis mutandis. Section 20AB specifically permits a sentencing court to make an order of a kind identified in in s 20AB(1AA), which includes an order known as “a drug or alcohol treatment order or rehabilitation order”. What that order involves is given content by the ACT Sentencing Act.

35. Of course, resort to State and Territory alternative sentencing options through the mechanism of s 20AB will mean that Federal offenders will be dealt with differently depending on the sentencing laws picked up by s 20AB in the jurisdiction within which they are dealt. But such variation is inherent in the way that s 68 of the Judiciary Act operates. As Gleeson CJ noted in Putland at [25]: The appellant submits that the application of s 52 of the Sentencing Act (and, no doubt, its South Australian counterpart) would result in constitutionally impermissible discrimination between federal offenders. This submission cannot stand with the decision of this Court in Leeth v The Commonwealth. Section 68 of the Judiciary Act reflects a permissible legislative choice, and one which, for a century, has resulted in some differences in the sentencing of federal offenders according to where they are sentenced. Section 68 applies State and Territory laws to important aspects of criminal proceedings in relation to federal offences. If State and Territory laws were all necessarily the same, then there would be little point in having State and Territory legislatures. (Footnotes omitted.)

36. Lastly, the Crown argues that the breach regime set out in s 80ZB has “no application” to a breach of a Commonwealth sentence as s 20AC provides the relevant mechanism.

37. In response the offender submits that the possibility of the local breach provision being inconsistent with the Commonwealth legislation does not mean that the court lacks power to impose the order in the first place. That submission is accepted. Again, a similar issue arose in Vamadevan. The Court there noted at [46] that it was the detailed provisions made by s 20AC of the Crimes Act which governed the consequences of a failure to comply with an order made under s 20AB(1). Those provisions were inconsistent with the NSW Sentencing Act provisions governing the same subject matter “in that the prescriptive federal regime requires breaches of an intensive correction order to be dealt with by a court, which has power by s 20AC(6) to revoke the order whereas the NSW Sentencing Act has its own prescriptive regime…”.

38. It is not presently necessary to decide what might happen in the context of a breach of a DATO imposed on a federal offender, but to the extent to which the ACT Sentencing Act provisions were inconsistent with s 20AC the latter would prevail. That does not mean that a DATO was not available in the first place.

39. Accordingly, I find that a DATO is an available sentencing option for a federal offender in the ACT. Accordingly I order that a drug and alcohol treatment assessment be obtained, and I will adjourn the proceedings of the assessment to be prepared.

Orders

40. The orders of the Court are: (1) A drug and alcohol treatment assessment be obtained for the offender. (2) The matter be adjourned to enable the assessment to be prepared.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice White. Associate: Date: