R v Donnelly

1. Daniel Donnelly is before the Court for finalisation of a review proceeding of a drug and alcohol treatment order (treatment order): s 80ZH of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). At this stage, the Court is determining the appropriate course following cancellation of the order. That is, whether to impose the suspended portion of the treatment order, or whether to resentence Mr Donnelly.

2. It is necessary to firstly closely consider the procedural background in this matter, and then to set out the reasons for an earlier decision that the Court has power to conduct a review of a treatment order that was subject to a warrant pursuant to s 80ZJ of the Sentencing Act.

3. I will then turn to considering the appropriate outcome in the review. The prosecution submission is that while imposition would typically be appropriate in the circumstances that arise here, the principle of totality, where Mr Donnelly has in the interim period served a substantial period of time in New South Wales (NSW) custody, is such that a resentence exercise is necessary. A resentence exercise was also sought on behalf of Mr Donnelly.

Background

4. On 23 June 2021, Mr Donnelly was sentenced in the Supreme Court in respect of thirteen offences committed on 25 and 26 December 2019.

5. These offences were contrary to the Criminal Code 2002 (ACT) (Criminal Code), the Public Order (Protection of Persons and Property) Act 1971 (Cth) (Public Order Act), the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act) and the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Safety and Traffic Management Act).

6. The offences and sentences imposed were follows: Offence Maximum penalty Sentence imposed Aggravated burglary 20 years imprisonment, 18 months s 312 Criminal Code 2000 penalty units or both imprisonment Ride motor vehicle without 5 years imprisonment, 6 months consent 500 penalty units or both imprisonment s 318 Criminal Code Aggravated burglary 20 years imprisonment, 2000 18 months s 312 Criminal Code penalty units or both imprisonment Theft 10 years imprisonment, 1000 12 months s 308 Criminal Code penalty units or both imprisonment Damaging property 10 years imprisonment, 1000 12 months s 403 Criminal Code penalty units or both imprisonment Attempted take motor vehicle 5 years imprisonment, 12 months without consent 500 penalty units or both imprisonment s 318 Criminal Code Obtain property by deception 10 years imprisonment, 1000 6 months s 326 Criminal Code penalty units or both imprisonment Take motor vehicle without 5 years imprisonment, 12 months consent 500 penalty units or both imprisonment s 318 Criminal Code Take motor vehicle without 5 years imprisonment, 12 months consent 500 penalty units or both imprisonment s 318 Criminal Code Trespass 10 penalty units Good behaviour order s 11(1) Public Order Act 9 months Aggravated dangerous driving 3 years imprisonment, 6 months s 7(1) Safety and Traffic 300 penalty units or both imprisonment Management Act Driving while disqualified 6 months imprisonment, 50 6 months s 32(1) Driver Licensing Act penalty units or both imprisonment Trespass 10 penalty units Good behaviour order s 11(1) Public Order Act 12 months

7. The total sentence of imprisonment was one of four years: R v Donnelly [2021] ACTSC 336 (R v Donnelly). Having regard to the time spent in presentence custody, the sentence commenced on 8 January 2020.

8. A treatment order was made in respect to all of the offences for which a term of imprisonment was ordered. The treatment and supervision part of the order was for two years, from 23 June 2021 until 22 June 2023. The remainder of the custodial part suspended under the treatment order involved Mr Donnelly being subject to a good behaviour order. The totality of the treatment order sentence was to be until 7 January 2024. Engagement with the treatment order

9. In accordance with the treatment order, Mr Donnelly was required to engage with a residential rehabilitation program. He did not successfully engage. His treatment order came to be first provisionally cancelled on 28 June 2021 until 7 July 2021. He was granted a further opportunity to engage with residential rehabilitation. This was not sustained and on 6 August 2021 a warrant was issued for his arrest.

10. On 10 August 2021 Mr Donnelly made contact with the treatment team and indicated he wished to hand himself into the Court. He did not attend as arranged, and the warrant for his arrest remained in place. On 22 August 2021, the warrant was executed, and Mr Donnelly appeared before the Court the following day. A residential rehabilitation program remained willing to accept Mr Donnelly, and he was released from custody to enable that to occur. He was scheduled, in accordance with his treatment order, to appear before the court on 27 August 2021. He did not appear, and a further warrant, pursuant to s 80ZJ of the Sentencing Act, was issued for his arrest.

Events post warrant

11. On 10 September 2021, Mr Donnelly committed offences in NSW of attempted robbery while armed with a dangerous weapon and possessing an unauthorised pistol. On 11 August 2023 he was sentenced by the Nowra District Court to a total period of 4 years and 6 months imprisonment, with a nonparole period of 2 years and 6 months. The nonparole period expired on 10 June 2024 and he came to be released on parole by NSW authorities.

12. On 12 July 2024, Mr Donelly handed himself in to the ACT Supreme Court, following this release on parole. He was under the supervision of the NSW parole authorities, was engaging well with Yeddung Mura, and had available stable housing with his mother. The warrant was withdrawn, and he was not returned to custody pending a review proceeding relating to the treatment order. The matter was listed for further hearing on 15 August 2024.

Status of treatment order

13. On 15 August 2024, at what was meant to be a hearing involving a review of the treatment order, the Supreme Court was informed that Mr Donnelly had been arrested for alleged offending over the previous weekend. He was at that time remanded in custody by the Magistrates Court.

14. The review proceeding did proceed, to the extent of considering whether the Court had the power to conduct a review and to take any action in respect to the treatment order. It was found that such a power was available, as the treatment order remained extant due to the issuing of the warrant. The reasons for this finding are as follows.

15. The starting point is to observe that by the time that Mr Donnelly handed himself into the court in July 2024, the end date of the original treatment order imposed had been reached. However, a warrant was issued, pursuant to s 80ZJ of the Sentencing Act, for his arrest during the treatment and supervision stage of the order.

16. Whether the Court has power to take any action in respect to an order that has since ended, but is extant by virtue of the warrant issued, is the necessary determination at this stage. An appropriate starting point is s 37SB of the Supreme Court Act 1933 (ACT), which provides: 37SB Drug and alcohol treatment order jurisdiction (1) The court has jurisdiction under this part to hear and decide all matters relating to a drug and alcohol treatment order in relation to an offender. (2) Without limiting subsection (1), a matter relating to an offender’s drug and alcohol treatment order includes the following: (a) the making of the order; (b) the conditions of the order; (c) an amendment of the order; (d) the offender’s compliance with the order; (e) the cancellation or suspension of the order; (f) any matter reasonably necessary for the proper administration, operation of, or compliance with, the order.

17. The Court is concerned with a sentence of imprisonment which, through judicial oversight, is administered in part by the Supreme Court. It is an “order that suspends a sentence of imprisonment for an eligible offence” on certain conditions including appearing before the Court as directed: ss 12A(2), 80Y Sentencing Act.

18. It is, plainly, within the jurisdiction of the Supreme Court to decide all matters reasonably necessary for the proper administration and compliance with a treatment order. Consistent with the legislative provisions in the Sentencing Act that provide for a treatment order, the Supreme Court has jurisdiction to address issues of compliance, or non-compliance as the case may be and as arises here. It would be contrary to the purpose of the legislation if the Court were not empowered to respond where there has been non-compliance resulting in the execution of a warrant during the term of the order. To decide to the contrary would undermine the mechanism by which the objectives of a treatment order are sought to be achieved.

19. Section 80ZD(1) of the Sentencing Act then provides: 80ZD Breach of treatment order—commission of offence (1) This section applies if— (a) an offender to whom a treatment order applies commits an offence against a law in force in Australia or elsewhere (a further offence) while subject to the order; and (b) the further offence is punishable by imprisonment; and (c) the court— (i) convicts the offender of the further offence; or (ii) is satisfied that the offender was convicted by another court, in the ACT or elsewhere, of the further offence.

20. Applying that provision to the circumstance here, Mr Donnelly was an offender who committed an offence in NSW while subject to the treatment order. The treatment order was extant in the ACT because of the unexecuted warrant. Upon his return to the ACT, and as at the time of the review proceeding on 15 August 2024, the treatment order remained extant, and Mr Donnelly was someone to whom a treatment order applied. He was convicted by another court of the further offence. Section 80ZD of the Sentencing Act was therefore of application and enlivened.

21. During the hearing on this issue, the parties referred the Court to DPP v Gorman [2024] ACTSC 233 (DPP v Gorman). This authority, while not unhelpful, is ultimately not informative to the circumstance here where the Court is concerned with the implications of a term of imprisonment suspended for the purposes of a treatment order. In DPP v Gorman, the Court was concerned with a circumstance where the offender had been sentenced to a term of full-time imprisonment and had absconded during that order. Section 30 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) was of relevance there, but is not of application to a treatment order.

22. The prosecution submitted that the Court retained the power to proceed to conduct a review (s 80ZH of the Sentencing Act) and consider a cancellation application in the circumstances. While the prosecution sought to draw an analogy with the provisions relating to intensive correction orders, as I understood the submission, it was ultimately that the Court’s jurisdiction remained as the treatment order was in abeyance due to the issuing of the warrant. The defence representative accepted that there would be a perverse outcome if the Court were to find that there was no power to review a treatment order where a warrant remained unexecuted during the term of the treatment order. For the reasons given, I agreed with the parties.

Cancellation of treatment order

23. The Court having found that a power to continue with a review of the treatment order existed, on 19 August 2024, Mr Donnelly appeared in the Supreme Court for the purposes of a hearing of a cancellation application. The cancellation of the order, pursuant to 80ZD of the Sentencing Act, was, appropriately, not opposed. At the time of the application, Mr Donnelly was subject to a sentencing order, being a parole order, as defined in s 12A(9)(e), (f) of the Sentencing Act. Cancellation was therefore mandatory: s 80ZD(3) Sentencing Act.

24. Section 82C(4) of the Sentence Administration Act provides that: (4) If the decision is to cancel the offender’s drug and alcohol treatment order, the cancellation ends the drug and alcohol treatment order and the offender must serve the remainder of the sentence of imprisonment— (a) by full-time detention until when the sentence of imprisonment suspended under the drug and alcohol treatment order would have ended apart from the cancellation; or (b) if the court orders otherwise—in accordance with the court’s order.

25. Mr Donnelly initially remained in custody pending finalisation of the review proceeding. He sought that he be assessed for an intensive correction order, albeit such an outcome is no longer pressed given subsequent events.

Events post-cancellation

26. On 9 October 2024 Mr Donelly was released from custody by the Supreme Court for the purposes of engagement with the Ngunnawal Bush Healing Farm, as well as engagement with medical support. The matter was adjourned for finalisation of the review proceeding to a later date, with Mr Donnelly intending to engage with rehabilitation in the interim.

27. However, on 1 November 2024 he came to be again before the Magistrates Court with allegations of further offending and fresh charges. He was remanded in custody, with again a view to finalising the review proceeding at a later stage.

Finalisation of review proceeding

28. The finalisation of the review proceeding was then heard on 18 March 2025. A preliminary decision is whether to impose the period suspended under the treatment order, or to resentence Mr Donnelly: s 80ZD(4) Sentencing Act.

29. As already noted, despite the poor compliance with the treatment order typically warranting imposition, the prosecution support resentence occurring to give effect to the application of the totality principle that now arises. I agree that it is appropriate to resentence in the circumstances of this matter.

30. It also appears relevant and necessary to engage in an exercise of resentence to give effect to s 80ZL of the Sentencing Act. While this would not necessarily be incapable of application upon an imposition, in the circumstances of this matter, and to give practical and clear effect to the periods spent in custody, it is preferable that the effect of s 80ZL be expressly considered in determining the appropriate orders. This section provides: 80ZL Drug and alcohol treatment orders—outstanding warrants (1) This section applies if a warrant is issued for an offender’s arrest under this division. (2) Any period for which the warrant is outstanding and the offender is not in custody does not count toward the sentence imposed under the custodial part of the order. (3) In this section: in custody means— (a) remanded in custody under a law in force in Australia or elsewhere; or (b) detained at a place under the Mental Health Act 2015, or a corresponding law in force in Australia or elsewhere.

31. In addition to this section confirming the view that a treatment order subject to a warrant is extant while the warrant remains outstanding, this section has other significance in this matter. This is because the section provides that a period during which the warrant is outstanding, and the offender is not in custody, does not count towards the sentence imposed under the custodial part of the treatment order. The ‘custodial part’ is defined in s 80W of the Sentencing Act to mean: (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.

32. For Mr Donnelly, the custodial part was the period of imprisonment from 23 June 2021 until 7 January 2024, that is, a period of two years, six months, and 16 days imprisonment. However, there were periods during this custodial part where Mr Donnelly was, at large, in the community, and periods when he was in custody in NSW. The period in custody was, with reference to the NSW criminal history, for a period of two years and six months imprisonment.

33. It warrants noting that I do not consider there is anything in s 80ZL of the Sentencing Act that intends that a period of custody serving another sentence was intended to ‘count’, in a sense of time served under the custodial part of the treatment order. That is, the converse of what the section provides is not available. The section is simply concerned with, similar to s 30 of the Sentence Administration Act, ensuring that any period of the custodial part of the order that is subject to a warrant is not to be regarded as time served under the treatment order.

Time in custody

34. It follows, in respect to Mr Donnelly’s resentence exercise that the following periods apply as being time served under the custodial part of the treatment order: Period Purpose Days served under custodial part of treatment order 8 January 2020 – Period on remand prior to original 533 days 23 June 2021 sentence proceeding 28 June 2021 – Provisional suspension of treatment 10 days 7 July 2021 order 21 August 2021 – Execution of warrant during 3 days 23 August 2021 treatment order 11 December 2021 – Serving sentence in NSW Not applicable 10 June 2024 9 August 2024 – In custody in relation to the 62 days 9 October 2024 treatment order and on remand in Magistrates Court 28 October 2024 – In custody in relation to the 172 days 17 April 2025 treatment order and on remand in Magistrates Court Total: 686 days

35. While some of the periods on remand relate also to the remand in custody for the Magistrates Court charges, there is no impediment to this period of days being taken into account in respect of the current resentence exercise: s 63 of the Sentencing Act.

36. I further observe that there were periods of residential rehabilitation, which might typically be taken into account in a ‘quasi-custody’ sense. However, Mr Donnelly’s compliance with this aspect of the treatment order was of such a fleeting nature that I do not consider it appropriate to take any residential rehabilitation periods into account in a sense of ‘quasi-custody’. To the extent there was a level of compliance, as set out in Drug and Alcohol Sentencing List status reports in July and August 2021, this will be taken into account in assessing the prospects of rehabilitation. Resentence exercise

37. The resentence exercise otherwise warrants consideration of the period spent in custody in NSW. As already observed, this arises through an application of the totality principle. Mr Donnelly has, since the original order was imposed in 2021, spent an additional period of two years and six months in custody serving a sentence in another jurisdiction. He remains subject to parole until 10 June 2026. This is a relevant consideration in accordance with Mill v The Queen [1988] 166 CLR 59 at 66.

38. As to the other considerations in resentencing, I observe that the offending involved entry to apartment complexes over a period of two days. In one complex packages delivered to residents were stolen. In another complex, multiple cars were damaged and property was stolen. A stolen credit card was used to make purchases. Throughout this period, Mr Donnelly also drove and rode in stolen motor vehicles, and was involved in attempting to take, and taking, other vehicles. This included an entry to a vehicle transportation business. At the time of driving, Mr Donnelly was a disqualified driver, and he drove dangerously, leading to him losing control of a vehicle and colliding with a wall of a residential complex. The facts are otherwise set out in detail in R v Donnelly at [12] – [25].

39. Similarly, in R v Donnelly, the objective seriousness of the offending was assessed (at [47]-[78]), an assessment with which I agree. The effect of the victims was considered, which included consideration of a victim impact statement ([56], [59], [68], [125]). I have also considered this effect of the offending on the victims, and would add to the consideration that the multiple victims all experienced varying degrees of financial loss and significant inconvenience from the offending conduct.

40. Mr Donnelly is now 29 years of age. His subjective circumstances were considered in detail in R v Donnelly at [80] – [105]. This includes his background, one that I am satisfied enlivens the principles from Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and the principle from R v Henry [1999] NSWCCA 111; 46 NSWLR 346 as to early introduction to substances. His moral culpability is reduced, and general deterrence is moderated.

41. The pleas of guilty were entered in the Supreme Court, “not at the earliest time” (R v Donnelly at [127]). Nonetheless, there was utilitarian value. His Honour found that a “reasonably significant discount” was warranted. I agree and assess the appropriate reductions for the pleas of guilty to be as were applied in R v Donnelly (see at [137]- [148]).

42. The sentences imposed in R v Donnelly considered and applied the totality principle (see in particular at [130]-[133]), a principle that remains of application. I agree with the approach taken as to the level of concurrency applied in the original sentence orders. Further, the sentences considered and appropriately applied the parity principle, with reference to the sentences imposed on a co-offender: R v Elphick [2021] ACTSC 9 (subsequently the subject of an appeal against sentence that was dismissed in Elphick v The Queen [2021] ACTCA 35).

43. It is not in issue that the only appropriate terms are imprisonment. It follows that the head sentences, and the overall sentence, to be imposed will be the same as previously ordered. This relates only to the original terms of imprisonment imposed, with it not sought by the prosecution that any action be taken in relation to the potential breach of the good behaviour orders by the reoffending in NSW.

44. The real issue on resentence is when Mr Donnelly is to be released from custody, it being clear that the only appropriate order is one of parole. As to what is to inform the setting of the nonparole period, I consider it appropriate in this matter to reflect the totality principle as it refers to the other sentence served in considering the appropriate period before there is eligibility for parole. This will reduce what may otherwise have been the appropriate nonparole period. This reflects that Mr Donnelly is being resentenced for offences that pre-date the other sentence, and that he has since completed a substantial period in fulltime custody for that sentence. As the Court of Appeal found in Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 “there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise” (at [56]).

45. Further, the setting of the nonparole period is to consider the prospects of rehabilitation. While Mr Donnelly has demonstrated a flagrant disregard for the community based treatment order opportunity that was afforded to him, there remains prospects of rehabilitation. Mr Donnelly seemingly remains intent on rehabilitation, but requires ongoing support and supervision to achieve this. The short periods during which he did comply with the treatment order do suggest he has prospects of engaging with rehabilitation. For example, Mr Donnelly was reported to be commended for his active group engagement during one residential rehabilitation placement. Similarly, he engaged in rehabilitation programs while in NSW custody.

46. Mr Donnelly presents a compelling case as someone for whom an extended period in the community under parole supervision would best meet sentencing purposes. Securing Mr Donnelly’s rehabilitation is ultimately the best mechanism by which community protection can be achieved. I consider a lenient nonparole period that reflects the application of the totality principle and takes into account that there are prospects of rehabilitation will best reflect the sentencing purposes and provide for the minimum period of time that justice requires be served.

Orders

47. For those reasons, the following orders are made: (1) The cancellation of the drug and alcohol treatment order made on 23 June 2021 is confirmed. (2) Pursuant to s 80ZE(2)(b) of the Crimes (Sentencing) Act 2005 (ACT), the offender is resentenced. (3) The conviction of Daniel Donnelly of aggravated burglary (CAN 2020/7363) is confirmed and he is sentenced to 18 months imprisonment, to commence on 27 February 2023 and end on 26 August 2024. (4) The conviction of Daniel Donnelly of dishonestly ride motor vehicle (CAN 2020/7362) is confirmed and he is sentenced to 6 months imprisonment, to commence on 27 June 2024 and end on 26 December 2024. (5) The conviction of Daniel Donnelly of aggravated burglary (CAN 2020/3843) is confirmed and he is sentenced to 18 months imprisonment, to commence on 27 February 2024 and end on 26 August 2025. (6) The conviction of Daniel Donnelly of theft (CAN 2020/189) (joint commission) is confirmed and he is sentenced to 12 months imprisonment, to commence on 27 November 2024 and end on 26 November 2025. (7) The conviction of Daniel Donnelly of damage property (CAN 2020/190) (joint commission) is confirmed and he is sentenced to 12 months imprisonment, to commence on 27 February 2025 and end on 26 February 2026. (8) The conviction of Daniel Donnelly of attempt to take motor vehicle without consent (CAN 2020/3847) (joint commission) is confirmed and he is sentenced to 12 months imprisonment, to commence on 27 April 2025 and end on 26 April 2026. (9) The conviction of Daniel Donnelly of obtain property by deception (CAN 2020/3865) (joint commission) is confirmed and he is sentenced to 6 months imprisonment, to commence on 27 November 2025 and end on 26 May 2026. (10) The conviction of Daniel Donnelly of take motor vehicle without consent (CAN 2020/3867) (joint commission) is confirmed and he is sentenced to 12 months imprisonment, to commence on 27 September 2025 and end on 26 September 2026. (11) The conviction of Daniel Donnelly of take motor vehicle without consent (CAN 2020/8002) (joint commission) is confirmed and he is sentenced to 12 months imprisonment, to commence on 27 January 2026 and end on 26 January 2027. (12) The conviction of Daniel Donnelly of aggravated dangerous driving (CAN 2020/7965) is confirmed and he is sentenced to 6 months imprisonment, to commence on 27 August 2026 and end on 26 February 2027. (13) The conviction of Daniel Donnelly of driving while disqualified (CAN 2020/3869) is confirmed and he is sentenced to 6 months imprisonment, to commence on 27 August 2026 and end on 26 February 2027. (14) The total sentence imposed is 4 years, to commence on 27 February 2023 and end on 26 February 2027. (15) A nonparole period of 2 years, 2 months, and 4 days is imposed to commence on 27 February 2023 and end on 30 April 2025.

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