R v Slattery

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Slattery (No 3); DPP v Slattery Citation: [2025] ACTSC 125 Hearing Date: 20 March 2025 Decision Date: 31 March 2025 Before: Christensen AJ Decision: See [156] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – property offences – driving offences – using a carriage service with threat to cause serious harm – family violence – offender previously successfully completed treatment and supervision part of drug and alcohol treatment order – breach of good behaviour component – whether treatment order suitable and appropriate – Bugmy and Henry principles – sentenced to drug and alcohol treatment order – statutory interpretation – Crimes (Sentencing) Act 2005 (ACT) – lacuna and ambiguity in drug and alcohol sentencing legislation – whether good behaviour order part of drug and alcohol treatment order – diagrammatical representation of a treatment order – whether court has power to deal with breaches of good behaviour order portion of treatment order after expiration – s 80ZD does not apply – conferral of power in s 107 Crimes (Sentence Administration) Act 2005 (ACT) Legislation Cited: Crimes Act 1900 (ACT) s 382 Crimes Act 1914 (Cth) ss 17A, 19AC Crimes (Sentence Administration) Act 2005 (ACT) pt 6.5, ss 85, 107, 108, 110, 116 Crimes (Sentencing) Act 2005 (ACT) Dictionary, pt 5.4A, div 5.4A.7, ss 12A, 13, 34B, 63, 80O, 80W, 80X, 80V, 80ZA, 80ZD, 80ZE, 80ZH Criminal Code Act 1995 (Cth) s 474 Criminal Code 2002 (ACT) ss 308, 312, 318, 321, 326, 403 Drugs of Dependence Act 1989 (ACT) s 169 Family Violence Act 2016 (ACT) Prohibited Weapons Act 1996 (ACT) s 5 Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11 Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 7 Supreme Court Act 1933 (ACT) s 37SB Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Dunn [2022] ACTSC 355 DPP v Hudson [2024] ACTSC 159 DPP v Manns (No 2) [2023] ACTSC 405 DPP v Winters (No 5); DPP v Winters [2024] ACTSC 293 Krakouer v The Queen [1998] HCA 43; 194 CLR 202 Lee Vanit v The Queen (1997) 190 CLR 378 Mitchell v The Queen (1996) 184 CLR 333 R v Green [2021] ACTSC 13 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hudson [2019] ACTSC 110 R v Slattery [2021] ACTSC 154 R v Slattery (No 2) (Supreme Court of the Australian Capital Territory, Refshauge AJ, 19 January 2024) R v Rowlands (No 2); DPP v Rowlands [2024] ACTSC 143 R v A2 [2019] HCA 35; 269 CLR 507 Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193 Smith v Corrective Services Commissioner of New South Wales (1980) 147 CLR 134 Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 Parties: Director of Public Prosecutions (Crown) Joshua William Slattery (Offender) Representation: Counsel G Meikle (Crown) S Brown (Offender) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Offender) File Numbers: SCC 100, 101, 184, 185, 207, 339 and 340 of 2023 SCC 55 of 2025 CHRISTENSEN AJ: Introduction

1. Joshua Slattery is before the Court to be sentenced for 20 offences committed in five series between February 2023 and June 2023. He is also to be sentenced for a distinct offence committed while in custody in December 2023 (series six).

2. The offending was contrary to provisions of the following acts: (a) Criminal Code Act 1995 (Cth) (Criminal Code (Cth)); (b) Criminal Code 2002 (ACT) (Criminal Code); (c) Public Order (Protection of Persons and Property) Act 1971 (Cth) (Public Order Act); (d) Crimes Act 1900 (ACT) (Crimes Act); (e) Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act); (f) Drugs of Dependence Act 1989 (ACT) (Drugs of Dependence Act); (g) Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Safety and Traffic Management Act); and (h) Prohibited Weapons Act 1996 (ACT) (Prohibited Weapons Act).

3. The period when the offending occurred was during the good behaviour component of a drug and alcohol treatment order made in February 2021. Mr Slattery seeks an opportunity for the sentence to now be imposed to again involve a drug and alcohol treatment order pursuant to s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

4. This sentencing exercise requires not only consideration of the eligibility of Mr Slattery for such an order, but also the suitability and appropriateness of such an order. The prosecution acknowledges the likely value of a further drug and alcohol treatment order for Mr Slattery, and the community, but raise whether he is eligible for such an order given the effective term of imprisonment that may be imposed. ACT Corrective Services and Canberra Health Services both find Mr Slattery suitable for a drug and alcohol treatment order.

5. In addition, this sentencing exercise requires a determination as to what, if any, the consequences are for committing offences while subject to a good behaviour component of a drug and alcohol treatment order in circumstances where that order has since expired. There is ambiguity, in what appears to be a form of lacuna, in the legislation in this regard.

6. As will become apparent, I do not consider that the total effective sentence to be imposed is such that Mr Slattery is ineligible for a treatment order. The imposition of the appropriate individual terms in accordance with s 12A(5) of the Sentencing Act are to be, and will be, imposed. However, the sentencing exercise involves a not insignificant period of presentence custody, including quasi-custody, and an application of the totality principle, such that the effective term to be served, of sentences not already served, results in Mr Slattery being eligible for a drug and alcohol treatment order.

7. The primary issues in this sentencing exercise become whether such an order is an appropriate and suitable one, and what the consequences of breaching a previous order of this type are.

Sentence

Series one offending: 25 February 2023

8. The first series of offending involves: Offences Maximum penalty Trespass 10 penalty units s 11(1) Public Order Act CAN 2023/6464 Minor Theft 6 months imprisonment, 50 penalty units, s 321 Criminal Code or both CAN 2023/6465 Possess knife without reasonable excuse 6 months imprisonment, 10 penalty units, s 382(1) Crimes Act or both CAN 2023/6466 Dishonestly obtain property by deception 10 years imprisonment, 1000 penalty units, s 326 Criminal Code or both CAN 2023/6467

9. At about 6am on 25 February 2023, Mr Slattery entered the side gate of a house and went into the carport area where there were two unsecured vehicles. The owner of the residence, being a victim of the offending, was awoken by alerts from his closed circuit television (CCTV) footage security system.

10. The victim went out of his rear door and heard the sound of a vehicle door closing. He shouted “hey” and observed a male running back towards the side gate and out to the street. The victim subsequently searched the vehicles and ascertained that his wallet, containing $500.00 in cash and assorted credit cards, was missing.

11. The victim reviewed the CCTV footage and observed that the male, later identified as Mr Slattery, dropped an object on to the path as he ran. The victim went to the roadside and observed a kitchen/carving knife approximately 35cm in length lying at the base of his driveway.

12. Later that morning, one of the victim’s credit cards was used to make a transaction to the value of $97.93 at the Duffy Five Star Supermarket.

13. Subsequent police investigations established Mr Slattery to be the male who stole the wallet from the vehicle and used one of the cards to make the transaction. Forensic examinations linked Mr Slattery to the knife.

14. Any offending involving the unlawful entry to an area of a community member’s home, and the taking of valuable items is to be denounced. It is offending that is of concern to the community, and involves a blatant disrespect to other community members. The victim will have likely experienced the inconvenience arising from the cancellation and replacement of his bank cards, as well as there having been financial implications from the money stolen with the wallet and the transaction that occurred. Fortunately, the trespass did not extend beyond the carport area and Mr Slattery left the area upon being disturbed.

15. It is also of concern that at the time of the offending, Mr Slattery had possession of a knife that was in the nature of a not insignificant weapon. He had possession of it in public, during the commission of other offences, with it being available to him to use in the offending. I regard this as aggravating circumstance for this type of offence.

16. I am satisfied, where the maximum penalty provides for imprisonment, that no penalty other than imprisonment is appropriate. As to the trespass offence, being a fine only offence subject to Commonwealth sentencing, a fine will be imposed with a lengthy period of time for it to be paid, reflective of the subjective circumstances of the offender.

Series two offending: 24 March 2023

18. The second series of offending occurred one month later and involves five offences as follows: Offences Maximum penalty Minor Theft 6 months imprisonment, 50 penalty units, or s 321 Criminal Code both CAN 2023/3059; CAN 2023/3063 Possess drug of dependence 1 penalty unit s 169(1) Drugs of Dependence Act CAN 2023/3064 Drive motor vehicle without consent 5 years imprisonment, 500 penalty units, or both s 318(2) Criminal Code CAN 2023/3062 Dangerous driving (repeat offender) 1 year imprisonment, 100 penalty units, or both s 7(1) Safety and Traffic Management Act An automatic minimum period of 12 months CAN 2023/4340 license disqualification applies Drive while disqualified (repeat offender) 1 year imprisonment, 100 penalty units, or both s 32(1)(a) Driver Licensing Act An automatic minimum period of 24 months CAN 2023/3061 license disqualification applies

19. On 7 March 2023, Mr Slattery and an associate attended at a car rental company in Fyshwick. Mr Slattery told his associate that he had forgotten his wallet and asked if she could hire a vehicle for him under her name. The associate did so, hiring a white MG SAS bearing NSW registration plates. Mr Slattery was present for the hiring of the vehicle and knew that it was due to be returned on 9 March 2023.

20. On 11 March 2023, Mr Slattery sent an image to his associate showing the vehicle parked out the front of the Canberra airport and he told her had returned the vehicle to the hire company. He had not. On 23 March 2023, a manager of the hire company reported the vehicle as stolen. Mr Slattery’s associate attended at police and informed them that Mr Slattery had the vehicle, and she did not know where it was.

21. At about 1:10am on 24 March 2023, a resident of a house in Kambah reported to police that ACT registration plates had been stolen from her Ford Kuga, which had been securely parked outside of her residence. Police attended the area at about 1:15am and were informed by residents of a suspicious male who appeared to be canvassing residences. Police were informed that the male had left the area about five minutes prior and that he had departed in a white Sports Utility Vehicle.

22. At about 1:40am, a male driving a white MG SAS bearing the numberplates stolen from the vehicle in Kambah, attended at the United Service Station in Kambah. The male got out of the driver’s seat and entered the service station and made purchases. Police observed the vehicle at the service station and attempted to intercept it.

23. However, the vehicle took off from police and drove well in excess of the posted 80 km/h speed limit, driving north on Drakeford Drive, Kambah. The facts provide that police were unable to engage with the vehicle due to its high speed and the danger it posed to community members.

24. At about 8:30am the same morning, the owner of a vehicle who had left his vehicle parked outside of his residence in Kambah the night before reported to police that items had been stolen from his vehicle. The items were Armani Sunglasses, an Apple Watch, and Apple AirPods, valued in total $1,500.00. This victim utilised the ‘Find My Watch’ feature to track the location of the items and he informed police that the watch had recently become stationary at a location in Wright.

Series three offending: 18 and 19 June 2023

35. Some three months later, Mr Slattery committed the remaining offences committed while in the community. It was offending that all occurred from 18 to 20 June 2023, but for convenience will be considered with reference to the distinct series of offending during that period.

36. By this stage, Mr Slattery was, in addition to being subject to the good behaviour component of the drug and alcohol treatment order, on bail. He was granted bail by the Magistrates Court on 11 May 2023. On 26 May 2023, he failed to attend court, and a warrant was issued for his arrest.

37. The first offending in this period, to be regarded as series three, involved entry to the carpark and storage cages of an apartment complex, and the theft of property: Offences Maximum penalty Aggravated burglary 20 years imprisonment, 2000 penalty units, or both s 312 Criminal Code CAN 2023/8256; CAN 2023/8257 Theft 10 years imprisonment, 1000 penalty units, or both s 308 Criminal Code CAN 2023/8246; CAN 2023/8258 Minor theft 6 months imprisonment, 50 penalty units, or both s 321 Criminal Code CAN 2023/8247

38. The background to the offending involves that on Tuesday 13 June 2023, at about 5:52pm, a female hired a white Toyota Hilux bearing NSW registration plates from the Belconnen Bunnings. Further, a booking was made through Airbnb by another female to stay at an apartment in Kingston on the night of Saturday 17 June 2023.

39. On Saturday 17 June 2023 at about 6:40pm, Mr Slattery arrived at the apartment complex with an unknown female and a key fob for the apartment was removed from an unsecure letter box.

40. At about 9:49pm, Mr Slattery drove a white Toyota Corolla into the secure underground carpark of the apartment complex. The facts provide that police suspect this was the white Toyota Corolla the subject of the next series of offending, but Mr Slattery is not charged in respect to the driving of this, or any vehicle, for this period of offending.

41. At about the same time that Mr Slattery drove into the carpark, another male drove the Toyota Hilux into the carpark and the female who had booked the apartment drove a green Jeep Cherokee into the carpark.

42. The following morning, at about 6:35am on Sunday 18 June 2023, Mr Slattery and the male returned to the underground carpark. They searched the storage areas, shining a torch on the bicycles in a storage cage. They then forced entry into a number of storage cages by bending the locking mechanism and subsequently entered the cages and took a number of items.

43. Mr Slattery pushed a red coloured metal toolbox with draws mounted on castor wheels through the carpark towards the Hilux. He then got in the Hilux, and the other male got into the Corolla. Both vehicles left the carpark. The Hilux had a mountain bike, as well as a swag and tent in the tray.

Series four offending: 19 June 2023

52. The next set of offending in this period occurred in the early hours of 19 June 2023. The offences leading up to this, and the offending that occurred on 19 June, involves: Offences Maximum penalty Dishonestly obtain property by 10 years imprisonment, 1000 penalty units, or deception both s 326 Criminal Code CAN 2023/6313 Aggravated burglary 20 years imprisonment, 2000 penalty units, or s 312 Criminal Code both CAN 2023/7152 Theft 10 years imprisonment, 1000 penalty units, or s 308 Criminal Code both CAN 2023/7153

Damage property 10 years imprisonment, 1000 penalty units, or s 403(1) Criminal Code both CAN 2024/9664

53. The background to this offending includes that on 12 June 2023 the co-offender of Mr Slattery, Ms Sara Winters, and two other unidentified people, stole a white Toyota Corolla and a blue Toyota Corolla from the carpark of a gym in Conder: DPP v Winters (No 5); DPP v Winters [2024] ACTSC 293 (DPP v Winters).

54. Between 11am on 17 June 2023 and 3:45am on 19 June 2023, a blue Toyota Celica was taken from a residence in Griffith. On the night of 18 June 2023 in Kingston the number plates of a white Toyota Yaris were stolen and replaced with different number plates.

55. On 18 June 2023 at about 5:07am, Mr Slattery was captured on CCTV footage driving the white Toyota Corolla, which was now bearing the number plates that were stolen in Kingston. As noted above, Mr Slattery is not charged in respect to the driving of any of the vehicles in this offending.

56. He is though responsible for a ‘fuel drive off’ involving the white Toyota Corolla. On 18 June 2023 at about 7:10pm, Mr Slattery was captured on CCTV attending at the 7/11 petrol station in Philip in the white Toyota Corolla. He entered the store and purchased two sausage rolls and a packet of cigarettes using cash. He then drove to a fuel bowser, filled the Corolla with thirty six litres of fuel to the value of $69.00 and drove away without making any attempt to pay. While not a significantly high financial value was involved, and there was no sophistication involved, offending of this type warrants a deterrent sentence by way of imprisonment, albeit a nominal term is appropriate here.

57. Early the following morning, at about 3:30am on 19 June 2023, CCTV footage shows the white Toyota Corolla and the blue Toyota Celica attend the Garran Shops.

58. Ms Winters and an unknown person then approached the front entrance of the Friendly Grocer in Garran. Mr Slattery reversed the blue Toyota Celica into the front entrance, causing major damage to both the door and supporting structure. Mr Slattery was wearing a hat, dark clothes, gloves, and carrying a large bag.

59. Mr Slattery, Ms Winters, and the other person entered the store and stole cigarettes, alcohol, and other items including a cash register by placing them into large duffel bags. They then fled the location in the Corolla and the Celica.

60. The total number of items stolen included 480 packets of cigarettes and 17 bottles of spirits, with, per the particulars in Mr Slattery’s charge, a total value of $19,128.31. The cost to repair the damage to the store was estimated to be in excess of $10,000, with the extent of damage evident from photographs that were tendered on sentence.

61. As observed in DPP v Winters (at [38]), there will have been not insignificant financial implications for the store from the offending, as well as inconvenience caused. It was inevitably a frustrating and distressing experience for the store owners and workers.

Series five offending: 20 June 2023

69. On 20 June 2023 at about 2:45pm, Mr Slattery was located at a residence in Page. He was arrested in relation to the outstanding warrant.

70. At the time of the arrest, he was wearing clothing that matched items of clothing being worn by the offender as shown in the CCTV footage from the apartment complex in Kingston and from the footage at the Friendly Grocer. Subsequent searches at the property resulted in the bag used in the Friendly Grocer burglary being located. It was concealed down the side of a wardrobe in the master bedroom. Police also located the mountain bike taken from the storage unit in Kingston, and a screwdriver from the tool set.

71. When Mr Slattery was arrested, he was searched, and a prohibited weapon was located in his front left pant pocket. He is to be sentenced for possession of a prohibited weapon contrary to s 5 of the Prohibited Weapons Act (CAN 2023/6312), which carries a maximum penalty of five years imprisonment, 500 penalty units, or both. Mr Slattery initially pleaded not guilty, but did come to plead guilty in the Magistrates Court. If it were necessary to quantify, a reduction of at least 20 per cent is appropriate.

72. The item was a 16 centimetre long black plastic item that had a switch that when activated caused an arc of electricity to be produced at the tip. Plainly, the possession of such an item, which is capable of causing harm, warrants a period of imprisonment. But the circumstances in which it was being possessed reduce the seriousness such that only a nominal term is appropriate.

Series six offending: 13 – 21 December 2024

73. The final series of offending is of a significantly different nature to the other offending, and it occurred while Mr Slattery has been remanded in custody. There is no assertion that this offending occurred in a circumstance of drug dependency. That is, there is no assertion that the offender’s dependency substantially contributed to the commission of the offence: s 12A(2)(a)(ii) Sentencing Act. Accordingly, it is accepted that this offence is not eligible for a treatment order.

74. The parties agreed that it was appropriate to treat the sentence to be imposed for this series as a type of distinct sentencing exercise, and to impose a sentence that had regard to the period in presentence custody such that the sentence is to be regarded as already served. On behalf of Mr Slattery, it was submitted that the Court would not necessarily find that only a term of imprisonment is appropriate for this offence. I disagree.

75. The offending involved an offence of using a carriage service with threat to cause serious harm contrary to s 474.15(2) of the Criminal Code (Cth). This offence carries a maximum penalty of seven years imprisonment.

76. The offending involves a person who meets the definition of having a relevant relationship as defined in the Family Violence Act 2016 (ACT) at the time of the offending. In accordance with the definitions provided in s 34B(3) of the Sentencing Act, s 34B is also of application.

77. The offending occurred between the afternoon of Saturday 14 December 2024 and the morning of Friday 20 December 2024. Mr Slattery made eight calls to the victim that were of a highly threatening nature. To explain the objective seriousness of these calls, it is necessary to set out some of the contents. The calls included Mr Slattery expressing [sic]: Listen here you dumb fucking [inaudible] slut. Hang up I dare you cunt, hang up I dare you cunt. I’m going to cave your head in dog. You’re lucky I’m not out, you’d cop a broken jaw, yeah. I’m going to severely bash you when I get home. [ … ] You need to get this through your fucking dumb fucking big ugly fucking baboon head cunt. I’m the boss. [ … ] I know Canberra like the back of my hands ya fuckwit. I’ll stalk ya. I’ll stalk ya and I’ll prey ya and I’ll fucking grab ya and I’ll grab ya by the neck and slam your jaw that hard in the concrete slut. I’ll knock every fucking tooth out of your head. You fucking dumb cunt. You think it’s funny, do ya? In front of your friends. I’m going to hurt you dog when I’m home. [ … ] I’m going to fucking kill ya [inaudible] when I get home bitch you’ve got no idea. Huh? Yeah okay darlin. Remember if found [redacted] in Melbourne, you think I won’t find you in poxy little [redacted]. Ya fucking dumb cunt. [ … ] [Victim’s name redacted] this is how it’s going to be and if I think anything I will…[inaudible] like I’ll break your jaw. You know that darlin. Try leave, try hang up on me cunt. I’ll burn your little nice house you love so much, to the ground. Okay? [ … ] Imagine when I relapse when I get out too, on the bling. Imagine the traumatic shit I’m going to put you through then cunt. [ …] Wait till our visit you’re gonna cop it today cunt. I’m gonna physically hurt you on the visit today. Yeah, fucking oath, I am. I’m gonna grab you by your jaw, press on your teeth. Fucking oath I’m gunna. That’s nothing compared to what ‘s going to happen when I get home. It is. I’ve go your address now darlin. [ … ] But that’s what will be happening. So, get used to it sweetie. Buckle up. Treat me with respect. I’m the man you’ve gotta treat me with respect. [ … ] I’m in a big trigger, yeah? You don’t care? You don’t care? I was about to kill myself last night cunt. [ … ] If I find one thing out, I’m … [inaudible] I’m going to chop you up into a million bits, you know that. I’m gonna kill ya. [ … ] …validate me. I need it, like, I’m in the trigger. An abandonment trigger that you’re going to leave me, so fucking validate me now cunt. [ … ] I am in a trigger and I need support. [ … ] Cunt I will boot your door in, I will hold a gun to your mouth, I will drag you out by the hair and put you in a boot … What you think a car driving through your front doors gonna stop it. [ …] But the funny thing is I’m being deadest serious cunt. I swear on my whole family’s life. [inaudible] I’m scared what I’m gonna do to you when I come home. And you can say I’m not gonna be with you as much as you want, you think a bit of paper is going to stop me? Do you think an AVO’s gonna stop me?

Time in custody

86. A number of distinct periods in presentence custody apply: (a) arrested and bail refused from 24 March 2023 until 11 May 2023 – a total of 49 days; (b) arrested, and then bail refused on earlier offences, as well as two offences which have since been finalised in the Magistrates Court (CAN 2023/7677; CAN 2023/6310) from 20 June 2023 until 22 January 2024 – a total of 217 days; and (c) bail was refused on all matters except the series six offending from 28 June 2024 until 31 March 2025 – a total of 277 days.

87. A total period of 543 days is to be taken into account as time served in custody in relation to the offences: s 63 Sentencing Act.

88. In addition, in the course of these proceedings, Mr Slattery has spent a period of some six months in residential rehabilitation. It was not in issue that this can be taken into account in a ‘quasi-custody’ sense. The prosecution did caution that it not be utilised in a manner that involved reducing what would otherwise be the appropriate head sentences. I agree. Nonetheless, there would, given the significant period of residential rehabilitation involved, and that such periods are typically taken into account as ‘quasi-custody’, be an injustice to Mr Slattery if this period was not taken into account in a measurable way in the sentences to be imposed.

89. In the circumstances of this matter, I consider it appropriate to backdate the sentences, and set a commence date in accordance with the discretion provided in s 63(1) of the Sentencing Act, by an additional period of four months (120 days) to reflect the period in residential rehabilitation. Accordingly, the commencement date for the purposes of the sentencing exercise is 7 June 2023. Subjective circumstances

90. Mr Slattery is now aged 35 years and was aged 33 and 34 years at the time of the offending.

91. His subjective circumstances are set out in detail in R v Slattery [2021] ACTSC 154 (R v Slattery) at [48]-[64], and it is unnecessary to repeat them. Suffice to say that I am satisfied that the principles from Bugmy v The Queen [2013] HCA 37; 249 CLR 571, with reference to his childhood experiences, and from R v Henry [1999] NSWCCA 111; 46 NSWLR 346, with reference to his first use of alcohol at 12 or 13 years of age, are enlivened, and Mr Slattery’s moral culpability for the offending is reduced. I would also observe from this background, and the nature of the current family violence offence, that Mr Slattery would also plainly benefit from support with programs related to understanding and addressing family violence offending.

92. Further, as found in the previous sentence, Mr Slattery has a “long and depressing criminal history”: R v Slattery at [54]. It is one from both the Australian Capital Territory (ACT) and New South Wales (NSW) and is one which limits the leniency that can be afforded to him. He has not though been previously sentenced for offences of family violence.

Offending while on treatment order

105. As noted above (at [5]), much of the offending the subject of the sentencing exercise occurred during the good behaviour component of a drug and alcohol treatment order. For clarity, the relevant background to this is as follows: (a) On 9 February 2021, Mr Slattery was sentenced by Refshauge AJ in respect to twenty offences committed in August and September 2019. The offending involved driving a motor vehicle without consent, burglary, obtaining property by deception, theft, driving while disqualified, and possession of a drug of dependence: R v Slattery. (b) The total effective sentence imposed was backdated to commence on 3 December 2020, and to conclude on 30 November 2024. That is, the total effective term of the sentence, being the custodial part of the drug and alcohol treatment order, was for a period of three years, 11 months and 28 days imprisonment. (c) Pursuant to s 80W of the Sentencing Act, the sentence was ‘suspended’ from the date of imprisonment, being 9 February 2021, until the conclusion of the sentence on 30 November 2024. (d) The treatment and supervision component of the drug and alcohol treatment order was for a period of 12 months, to conclude on 8 February 2022. (e) From 9 February 2022 until the conclusion of the sentence on 30 November 2024, Mr Slattery was subject to a good behaviour order, requiring him to be subject to a probation condition and to comply with good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act).

106. It follows, by way of background, that Mr Slattery’s drug and alcohol treatment order concluded on 30 November 2024, with offending occurring during the order from February 2023 until June 2023.

107. It appears uncontroversial that this would amount to a breach of ‘conditional liberty’ in the sense of it being an aggravating factor on sentence: see R v Rowlands (No 2); DPP v Rowlands [2024] ACTSC 143 at [77] as to the applicability of this notion in respect to treatment orders. The issue becomes whether there is a legislated implication arising from the offending having occurred during the treatment order. This requires a consideration of the legislative regime in respect to drug and alcohol treatment orders.

Applicable legislation

108. In practical terms, Mr Slattery was ordered to serve what is typically regarded as a ‘drug and alcohol treatment order’, or ‘treatment order’. With reference to the legislation though, the sentence order imposed was more nuanced. The prosecution submitted that it was a drug and alcohol treatment order involving an overall custodial part, which in this order, also included a good behaviour order component. That is, a drug and alcohol treatment order is capable of including a good behaviour order, with any such good behaviour order not a separate and distinct order. For the reasons that follow, I agree.

109. The Sentencing Act provides in s 12A that the “court may make an order (a drug and alcohol treatment order)”. The Dictionary to this Act directs to s 12A as to what is meant by a ‘drug and alcohol treatment order’. Section 12A provides that such an order is one in which the court “suspends a sentence of imprisonment for an eligible offence condition that the offender agrees to complete a treatment program”, but only if certain preconditions, provided in the section, are met: s 12A(2) Sentencing Act.

110. The Dictionary to the Sentencing Act also defines a ‘treatment order’, with this meaning a ‘drug and alcohol treatment order’. That is, for the purposes of the Sentencing Act a ‘drug and alcohol treatment order’ and a ‘treatment order’ have the same meaning. On that basis, and for convenience, the remainder of these reasons will refer to a ‘treatment order’, being an order that is also defined to mean a ‘drug and alcohol treatment order’.

111. However, further meaning is given as to what is meant by either of these terms by pt 5.4A of the Sentencing Act. Importantly, s 80V of the Act provides the following: 80V Content of treatment orders A treatment order must— (a) state the offence to which the order relates; and (b) record the offender’s conviction for the offence; and (c) state the total period for which the order is in force; and (d) include— (i) a custodial part; and (ii) a treatment and supervision part; and (e) require the offender to sign an undertaking to comply with the order and any other obligations under the Crimes (Sentence Administration) Act 2005 for the period the order is in force.

112. That is, a treatment order, or a drug and alcohol treatment order, is comprised of two parts – a custodial part, and a treatment and supervision part. It must also require the offender to comply with any other obligations under the Sentence Administration Act during the period the order is in force.

113. The ‘custodial part’ of the treatment order is explained in s 80W of the Sentencing Act as: 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. …

Part A: Treatment and Supervision ss 80V(d)(ii), 80X of the Sentencing Act Part (A), or Part (A) and component (B), Where part (A) does not extend for the duration of the are the Custodial custodial part, component (B) also applies: part per ss 80V(d)(i), 80W of the Sentencing Act Component B: Good behaviour order ss 80V(e), 80ZA of the Sentencing Act

117. That is, the custodial part reflects the overall sentence, which may be comprised of solely of a treatment and supervision part, or both a treatment and supervision part and a good behaviour order (GBO) component.

The good behaviour order component

118. The query then becomes what is meant, for the purposes of a treatment order and beyond what is said in s 80ZA of the Sentencing Act, by the GBO component.

119. The term ‘good behaviour order’ is not specifically defined in s 80ZA, nor in the drug and alcohol part of the Sentencing Act. It is necessary then to consider it with reference to its definition in the Dictionary to the Act, which provides that s 13(2) of the Sentencing Act provides the definition of ‘good behaviour order’. That is: The court may make an order (a good behaviour order) requiring the offender to sign or give an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a stated period.

120. So much is plain, and it is an order that often forms part of a treatment order, as it did in the original sentence order for Mr Slattery. The issue then becomes what is to occur when there is a breach of such an order. In particular, in this matter, where there is a breach by further offending.

Consequences of offending during treatment order

121. The starting point to determine this is to firstly recall that a treatment order comprises of a custodial part, which includes a treatment and supervision part, and may or may not also include a GBO component.

122. Where there is offending during a treatment order, s 80ZD of the Sentencing Act is of application. It 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. (2) If the offender is not subject to a sentencing order for the further offence, the court may— (a) make no order in relation to the treatment order; or (b) give the offender a warning about the need to comply with the offender’s treatment order obligations; or (c) make an order amending the treatment and supervision part of the order; or (d) make an order cancelling the treatment order. (3) If the offender is subject to a sentencing order for the further offence, the court must make an order cancelling the treatment order. (4) If the court cancels a treatment order under subsection (2) (d) or (3), the court must either— (a) impose the sentence of imprisonment that was suspended under the custodial part of the treatment order; or (b) if the court considers it appropriate in the circumstances—resentence the offender for each offence in relation to which the treatment order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and alcohol treatment orders). (5) If the court orders the imposition of a sentence of imprisonment under this section, the court— (a) must order that the offender serve all or part of the sentence by full-time detention at a correctional centre; and (b) may reduce the sentence by any period served in custody under the treatment and supervision part of the treatment order, taking into account the extent to which the offender complied with that part of the order. (6) The court may make an order under this section on its own initiative or on application by— (a) the offender; or (b) the director of public prosecutions; or (c) a member of the treatment and supervision team; or (d) a person prescribed by regulation. (7) If the court makes an order under this section, 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— (a) the offender; and (b) any other person the court considers should receive the notice. (8) Failure to comply with subsection (7) does not invalidate the treatment order. (9) In this section: sentencing order—see section 12A (9).

123. This section therefore provides that, upon conviction of a further offence during a treatment order, the court may either make no order, warn the offender as to the need to comply, or amend or cancel the order: ss 80ZD(1), (2) of the Sentencing Act. Where, after conviction, the offender is subject to a sentencing order (as defined in s 12A(9) of the Sentencing Act), the court must cancel the order.

Consequences of offending during GBO component

134. Nonetheless, this conclusion does not end the consideration of the issue of a breach in respect to Mr Slattery because the further offending, of which he will be convicted from this sentencing exercise, occurred during the GBO component of the treatment order.

135. As already observed, such an order has meaning in accordance with s 13(2) of the Sentencing Act. It follows that the Sentence Administration Act arises for consideration, with it providing for the consequences that may occur for offending during the commission of a GBO.

136. The Sentence Administration Act provides what is to occur when there has been an offence committed while under a GBO. Section 107 of the Act provides: 107 Offence committed while under good behaviour order (1) If the Supreme Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, the court may deal with the offender under this part for breach of the offender’s good behaviour obligations. (2) If the Magistrates Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, and the order was made or changed by the Supreme Court, the Magistrates Court must, in addition to dealing with the offender for the offence, commit the offender to the Supreme Court to be dealt with under this part for breach of the offender’s good behaviour obligations. (3) For subsection (2), a magistrate may remand the offender in custody until the offender can be brought before the Supreme Court.

137. Section 108 of the Sentence Administration Act then provides: 108 Court powers—breach of good behaviour obligations (1) This section applies if— (a) a court is satisfied an offender has breached any of the offender’s good behaviour obligations; and (b) section 110 (Cancellation of good behaviour order with suspended sentence order) does not apply to the offender’s good behaviour order. (2) The court may do 1 or more of the following: (a) take no further action; (b) give the offender a warning about the need to comply with the offender’s good behaviour obligations; (c) give the director-general directions about the offender’s supervision; (d) amend the good behaviour order; (e) if the offender has given security under the order— (i) order payment of the security to be enforced; and (ii) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended); (f) cancel the order. (3) If the court cancels the good behaviour order, the court must— (a) (a) if section 109 applies to the offender’s good behaviour order—deal with the offender under that section; or (b) (b) in any other case—re-sentence the offender for the offence for which the good behaviour order was made (the relevant offence). (4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on a conviction for the relevant offence. (5) The court’s powers under this section are subject to section 113 (Good behaviour orders—limitations on amendment or discharge). (6) To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the relevant offence.

Conclusion as to breach issue

144. As observed above, the approach by the Court in this matter, in delaying the sentence proceeding for Mr Slattery, is the only reason that s 80ZD is not of application to him. Had s 80ZD been of application, it is likely, albeit speculative, that a cancellation of the original treatment order would have been mandatory: s 80ZD(3) Sentencing Act. There was a prospect of either imposition of the original sentence of imprisonment that was suspended, or, a prospect of resentence: s 80ZD(4) Sentencing Act.

145. This does raise for consideration whether, in such circumstances, s 108 of Sentence Administration Act is, or should be, of application to Mr Slattery. Were his treatment order extant, it may be arguable that the Sentence Administration Act is of no application because s 80ZD would have applied. Further, the Sentence Administration Act is only available for consideration because Mr Slattery’s treatment order did include a GBO component. It is conceivable that another participant, who was convicted of further offending committed during the treatment and supervision part of their treatment order, but whose order had since expired, would not be subject to any consequences beyond it being an aggravating factor on sentence.

146. Nonetheless, a plain reading of the legislation is such that pt 6.5 of the Sentence Administration Act is of application. That there appears to be a lacuna in the legislation, in terms of there being no application of s 80ZD of the Sentencing Act following completion of the order, is not a basis upon which to disregard the operation of other applicable legislative provisions. This is so even in circumstances where there is also an apparent further lacuna in the legislation as to whether the Sentence Administration Act is actually intended to apply.

Application of s 108 Sentence Administration Act

147. As to then the appropriate course here in an application of s 108 of the Sentence Administration Act, there are some serious aspects to the breach. The offending occurred from around midway in the order and it was serious in terms of being a flagrant disregard for the opportunity of a community based order with the commission of repeated serious offences.

148. However, Mr Slattery has compelling subjective circumstances, and there is an explanation for his return to substance use and the consequential offending behaviour. The determination to be made in respect to the breach is also being made within a context of a sentencing exercise requiring application of the totality principle. I consider it appropriate to find the breach proved, and take no further action: s 108(2)(a) Sentence Administration Act. The prosecution did not press any other finding.

149. This finding does not preclude that it is otherwise relevant in the sentence to have regard to the offending having occurred while on conditional liberty, being an aggravating factor on sentence. I am cautious though that this aspect does not result in ‘double punishment’ in the sentencing exercise given the legislative consequences that have applied in respect to the breach.

Consideration

150. Mr Slattery presents a challenging sentencing exercise. He is to be sentenced for a large number of offences, including offending committed during the good behaviour component of a treatment order. That is, he has previously had the opportunity of a treatment order, and he successfully completed the treatment and supervision component of the order. Indeed, his compliance and engagement with that component of the order was initially without fault. He achieved rehabilitation and the objects of the order, at least initially. His capability to engage with the treatment and supervision part of a treatment order gives this Court a level of confidence as to the appropriateness and his suitability for such an order that is seldom available in the sentencing exercise.

151. However, Mr Slattery did not sustain his rehabilitation and returned to substance dependency and offending behaviour. There needs to be a compelling reason for there to be confidence that a further opportunity for a treatment order is capable of achieving sustained rehabilitation beyond the terms of such an order. A treatment order does not simply have an intention to achieve the objects as provided in s 80O of the Sentencing Act for the duration of the order. The intention of the treatment team is to achieve the objects of the order for the remainder of a participant’s life.

152. The prosecution appropriately cautions as to the prospects of rehabilitation in circumstances where Mr Slattery’s reported challenges in addressing his underlying traumas were matters that he had begun to have insight into at least as of January 2024, and the rehabilitation he engaged with then was not ultimately effective. In so submitting, the prosecution did recognise that rehabilitation from substance dependency is non-linear, as is the journey of recovery from trauma. Nonethless, the material before the Court gives confidence that the therapeutic needs that Mr Slattery has have now been identified, and that the treatment team has the capability to support them.

153. I have an appropriate level of confidence in Mr Slattery’s capacity to finally achieve rehabilitation. He has developed insight into the reasons why his previous rehabilitation was not sustained, and he has a genuine commitment to address this with a view to securing long term rehabilitation. It would ultimately be of detriment to the community, and detract from the prospects of community protection, were a further opportunity for a treatment order not afforded.

154. In all of the circumstances, having considered the matters in ss 12A, 80S, and 80T of the Sentencing Act, I am satisfied that a treatment order is an appropriate and suitable one.

155. Finally, noting Mr Slattery’s willingness to engage with restorative justice, it is appropriate to observe that I do not propose to make such an order for Mr Slattery. His focus needs to be on his recovery, with a period of treatment and supervision being the shortest recommended period of 12 months. This will then enable the longest period available with reduced supervision to support Mr Slattery’s longer term rehabilitation, which is clearly the most challenging period in which he requires supervision upon transiting from the intensive treatment and supervision stage. This is not to say that Mr Slattery cannot engage in his own form of restorative justice in the future and reflect on his behaviour and prepare letters of apology to the victims of his crimes if he so desires.

Orders

156. For those reasons the following orders are made:

Sentences served: (1) On the charge of use carriage service to threaten to cause serious harm (CAN 2025/995), the offender is convicted and sentenced to 9 months imprisonment, reduced from 12 months imprisonment on account of the plea of guilty, to commence on 7 June 2023 and conclude on 6 March 2024. (2) Pursuant to s 19AC(4)(b) of the Crimes Act 1914 (Cth), in relation to charge CAN 2025/995, I decline to make a recognizance release order because the offender will be serving a Territory sentence immediately following the expiry of the Commonwealth sentence. (3) On the charge of trespass (CAN 2023/6464), the offender is convicted and fined $1000.00, with 12 months to pay. (4) On the charge of minor theft (CAN 2023/6465), the offender is convicted and sentenced to 2 months imprisonment, reduced from 80 days imprisonment on account of the plea of guilty, to commence on 7 March 2024 and conclude on 6 May 2024. (5) On the charge of possess knife without reasonable excuse (CAN 2023/6466), the offender is convicted and sentenced to 2 months imprisonment, reduced from 80 days on account of the plea of guilty, to commence on 7 April 2024 and conclude on 6 June 2024. (6) On the charge of dishonestly obtain property by deception (CAN 2023/6467), the offender is convicted and sentenced to 3 months imprisonment, reduced from 4 months on account of the plea of guilty, to commence on 7 May 2024 and conclude on 6 August 2024. (7) On the charge of minor theft (CAN 2023/3059), the offender is convicted and sentenced to 2 months, reduced from 80 days imprisonment on account of the plea of guilty, to commence on 7 August 2024 and conclude on 6 October 2024. (8) On the charge of minor theft (CAN 2023/3063), the offender is convicted and sentenced to 1 month imprisonment, reduced from 40 days imprisonment on account of the plea of guilty, to commence on 7 October 2024 and conclude on 6 November 2024.

Sentences subject to drug and alcohol treatment order (9) On the charge of drive motor vehicle without consent (CAN 2023/3062), the offender is convicted and sentenced to 3 months imprisonment, reduced from 4 months imprisonment on account of the plea of guilty, to commence on 7 November 2024 and conclude on 6 February 2025. (10) On the charge of dangerous driving (repeat offender) (CAN 2023/4340), the offender is convicted and sentenced to 3 months imprisonment, reduced from 4 months imprisonment on account of the plea of guilty, to commence on 7 February 2025 and conclude on 6 May 2025. (11) On the charge of drive while disqualified (repeat offender) (CAN 2023/3061), the offender is convicted and sentenced to 2 months imprisonment, reduced from 80 days imprisonment on account of the plea of guilty, to commence on 7 April 2025 and conclude on 6 June 2025. (12) On the charge of aggravated burglary (CAN 2023/8256), the offender is convicted and sentenced to 6 months imprisonment, reduced from 8 months on account of the plea of guilty, to commence on 7 June 2025 and conclude on 6 December 2025. (13) On the charge of theft (CAN 2023/8246), the offender is convicted and sentenced to 3 months imprisonment, reduced from 4 months imprisonment on account of the plea of guilty, to commence on 7 October 2025 and conclude on 6 January 2026 (14) On the charge of aggravated burglary (CAN 2023/8257), the offender is convicted and sentenced to 6 months imprisonment, reduced from 8 months imprisonment on account of the plea of guilty, to commence on 7 December 2025 and 6 June 2026. (15) On the charge of theft (CAN 2023/8258), the offender is convicted and sentenced to 3 months imprisonment, reduced from 8 months imprisonment on account of the plea of guilty, to commence on 7 April 2026 and conclude on 6 July 2026. (16) On the charge of minor theft (CAN 2023/8247), the offender is convicted and sentenced to 2 months imprisonment, reduced from 80 days imprisonment on account of the plea of guilty, to commence on 7 June 2026 and conclude on 6 August 2026. (17) On the charge of aggravated burglary (CAN 2023/7152), the offender is convicted and sentenced to 29 months imprisonment, reduced from 3 years imprisonment on account of the plea of guilty, to commence on 7 May 2026 and conclude on 6 October 2028. (18) On the charge of theft (CAN 2023/7153), the offender is convicted and sentenced to 9 months imprisonment, reduced from 12 months on account of the plea of guilty, to commence on 7 January 2028 and conclude on 6 October 2028. (19) On the charge of damage property (CAN 2023/9664), the offender is convicted and sentenced to 9 months imprisonment, reduced from 12 months on account of the plea of guilty, to commence on 7 January 2028 and conclude on 6 October 2028.

Non- drug and alcohol treatment order sentences (20) On the charge of possess prohibited weapon (CAN 2023/6312), the offender is convicted and sentenced to the rising of the court. (21) On the charge of possess drug of dependence (CAN 2023/3064), the offender is convicted and no penalty is imposed. (22) On the charge of dishonestly obtain property by deception (CAN 2023/6313), the offender is convicted and sentenced to the rising of the court.

Breach of drug and alcohol treatment order (23) I find the breach of the treatment order imposed on 9 February 2021 proved and take no further action.

Licence disqualifications (24) An automatic minimum licence disqualification period of 12 months applies in relation to CAN 2023/4340. (25) An automatic minimum licence disqualification period of 24 months applies in relation to CAN 2023/3061. This is to be served concurrently with the disqualification period in relation to CAN 2023/4340.

Drug and alcohol treatment order (26) A Drug and Alcohol Treatment Order pursuant to s 12A of the Crimes (Sentencing) Act 2005 (ACT) is made for Joshua Slattery, in respect of the eligible offences set out in Orders 9 to 19, of which Joshua Slattery has been convicted, and for which he has been sentenced to a total term of 3 years and 11 months imprisonment. (27) The drug and alcohol treatment order be for 3 years, 6 months and 7 days, to commence on 31 March 2025 and end on 6 October 2028 (28) The Custodial Part of the drug and alcohol treatment order for the eligible offences be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 31 March 2025 to 6 October 2028. (29) The Treatment and Supervision Part of the drug and alcohol treatment order be for 12 months, to commence on 31 March 2025 and end on 30 March 2026. (30) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Joshua Slattery be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 31 March 2026, until the end of the total sentence, 6 October 2028, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him. (31) For the Treatment and Supervision Part of the drug and alcohol treatment order: (a) The core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed. (b) Joshua Slattery undertake any program, treatment or counselling, alcohol and drug testing or case management, and comply with any direction as to where he resides, or any curfew that may be required, by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team. (c) If Joshua Slattery is discharged from or leaves any treatment program, he is to report to ACT Corrective Services by 4:00pm on the next business day. (d) Joshua Slattery not return a positive test sample under alcohol and drug testing. (e) Joshua Slattery not consume or use alcohol, cannabis, illicit drugs and prescription drugs not prescribed to him. (f) Joshua Slattery comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. (32) Joshua Slattery be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force before he leaves the Court precincts on 31 March 2025. (33) Joshua Slattery be directed to appear in Court for DASL Review in person or by AVL on Friday, 4 April 2025 at 12:30pm.

I certify that the preceding one hundred and fifty-six [156] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 29 April 2025