Director of Public Prosecutions v Black (No 2)
[2025] ACTSC 219
•29 May 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Black (No 2) |
Citation: | [2025] ACTSC 219 |
Hearing Date: | 20 May 2025 |
Decision Date: | 29 May 2025 |
Before: | Taylor J |
Decision: | See [151]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – property damage – assault occasioning actual bodily harm – assault frontline community service provider – riot – guilty plea – offences committed in custody – significant delay in prosecution – consideration of parity - disadvantaged childhood and upbringing – application of Bugmy principles |
Legislation Cited: | Corrections Management Act 2007 (ACT), s 184 Crimes Act 1900 (ACT), ss 24(1), 26A Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 29 Criminal Code 2002 (ACT), ss 45A, 403, 404(1) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cranfield v The Queen [2018] ACTCA 3 Dowell (1982) 6 A Crim R 113 DPP v Chatfield [2024] ACTSC 329; 21 ACTLR 240 DPP v Djerke (No 2) [2023] ACTSC 341 DPP v George [2024] ACTSC 37 DPP v Stasinos [2023] ACTSC 179 Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462 Griffin v R [2018] NSWCCA 259 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 KR v The Queen [2012] NSWCCA 32 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Beroukas [2021] ACTSC 172 R v Blackburn;R v QH [2021] ACTSC 284 R v Booth [2004] ACTCA 21 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Carmody (No 3) [2017] ACTSC 60 R v David Keith Green [2019] NSWDC 66 R v Dawson [2022] ACTSC 64 R v Denniss [2019] ACTSC 283 R v Denniss [2021] ACTSC 15 R v Dunn [2019] ACTSC 75 R v Hagen [2022] ACTSC 362; 374 FLR 260 R v Howsan [2020] ACTSC 172 R v Hudson [2019] ACTSC 110 R v James (1981) 27 SASR 348 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Marzotto [2021] ACTSC 184 R v Millwood [2012] NSWCCA 2 R v Nguyen [2018] ACTSC 146 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Rahman [2021] ACTSC 257 R v Redmond (No 2) [2022] ACTSC 295 R v Tran [1999] NSWCCA 109 R v Wieland [2020] ACTSC 16 R v Wrigley [2015] ACTSC 114 R v Yeaman (No 2) [2021] ACTSC 287 Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191 Small (1980) 2 Cr App R (S) 25 Smith v The Queen [2011] NSWCCA 163 Stott v The Queen [2012] ACTCA 33 |
Parties: | Director of Public Prosecutions ( Crown) Jett Black ( Offender) |
Representation: | Counsel M Dyason ( Crown) S Robinson ( Offender) |
| Solicitors ACT Director of Public Prosecutions Bevan & Co ( Offender) | |
File Numbers: | SCC 240 of 2023 SCC 179 of 2024 SCC 180 of 2024 |
TAYLOR J:
Introduction
1․The offender, Jett Black, is to be sentenced for two separate series of offences.
Series 1: Riot offences
2․On 10 November 2020, the offender, was a detainee at the Alexander Maconochie Centre (AMC). The offender, along with other detainee co-offenders, participated in what has been referred to in these and related proceedings as a “riot”. The riot saw the lighting of five fires throughout the North Wing Remand Unit of the AMC. The offender is to be sentenced for the following two offences relating to his participation in the riot, to which he pleaded guilty on 10 July 2024:
(a)Count 1 (CC2023/2394): Arson, contrary to s 404(1) and by virtue of s 45A of the Criminal Code 2002 (ACT), which carries a maximum penalty of 1500 penalty units, imprisonment for 15 years or both.
(b)Count 2 (CC2023/2422): Damage property, contrary to s 403 and by virtue of s 45A of the Criminal Code, which carries a maximum of 1000 penalty units, imprisonment for 10 years or both.
Series 2: Assault offences
3․This series consists of two offences committed on 25 and 26 August 2023. The offender pleaded guilty to the following offences on 10 April 2024:
(a)CC2023/8405: Assault occasioning actual bodily harm, contrary to s 24(1) of the Crimes Act 1900 (ACT) and by virtue of s 45A of the Criminal Code, which carries a maximum penalty of imprisonment for five years.
(b)CC2023/8406: Assault frontline community service provider, contrary to s 26A of the Crimes Act which carries a maximum penalty of imprisonment for 2 years.
Agreed facts
Series 1
Layout of the North Wing Remand Unit
4․The North Wing Remand Unit (‘AU North’) within the AMC in Hume, ACT is designed to house detainees. It has an external perimeter and is secure from the rest of the AMC. It attaches to a central access and monitoring area used by correctional officers.
5․AU North has 2 floors and is comprised of 14 accommodation cells, a laundry room, a programs room, an interview room and a common area (‘the Dayroom’). The Dayroom, the laundry room, the programs room, the interview room and cells 1 to 5 are located on the lower floor. The Dayroom contains a kitchen and sink area. Stairs in the Dayroom lead up to the upper floor, where cells 6 to 14 are located. A large outdoor common area (‘the Courtyard’) can be accessed by a door in the Dayroom. The Courtyard has a large concrete wall on its south side, an exterior fence along its west and north sides, and a wall on its east side which has a door to the central access and monitoring area. The Courtyard contains outdoor gym equipment. Closed-circuit television (CCTV) cameras are located in the Dayroom, the Courtyard and the area around the Courtyard.
Discontentment in AU North
6․In November 2020, there were tensions among some of the detainees of AU North regarding COVID-19 related restrictions. Limits upon visitors, no-contact visits, and internal lockdowns contributed to detainees being “pretty much on edge”.
7․In the evening of 10 November 2020, before detainees were due to be locked-in for the evening, Correctional Officer Smith spoke to several detainees, including the offender, about the provision of cigarettes by way of supplementary buy-ups. The cigarettes were not provided, and a perception of unequal treatment towards the detainees of AU North spread amongst detainees. Further to this, desserts had not been made available, which led to the offender yelling at staff and agitating other detainees.
8․An agreement was made between some of the detainees to resist the evening’s lock-in. KT, an inmate of AU North at the time, later told police, “It was supposed to just be a sit down, and everyone kind of – not everyone, but everyone kind of agreed to just sit down and not get locked in because we thought we were getting treated unfairly”.
Preparatory conduct
9․The events described below were depicted on CCTV footage.
10․The offender used white fabric to tie a door to the Courtyard to an adjacent bollard. Co‑offender Winters carried out several rolls of toilet paper and placed them on an appliance under the stairs in the Dayroom. Co-offender Winters placed more toilet paper rolls in the Dayroom and around the Courtyard. Co-offender George later joined Co-offender Winters in dispersing the toilet paper.
11․Co-offender George used a long stick to damage two CCTV cameras. The offender also threw objects at the two cameras. Co-offender Winters threw a bin at a camera and co-offender George attempted to obscure a camera by placing a towel over it.
12․Co-offenders Winters and George, and co-accused Fielding, took several plastic bags of rubbish to the Courtyard. The offender moved part of a table-tennis table in the Dayroom to cover the interior Dayroom entry door, obstructing the line of sight and access through the door. Co-offender Winters held a black and silver lighter in one hand and a roll of toilet paper in the other.
13․The offender ripped linen from the laundry into strips. Co-offender Winters then took a cardboard box and toilet paper and took them to the external Courtyard entry door and placed it at the base of the door with plastic bags of rubbish.
Fire 1
14․The debris at the external entry door to the Courtyard started to smoke. Co-offender George threw toilet paper on the ignited debris, causing the fire to grow larger. Co-offender Winters then used the fire to set cardboard boxes alight. Co-offender Winters collected several bundles of blankets from the laundry and put them on Fire 1.
15․The fire caused smoke to fill the area in which the correctional officers were based. Co-offenders Winters and George continued to stoke the fire.
16․Co-offender Winters added another part of the table-tennis table to the Dayroom entry door, creating a barricade. Co-accused Fielding tied a shirt over his face.
17․Co-offenders Winters and George pulled the metal frame and legs from a table in the Dayroom. Co-offender Winters attempted to smash the glass between the Dayroom and the area where the correctional Officers were with parts of the table. Co-accused Fielding also tried to break the glass with a metal object.
18․Co-accused Fielding pulled the table frame from a table leg. Using a metal pole, he then hit the glass in the interview room door and multiple other doors and windows throughout AU North.
19․Co-offender Winters shattered a camera using a metal pole while co-offender George broke another table into pieces, adding the tabletop to the barricade.
Fire 2
20․Co-accused Fielding threw rolls of toilet paper from cell 8 to co-offender Winters, who unravelled them and put them near a white cardboard box at the base of the wall connecting the laundry room to the Courtyard. Co-offender Winters added further toilet paper and another box before bending over the pile. Flames and smoke started emanating, creating Fire 2.
21․Co-offender Winters handed a small item to co-accused Fielding. Co-offender Winters added clothing, boxes, and part of a wooden table to Fire 2. Co-accused Fielding later dropped a small item from level 2 down to co-offender Winters.
22․The offender, co-offender Collier, and co-offender George struck at a locked fire hose reel cabinet in the Dayroom in an attempt to gain entry.
Fire 3
23․Co-offender Winters added further linen to Fire 2. He then took two burning items and placed them in the Courtyard on the opposite side of the metal fence to where Fire 2 was, creating Fire 3.
24․Co-offender Winters pointed to co-accused Fielding, who was on the second floor. Co-accused Fielding took a mattress from cell 8 and threw it down to co-offender Winters, who then dragged it outside and placed in on Fire 3. Flames began to enter the Dayroom through an air vent in an external wall. Co-offender George poured some water on the grate, which had no impact on the fire.
25․Co-offender George collected fabric items and threw them on a flaming mattress. correctional officers attempted to extinguish Fire 1 using a hose through the cracks of the internal Courtyard door.
Fire 4
26․The offender kicked the doors off some cabinetry in the programs room. He then placed them against the external door at the far end of the Courtyard. Co-offender Winters dragged a mattress from cell 1 into the Courtyard and added it to the where the offender had left the cabinet doors. The offender added further doors and clothing items to the pile. Co-offender Winters approached the pile, which then started to emanate smoke, creating Fire 4.
27․Co-offender Collier added fabric items and another cabinet door to the fire. Co-accused Fielding, along with several other detainees, emptied liquid onto the floor of the Dayroom.
28․Around this time, ACT Fire and Rescue (‘ACTFR’) arrived and were escorted to the perimeter by correctional officers carrying riot shields.
Fire 5
29․Co-offender Winters and co-accused Fielding entered the Dayroom together. Co-accused Fielding took brown fabric from an appliance and took it outside to the Courtyard. Co-offender Winters dragged a mattress from cell 3 into the Courtyard. Co-offender Collier dragged a mattress from cell 1 into the Courtyard. The pair placed the mattresses against the wall connecting to the Dayroom and smoke started rising from the ground, starting Fire 5.
30․Co-offender Collier was handed a bundle of blankets and fabric by another detainee. Co-offender Collier then placed the fabric on Fire 5. Co-offender Winters then threw a computer monitor onto the fire. Co-offender Winters, with the assistance of other detainees, dragged a washing machine into the Courtyard and threw it on the fire. He then dragged a second washing machine and a fridge and placed them on Fire 5. Co-offender Winters continued to add blankets and fabric items to the fire.
31․Between 9pm and 10pm, fires were also lit by unknown persons in cells 8, 14 and in the programs room. Around 10.06pm, ACTFR and Corrective Services gained entry to the Dayroom and extinguished the fires.
32․The offender was not subject to any administrative penalty from ACT Corrective Services under s 184 of the Corrections Management Act 2007 (ACT) in relation to the above conduct.
Summary of damage
33․In summary, the property relied upon for the damage property offence was all owned by the ACT Government and included electrical appliances, mattresses, bedding, CCTV cameras, furniture and fixtures in AU North. The estimated total cost for repairs for the damage was assessed at $1,606,605.
Series 2
Assault occasioning actual bodily harm
34․At approximately 11:30pm on 25 August 2023, Mr J and his partner, Ms H, returned to their apartment in the suburb of Gungahlin.
35․A short time later, Mr J and Ms H heard a disturbance outside, which they believed to be intoxicated people leaving from a nearby licenced venue. Mr J looked out of his window and saw what appeared to be three intoxicated males across the road in the Access Canberra Carpark.
36․The three males were:
(a)The offender who was wearing black pants, red slides, a black jacket and a black cap with long hair protruding.
(b)Co-offender KB who was wearing dark pants, a dark long-sleeved shirt and a tan coloured cap.
(c)Co-offender TN who was wearing a high-visibility long-sleeved top, dark pants and a tan coloured cap.
37․Mr J retrieved his digital camera and used the zoom function on the camera to observe the offender and co-offenders.
38․Mr J observed the offender and co-offenders jumping on parked vehicles. One of the males pulled a sign out of the ground and swung it around. A vehicle drove past, and Mr J observed what looked to be the male attempting to throw the sign at the passing vehicle.
39․As Mr J continued to observe them, he took several images of the offender and co-offenders. The images captured, amongst other things, the clothing worn by the offender and co-offenders as outlined above, as well as co-offender KB swinging a pole and, what appeared to be, an orange traffic cone.
40․At this time, another resident of the apartment complex, Mr D, also heard the offender and co-offenders outside. Mr D decided to leave the complex and ask them to be quiet. Mr D suffers from an intellectual disability which, amongst other things, impacts his speech.
41․Mr D left his apartment and walked out through the reception and onto The Valley Way. CCTV footage captured Mr D leaving the foyer of the complex at 11:34pm. He then crossed the street to ask the offender and co-offenders to ‘move on’. As he approached the offender and co-offenders, he was observed by Mr J.
42․Mr D spoke to the offender and co-offenders and said words to the effect of, “cut it out”, and “there was no need for it”. The offender then stated, “Do you want to getting [sic] fucking stabbed or something”. The co-offenders said words to the effect of, “give me everything you’ve got”, and “your wallet, your phone”. Mr J also heard the offender say words to the effect of “do you want to get stabbed”.
43․Mr D then crossed back over the road towards his apartment complex. As he did so, he was followed by the offender and co-offenders. Mr D was then struck by the offender and fell to the ground.
44․Once Mr D was on the ground, the offender and co-offenders each struck the victim several times, causing him multiple injuries. As he was struck, Mr D put his hands up to try and protect himself. He was kicked in the face at least once during the course of the assault.
45․Following the assault, Mr D was assessed as having sustained the following injuries:
(a)Commuted bilateral nasal bone fractures. The fracture required specialist intervention and surgery under general anaesthetic.
(b)Three facial bruises.
(c)Bruising to his upper limbs and lower back.
(d)Abrasions to his face and abdomen.
(e)Tenderness of the upper face, left mid rib cage, scalp, right arm and left lower back.
(f)A concussion.
(g)Mr D also complained of impaired sight to his left eye, however no underlying pathological injury was detected.
46․During the assault, Mr J alerted Ms H to what was occurring. Ms H left their apartment and went downstairs to render aid to Mr D. Upon her arrival, the offender and co-offenders had left the location.
Assault frontline community service provider
47․At 11:53pm, police arrived and were alerted to the presence of the offender and co-offenders on the opposite side of The Valley Way. Police approached and spoke with the offender and co-offenders.
48․During his engagement with police, the offender was belligerent. Each of the three offenders identified themselves to the police. They were each cautioned and when questioned, denied any involvement or knowledge about the incident. The offender and co-offenders each referred to having been drinking at a nearby licensed venue.
49․At 12:20am, police advised the offender and co-offenders that they were under arrest. While the offender was being walked towards a police pod vehicle, he stated that he wanted a cigarette. When he was informed that he was not able to smoke, the offender stated words to the effect of, “Are you trying to staunch me? Keep smiling”. The offender then stated words to the effect of, “I’ll just run, and you won’t be able to catch me”.
50․Police took a hold of the offender by his clothing on his back and shoulder area so that he could not escape custody. Police moved the offender towards the front of the police vehicle so that he could be handcuffed. The offender placed both of his hands out in front of him, making impact with the front of the police vehicle. Simultaneously, the offender tensed his upper body and pushed back against the police.
51․Fearing an imminent assault, police took the offender to the ground so he could be handcuffed. The offender landed on his left-hand side. The offender immediately reached around with his right hand towards the face of D/A Inspector Brett Coutts. The offender recklessly made contact with D/A Inspector Coutt’s face in a clawing motion. D/A Inspector Coutts felt the offender’s fingers make contact with his right eye, prior to being scratched across the left-hand side of his face, under his left eye. The scratches immediately begun to bleed, and D/A Inspector Coutt’s vision became blurred in his right eye.
52․The offender was told to place his hands behind his back. The offender placed both of his hands under his upper body and held them there. Multiple police officers were required to use force to restrain and handcuff the offender. The offender was then placed in the rear of a caged police vehicle.
53․At about 12:42am, the offender was transported to the ACT Regional Watch House and lodged. He was not offered the opportunity to participate in a record of interview due his apparent level of intoxication.
Nature and circumstances of the offending
54․As part of an assessment of the nature and circumstances of the offending, the objective seriousness of the conduct must be considered. The maximum penalty serves as an “indication of the relative seriousness of the offence”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 133 [31]. Consistent with observations in this jurisdiction as to the utility of refences to “low”, “mid” or “high” range as a useful measurement of the objective seriousness of an offence, I will identify the features of the offending conduct which inform the objective seriousness.
55․Three of the offences were committed by virtue of s 45A of the Criminal Code and it is necessary to consider both the objective seriousness of the principal offence and the nature and extent of the offender’s involvement.
Series 1
56․The following general observations are consistent with observations I made when sentencing the co-offenders.
57․The offending was a course of conduct and accordingly, there are some considerations common to both offences. The conduct caused significant damage and presented risk to the participants of the offending as well as to other inmates and employees at the AMC. The damage caused considerable inconvenience to inmates and to the overall management of the prison.
58․There was evidence of preparatory action in the immediate lead up to the commencement of the conduct, as well as conduct designed to give effect to the intention to cause chaos uninterrupted and undetected (barricading of doors, obscuring of security cameras, multiple sources of fire).
59․The level of co-operation between the co-offenders and co-accused, was indicative of their common motivation to express their dissatisfaction with prison conditions. I am not satisfied beyond reasonable doubt that the co-operation was evidence of extensive planning or significant premeditation. The agreement having been made, the participants quickly moved to give it effect.
Arson
60․The maximum penalty for this offence, being 1500 penalty units, imprisonment for 15 years, or both, as a “yardstick” reflects the seriousness of the offence. As observed in R v Booth [2004] ACTCA 21 at [26], citing Small (1980) 2 Cr App R (S) 25 at 26, R v James (1981) 27 SASR 348 at 351 and Dowell (1982) 6 A Crim R 113 at 116, “[a]rson is a very serious crime and the need for deterrence must generally be given substantial weight when an offender is sentenced”.
61․In R v Wrigley [2015] ACTSC 114 at [34], Refshauge J outlined the factors relevant to an assessment of the seriousness of the offence. They can be summarised as follows:
(i)how the fire was lit (for example, whether an accelerant was used);
(ii)whether the offending was intentional and the degree of premeditation or planning;
(iii)the reason why the arson was committed;
(iv)the degree of potential injury to life or harm to others; and
(v)the extent of damage caused by the fire.
62․I repeat the observations in DPP v George [2024] ACTSC 37 at [45] in relation to the factors informing the objective seriousness of the arson offence:
45. In this instance, the extent of the damage was significant, even accepting that the estimated financial value of the damage provided by the prosecution is unreliable. The offender readily accepted that the damage, on any view, was extensive. The motivation for the offending seems to be entirely connected to a sense of frustration, perhaps even anger, felt by detainees at the conditions imposed upon them as part of the AMC’s response to the COVID-19 pandemic. I hasten to add that acknowledgement of that motivation should not be read as any endorsement of the conduct but it would be artificial to pretend that further restriction in an already restricted environment did not have a psychological and/or emotional effect upon detainees such as the offender. The conduct was an extreme, dangerous and ultimately, entirely senseless expression of detainee discontent. In my view, the conduct was very deliberately crafted to maximise the chaos of the situation. The offending is properly characterised as very serious.
Damage property
63․R v Dawson [2022] ACTSC 64 saw McWilliam J at [41] articulate those factors relevant to an assessment of the objective seriousness of the offence of damage property. They are the motivation for the offending, the extent and value of the property and the level of inconvenience occasioned to the owner.
64․The motivation that accompanied this offence is the same motivation for the offence of arson. The extent of the damage to property was significant and the entirety of the conduct resulted in the closure of AU North for some time. The conduct was deliberate.
Assessment of involvement in the offending
65․Participation in a joint criminal enterprise results in liability or responsibility for all of the acts committed by the participants in the course of carrying out the enterprise: KR v The Queen [2012] NSWCCA 32 at [19]. An assessment of liability or responsibility and moral culpability are relevant at different stages of the criminal process: KR at [20]. The moral culpability of an individual participant is assessed by reference to the specific conduct they engaged in as well as their subjective circumstances “in order to determine the appropriate degree of punishment”: KR at [22]. Accordingly, an assessment of the objective seriousness of a joint criminal enterprise offence will have limits to the amount of differentiation amongst co-offenders: Stott v The Queen [2012] ACTCA 33 at [64], citing R v JW [2010] NSWCCA 49; 77 NSWLR 7 with approval.
66․The prosecution submitted that the offender’s role was “akin to a principal or leader”, relying on the portion of the facts (above at [7]) where the offender is noted to have been “agitating other detainees” prior to the riot breaking out.
67․Further, the offender engaged in preparatory conduct including ripping linen into strips and kicking off cabinetry doors. The offender threw objects at two CCTV cameras, moved furniture to obstruct a doorway, and struck a locked fire hose reel cabinet in an attempt to gain entry. The offender placed doors and clothing in a pile which was subsequently set alight by another detainee. Whilst the prosecution conceded the offender was not directly responsible for lighting any of the fires, it was submitted he was nonetheless a “key participant” due to his involvement in the planning and preparation of the fires. The prosecution submitted that his culpability is “more akin to that of co-offenders Winters (albeit less than Winters) and George as compared to co-offender Collier”.
68․It was submitted on behalf of the offender that the Court could not be “satisfied beyond a reasonable doubt that the offender was a “leader” in the offending” as the agreed facts are “mostly silent” on the conduct that initiated the riot. It was submitted that the reference to “agitating other detainees” was in respect to there being no dessert and therefore it does not follow that the offender was a “leader”. Counsel for the offender categorised the offender’s culpability as being less than that of co-offenders Winters and George but more than co-offender Collier’s.
69․There is some strength to the submission from Mr Robinson on behalf of the offender that his role as an agitator did not necessarily translate to being a leader of the offending. It is to be recalled that the pathway to the offending was detainee frustration and anger at the ongoing restriction upon them because of the COVID-19 response within the prison. The offender yelled at correctional staff because dessert was denied. There is little evidence about how detainee “discontent” led to the agreement to “resist the evening’s lock-in” which escalated to the ‘riot’.
70․The offender encouraging the anger of his fellow detainees should not be conflated with leading the offending. I am satisfied beyond reasonable doubt that the offender’s level of involvement in the joint criminal enterprise was significant. I am not, however, satisfied beyond reasonable doubt that the offender should be categorised as an “instigator” or “leader” in the same way as co-offenders Winters and George.
71․Co-offenders George and Winters were actively involved in the lighting of fires and either identified themselves as being “in charge” or were observed to be directing other detainees during the riot. This is in contrast to the offender who, while engaging directly in property damage, only engaged in conduct that assisted those who lit and maintained the fires.
72․I agree with Mr Robinson’s categorisation of the offender’s conduct as being more serious than the conduct engaged in by co-offender Collier, but less serious than that of co-offender George and Winters.
Series 2
Assault occasioning actual bodily harm
73․An assessment of the objective seriousness of this offence requires a consideration of the degree of violence used or the ferocity of the attack, and the consequent injury: see R v Redmond (No 2) [2022] ACTSC 295 at [12].
74․The offending was precipitated by the offender and co-offenders causing a ruckus at night on a residential street, which prompted the victim to ask the three men to “cut it out”. The victim was immediately threatened by the offender who said words to the effect of, “Do you want to getting [sic] fucking stabbed or something”. The victim then attempted to end the interaction and walked back towards his apartment complex. Instead of allowing the victim to go home, the offender and co-offenders followed the victim.
75․The offender struck the victim which caused him to fall to the ground. Once on the ground, the offender and co-offenders each “struck the victim several times”. The victim was “kicked in the face at least once” although it is not identified which of the offenders is responsible for this particular strike. Plainly, the assault involved a significant degree of violence.
76․The victim suffered a number of injuries, identified above at [45]. The most significant of which appeared to be a broken nose which required surgery. Photographs of the victim and his injuries were provided to the Court. The harm caused to the victim is undoubtedly serious.
77․The attack on the victim by three men made the possibility of him defending himself effectively, impossible. The victim has an intellectual disability. The attack upon him was random, unprovoked and brutal. It was cowardly conduct. Emboldened by the safety that outnumbering the victim afforded them, the offenders continued to strike the victim while he was on the ground. The assault is properly categorised as an act of grotesque and gratuitous violence. Whilst there was no victim impact statement, I have no doubt that the experience would have been painful and terrifying for the victim.
78․The offender was charged by way of joint commission along with two co-offenders and I bear in mind the observations made above at [65]. In respect to the offender’s role in the assault, he is accurately categorised as a “leader” in the offending conduct. The facts demonstrated that the offender set the tone of the interaction with the victim by almost immediately threatening to stab him. The facts also reveal that the offender was the first to strike the victim as he was attempting to walk back to his home. It was the offender’s strike which caused the victim to fall to the ground. The offender’s role in the assault was significant.
79․The circumstances of this offence render it a serious example of assault occasioning actual bodily harm.
Assault frontline community service provider
80․As I observed in DPP v Chatfield [2024] ACTSC 329; 21 ACTLR 240 at [85]-[86]:
Section 26A of the Crimes Act came into effect on 10 June 2020 by virtue of the Crimes (Protection of Police, Firefighters and Paramedics) Amendment Bill 2019 (ACT). The Explanatory Statement for that Bill details the increasing frequency and severity of assaults against emergency frontline workers and that the law must recognise their special occupational vulnerability as well as deter people from engaging in this type of violent conduct.
…The circumstances and extent of the harm caused inform an assessment of the objective seriousness of the offence: see R v George [2021] ACTSC 361 at [67].
81․The offending in this instance involved the offender “clawing” at the police officer’s face and contact with a vulnerable part of the officer’s face, namely his right eye. The offender caused abrasions under his left eye which bled. The officer complained of blurred vision in his right eye immediately following the assault. Whilst the resulting injury cannot be classed as particularly serious, the offending would have caused pain and certainly unnecessarily frustrated the officer in the execution of his duties.
Subjective circumstances
82․The material before the Court included an Intensive Correction Order Assessment Report (ICOAR) dated 13 May 2025, a Pre-Sentence Report (PSR) dated 17 February 2025, a psychological report authored by Mr Peter Watt dated 26 November 2024 together with a supplementary report from Mr Watt dated 13 May 2025.
ICOAR and PSR
83․The offender is 28 years old. He is one of three children from his parents’ relationship and he has two half-siblings from his mother’s subsequent relationship. His parents’ relationship ended [redacted]. [Redacted].
84․The offender remained in regular contact with his father until his death in February 2024. The offender was incarcerated at the time of his father’s death. The offender identified that his inability to be with his father when he died has had a profound impact on him. He described his relationship with his mother as complex and he has not had contact with her since 2023. He has reconnected with his sister following their father’s death and has ongoing contact with his brother.
85․The offender has been in an “on and off” relationship with his current partner for the past 10 years with whom he shares a 17-month-old daughter. The offender described this relationship in positive terms. The offender’s partner has another son from a previous relationship for whom the offender has taken on a “step-father” role.
86․The offender reported leaving school prior to completing Year 9. [Redacted]. The offender has completed silica and asbestos training courses and is enrolled in a traffic control course.
87․The offender commenced drinking alcohol at age 11 and using methamphetamine at the age of 13. He disclosed having used methamphetamine immediately upon his release from custody however advised having abstained since this time. He is prescribed medicinal cannabis and uses it daily. The offender advised he has never engaged in a rehabilitation or treatment program for his illicit substance use however “feels he has enough support from his partner to maintain his abstinence”. The offender underwent oral drug screening on 6 February 2025 and 5 May 2025, both of which returned negative results for all substances except THC.
88․The offender was described as having a poor recollection of the first series of offences though felt the statement of facts unfairly portrayed him as the “mastermind” of the incident. The offender stated that he did not attempt to engage the other detainees in the riot nor did he try to escalate the situation. The author of the report observed that the offender “became agitated” when portions of the facts were ready to him. The author expressed the view that the offender “appeared to accept no responsibility for his actions”. With regard to the second series, the report author noted that the offender “attempted to mitigate his actions when stating the victim had been provoking him, and that the actions of police had cause him to lash out”.
89․The report identified that the offender’s engagement during his current bail undertaking had been “consistently satisfactory”. The offender was assessed as being suitable for an Intensive Correction Order.
Psychological report
90․Psychologist Peter Watt interviewed the offender and prepared a report in November 2024. He detailed in his report the offender’s extensive criminal history [redacted]. Consistent with the PSR, the report detailed significant alcohol and substance abuse early in the offender’s life. [Redacted].
91․The offender was diagnosed with attention-deficit hyperactivity disorder (ADHD), reactive attachment disorder and conduct disorder as a child. The offender also reported that whilst incarcerated at the AMC at the age of 24 or 25 he was diagnosed with anxiety, depression, and anti-social personality disorder.
92․Since being in the community, the offender advised he has been prescribed a “mood stabiliser and an anti-depressant”. Mr Watt confirmed that the offender has a medicinal cannabis prescription for insomnia and anxiety. The offender reported to Mr Watt that he has not used methamphetamine for over 12 months. He stated that he is on a wait list for the “Directions program” and counselling with Headspace. He has enlisted in the “Every Man” program.
93․Mr Watt had the offender complete the WHO General Health Questionnaire which showed the offender was suffering with significant symptoms of anxiety and social dysfunction. The offender was found to be in the moderate to severe range for stress, moderate range for anxiety and mild range for depression. The offender was also found to have a mild intellectual disability.
94․Mr Watt found that the offenders’ symptoms satisfy the criteria in the DSM-5 for Major Depressive Disorder (mild to moderate), Social Anxiety Disorder (moderate to severe) and Stimulant Use Disorder (severe, in partial remission). Mr Watts further expressed that, at the time of the offending the offender was likely suffering from, Acute Distress Disorder and Other Specified Disruptive Impulse-Control and Conduct Disorder. Mr Watt noted probable underlying conditions included ADHD and a mild cognitive impairment.
95․Mr Watt determined that there was a nexus between the offender’s acute stress disorder and disruptive impulse control condition noting that the conditions would have likely meant the offender would not have been able to make rational decisions at the time, due to being in an environment which he considered hostile and stress-provoking.
96․Mr Watt recorded that the offender expressed his desire to attend a drug and alcohol rehabilitation program and also noted he would be prepared to attend counselling to address his mental health concerns.
Material provided on behalf of the offender
97․Counsel for the offender tendered a number of documents which included a letter from the offender and various character references.
98․The letter from the offender dated 28 February 2025 referenced the hardships that he has faced, namely the death of his father and his substance abuse issues. The offender’s employers described his strong work ethic and reliability.
99․The letter from the offender’s landlord dated 12 June 2024 noted that the offender is a responsible and reliable tenant as well as a “loving” and “dependable” parent.
100․The offender’s partner described the positive relationship the offender shares with both of her children, highlighting in particular, the attachment that her eldest son has to the offender. She detailed how she believes her partner has “found a new way of life and is on the right track” since his most recent release from custody. She confirmed her ongoing commitment to supporting the offender in his sobriety.
101․A friend of the offender provided a letter which further detailed the positive relationship that he has with his children. This letter noted that the offender has been taking steps to become a productive member of society by furthering his qualifications.
Degree of responsibility for the offending
102․The offender experienced a childhood and adolescence marked by disadvantage. [Redacted]. The offender’s background of disadvantage must be given “full weight” (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44]) and has not equipped him with the emotional and psychological tools that a “normal” upbringing would have assisted him to develop: R v Millwood [2012] NSWCCA 2 per Simpson J (with whom Bathurst CJ and Adamson J agreed at [69]).
103․The offender reported being under the influence of “ice” at the time of Series 2, injecting a gram per day in the lead up to his arrest for this offending. It is undoubtedly the case that the offender’s childhood disadvantage precipitated his commencement of illicit substance use at a young age. The offender began smoking cannabis at the age of 10, first used “MDMA” at the age of 11, and started smoking “ice” at the age of 13. In DPP v Djerke (No 2) [2023] ACTSC 341 at [29], McCallum CJ observed that:
It is well understood that drug addiction, particularly an addiction acquired at such a tender age, is a medical rather than a moral issue and one which requires considerable support from a range of disciplines in order to overcome.
(Emphasis in original).
104․As I have recorded, Mr Watt concluded that the offender has a mild intellectual disability, as well as previous diagnoses of anxiety, depression, ADHD, reactive attachment disorder, stimulant use disorder, anti-social personality disorder and conduct disorder. The report further expressed that at the time of the Series 1 offences, the offender was likely suffering from an acute stress disorder and an impulse control disorder. Mr Watt observed that the operation of these conditions would have inhibited the offender’s capacity to make rational decisions and thus contributed to his offending behaviour. The conclusions reached in the psychological report were not challenged by the prosecution.
105․The interaction of the offender’s childhood experience, his experience in custodial environments [redacted] where he was subject to violence and his current mental health and cognitive challenges, is difficult to unravel. The possible aetiology of the offender’s mild intellectual disability (which features “extremely low” adaptive functioning and significant deficits in his intellectual functioning) includes long-term cannabis use commenced in adolescence and head trauma.
106․There are features of the offending which are explained to some extent by the factors which arise because of offender’s disadvantaged and traumatic background as well as his intellectual disability including poor decision making, reduced capacity for impulse control and hyperarousal symptoms.
107․The circumstances I have outlined I am satisfied should operate to reduce the offender’s moral culpability for his offending: R v Hagen [2022] ACTSC 362; 374 FLR 260 at [42], MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 at [62] citing Bugmy. Such a finding does not abrogate the offender of all responsibility for his offending conduct. Rather, it recognises the consequences of a childhood experience that was out of his control and the cognitive impairment he suffers. Whilst there are countervailing considerations such as protection of the community and specific deterrence, in my view the finding I have made should moderate the weight to be afforded to general deterrence, denunciation and punishment.
Remorse
108․As noted above at [88], the PSR author concluded that the offender did not accept any responsibility for his conduct and attempted to minimise his behaviour. Conversely, the report of Mr Watt noted that the offender said he felt “bad” for his part in the riot and observed that the offender “appeared to be remorseful”. In a letter from the offender dated 28 February 2025 the offender wrote that he would “like to take full accountability for [his] actions” and that he is not “trying to justify [his] actions in any way, shape or form”. Whilst the letter expressed a general sentiment of personal accountability, the contents of the letter did not address the specific conduct for which he has been charged nor did he acknowledge the harm he had occasioned to the victims of the assault offences.
109․I am mindful that untested expressions of remorse from an offender should be approached cautiously. Bearing this in mind, I am satisfied that the offender has expressed limited remorse.
Rehabilitation
110․The offender has struggled with an entrenched drug addiction and has been consistently engaged with the criminal justice system [redacted]. Against that background, since his release on bail in February of 2024, the offender has made significant rehabilitative progress.
111․There is support for the submission advanced on the offender’s behalf that he “now appears to be leading a prosocial life for the first time since [redacted]”. He has been abstinent from methamphetamine for the past nine months, as supported by the two negative drug screening results he returned earlier this year. In the context of his entrenched, significant drug addiction, this period of abstinence is a considerable achievement.
112․Additionally, the offender has, for the most part, been compliant with his conditions of bail and the ICOAR noted engagement for the purposes of supervision has been “consistently satisfactory”. This is in stark contrast to previous opportunities squandered by the offender to demonstrate his capacity to remain in the community and co-operate with supervision regimes intended to support him and protect the community.
113․It is a significant consideration in my view that the offender is currently employed and the evidence before me attested to his reliability and commendable work ethic. The offender has a supportive partner and an apparently stable home environment. All of which is consistent with the offender’s claim that he has made a conscious effort to distance himself from his former anti-social peers.
114․The offender has been charged for driving while licence suspended and sentenced in the Magistrates Court whilst on bail. Notwithstanding that matter, the offender’s considerable progress on bail in the context of his extensive criminal history was acknowledged by the prosecutor.
115․This is a matter where I am satisfied that a return to full-time custody would dramatically inhibit not only the offender’s rehabilitative potential but the gains he has made whilst on bail. It is no coincidence in my view that the offender’s progress has come at a time when he is employed. A return to full-time imprisonment would entirely extinguish the motivation for reform that his employment is producing and additionally risk his prospects for employment into the future. A return to custody also elevates the risk of institutionalisation that I am satisfied he presents given his age and his history of incarceration.
116․The offender has spent a significant period on remand in relation to the offending. In light of the progress he has made on bail, unlike past periods of incarceration, the most recent period spent in custody appears to have achieved some deterrent effect, to the extent that the offender has made a substantial effort to avoid a return.
117․Against the history of his interaction with the criminal justice system and notwithstanding his limited expressions of remorse, I am satisfied that if the offender can remain abstinent from illicit substances, maintain his employment and continue with the stability he has found in his personal circumstances, he has a promise of rehabilitation not previously demonstrated.
Criminal history
118․As I have already recognised the offender has an extensive criminal history in the ACT and NSW, [redacted].
Guilty pleas
119․The offender entered pleas of guilty to the Series 1 offences on 10 July 2024, 12 days prior to the commencement of the trial. The prosecution submitted that the timing of the plea was “last-minute” such that a 10 per cent discount is warranted, citing Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]; affirmed in Cranfield v The Queen [2018] ACTCA 3 at [37]. The offender notified the prosecution of his intention to plead guilty subject to factual agreement by email on 24 June 2024 almost a month before the trial was set to commence. In my view, those circumstances should see the sentence imposed reduced by around 13 per cent consistent with the approach taken in R v Nicholas; R v Palmer [2019] ACTCA 36 at [131] where “a little over 10 per cent” for a plea of guilty entered a week before a trial was scheduled to commence was endorsed.
120․In relation to the Series 2 offences, the offender entered pleas of guilty on the first day of the contested hearing in the Magistrates Court. The prosecution again submitted that this plea was “last-minute”. Indeed, it seems to me that this was a plea ‘on the steps of the court’. Accordingly, I will reduce the sentence to be imposed by five per cent.
Time in custody
121․The offender has spent 187 days in custody solely attributable to the offences before the Court. This time served by way of pre-sentence custody will be taken into account in the sentence to be imposed.
Conditional liberty
122․The Series 2 offences were committed whilst the offender was subject to bail in relation to the Series 1 offences, as well as other unrelated offences. Further offending while on conditional liberty represents a betrayal of the opportunity to remain in the community and should be “regarded very seriously”: R v Tran [1999] NSWCCA 109 at [15]. It is a factor relevant to a determination of the appropriate punishment for an offence but does not influence the objective seriousness of it: Smith v The Queen [2011] NSWCCA 163 at [26]. I bear in mind that I must approach this feature of the offending with care to avoid double punishment: Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [61].
Current sentencing practise
123․Comparable cases do not operate to give effect to strict mathematical equivalence as between sentencing outcomes for the same offence. They assist to ensure consistency in the application of principles.
124․The prosecution identified several outcomes from this jurisdiction said to be comparable to the Series 2 offences, namely, DPP v Stasinos [2023] ACTSC 179, R v Marzotto [2021] ACTSC 184, R v Blackburn;R v QH [2021] ACTSC 284 and DPP v Chatfield [2024] ACTSC 329.
125․The prosecution also suggested that I have regard to the analysis of sentencing practise contained within co-offender George’s sentence at [89]-[95]. Accordingly, in addition to the sentencing outcomes of each of the co-offenders (George, Winters and Collier), I have also had regard to the outcomes recorded in R v Yeaman (No 2) [2021] ACTSC 287, R v Rahman [2021] ACTSC 257, R v Beroukas [2021] ACTSC 172, R v Denniss [2021] ACTSC 15, R v Howsan [2020] ACTSC 172, R v Wieland [2020] ACTSC 16, R v Denniss [2019] ACTSC 283, R v Hudson [2019] ACTSC 110, R v Dunn [2019] ACTSC 75, R v David Keith Green [2019] NSWDC 66, R v Nguyen [2018] ACTSC 146 and Griffin v R [2018] NSWCCA 259.
Delay
126․The Series 1 offences arose out of an incident which occurred approximately four and a half years ago. As I observed in George at [96]-[104], Winters at [82]-[91] and Collier at [62]-[63], there was a substantial delay in commencing proceedings against each of the offenders charged for their involvement in the AMC riot.
127․In this matter the prosecution did not cavil with the observations and analysis recorded in each of the co-offender’s sentences as to the impact of delay. Indeed the prosecution highlighted the following observation in Collier at [80]:
[T]he substantial, unexplained delay in this matter was, in the circumstances of the offending and the offender, extraordinary. It has resulted in unfairness to the offender. In the meantime, the offender has demonstrated his capacity for genuine rehabilitation. It is appropriate in this instance for the delay to warrant leniency.
128․In Collier I summarised the following principles in relation to delay at [70]:
(a)Delay is not, of itself, a mitigating factor. The influence of delay will depend on the circumstances in which it occurred. Notwithstanding the explanation for the delay the focus is on the impact of the delay on the offender.
(b)Delay which is not attributable to the offender, and which includes the offender being held in a state of suspense or anxiety or acting on a legitimate expectation that there would be no prosecution, constitutes “a powerful mitigatory factor”.
(c)Reasonable delay attributable to detecting and investigating an offence and identifying an offender will ordinarily not be a mitigating factor. So too reasonable delay as part of the ordinary course of the processes which attend to the criminal justice system.
(d)Where an offender has achieved rehabilitation and the requirement to protect society from the offender is accordingly reduced, considerations of punishment and deterrence should not operate to extinguish the effect of that rehabilitation.
(e)The public interest as well as the interest of the offender require serious offences to be brought to justice quickly. A failure by the authorities to do so will mitigate an otherwise appropriate sentence.
129․I am satisfied and the prosecution accepted that the significant and inexplicable delay that attended to the bringing of charges for the November 2020 incident does warrant some leniency to the offender for the sentence to be imposed for the Series 1 offences.
Parity
130․The principle of parity must be applied and embodies the concept of “equality before the law”: see Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462 at 472 [28].
131․In Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191 at [56], the Court of Appeal articulated the principle in this way:
The “parity principle” is a manifestation of the fundamental principle of equality before the law. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609 (Lowe): “[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”. As his Honour observed, however, other things are not always equal. There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them. The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.
Series 1
132․There were four co-offenders in this matter. With the exception of co-accused Fielding, who has maintained a plea of not guilty and is yet to take his trial, the co-offenders have been sentenced for their participation in the riot.
133․Co-offender George entered pleas of guilty to one count of joint commission of arson and one count of joint commission of damage property and was sentenced by me on 22 February 2024. For the arson offence, after a reduction in recognition of the plea of guilty, a sentence of three years of imprisonment was imposed. For the damage property offence, after a reduction in recognition of the plea of guilty, a sentence of one year and five months of imprisonment was imposed. By virtue of the requirement to re-set a non-parole period, the effect of the sentence for co-offender George was an additional 12 months of imprisonment to serve in full-time custody: George at [122]-[123].
134․I found in George at [51]-[52] that he was “directly involved in at least two of the fires” and contributed to the maintenance of the other fires. The involvement of co-offender George was considerable, him having claimed a leadership role in the implementation of the “riot” consistent with the actual extent of his conduct. The co-offender experienced a disadvantaged and dysfunctional upbringing which had caused borderline cognitive impairment: George at [73].
135․Co-offender Winters entered a plea of guilty to one count of arson by joint commission and one count of damage property by joint commission. For the arson offence, he was sentenced to a period of imprisonment of 3 years and 10 months, reduced to 2 years, 10 months and 15 days in recognition of the plea of guilty. For the damage property offence, he was sentenced to 22 months of imprisonment, reduced to 1 year, 4 months and 15 days of imprisonment in recognition of the plea of guilty. In committing the riot offences, co-offender Winters breached a suspended sentence order and the remaining 3 months and 29 days of imprisonment was imposed. The sentence for co-offender Winters took into account that the offending was the third occasion where the offender had committed serious offences while in lawful custody.
136․Co-offender Collier entered a plea of guilty to a count of arson by joint commission with the offence of damage property taken into account as a scheduled offence. He was sentenced on 31 October 2024 to 3 years and 2 months of imprisonment, reduced to 2 years, 10 months and 6 days of imprisonment in recognition of the plea of guilty. This sentence was suspended after three months and one day so that he would be released from custody on the same day that an existing sentence was to expire, meaning he was not required to spend any additional time in custody solely referrable to his part in the riot. The impact of delay was a significant consideration in Collier; he had not committed any further offences since November 2020. Co-offender Collier’s involvement in the offending was substantially below that of each of the co-offenders. Co-offender Collier had demonstrated significant effort toward rehabilitation and had spent the entire period since November 2020 in full-time imprisonment.
137․The subjective circumstances of the co-offenders are not dissimilar. Like the offender, co-offenders George, Winters and Collier each enlivened Bugmy, each had extensive criminal histories and the delay that attended to their charges was egregious and entirely unexplained. Noting the offender’s role in the offending, there is no basis for any significant departure from the sentences imposed on the co-offenders.
Series 2
138․No other person has been sentenced for their role in the Series 2 offences.
Determination
139․The purposes of sentencing to which I must have regard are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). The sentence I impose must deter the offender, protect the community and recognise the harm occasioned by his offending conduct. As I have already recorded, the reduction of the offender’s moral culpability for the offending moderates, though does not extinguish, the weight to be afforded to general deterrence, denunciation and punishment.
140․There was no dispute that the s 10 (of the Crimes (Sentencing) Act) threshold was crossed. Only a period of imprisonment would capture the gravity of the offending conduct. Counsel for the offender sought the imposition of a sentence which would permit him to remain in the community and build upon the positive progress he has demonstrated. The prosecution supported the imposition of such an outcome; recognition of the period he has spent in pre-sentence custody and acknowledgment of the progress the offender has made in the community.
141․The sentencing task can often involve a consideration of sentencing purposes which pull the outcome in different directions. This case is an example of that tension. The offender has engaged in serious criminal conduct which resulted in significant harm and damage. His adult offending has been shaped by a childhood experience characterised by significant disadvantage which has left him with psychological challenges and driven his reliance on illicit substance use. Unless the offender can manage to bring about meaningful change in his lifestyle, his mental well-being and his peer group, the offender will likely continue to move in and out of the custodial environment for the rest of his life. His counsel was right to highlight the significance, in the context of his past patterns of behaviour, of the more recent period of progress. It represents a level of stability hitherto unknown in the offender’s adult life. The prosecutor reasonably accepted that this represented a foundation for some confidence in his capacity to bring about that meaningful change.
142․There are two distinct series of offences, each objectively serious and there are separate victims in the Series 2 offences. There is a degree of legal and factual overlap between the offences in Series 1 accepted by the prosecutor to warrant substantial concurrency, as it did with the co-offenders.
143․The principle of totality, necessary to consider because the offender is being sentenced for several offences, “can be implemented in a variety of acceptable ways”: R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]. The sentencing outcome must reflect the total criminality involved in the conduct and be “just and appropriate” in all the circumstances: Mill v The Queen (1988) 166 CLR 59 at 63. A balance must be struck between crushing any rehabilitative prospects of the offender and avoiding a perception that the commission of multiple offences will result in a discount.
144․The supervision regime implemented under an intensive correction order would benefit the offender. An intensive correction order cannot be imposed with a sentence of full-time imprisonment, a suspended sentence of imprisonment or a good behaviour order: s 29 of the Crimes (Sentencing) Act. Nor can an intensive correction order be backdated to take account of pre-sentence custody. A suspended sentence order can take account of pre-sentence custody and be crafted to ensure a strict regime of supervision. Additionally, any conduct in breach of the terms of the suspended sentence order would see the offender’s compliance under court scrutiny.
145․This is a matter where the offender has made significant progress towards rehabilitation against a background of entrenched addiction and consistent engagement with the criminal justice system from [redacted]. A return to full-time custody would inevitably interrupt the progress he has made toward rehabilitation. In circumstances where the offender’s rehabilitation will enhance community safety, it is appropriate to give effect to an outcome that will promote the progress the offender has made.
146․I am of the view that notwithstanding the gravity of the offending, the circumstances presented by the offender warrant the imposition of a sentence which supports his long-term rehabilitation.
147․It is important to record that a suspended term of imprisonment, while obviously more lenient that one to be served full-time, is still a sentence of imprisonment and represents significant punishment: R v Carmody (No 3) [2017] ACTSC 60 at [75]. I am satisfied that this is a matter where the imposition of suspended sentence orders will address the purposes of sentencing including by supporting the offender’s prospects of rehabilitation. Of course, for the period the offender remains subject to the obligation to be of good behaviour he remains at risk of serving any suspended period of imprisonment in full-time custody should his motivation for reform fall away.
148․The need to ensure that the period of pre-sentence custody is recognised and to structure the overall sentence to reflect the gravity of the separate offending will see some of the sentences imposed as partly suspended sentences and some as wholly suspended sentences of imprisonment. This is necessary to ensure the outcome is just and appropriate.
149․For the Series 1 offences:
(a)The starting point for the arson offence (CC2023/2394) is 3 years of imprisonment reduced to 2 years, 7 months and 9 days of imprisonment for the plea of guilty.
(b)The starting point for the damage property offence (CC2023/2422) is 20 months of imprisonment reduced to 1 year, 5 months and 12 days of imprisonment for the plea of guilty.
150․For the Series 2 offences:
(a)The starting point for the assault occasioning actual bodily harm offence (CC2023/8405) is 2 years of imprisonment reduced to 1 year, 10 months and 24 days of imprisonment for the plea of guilty.
(b)The starting point for the assault frontline community service provider offence (CC2023/8406) is 6 months of imprisonment reduced to 5 months and 21 days of imprisonment for the plea of guilty.
Orders
151․For those reasons, I make the following orders:
(1)On the charge of arson (CC2023/2394), the offender is convicted and sentenced to 2 years, 7 months and 9 days of imprisonment commencing on 23 November 2024 and ending on 1 July 2027.
(2)On the charge of damage property (CC2023/2422), the offender is convicted and sentenced to 1 year, 5 months and 12 days of imprisonment commencing on 21 March 2026 and ending on 1 September 2027.
(3)On the charge of assault occasioning actual bodily harm (CC2023/8405), the offender is convicted and sentenced to 1 year, 10 months and 24 days of imprisonment commencing on 9 October 2026 and ending on 1 September 2028.
(4)On the charge of assault frontline community service provider (CC2023/8406), the offender is convicted and sentenced to 5 months and 21 days of imprisonment commencing on 12 May 2028 and ending on 1 November 2028.
(5)The total period of imprisonment is 3 years, 11 months and 10 days. The sentence is to be suspended today, after the offender has spent 187 days in custody, upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 1 November 2028.
(6)In addition to the core conditions, for the period that he is required to be of good behaviour (or such lesser period if deemed appropriate) the offender must accept the supervision of the Director General of ACT Corrective Services or their delegate and comply with all reasonable directions including directions with respect to:
(i)Drug rehabilitation treatment and supports including urinalysis and residential drug rehabilitation;
(ii)Psychological, psychiatric or medical assessments, treatment and supports; and
(iii)Vocational, educational, employment opportunities and support.
| I certify that the preceding one hundred and fifty-one [151] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: Date: |
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