Director of Public Prosecutions v Chatfield

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Chatfield
Citation:	[2024] ACTSC 329
Hearing Dates:	22 August 2024, 18 October 2024
Decision Date:	24 October 2024
Before:	Taylor J
Decision:	See [155].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – pilot circle sentencing list – Elders and Respected Persons panel – intentionally inflict grievous bodily harm – aggravated burglary – assault occasioning actual bodily harm – dishonestly drive motor vehicle without consent – assault frontline community service provider – possess knife without reasonable excuse – possess license issued to another – committed while offender was on conditional liberty – extensive criminal history – where offender had disadvantaged childhood – Bugmy principles applied – Verdins principles applied – offender demonstrated remorse
Legislation Cited:	Crimes Act1900 (ACT) ss 19(1), 24(1), 26A, 382(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 34B, 67 Criminal Code2002 (ACT) ss 312, 318(2) Family Violence Act 2016 (ACT) s 10 Road Transport (Driver Licensing) Act1999 (ACT) s 30(1)(a)
Cases Cited:	Bugmyv The Queen [2013] HCA 37; 249 CLR 571 Chatfield v Badman [2015] ACTSC 209 DPP v Djerke(No 2) [2023] ACTSC 341 DPP v Donohue (No 3) [2024] ACTSC 272 DPP v Joliffe-Cole [2024] ACTSC 256 Henry v The Queen [2019] ACTCA 5 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Barron [2020] ACTSC 281 R v Bourne; R v Manns [2018] ACTSC 35 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Crawford(No 1) [2020] ACTSC 245 R v Crawford (No 3) [2017] ACTSC 99 R v Forrest (No 2) [2017] ACTSC 83 R v Gardner [2022] ACTSC 36 R v George [2021] ACTSC 361 R v Jovanovic [2014] ACTSC 157 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lock [2016] ACTSC 319 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Massey (No 3) [2021] ACTSC 156 R v McCurley [2020] ACTSC 140 R v Millwood [2012] NSWCCA 2 R v Redmond (No 2) [2022] ACTSC 295 R v Rosewarne [2021] ACTSC 217 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Torbert [2015] ACTSC 331 R v Tran [1999] NSWCCA 109 R v Verdins [2007] VSCA 102; 16 VR 240 Sampson v De Haan [2016] ACTSC 327 Smith v The Queen [2011] NSWCCA 163 Taylor v The Queen [2014] ACTCA 9 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Texts Cited:	Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence (November 2021) [Redacted] Explanatory Statement, Crimes (Protection of Police, Firefighters and Paramedics) Amendment Bill 2019 (ACT) Keally McBride, Mr. Mothercountry: The Man Who Made the Rule of Law (Oxford University Press, 2016) Megan Davis, ‘Voice of Reason: on Recognition and Renewal’ [2023] (90) Quarterly Essay 1 Practice Direction 1 of 2024, ACT Supreme Court Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021) Aaron Corn and Marcia Langton, Law: The Way of the Ancestors (Thames & Hudson Australia, 2023)
Parties:	Director of Public Prosecutions ( Crown) Martin Ashly Chatfield ( Offender)
Representation:	Counsel D Armstrong ( DPP) S Lynch ( Offender)
Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service ( Offender)
Elders:	B Hodges D Ritchie M Abel W Tompkins
File Numbers:	SCC 3 of 2024 SCC 354 of 2024

TAYLOR J:

Introduction

1․Martin Chatfield is a Gamilaroi and Barkendji man. In July 2023 he committed several offences and he is now to be sentenced for those offences after he participated in a sentencing list introduced in the ACT Supreme Court earlier this year. Supreme Court Practice Direction 1 of 2024 commenced on 15 February 2024 and outlined the procedure and the aims of the Pilot Circle Sentencing List (the Circle Sentencing List). This being the first sentencing outcome arising from the implementation of this list, I consider it appropriate to first record some observations and considerations that inform the process of circle sentencing.
2․It is a specialised sentencing list, established to provide to the extent possible, a culturally relevant and restorative sentencing process for Aboriginal and Torres Strait Islander offenders who have entered a plea of guilty to an eligible offence. The capacity of the Circle Sentencing List to achieve its objectives depends upon the critical participation of Elders and Respected Persons (the Elders panel), who sit alongside the sentencing judge during a sentencing conversation, though do not sit in “judgment” of the offender. As distinct from the circle sentencing process in place in the ACT Magistrates Court since 2004, participation in the sentencing conversation in this Court does not see the Elders panel have any role in the determination of the sentence to be imposed. In this Court, that determination rests with the sentencing judge alone.
3․In Law: The Way of the Ancestors (2023), Professors Marcia Langton and Aaron Corn describe the Possum and Wallaby Dreaming mosaic in the Australian Parliament House forecourt. They note that the mosaic depicts the tracks of six wallabies and six possums as they approach the great fire at the centre of the mosaic design. Significantly, as the scholars explain, the animals walk slowly and peacefully, “on all fours in humility and respect for themselves, each other and the law”. The intended message of the design, Langton and Corn observe at [88]-[89] is this:
Respect for oneself and for others – indeed all things in creation – and humility before ancestors and their laws form the basic currency that has enabled Indigenous societies in Australia to develop and thrive across the continent. Given by the original ancestors and observed over countless generations by those who have gone before, these systems encourage people to maintain the social good and strive towards balance in all things. They instil people with good values and encourage beneficial behaviours.
4․I extract these observations to reinforce that which is well accepted, at least among First Nations peoples; systems of law enforcing rules by which we must live, are not new to us. There is a word for Law in numerous language groups. For many millennia our people have known systems of law, intended to ensure certainty, harmony, justice and peace. Notwithstanding what some might make of our consistent overrepresentation in what we now know as the criminal justice system, our culture has long embraced a system of law, the foundations of which include respect, responsibility and obligation. As Langton and Corn observe at [183]:
The way of the ancestors is not just a body of rules or a digest of what is and what is not permitted. While those are necessary parts of any legal system, law is so much more. It is the great desire for harmony and balance, the proper comportment of a person in the world made by prolific ancestors long ago, the regard for all places and species as sacred, and the inner meanings of all known things. It is all this and much more.
5․We are not lawless peoples. As the Uluru Statement from the Heart eloquently declared we are not “innately criminal people”. As Professor Megan Davis sets out in her essay, Voice of Reason (Megan Davis, ‘Voice of Reason: on Recognition and Renewal’ [2023] (90) Quarterly Essay 1), the narrative behind that statement unequivocally recorded the survival of our shared stories, despite the rupture of our societies by colonisation and acknowledged that “all our stories start with our Law”: at [31].
6․If the rule of law under which our society operates serves to enforce order in a civilised society and in doing so, afford protection to vulnerable citizens, the individual circumstances of those citizens must be understood. While the colonial version of the rule of law in this country saw a racial administration of it, resulting in explicit and harsh exclusion of First Nations peoples of the kind explored by Dr Keally McBride in Mr. Mothercountry (Keally McBride, Mr. Mothercountry: The Man Who Made the Rule of Law (Oxford University Press, 2016)), a modern iteration of it should ensure equal justice. A sentencing process that seeks to understand the influence of the broad range of social issues experienced by First Nations peoples on the life of an individual First Nations offender, does not offend the statements in Bugmyv The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) at [36] and [41] that affirmed the requirement for justice to be individualised. While the process has potential to enhance faith and trust in the modern criminal justice system’s capacity to deal comprehensively with wrongdoing, it is the pursuit of individualised justice that fundamentally underpins this process.
7․The role of those who participate on the Elders panel as part of the sentencing conversation is reminiscent of our earliest systems of law and seeks to honour the long-standing position of eminence assigned to those people within our communities who possess wisdom and knowledge. It is the strength to be taken from that wisdom and knowledge that this process seeks to draw upon in an effort to genuinely deliver individualised justice to First Nations offenders.
8․The sentencing conversation provides the opportunity for the circumstances personal to an offender to be comprehensively explored and for the circumstances of their offending to be entirely uncovered. This necessarily includes recognition of the harm caused to a victim of offending conduct and a consideration of any statement that victim might contribute to the process.
9․The Elders panel lead the sentencing conversation drawing upon their cultural wisdom and authority, with the endorsement of Ngunnawal Traditional Owners. The sentencing conversation requires an offender to confront their criminal conduct and acknowledge the harm occasioned by their conduct to victims, to the community and to themselves. In addition, the sentencing conversation seeks to identify the strength inherent to cultural connection as well as the possibility of redemption through a commitment to rehabilitation and cultural wellbeing.
10․Through the sentencing conversation, First Nations offenders speak for themselves to First Nations knowledge holders. The offender is expected to directly engage with the Elders panel and the sentencing judge to answer for their conduct, to tell their personal story and to describe the challenges that are contributing to their engagement with the criminal justice system. In this way, an offender is held directly accountable for their conduct by the Elders panel without their legal representative acting as their mouthpiece. The Elders panel are exacting in their expectation that an offender will engage with the process enthusiastically and authentically. It is a process that can make for uncomfortable discussion and on occasion, promote powerful realisations.
11․As will become clear, like any sentencing exercise this process requires the sentencing judge to consider all the relevant factors and engage in a process of instinctive synthesis to determine the just and appropriate sentencing outcome. This is not a process designed to provide a “soft” option for Aboriginal and Torres Strait Islander offenders. Indeed, in many instances the process I have described compels a level of engagement by offenders in brutally honest personal reflection, not replicated in typical sentencing proceedings.
12․This process should not be mistaken as an attempt to ensure more lenient sentencing outcomes for a particular cohort of offender. A reading of the Practice Direction reveals as much. Rather the process is an attempt to recognise the strength and power to be found for our people in cultural connection and accountability, respecting the objects and purposes of sentencing detailed in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act).
13․This is the process in which the offender, Martin Chatfield, sought to engage. This is not a mandated sentencing option for all Aboriginal and Torres Strait Islander offenders. It is voluntary and ultimately demands that an offender engage in a sentencing process different to that typically required in sentencing proceedings. The nature of the process as I have described it, reflects much of the experience of Martin Chatfield when he appeared before the Elders panel and I in relation to several offences he committed in July 2023.
14․By way of clarification, in these remarks I have adopted the term “First Nations” when referring to Aboriginal and Torres Strait Islander peoples. In doing so, I acknowledge that the use of “First Nations” to refer to our people is not a term endorsed or embraced by all our people. I intend no disrespect or controversy by its use. The Elders panel were content with my use of the term in this way, in these remarks. I also wish to note that the handing down of the sentence was somewhat delayed in attempt to give effect to the desire of some of the members of the Elders panel to be present when Mr Chatfield was sentenced as an indication of their support for the process.

The offences

15․On 16 January 2024, the offender entered pleas of guilty in the ACT Magistrates Court to the following offences for which he will now be sentenced:
(a)CC2023/6802: intentionally inflict grievous bodily harm, contrary to s 19(1) of the Crimes Act1900 (ACT) (the Crimes Act) which carries a maximum penalty of imprisonment for 20 years.
(b)CC2023/6803: aggravated burglary, contrary to s 312 of the Criminal Code2002 (ACT) (the Criminal Code) which carries a maximum penalty of 2 000 penalty units, imprisonment for 20 years or both.
(c)CC2024/622: assault occasioning actual bodily harm aggravated by family violence, contrary to s 24(1) of the Crimes Act which carries a maximum penalty of imprisonment for 7 years.
(d)CC2023/7907: dishonestly drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code which carries a maximum penalty of 500 penalty units, imprisonment for 5 years or both.
(e)CC2023/6804: assault frontline community service provider, contrary to s 26A of the Crimes Act which carries a maximum penalty of imprisonment for 2 years.
(f)CC2023/6805: assault frontline community service provider, contrary to s 26A of the Crimes Act which carries a maximum penalty of imprisonment for 2 years.
(g)CC2023/6806: possess knife without reasonable excuse, contrary to s 382(1) of the Crimes Act which carries a maximum penalty of 10 penalty units, imprisonment for 6 months or both.
(h)CC2023/6807: possess license issued to another, contrary to s 30(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) which carries a maximum penalty of 20 penalty units.

The facts

Relationship between offender and Ms A

16․Ms A and the offender were in an 'on again, off again' relationship for approximately 10 years. Ms A and the offender have one child together. The offender and Ms A have not been in a relationship for approximately two years.
17․The offender and Ms A are intimate partners as defined by s 10 of the Family Violence Act 2016 (ACT) (the Family Violence Act).

Drive motor vehicle without consent (CC2023/7907)

18․On Sunday 2 July 2023, a red Nissan Patrol belonging to Ms [redacted] was parked at an address on Cooyong Street, City in the Australian Capital Territory (ACT). When Ms [redacted] woke up on Monday 3 July 2023, she noticed her vehicle was missing.
19․Closed Circuit Television (CCTV) footage showed that at about 10:52pm on Sunday 2 July 2023, the offender, wearing a black head covering and dark clothing entered the carpark on a bicycle. A short time later, the vehicle exited the carpark.

Aggravated burglary (CC2023/6803), intentionally cause grievous bodily harm (CC2023/6802) and assault occasioning actual bodily harm (CC2024/622)

20․Between 26 June 2023 and 3 July 2023, the offender assisted Ms A to move into her new residence at [redacted] in the ACT.
21․Since the start of July 2023, the offender had been 'creeping on’ Ms A, and had asked her questions about where she had been and recorded at least two videos of her having conversations with her cousin from outside the residence.
22․During this time, Ms A was in contact with the offender via text messages and audio voice calls.
23․On Saturday 1 July 2023, Ms A asked the offender for $30 to buy cigarettes.
24․On Sunday 2 July 2023, Ms A and the offender had the following conversation via text message:
The offender: Fuck off Gronk (12:22pm)
The offender: ask the lad you fucked in the bathroom at your cousins house I got you on camera dog
The offender: I was there at your house to
The offender: Your gonna get it
Ms A: Wow grow up.
The offender: I can show you ya little ice puff slut try play me at my game dog (2:45pm)
The offender: [Ms A] did you still need smokes I got thousands (11:32pm)
Ms A: Yes can I borrow some please
25․At about 1:11am on Monday 3 July 2023, Ms A sent the following message to the offender.
Ms A: I'm going sleep it's all good thank you but
26․At about 1:31am on Monday 3 July 2023, automatic numberplate recognition cameras located on Ginninderra Drive between Aikman Drive and Diddams Close in Belconnen, recorded the red Nissan Patrol travelling towards Charnwood, ACT.
27․A short time later, Ms A received the following text messages:
The offender: You ain't at your mum's.
The offender: I'm out the front.
28․Ms A and her friend, Mr B were sitting in the lounge room when they heard a tapping on the window. Ms A told Mr B to hide so he sat in the corner of the lounge room, near the front door and Ms A placed a blanket over him.
29․Ms A and Mr B heard a loud noise and the offender entered the premises. Ms A described the male as being tall, wearing a balaclava and multiple layers of dark clothing. Ms A recognised the male to be the offender by his eyes, the shape of his nose and his build.
30․The offender was holding a knife in each hand and had a third knife attached to his belt.
31․Ms A told the offender to get out of her house. Ms A got up off the lounge and the offender approached and flipped the lounge upside down.
32․Mr B felt the offender putting pressure on his hands and hitting him while he was under the blanket. He heard Ms A yelling and screaming on the other side of the room.
33․Mr B removed the blanket and saw the offender had three knives on his person. The offender began to swing the knives at Mr B. Mr B used his hands to defend himself.
34․At one point Mr B grabbed hold of one of the knives that the offender had in his hands. The offender ripped the knife from Mr B’s grip causing injuries to Mr B’s palm and fingers on his right hand. The injuries to Mr B’s right hand included:
(a)transection of the right middle finger ulnar digital artery;
(b)transection of the right middle finger ulnar digital nerves;
(c)transection of the right middle finger radial digital nerve;
(d)transection of the right middle finger flexor digitatum profundus tendon; and
(e)transection of the right middle finger flexor tendon.

35․Mr B stated that the offender swung the knife wildly at him around 10 times. Mr B attempted to block these swings with his hands. Mr B’s left wrist was struck during one of these swings which caused the complete laceration of the left thumb flexor pollicis longus tendon and a partial transection of the left extensor carpi ulnaris tendon. Mr B was able to put some distance between himself and the offender by moving behind the lounge. While on the other side of the lounge, the offender was swinging the knife back and forth in what Mr B believed was an intimidation technique.

36․While Ms A was standing in the dining room, the offender approached her, still holding the knife in his hand. He used his fist to punch Ms A across the face. This caused Ms A to experience swelling in her jaw area and a loose front tooth. Ms A was bleeding out of her mouth and nose.
37․The offender was inside the premises for approximately three minutes before he fled out of the same door he entered through.
38․Ms A ran to the front door and outside after the offender ran out of the laundry door. As Ms A approached the front fence, she observed an older red vehicle she thought was similar to a Land Cruiser depart the area.
39․After the offender left, Ms A called triple-zero and briefly spoke with the ACT Ambulance Service. Ms A then drove herself and Mr B to a friend's address in Scullin, ACT.
40․After the incident, Ms A received two further text messages from the offender:
The offender: What know you want to lie than talk to police
The offender: Told ya
41․Police attended the address at Charnwood, ACT however no one was located inside. Due to concerns for the occupants’ safety and welfare, police made an emergency entry to the premises. Police observed an apparent shoe mark adjacent to the locking mechanism on the exterior of the timber door leading from the rear yard into the laundry. The timber frame of the door was detached from the door. Police observed a significant amount of what appeared to be blood on the floor and walls throughout the premises. The lounge was upturned in the lounge room and a vase was observed underneath blankets on the lounge.
42․Police attended an address in Scullin and spoke with Ms A and Mr B. Police observed Mr B to have a number of lacerations to his hands. An ambulance was requested to attend to assess Mr B's injuries.
43․Mr B attended the Canberra Hospital where he underwent emergency surgery.
44․Police spoke with Ms A who was visibly shaken up, crying and appeared to be in pain around her mouth and jaw. Ms A disclosed she was under the influence of an intoxicating substance. Ms A stated she was fearful of the offender; she thought the offender would have killed Mr B if he were in a relationship with her.
45․Ms A described the knife the offender was using as being a gutting knife with a dark coloured handle, the type typically used for fishing. When Ms A left the premises, she noticed a black sheath for a knife on the ground beneath the clothesline. Ms A had not seen that sheath before and it did not belong to her.
46․Mr B described the knife the offender used to injure him as being a flimsy fishing knife with a dark handle and straight blade. The other knife was a smaller combat style knife, which was similar to the one hanging from his waistband.
47․Ms A informed the police of the aforementioned circumstances however, she was not feeling well enough to participate in a formal statement.
48․Due to Ms A's intoxication and inability to consent to a forensic examination of her residence, police declared the address at Charnwood, ACT as a crime scene.
49․While police were speaking with Ms A, the offender sent her a location pin of [redacted] located at an address in Turner, ACT. The offender then sent her two videos that Ms A described as being videos the offender captured at her cousin’s house two days prior, when the offender alleged she was engaging in sexual intercourse in the bathroom.
50․At about 8:20am on Monday 3 July 2023, police obtained a search warrant for the address at Charnwood, ACT for the purpose of conducting an examination of the scene. Crime Scene Investigators collected numerous deoxyribonucleic acid (DNA) samples, fingerprints and shoe marks from the scene and seized the black sheath. The black sheath underwent examinations and a DNA swab was taken. A mixed DNA profile from a minimum of two individuals was obtained and the offender could not be excluded as a contributor.
51․At about 1:00pm, police located the Nissan Patrol on the corner of [redacted] in Turner, ACT. CCTV footage from the area showed the vehicle was parked at that address at about 1:40am on Monday 3 July 2023. A person wearing all black exited the vehicle and walked off.
52․The Nissan Patrol was uplifted to a secure AFP facility and a forensic examination was conducted. A mixed DNA profile from a minimum of two individuals was obtained from the steering wheel. The offender could not be excluded as a contributor.
53․Later that day, police located a red Jamis Durango bicycle at the same location the Nissan Patrol was stolen from. A forensic examination was conducted on that bicycle. A male DNA profile was obtained from the handlebar grips. The offender could not be excluded as the contributor.
54․At about 11:00am on Tuesday 4 July 2023, police obtained a record of conversation with Mr B.
55․Mr B confirmed the aforementioned version of events.
56․Mr B was awaiting surgery at the time of the record of conversation however, he described his injuries in the following way:
(a)his right hand was the worst;
(b)his right ring finger was hanging on by a thread;
(c)his right middle finger was shredded;
(d)he had a hole puncture at the base of his left thumb;
(e)he had a chunk out of his left wrist;
(f)he had a small slice to his right cheek; and
(g)he had a small laceration to his right forearm.

57․Mr B said that he thought he was going to die, that he thought it did not matter who was in that house, the offender wanted them “gone”. He described the offender as being “on a mission”.
58․Mr B did not give the offender consent to assault him.
59․On Tuesday 4 July 2023, police obtained a record of conversation with Ms [redacted]. Ms [redacted] confirmed the aforementioned version of events regarding the red Nissan Patrol. Ms [redacted] did not give anyone permission to take her motor vehicle or drive it.

Assault frontline community service provider (CC2023/6804 and CC2023/6805), possess knife without reasonable excuse (CC2023/6806) and possess licence issued to another (CC2023/6807)

60․At about 2:30am on Thursday 6 July 2023, police parked at a service station in Belconnen, ACT. At this time, police saw a male, now known to be the offender standing at the window to the service station while yelling at the attendant behind the counter.
61․Police suspected the male to be the offender, who was at the time wanted on an outstanding apprehension requiring his arrest.
62․At about 2:32am, the offender entered the back seat of a parked taxi, and the taxi drove towards the entrance of the carpark of the service station. The taxi driver stopped the vehicle next to the police vehicle and asked police if they had change for a $100 note.
63․Police approached the taxi and asked the offender for his identification. The offender produced an ACT driver's licence held in the name [redacted], which contained a photo that did not match his physical appearance. The offender reiterated to police that he was the person named on the licence but had grown his hair longer since the photo was taken.
64․Police asked the offender to step out of the taxi. The offender exited the vehicle through the rear left door. Constable Scally grabbed the offender's left arm with both hands while asking the offender to put his hands behind his back. The offender immediately turned around and struck Constable Scally with his right hand using a closed fist. The offender's fist connected with the right temple area of Constable Scally's head and caused him to stumble backwards.
65․The offender ran from the side of the taxi, along Luxton Street towards a roundabout while Constable Tennent chased after him.
66․After about 10 seconds, the offender slowed and turned towards Constable Tennent, making direct eye contact with him. Constable Tennent saw the offender using his left hand to reach for an item at the belt line of his pants. Constable Tennent yelled "stop" before he caught up with the offender, grabbed his jacket with both hands and escorted him to the ground. During a brief physical altercation, the offender thrust his left elbow backwards and connected with Constable Tennent's left eye. Constable Scally then approached and both officers were able to place the offender in handcuffs.
67․Police searched the offender while he was still on the ground and located a black handled ‘flick-knife’ attached by the handle to the inside of the left side belt line area of his pants. The knife was located in the same area of the offender's clothing that he was seen reaching for during the foot pursuit.
68․During the above incident, both police officers were wearing full police uniform and accoutrements and were exercising their lawful duties. The entire incident was captured on body worn camera footage, including the assault on police and the offender reaching for his belt line during the foot chase.
69․The offender was placed in a caged vehicle and transported to the ACT Regional Watch House where he was lodged.

Sentencing considerations

Nature and circumstances of the offending

70․In considering the nature and circumstances of an offence the objective seriousness of the conduct establishing it must be assessed. The maximum penalty provides a “yardstick” against which to assess the objective seriousness of the offending: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 [31]. It is important to consider where offending conduct sits on the spectrum of conduct establishing an offence: R v Kilic [2016] HCA 48; 259 CLR 256 at 266 [19]. I will identify the features of the offending that bear upon the objective seriousness of the offence, though will not express a conclusion as to the seriousness of the offence by reference to low, mid or high range: R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24].

Aggravated burglary

71․I observe the following features of the aggravated burglary offence consistent with R v Rosewarne [2021] ACTSC 217 at [119].
72․The offending occurred at a residential premises when two occupants were present. One of the victims was known to the offender, being his ex-partner. The offender knew that she was present when he entered the premises. Both occupants were awake. The offence involved forced entry which resulted in the door of the premises being damaged. The extent of the disarray caused was not insignificant; furniture was upturned, and blood was left on the floor and walls throughout the premises. The offender intentionally engaged with both victims, directing gratuitous, deliberate violence toward them both. The offender has been charged separately for the violent conduct toward each victim and I bear in mind the need to avoid double punishment. The offender was in possession of three knives when he committed the offence and he used them to evoke fear in the victims.
73․The offence involved some degree of planning evidenced by the text exchange between the offender and Ms A in the immediate lead up to the offending and by the offender arriving in possession of the knives. That said, the offending was not carried out with any real degree of sophistication, the offender making an unsuccessful attempt to conceal his identity.
74․The offender sought to justify his actions by expressing a concern for the victim’s safety after observing Mr B, whom he did not know, attempt to hide from him through the window. In light of the offender’s accusations and paranoia surrounding the victim’s alleged infidelity and his violent conduct once inside the premises, I do not accept that a concern for Ms A’s safety motivated the offender to enter her home. The offender’s purported “concern” for her makes no sense of the violence he then directed toward her. Rather, in my view the offender’s conduct is properly viewed through the lens of family violence and I attribute his conduct as an attempt to control and punish Ms A for her perceived infidelity, and by extension Mr B for his perceived part.
75․The features of the offending reveal a serious example of an aggravated burglary.

Intentionally inflict grievous bodily harm

76․The maximum penalty for this offence demonstrates it to be undoubtedly objectively serious. In R v Barron [2020] ACTSC 281 at [28], Murrell CJ observed that “the objective seriousness of the offence is to be assessed by reference to the culpability of the offender and the degree of grievous bodily harm that was occasioned”. Her Honour went on to identify the following features as influential:
(a)the motivation for the attack;
(b)the degree of premeditation;
(c)the victim’s vulnerability and defencelessness;
(d)the type of weapon used;
(e)the nature of the attack; and
(f)whether the assault was committed in company.

77․The actions of the offender were retributive in nature, connected to Mr B’s involvement in what the offender perceived to be Ms A’s infidelity. There was a degree of premeditation in that the offender was suspicious of Ms A, was armed with three knives when he attended her home, observed the victim through the window before entering the premises and deliberately attacked him.
78․When initially struck by the offender, the victim was hiding under a blanket. As reflected in the injuries suffered, the victim attempted to defend himself against the sharp blade using his bare hands. While the altercation was brief, the offending was intense and vicious. Mr B later told police that he believed he was going to die.
79․A medical report and a bundle of photographs demonstrate the nature and extent of the injuries inflicted on the victim. The victim sustained over 13 injuries across his hands, forearms, face and right knee. The type of injury varied from stab wounds to redness. The victim required surgery to repair the skin, tendon, nerve and blood vessel injuries to his hands. He initially spent three days in hospital and required another three-day admission shortly thereafter. Dr Thomas confirmed that the victim would require another surgery in the coming months and expressed the view that several of the victim’s wounds would leave permanent scars. Further, Dr Thomas identified the possibility that the victim may experience permanent sensory loss in his right middle finger.
80․There is a wide scope of injuries that can be encompassed by the definition of grievous bodily harm. While this example of the offence saw the victim suffer serious injury including a degree of permanent disfigurement, as the prosecution accepted, the injuries ultimately fall toward the lower end of the spectrum of injury constituting grievous bodily harm.

Assault occasioning actual bodily harm

81․An assessment 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 [7]. This is an aggravated version of the offence, it having occurred within the context of family violence. I bear that in mind when identifying the features of the conduct. As a result of the punch to the face, Ms A suffered swelling to the jaw area, a loose tooth and bleeding from the mouth and nose. In the aftermath of the incident, police observed Ms A to be “visibly shaken” and crying.
82․In this instance, the offending conduct exposed the offender’s desire to exert control over Ms A. After Ms A informed him she was going to sleep, the offender attended her home without invitation, a place where she was entitled to feel safe. He observed her to be in the presence of another man and reacted with punishing, unpredictable violence. Shortly after the offending conduct, the offender sent the victim two intimate videos he had recorded of her which serves to confirm my view that the offender was driven by a desire to punish and control the victim, an all too familiar dynamic in family violence offending.
83․I record here for convenience that in determining the appropriate outcome, I must take into account the mandatory considerations in s 34B of the Crimes (Sentencing) Act. The preamble to the Family Violence Act captures the approach the community expects should be taken to family violence, including the need to condemn family violence, the need to promote offender accountability, and recognition of the exploitation of power imbalances that these offences can involve and that family violence is predominantly committed by men against women and children. There is strong utility in outcomes for offences committed in the context of family violence deterring similar conduct, protecting the victim and the community from similar conduct, and acknowledging the extent of the harm family violence visits upon families and communities.

Drive motor vehicle without consent

84․R v Rosewarne [2021] ACTSC 217 at [124], R v Massey (No 3) [2021] ACTSC 156 at [29], Sampson v De Haan [2016] ACTSC 327 at [40] and R v Lock [2016] ACTSC 319 at [15] identify factors relevant to an assessment of objective seriousness for this offence. Consistent with the observations recorded in those outcomes the following features are relevant:
(a)The offender drove the motor vehicle for a relatively short duration, being to and from Ms A’s residence on 2 and 3 July 2023;.
(b)The vehicle was recovered and there is no evidence it was damaged;.
(c)There is no information before the Court regarding the nature of the driving during the period it was taken;.
(d)The owner suffered the inconvenience of being without the vehicle for a period; and.
(e)The vehicle was utilised in the commission of a number of offences, by virtue of the offender driving it to and from Ms A’s house.

Assault frontline community service provider

85․The offender is charged with two counts of this offence. 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.
86․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]. The first count involved a punch to the face of Constable Scally while the constable was attempting to arrest the offender. The second involved the offender throwing his left elbow backwards which connected with Constable Tennent’s left eye region. The offender made contact with a vulnerable area of the bodies of both officers. The injuries resulting from both counts were minor. No doubt the offending caused pain to each victim and unnecessarily frustrated them in the execution of their duties.

Possess knife without reasonable excuse

87․In Chatfield v Badman [2015] ACTSC 209, Murrell CJ at [11] stated:
When considering the objective seriousness of an offence of this type, it is necessary to consider both the nature of the particular prohibited weapon and the nature of the offender’s conduct vis-à-vis that weapon.
88․The offender had in his possession a ‘flick-knife’ during the commission of the assaults upon the two police officers. On the facts before me I am not satisfied beyond reasonable doubt that the offender evinced an intention to use the knife as he was being pursued by police.

Possess license issued to another

89․This is a fine only offence with a maximum penalty of $3200 and is an unremarkable example of the offence.

Subjective circumstances

90․A pre-sentence report, as well as a report completed by psychologist Ms Vanessa Edwige, comprehensively recorded the background, history and personal circumstances of the offender. It can be observed from the outset that the offender has undoubtedly been shaped by exposure to profound grief and loss from a very young age. This loss set the scene for an unsettled childhood marked by instability, abuse, neglect, exposure to violence, use of illicit substances and economic disadvantage.
91․The offender is 30 years old. The sentencing conversation with the Elders panel revealed the devastating effect upon the offender of the loss early on in his life of two significant female figures. His mother died when he was two years old and his grandmother became his primary carer. She died when he was four years old. He was then separated from his siblings and moved to Campbelltown, NSW to live with his maternal aunt and her family. The offender reported witnessing and being subjected to physical abuse from his aunt, uncle and cousins.
92․Ms Edwige cited the Bugmy Bar Book: ‘Childhood Exposure to Domestic and Family Violence’ and observed that “there has been mounting empirical evidence of the effects of exposure to domestic and family violence on children’s development, and a growing recognition of the ways these harms can manifest in intergenerational cycles of trauma, violence and disadvantage”.
93․[Redacted]. He relocated to Canberra when he was 12 years of age to reside with his older brother. The offender was quickly exposed to illicit substance use, violence and other anti-social behaviour by his brother and his brother’s associates. [Redacted].
94․[Redacted].
95․The offender did not meet his father until he was 17 years old and they do not share a close relationship. His older sister passed away when he was 23 years old and he continues to experience significant distress in relation to her death.
96․The offender and his ex-partner, Ms A, share a daughter. He advised that he has maintained contact with them both while in custody.
97․The offender advised he completed Year 6 before exiting the school system partway through Year 7. He advised that he had learning difficulties and learned to read and write [redacted]. He has never held employment in the community although intends on engaging in further education and starting his own landscaping business after completing residential rehabilitation. He has previously held employment positions while in custody but is not currently employed due to being engaged in a full-time treatment program.
98․The offender told the author of the pre-sentence report that most of his friends and associates have criminal records or are involved in criminal activity. He has contact with three family members who he considered to be living pro-social lives.
99․The offender reported that an older family member began forcing him to smoke cannabis when he was four years old. He began regularly consuming alcohol and using illicit substances from 12 years of age. He began consistently using crystal methamphetamine from 13 years of age, and heroin from 16 years of age. When last in the community, he reported his heroin use was almost daily. He was also using a substantial amount of methamphetamine, the result of which was long periods without sleep. The offender was able to identify that he uses illicit substances to mask his grief and cope with his childhood trauma. He is currently engaging in the Buvidal program and the Solaris Therapeutic Communities program. He has applied to the Karralika residential rehabilitation program and is awaiting a response. He stated that he does not wish to be released from custody unless he is released to a residential rehabilitation program.
100․The offender has a diagnosis of schizophrenia for which he is currently prescribed antipsychotic medication. He has previously been admitted into the Adult Mental Health Unit after he reported increasing suicidal thoughts and psychotic symptoms. He also reported a diagnosis of bi-polar disorder.

Remorse and degree of responsibility for the offending

101․The offender presented with complex personal circumstances, that feature a history of childhood disadvantage, trauma, mental ill-health and entrenched addiction. They are relevant factors that influence an assessment of the offender’s prospects for rehabilitation and the need to protect the community.
102․Remorse is relevant to an assessment of the offender’s likelihood of re-offending and prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41]. While the pre-sentence report author noted that the offender agreed with the statement of facts, he also considered that the offender failed to show remorse for his offending and only accepted responsibility for his conduct to a limited extent. The offender attributed some blame to Ms A as at the time of his offending he believed they were still in a relationship and she was being unfaithful. He also told the pre-sentence report author that he only intended to punch Mr B however Mr B grabbed the knife and caused the injuries to his own hand. When challenged that his explanation did not correlate with the statement of facts, he conceded that he was under the influence of multiple illicit substances and was in active psychosis during the offences, therefore did not fully recollect his offending behaviour. Similarly, in relation to the 6 July offences he stated that he was in active psychosis and believed at the time that he was acting in self-defence. He reported that he was hearing voices at the time which convinced him that the police officers were intending to cause him harm.
103․In his interview with Ms Edwige, the offender demonstrated a higher degree of remorse and insight into his offending, stating:
[I] feel sad, sorry and disgusted. Want to apologise to my ex-partner. I’m trying to better my life. I’m trying as hard as I can to better my life. I am eager to turn my life around.
104․The Elders panel were unequivocal in their condemnation of the offender’s conduct, making clear to the offender that the use of violence against his partner and her friend was entirely unacceptable. Aunty Michele made a compelling observation in relation to the violence against Ms A, careful to acknowledge that the perpetration of violence against women is not part of our culture:
I just wouldn't, in good conscience, be able to end our conversation without letting you know how sacred our women are and, as a woman and your aunty in the community, not biologically aunty … but you know what I mean, culturally, I can't not let you know how I'm – that it's not okay. And I get the sense that you have known it's not okay for a long time because you grew up seeing it but you're becoming a cycle of men doing it. But I also feel that you are aware enough to be able to make the change to not continue.
105․Accordingly, the offender was left in no doubt that neither Ms A nor Mr B bore any responsibility for his use of violence. The offender expressed to the Elders panel that he “feel[s] really bad” about his conduct. It was clear to the Elders panel that the offender is deeply ashamed and understood the gravity of the offences. The offender readily acknowledged that the victims “would have been petrified and scared” and that he put them through a “traumatic event”. He demonstrated to the Elders panel a degree of insight into his offending, reflecting that he was going through a “bad” mental health period. He explained to the Elders panel that stealing a car gave him a sense of control in circumstances where he otherwise felt his mental health, drug use and personal relationships were beyond his control.
106․The offender entered pleas of guilty at an early opportunity, reflective of a willingness to accept responsibility for his conduct.
107․The material, along with the offender’s reflections before the Elders panel, supports a finding that he has developed a genuine commitment to reform while he has been in custody. He has recently graduated from the Solaris Therapeutic Community program and expressed a strong desire to participate in a residential rehabilitation program upon release into the community. He has prepared a relapse prevention plan which demonstrated significant awareness of the risk factors he faces when he is in the community and strategies he can utilise to mitigate those risks. He also identified various programs and supports he intends to engage with as part of a cultural healing plan.
108․As will become clear, the offender’s illicit substance addiction contributed to the commission of the offences before the Court. As submitted by the prosecution, this of itself does not mitigate the offending behaviour (R v Crawford (No 3) [2017] ACTSC 99 at [39]) however the circumstances underlying the addiction, in my view, do provide a basis for mitigation: R v Forrest (No 2) [2017] ACTSC 83 at [130]-[133]. What is made plain in the material before the Court is that the offender had very little control over the introduction of illicit substances to his life. From the age of four he was using cannabis. The level of instability in his caring and accommodation arrangements saw a ready transition to the use of methamphetamine and heroin by his early teens. The offender’s older brother himself was in no position to be responsible for the day-to-day care and guidance of a vulnerable young boy and yet the care arrangement persisted, [redacted].

Bugmy considerations

109․It is beyond any doubt that the offender experienced a disadvantaged and traumatic childhood of the kind contemplated by the High Court in Bugmy. The offender’s upbringing was significantly affected by alcohol and substance abuse, physical and emotional abuse, neglect, and social exclusion. He was [redacted]. Arising from all those factors it is unsurprising that the offender has had little by way of formal education and has no real history of meaningful employment.
110․As I have already identified, the offender first engaged in illicit substance use at 4 years of age which escalated to consistent drug use from 12 years of age. 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).
111․The offender reported being coerced into [redacted]. There is undoubtedly a strong link between the offender’s childhood and his persistent engagement with the criminal justice system.
112․Ms Edwige considered that the offender’s exposure to adverse experiences throughout his childhood and adolescence has resulted in “complex development trauma, post-traumatic stress disorder, and substance use disorder” which have all been untreated over the course of the offender’s life. She further considered that the presence of these factors along with the offender’s diagnosis of schizophrenia, significantly influenced the offender’s capacity for emotional regulation, decision making and exercising sound judgement. Ms Edwige noted that the offender continues to relive his [redacted] through flashbacks and unwanted memories and “he cannot resume the normal course of his life, as the trauma repeatedly interrupts” which continues to cause him “considerable psychological harm”. The offender “is a survivor of childhood neglect and physical and [redacted] and this has had a significant impact on his self-esteem and self-worth”. Both Ms Edwige and the Elders panel observed that the offender did not have positive social or parental supports [redacted]. The absence of those supports, Ms Edwige considered, enhanced his feelings of isolation and disconnection which put him at greater risk of psychological harm.
113․The offender’s disadvantaged childhood must be given full weight: Bugmy at 595 [44]. By virtue of the childhood circumstances to which I have referred, the offender will necessarily “have fewer emotional resources to guide his (or her) behavioural decisions” than a person who had a “normal” or “advantaged” upbringing: R v Millwood [2012] NSWCCA 2 per Simpson J (with whom Bathurst CJ and Adamson J agreed at [69]). Accordingly, the offender’s upbringing serves to reduce his moral culpability: MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 at [62], citing Bugmy at [43]. This is not to say that the offender bears no moral responsibility for his offending conduct. Rather, it is to acknowledge the real influence of his profoundly deprived childhood such that he cannot be found to have the same degree of responsibility as an offender who did not experience a deprived childhood. This is what individualised justice demands.

Verdins considerations

114․The prosecution conceded that the collective impact of the offender’s multiple diagnoses should reduce his moral culpability for the offending: see R v Verdins [2007] VSCA 102; 16 VR 40. Ms Edwige concluded that on 2, 3 and 6 July 2023, the offender had a mental health impairment that was clinically significant and arose from post-traumatic stress disorder, substance abuse disorder and schizophrenia. She further concluded that the offender’s behaviour was impacted by his history of complex developmental trauma.
115․A letter from Canberra Health Services dated 17 January 2023, confirmed the offender’s diagnosis of paranoid schizophrenia. The offender reported first receiving this diagnosis when he was 16 years old. A Justice Health Services Mental Health Brief Assessment Report dated 21 January 2022, stated that the offender presented with “a complex mental health history characterized by mood disturbance, psychotic phenomena including delusional ideation, thought disorder, and hallucinations; polysubstance misuse and impulsive and erratic behaviour”.
116․The offender stated that he was going through a particularly difficult time in relation to his mental health at the time of the offences. He reported hearing voices in the lead up to the commission of the 2 and 3 July offences, and that on 6 July 2023, those voices told him the police intended to cause him harm. Ms Edwige’s report detailed that the offender presents with recurrent and intrusive memories of the traumas he experienced as a child and that he has a physical reaction to these distressing memories in the form of increased anxiety. The offender stated that at the time of the offences he was heavily drug affected. On 6 July 2023, he reported being under the influence of ice, Valium, marijuana and alcohol.
117․Ms Edwige concluded that the offender’s mental health and substance use disorder at the time of the offences had a significant impact on his ability to make considered and appropriate choices and impaired his ability to make reasoned judgements, think clearly, regulate his behaviour and fully appreciate the wrongfulness of his conduct.
118․I am satisfied that the offender’s schizophrenia contributed to his offending conduct. The presence of disordered thinking, erratic behaviour and impulsive decision making can be readily identified in the conduct the offender engaged in on each occasion. At the time of his offending, the offender had disengaged from treatment. Accordingly, the offender’s moral culpability is reduced.
119․I am satisfied that giving “full weight” to the offender’s deprived background as well as taking into account his diagnosis of schizophrenia, operates to moderate the weight to be afforded to general deterrence, denunciation and punishment.
120․At the same time, I acknowledge that those factors operate to emphasise the need to protect the community from the offender and deter him from this kind of conduct, which in light of the nature of the offences, is a compelling consideration. This is the tension the High Court identified in Bugmy at [44] and is what “makes the exercise of the discretion so difficult”.

Rehabilitation

121․The picture of the offender’s rehabilitative prospects is complex. Ms Edwige considered that the offender “presents with deficits in conceptual, social and practical skills that impact on his ability to function in his daily life”. The author of the pre-sentence report justifiably expressed concern about the offender’s capacity to comply with community-based orders given his inability in the past to engage satisfactorily. The author did note the progress the offender has made while in custody including developing insight, actively pursuing treatment supports and remaining compliant with his prescribed medication regime.
122․Ms Edwige’s report, while carefully documenting the many challenges for the offender arising from his childhood circumstances and his mental health conditions, identified the opportunity that proper treatment would offer to the offender and his prospects of rehabilitation. Ms Edwige recorded that the offender’s “significant childhood trauma has never been addressed in a culturally safe trauma informed therapeutic environment. He has managed his trauma symptomatology through misusing substances to numb the pain”.
123․Like the author of the pre-sentence report, Ms Edwige recorded her concern that the offender requires significant support to “address his substance use disorders and have opportunities to work therapeutically to enhance his social and emotional wellbeing in an environment that is culturally safe and conducive to therapeutic change”. Ms Edwige underlined the capacity for repetitive evidence-based therapies to guide the offender’s responses to future life experiences. Given the absence of any substantive treatment from the offender’s life, Ms Edwige considered that with appropriate, targeted and long-term intervention, the offender has the ability to make positive change.
124․Ms Edwige confirmed that which the Elders panel reiterated, and that is the strength to be found in the offender’s cultural identity and connectedness to culture, citing Significance of Culture to Wellbeing, Healing and Rehabilitation (Dr Paul Gray and Vanessa Edwige, June 2021) and observing:
Aboriginal and Torres Strait Islander conceptualisations of wellbeing and healing are inextricably bound to cultural understandings of connectedness: our sense of self, identity and sense of belonging to family, community and Country. Engagement in and respect for these cultural frameworks and traditions promotes resilience and is critical to healing.
125․The capacity for the offender to draw on his cultural expression and to connect to culture in order to strengthen his rehabilitative efforts is constrained while he is incarcerated, a concern expressed by the Elders panel and by Ms Edwige. The offender has spent a significant portion of his life in a custodial environment, raising the prospect that he is at real risk of institutionalisation. Many of the behaviours cited by Ms Edwige as indicative of institutionalisation were observed in the offender and indeed were revealed in the difficulties the offender described experiencing with day to day living upon his release from prison prior to the offending conduct.
126․Ms Edwige summarised protective factors for the offender as follows:
(a)his love of culture and his people;
(b)his willingness and want to engage in cultural activities and programs that will enhance his social and emotional wellbeing;
(c)his strong motivation to address his substance misuse and access supports that will assist his recovery; and

(d)his strong support from his Aunty.

127․The sentencing conversation with the Elders panel highlighted the insight the offender has developed into the need for him to genuinely commit to rehabilitation if he is to truly turn his life around. The offender was unequivocal that he should not be released from custody unless there is a position available for him in a residential drug rehabilitation facility. The Elders panel were impressed by the offender’s commitment to that end and considered it demonstrated the offender’s understanding of the overwhelmingly negative contribution the use of illicit substances has had to his capacity to live a fulfilling, crime-free life.
128․The Elders panel nonetheless made it clear to the offender that he must be held accountable for his conduct; a concept to which the offender was resigned. Uncle Benny described carefully to the offender that the need for punishment arising from wrongdoing is a concept well-known to our communities; it being a central feature of our cultural concepts of law, peace and justice long before the establishment of the system of criminal justice now in operation. Uncle Benny explained:
I'll just go, and I shared this with us mob a few days ago, but I'll just go back, culturally, right? And you probably realise, you know, when someone done something serious wrong, seriously wrong, they'd come to this western court system. They'd be charged and they'd go in and do time. They didn't just do the time there because they were also aware that there was still a penalty that they had to pay when they come back out. They had to face the music with the mob and that meant, you know, some really harsh penalties that they had to face. The people, some of our mob, they were in there for a number of years, and they still come out and they still had to face the music with the old people.
129․What was also made clear to the offender by the Elders panel is the support that will always be available to him in our community; a community to which he belongs and to which he can return upon his release. The offender displayed real pride in his cultural identity, a matter reinforced by the confidence of the Elders panel in his potential to make a positive contribution in the future. The offender’s observable shame in the face of the Elders panel’s condemnation of his conduct was consistent with his acknowledgement that he needs to confront his addiction to illicit substances in order to properly address his mental health and his childhood trauma. The offender identified that his life, to date, has been absent a sense of peace, sharing with the Elders panel:
I've spent probably close to half my life in prison now and it's not peaceful in there. Yes, I'm always – everyone's on edge, it's dangerous, it's scary and I just – I want to be at peace somewhere. I want to do the gardening every day and relax and don't have to look over my shoulder.
130․The Elders panel were united in communicating to the offender that he must take responsibility for his future if he is truly desirous of a life different to that which is reflected in his criminal history. In a powerful interaction, the offender was reminded by Aunty Michele of her engagement with him as a younger man and the hope she had then for his future. Aunty Michele reiterated to the offender that despite seeing him in this position, the Elders panel remained hopeful for his future, observing:
One of the other things that is key to our role as Elders is that we give our mob hope. It's a partner with faith, hope that something could happen and faith that you will keep working towards that, even when times get hard, and here are the two things I heard you say which give me hope that after you have made – this is also a place, a circle where our mob get to make amends, where they do take the consequences of things they've done, but when that's done and said, you can, as you said, feel good about yourself, and you can, as you told us, be a role model.
131․The offender was open with the Elders panel about the struggle he experiences managing the stressors of everyday life when he is in the community. This led to a return to the discussion of the importance of connectivity with individuals and services in the community who are invested in the offender’s success. The offender identified a long-term aspiration of getting himself into a position whereby he can help others in our community struggling with trauma and addiction. As is reflected in the quote extracted above, this aspiration was encouraged by the Elders panel who were enthusiastic about the offender seeing himself as a future role model. Uncle Benny telling the offender, “the word hope that practises with what you mentioned about faith. You know, we have hope and a sense of faith that there's a different man inside you that wants to come out”.
132․While acknowledging the profoundly sad and disrupted childhood the offender experienced, the Elders panel each acknowledged the gravity of his conduct and reinforced the need for him to take personal accountability. The Elders panel drew on the resilience of our people to highlight the personal resilience and strength of the offender, having survived as he did a childhood and adolescence so lacking in care and guidance. It was for the offender, the Elders panel explained, to commit himself to substantive change if he wants to thrive and move beyond his negative childhood and adolescent experiences.
133․The sentencing conversation effectively demanded that the offender acknowledge those factors outside of his control and directly confront those factors within it, which are contributing to his offending conduct. The strength inherent in cultural connectivity was not only identified in the words of Ms Edwige’s report; it was clearly embodied in the interaction between the offender and the Elders panel.
134․I am satisfied that rehabilitation, despite the offender’s history and ongoing challenges, is not beyond him. Indeed, his commitment to residential drug rehabilitation together with his emerging insight into the other factors contributing to his offending conduct, provides a basis for cautious optimism. That said, it cannot be ignored that the offender will require significant support to cope with the demands of life upon his release. The parole authorities will be in a position to assess the offender’s needs and craft conditions of his release to give effect to that requirement.

Criminal history

135․The offender has an extensive criminal history in the ACT and NSW. Notably, this includes 18 prior convictions for driving a motor vehicle without consent and 3 convictions for family violence offending against Ms A.
136․The offender’s criminal history is not an aggravating feature. It limits the leniency that can be afforded to him. The pattern of conduct revealed in the offender’s criminal history demonstrates that this kind of offending is not uncharacteristic: Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465.

Time in custody

137․The offender has now spent 350 days in custody solely referable to these offences. I will take this into account in the sentences I impose which accordingly will be backdated to 10 November 2023.

Plea of guilty

138․The offender entered a plea of guilty to each offence on 16 January 2024 in the Magistrates Court. I am satisfied that the plea was entered at an early stage of the proceedings: see DPP v Joliffe-Cole [2024] ACTSC 256. In recognition of the significant utilitarian value of the plea of guilty, a 25 per cent discount is appropriate.

Conditional liberty

139․The offender was granted bail in the Magistrates Court on 3 May 2023 for a separate series of offences. He was therefore on conditional liberty at the time he committed the offences currently before the Court. His most recent offending conduct represents a betrayal of the opportunity to remain in the community: R v Tran [1999] NSWCCA 109 at [15].
140․The fact that the offender committed these offences while on bail is an aggravating feature which must be considered in sentencing. This is relevant to the determination of the appropriate punishment for an offence and does not influence the objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. I bear in mind that I must approach this feature of the offending with care so as to avoid double punishment: Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [61].

Current sentencing practise

141․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. I was taken to a number of outcomes in relation to the offence of causing grievous bodily harm in this jurisdiction including R v Gardner [2022] ACTSC 36, R v Jovanovic [2014] ACTSC 157, R v Bourne; R v Manns [2018] ACTSC 35 and R v Torbert [2015] ACTSC 331. In addition, I also had regard to DPP v Donohue (No 3) [2024] ACTSC 272. Reflective of the wide spectrum of injury that can constitute grievous bodily harm, the circumstances within which it can be inflicted and the variation in subjective factors the outcomes vary considerably.
142․The outcomes in R v McCurley [2020] ACTSC 140 and R v Crawford(No 1) [2020] ACTSC 245 were drawn to my attention in relation to the offence of aggravated burglary and I have had regard to the outcomes and the principles applied therein.

Determination

143․In sentencing the offender, I must have regard to the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act. The reduction of the offender’s moral culpability moderates the weight to be attached to punishment, denunciation and general deterrence. This must be balanced against the need to deter the offender and the need to protect the community. The sentence imposed in this instance must recognise the harm done to the victims by the offender’s conduct. Additionally, there is a need to give effect to the offender’s capacity for rehabilitation.
144․At a time when the offender was a boy in desperate need of care and support arising from the loss, abuse and neglect he had suffered, he was effectively left to be raised by another, albeit older, boy entirely ill equipped for that task. Sadly, the offender has realised a future that was severely limited by the deprivation that marked his childhood. These are not matters over which he had any control. He does have the capacity to take control of this next phase of his life and appears to have reached the point where he is desirous of change. If he can maintain that motivation for change and if appropriate supports can be made available to him, his interests can align with the community’s interest in seeing him reform.
145․The offending conduct overall was serious and caused significant harm, in particular to Mr B and Ms A. There was sensibly no dispute that the s 10 (of the Crimes (Sentencing) Act) threshold was crossed in relation to the matters before the Court. In my view, given the objective seriousness of the offending, only a period of imprisonment is appropriate.
146․There was a submission advanced on behalf of the offender, perhaps tentatively, that consideration be given to providing further time for the offender to secure a place at residential rehabilitation which could facilitate the imposition of a suspended sentence or alternatively, an assessment for an Intensive Correction Order. In light of the seriousness of the offending and the offender’s past history of poor compliance in the community, I do not consider either of these to be appropriate outcomes.
147․The reduction in the offender’s moral culpability in light of his profound childhood disadvantage is properly reflected in the length of the overall sentence imposed and the length of the parole period. In my view, the offender can continue to work towards rehabilitation which will undoubtedly improve his prospects for release by the parole authorities. Release on parole will see the offender supported by a regime that will give effect to the need for the offender to have targeted support in the community including with respect to accommodation and life skills. This will necessarily require scrutiny and accountability.
148․Ideally, the offender’s release would comprehensively incorporate his commitment to residential drug rehabilitation and the provision of additional support through the National Disability Insurance Scheme (NDIS), which I am convinced will significantly enhance his capacity to transition away from persistent engagement with the criminal justice system. Further, the offender’s release would ideally give effect to the clear need identified in Ms Edwige’s report for the supports provided to him to be culturally appropriate and relevant. It need hardly be said that the prospects of rehabilitation for First Nations offenders, including this offender, are likely to be greatly enhanced by access to First Nations specific supports upon release, such as those currently available at Winnunga Nimmityjah Aboriginal Health and Community Services and Yeddung Mura.
149․The offender being sentenced for multiple offences, I acknowledge that there is no one correct approach to the structuring of multiple sentences. The principle of totality “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 outcome must reflect the total criminality involved in the conduct and be “just and appropriate” in all the circumstances: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 [8]. 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.
150․Several of the offences are intertwined legally and factually, occurring either proximate to or simultaneously with each other. I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, applying the principle of totality: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623-624 [45]. Some cumulation will be required in recognition of the separate victims involved, though in each series the offending occurred in the context of a single episode of criminality: see O'Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244. I also bear in mind that the offender has only recently completed a sentence of full-time imprisonment.
151․I must set a non-parole period. The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37] and Taylor v The Queen [2014] ACTCA 9 at [19]. I have had regard to those principles. The setting of a non-parole period involves the exercise of a wide discretion. The non-parole period reflects the minimum term that justice demands the offender serve before he can be considered for release into the community. Rehabilitation is of course a factor, in particular, when assessing what is required in order to protect the community.
152․Consistent with his background, the offender has been incarcerated for varying periods [redacted]. The prosecution acknowledged that there is a risk of institutionalisation for a relatively young man. It was submitted that this risk can be addressed by a substantial parole period that will enable him to attend residential rehabilitation. In addition, a substantial period of parole would give effect to the need for the offender to be intensively supported in the way I have described, over a considerable period.
153․For the first series of offences:
(i)The starting point for the intentionally inflict grievous bodily harm offence (CC2023/6802) is 3 years and 6 months of imprisonment reduced to 2 years, 7 months and 14 days of imprisonment for the plea of guilty.
(ii)The starting point for the aggravated burglary offence (CC2023/6803) is 3 years of imprisonment reduced to 2 years and 3 months of imprisonment for the plea of guilty.
(iii)The starting point for the assault occasioning actual bodily harm offence (CC2024/622) is 2 years of imprisonment reduced to 1 year and 6 months of imprisonment for the plea of guilty.
(iv)The starting point for the dishonestly drive motor vehicle without consent offence (CC2023/7907) is 10 months of imprisonment reduced to 7 months and 15 days of imprisonment for the plea of guilty.

154․For the second series of offences:
(i)The starting point for the assault frontline community service provider offence (CC2023/6804) is 8 months of imprisonment reduced to 6 months of imprisonment for the plea of guilty.
(ii)The starting point for the assault frontline community service provider offence (CC2023/6805) is 8 months of imprisonment reduced to 6 months of imprisonment for the plea of guilty.
(iii)The starting point for the possess knife without reasonable excuse offence (CC2023/6806) is 2 months of imprisonment reduced to 1 month and 15 days of imprisonment for the plea of guilty.

Orders

155․For those reasons, I make the following orders:
(1)On the charge of intentionally inflicting grievous bodily harm (CC2023/6802), the offender is convicted and sentenced to 2 years, 7 months and 14 days of imprisonment commencing on 10 November 2023 and ending on 23 June 2026.
(2)On the charge of aggravated burglary (CC2023/6803), the offender is convicted and sentenced to 2 years and 3 months of imprisonment commencing on 23 March 2025 and ending on 22 June 2027.
(3)On the charge of assault occasioning actual bodily harm (CC2024/622), the offender is convicted and sentenced to 1 year and 6 months of imprisonment commencing on 22 October 2026 and ending on 21 April 2028.
(4)On the charge of driving a motor vehicle without consent (CC2023/7907), the offender is convicted and sentenced to 7 months and 15 days of imprisonment commencing on 6 September 2027 and ending on 20 April 2028.
(5)On the charge of assault frontline community service provider (CC2023/6804), the offender is convicted and sentenced to 6 months of imprisonment commencing on 20 January 2028 and ending on 19 July 2028.
(6)On the charge of assault frontline community service provider (CC2023/6805), the offender is convicted and sentenced to 6 months of imprisonment commencing on 20 April 2028 and ending on 19 October 2028.
(7)On the charge of possess knife without reasonable excuse (CC2023/6806), the offender is convicted and sentenced to 1 month and 15 days of imprisonment commencing on 5 September 2028 and ending on 19 October 2028.
(8)On the charge of possess license issue to another (CC2023/6807), the offender is convicted and fined $200 and allowed no time to pay.
(9)The total period of imprisonment of 4 years, 11 months and 10 days will commence on 10 November 2023 and end on 19 October 2028.
(10)I impose a non-parole period to start on 10 November 2023 and end on 22 September 2026.
(11)Pursuant to s 67 of the Crimes (Sentencing) Act I make the following recommendations in relation to the conditions of parole:
(i)The offender attend or engage in drug rehabilitation services (including residential rehabilitation) specific to, or catering specifically for, the cultural needs of First Nations people; and
(ii)The offender be supported to engage with services designed for and operated by First Nations people to assist him upon his release with the management of his mental health (including his engagement with the NDIS), day to day living, cultural connectivity, employment readiness, housing and relationship management.

I certify that the preceding one hundred and fifty-five [155] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor.

Associate:

Date:

[2024] ACTSC 329

24 October 2024