Director of Public Prosecutions v Cross (No 4)
[2025] ACTSC 293
•11 July 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Cross (No 4) |
Citation: | [2025] ACTSC 293 |
Hearing Dates: | 28 February 2025, 1 May 2025 |
Decision Date: | 11 July 2025 |
Before: | Taylor J |
Decision: | See [181]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Pilot Circle Sentencing List – Elders and Respected Persons Panel – aggravated burglary – drive motor vehicle without consent – theft – affray – contravene section 3LA order – Bugmy principles applied – significant rehabilitative potential – offender demonstrated significant remorse |
Legislation Cited: | Crimes Act 1900 (ACT), s 35A(2) Crimes Act 1914 (Cth), s 3LA(5) Crimes (Sentencing) Act 2005 (ACT), ss 7, 11(3), 17, 33(1)(f), 53(1)(a) Criminal Code 2002 (ACT), ss 308, 312, 318(2), 754(1) |
Cases Cited: | Bugmy v The Queen [1990] HCA 18; 169 CLR 525 DPP v Al-Mofathel [2024] ACTSC 117 DPP v Chatfield [2024] ACTSC 329 DPP v Clissolds [2023] ACTSC 250 DPP v KS (a pseudonym) (No 3) [2023] ACTSC 352 DPP vMalibe [2024] ACTSC 43 DPP v Monaghan [2024] ACTSC 183 DPP v Stasinos [2023] ACTSC 179 DPP v Vincent (No 2) [2023] ACTSC 379 DPP v Welsh (No 3) [2024] ACTSC 179 DPP v Woods [2023] ACTSC 380 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565 Kelly v Ashby [2015] ACTSC 346 Mill v The Queen [1988] HCA 70; 166 CLR 59 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Cook [2022] ACTSC 381 R v HEK [2012] NSWSC 1364 R v Huynh; R v Lam; R v TA [2000] NSWCCA 18 R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23 R v La Rosa [2011] NSWSC 1394 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Massey (No 3) [2021] ACTSC 156 R v Millwood [2012] NSWCCA 2 R v Rosewarne [2021] ACTSC 217 R v Thorn [2020] ACTSC 363 R v Tran [1999] NSWCCA 109 R v Van Rysewyk [2008] NSWCCA 130 R v Way (2004) 60 NSWLR 168 R v White [2022] ACTSC 178 R v White [2022] ACTSC 178 R v Williams-Savage [2021] ACTSC 271 Smith v The Queen [2011] NSWCCA 163 Stevens v R [2007] NSWCCA 152 |
Texts Cited: | Bugmy Bar Book Project: ‘Early Exposure to Alcohol and Other Drug Abuse’ (November 2019) Bugmy Bar Book Project: ‘Interrupted School Attendance and Suspension’ (October 2023) Bugmy Bar Book, Child Abuse and Neglect (June 2024) Bugmy Bar Book: ‘Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence’ (May 2024) |
Parties: | Director of Public Prosecutions ( Crown) Bronson Cross ( Offender) |
Representation: | Counsel T Kelliher ( DPP) E Chen ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT | |
Elders: | B Hodges S Munro R Blakeney |
File Numbers: | SCC 330 of 2023 SCC 331 of 2023 SCC 338 of 2023 SCC 247 of 2024 |
TAYLOR J:
Introduction
1․On 28 February 2025, Bronson Cross, a 21-year-old Wiradjuri man participated in a sentencing conversation as a participant in the ACT Supreme Court Pilot Circle Sentencing List.
2․The matter was subsequently adjourned for the preparation of an Intensive Correction Order Assessment Report (ICOAR) as well as to await the outcome of other outstanding, unrelated proceedings. Those proceedings have now been finalised.
3․In DPP v Chatfield [2024] ACTSC 329 at [1]-[14] I explained in detail the context and purpose of the Pilot Circle Sentencing List. As with other matters dealt with under this pilot, the Elders Panel on this occasion wisely, generously and patiently participated in the sentencing conversation. Mr Cross also engaged substantively and authentically in the sentencing conversation as did his family members who attended in support. The participation of all involved enhances the capacity to deliver individualised justice in pursuit of a just and appropriate sentencing outcome.
4․As I recorded in Chatfield and as was the case in this matter, the sentencing conversation which underpins this process required Mr Cross to directly engage with the Elders Panel and take responsibility for his conduct. As part of the exchange with members of the Elders Panel, Mr Cross outlined his background and family history and described some of the personal challenges he has experienced which he identified as contributing to his contact with the criminal justice system. Mr Cross’ mother and grandmother (‘nan’) also participated in the sentencing conversation which assisted the Elders Panel to comprehensively understand the challenges facing Mr Cross and to identify the strength of his connection to his family and to his culture.
5․As will become clear the prosecution supported an outcome of these proceedings which recognised the time Mr Cross has spent in pre-sentence custody and the prospects for rehabilitation that he presents.
The offences
6․Mr Cross is to be sentenced for three separate series of offences.
Series 1
7․On 6 December 2023, Mr Cross entered a plea of guilty to the following four offences, each of which were committed on 18 October 2023:
(a)CC2023/10579: Aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT), which carries a maximum penalty of 2,500 penalty units, imprisonment for 20 years or both.
(b)CC2023/10580: 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.
(c)CC2023/10581: Theft, contrary to s 308 of the Criminal Code, which carries a maximum penalty of 1,000 penalty units, imprisonment for 10 years or both.
(d)CC2023/11613: Unauthorised entry of motor vehicle, contrary to s 754(1) of the Criminal Code, which carries a maximum penalty of 10 penalty units.
Series 2:
8․On 20 December 2023, Mr Cross entered a plea of guilty to the following offence committed on 9 September 2023:
(a)CC2023/11930: Affray, contrary to s 35A(2) of the Crimes Act 1900 (ACT), which carries a maximum penalty of imprisonment for 5 years.
Series 3:
9․On 13 June 2024, Mr Cross entered a plea of guilty to the following offence committed on 2 May 2024:
(a)CC2024/4980: Contravening a section 3LA order, contrary to s 3LA(5) of the Crimes Act 1914 (Cth), which carries a maximum penalty of 300 penalty units, imprisonment for 5 years or both.
The facts
Series 1
Background
10․KE is the registered owner of a dark grey 2015 Subaru WRX STI (the Subaru WRX).
11․At about 4:50am on 14 October 2023, KE woke up and found the front door of his residence open. KE observed that the keys to his vehicle, the Subaru WRX, had been taken from inside his house and that his vehicle was missing.
12․KE reported the theft to the police. He did not give permission for anyone to enter his residence, nor to take or drive his vehicle.
13․At about 12:22am on 16 October 2023, the Subaru WRX pulled up near KD’s vehicle which was parked on the side of the road in Red Hill in the ACT.
14․A male then exited the Subaru WRX and removed the registration plates from KD’s vehicle. The male then replaced KD’s registration plates with the registration plates of the Subaru WRX.
The offending
15․XS resides in Weston, ACT. XS’s house is fitted with a number of external and internal closed-circuit television (CCTV) cameras.
16․At about 7:00am on 18 October 2023, XS’S son, locked the doors and secured the residence.
17․At about 12:28pm that day, Mr Cross drove the Subaru WRX onto the street where XS resides. The Subaru WRX was recognisable due to its dark coloured rims and bonnet scoop vent.
18․Between 12:28pm and 12:48pm, Mr Cross drove past XS’s house a number of times at a slow speed. At about 12:48pm, Mr Cross parked the vehicle in front of the house, exited the driver’s seat and approached the house. He was carrying a pickaxe and wearing a face covering.
19․Mr Cross proceeded to walk around the perimeter of the residence, looking for entry points. At this time, the house was unoccupied.
20․At about 12:53pm, Mr Cross was captured in CCTV footage inside the kitchen of the residence without a face mask. It is unknown how Mr Cross gained entry into the residence.
21․Between 12:53pm and 2:50pm, Mr Cross entered a number of rooms within the residence and rummaged through drawers and cabinets. On at least three occasions, Mr Cross left the residence carrying several bags of items which he deposited in the Subaru WRX.
22․At 2:50pm, Mr Cross left the residence.
23․The actions above were captured by the internal and external CCTV cameras.
24․At about 4:00pm that day, XS returned to his residence and immediately observed that the door between the garage and the residence was open, and that several items in the garage had been moved or thrown on the ground. He entered the residence and observed the laundry door to be open. He walked into the kitchen and observed items strewn throughout the residence. He observed multiple drawers and cabinet doors to be open. He entered his daughter’s bedroom and observed a pickaxe that did not belong to him situated on his daughter’s bed.
25․XS identified that the following items were missing from his residence:
(a)Spare house keys with a clip hook;
(b)Toyota Land Cruiser keys with a clip hook;
(c)Mitsubishi Lancer keys with a clip hook;
(d)Thermal hunting gear;
(e)Battery Milwaukee tools;
(f)Hand Tool;
(g)His daughter’s jewellery;
(h)Aftershave;
(i)Battery packs;
(j)Portable speaker;
(k)CPAP machine; and
(l)Garmin bicycle gear.
26․At no time did XS give anyone permission to enter his house or to take items from his house.
Investigation and arrest
27․A short time later, XS contacted police. Police attended XS’s residence and conducted a forensic examination. Police seized the pickaxe. XS provided a statement and a copy of the relevant CCTV footage to police.
28․Police recognised Mr Cross from the CCTV footage provided and were satisfied as to his identity.
29․At about 12:50am on 20 October 2023, police located the Subaru WRX at an apartment block in Oaks Estate, ACT. The vehicle was bearing the registration plates that had been taken from KD’s vehicle.
30․While waiting for the Subaru WRX to be towed, police observed three males exit the fourth garage on the left of the apartment block. One of the males was later identified as Mr Cross. Mr Cross was wearing all black, including a black hooded jumper, was of thin build, and had a dark moustache.
31․Mr Cross went to walk towards the Subaru WRX however, when he saw police, he diverted to the stairwell of the unit block and walked up to the landing. The other two males followed him.
32․During the forensic examination and search of the Subaru WRX, police located a jewellery item stolen from XS’s residence, being a gold bracelet with the engravings, [Redacted] and [Redacted].
33․At about 11:30am on 26 October 2023, police executed a search warrant at Mr Cross’ residence in Karabar, NSW. Mr Cross was present at the location and arrested by NSW Police. A short time later, Mr Cross was transported to Queanbeyan Police Station and subsequently extradited.
34․During the execution of the search warrant, police located and seized several items worn by Mr Cross during the burglary, including the following items:
(a)Black gloves;
(b)A ‘North Face’ brand black vest;
(c)Grey Slim fit pants; and
(d)A black cap with ‘ACDC’ lettering.
35․Police also located the following items during the execution of the search warrant which were stolen from XS’s residence:
(a)Men’s ‘Seiko’ brand gold watch;
(b)Men’s gold chain;
(c)‘Creed Green Irish Tweed’ aftershave;
(d)‘Prada Luna Rossa Ocean’ aftershave;
(e)‘LG Dolby Atmos’ sound bar;
(f)‘Google Nest’ Wi-Fi router; and
(g)Gold wrist bracelet engraved with “[Redacted]”.
36․The following conclusions were drawn from the forensic examination of the Subaru WRX:
(a)A swab taken from the steering wheel of the Subaru WRX produced a mixed DNA profile from a minimum of two individuals. There was extremely strong support for the proposition that Mr Cross was a contributor to the DNA profile.
(b)A swab taken from a ‘Red Bull’ can located in the front centre console of the Subaru WRX produced a male DNA profile. There was extremely strong support for the proposition that Mr Cross was the source of the DNA profile.
(c)A swab taken from a ‘Red Bull’ can located in the rear centre console of the Subaru WRX produced a male DNA profile. There was extremely strong support for the proposition that Mr Cross was the source of the DNA profile.
Series 2: 9 September 2023
37․On 8 September 2023, DG and DN checked into Room 309 of the Midnight Hotel (‘the hotel’) in Braddon, ACT.
38․Between about 1:00am and 2:30am on 9 September 2023, DG and DN gave permission for [redacted], who they had met the previous night, to enter Room 309.
39․At about 4:45am, UC sent a text message to [redacted], asking if she could use the bathroom in their hotel room. DG gave the hotel room access card to [redacted], so that she could escort UC to the room.
40․A short time later, [redacted] went to the lobby of the hotel and escorted four people up to Room 309. This group of four people included UC, Mr Cross, [redacted] and MT.
41․A short time later, the group exited Room 309 with [redacted] and went to the lobby. They then headed in the direction of the hotel restaurant.
42․ET was working at the hotel as a ‘night auditor’ at the time. ET intercepted the group to prevent them from entering the restaurant as the restaurant was closed.
43․The group informed ET that the occupants of Room 309 were smoking in the room and using illicit substances. ET then attended Room 309 where he spoke with DG and DN, who claimed that they had asked the group to leave due to their level of noise.
44․ET returned downstairs and spoke with GR, the hotel’s ‘night manager’. GR informed ET that the group had entered the restaurant. She also informed ET that she had observed them vaping within the building, both in person and on CCTV footage, and had subsequently ask the group to leave the hotel.
45․MT, [redacted] and [redacted] had left the hotel however, Mr Cross and UC remained in the lobby.
46․ET approached Mr Cross and UC and asked them to leave the Hotel. Mr Cross responded to ET with words to the effect of, “are you fucking kidding me, I am not going to go wait outside”. While engaging in conversation with ET, Mr Cross referred to him as “pooftah” and “faggot”. GR proceeded to call the police, causing Mr Cross and UC to exit the building.
47․At about 5:32am, ET followed the group outside to ensure that they had left the premises. UC then used both hands to push ET with force. ET remained in the doorway of the hotel for a short time before turning around and walking inside. As he turned around, Mr Cross threw a drink can in ET direction.
48․ET turned around and walked outside through the front doors of the hotel in an attempt to speak with Mr Cross. [Redacted] attempted to prevent ET from speaking with Mr Cross by standing in front of ET and engaging him in conversation. ET walked past [Redacted] and up a set of stairs at the front of the hotel while engaging in conversation with MT and Mr Cross, who were standing at the top of the stairs.
49․Once ET reached the top of the stairs, MT pushed him in the chest with both hands, forcing ET backwards in the direction of the stairs. As this occurred, Mr Cross attempted to kick ET with his left foot. However, ET caught Mr Cross’ leg, preventing the kick from connecting with ET body.
50․While holding onto Mr Cross’ leg, ET turned around. Fearing that he would be pushed down the stairs, ET attempted to pull Mr Cross away from him. Mr Cross lost his balance and fell backwards and rolled down the stairs at the front of the hotel.
51․At this point, MT rushed towards ET and struck his left check with an open right hand. In response, ET grabbed onto MT by his clothing. As this was occurring, [redacted] arrived at the melee and attempted to release ET’s grip on MT by striking ET’s chest area repeatedly with open palms.
52․While ET held MT by his clothing, Mr Cross walked back up the stairs and punched ET in a “hook” fashion with his right hand, connecting with the left side of ET’s face. Mr Cross then kicked at ET twice; one of the kicks connected with ET’s lower body.
53․During the altercation, [redacted] kicked in the direction of ET on a number of occasions. One of these kicks connected with ET’s torso area, causing ET to fall back and lose his balance before MT pulled ET to the ground.
54․A short time later, the altercation ceased, and the group fled on foot towards the city area.
55․At about 7:26am the same day, police attended the location and spoke with ET. Police also spoke with DG and DN who identified the five people in the group as UC, [redacted], MT, [redacted] and “Bronson”.
56․A short time later, police reviewed CCTV footage of the incident. Police also obtained video footage of the incident that was captured by a bystander on his mobile phone. Both of the recordings depicted and confirmed the version of events outlined above.
57․Subsequent investigation revealed “Bronson” to be Mr Cross.
58․On 6 October 2023, ET attended City Police Station and provided police with a written statement, detailing the events outlined above.
59․On 21 October 2023, DG and DN attended the City Police Station and provided police with a written statement, detailing the version of events outlined above. In her written statement, DG further confirmed the identities of the group as Mr Cross, [redacted], MT, [redacted] and UC.
60․ET did not give anyone permission to assault him at any time.
Series 3: 2 May 2024
61․On 1 May 2024, Mr Cross attended the Queanbeyan Police Station in NSW. He was arrested in relation to matters in the ACT and was extradited to the ACT.
62․In the course of Mr Cross’ arrest, police seized a mobile phone that was in his possession.
63․On 2 May 2024, the ACT Magistrates Court issued an order under s 3LA of the Crimes Act 1914 (Cth), requiring Mr Cross to provide information or assistance that is reasonable or necessary to allow police to access data held in that mobile phone.
64․While at the ACT Regional Watch House, Mr Cross told police that the mobile phone they were seeking access to was not his. He stated to police that it was “one I got from my sister not long ago” and “not my stuff is on that”. Mr Cross said that he had been in possession of the phone for two or three days and that the phone number was his.
65․At approximately 5:52pm, while Mr Cross was at the ACT Watch House, Mr Cross was served with the s 3LA order. Mr Cross declined to provide the passcode to the mobile phone, stating, “I don’t know”, when asked what the passcode was. He then stated he “forgot”.
66․Mr Cross was told he had 10 minutes to comply with the order to which he responded, “either way, youse (sic) are going to get into it”. Mr Cross was then reminded that breaching the order was an offence, and that if he changed his mind in the next 10 minutes, he could comply with the order.
67․At 6:02pm, Mr Cross sought legal advice. He subsequently refused to provide the passcode to the mobile phone.
Nature and circumstances of the offending
68․I must assess the objective seriousness of the conduct as part of considering the nature and circumstance of the offending. The maximum penalty provides a “yardstick” against which to assess the objective seriousness of the offending. Whilst it is necessary to consider where the offending conduct sits on the spectrum of conduct establishing the offence, rather than categorise the offending by reference to “low”, “mid” or “high” range, I approach this aspect of the sentencing task by identifying the features of the offending which inform its objective seriousness.
Series 1
Aggravated burglary
69․In R v Rosewarne [2021] ACTSC 217 at [119], Murrell CJ identified the following factors as informing the objective seriousness of burglary offences:
(a)Whether the offence was committed at commercial or residential premises (where the occupants are likely to feel a greater sense of violation) and, if at residential premises, whether it was the main premises or an associated building (such as a garage) that was entered.
(b)Whether the premises were occupied or were likely to be occupied at the time of the entry.
(c)Whether the victim was vulnerable; for example, if the main residence was entered, whether the victim at home alone and asleep.
(d)The means of entry; for example, whether it was forced entry or entry via a partly open door.
(e)The degree to which there was associated destruction or disarray.
(f)Whether there was an interaction with an occupant and, if so, whether the occupant was directly threatened and the nature and duration of any force or threat (including whether it was gratuitous).
(g)For aggravated burglary (committed in company)—whether the offender was in the company of more than one other person, the role played by the offender, and whether there was an additional aggravating feature of having an offensive weapon.
(h)The degree of planning, which may be able to be deduced from whether the offender was disguised and/or had armed himself with an offensive weapon or implement for the purpose of gaining entry.
70․The circumstance of aggravation for this offence was that Mr Cross was armed with a pickaxe, a weapon capable of causing serious harm and inducing fear.
71․The offence was committed at a residential premises. The offending was a violation of the sense of safety and security the victims were entitled to feel in their own home. The intrusion into the sanctuary of their home was not confined to a particular area. Mr Cross spent a period rifling through various areas of their home, including a bedroom of a child where he left the pickaxe.
72․The residents were not present in the home. Mr Cross remained at the residence for nearly two hours.
73․The method of entry was not known. The extent of the damage occasioned to the home was limited to the disarray caused by items being strewn throughout the house.
74․There was a degree of premeditation to the offending. In the 20 minutes prior to entering the residence, Mr Cross drove slowly down the street multiple times. Entering the premises armed with a pickaxe and wearing a face covering was a further demonstration of planning.
Theft
75․In DPP v Monaghan [2024] ACTSC 183 at [18], citing R v Elphick [2021] ACTSC 9 at [115] and R v Slattery [2021] ACTSC 154 at [38], I identified the following factors as relevant to an assessment of the objective seriousness of theft offences:
(a)The motive for the theft;
(b)The extent and value of the property taken; and
(c)Whether the stolen item was of sentimental value, or utilitarian value such that it would be difficult or inconvenient to replace (such as identity documents).
76․A full list of the items taken is provided in Annexure A. The value of the property taken from the residence was significant totalling $47,011. The value of the items a significant loss to the owners. Excluding those identified above at paragraphs [32] to [35], the items were not recovered.
77․Some of the items taken from the residence held sentimental value, in particular, the items of jewellery featuring inscriptions. As submitted by the prosecution, the theft of the ResMed CPAP machine had the potential to negatively impact the victim’s health given it is “considered lifesaving medical equipment for the treatment or assistance of sleep apnoea”. Further, the theft of items such as the prescription glasses would likely have caused inconvenience.
78․There is nothing to suggest the theft was anything other than financially motivated.
Drive motor vehicle without consent
79․In R v Massey (No 3) [2021] ACTSC 156 at [29], Refshauge AJ identified the following factors as informative of the objective seriousness for the offence of driving a motor vehicle without consent:
(a)The period of driving and the length of the distance driven;
(b)Whether the vehicle was used in the commission of another offence;
(c)Whether the offender was the driver and not only a passenger;
(d)The manner of the driving;
(e)Whether the vehicle was damaged and whether it was returned to the owner; and
(f)Whether the offender is likely to have continued to drive the vehicle for some further time had he or she not been intercepted by the police.
80․Mr Cross was the driver of the vehicle. The manner of his driving appears to have been unremarkable and did not come to the attention of police. Mr Cross drove the vehicle for a 20-minute period before committing the burglary offence. Additionally, he drove away from the residence in the Subaru WRX nearly two hours later. The use of the vehicle facilitated the burglary and theft offences for which he has been separately charged.
81․The vehicle was recovered, undamaged, two days after Mr Cross drove it.
Unauthorised entry of a motor vehicle
82․This is a fine only offence with a maximum penalty of $1600. Mr Cross has been separately charged for driving the same motor vehicle on the same date and I am mindful of the need to avoid double punishment. This was an unremarkable example of the offence.
Series 2
Affray
83․The following summary identifies factors relevant to assessing the objective seriousness of the offence of affray:
(a)Whether the affray was premeditated or broke out “spontaneously in response to an unforeseen event”: see R v Huynh; R v Lam; R v TA [2000] NSWCCA 18 at [29];
(b)The role of the offender in the affray in the context of co-offender: see DPP v KS (a pseudonym) (No 3) [2023] ACTSC 352 at [5], R v HEK [2012] NSWSC 1364 at [17] and Stevens v R [2007] NSWCCA 152 at [25];
(c)The level of violence used in the affray: see HEK at [27], Stevens at [25];
(d)Effect of the attack upon persons at the scene: see HEK at [21]-[22] citing Khanwaiz & Ors v R [2012] NSWCCA 168 at [50], R vLa Rosa [2011] NSWSC 1394 at [29];
(e)The period over which the affray occurred and whether it was a single episode or ongoing course of conduct: see R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23 at [57] and R v Thorn [2020] ACTSC 363 at [48].
84․Mr Cross is charged pursuant to s 35A(2) of the Crimes Act, meaning the offence was statutorily aggravated by the involvement of three other people.
85․The offending was not premediated and arose in the context of Mr Cross and his co-offender’s being directed to leave the premises by the victim.
86․Mr Cross was an active participant in the affray. He engaged in verbal abuse of the victim in the lead up to the physical violence. Whilst two of his co-offenders initially pushed the victim, Mr Cross’ attempt to kick the victim represented an escalation in the level of violence used.
87․The affray involved the victim being struck multiple times to various areas of his body. Mr Cross kicked the victim’s “lower body” and punched him in the face, a vulnerable area. I have no doubt that the offending caused pain to the victim and unnecessarily frustrated him in the execution of his employment duties. The victim was entitled to go about those duties without risk to his safety and security.
88․The period of the affray was relatively brief.
Series 3
Contravention of section 3LA order
89․Mr Cross was provided with multiple opportunities to comply with the order. The conduct involved in this offending was otherwise unremarkable. As observed by Mossop J in R v White [2022] ACTSC 178 at [46]:
…[A] very significant sentencing consideration is the need for general deterrence of such offending. Without significant penalties there are strong incentives for persons to refuse to comply with those orders.
Victim impact statements
90․Victim impact statements were provided by the victim of the burglary and theft offences, XS, and the victim of the affray offence, ET. I am obliged to consider the effect of the offending on the victim: s 33(1)(f) and s 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT).
XS
91․XS’s victim impact statement eloquently detailed the wide-ranging effect of the burglary and theft offences on him, his family and his business. He described the offending as having “shattered” his family’s sense of safety. The violation the offending represented he explained had left emotional scars on all of them. XS said that both of his children continue to struggle with the trauma, and this in turn pains him to observe. He described how his 13-year-old daughter no longer feels safe in her bedroom and has regressed to sleeping in his bedroom each night. He stated that she is consumed by thoughts of their home being invaded again and “struggles to find comfort even when surrounded by family”.
92․XS explained that the entire family has been made to feel vulnerable in their own home. He himself feels constantly on edge despite having the installation of numerous measures to guard their safety. His sense of hypervigilance has led him to feel increasingly isolated and emotionally drained. He detailed the negative impact of those consequences on his familial and social relationships.
93․XS also identified that the mental toll upon him of the incident has extended into his professional life because his focus has been diverted from his work. He detailed the significant financial and logistical burdens he has experienced included by upgrading the security of his home and navigating insurance claims and police reports following the burglary.
ET
94․In his victim impact statement, ET expressed the personal challenges he has faced following the incident, describing it as a “permanent mental scar”. He detailed how the assault has led him to question himself and whether he had done something wrong. He continues to experience feelings of shame. He explained how the protocols he had been taught in relation to calm communication and attempting to resolve tensions peacefully “backfired” on him. He described feeling confused as to how simply doing his job resulted in him being physically harmed.
95․ET further detailed how the incident caused him to start “questioning [his] own job” as he now had to evaluate whether his employment was worth the risk of being harmed. He expressed that since the incident, when he has observed disobedient guests, he no longer interacts with them and instead, “let[s] them take advantage of me being quiet”. In addition to affecting his employment, the fear he now carries with him has limited his ability to engage in everyday tasks. ET described feeling scared to use public transport at night and experiencing anxiety when confronted with loud groups of people. ET has engaged in counselling sessions to try to overcome the psychological damage that has been occasioned to him by the Mr Cross’ conduct.
Conclusion
96․The Court is assisted by the provision of the victim impact statements, which provided real insight into the pervasive effects of the offending, to comprehend the nature and the extent of the harm occasioned by the offending conduct. The statements demonstrated the harm that can come from offences of this type as well as the enduring nature of that harm beyond the immediate ramifications of the crimes committed by Mr Cross.
Subjective circumstances
97․An Intensive Correction Order Assessment Report (ICOAR) dated 22 April 2025, as well as a report completed by psychologist, Ms Vanessa Edwige on 4 February 2025, comprehensively recorded the background, history and personal circumstances of Mr Cross which can be summarised as follows.
98․Mr Cross is 21 years old. His parents were separated at the time of his birth however engaged in and ‘on and off’ relationship throughout his adolescence. He has an older brother and sister, as well as another four younger half-siblings from his father. Throughout his childhood, Mr Cross spent alternating weeks residing with each parent. Mr Cross expressed that he found “moving back and forth” difficult as a child and that it “messed [his] head up”.
99․To Ms Edwige, Mr Cross reported that his mother routinely smoked marijuana and drank alcohol. He stated that because of this, he “didn’t have much of a relationship with [his] mum” as “she would come home from work, smoke weed and pass out”. Mr Cross explained that his older sister was the person who cooked meals and took care of him.
100․Mr Cross reported being subjected to domestic violence. He reported violence toward him occurring “nearly every other day”. Mr Cross stated to Ms Edwige:
Because I wasn’t organized through primary school, I would get into trouble and then dad would flog me. Happened heaps of times. Left marks on me. He would use his hands, the boot, the jug cord, the belt, anything really.
…
Would get flogged by mum with a belt, thong, throw things at us. Mum had a temper. Was scared of mum.
101․Ms Edwige, citing the Bugmy Bar Book: ‘Child Abuse and Neglect’, observed the following:
Child maltreatment leads to cognitive alternations including distrust of others, hypervigilance to threat, impaired emotion recognition and regulation, and reduced responsiveness to rewards. Experiences of child maltreatment heighten threat perception, which activates the body’s stress response and sensitises the neurobiological systems, making an individual more vulnerable to mental illness…. Child maltreatment initiates a developmental cascade that disrupts social connection and other opportunities, conferring risk of mental disorders.
102․Mr Cross also reported being exposed to domestic violence perpetrated by his father toward his mother as well as violence toward her from subsequent partners:
Saw my dad bashing my mum. One day it was my dad’s week and he was drinking and on the drugs. Mum came to get us and dad wasn’t having it. Dad held onto the car and mum dragged him about 100 metres up the road. Seeing the violence between them was horrific. I still think about it now.
103․Ms Edwige cited the Bugmy Bar Book: ‘Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence’, observing that:
Infants who are exposed to family violence will be exposed to dysfunctional relationships, inconsistent attachment dynamics and interactions characterised by negative affect and inconsistent meaning-making…[and] have been found to engage in more negative patterns of interaction.
104․Throughout his childhood, Mr Cross was also exposed to his parents’ illicit substance use, namely alcohol and marijuana. Mr Cross also explained that following the passing of his paternal grandmother, his father began using methamphetamines. Citing the Bugmy Bar Book Project: ‘Early Exposure to Alcohol and Other Drug Abuse’, Ms Edwige observed the following:
The direct effects of early exposure to substance abuse on children may include: emotional and physical abuse and other forms of maltreatment: modelling of poor drinking and substance abusing behaviours; inadequate supervision; and separation from parents due to incarceration and hospitalisation. In turn, these factors increase the likelihood that children will themselves develop substance abuse problems, making it more probable that they will come into contact with the criminal justice system.
105․Mr Cross informed Ms Edwige that he struggled with school from a young age. He was suspended and expelled on multiple occasions from various schools. Drawing upon the Bugmy Bar Book Project: ‘Interrupted School Attendance and Suspension’, Ms Edwige noted that “exclusion from the supervisory context of a school can reinforce existing feelings of marginalisation, particularly in students who are already experiencing challenges at school due to other underlying issues”. Mr Cross reported experiencing difficulties with sitting still which impacted his behaviour and his ability to engage with his coursework. When he was approximately 16 years old, Mr Cross was diagnosed with attention-deficit-hyperactive disorder (ADHD). He was prescribed medication which he reportedly ceased taking after a few months.
106․To the author of the ICOAR, Mr Cross expressed a view that his ADHD had been a contributing factor to his offending conduct and that he was now prepared to engage in structured management of that condition including medication.
107․Mr Cross reported that he started smoking cigarettes at 8 years of age and started regularly smoking marijuana and drinking alcohol at 12 years of age. It was around this time that his maternal uncle passed away. They had shared a close relationship, and his death had a significant effect on Mr Cross’ wellbeing. He began “getting into trouble” which led his mother to move with him to Queensland. They lived in Brisbane for five years.
108․While living in Brisbane, Mr Cross recalled being expelled from school in Year 9. He then commenced education at a “flexible learning centre” where he reported falling “into the wrong crowd”. [Redacted]. Again, his family attempted to intervene and as a result he was sent him to live with his nan in Queanbeyan.
109․Mr Cross reported that upon his return to Queanbeyan, he was doing well for a number of years. He held various employment positions during this time and maintained abstinence from methamphetamine.
110․When Mr Cross was 20 years old, his younger cousin committed suicide. Soon after this, his paternal aunty also passed away. He had shared a close relationship with them both. Mr Cross reported that his grief led to him engaging in anti-social behaviour. He began using “ice”, drinking excessively and gambling. He then reverted to committing crimes to support his substance use. He recalled “smoking ice, weed, drinking and taking Xanax. Anything to take the pain away”.
111․Mr Cross stated that he has never engaged in drug or alcohol counselling, nor has he attended a residential rehabilitation facility. The ICOAR author noted Mr Cross had refused in the past to engage with programs or services in the Alexander Maconochie Centre (AMC) although expressed desire to engage with First Nations specific community support programs once released. This is consistent with Mr Cross telling the Elders Panel, “I feel like I can’t express my feelings enough to – to Justice -Justice Health. Like, I feel better opening up to an Indigenous person, like someone from my background”.
112․The author of the ICOAR recorded Mr Cross’ acceptance of Ms Edwige’s recommendation that he engage with services with a focus on cultural healing. The author of the ICOAR also noted Mr Cross’ expressed remorse for his offending conduct as well as pride at having maintained employment in the past.
113․The author of the ICOAR noted that since being remanded at the AMC on 3 May 2024, Mr Cross has been subject to disciplinary action on five occasions the most recent of which was in February 2025. While in custody, he has undergone urinalysis on three occasions, he returned a positive result at the time of his admission however subsequent testing in October 2024 and February 2025 returned negative results.
114․To the ICOAR author, Mr Cross expressed confidence in being able to return to his former scaffolding position once released into the community. The author noted that Mr Cross stated he could be financially stable in the community. He admitted to engaging in problematic gambling when intoxicated. Mr Cross identified his nan’s residence as his proposed address when released and this was confirmed by his grandmother. He was ultimately assessed as suitable for an Intensive Correction Order (ICO).
Physical health while in custody
115․Medical documents, an ACT Corrective Services incident report and an application form for protection in the AMC were provided. The material demonstrated that since being remanded in custody Mr Cross has been physically assaulted by other detainees on at least two occasions and subsequently was placed into protective custody.
Degree of responsibility for the offending
Bugmy considerations
116․The report of Ms Edwige demonstrated that Mr Cross experienced a disadvantaged and traumatic childhood of the kind contemplated by the High Court in Bugmy v The Queen [1990] HCA 18; 169 CLR 525.
117․As detailed above, Mr Cross was exposed to family violence by his parents. He was both a witness to and a victim of violence in his family home. During the sentencing conversation, Mr Cross’ mother and nan reflected on his disadvantaged childhood. His mother stated:
Bronson has had a very traumatic upbringing, you know. I was in domestic violence for over 20 years.
…
I think Bronson’s had a lot of grief whilst growing up. He was really close to his nan and pop on his father’s side. So he lost both of them, and there’s been a lot of grief within the family with our – within our own personal family, you know.
118․Additionally, Mr Cross’s parents each experienced substance dependency issues during his childhood which exposed him to neglectful care. This environment made it more likely that Mr Cross would himself develop substance abuse issues which in turn increased the likelihood of his engagement with the criminal justice system: see Bugmy Bar Book Project: ‘Early Exposure to Alcohol and Other Drug Abuse’.
119․Consistent with that likelihood Mr Cross’ substance use commenced when he was 12 years old and escalated to methamphetamine use by the time he was 16 years old.
120․Mr Cross’ adverse childhood experiences, characterised by exposure to drugs and alcohol, child maltreatment, domestic violence and interrupted schooling, have substantially impacted his mental and social wellbeing. Ms Edwige concluded that Mr Cross has complex developmental trauma and that he has “externalised this trauma through his conduct and risk-taking behaviour”.
Mental Health considerations
121․In her report, Ms Edwige concluded that Mr Cross presented with complex post-traumatic stress disorder (C-PTSD), substance use disorder and adjustment disorder. Ms Edwige expressed the view that the latter diagnosis is apparent following his “persistent grief reaction” to the loss of multiple members of his extended family and social circle.
122․Accordingly, Ms Edwige considered that collectively these diagnoses “significantly impacted on [Mr Cross’] decision-making, judgment, behaviour and emotional regulation”. Ms Edwige stated that, at the time of the offences, Mr Cross’ mental health and substance use disorder impaired his ability to make reasoned judgments and fully appreciate the wrongfulness of his actions.
123․Ms Edwige noted that Mr Cross’ C-PTSD has been left untreated, resulting in him misusing substances to try and manage his trauma symptoms. Ms Edwige observed:
Mr. Cross’ significant childhood trauma has never been addressed in a culturally safe trauma informed therapeutic environment. He has previously managed his trauma and more recently grief symptomatology through misusing substances to numb the pain. I consider this and Mr. Cross’ childhood background and development to be a contributing factor to the offences committed.
124․There was no challenge to the submission that Mr Cross’ mental health conditions contributed to the poor decision making which facilitated his offending behaviour.
Conclusion regarding responsibility
125․There is clearly a significant degree of interconnectedness between Mr Cross’ childhood disadvantage and the mental health conditions he presents with.
126․Giving “full weight” to Mr Cross’ deprived background operates to reduce his moral culpability: MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 at [62], citing Bugmy at [43]. This should not be confused with a finding that Mr Cross bears no responsibility for his offending conduct. It is a finding that acknowledges the actual effect of his childhood experience such that he does not bear the same degree of responsibility as an offender who did not have the same experience of childhood: see R v Millwood [2012] NSWCCA 2 per Simpson J (with whom Bathurst CJ and Adamson J agreed at [69]).
Remorse and rehabilitation
127․Remorse is relevant to an assessment of Mr Cross’ likelihood of re-offending and prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41].
128․In the context of the difficult childhood Mr Cross experienced the Elders Panel plainly expressed the need for Mr Cross to nonetheless be accountable for his own choices. Mr Cross demonstrated insight in this respect, saying to the Elders Panel:
[I]t’s – it’s just a couple of – not saying a couple, but multiple bad decisions I’ve made in my life, and, yes, just trying to show my own remorse and that for what I done. I know it’s wrong, but at the time I was under the influence of drugs and stuff like that…it’s sad, like, I can’t believe I did what I did, it was so stupid.
129․Mr Cross recalled that during the time of the offending, he had spiralled into using drugs and alcohol as a means of coping. Mr Cross explained to the Elders Panel that his cousin’s suicide significantly contributed to his relapse:
[t]here was a – a death in the family, oh, two actually, real close to each other, a real close cousin. He was only 20 years old from suicide, he hung himself, and that’s when I started, like, not going to work, drinking hard and went down the strong track again using drugs, and to support my habit, I was going and stealing shit.
130․Mr Cross identified that at the time of the Series 1 offences he was drunk and had taken MDMA. He further explained to Ms Edwige:
… We were making too much noise and we were asked to leave. Mate called an uber and security came down and said we couldn’t wait in the lobby and it was cold. It started from there. I should have just gone outside. It was stupid. I was under the influence. I didn’t know what I was thinking. I am sorry.
131․At the time of the Series 2 offences, Mr Cross reported that he was under the influence of crystal methamphetamine and that he had been gambling. He told Ms Edwige:
I had no money. Kicking myself. I could have just done the right thing and gone back to work and got money the legit way. Took the easy way out and stole stuff. Sorry to the victim. I have remorse for the owners of the property I thieved. The circumstances I was in I didn’t really care but now I’ve sobered up I know I have done wrong.
132․I am satisfied that Mr Cross has demonstrated genuine remorse for his actions. During the sentencing conversation, he took responsibility for his choices and additionally acknowledged the harmful nature of his conduct and its impact on the victims. Uncle Benny emphasised to Mr Cross that it is not only the victims who have suffered as a result of his conduct:
… but it’s those choices that you make, and I say this in a respectful way, those choices that you make are the wrong choices, and you only have to look... to your left to see your mum and your nan. You can see how much they love you. They’re blaming themselves for what you’ve done… They shouldn’t do that, but they’re blaming themselves, and that’s the love they have for you…. Think about what your actions and choices have done that impacts on your mum and your nan. That’s why they’re here today. That’s why your mum flew down from Brisbane to be here with you. Your nan’s here for those wrong choices you’ve made.
133․Uncle Benny explained to Mr Cross the responsibility he bears in relation to his family and the strength which can be drawn from this:
We’re looking at you fellas to step up… You’ve got a family who loves you. Think about them for once. You probably do, but you’ve got to think about them a whole lot more. If you want to change, then start looking at making the right choices, think about them.
134․Mr Cross’ grandmother and mother confirmed the very real challenge that Mr Cross’ ADHD management presented for the family when he was first diagnosed as a young boy and the ongoing negative impact of it on his life, including his ability to access education. They expressed their own regret at not being able to assist Mr Cross in this regard because of their limited understanding at the time of the significance of an ADHD diagnosis and the benefits that medication could offer in the management of it. They both clearly considered it to be a precipitating factor to Mr Cross’ dis-engagement from education at an early age and his movement into poor peer groups and risk-taking behaviour.
135․Consistent with the history given by his mother and grandmother, Mr Cross told the Elders Panel that he had felt shame as a child because of the need for medication to assist him to manage his ADHD symptoms. He said he would now be comfortable with taking medication for his ADHD.
136․Mr Cross’ grandmother reiterated her expectation of him to be a “good role model” to his younger brothers, sisters and niece. She made clear to her grandson that his conduct does not align with the values of their family, “we are a good family, we do good for the community…”. His grandmother and mother both articulated the broader effect on the family on Mr Cross’ offending including his incarceration. His mother said:
I just don’t want you to go down the same path that your father went down… We’ve seen the impacts of what drugs do to people… It rips families apart. It’s just destructive. Your father unfortunately didn’t have the right people in place to support him, but you, on the hand, you’ve got us. I know it hurts you to see your father walking down the road he’s walking down, but again you’ve got to pull up and say, ‘I ain’t going to do that like my dad’, because we’re all here for you, Bronson, and that’s what scares us all. I don’t want you to be another statistic, another, you know, death in custody or another person that just, you know, there’s services, there’s people here now.
137․Mr Cross’ grandmother also expressed her constant worry about his wellbeing in the custodial environment, revealing she lives with dread at the idea of receiving a phone call that might deliver devastating news about him.
138․Prior to the death of his younger cousin and aunty, Mr Cross had been living a prosocial life for a period with his grandmother in Queanbeyan. Ms Edwige described him as “functioning very well” during this period, including maintaining employment, obtain his driver’s licence, save to purchase for a vehicle and abstaining from substance use.
139․Mr Cross has several strong protective factors in the community which include:
(f)His previous success in the community when motivated and supported;
(g)His insight and strong motivation to address his substance misuse and to access supports that will assist his recovery against the background of a long period in full-time custody;
(h)His strong family support including from his Nan, his mother, his siblings and his current partner, with whom he has been in a relationship with for two years; and
(i)His cultural connectivity.
140․Ms Edwige emphasised that “[p]rovided with the appropriate supports, treatments and compliance with his medication, Mr. Cross, has the ability to make positive gains”. Mr Cross expressed his desire to address his illicit substance use:
Now, after spending this much time in jail, like, I would do anything to see myself, like, how I used to work and that, just – and I think if I was to stay off the drugs and that I would still be on the right track to this day.
141․Mr Cross described a desire to change, stating, “all I want is another chance to do good. I want to be able to prove to people that I can do what I’ve done before” referencing periods in the past where he has been able to abstain from substance use and hold down employment.
142․Mr Cross’ age is a relevant factor. Whilst he is not a young offender for the purposes of the ACT sentencing regime, he is nonetheless still a young man. The approach of Berman AJ’s in DPP vMalibe [2024] ACTSC 43 at [2] has application here:
In this case, the offender committed offences whilst he was 20 years of age and is now only 21. He is to be regarded, and I will regard him, as a young offender and a person who should be assisted by the Court to rehabilitate himself rather than focus on punishing him.
143․Ms Edwige considered Mr Cross had a low risk of reoffending in light of his remorse and his strong desire to effect positive change in his life. Ms Edwige outlined the ongoing and substantial supports that Mr Cross requires to successfully address his substance use; ideally which would be tailored to also support Mr Cross’ cultural wellbeing. Ms Edwige emphasised the importance of Mr Cross reconnecting with his culture to enhance his overall prospects for rehabilitation.
144․In her report, Ms Edwige crafted a cultural healing plan for Mr Cross to address his mental health issues and substance dependence issues. The plan includes culturally appropriate drug and alcohol counselling, engagement with psychological treatment, residing with his grandmother, reengagement with employment and pro-social activities, including male mentorship. It was submitted that there was considerable rehabilitative potential in the plan that Ms Edwige recommended, and I agree.
145․The Elders Panel expressed the importance for Mr Cross to be learning about his culture which he would not be able to do whilst in custody. Uncle Benny observed:
Choices that you’ve made, you know, as a 22-year-old, you should be out and about, you know. Should be exploring the world, or exploring your country, you know? Learning about your country, learning about your culture. You won’t learn about it in there. You won’t learn about it in there. There’s a different culture out there, as you know. Different culture in there. It’s not the culture that you see here in this room. You only have to look around, you can see. So we put them things up just to remind you that there’s a presence here in this room because these things never leave you, never leave you. It’s always there. Always. You know that old saying, ‘Always was, always will be’.
146․Mr Cross has the capacity for rehabilitation. He will require significant support to enable him to realise that potential and put into action the motivation that I am satisfied he has to find a future that exists beyond engagement with the criminal justice system. His family and cultural supports will be key to his success but ultimately Mr Cross will be required to make a choice to alter his behaviour and carve out a life for himself away from the criminal justice system.
Criminal history
147․Mr Cross does not have an extensive criminal history. [Redacted], his criminal history consists of the NSW offences I now turn to.
Conditional liberty
148․At the time of the Series 1 and Series 2 offences, Mr Cross was subject to two Community Correction Orders (CCOs) imposed by Queanbeyan Local Court, commencing on 28 November 2022 and 31 January 2023. Both orders have now expired.
149․By the commission of the offences in those circumstances Mr Cross has betrayed the opportunity to be in the community and pursue rehabilitation: R v Tran [1999] NSWCCA 109 at [15]. This is relevant to a determination of the appropriate punishment for an offence but does not influence the assessment of objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. See also R v Way (2004) 60 NSWLR 168 at [90]-[92], Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565 at [30] and R v Van Rysewyk [2008] NSWCCA 130 at [25]. 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 at [61].
Time in custody
150․Mr Cross was arrested on 26 October 2023 following in the Series 1 offences and remained in custody until 6 December 2023.
151․On 1 May 2024, Mr Cross was arrested for the Series 2 offences and has remained in custody since that time.
152․Accordingly, he has spent 479 days in custody solely referrable to these offences and the sentence I impose will be backdated to reflect this time.
Pleas of guilty
153․Mr Cross entered pleas of guilty to each of the offences in the ACT Magistrates Court prior to a brief of evidence being prepared. The timing of the plea had significant utilitarian value which warrants a reduction in the sentence to be imposed by 25 per cent.
Parity
154․Mr Cross’ co-offender, UC, in the Series 2 offences pleaded guilty to a single offence of common assault contrary to s 26 of the Crimes Act. She was sentenced in the ACT Magistrates Court of 17 April 2024 to a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act.
155․The proceedings in relation to another co-accused for series 2 have not been resolved.
156․Counsel for Mr Cross conceded that UC played a “materially different role” in the Series 2 offences, limited to pushing the victim once. UC had no criminal history. Accordingly, I am satisfied that their roles and personal circumstances provide a basis for a materially different sentencing outcome and no submission was made to the contrary.
Current sentencing practise
157․The provision of comparative cases is not to support strict mathematical equivalence as between sentencing outcomes for the same offence, but rather to ensure consistency in the application of relevant principles: Hili v The Queen [2010] HCA 45; 242 CLR 520. No sentencing outcome is a precedent. A sentence that is “just and appropriate” must be specific to the facts and circumstances particular to the matter: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 [8].
Aggravated Burglary
158․The prosecution drew my attention to the following cases: R v Williams-Savage [2021] ACTSC 271, R v Alfred [2022] ACTSC 216, R v Cook [2022] ACTSC 381, DPP v Clissolds [2023] ACTSC 250, DPP v Vincent (No 2) [2023] ACTSC 379, DPP v Woods [2023] ACTSC 380 and DPP v Malibe [2024] ACTSC 43. I have had regard to the facts and circumstances of the offending in those matters, as well as the sentences imposed.
159․Each appeared to involve aggravated burglary offences committed at commercial premises. With the exception of Alfred, to which I will come, the aggravated burglaries in were committed in company.
160․In Alfred, the offender was convicted of two groups of offences. The first group included one charge of aggravated burglary, one charge of theft and one charge of trespass. The second group included one charge of aggravated burglary, one charge of theft and two charges of damage property. The amount stolen totalled $51,208 and $60,791 respectively. The offender was 17 years of age and had previous been sentenced to full-time imprisonment. The offender had a upbring marred by domestic violence, physical and emotional abuse. After applying the 20 per cent discount for the offender’s plea of guilty, the offender was sentenced to 12 months imprisonment for the first aggravated burglary (suspended after serving 3 months), 1 year and 7 months imprisonment for the second aggravated burglary (suspended after serving 6 months) and 12 months imprisonment for the offence of theft (suspended after serving 6 months).
161․In addition to the cases referred to by the prosecution, I have also had regard to DPP v Welsh (No 3) [2024] ACTSC 179 and DPP v Stasinos [2023] ACTSC 179.
162․In Welsh, the offender was convicted for two counts of aggravated burglary, and one count of drive motor vehicle without consent among other offences. The aggravated burglaries were committed by the offender and two other offenders and occurred in residential homes with some degree of premeditation. Motor vehicles were taken from each of the properties. The offender had an extensive criminal history and history of illicit substance misuse, starting from when he was 18 years old. By the time of his sentencing, the offender had demonstrated considerable progress in rehabilitating. Following a 10 per cent discount for a guilty plea, the offender was sentenced to 1 year and 18 days, and 1 year 4 months and 5 days imprisonment for each aggravated burglary offence. He was additionally sentenced to 1 month and 24 days for the offence of drive motor vehicle without consent. The terms of imprisonment were wholly suspended with immediate effect, on the condition that the offender entered into a Good Behaviour Order.
163․In Stasinos, the offender was convicted for one count of aggravated burglary among other offences. The offending occurred in the early morning in a residential house in Dickson, ACT. The offender was armed with a machete and assaulted the occupants of the home. The offender had been using illicit substances from the age of 14, struggling with an ongoing drug addiction. Following a 25 per cent discount for an early plea of guilty, the offender was sentenced to 18 months imprisonment for the offence of aggravated burglary.
Contravention of section 3LA order
164․The prosecution drew my attention to R v White [2022] ACTSC 178 and DPP v Al-Mofathel [2024] ACTSC 117 as comparable cases in relation to the s 3LA offence. I have had regard to the facts, circumstances and outcomes in each of those matters.
165․In Al-Mofathel, the offender refused to provide police with the passwords or unlock two mobile phones that were obtained during a search warrant on the offender’s home. The offender denied owning one of the phones, stating it was his sister’s phone and then he said he found it at a ‘junkie’s’ house. He admitted to owning the other phone. He was given a second opportunity to comply with the s 3LA order approximately 30 minutes later, but he again refused. The offender has a substantial criminal history. Following a 15 per cent discount, the offender was sentenced to 25 months imprisonment for contravening a s 3LA order.
166․In White, the police seized a mobile phone and laptop during the execution of a search warrant on the offender’s home. The offender was served with a s 3LA order. The offender refused to provide police with the passwords or assist in providing access to the devices. The offender was 49 years old at the time of sentence, with a limited criminal history. Following a 25 per cent discount for an early plea of guilty, the offender was sentenced to 12 months imprisonment.
Determination
167․In sentencing Mr Cross, I have regard to the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act. The reduction of Mr Cross’ moral culpability I am satisfied moderates the weight of punishment, denunciation and general deterrence. The sentence imposed in this instance must recognise the harm done to the victims by Mr Cross’ conduct and deter Mr Cross. Additionally, there is a need to give effect to Mr Cross’ prospects of rehabilitation which I am satisfied are positive.
168․There was no challenge to the submission that the offending warranted the imposition of a period of imprisonment. I am satisfied that it does. Ms Edwige, consistent with the submission made by counsel for Mr Cross, concluded that Mr Cross’ rehabilitative needs would be best addressed in the community. Mr Cross has demonstrated the ability to “thrive” in the community as noted by Ms Edwige. Mr Cross will undoubtedly require supports to address his mental health, his cultural needs and any ongoing challenge with respect to the use of illicit substances.
169․Mr Cross was assessed as suitable for an Intensive Corrections Order (ICO). An ICO is not a period of full-time imprisonment. Nonetheless it provides a strict regime of close supervision and swift, certain consequences for non-compliance, which can include a return to full time custody. The regime ensures accountability and demands responsibility to support Mr Criss to move away from engagement with the criminal justice system. The period Mr Cross has now spent in full-time custody I am satisfied has had some deterrent effect upon.
170․Mr Cross is to be sentenced for multiple offences and 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]. There must be a balance between crushing any rehabilitative prospects of Mr Cross and avoiding a perception that the commission of multiple offences will result in a discount.
171․The starting point for the charge of aggravated burglary (CC2023/10579) is 2 years of imprisonment reduced to 1 year and 6 months imprisonment for the plea of guilty
172․The starting point for the charge of drive motor vehicle without consent (CC2023/10580) is 8 months of imprisonment reduced to 6 months for the plea of guilty.
173․The starting point for the charge of theft (CC2023/10581) is 15 months of imprisonment reduced to 11 months and 7 days imprisonment for the plea of guilty.
174․The starting point for the charge of affray (CC2023/11930) is 18 months of imprisonment reduced to 1 year, 1 month and 15 days imprisonment for the plea of guilty.
175․The starting point for the charge of contravening a section 3LA order (CC2024/4980) is 12 months of imprisonment reduced to 9 months imprisonment for the plea of guilty.
176․I have had regard to those factors contained within s 11(2) of the Crimes (Sentencing) Act, which provides that if a sentence of imprisonment is imposed for more than two years but not more than four years an ICO may be made only if the Court considers it appropriate to do so, taking into account:
(a)the level of harm to the victim and the community caused by the offence;
(b)whether the offender poses a risk to 1 or more people or the community; and
(c)the offender’s culpability for the offence having regard to all the circumstances.
177․In considering the first factor, the victim’s statements about the impact upon them recorded a significant level of harm to their mental wellbeing and professional lives. In addition, the victim of the aggravated burglary and theft offences was permanently deprived of many personal and sentimental belongings that were not returned.
178․Mr Cross’s culpability for the offending must be viewed through the prism of the disadvantaged upbringing he experienced.
179․I consider that Mr Cross’ rehabilitative needs can be addressed in the community under the regime of an ICO which at the same time can give effect to community protection. The long-term rehabilitation of Mr Cross is the best way to protect the community. The prosecution did not oppose the making of an ICO. In the circumstances, I am satisfied that an ICO is appropriate outcome.
180․The making of an ICO limits the other sentencing orders that might be made. An ICO cannot be backdated. Mr Cross has spent a considerable period in pre-sentence custody. I consider the appropriate way for that to be recognised is to impose a period of full-time imprisonment in relation to the affray offence and the drive motor vehicle without consent offence. The remaining offences will be served by way of ICO.
Orders
181․For those reasons, I make the following orders:
(1)For the offence of aggravated burglary (CC2023/10579), the offender is convicted and sentenced to 1 year and 6 months of imprisonment to start on 11 July 2025 and end on 10 January 2027.
(2)For the offence of drive motor vehicle without consent (CC2023/10580), the offender is convicted and sentenced to 6 months of imprisonment to start on 11 January 2025 and end on 10 July 2025.
(3)For the offence of theft (CC2023/10581), the offender is convicted and sentenced to 11 months and 7 days of imprisonment to start on 2 August 2026 and end on 8 July 2027.
(4)For the offence of enter motor vehicle without consent (CC2023/11613), the offender is convicted and fined $150 with 6 months to pay.
(5)For the offence of affray (CC2023/11930), the offender is convicted and sentenced to 1 year, 1 month and 15 days of imprisonment to start on 19 March 2024 and end on 3 May 2025.
(6)For the offence of contravening a section 3LA order (CC2024/4980), the offender is convicted and sentenced to 9 months of imprisonment to start on 9 January 2027 and end on 8 October 2027.
(7)I relation to the sentences imposed on CC2023/10579, CC2023/10581 and CC2024/4980, I make an intensive corrections order and direct that the sentences be served by way of that order.
(8)I recommend that where possible the offender be directed, as part of the supervision he must comply with, to engage with First Nations service providers. Further I recommend that he be immediately assessed and referred for treatment in relation to ADHD. I further direct that ACT Corrective Services be given access only to the treatment plan recommended in the report prepared by Ms Vanessa Edwige.
| I certify that the preceding one hundred and eighty-one [181] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor Associate: P Beohm Date: 11 July 2025 |
Annexure A
List of stolen items
Property
Individual Item Value
2 x Keys to house
NA
2 x Car keys
NA
1 x Prescription Glasses
$800
1 x ResMed CPAP
$1,600
1 x Woman’s gold ring with green stone
$181
1 x Woman’s gold Claddagh ring
$129
1 x Gold bracelet
$550
1 x Gold heart bracelet
$1,053
1 x Seiko Mens Gold Watch
$500
1 x Seiko Mens Solar Chronograph Gold Watch
$1,000
1 x Men's Gold Ring with Diamonds and engraved WMR
$1,500
1 x Men's Gold Wedding Ring
$1,200
1 x Men's Gold Yellow/White Wedding Ring
$1,200
1 x Gold Cross Pendant
$250
1 x Men's Gold Chain 60cm 3mm-3.5mm
$1,700
Assorted Cuff Links, Chains, belt buckles, Silver Zippo Lighter (engraved), watches
$1,000
1 x After Shave Creed - Green Irish Tweed EDP
$400
1 x After Shave Creed - Aventus EDP
$380
1 x After Shave Acqua di Parma - Signatures of the Sun Camelia EDP
$390
1 x After Shave Prada - Luna Rossa Ocean EDP
$200
1 x DIOR - Sauvage Limited Edition Men's Fragrance Set Eau de Parfum, Deodorant Stick and After-Shave Balm
$300
1 x Apple TV
$250
1 x Sound Bar LG SC9S 3.1.3 Channel 400W Dolby Atmos Wi-Fi
$1495
1 x Sonos Move Portable Smart Speaker Black
$700
1 x Google Nest WiFi Mesh Router 3 Pack
$500
1 x Cygnett ChargeUp Power Bank Black
$200
Assorted cords and cables
$200
Assorted RM Williams including 1x Riding Boots, 1x Mens Belt, 1x Jacket
$1,000
Assorted blades, drill bits, sockets
$400
1 x MILWAUKEE 18V FUEL™ 13mm Hammer Drill/Driver Skin
$390
1 x MILWAUKEE 18V FUEL™ 1/4" Hex Impact Driver Skin
$370
1 x MILWAUKEE 18V FUEL™ Brushless 125mm Angle Grinder w. Deadman Paddle Switch Skin
$420
1 x MILWAUKEE 18V FUEL™ SAWZALL™ Reciprocating Saw Skin
$450
1 x MILWAUKEE 18V FUEL™ 26mm SDS Plus Rotary Hammer Skin
$500
1 x MILWAUKEE 18V FUEL™ Brushless Oscillating Multi-Tool Skin
$340
1 x MILWAUKEE 18V LED Torch Skin
$100
1 x MILWAUKEE 18V Fuel 184mm Circular Saw
$470
1 x MILWAUKEE 18V 7.5L Wet/Dry Vacuum Skin
$290
1 x MILWAUKEE 18V FUEL™ Brushless D-Handle Jigsaw Skin
$400
1 x MILWAUKEE 18V FUEL™ 1/2" Mid-Torque Impact Wrench Skin
$480
3 x MILWAUKEE 18V 5.0Ah Red Lithium-Ion Battery
$1,740 ($580 each)
1 x MILWAUKEE 12V/18V Multi Voltage Rapid Charger
$190
2 x MILWAUKEE XL Contractor Bag
$520 ($260 each)
2 x MILWAUKEE 18V 3.0Ah REDLITHIUM™-ION High Output™ Battery
$616 ($308 each)
2 x MILWAUKEE 18V 6.0Ah REDLITHIUM™-ION High Output™ Battery
$880 ($440 each)
2 x MILWAUKEE 18V 12.0Ah REDLITHIUM™-ION High Output™ Battery
$1,320 ($660 each)
1 x MILWAUKEE 12V/18V Bluetooth Speaker Skin
$340
2 x MILWAUKEE 18V Power Source
$200 ($100 each)
1 x MILWAUKEE 12V/18V Automotive Charger
$198
1 x MILWAUKEE 18V 6 Bay Sequential Battery Charger
$299
1 x MILWAUKEE 18V FUEL™ 406mm Chainsaw Skin
$619
1 x MILWAUKEE 18V LED Lantern Skin
$184
1 x MILWAUKEE 18V 3000 Lumens PACKOUT™ Area Light/Charger Skin
$299
1 x MILWAUKEE 18V LED Worklight Skin
$214
1 x MILWAUKEE PACKOUT Tool Tech Bag
$186
1 x MILWAUKEE 24 Pocket Nylon Contractor Work Rig Tool Belt
$200
1 x BAHCO Spanner Set Ratchet Ring 5pc
$243
1 x BAHCO Ratchet Socket Square Drive Set - 53 Pieces
$249
1 x BAHCO 7 piece 1000v Ratchet Screwdriver Set with 1000v interchangable blades in nylon pouch
$128
1 x BAHCO TAPE MEASURE, 100M, METRIC, FIBRE GLASS
$174
1 x MILWAUKEE 8m Magnetic STUD™ Tape Measure
$40
1 x KNIPEX Cobra Set
$255
1 x KNIPEX Mixed Plier Foam Tray Set - 4 Piece
$340
1 x MILWAUKEE 3/8-Drive Socket to 1/4-Hex Quick-Change Adaptor
$35
1 x MILWAUKEE 1/4-Hex to Socket Drive Adaptor Bit Set 3 Piece
$15
1x MILWAUKEE 100m Laser Distance Measurer
$210
1 x Vortex Optics Diamondback HD Spotting Scopes
$900
1 x Vortex Diamondback HD 10x32 Binocular
$400
1 x HIKMICRO FALCON FH25 Thermal Monocular – 384px
$2,499
1 x HIKMICRO Panther PQ50L – with LRF
$6,000
1 x Browning Dark Ops Pro Trail Camera
$700
1 x ATN X Sight 4K Pro 5-20X inc ABL 1500
$1,650
1 x AIMPOINT Picatinny Scope Tube Mount 30mm
$245
1 x AIMPOINT MICRO H-2 SIGHT
$1,115
1 x Olight Javelot Hunting Kit
$390
1 x Olight Rechargeable LED Torch/Head Mounted
$130
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