Director of Public Prosecutions v Curtis-Hodge

[2025] ACTSC 415

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Curtis-Hodge

Citation: 

[2025] ACTSC 415

Hearing Date: 

30 January 2025, 7 February 2025, 14 February 2025 and 12 September 2025

Decision Date: 

12 September 2025

Before:

Baker J

Decision: 

See [67]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – intentionally inflict grievous bodily harm – breach of suspended sentence – Bugmy considerations – custodial sentence imposed

Legislation Cited: 

Crimes (Sentencing Administration) Act 2005 (ACT), ss 10, 110

Cases Cited: 

Blundell v The Queen [2019] ACTCA 34

Bugmyv The Queen [2013] HCA 37; 249 CLR 571

DPP v Chatfield [2024] ACTSC 329

DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP v JJ (No 2) [2024] ACTSC 74

DPP v Myers (a pseudonym) (No 5) [2024] ACTSC 109

DPP v Padreny [2024] ACTCA 4

Jovanovic v The Queen [2015] ACTCA 29

R v Barron [2020] ACTSC 281

R v Bourne [2018] ACTSC 35

R v Chevalier [2018] ACTSC 236

R v Curtis (No 2) [2016] ACTSC 34

R v Dib [2003] NSWCCA 117

R v Millwood [2012] NSWCCA 2

R v Nicholas; R v Palmer [2019] ACTCA 36

R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305

Tanner v Brown [2011] TASSC 59

The Queen v Torbert [2015] ACTSC 331

The Queen v PM (No 2) [2015] ACTSC 358

Parties: 

Director of Public Prosecutions ( Crown)

Jay Lindsay Curtis-Hodge ( Offender)

Representation: 

Counsel

E Bayliss ( DPP)

A Kernaghan ( Offender)

Solicitors

ACT Director of Public Prosecutions

Good Legal Lawyers ( Offender)

File Number:

SCC 227 of 2024

SCC 228 of 2024

BAKER J:      

Introduction

1․The offender has pleaded guilty to one count of intentionally inflict grievous bodily harm and one count of assault occasioning actual bodily harm. The maximum penalty for an offence of intentionally inflict grievous bodily harm is 20 years’ imprisonment. The maximum penalty for an offence of assault occasioning actual bodily harm is 5 years’ imprisonment.

2․These proceedings have had a lengthy history. The offender was first arraigned on 30 October 2024, when he entered pleas of guilty to both offences. The matter was then listed for sentence hearing before me on 30 January 2025. I reserved my decision and listed the matter for delivery of the sentence on 7 February 2025.

3․However, upon convening Court on 7 February 2025, the offender’s then legal representative made an application to withdraw as the legal representative of the offender, and informed the Court that it would be necessary for the offender to receive legal advice from a new legal representative before sentence could be delivered. He sought an adjournment for that purpose. I acceded to that application, and listed the matter for sentence hand-hand down on 14 February 2025 to allow that to occur. On 14 February 2025, the offender’s new legal representative advised me that he was instructed to file an application to withdraw the offender’s guilty pleas. That application was subsequently filed on 20 February 2025, and was later listed for hearing on 28 October 2025.

4․On 3 September 2025, the offender’s new legal representative emailed my chambers advising the Court that the application to seek leave to withdraw the guilty pleas was itself to be withdrawn, and that the proceedings could be listed for sentence. The proceedings were then relisted for hearing before me this morning and at which time the offender formally withdrew that application.

5․Accordingly, I will now proceed to sentence the offender.

Background

The offending

6․At the time of the offending, the victim lived in social housing in Turner in the Australian Capital Territory. That housing had an open plan layout. A number of bedrooms were connected to a communal kitchen and living and lounge room.

7․At approximately 9:45pm on 25 March 2024, the victim went to the communal kitchen to get some water. As he entered the kitchen, the victim saw three adult males. The victim recognised the offender as having previously lived in the house.

8․The offender approached the victim and punched him in the face three times with his right hand, causing the victim immediate pain to his mouth (assault occasioning actual bodily harm).

9․The offender then picked up a large kitchen knife, approximately 30 centimetres in length and said words to the effect of “I will kill you”. The offender then struck at the victim with the knife several times, attempting to stab the victim in the throat and the stomach. The victim put up his left hand to block the knife from his neck, sustaining a deep laceration (intentionally inflict grievous bodily harm).

10․The victim’s nephew, who had heard the assault, came into the kitchen and took a photograph of the offender. The victim called out, asking his nephew to call the police. The offender then left.

11․The victim called emergency services, requesting police and ambulance attendance. Police arrived at approximately 9:47pm. They saw that the victim had a large laceration on his left hand, which was bleeding significantly. The victim was also bleeding from his lip and nose. Police administered first aid and called an ambulance. At 10:20pm, after participating in a record of conversation with police, the victim was taken to North Canberra Hospital.

12․As a result of the offending, the victim sustained various head injuries, including a laceration to his upper lip; abrasion to his lower lip and swelling to his lips and the left side of the face; and an incised wound to his left hand, with associated haematoma.

13․Dr Thomas, who examined the victim upon his admission to hospital, provided an opinion in which he stated that the laceration to the victim’s face is likely to result in a permanent scar, and that the victim may experience permanent and long-lasting sequelae from his injuries, including possible ongoing pain and discomfort and ongoing psychological impact.

14․The offender participated in a record of interview on 10 April 2024. During that interview, the offender stated that the victim was “full of shit” and a “lying alcoholic”. The offender said that the victim had previously attempted to sexually assault his partner, ‘Sam’ (also known as ‘Sammy’).

15․The offender acknowledged that he had punched the victim in the mouth, and said that he had said to the victim “you fucking ‘dog’” and “[y]ou know why I punched you”. He denied cutting the victim with the knife, and asserted that the victim had tried to grab something, and that the victim had cut himself with the knife during the struggle. The offender said that he told the victim “I should cut your fucking head off you fucking dog” three or four times, before throwing the knife onto the bench and leaving.

16․Later that day, the offender’s partner attended City Police Station and told police that she wanted to disclose an incident involving the victim. The partner told police that about five weeks prior to the incident, she and the victim were at the apartment when the victim pulled her arm and pulled his pants down. She said that she did not previously report the incident because she was banned from the apartment at that time. She said that she wished to report the incident at that time because it was the reason why the offender attacked the victim.

17․At the time of the offending, the offender was subject to bail for a charge of assault occasioning actual bodily harm and was five months into a suspended sentence order for offences of assault occasioning actual bodily harm and common assault.

Subjective circumstances

Personal background

18․The offender is a 40 year old Aboriginal man who was born in New South Wales.

19․The offender had a traumatic childhood. He was exposed to domestic violence perpetrated against his mother by her then partner when he was young. The offender’s family used refuges in an attempt to escape the violence.

20․[Redacted].

21․[Redacted].

22․The offender has a good relationship with his mother, limited contact with his siblings and a satisfactory relationship with his cousins. He has recently spoken to his father for the first time since the offender was a child.

23․The offender has four children from two previous relationships. His eldest child resides in New South Wales. His youngest three children live with their mother in Canberra. The offender was consistently seeing his youngest children until he was remanded in custody. The offender has not seen his children since he was remanded in custody.

Alcohol/drug use

24․The offender consumed alcohol as a teenager, which continued into his early adulthood. Since that time, illicit substances have become his primary concern.

25․The offender first attempted methamphetamine and heroin from age 12. He reported to the Pre-Sentence Report (PSR) and Intensive Corrections Order Assessment Report (ICOAR) authors that heroin is his primary concern. He explained that he uses heroin as a form of self-medication for his previous trauma.

26․The offender told the PSR and ICOAR authors that he had been abstinent from heroin since August 2023. He reportedly used methamphetamines on average twice per week and MDMA and/ or cocaine on a recreational basis on most weekends prior to his incarceration.

27․The offender had contacted Canberra Recovery Hub prior to sentence. He has been advised to contact that service in relation to drug and alcohol treatment once he is released from custody.

Criminal history

28․The offender has a lengthy criminal history in the ACT and NSW, including offences for assault occasioning actual bodily harm, common assault, possession of prohibited weapons, possession of prohibited drugs, [redacted], stalking, armed robbery, robbery in company and various driving offences (including driving dangerously, driving whilst disqualified, and mid-range PCA).

29․[Redacted]. He has spent extensive periods in custody throughout his life.

Employment

30․The offender has a limited employment history, predominantly due to his extensive periods of incarceration. He completed his secondary education following Year 10 [redacted]. He has been an active participant in the Certificate II in Construction through the in-custody education unit.

Pre-Sentence Report and Intensive Correction Assessment Report

31․The offender engaged appropriately with the Intensive Correction Order Assessment Report (ICOAR) author in two video link interviews. The ICOAR author stated that the offender “brought awareness to factors that contributed to the offences and expressed willingness to make prosocial lifestyle changes”. However, the ICOAR author expressed concern about the offender’s “consistent pattern of drug use and the brief periods he has achieved abstinence”. The PSR author assessed the offender as being at a high to medium risk of reoffending. Taking into account the offender’s drug use and criminal history, the ICOAR author assessed the offender as unsuitable for an Intensive Correction Order (ICO).

Time in custody

32․The offender was arrested on 10 April 2024, and has spent 521 days in custody solely attributable to the present offending.

Sentencing Considerations

Moral culpability

33․As outlined above, the offender had a troubled childhood, which included exposure to domestic violence. [Redacted]. The prosecution accepted that the principles enunciated by the High Court in Bugmyv The Queen [2013] HCA 37; 249 CLR 571 apply to moderate the offender’s moral culpability. I agree. As a result of his upbringing, the offender necessarily has “fewer emotional resources to guide his … behavioural decisions” than a person who had a “normal” or “advantaged” upbringing: R v Millwood [2012] NSWCCA 2 per Simpson J at [69] (with whom Bathurst CJ and Adamson J agreed at [1] and [77]).

34․Further, as Mr McGuire (who appeared for the offender in the original sentence proceedings) submitted on behalf of the offender, as a result of his childhood, the offender’s “experience of seeing his partner suffering in this way affected the offender … more severely than an ordinary member of the community”. I accept that this aspect of the offender’s emotional frailty should be taken into account in assessing his moral culpability. The effect of this finding on the weight to be given to the different purposes of sentencing is addressed further at [54] below.

Plea of guilty

35․The offender pleaded guilty immediately following negotiations in a criminal case conference. In Blundell v The Queen [2019] ACTCA 34 at [12], the ACT Court of Appeal held that a plea of guilty following a case conference will “almost always [be] within the range of 15% to 20%”; see also R v Nicholas; R v Palmer [2019] ACTCA 36 at [52]. In DPP v Padreny [2024] ACTCA 4 at [76], McWilliam and Abraham JJ, citing R v Dib [2003] NSWCCA 117, observed that:

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

36․Mr McGuire conceded that the present case is not a matter that is “outside the usual range considered in Blundell”. He also properly conceded that he could not “cavil” with the decision in Padreny. However, he nonetheless submitted that “effectively incentivising the efficient administration of justice requires attention not only to the defence but also the DPP”, and that if the only metric for a discount following negotiations was the timing of the plea, “there would be little incentive for the DPP to respond quickly to the offers put before them or to closely consider, at an early stage, the viability of the charges before the court”.

37․It may be that a higher discount may be justified in a case where there is evidence that an offender has offered to plead to lesser charges, and that offer was not acted upon by the prosecution at an earlier time. However, in the present case, there was no evidence as to when the offender first offered to plead guilty to the present offences.

38․In these circumstances, I will afford the offender a 20% reduction in the sentences to be imposed as a result of his pleas. The non-parole period will also be approximately 20% less than it would have been had the pleas not been entered.

39․As outlined above, the offender initially sought to withdraw his guilty pleas, but ultimately did not press that application. Although his conduct has resulted in a significant delay to the delivery of sentence, it did not waste any significant court time, and I have not reduced the discount to be given for the guilty pleas by reason of the filing and subsequent withdrawal of the application to withdraw the offender’s guilty pleas. I also note that during the time while the offender’s application was on foot, the offender remained in custody.

Remorse

40․The prosecutor submitted that the offender was not remorseful, noting that in his record of interview with police, whilst the offender accepted responsibility for the offence of assault occasioning actual bodily harm, the offender attempted to justify his behaviour and further suggested to police that the victim cut himself.

41․It may be accepted that the offender was not immediately remorseful for all of the offending conduct. However, some offenders may take time to develop insight, and remorse may not be immediate. An assessment of remorse is to be made at the time of sentence, rather than at the time of the offending.

42․In the present case, the offender told the PSR author that he “believe[d] his personal experience with the nature of the alleged offending was a contributing factor to the offences and created difficulty to think rationally”. The offender also expressed regret to the PSR author about how the situation escalated and the severity of his actions. The offender told the PSR author that he “does feel sorry for the victim and does not wish harm upon him”. These statements indicate that the offender has developed considerable insight into the cause of his offending. I am satisfied that the offender is remorseful for his actions.

Comparative cases

43․The prosecution drew my attention to the sentences imposed for intentional and reckless infliction of grievous bodily harm in DPP v Chatfield [2024] ACTSC 329; R v Barron [202] ACTSC 281; Jovanovic v The Queen [2015] ACTCA 29; R v Bourne [2018] ACTSC 35; R v Chevalier [2018] ACTSC 236; The Queen v Torbert [2015] ACTSC 331 and R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305. In these decisions, the sentences imposed ranged from imprisonment for 2 years, 7 months and 14 days (Chatfield) to imprisonment for 10 years and 9 months, with a non-parole period of 5 years and 6 months (Jovanovic).

44․The prosecutor appropriately acknowledged the “frequently cited limitations” of these sentences: DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428. As the prosecutor also appropriately acknowledged, many of these decisions are “factually dissimilar” to the present, involving conduct and/ or the infliction of injuries that were much more serious than the present offending. For example, the injuries inflicted in Jovanovic included a punctured lung and severed intercostal artery; the conduct in Bourne involved smashing the victim’s hand with a sledgehammer, requiring the insertion of a titanium screw in surgery, in the context of the sale of illicit drugs; the assault in Barron was premediated and resulted in significant fractures to the victim’s face; and the injuries sustained in Salcedo resulted from a gunshot wound to the bicep, requiring surgery and ongoing physiotherapy. In Chatfield, the offender pleaded guilty to and was sentenced for eight offences which occurred over several weeks, and included aggravated burglary in the context of family violence; and in Torbet, the offending involved a machete, which instantly severed the victim’s tendons, ligaments and his bones.

Determination

Breach of the suspended sentence

45․The offending conduct places the offender in breach of two good behaviour orders attached to suspended sentences for the following offences:

(a)Common assault – CC2022/7610

(b)Assault occasioning actual bodily harm – CC2023/7716

46․These offences concerned violent behaviour arising from a dispute in the context of a drug debt. When the victim of those offences confronted the offender about the debt, the offender hit her twice on the head with a closed fist (common assault) and pushed her onto a lounge, held her face down and caused a laceration to the back of her neck (assault occasioning actual bodily harm).

47․Magistrate Richter sentenced the offender to the following sentences in respect of these offences:

(a)Common assault – CC2022/7610 – 1 month suspended sentence on a 2 year good behaviour order

(b)Assault occasioning actual bodily harm – CC2023/7716 – 5 month sentence, suspended after 89 days, leaving 2 months and 3 days suspended on a 2 year good behaviour order

48․The Court must cancel the good behaviour orders and either impose the suspended sentences or resentence the offender for the offences: s 110 of the Crimes (Sentencing Administration) Act 2005 (ACT).

49․In this jurisdiction, there is no presumption in favour of the imposition of a sentence that was suspended: DPP v Myers (a pseudonym) (No 5) [2024] ACTSC 109 at [16]. Nonetheless, when determining the action to be taken in response to a breach of a suspended sentence, it must be recognised that the offender avoided serving full-time imprisonment by entering into the good behaviour order. As McWilliam J recognised in DPP v JJ (No 2) [2024] ACTSC 74 at [29]:

If the court does not enforce the statutory regime by imposing the suspended sentence (or otherwise re-sentence the offender in a manner that properly reflects the breach), then the incentive to comply with good behaviour obligations might be reduced, which in turn, may cause the community to perceive that this regime is a ‘toothless tiger’. The former risks the maintenance of a safe society; the latter reduces respect for the law.

50․However, it must also be borne in mind that the objective of the suspended sentence that was originally imposed was “reformative as well as penal”: TheQueen v PM (No 2) [2015] ACTSC 358 at [21], quoting Tanner v Brown [2011] TASSC 59 at [94]. For this reason, the objective of rehabilitation remains a relevant consideration when determining the action to be taken following the cancellation of the Good Behaviour Order under s 110.

51․Matters relevant to a consideration of whether to impose a suspended sentence include:

... the proportion of the term of the Good Behaviour Order that ha[s] been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender's rehabilitation.

See R v Curtis (No 2) [2016] ACTSC 34 at [18].

52․In the present case, the offender committed the offending conduct only five months into his 24 month good behaviour order. The prosecution submitted this chronology of “severely escalated violent offending five months after release suggest little in the way of rehabilitation”. Both offences involved violence. The suspended sentence order was only partially suspended, and there was little by way of rehabilitation achieved during that period. As outlined further below, the offending that gave rise to the breach was serious. Taking into account all of these matters, I consider that the only appropriate order is to impose the suspended sentences.

53․For these reasons, the suspended sentences, namely imprisonment for 3 months and 3 days will be imposed.

Sentences to be imposed for the fresh offending

54․The offending which constituted the offences both of intentional infliction of grievous bodily harm and assault occasioning actual bodily harm are each serious instances of those offences.

55․As to the former, it is significant that the injury was inflicted by the use of a large kitchen knife. There is no evidence that this resulting scarring is likely to significantly affect the victim’s quality of life. The injury inflicted at the lesser end of the injuries that are within the scope of this offence. However, in assessing the objective seriousness of this offence, it must also be borne in mind that the offender had attempted to stab the victim a number of times in vulnerable parts of the victim’s body, including the victim’s stomach and neck. At the time that the injury was inflicted, the offender was attempting to stab the victim in the neck. It was only the fact that the victim raised his hand to defend himself that this outcome was averted. This violence was accompanied by a threat from the offender that he would “kill” the victim. However, I do note that the offender was not charged with any offence of threat to kill and I have borne this in mind when assessing the objective seriousness of the inflict grievous bodily harm.

56․The latter assault involved multiple blows to a vulnerable part of the body (the victim’s face), causing the victim significant pain. These blows caused the victim’s nose to bleed, and caused a laceration to the inside of the victim’s lip. The laceration is likely to result in permanent scarring, but will not have an adverse cosmetic effect because of its location.

57․Both offences occurred in the victim’s home, which is a place where he was entitled to feel safe. The home was no longer that of the offender, as he had been evicted some time earlier. As the prosecutor submitted, the offending would have been terrifying to the victim. The offences only ended when the victim’s nephew arrived and yelled for someone to call the police.

58․Neither offence was premeditated. As outlined above at [14], the offender attacked the victim because he believed that the victim had attempted to sexually assault his partner. The prosecution submitted that the offending was aggravated because it was motivated by “vigilante justice”. Mr McGuire, who appeared on behalf of the offender, submitted that a more “nuanced approach” should be taken. He submitted that in determining the motive for the offending, it must be borne in mind that [redacted] and that he was witness to serious domestic violence perpetrated on his mother when he was a child.

59․For the reasons outlined above, I have already concluded that the offender’s moral culpability is reduced by reason of his traumatic childhood. I agree with Mr McGuire’s submission that the present case was “not a matter involving premeditated or sophisticated attempt to punish a perceived wrongdoer; [redacted] lost control during a chance encounter with his partner’s alleged abuser”. In these circumstances I find that there is a reduced need for general deterrence and denunciation.

60․However, there remains a need for protection of the community, specific deterrence and recognition of the harm caused to the victim. I do not accept Mr McGuire’s submission that “the instant offence can be distinguished and set apart from other offending”. Whilst it does not appear that the offender has a “history of retributive violence”, he does have a lengthy history which includes a significant number of offences involving physical violence. Importantly, the present offending was committed whilst the offender was subject to conditional liberty.

61․As outlined above, I have found that the offender is remorseful. However, despite this remorse, I have concerns about the offender’s prospects of rehabilitation. The offender frankly told the PSR author that he was “not entirely sure what he could have done differently”. As the PSR author observed, the offender has a “history of problematic drug use coupled with an extensive offending history, including a pattern of violence and non-compliance with community-based orders”.

62․The offender has expressed a general “willingness to make prosocial lifestyle changes”. However, apart from evidence that the offender will have employment upon release and a letter from Canberra Recovery Hub recommending that the offender contact them within 48 hours of release, there is no proposed structure in place to support the offender in his expressed desire to make prosocial changes. 

63․In view of the offender’s criminal history, in particular, his breach of conditional liberty, the present case is one where the reduction in the need for general deterrence and denunciation has been largely offset by the greater need for protection of the community, specific deterrence and recognition of the harm caused: see Bugmy at [45].

64․The s 10 threshold has clearly been crossed. The starting point for the offence of assault occasioning actual bodily harm will be imprisonment for one year. The starting point for the offence of intentionally inflicting grievous bodily harm will be imprisonment for three years. Following the application of a 20% discount, the sentence for assault occasioning actual bodily harm will be imprisonment for 9 months and 16 days and the sentence for intentionally inflicting grievous bodily harm will be imprisonment for 2 years, 4 months and 24 days. In view of the interrelated nature of the offending, these sentences will be entirely concurrent.  

65․In view of the offender’s criminal history and the breach of conditional liberty, I am of the view that full time imprisonment is required. The sentence for the present offending will be cumulated by one month on the sentences now imposed for the previous offending. The full term of imprisonment is therefore 2 years, 5 months and 24 days. The non-parole period will be 1 year and 6 months which will enable the offender to be properly supervised on parole.

66․The sentence will be backdated to 10 April 2024 to take account of the offender’s presentence custody. The sentence will expire on 3 October 2026. The non-parole period will expire on 9 October 2025.

Orders

67․For those reasons, the following orders are made:

(1)For the offence of common assault (CC2022/7610), the sentence suspended by Magistrate Richter, that is imprisonment for a term of 1 month, is imposed, commencing 10 April 2024 and expiring 9 May 2024.

(2)For the offence of assault occasioning actual bodily harm (CC2023/7716), the sentence suspended by Magistrate Richter, that is imprisonment for a term of 2 months and 3 days, is imposed, commencing 10 May 2024 and expiring 12 July 2024.

(3)For the offence of assault occasioning actual bodily harm (CAN161/2024), the offender is convicted and sentenced to a term of imprisonment of 9 months and 16 days, commencing 10 May 2024 and expiring 25 February 2025.

(4)For the offence of intentionally inflict grievous bodily harm (CAN 4543/2024), the offender is convicted and sentenced to a term of imprisonment of 2 years, 4 months and 24 days, commencing 10 May 2024 and expiring 3 October 2026.

(5)A non-parole period of 1 year and 6 months will be imposed. This non-parole period will expire on 9 October 2025.

I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: