Director of Public Prosecutions v Dunn
[2025] ACTSC 8
•31 January 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Dunn |
Citation: | [2025] ACTSC 8 |
Hearing Date: | 28 January 2025 |
Decision Date: | 31 January 2025 |
Before: | Baker J |
Decision: | See [72] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated assault occasioning actual bodily harm – Bugmy and Verdins considerations – victim is offender’s mother – where offender demonstrated substantial remorse – offender taken steps to address his alcohol abuse – where victim and offender expressed desire to reconnect – restorative justice referral made – suspended sentence imposed with good behaviour order and conditions to engage in mental health treatment and family violence treatment |
Legislation Cited: | Crimes Act 1900 (ACT), s 24 Crimes (Restorative Justice) Act 2004 (ACT), ss 6, 8, 10, 22, 25 Crimes (Sentencing) Act2005 (ACT), ss 7, 33, 34B Crimes (Sentence Administration) Act 2005 (ACT), s 86 Family Violence Act 2016 (ACT) Mental Health Act 2015 (ACT), s 80 |
Cases Cited: | Armstrong v Saddler [2024] ACTSC 263 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Ledbrook-Miller [2024] ACTSC 254 R v Forrest [2016] ACTSC 321; 11 ACTLR 311 R v Hancock [2021] ACTSC 52 R v KN [2018] ACTSC 111 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; 16 VR 269 Shaw v The Queen [2008] NSWCCA 58 |
Texts Cited: | Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence (November 2021) Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014) Monica Campo, ‘Children’s Exposure to Domestic and Family Violence: Key Issues and Responses’ (Policy and practice paper, CFCA Policy Paper No 36, Australian Institute of Family Studies, December 2015). |
Parties: | Director of Public Prosecutions ( Crown) Braiden David Dunn ( Offender) |
Representation: | Counsel E Knaggs ( Crown) J Maher ( Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Number: | SCC 334 of 2023 |
BAKER J:
Introduction
1․The offender, Braiden David Dunn, pleaded guilty to one count of aggravated assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (CC9485/2023). The maximum penalty for this offence is 7 years’ imprisonment.
Background and procedural history
The offending
2․The circumstances of the offending are set out in an Agreed Statement of Facts.
3․In September 2023, the offender was living with his mother (the victim) at her home in the ACT. On the evening of 25 September 2023, the offender was sitting in his bedroom and drinking from a cask of wine.
4․The victim entered the offender’s bedroom and they began to argue about the offender’s alcohol consumption. The victim called the offender “disgusting” and said something to the effect that she wished she’d had an abortion.
5․The victim took the cask of wine from the offender, and cut it open with a pair of scissors, causing wine to spill onto the floor. The offender stood up and pushed the victim onto his bed. The victim ran from the offender’s bedroom and into the kitchen. The offender followed and threw the victim to the ground, causing a small cut to her right arm.
6․The offender pinned the victim to the ground on her back, using his body weight to push down on her torso, shoulders and upper chest. The offender remained in this position for approximately 45 seconds. The victim had “difficulty breathing, began seeing stars and felt as though she was going to die”.
7․The victim was able to free herself by kneeing the offender and kicking him. The offender returned to his bedroom. The victim called triple zero at 9:25pm, requesting police assistance. During this phone call, the victim reported that the offender was cutting himself with a knife.
8․The police attended the home at 9:33pm. Police approached the offender’s bedroom, where they observed several cuts to his thigh that were bleeding. The offender told police he had cut himself and police requested an ambulance.
9․The ambulance arrived at 9:38pm and assessed both the victim and offender. The victim had a 1cm x 1cm laceration to her right arm, which was bleeding. The victim declined to attend hospital or provide a statement in relation to the matter. The victim told police she just wanted to get the offender sober, and that the offender did not pose an issue when sober.
10․The offender was observed to be highly intoxicated, and was placed on an emergency apprehension pursuant to s 80 of the Mental Health Act 2015 (ACT). He was taken to the Canberra Hospital for further assessment.
11․The offender was arrested at around 8:16pm on Tuesday 26 September 2023, shortly after he was discharged from Canberra Hospital.
Victim Impact Statement
12․The victim provided a Victim Impact Statement.
13․In that statement, the victim expressed her devastation that the offender had been charged following the incident. She described how the argument had escalated from a verbal to a physical confrontation. She said that this was the first time this had occurred.
14․The victim described how the incident had “disorientated” her and caused her to relive an assault committed against her by a former partner. She said that this caused her to make an “inaccurate account at the time to the police”. The victim said that she had unsuccessfully reached out to police and the DPP in an attempt to get the charges dismissed.
15․The victim described missing her son, who is her only child, and wishing she could have contact with him again. She expressed her love for her son and explained that he was “going through a very bad phase in his life when this incident occurred”.
16․The victim requested that the court afford leniency to the offender, and expressed concern regarding the impact of further legal ramifications upon him.
Subjective circumstances
17․The offender’s subjective circumstances are set out in a Pre-Sentence Report (PSR), an Intensive Corrections Order Assessment Report (ICOAR), both dated 21 January 2025, and a psychological report of Dr Vanessa Edwige, dated 7 January 2025. The offender also wrote a letter to the Court expressing his sincere remorse for the offending.
18․Four character references were provided to the Court, by the offender’s grandfather; a colleague and friend of the offender; a friend and former partner of the offender; and a former employer of the offender, which each spoke of the offender’s remorse and sorrow regarding the incident, his determination towards rehabilitation and his kind and compassionate character.
Personal background
19․The offender experienced violence at the hands of his father at a young age, culminating in an attempt by his father to murder him when he was only three years old.
20․After the offender’s parents separated, he resided with the victim, who abused alcohol to manage her own trauma following domestic violence at the hands of the offender’s father.
21․The offender discovered that he was homosexual at age 14. This posed significant complications for his relationship with his mother, who is Catholic, and did not accept the offender’s sexuality. The offender recalled being exposed to emotional abuse from his mother. The offender’s grandparents, with whom the offender has a close relationship, confirmed this and other aspects of the offender’s difficult upbringing.
22․Despite these hardships, the offender excelled at school, and enrolled in a law degree at the Australian National University. He completed two years of that degree before moving to Sydney to study a Bachelor of Music at the Australian Institute of Music.
23․Whilst in Sydney, the offender was sexually assaulted on a night out. He withdrew from his studies in the aftermath of this traumatic event. He started working in bars. He also commenced a relationship. The offender’s partner was addicted to crystal methamphetamine (ice). The offender’s partner also became abusive towards him. At this time, he was 20 years old.
24․The offender returned to Canberra in his late 20s and moved back home with the victim. At this time the victim was in a new relationship. The victim’s partner was a violent alcoholic, who would beat the offender when he tried to help the victim. During this time, the offender would sometimes stay in hotels and drink when he was anxious. On one occasion, the offender met a male and invited him to have a drink with him in his room. The male drugged him. The offender had to be resuscitated and was hospitalised for a week.
25․After a period living with a partner in Melbourne, the offender moved back to Canberra when he was 30 years old. The offender was working in a bar, but was told by his boss to take some time off work a couple of months before the offence when he had a psychogenic seizure (caused by anxiety) at work. This had a significant impact upon the offender’s mental health at the time of the offending.
26․The offender reported that he is financially comfortable and living off his savings. The offender is currently living with his grandfather.
Substance Use
27․The offender reported first using alcohol when he was around 15 years old. The offender said that he had previously experimented with some drugs, but said that these did not pose a problem for him.
28․The offender reported that his alcohol use became problematic from when he was about 24 or 25 years of age. Prior to the current offending, the offender was drinking to a high level of intoxication on a weekly basis.
29․After his arrest, the offender was remanded in custody. After his release from custody, the offender immediately presented to Wagga Base Hospital to undertake drug and alcohol counselling. During this time, the offender lived with a friend outside of Wagga Wagga. He then moved back to the ACT, where he completed three months of the Salvation Army Foundation Program at the Canberra Recovery Service. The offender reported gaining new strategies to deal with emotions from this program, which he completed on 28 March 2024
30․The offender is currently on a waiting list for the Everyman Program, which will further assist him in abstaining from alcohol.
31․The offender has not relapsed since his release from custody.
32․The offender’s grandparents (with whom he is currently living) have confirmed that the offender does not currently consume any alcohol or drugs.
33․On 21 November 2024, the offender participated in drug testing via urinalysis for the ICOAR, and returned a negative result for ethanol and illicit substances.
Mental health
34․The offender described himself as having a “checkered history” in matters relating to his mental health. As outlined above, he has experienced a significant amount of traumatic events, commencing in his early childhood and continuing through to adulthood. The offender has been diagnosed with complex post-traumatic stress disorder, persistent depressive disorder, generalised anxiety disorder, conversion disorder with seizures, alcohol use disorder and Attention Deficit Disorder.
Sentencing Considerations
Moral culpability (childhood disadvantage and mental health) (s 33(1)(m) of the Crimes (Sentencing) Act2005 (ACT))
35․As outlined above, the offender’s upbringing was marred by exposure to domestic violence and substance abuse, emotional abuse and neglect.
36․As Mr Maher submitted, it is now well recognised that exposure to domestic and family violence can have substantial effects on a child’s development. These harms may manifest in intergenerational cycles of trauma, violence and disadvantage: Monica Campo, ‘Children’s Exposure to Domestic and Family Violence: Key Issues and Responses’ (Policy and practice paper, CFCA Policy Paper No 36, Australian Institute of Family Studies, December 2015). See further Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence (November 2021)
37․The offender’s experience of childhood trauma has continued into his adult years. Ms Edwige explained that these experiences have provoked “intense emotional distress”. The offender now suffers from a number of psychological conditions, including complex PTSD and depression. Ms Edwige concluded that the disorders “[h]ad a significant impact on [the offender’s] ability to make considered and appropriate choices and impaired his ability to make reasoned judgments, think clearly, regulate his behaviour and fully appreciate the wrongfulness of the act”. In her opinion, both the psychological conditions and the offender’s childhood background were each contributing factors to the commission of the offence.
38․It is not necessary, or possible, to disentangle the offender’s childhood from his current mental health condition. In accordance with the principles enunciated in both Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and R v Verdins [2007] VSCA 102; 16 VR 269, I find that the offender’s moral culpability is reduced.
Criminal History and character
39․The offender has one prior conviction in 2016 for driving a motor vehicle with alcohol in his blood/breath. The offender was convicted and fined $950 in respect of this offending, and also was disqualified from holding a licence for 6 months.
40․The offender has no other prior convictions. The offender’s character references, one of whom is a former partner who lived with the offender, describe him as a man of “integrity, intelligence and compassion”, who has never previously lashed out aggressively.
41․I accept that the violent nature of the offending was out of character.
Intoxication (s 33(1)(p) of the Crimes (Sentencing) Act)
42․The offender had consumed up to two litres of wine and was, on his own account “black out inebriated” at the time of the offending.
43․On behalf of the offender, Mr Maher submitted that it was open to the Court to find that the excessive consumption of alcohol “caused the offender to act in a way that he otherwise would not, and that the offending is explained by the degree of intoxication”.
44․On the basis of the offender’s criminal history and the character references, I have accepted that the offending was out of character. I have not considered it necessary to take into account the offender’s intoxication in considering this issue. As the offender properly accepted, the offender’s intoxication does not otherwise mitigate the offending.
Remorse (s 33(1)(w) of the Crimes (Sentencing) Act)
45․The offender has expressed genuine remorse. In his letter to the Court, the offender stated:
My actions were completely shameful and I cannot stop feeling and expressing guilt over the incident that took place that evening. It is difficult to articulate the weight that remorse feels like. Needless to say it is difficult to see my reflection in a mirror as I am so devastated with my actions.
46․The offender’s referees have informed the Court that the offender has “repeatedly shown remorse for his actions”. The authors of the PSR and the ICOAR and Ms Edwige also spoke of the offender’s sincere remorse for his conduct.
Guilty plea (s 33(1)(j) of the Crimes (Sentencing) Act)
47․The charges against the offender were committed to the Supreme Court from the Magistrates Court on 15 December 2023. The offender pleaded guilty on 21 October 2024, after the matter was resolved at a Criminal Case Conference. At this time, the proceedings had been fixed for trial.
48․As a result of the plea, the victim was not required to give evidence. Accordingly, whilst the plea was not early, it achieved a real utilitarian benefit: R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103
49․I will afford a 15% reduction of the penalty to be imposed for the offender’s guilty plea.
Comparative sentences (s 33(1)(za) of the Crimes (Sentencing) Act)
50․The prosecution provided a summary of comparative decisions, including DPP v Ledbrook-Miller [2024] ACTSC 254; Armstrong v Saddler [2024] ACTSC 263; R v Fry [2021] ACTSC 138 and R v KN [2018] ACTSC 111. The sentences imposed in those decisions varied widely, from a conviction and fine (Armstrong v Saddler) to a period of imprisonment of 12 months (KN).
51․The prosecutor appropriately acknowledged the limitations of these decisions, many of which concerned offenders who were sentenced for additional offences (for example, the offender in KN was also charged with choking a person to render them unconscious). The prosecutor also appropriately acknowledged the general limitations of such comparative cases (DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428), particularly where, as here, the sample size is small.
Recommendations in the ICOAR and the PSR
52․The PSR author noted that the offender has successfully completed a drug and alcohol treatment program facilitated by the Salvation Army. The author assessed the offender as being at a low risk of reoffending. The author expressed the view that the offender would benefit from mental health treatment, particularly trauma and relationship counselling.
53․The ICOAR noted the offender was supervised on a Bail Undertaking whilst being assessed for an ICO (intensive correction order), with no concerns noted. The offender attended all scheduled interviews. He was polite, forthcoming with information and provided all required documentation in support of this assessment. The report writer determined that the offender has the capacity to comply with the stringent conditions of an ICO.
Time in custody
54․The offender spent 11 days in custody before he was released on bail. He also served an additional day in custody for an alleged breach of bail. I was informed from the bar table that the offender was arrested, but then subsequently released when it was determined he was not in breach of his bail. The parties agree that the offender should have the benefit of 12 days’ pretrial custody. I will afford the offender the benefit of that pre-trial custody.
Determination
55․The offence is a serious instance of aggravated assault occasioning actual bodily harm. The charge is a ‘rolled up’ count which encompasses a number of assaults. As a result, there is a greater degree of criminality involved in the offending: R v Hancock [2021] ACTSC 52 at [28]. Whilst the offending was not premeditated and lasted only a couple of minutes, it was continued over different places (the bedroom and the kitchen). The victim was ultimately only able to free herself by using force.
56․As the offender is the son of the victim, the offence is aggravated by the circumstance of family violence. In sentencing the offender, I have had regard to the considerations outlined in s 34B of the Crimes (Sentencing) Act2005 (ACT), including the matters mentioned in the preamble to the Family Violence Act 2016 (ACT), namely that family violence is unacceptable in any form, that freedom from family violence is a human right, and that family violence is best addressed by a coordinated response of assistance to victims and the prevention of violence, effected by promoting accountability of perpetrators and appropriate justice system interventions. I have taken into account the fact that the offending occurred in the victim’s home, where she was entitled to feel safe.
57․The victim sustained a small cut to her arm when she fell to the ground. That injury did not require medical treatment. I accept the prosecutor’s submission that, at the time of the offending, the victim would have experienced pain as a result of her injuries, and from being thrown to the ground and pinned down. The physical injury sustained by the victim is not the most serious of injuries that are captured within the offence of assault occasioning actual bodily harm.
58․The Agreed Facts record that the victim believed that she was going to die when the offender was pressing down on her torso. As the victim explained in her Victim Impact Statement, her immediate experience of the assault was affected by her previous experience of family violence at the hands of her ex-partner.
59․I accept that the victim would have been in considerable fear and distress at the time of the offending. However, I do not accept the prosecutor’s submission that the evidence is sufficient for me to infer that the psychological impact of the attack will be enduring. Such an inference would be contrary to what is contained in the Victim Impact Statement.
60․I have found that the offender’s moral culpability is reduced for the reasons outlined at [35] – [38] above. For this reason, the need for general deterrence and denunciation is moderated to some extent.
61․It is apparent from the Victim Impact Statement that the victim has forgiven the offender for the offending. Some care needs to be taken with respect to this statement. As the prosecutor observed, victim forgiveness is “not an uncommon feature of family violence”. In the past, a “pattern of post offence forgiveness” was amongst the reasons why family violence offenders were not prosecuted: see Shaw v The Queen [2008] NSWCCA 58 at [27]. Even where a victim has forgiven an offender, there remains a need to recognise the harm occasioned both to the victim and the broader community: s 7 of the Crimes (Sentencing) Act.
62․As outlined above, the offender has demonstrated sincere remorse for the offending. He is deeply ashamed of actions, particularly because of his own experience of domestic violence, both as a witness and a victim himself.
63․This remorse has sounded in changed behaviour. As I have already noted, the offender immediately presented at the Wagga Base Hospital to undertake drug and alcohol counselling as soon as he was released on bail. He has subsequently completed a three month course with the Salvation Army. He has remained abstinent from alcohol. Ms Edwige has expressed the opinion that with psychological and psychosocial supports, the offender will be able to develop prosocial coping skills and to further develop his resilience and stress tolerance to unpleasant thoughts and feelings. I find that the offender has strong prospects of rehabilitation.
64․On behalf of the offender, Mr Maher conceded that the s 10 threshold is crossed. I agree. Whilst not the most serious instance of offending of this nature, in view of the family violence character of the offending, a sentence of imprisonment is required, in particular to promote the offender’s accountability for his conduct.
65․The prosecutor conceded that a full time period of imprisonment is not required. I also agree with this concession. The offender’s reduced moral culpability, his remorse, his low risk of re-offending and his demonstrated commitment to his rehabilitation are, when considered cumulatively, such that the need for deterrence, denunciation and accountability may be met by an alternative to full time imprisonment. In circumstances where the offender has taken proactive action to address his alcohol issues, and where he has remained abstinent since release, I do not consider that an ICO is required.
66․In my view, the purposes of sentencing may be met by a partially suspended sentence, which recognises the 12 days of pre-trial custody which the offender has already served. The sentence will be suspended from today, on condition that the offender enter into a good behaviour order, and engage in mental health treatment and family violence treatment as directed by ACT Corrective Services.
67․The PSR author observed that the offender appears to be eligible for referral to restorative justice. The offender has indicated a willingness to be referred to restorative justice. In accordance with his bail conditions, the offender has had no contact with the victim since the offence. Both the offender and the victim have expressed a strong desire to reconnect. In his letter to the Court, the offender has said that he wishes to apologise to the victim in person as soon as the first appropriate opportunity arises.
68․Before I can make such a referral under the Crimes (Restorative Justice) Act 2004 (ACT) I must be satisfied of the following matters:
(a)The offender is an eligible offender;
(b)There is an eligible victim; and
(c)It is otherwise appropriate to make the referral
See ss 8, 10, 17, 19 and Part 4 of the Restorative Justice Act.
69․There is no dispute that each of these criteria are satisfied. The offence in question is a family violence offence, charged under ACT Legislation, and is a “less serious offence” for the purposes of the Act, as the maximum term of imprisonment is 7 years: ss 16, 17(1)(a) and 19(1)(a) of the Restorative Justice Act. The offender has pleaded guilty to the offence, and has accepted responsibility for the offending: s 19(1)(b) of the Restorative Justice Act. There is a known victim of this offence: s 17 of the Restorative Justice Act. Although the offender’s current bail precludes contact with his mother, those conditions will be removed after I sentence the offender today. I have provided an explanation of restorative justice under s 25 of the Restorative Justice Act, a copy of which is annexed to this judgment. An order for restorative justice may be made at any time before the end of the proceedings: s 22 and Table 22 of the Restorative Justice Act.
70․In R v Forrest [2016] ACTSC 321; 11 ACTLR 311 at [5], Refshauge J, citing Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014) at 41, observed that:
Restorative justice has been commonly associated with mediated encounters between victims and offenders – and in some cases their supporters – where they discuss what happened in relation to harmful behaviour and why it happened and determine what offenders will do to make amends. More broadly, restorative justice comprises of principles that promote the more inclusive, comprehensive and satisfying resolution of the effects of harmful behaviour. It seeks the restoration of victims, offenders and society through the application of these principles in processes dealing with the aftermath of wrongful behaviour generally. The most well-known and widespread application is within, or in cooperation with, modern criminal justice systems. There is growing evidence that there is value of this approach for victims, offenders and the justice system.
71․The restorative justice process will further assist the offender in addressing the underlying causes of the offending, and in healing the relationship between the offender and the victim.
Orders
72․For those reasons the following orders are made:
(1)The offender is referred to restorative justice pursuant to the Crimes (Restorative Justice) Act 2004 (ACT).
(2)The offender be convicted of aggravated assault occasioning actual bodily harm and sentenced to a period of imprisonment for 18 months, backdated 12 days and discounted by 15 percent and rounded down to 15 months, to commence on 19 January 2025 and expire on 18 April 2026.
(3)The overall term of imprisonment is to be wholly suspended with immediate effect from today, on the condition that the offender enter into a Good Behaviour Order from the giving of the undertaking until 31 January 2027, subject to the core conditions under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) and the conditions that he engage in mental health treatment and family violence treatment as directed by ACT Corrective Services.
(4)The offender is to accept that supervision will only be for the period deemed necessary by ACT Corrective Services.
| I certify that the preceding seventy two [72] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker Associate: Date: |
ANNEXURE TO JUDGMENT OF 31 JANUARY 2025 – DPP v Dunn [2025] ACTSC 8
Explanation of restorative justice to offender:
You have indicated a willingness to engage in restorative justice. Restorative justice may be of considerable assistance to you and to your mother in healing your relationship and addressing the consequences of your offending.
There are some things that I need to tell you about restorative justice before I make a referral to restorative justice.
A restorative justice conference is an opportunity to talk about how the offence occurred, how it affected people and what can be done to make things better. In your case it will involve a conversation between you and your mother.
The conference will only take place if everybody agrees to take part. The conference can occur in person or it can be indirect. It will be run by an experienced and highly trained convenor. The convenor will ensure that the conference is safe, respectful and positive for everyone.
All conferences are different so I can’t tell you exactly what will happen. It might take place in person. It might be indirect. It might involve emails, a video link or information that’s relayed by the convenor. If it is in person, you and your mother can each bring a support person if you wish.
Critical to the success of restorative justice is acceptance of responsibility. Owning your actions is the first step. You will need to think further about your offending, how your mother and those close to her may have been affected and what can be done to address the consequences of your offending more generally.
At the end of the conference, there might or there might not be a restorative justice agreement. You can seek legal advice at any time about the restorative justice agreement and any other aspect of the restorative justice process.
No one is under an obligation to take part or to continue to take part in the restorative justice process. That includes both you and your mother. If the restorative justice process is not able to proceed for any reason, whether because your mother doesn’t want to participate or you decide you don’t want to participate, your sentence will not be affected.
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