Director of Public Prosecutions v Duran

[2024] ACTSC 14

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Duran

Citation: 

[2024] ACTSC 14

Hearing Date: 

31 January 2024

Decision Date: 

5 February 2024

Before:

Taylor J

Decision: 

(1)   On the charge of assault occasioning actual bodily harm (CAN56/2023) the offender is convicted and sentenced to imprisonment for a period of 14 months.

(2) The period of imprisonment is immediately suspended pursuant to ss 12 and 13 of the Crimes (Sentencing) Act 2005 (ACT) on condition that the offender undertake to be of good behaviour for a period of 2 years commencing today.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – unprovoked attack in public space – victim unknown to offender – serious injury – offender expressed remorse – very good prospects of rehabilitation – offender has made significant progress towards rehabilitation in the community – Suspended Sentence Order – Good Behaviour Order

Legislation Cited: 

Crimes Act 1900 (ACT), s 24

Crimes (Sentencing) Act 2005 (ACT), ss 10, 12, 13

Magistrates Act 1930 (ACT), s 90A

Cases Cited: 

Blundell v The Queen [2019] ACTCA 34

Dinsdale v The Queen [2000] HCA 54; 202 CLR 321

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP v Ivanisevic (No 2) [2023] ACTSC 374

Hili v The Queen [2010] HCA 45; 242 CLR 520

Hogan v Hinch [2011] HCA 4; 243 CLR 506

Laipato v the Queen [2020] ACTCA 35

Muldrock v the Queen [2011] HCA 39; 244 CLR 120

R v Bonfield [2021] ACTSC 362

R v Carmody [2016] ACTSC 382

R v Carmody (No 3) [2017] ACTSC 60

R v Johnson [2019] ACTSC 179

R v Kilic [2016] HCA 48; 259 CLR 256

R v McConkey (No 2) [2004] VSCA 26

R v Pham [2015] HCA 39; 256 CLR 550

R v Redmond (No 2) [2022] ACTSC 295

R v Smith-Shields [2020] ACTSC 338

R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103

R v Wright [2019] ACTSC 146

Parties: 

Director of Public Prosecutions ( Crown)

Eduardo Ernesto Duran ( Offender)

Representation: 

Counsel

C Muthurajah ( DPP)

C Akthar ( Offender)

Solicitors

ACT Director of Public Prosecutions

Aulich Law ( Offender)

File Number:

SCC 206 of 2023

TAYLOR J:   

Introduction

1․The offender, Eduardo Ernesto Duran, stands to be sentenced in relation to violent conduct he engaged in on 17 September 2022.  The victim of his offending suffered serious physical injury as a result and continues to manage the ongoing psychological distress that he unsurprisingly also suffered.  Courts across the country have consistently condemned what is commonly referred to as ‘alcohol fuelled violence’ and the conduct involved in this sentencing exercise similarly demands condemnation.  The offender presents to the Court with no pattern of violent conduct in his history, and as having made a genuine and consistent effort to address the emotional challenges he was experiencing when he committed the offence, as well as his problematic consumption of alcohol. 

2․On 24 August 2023, the offender was committed to this Court under s 90A of the Magistrates Court Act 1930 (ACT) for sentence after entering a plea of guilty to the following offence:

(i)CAN56/2023 – Assault occasioning actual bodily harm, contrary to s 24(1) of the Crimes Act 1900 (ACT), carrying a maximum penalty of five years’ imprisonment.

Facts

3․On 17 September 2022 the victim, Mr Langridge, attended Fenway Public House to watch a sports game with his son and a friend.  Mr Langridge was a former teacher at Caroline Chisholm High School.  Coincidentally, a 20-year reunion for former students of that school was being held at Fenway Public House that night.  The offender and his partner were attending this event.  The victim was invited into the bar area by some of the former students present at the function.  He engaged in polite conversation with the offender and his partner.  There were a number of other persons at the function and in the immediate vicinity of the offender and the victim.  The incident was entirely captured on CCTV footage.

4․During the conversation, the offender unexpectedly pulled on the victim’s neck and placed force on the rear of his neck.  The victim lost his balance and fell forward.  The offender and the victim engaged in further conversation and then the offender placed the victim in a neck hold.  He pulled on the scarf the victim was wearing and then took the glass the victim was drinking from and drank from it himself.  He again placed the victim in a forceful headlock.  The victim pulled himself out of the headlock and began to walk away from the offender.  The offender’s partner attempted to calm him. 

5․The offender then placed his left hand behind the neck of the victim, holding his head in that position.  The offender, holding a glass tumbler in his right hand, punched the victim’s face with considerable force.  Other people present intervened and removed the offender from the victim.  The victim did not attempt to defend himself at any time or apply any force to the offender. 

6․The victim’s glasses broke and he held his face in pain while blood fell onto the floor.  The victim required medical attention for significant injuries to his face, including a number of stitches. 

7․The offender casually walked out of Fenway Public House.  He was contacted by police on 23 September 2022 and offered the opportunity to participate in a record of interview.  While on the phone the offender made spontaneous comments that his actions were “inappropriate” and that he was intoxicated at the time.  While he initially agreed to participate in an interview, police were later advised by his legal representation that he would not be participating in a police interview. 

8․There was an ongoing complication with the victim’s injury.  In June 2023, a scar that he suffered from the assault became infected due to a foreign body underneath the skin.  The foreign body was removed by a plastic surgeon during a procedure in July 2023. 

Victim impact statement

9․The victim provided a victim impact statement.  Unsurprisingly he suffered immediate and considerable physical pain and injury from the incident, as well as initial shock and trauma.  The prosecution played the CCTV footage which captures the assault entirely.  The footage reveals the attempts the victim made to remove himself physically from the offender’s reach.  The offender’s conduct is shocking and rather brutal.  The victim describes some of the challenges he has faced including an ongoing complication with the scar under his eye which required surgical intervention.  He wrote that it occasionally gets irritated by his sleep apnoea and by wearing swimming goggles.

10․The victim has experienced anxiety in the aftermath of the offending, which includes persistent concern around seeing the offender again and wariness about going out and mingling with people he does not know.  The victim explained that he thinks about the assault every day and has engaged in counselling sessions. 

11․The victim described the incident as a “confronting and traumatic experience”.  This description is entirely borne out by the CCTV footage.  The victim also described that it has had ongoing physical and psychological impacts on him.  He also identified that the court process has been frustrating and difficult for him. 

12․The provision of a victim impact statement assists the Court to understand the experience of the victim and the real nature of the harm he suffered as a result of the offending.  Undoubtedly the victim has endured both physical pain and psychological distress arising from the offender’s conduct.  The suffering of the victim in this matter demonstrates the real potential for serious consequences for those in our community unlucky enough to be on the receiving end of random acts of alcohol fuelled violence.  Recognition of harm is an important sentencing consideration. 

Considerations

Nature and circumstances of the offending

13․As part of the nature and circumstances of the offending, the objective seriousness of the conduct falls to be considered.  The maximum penalty provided for by the legislature “serves as an indication of the relative seriousness of the offence”: Muldrock v the Queen [2011] HCA 39; 244 CLR 120 (Muldrock) at [31]. A sentencing court is required “to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock at [29]. An assessment of objective seriousness and where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I approach this task consistent with R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24] and Laipato v the Queen [2020] ACTCA 35 at [156], identifying those features of the offending that inform the objective seriousness.

14․The material relied upon by the offender identifies an explanation for the offender’s behaviour.  The explanation does not undermine the assessment of the assault as unprovoked.  It is beyond doubt that the victim did not, in any way, provoke the attack.  The explanation does not operate to excuse the conduct; so much was accepted by the offender.  The explanation does provide some history as between the offender and his partner that orients the heightened emotional state the offender was in on the occasion the assault occurred and further, provides a basis to view the conduct, as part of that heightened state, to be genuinely out of his usual character. 

15․I assess the objective seriousness of the offending by reference to the nature of it, including the degree of violence engaged in by the offender, the circumstances surrounding the offending and the extent of harm suffered as a result.  A significant factor is often the nature of the injury: see R v Redmond (No 2) [2022] ACTSC 295 (Redmond) at [12]. While the prosecution did refer to the assault as a “glassing” offence it conceded there is no evidence that the glass the offender held in the hand he struck the victim with, broke on impact. The prosecution also conceded that many instances of “glassing” are captured by offences that carry longer maximum penalties than that which applies to this matter.

16․The features of the offending that influence the objective seriousness of the conduct in this instance are:

(a)the conduct involved the offender holding a glass in the hand he used to punch the victim;

(b)the offender made contact with the face, including the eye area of the victim which is a particularly vulnerable area of the body;

(c)the conduct was intentional;

(d)the conduct occurred in a public place and was entirely unprovoked;

(e)the physical contact consisted of more than one blow.  The offending does not appear to be at all premeditated though does involve some lead up with the offender holding onto the victim before the ultimate act occurred.  The CCTV footage makes plain that the victim attempted to extricate himself from the offender, appearing uncomfortable with the offender’s behaviour.  As is commonly the case in assaults like this matter, the conduct appears to be the kind of spontaneous act borne of the poor judgement that unfortunately often accompanies the consumption of large amounts of alcohol;

(f)as the photographs reveal, the injuries suffered by the victim were serious, required him to have surgery and caused him pain and discomfort.  The immediate injuries were not limited to the victim’s left eye area.  He had bruising and swelling on other areas of his face including on the inside of his bottom lip, as well as abrasions to his chin.  The prosecution submitted that the scar would not amount to grievous bodily harm; so much is clear from the nature of the charge the Director has pursued and the photographs relied upon.  That said, the scar is nonetheless a factor to take into account in assessing the nature of the actual bodily harm suffered by the victim.  The offender readily accepted that for now at least, the victim has a mark under his left eye that serves as a persistent reminder of the violence perpetrated against him.

17․Taking those features into account this is plainly a serious example of the offence.

Subjective circumstances

18․The material before the Court includes a Pre-Sentence Report (PSR) dated 23 January 2024, two psychological reports and three personal references. 

Pre-Sentence Report

19․The offender was born in Nicaragua and immigrated to Australia with his parents when he was five years old.  He had a positive upbringing in Sydney, where his parents still live.  He has five children ranging from age 4 to 20.  The four youngest children reside with their mother, his ex-partner.  This relationship ended in January 2023.  He has telephone contact with his children however there is an interim Family Violence Order in place preventing contact with the children except as permitted by the order.  He has a group of pro-social friends in Canberra and interstate.

20․He mainly resides in Sydney however has an apartment in Canberra. 

21․He completed Year 12 and worked several cleaning jobs before joining the Australian Army when he was 21 years old.  He served for 12 years and completed tours of Afghanistan and Timor-Leste.  He discharged in 2017.  After this, he started a property management business with his business partner.  He is employed in this business full-time and works from various locations.  He noted that these proceedings and subsequent media reporting has affected the business.

22․He has experienced financial strain due to various court proceedings, being Family Court proceedings, a workers compensation claim made against his business and the current criminal proceedings. 

23․The offender’s alcohol use had increased around the time of the offending, something he attributes to a legal matter affecting his business, as well as issues in his marriage.  He was consuming significant amounts of alcohol three times a week.  He reported this had decreased in the last 12 months and he currently consumes about one alcoholic beverage a month. 

24․He used cocaine regularly between 2019 and 2021, and at one point was using it hourly.  He attended a residential rehabilitation facility in Sydney in 2021 and engaged in counselling which assisted in addressing his underlying mental health issues.  He reported no use of illicit substances including cocaine in the last year. 

25․The report identifies that the offender experiences Post-Traumatic Stress Disorder (PTSD), anxiety and depression.  He has engaged in treatment since 2021 and attends appointments weekly or fortnightly.  He is not on any medication and manages his mental health needs through therapy and physical exercise. 

26․The offender described his poor mental health at the time of the offence and explained his behaviour as a loss of control in those circumstances.  He reported consuming 12 to 15 alcoholic drinks prior to the offence.  He expressed some insight into the offending, and acknowledged he had injured the victim.  The offender observed that the victim did not deserve to be subjected to his violent behaviour.  The offender also demonstrated to the author of the report that he was cognisant of the impact of his behaviour on his family and personal life.  He indicated willingness to participate in restorative justice and was assessed as eligible for referral to the program. 

27․The offender was also assessed as suitable for a low level of supervision and as having protective factors present in the form of employment, social supports and stable accommodation.  The author observed that if the offender were to be placed on a Good Behaviour Order (GBO) he would only require a low level of intervention commensurate with the assessed risk.  The offender was also considered suitable for an Intensive Correction Order (ICO), though the author expressed doubt about the suitability of an ICO for the offender in light of the absence of criminogenic risk.  The offender was assessed as suitable for a Community Service work condition.

Psychological Assessment Report of Mr Sheehan

28․Mr Sheehan considered that the offending had occurred in the context of the offender’s “personality characteristics (over-compensatory mechanisms for insecurity) and trauma symptomology (autonomic hyperarousal, exaggerated threat perception, suspicion/hostility)”, as well as the presence of multiple stressors and the effect of his alcohol consumption on the day.

29․Mr Sheehan concluded that the offender showed insight into the offending, seeing his behaviour as a personal failure.  Mr Sheehan noted that the offender continues to engage with a clinical psychologist to learn to regulate his emotions.  Mr Sheehan anticipates continued improvement in the offender over time through treatment, and the added benefits of maturation and his stable lifestyle.  Further, he considered the offender would be assessed in the lower range in terms of violence and general recidivism. 

30․Mr Sheehan also considered that the offender’s PTSD and trauma symptoms would be aggravated in a custodial environment due to constant hyperarousal and perception of threats. 

31․To a greater extent than the PSR, Mr Sheehan’s report records that the offender is the operator of a successful property related business with 50 employees.  The business, while generally successful, is the source of significant stress for the offender which he recognised and responded to by taking on a business partner in the last 18 months, which has allowed him to “slow down”. 

Letter from Treating Psychologist

32․Mr Doman is the offender’s current treating psychologist.  He confirmed the offender had attended 21 psychology sessions over the last 2 years and was treatment compliant.  He considered that the offender’s future treatment should address his distress and reactivity to suspicions concerning his partner’s infidelity.  Mr Dorman also considered it should include alternative means of reducing stress to prevent substance abuse, and that trauma-focused therapy to reduce his PTSD symptoms should continue.  Mr Sheehan expressed the view that that the offender should be assessed for Attention Deficit Hyperactivity Disorder (ADHD). 

Character References

Ms Baker

33․Ms Baker, a former work colleague of the offender acknowledged the nature of the charge against him.  She described the offender expressing remorse for his actions, demonstrating accountability and an awareness of the wrongfulness of his behaviour.  Ms Baker expressed the view that the offender is aware that his behaviour was not an appropriate way to manage his emotions.  Ms Baker described the offender’s actions as generally out of character, observing that he is otherwise a patient, caring and responsible person. 

Major Mardiyants

34․Major Mardiyants is a friend of the offender and described the offender’s generosity, commendable character, as well as his business achievements and contributions to the community, particularly to other veterans.  The Major considered the offending out of character for the offender and detailed the devastating impact the offending has had on the offender’s life.  Major Mardiyants has observed the offender has express remorse and embarrassment regarding his actions.

Mr Kelly

35․Mr Kelly, a friend of the offender for over 10 years, acknowledged the seriousness of the offending and identified that he was aware of the nature of the charge.  He described the offender’s extreme remorse, commenting that the offending was out of character, highlighting that he saw the offender as a “trusted, respectful, charitable and kind friend”.  Mr Kelly noted that the offender had provided support and care to him during a difficult time in his life. 

Criminal history

36․The offender has a criminal history limited to one entry for failing to vote in the ACT in 2017 and another in NSW for low range drink driving in 2005. 

Time in custody

37․The offender has spent no time in custody in relation to this offence. 

Guilty plea

38․The offender entered a plea of guilty on 24 August 2023, after a brief of evidence had been prepared but before the matter was committed to this Court for sentence.  This acceptance of responsibility represents significant utilitarian value and in particular spared the victim from participating in a criminal trial.

39․Consistent with Blundell v The Queen [2019] ACTCA 34 and Toumo’ua, a discount of around 25 per cent in recognition of the high utilitarian value of the plea is appropriate. 

Remorse and rehabilitation

40․I am satisfied there is evidence of remorse consistent with the commentary attributed to the offender by the author of the PSR.  This is a factor relevant to an assessment of his prospects of rehabilitation.  The offender accepted responsibility for his offending at an early opportunity.  The offender presents to the Court with a limited criminal history and having apparently significantly reduced his consumption of alcohol, a factor in the offence before the Court. 

41․While of course not excusing his offending, his consumption of alcohol does provide some explanation for why he behaved in such an appalling manner toward the victim.  While the explanation might understandably be of cold comfort to the victim, it is a matter relevant to assessing the risk he presents to the community and his capacity for rehabilitation – an assessment of which the sentencing task requires. 

42․In addition to significantly reducing his alcohol consumption, the offender has engaged in a regime of psychological assistance which I am satisfied further reduces the prospect of him reoffending.  The offender, through that engagement, demonstrates insight into the seriousness of his conduct as well as a desire not to see it repeated.  The prosecution, properly in my view, accepted that specific deterrence is not an especially significant consideration in those circumstances.  I note that the offending occurred some time ago and there is no suggestion of repetition from the offender of this kind of conduct. 

43․Despite the serious nature of his conduct, I am satisfied on the material before me that the offender has very good prospects of rehabilitation. 

Sentencing practice

44․Sentencing statistics and comparable sentences illustrate, not define, the possible range of sentences available: R v Pham [2015] HCA 39; 256 CLR 550 at 560, [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53]. The provision of comparative cases is not to give effect to a kind of strict mathematical equivalence as between sentencing outcomes for the same offence but rather to promote consistency in the application of relevant principles: Hili v The Queen [2010] HCA 45; 242 CLR 520.

45․The prosecution provided the following decisions as comparable sentences: DPP v Ivanisevic (No 2) [2023] ACTSC 374 (Ivanisevic), R v Smith-Shields [2020] ACTSC 338 (Smith-Shields), R v Wright [2019] ACTSC 146 (Wright) and R v Johnson [2019] ACTSC 179 (Johnson). 

Ivanisevic

46․The offender was sentenced for three counts of assault occasioning actual bodily harm committed against the offender’s partner.  One count involved the offender using a glass to hit the victim across the face.  The offending occurred in the context of ongoing violence in the relationship.  The glass broke and caused a laceration to the victim’s chin resulting in a small scar.  The offender was sentenced to one year and six months’ imprisonment.  Justice Loukas-Karlsson at [105] helpfully summarises a number of sentencing outcomes from this Court in addition to those the prosecution drew to my attention in this matter.  However, her Honour is careful to endorse the observation of Kennett J in Redmond, that this court rarely deals with single instances of assault occasioning actual bodily harm, and the summary of cases to which she refers must be placed in that context.

Smith-Shields

47․The offender was sentenced for one count of assault occasioning actual bodily harm after a jury found him guilty.  It involved the offender punching the victim to his head, resulting in a broken jaw.  The offence was not pre-meditated and Burns J at [10] found it likely that the punch was “an instantaneous decision to pre-emptively punch the victim as an overreaction to the circumstances that existed” but that the offender was acting aggressively and not in reaction to any action from the victim at that point.  The offender was sentenced to seven months’ imprisonment suspended upon entering a 15-month GBO. 

Wright

48․The offender was sentenced for one count of assault occasioning actual bodily harm.  The victim and offender coincidentally saw each other multiple times over the night at various venues in Queanbeyan and Canberra.  The offender and his friend invited the victim to their house to keep drinking.  The offender became aggressive and angry at the victim and punched him in the face from behind, resulting in fractures to his cheekbone, jaw and eye socket.  The victim immediately left and went to the hospital.  The offender received a sentence of 13 months’ imprisonment served by way of an ICO with a requirement to complete community service. 

Johnson

49․The offender was sentenced for inflicting actual bodily harm.  While out drinking in Civic, the offender struck the victim twice in the face; once while inside the nightclub and once while outside the nightclub.  The victim was rendered unconscious as a result.  There were no ongoing effects from the assault.  The offender received a sentence of eight months’ imprisonment suspended upon entering into a 12-month GBO with an additional condition to engage in programs relating to alcohol abuse. 

50․In addition, I have also considered R v Bonfield [2021] ACTSC 362 where the offender was sentenced for multiple violent offences (including assault occasioning actual bodily harm) and where Refshauge AJ helpfully summarised at [141]:

So far as assault occasioning actual bodily harm offences are concerned, sentencing practice was considered in R v Lyons (No 1) [2020] ACTSC 358 at [40]-[44]. Most sentences were of between seven and 18 months with a midpoint of 15 months. In that decision, three cases were considered when the offender had struck the victim in the head in each case. The sentences for these offences ranged from eight months imprisonment to 18 months imprisonment.

Determination

51․The typically wise observation of Refshauge J in R v Carmody [2016] ACTSC 382 at [1] is pertinent:

Physical violence in our communities is apt to disrupt the peaceful life of the community and is regarded by courts as serious.  The courts must, therefore, do what is appropriate to denounce such violence and, although the courts obviously cannot prevent violence that has already occurred or eradicate its effects, it should make clear to the community and to offenders that such acts are prohibited. 

52․The sentencing task requires the Court to take into account all the relevant factors and balance them in an instinctive synthesis.  This offence demands that general deterrence, denunciation, punishment and recognition of harm feature as significant sentencing considerations.  The community expects the Court to make clear in the sentences it imposes its firm intolerance for violence fuelled by alcohol and committed in public places.

53․Counsel for the offender suggested, perhaps somewhat hopefully, that this is not a matter where the “section 10 threshold has been crossed”. That is, of course, a reference to s 10 of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act), which encapsulates the requirement for the Court to be satisfied when imposing a period of imprisonment that no penalty, considering possible alternatives, is appropriate.  It is my view, taking into account all of the factors I have identified, that a failure to impose a sentence of imprisonment would result in an unduly lenient outcome that does not respect the principles of sentencing most relevant here, including deterring others from this kind of offending. 

54․The prosecution were not heard against an outcome that allows the offender to remain in the community.  This position recognises the strong case the offender makes for successful rehabilitation, being the most durable guarantor of community safety and something in which the community has a clear interest: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]. It also recognises that while rehabilitation is a significant consideration in determining whether it is appropriate to suspend a period of imprisonment (having determined imprisonment to be the appropriate outcome) there are other considerations that can properly influence the outcome, such as the low likelihood of the offender reoffending and the impact of a period of full-time imprisonment on the offender, his children and those that he employs: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321. That said, the clear prospect of successful reform is a very significant factor in this matter.

55․Having carefully considered all of the relevant factors, while I am of the view that a period of imprisonment is the only just and appropriate outcome, I do not consider that a period of full-time imprisonment is necessary to give proper effect to the principles of sentencing, including the need to protect the community.  The offender, through his commitment to psychological intervention, has sufficiently demonstrated his determination not to reappear before the Court.  If his motivation in that regard wanes and he returns to abusing alcohol, the risk of reoffending may elevate.  Similar conduct from him in the future would undoubtedly risk his liberty.  The action the offender has taken to address the challenges in his personal life since the offending is suggestive of an appreciation of those risks. 

56․In light of the steps the offender has taken toward his own rehabilitation absent any direction from this Court (indeed the offender, it was discovered during the course of the sentencing hearing, has not ever been required to make a bail undertaking in relation to this matter) he was assessed as suitable for an ICO though, as I have already noted, the author expressed real doubt about the benefit of intensive supervision given the absence of any criminogenic risk factors.  The offender has been ‘intensively’ engaged in psychological intervention of his own volition. 

57․As was observed in R v Carmody (No 3) [2017] ACTSC 60 at [75], citing R v McConkey (No 2) [2004] VSCA 26 at [32], a suspended sentence, while obviously a more lenient outcome than full-time imprisonment, is nonetheless a period of imprisonment that constitutes “very significant punishment which can serve the function of general deterrence, and which may be imposed because a judge considers that it offers the greatest prospect of reformation and, in turn, the protection of society”.

58․In my view this is a matter where a period of imprisonment must be imposed, though the circumstances, as I have outlined them, justify the immediate suspension of that period on the condition that the offender be of good behaviour for a period of time.  This outcome provides an opportunity for the offender to continue to stride toward rehabilitation in the community while marking the seriousness of the offending.  Of course, for the period of good behaviour that the offender will be required to observe, the prospect of imprisonment remains a possibility.  Should the offender lose motivation for reform and commit a further offence or offences that carry a term of imprisonment as a penalty, he could expect his failure to make the most of this opportunity to loom large in those proceedings. 

59․The appropriate starting point for the offence is 18 months’ imprisonment.  That is reduced to 14 months after the application of the discount for his plea of guilty.  I do not consider it necessary to impose a period of supervision as part of the Good Behaviour Order.  The prosecution did not invite that outcome.  It is clear the offender is actively engaged in effective treatment and I do not consider it necessary for ACT Corrective Services to monitor his ongoing engagement with that treatment. 

Orders

60․For those reasons I make the following orders:

(1)On the charge of assault occasioning actual bodily harm (CAN56/2023) the offender is convicted and sentenced to imprisonment for a period of 14 months. 

(2)The period of imprisonment is immediately suspended pursuant to ss 12 and 13 of the Crimes (Sentencing) Act 2005 (ACT) on the condition that the offender undertake to be of good behaviour for a period of 2 years commencing today.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor.

Associate: A Turner

Date: 5 February 2024