Director of Public Prosecutions v Gale

[2023] ACTSC 297

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Gale
Citation:	[2023] ACTSC 297
Hearing Date:	17 October 2023
Decision Date:	17 October 2023
Before:	Mossop J
Decision:	See [80].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – threatening a witness – unlawful choking – aggravated stalking – aggravated assault occasioning actual bodily harm – intentional and unlawful choking – offences occurring in family violence context – Bugmy factors – early pleas of guilty – offender serving existing sentence – sentence of imprisonment imposed
Legislation Cited:	Crimes Act 1900 (ACT), ss 24(2), 28(2)(a), 35, 48C Crimes Act 1914 (Cth), s 20(1)(b) Crimes (Sentencing) Act 2005 (ACT), ss 34B, 65, 66, 71(1), 72, Pt 5.2 Criminal Code 2002 (ACT), s 709(b) Criminal Code (Cth), s 474.17
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Mill v The Queen (1988) 166 CLR 59
Parties:	Director of Public Prosecutions
Shaun Gale (Offender)
Representation:	Counsel
M O’Connell (DPP)
J Cooper (Offender)
Solicitors
Director of Public Prosecutions Aboriginal Legal Service (NSW/ACT) (Offender)
File Numbers:	SCC 63 of 2023 SCC 257 of 2023

at about 7pm that night and continued arguing with Ms O. He used both his hands to pin

Ms O against a wall in the hallway. Ms O pushed the offender away. The offender then

used his right hand to grab Ms O’s throat, his thumb and fingers placing pressure on her

throat and making it difficult for her to breathe.

7․	Ms O called out for help and a neighbour who heard knocked on the front door. The
offender released Ms O and went upstairs. He left a short time later after being
confronted by the neighbour. Ms O reported the incident to police and police attended
her home. Ms O participated in a Family Violence Evidence in Chief Interview.
8․	On 27 May 2022, police arrested the offender. He was charged in relation to the incident
on 1 May 2022 and remanded in custody. The offender and Ms O remained in contact
during the period that the offender was in custody, communicating via email, telephone
calls and jail visits.
9․	During at least seven of the recorded telephone calls, the offender spoke to Ms O in a
threatening manner. He told her to retract her statement to police. He repeatedly told
Ms O to seek medical evidence of her mental health and told her to tell police that she
had lied because of her mental health and fear that her daughter would be taken from
her.
10․	On 8 June 2022, the offender sent Ms O two emails pressuring her to retract her
statement to police. He threatened to end their relationship if she did not retract her
statement.
11․	Ms O provided a handwritten letter in support of the offender’s bail application, listed on
10 June 2022. In the letter, she stated that she wished to legally retract her statement,
that she was mentally ill at the time the statement was made, suffering from a psychosis,
unmedicated, and pressured by a neighbour to report the matter to police. She also
stated that the offender did not choke her and that he had supported her for over
two years.
12․	On 10 June 2022, the offender was released on bail. His bail was subject to the
conditions that he not assault, harass or threaten Ms O, and that he not contact Ms O
except with her prior written consent.

Counts 2 and 3: aggravated choking and aggravated stalking

13․	On 18 December 2022, the offender was at Ms O’s home with Ms O and her daughter.
During the day he verbally abused Ms O multiple times. In the early evening Ms O told
the offender that she was going to buy cigarettes.
14․	As Ms O attempted to leave, the offender pinned her against a wall in a corner near the
front door. He grabbed Ms O by the throat and held her against the wall. Ms O’s feet
were lifted off the ground and she used her hands to attempt to break his grip. Ms O was
crying and had difficulty breathing. This is count 2, aggravated choking.
15․	As the offender held Ms O by the throat, he said, “If you aren’t back in ten minutes I’m
going to kill your fucken kid”. Ms O’s daughter was in the house at the time.
16․	At about 7:15pm, Ms O left her home and drove directly to Tuggeranong Police Station.
She was visibly upset and said she could not be seen to be cooperating with police. She
advised police that they could attend her house in 30 minutes if they wanted to arrest the
offender for breach of bail.
17․	Ms O then walked out of the police station and bought cigarettes from a petrol station
across the road. She drove a short distance before pulling over to smoke a cigarette.
Ms O and the offender exchanged the following text messages:

Ms O:	Why r U ringing me
Offender:	Did u just go to the copshop
Offender:	Did u just go to the copshop

18․	The offender then called Ms O and asked “did you go to the cop shop?” Ms O replied,
“No”.
19․	At 7:37pm, police tried to contact Ms O via phone. The phone call went to voicemail and
police left a voice message. Police also sent Ms O the following text message:

Hi [Ms O]

It’s [name redacted] from ACT policing, Can you please text me when Shaun gets home

and ensure the front door is unlocked.

Thanks [name redacted]

20․	Ms O drove home and the offender took her mobile phone. He continued to yell at her,
calling her a “shit mum” and a “putrid lazy shit”. The statements made to and
communications with the victim constitute stalking because they were done with the
intent to cause fear of harm to Ms O’s daughter.

Count 4: aggravated assault occasioning actual bodily harm

21․	The following day, 19 December 2022, the offender continued to be verbally abusive
towards Ms O. Ms O told him to “get out of my life” and “get out of my house”.
22․	At some point Ms O went to the garage to smoke a cigarette. The offender walked into
the garage and began yelling at her, calling her a “putrid cunt”. Ms O asked “why can’t
you leave? I fucking hate you cunt, get out of my life”. The offender then pushed Ms O
in the chest. Ms O was crying. The offender struck Ms O on the left-hand side of her head with his hand or elbow. Ms O suffered a small bruise to the left-hand side of her
face, pain in her left ear and temporary hearing loss.
23․	The offender then grabbed Ms O by the throat. She screamed and pushed him off. The
offender said to her, “cunt, if the neighbours call the cops, you’re fucken dead”. Ms O
said, “whatever, get the fuck off me” and pushed past the offender. She told him that she
could not hear anything out of her ear. Ms O walked to the living room and sat on the
couch. The offender followed her, and she screamed “get the fuck out”.

Count 5: aggravated choking

24․	The offender lurched at Ms O and pinned her to the couch. He grabbed her throat and
applied pressure to her neck. Ms O was unable to breathe. The offender released his
grip and Ms O screamed, “you are a fucken gronk, just leave, get the fuck out of my life”.
25․	The offender lunged at Ms O and squeezed her throat again, harder than the previous
time. He held her throat for about five seconds. Ms O kicked at the offender, but he
pushed her legs aside, saying “I’m stronger than you dog I will fucken kill you, shut the
fuck up”. He left the room.
26․	Ms O was crying. She found it painful to swallow and her neck was sore. She moved to
the kitchen and sat on the floor. The offender reached towards her neck but she blocked
him with her arms.
27․	Ms O returned to the living room. Sometime later, the offender came in and began yelling
at her again. He lunged at Ms O and grabbed her throat, squeezing it for a few seconds.
Ms O was unable to breathe. The offender said, “If the cops come, I will strangle the fuck
out of you. I’ll do 10 to 15 for you. I’ll kill you before they manage to get into the house”.
Ms O tried to kick the offender and he grabbed her by the throat again. He said, “Fucken
dumb dog. Fucken shut up. If the cops show up you are fucken dead”.
28․	Later that day, Ms O sat on the couch, crying, with her daughter. The offender told her
to “snap out of it” and began making jelly with her daughter. He behaved as if nothing
had happened. Ms O remained crying on the couch, and the offender got mad at her for
crying. He told her, “If the cops come past I’ll fucking kill you cunt, I don’t give a fuck, I’ll
make sure your daughter gets taken off you and I’ll fuck off and then you’ll have nothing
left cunt”.

Report to the police

29․	The following day, 20 December 2022, the offender yelled at Ms O’s daughter for being
too loud while playing. Ms O took pain relief for her ear pain as she could not hear
properly. The offender told her that it was her own fault, and she said “I didn’t hit myself in the head cunt, I don’t make you put your hands on me. I might make you mad, but
who the fuck are you to put your hands on me cunt?”
30․	Ms O told the offender that she needed to go to the doctor. She left the house with her
daughter. Ms O’s neighbour observed her crying and asked if she was okay. Ms O told
the neighbour that “Shaun punched me in the side of the head and I can’t hear out of my
ear now. Shaun strangled me. I’m going to the doctors”. Ms O drove to a walk-in
medical centre, but left before being seen by a doctor due to the wait time.
31․	At about 11:50am, the offender sent the following text messages to Ms O:

Offender:	Keep speaking to the fucken enemy you two faced fucken dog
Offender:	You tell any doctor that you have a sore ear because your boyfriend did it,
see how quick they call family services coz of their obligation to inform

32․	At around this time Ms O and the offender spoke on the phone. He informed Ms O that
he was coming to get her.
33․	Ms O saw two police cars parked near the Tuggeranong Library for an unrelated matter.
She pulled over and parked in front of one of the police cars. She sat in her car crying.
Her neighbour drove past and saw her crying in the car. She asked, “are you alright” and
approached Ms O. Ms O then spoke to her brother about what had happened. Ms O’s
brother advised her to go to the police station.
34․	During this time, the offender called Ms O. Ms O told him that she was in front of the
library, and a short time later the offender pulled up on his motorbike. Ms O was still with
their neighbour, and told the offender that she was not going home. The offender left.
35․	Ms O and the offender exchanged a series of text messages, in which Ms O told the
offender to get out of her house. At around this time, Ms O’s brother’s partner telephoned
000 and reported the matter to police.
36․	Ms O walked to the Tuggeranong Police Station. She was visibly upset. She reported
that the offender had threatened to kill her daughter and requested that a police officer
attend her house. The police accompanied Ms O back home and searched the
residence. The offender was not present.
37․	Ms O participated in a Family Violence Evidence in Chief Interview. The police called an
ambulance and paramedics attended to examine Ms O. She was then taken to Canberra
Hospital and provided an account of what had occurred. Ms O reported difficulty
swallowing, cough, shortness of breath, inability to breath, blacking out of her vision,
urinary incontinence, light headedness, loss of hearing and headache.
38․	On 21 December 2022, police obtained an arrest warrant for the offender. Victorian
police were notified of the arrest warrant on 29 December 2022.
39․	On 5 January 2023, the offender was arrested in Victoria and remanded in custody. He
was extradited to the Australian Capital Territory (ACT) on 6 January 2023.

Using a carriage service to menace

40․	The facts in relation to the offence of using a carriage service to menace involve a
telephone call made on 30 July 2023 at a time when the offender was in custody at the
Alexander Maconochie Centre serving the sentence of imprisonment for the May 2022
offence. He made a call to Ms O and said “sell all me fucking tools, I am taking ya to
Court and I’m giving Ridgewell your address, you’re fucked.” Evidence tendered by the
offender indicates that he was extremely upset at the time and by the next day expressed
unprompted regret to his solicitor for dealing with the matter in the way that he had.

Objective seriousness

41․	Each of the offences apart from count 1 occurred while the offender was on conditional
liberty as a result of a grant of bail following his arrest relating to the aggravated choking
offence committed on 1 May 2022. Count 1 occurred while he was in custody as a result
of a refusal of bail.
42․	Count 1: This offending involved pressuring the victim with multiple emails and phone
calls to retract her statement. It therefore fell within s 709(b) of the Criminal Code 2002
(ACT). The victim did provide a handwritten retraction as a result of this pressure. The
conduct did not involve physical violence, weapons or the payment of money. The victim
ultimately gave evidence against the offender and he was convicted. It is offending in the
mid-range of objective seriousness for this offence.
43․	Count 2: This involved grabbing the victim by the throat and holding her against the wall.
Sufficient pressure was exerted to lift the victim’s feet off the ground despite the victim
using a hand to try to break his grip. The victim was crying and had difficulty breathing.
This offending is in the mid-range of objective seriousness for this offence.
44․	Count 3: The offence of stalking under s 35 of the Crimes Act can be committed in a
variety of circumstances. The charge in the present case involved the intention that the
victim would fear harm to her five-year-old daughter. Thus, it depended upon the making
of the initial threat followed by the subsequent text messages designed to get the victim
to return to the house. The effect of the stalking was to interfere with the capacity of the
victim to get assistance from others, most obviously the police. It therefore involves a common feature of domestic violence, control and isolation of the victim. It is in the
mid-range of objective seriousness for this offence.
45․	Count 4: This charge is an aggravated charge because it involved family violence: see
s 48C of the Crimes Act. The actual bodily harm identified in the Agreed Statement of
Facts is the small bruise and temporary hearing loss caused by the offender striking the
left-hand side of the victim’s head with either his hand or his elbow. The offending
occurred in the context of abusive language used by each of them and threats made by
him. Although the actual bodily harm is modest, the offending is in the mid-range of
objective seriousness for this offence.
46․	Count 5: This involves a rolled-up charge involving four distinct episodes of choking the
victim. The first occurred when the offender was on top of the victim and applied pressure
to her neck for a couple of seconds during which she was unable to breathe. The second
occurred when the offender lunged at her and put his right hand around her throat, again
squeezing it for about five seconds. The victim was kicking the offender to try to get him
off her. The third occurred after the victim had been to the kitchen and returned to the
lounge room, when he grabbed her by the throat, squeezing for a few seconds so that
she was unable to breathe. The fourth occurred after the victim had tried to kick the
offender and the offender grabbed her by the throat again, telling her to shut up and
threatening her if the police showed up. Having regard to the multiple incidents and the
domestic violence context, this offending is above the mid-range for this offence.
47․	Using a carriage service to menace: This charge occurred when the offender was serving
his sentence of imprisonment for the May 2022 offending. It involved an inferred threat
of violence against the victim. That threat arose out of a dispute about the recovery of
the offender’s property from the victim. It is below the mid-range of objective seriousness
for such an offence.

Subjective circumstances

48․	The subjective circumstances of the offender are outlined in a pre-sentence report dated
9 October 2023 and a report of the Vanessa Edwige, a psychologist, dated
28 September 2023 and a variety of other materials contained in the offender’s tender
bundle.
49․	The offender is almost 31 years old. His father was Aboriginal, his mother is not. His
parents separated when he was approximately three years old. His parents then shared
custody of him. However, from the age of 10 he lived with his father until his father’s
death by suicide when the offender was 11 years old. He returned to his mother’s custody until the age of 15 when he moved out and lived with a friend of his father’s until moving
to Western Australia at the age of 18.
50․	His upbringing was traumatic and his parents were not good role models.
51․	His father was an abusive alcoholic and a member of the Hells Angel motorcycle gang.
Even after they had separated, his father would return to his mother’s house where the
offender was living, damage property and be violent towards the offender. When he was
living with his father he would go to the Hells Angel clubhouse, to strip clubs and to
prostitutes. His father was violent towards the offender and towards other people in the
offender’s presence. His father used speed, heroin, ecstasy, steroids and
methamphetamine. Following the breakdown of a relationship with a subsequent partner,
the offender’s father committed suicide by hanging himself when the offender was
11 years old. The offender found his father’s body.
52․	His mother also abused alcohol and marijuana. From the age of eight the offender would
be left by himself on some nights when his mother went to work.
53․	After his father’s death he returned to live with his mother and his grandmother. His
mother re-partnered. The offender had started smoking marijuana and drinking alcohol
and there was conflict between him and his mother’s new partner. He moved out when
he was 15 years old and moved in with a friend of his father’s who was also a bikie. He
moved to Western Australia when he was 18 years old. He had a mining job. He met a
partner and had a child. He left in Western Australia from approximately 2010 until 2019.
It appears that throughout this period he continued to use methamphetamine and heroin.
54․	In 2019 he, his partner and their daughter moved to Canberra. His partner left him and
took their daughter to New Zealand. He has had no contact with her since.
55․	After that his drug use increased. He started injecting methamphetamine. He ceased
working in the construction industry. He entered a relationship with the victim of the
present offending. They both used drugs. He told the author of the pre-sentence report
that he was under the effects of methamphetamine when he committed the offences. He
was recorded by the author of the pre-sentence report as not attempting to minimise his
actions, verbalising his regret and his desire not to be in that situation again.
56․	Ms Edwige diagnosed him with Post-Traumatic Stress Disorder and substance misuse
disorder (Cannabis, Stimulant and Opioid Use Disorder) in early remission, in a
controlled environment. She records him as being “a very intelligent man with significant
insight into his emotions and behaviour”.
57․	While in custody he has participated in the Solaris Therapeutic Community program and
is expected to complete the program by the end of December 2023.

Criminal history

58․	Consistent with the places where the offender as lived, he has a criminal history in
Victoria, Western Australia and the ACT. In Victoria he has convictions for drink-driving,
failing to answer bail and some minor drug offences. In Western Australia he has a
number of driver licence related offences between 2014 and 2017. He has six convictions
for offences that occurred on 2 and 3 July 2017 which relate to weapons and possession
of cannabis.
59․	In the ACT, on 4 July 2023 he was sentenced to 11 months’ imprisonment commencing
on 21 December 2022 and ending on 20 November 2023 for a choking offence
committed against the victim of the present offending committed on 1 May 2022. This
was his first sentence involving a period of full-time custody.

Plea of guilty

60․	The offender pleaded guilty to the offences on the indictment on 13 July 2023 following
a criminal case conference conducted on that day. The matter had been listed for trial to
commence on 7 August 2023. Count 1 on the indictment was an ex officio charge laid at
the time of the criminal case conference. The charge of using a carriage service to
menace involve a plea of guilty entered in the Magistrates Court at the earliest possible
opportunity.
61․	In relation to counts 2, 3, 4 and 5, a reduction of approximately 15 percent is appropriate
having regard to the timing of the plea of guilty. So far as count 1 on the indictment is
concerned, given that it was laid at the time of the criminal case conference, the plea
was an early one and a reduction of 25 percent is appropriate. Similarly, the charge of
using a carriage service to menace was a plea at the earliest opportunity and a reduction
of 25 percent is appropriate.

Time in custody

62․	The offender has remained in custody since his arrest on 5 January 2023. As a result of
the imposition of the sentence for the offending committed on 1 May 2022, the time that
he has spent in custody has been attributable to that sentence. Notwithstanding that he
has also been bail refused in relation to the current offending, having regard to the
sentence of imprisonment that he is already serving, no further backdating is required to
take account of that period of custody.

Consideration

63․	The offending involved serious family violence offending and other offending designed
to control or manipulate the victim. It is necessary to have regard to the matters referred
to in s 34B of the Crimes (Sentencing) Act 2005 (CS Act). It is notable that most of the
offending occurred while the victim was at home. A child was present in the home
although not shown to be directly present during the offending conduct. It is obvious that
specific and general deterrence, denunciation, recognition of the harm done to the victim
and holding the offender accountable are all significant sentencing considerations.
64․	The personal circumstances of the offender are significant in two ways. So far as his
past is concerned, that involves a history in which there were no good male role models.
Instead, his father provided a role model involving violence against women and unlawful
conduct. His parents both abused alcohol. His mother abused marijuana. His father
abused a range of other drugs. He himself was introduced to drugs as a child. The denial
of positive role models and the presence of dysfunctional role models will have
undoubtedly affected the offender and reduce, to some extent, his moral culpability.
Having said that, as recognised in Bugmy v The Queen [2013] HCA 37; 249 CLR 571,
those aspects of his upbringing may also increase the need for specific deterrence and
the need for protection of the community.
65․	So far as the future is concerned, the offender does appear to have insight into his
offending behaviour and a desire to change. The evidence in support of that comes from
his grandmother with whom he has always had a good relationship, a report of his
conduct in the Solaris Therapeutic Community Program, and the report of Ms Edwige.
This evidence indicates that there are some positive signs in relation to the potential for
his rehabilitation even though it cannot be said that the path towards rehabilitation is well
entrenched.
66․	While, plainly enough, the offending is of such seriousness that significant periods of
incarceration are warranted, I accept the submission made on behalf of the offender that
the positive indications of the potential for his rehabilitation warrant a non-parole period
which is shorter than would be the case if those indications were not present.
67․	It is also necessary to address the relationship between his existing sentence, the
sentences that the court will impose and the issue of the extent of concurrency of those
Territory offences which were committed in custody and to which s 72 of the CS Act
applies.
68․	So far as his existing sentence is concerned, had count 1 not been committed in custody
this sentence would have been made concurrent as to five months with the existing sentence. That would have been appropriate having regard to Mill v The Queen (1988)
166 CLR 59 and because the absence of any suspension of that sentence appears to
have been, at least in part, informed by the fact that he was bail refused on the present
charges at the time of sentencing. However, having regard to the legislative intent behind
s 72 the sentence will only be concurrent as to three months.
69․	The offence of using a carriage service to menace or harass is a Commonwealth offence.
The sentence that is imposed must be consistent with the requirements of the Crimes
Act 1914 (Cth) as to its relationship with the Territory sentences that are to be imposed.

70․ In determining the sentence to be imposed, I have had regard to the tables of

comparative cases provided by the prosecution and the offender, particularly in relation

to the choking charges.

71․

A summary of the custodial sentences to be imposed is as follows.

Count Starting point Sentence Cumulation

1 24 18

2	24	20	10
3	30	25	8
4	16	13	5
5	30	25	7

Total 48

72․

The sentence on the charge of using a carriage service to menace or harass will be a

sentence of two months’ imprisonment suspended upon entering into a recognisance

pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) to be of good behaviour for a period

of three years.

73․

Having regard to the three months of concurrency between the existing sentence and

the sentences to be imposed today, the aggregate of the current sentence and those

imposed today is 56 months imprisonment.

74․

A difficulty arises in relation to setting of a non-parole period. Count 1 involves a sentence

which is an “excluded sentence of imprisonment” to which Pt 5.2 of the CS Act does not

apply. Yet, where the offender is serving an existing sentence of imprisonment, s 65

applies as if the court that imposes the primary sentence had sentenced the person to

imprisonment for a term equal to the total terms of the existing sentence and the primary

sentence. If there is to be a parole period, then the sentence for count 1, for which a non-parole period cannot be set, must be imposed prior to any appropriate parole period.

In the present case it will be imposed first. The question is then whether the current

sentence of imprisonment is taken to be an “existing sentence” for the purposes of s 66

when it is separated from other sentences to which Pt 5.2 applies by an excluded

sentence. If it is taken to be such a sentence, then any non-parole period would need to

cover a period during which the offender is serving a sentence of imprisonment to which

Pt 5.2 does not apply. The alternative is to treat the sentence being served as not being

an “existing sentence” because the service of that sentence will never be adjoining or

overlapping with another sentence of imprisonment to which Pt 5.2 applies and hence it

will not be possible to set a single non-parole period.

75․

Because the sentence on count 2 will not be adjoining or concurrent with the sentence

currently being served and will be separated by the sentence to which Pt 5.2 does not

apply (count 1), it will be treated as not being an “existing sentence” for the purposes of

s 66(1). This means that the court will simply set a non-parole period in relation to the

sentences imposed on counts 2-5. However, that sentence will be set having regard to

what is an appropriate outcome having regard for the potential for the offender’s

rehabilitation and the undesirability, if he remains motivated to and capable of

rehabilitating himself, of leaving him for longer than necessary in the custodial

environment.

76․

In my view, an appropriate period prior to the offender being entitled to parole would be

28 months, 50 percent of the overall sentence (including the sentence currently being

served). That would give a non-parole period which ended on 20 April 2025. So far as

the sentences on counts 2-5 are concerned, that would mean that the non-parole period

ended only one year into the sentence on count 2. While in percentage terms, that would

appear to be anomalous, in the unusual circumstances surrounding the operation of

Pt 5.2 of the CS Act it is explicable.

77․

In the event that the sentence currently being served is an “existing sentence” for the

purpose of s 66, then the relevant aggregate sentence in relation to which a non-parole

period would need to be set would be a combination of the 11-month sentence and the

37 months imposed upon count 2-5. The non-parole period expiring on 20 March 2025

would involve a non-parole period of 25 percent (12 months out of a total of 47 months).

This would also be outside the usual range for a non-parole period.

78․

All of these explanations emphasise the need to explain why it is appropriate to calculate

the non-parole period in a way that does not ignore the sentence for which no non-parole

period can be set. In my view, the exercise must involve the fundamental goal of

achieving and appropriate sentence in the objective and subjective circumstances of the case. That must be done in a manner which does not contravene any specific

requirement of the CS Act and gives appropriate weight to a legislative intention where

that intention is sufficiently disclosed. The sentences that I will impose do not permit any

grant of parole during the term of a sentence for which a non-parole period cannot be

set. The overall length of the sentence on count 1 and its relationship with the previous

and subsequent sentences gives appropriate weight to the gravity of the offending. The

structure of the sentence maintains the potential for the offender to obtain release on

parole in a manner consistent with furthering his rehabilitation, if his conduct in custody

warrants it.

79․

The specification of the start and end dates in the orders is sufficient to satisfy the

requirements of ss 71(2) and 72(3).

Orders

80․	The orders of the Court are as follows:
[The orders pronounced in court were amended in chambers and their final form was as
follows]

1.   On count 1 (SCCAN129/2023) the offender is convicted and sentenced to

imprisonment for 18 months commencing on 21 August 2023 and ending on 20

February 2025.

2.   On count 2 (CAN12458/2022) the offender is convicted and sentenced to

imprisonment for 20 months commencing on 21 April 2024 and ending on 20

December 2025.

3.   On count 3 (SCCAN130/2023) the offender is convicted and sentenced to

imprisonment for 25 months commencing on 21 July 2024 and ending on 20

August 2026.

4.   On charge 4 (CAN12464/2022) the offender is convicted and sentenced to

imprisonment for 13 months commencing on 21 December 2025 and ending on

20 January 2027.

5.   On charge 5 (CAN12460/2022) the offender is convicted and sentenced to

imprisonment for 25 months commencing on 21 July 2025 and ending on 20

August 2027.

6.    The non-parole period commences on 21 April 2024 and ends on 20 April 2025.

7.   On charge CAN8238/2023, the offender is convicted and sentenced to

imprisonment for two months and ordered to be released forthwith upon giving

security without surety by recognisance of $100 to be of good behaviour for a

period of three years.

I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop

Associate:

Date:

MOSSOP J:

Introduction

1․	On 13 July 2023, the offender pleaded guilty to the following charges at a criminal case
conference:

(a) Count 1 (SCCAN129/2023): threatening a witness, contrary to s 709(b) of the

Criminal Code 2002 (ACT). The maximum penalty is a fine of $80,000 or

five years’ imprisonment or both.

(b) Count 2 (CAN12458/2022): intentionally and unlawfully choking, suffocating, or

strangling another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT).

The maximum penalty is seven years’ imprisonment.

(c) Count 3 (SCCAN130/2023): aggravated stalking, contrary to s 35(1)(a) of the

Crimes Act 1900 (ACT). The maximum penalty is seven years’ imprisonment.

(d) Count 4 (CAN12464/2022): aggravated assault occasioning actual bodily harm,

contrary to s 24(2) of the Crimes Act 1900 (ACT). The maximum penalty is

seven years’ imprisonment.

(e) Count 5 (CAN12460/2022): another charge of intentional and unlawful choking

suffocating or strangling.

2․	On 6 October 2023, the offender pleaded guilty to an additional charge (CAN8238/2023)
of using a carriage service to menace, contrary to s 474.17 of the Criminal Code (Cth).
The maximum penalty is five years’ imprisonment.
3․	The victim of the offending is the offender’s former partner, with whom he had been in
an intimate relationship for two years at the time of the offending. The name of the victim
has been anonymised in these reasons.
Facts
4․	The facts concerning the counts on the indictment are agreed in a Statement of Facts
which was admitted into evidence without objection. They are summarised as follows.
5․	The offender and the victim, who I will refer to as Ms O, had a number of arguments at
Ms O’s home during the course of their relationship. Police responded to 18 reported
incidents involving the two between 16 February and 18 December 2022.

Count 1: threaten a witness

6․	On 1 May 2022, the offender, Ms O and her five-year-old daughter were at Ms O’s home.
The offender and Ms O had an argument resulting in the offender leaving. He returned