Director of Public Prosecutions v Hagen - [2024] ACTSC 360

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Hagen
Citation:	[2024] ACTSC 360
Hearing Dates:	28 February 2024, 22 May 2024, 4 September 2024
Further Submissions Received:	14 November 2024
Decision Date:	14 November 2024
Before:	Loukas-Karlsson J
Decision:	(1) In relation to the current set of offences: (a) For the offence of causing grievous bodily harm (SCCAN2023/446), the offender is convicted and sentenced to 2 years, 4 months and 24 days’ imprisonment commencing on 11 April 2023 and expiring on 3 September 2025. (b) For the offence of being knowingly concerned in an arson (CC2023/5653), the offender is convicted and sentenced to 1 year and 7 months’ imprisonment commencing on 4 June 2025 and expiring on 3 January 2027. (c) For the offence of common assault (CC2023/608), the offender is convicted and sentenced to 6 months’ imprisonment commencing on 4 December 2026 and expiring on 3 June 2027. (d) For the offence of possessing an offensive weapon with intent (CC2023/607), the offender is convicted and sentenced to 4 months and 24 days’ imprisonment commencing on 4 April 2027 and expiring on 27 August 2027. (e) For the offence of taking a motor vehicle without consent (SCCAN2023/132), the offender is convicted and sentenced to 4 months and 24 days’ imprisonment commencing on 28 June 2027 and expiring on 20 November 2027. (f) For the offence of joint commission of making off without payment (CC2023/5586), the offender is convicted and a fine of $300.00 with no time to pay is imposed. (2) In relation to the breach offending: (a) The good behaviour order imposed by Justice Kennett on 11 October 2022 is cancelled. (b) For the offence of aggravated burglary by joint commission (CC2021/8159), the offender is resentenced to 7 months’ imprisonment commencing on 21 October 2027 and expiring on 20 May 2028. (3) In relation to sentences of imprisonment imposed for the current set of offences and the breach offending, I impose a non-parole period of 2 years 8 months and 13 days, commencing on 11 April 2023 and expiring on 23 December 2025. (4) Leave is granted for the prosecution to withdraw count CC2023/606 – assault occasioning actual bodily harm.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two separate series of serious offending over the course of a night – offender with “mild” intellectual disability – Bugmy & Verdins principles engaged notwithstanding countervailing factors – prospects of rehabilitation somewhat guarded but continuing rehabilitative potential – sentence backdated in application of totality – sentenced to imprisonment CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order with suspended sentence – offender reoffended – good behaviour order cancelled – offender resentenced – sentence made partially concurrent with fresh sentences as a matter of totality
Legislation Cited:	Crimes Act 1900 (ACT) ss 25, 26, 381(1), Dictionary Criminal Code 2002 (ACT) ss 45, 45A, 312, 318(1), 323, 404 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33, 33(1)(j), 33(1)(p), 35, 35(2)(c), 35A, 64, 65(1), 65(2) Crimes (Sentence Administration) Act 2005 (ACT) ss 110(1)-(2).
Cases Cited:	Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Rue [2023] ACTSC 270 DPP v Tony Bravo (a pseudonym) [2024] ACTSC 221 Guy v Anderson [2013] ACTSC 5 Harlovich v Sebbens [2024] ACTSC 153; 106 MVR 392 Hayne v Zheng [2023] ACTSC 326 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Jackson v The King [2023] NSWCCA 121 Kentwell v The Queen (No 2) [2015] NSWCCA 96 LeClair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 249 CLR 600 Ngata v The Queen [2020] ACTCA 18 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v BS-X [2021] ACTSC 160; 16 ACTLR 238 R v Bandy [2018] ACTSC 261 R v Byrne [2015] ACTSC 113 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Coleman (1990) 47 A Crim R 306 R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 R v Daniel (No 2) [2021] ACTSC 117 R v Denniss [2018] ACTSC 239 R v Engert (1995) 84 A Crim R 67 R v Goodrich (1953) 70 WN (NSW) 42 R v Goolagong(No 2) [2021] ACTSC 131 R v Hagen [2022] ACTSC 274 R v Harmouche [2015] ACTSC 381 R v Hodge [2019] ACTSC 15 R v Irwin [2019] NSWCCA 133 R v JG [2014] ACTSC 323 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lacey [2020] ACTSC 241 R v Lacey (No 2) [2021] ACTSC 269 R v Latu [2019] ACTSC 109 R v MAK; R v MSK [2006] NSWCCA 381 R v Murphy [2021] ACTSC 94 R v Myles [2017] ACTSC 194 R v Naing [2023] ACTSC 210 R v PM (No 2) [2015] ACTSC 358 R v Radich [1954] NZLR 86 R v Roux (No 2) [2015] ACTSC 361 R v Tran [1999] NSWCCA 109 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Uluikadavu [2020] ACTSC 237 R v Verdins [2007] VSCA 102; 16 VR 269 R v Wieland [2020] ACTSC 16 R v Wrigley [2015] ACTSC 114 R v XX [2009] NSWCCA 115; 195 A Crim R 38 R v Zamagias [2002] NSWCCA 17 ST v The Queen [2022] NSWCCA 169 Saga v Reid and Collett [2010] ACTSC 59 Stanford v The Queen [2007] NSWCCA 73 Taylor v The Queen [2014] ACTCA 9 Veen v The Queen(No 2) (1988) 164 CLR 465 Zdravkovic v Queen [2016] ACTCA 53; 19 ACTLR 223
Parties:	Director of Public Prosecutions Bailey Hagen ( Offender)
Representation:	Counsel G Meikle ( DPP) S Robinson ( Offender)
Solicitors ACT Director of Public Prosecutions Fortify Legal ( Offender)
File Numbers:	SCC 134 of 2023 SCC 144 of 2023 SCC 145 of 2023 SCC 254 of 2021

LOUKAS-KARLSSON J:

Introduction

1․On 31 October 2023, Bailey Hagen (the offender) pleaded guilty to the following offences:
(a)An offence of causing grievous bodily harm (SCCAN2023/446), contrary to s 25 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 5 years’ imprisonment.
(b)An offence of taking a motor vehicle without consent (SCCAN2023/132), contrary to s 318(1) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is a fine of 500 penalty units, 5 years’ imprisonment, or both.
(c)An offence of being knowingly concerned in an arson (CC2023/5653), contrary to s 404 by virtue of s 45 of the Criminal Code. The maximum penalty for this offence is a fine of 1,500 penalty units, 15 years’ imprisonment, or both.
(d)For completeness, I also note that a charge of assault occasioning actual bodily harm (CC2023/606) was before the Court and the prosecution withdrew the charge on 14 November 2024.

2․The offender further pleaded guilty to the following transfer charges (transfer charges):
(a)An offence of possessing an offensive weapon with intent, contrary to s 381(1) of the Crimes Act (CC2023/607). The maximum penalty for this offence is a fine of $2,000.00, 1 year imprisonment, or both.
(b)An offence of common assault (CC2023/608), contrary to s 26 of the Crimes Act. The maximum penalty for this offence is 2 years’ imprisonment.
(c)An offence of joint commission of making off without payment (CC2023/5586), contrary to s 323 by virtue of s 45A of the Criminal Code. The maximum penalty for this offence is a fine of 50 penalty units, 6 months’ imprisonment, or both.

3․The prosecution also noted that upon conviction for the current offences the offender will also be in breach of a good behaviour order attached as part of a suspended sentence imposed by Kennett J in R v Hagen [2022] ACTSC 274 (Hagen) beginning on 25 October 2022 for the following offence:
(a)an offence of aggravated burglary by joint commission (CC2021/8159), contrary to s 312 of the Criminal Code. The maximum penalty for this offence is a fine of 2,000 penalty units, 20 years’ imprisonment, or both.

Agreed facts

4․The agreed facts for the current set of charges are set out in the Agreed Statement of Facts, which forms part of the Prosecution Tender Bundle. They may be summarised as follows. It is also convenient to divide them in accordance with location of the offending. Before proceeding further, the Court notes that as a result of the number of charges and the extensive documentary material before the Court, the judgment is, of necessity, lengthy.

The offending in Civic: causing grievous bodily harm, common assault, and possession of offensive weapon with intent

5․On 9 December 2022, the victims, Mr F and Mr B, attended a work Christmas event. The event went from 6pm until midnight. They then then attended another bar in Manuka, before going to City to attend another bar.
6․In the same evening, the offender and his friends, Ms B and a young person, were also in Canberra city. CCTV footage from a bar at Northbourne Avenue showed Ms B exiting the bar and speaking with a security guard at about 2.33am. The security guard then re-entered the Northbourne Avenue bar to escort a group of people outside to de-escalate an incident between the offender and another patron, Mr G. The security guard observed that the offender had become aggressive in response to antagonistic comments made by Mr G.
7․The security guard escorted the offender outside, with the group of people he was with. The offender continued to yell out to Mr G, calling him a “dog” and telling him to come outside. Mr G then did so, and the security guard stood between the offender and Mr G in an attempt to de-escalate the situation. The offender, the group he was with, and Mr G remained outside of Northbourne Avenue bar as at approximately 2.34am.
8․At about 2.30am, the victims left the bar in Civic and commenced walking towards East Row via Northbourne Avenue. When the victims walked past the Northbourne Avenue bar, the group that included the offender remained outside the venue. Mr B overheard a young male yelling words to the effect of “[T]here’s paedophiles in there”. This caused Mr B to stop. Mr F continued walking before stopping to wait for Mr B.
9․CCTV footage showed at the sentence hearing on May 2024 depicts a young male that was part of the offender’s group animatedly talking to Mr B. The footage then shows the offender pushing Mr B forcefully using both hands. This is CC2023/608, a common assault.
10․Mr B fell backwards, landing on outdoor seating. The footage then shows Mr F walking towards Mr B and kneeling down to attend to him. Mr F then approaches the offender with his arms open in an attempt to separate him from Mr B.
11․The offender responded by striking Mr F once in the head using his right arm. Mr F immediately lost consciousness and fell backwards. The back of Mr F’s head hit the concrete ledge before hitting the tiled ground. Witnesses heard Mr F head collide with the ledge, describing the sound as a “crack” or “cracking”. This is count SCCAN2023/446, assault occasioning grievous bodily harm.
12․Mr B, the security guard, and other civilians then commenced rendering aid to Mr F. CCTV depicts the offender continuing to posture aggressively in the direction of the victims before being moved away by the young person. The offender produced a glass bottle, shattered it, and retained the head of the bottle in his right hand. The offender continued to move towards the vicinity of Mr F while brandishing the bottle in an aggressive manner. Witnesses described that the offender “looked very angry” and continuing to yell at Mr F. This is count CC2023/607, possessing offensive weapon with intent.
13․After the offender’s group departed, police officers arrive at the scene. The attending officers spoke with Mr G, the security guard and other witnesses. Mr F was then placed onto an ambulance stretcher before being conveyed to hospital. By this stage the offender and the offender’s group were no longer in the area.
14․One of the officers attending the scene observed a wooden bench where the supporting planks underneath the seat had been broken. The officer also observed a large amount of blood from where Mr F had been lying.
15․The agreed facts provided further details on the injuries sustained by Mr F. Mr F was taken by ambulance to Canberra Hospital, arriving after 3am on 10 December 2022.
16․Mr F underwent a CT scan which revealed a 17mm deep scalp contusion overlying the right parietal convexity. The agreed facts noted that Mr F sustained the following injuries as a result of the assault:
(a)A right-sided scalp laceration with underlying haematoma.
(b)A left-sided scalp laceration.
(c)Concussion.
(d)A bruise injury lateral to the left eye.

17․The left-sided scalp injury was observed by Dr Van Diemen as a laceration four-centimetres deep and six centimetres in length; In respect of the right sided scalp laceration, the wound was an irregular x-shaped laceration measuring approximately five by four centimetres and was unable to be closed with sutures. In Dr Van Diemen’s opinion, the laceration injuries will result in permanent scarring. Photos of the laceration injuries were also included in the agreed facts.
18․In respect of the concussion, the observations of Dr Van Diemen was that Mr F sustained a mild traumatic head injury and referred to the loss of consciousness period of being approximately 45-90 seconds. Dr Van Diemen observed that Mr F was unable to recall events surrounding and immediately following the assault. Dr Van Diemen observed that this is clinically referred to as “amnesic to events” and is common to traumatic head injuries.
19․Mr F was discharged after 1pm on 10 December 2022. Mr F participated in an evidence-in-chief interview on 13 January 2023, in which he stated that his last recollection of 10 December 2022 was going to leave the bar in Civic to get some food before getting an Uber home, and that his next memory was waking up in hospital.
20․Mr F told police he recalled consuming only three or four beers over the course of the night before attending the bar in Civic, and then consuming three bourbon and cokes while at that venue; He did not believe he was heavily intoxicated at the time of the incident.
21․Mr F stated that he has had ongoing issues at that point recovering from the concussion. In particular, Mr F reported that his speech was slurred for the first two weeks after the assault.
22․Mr F also stated that he experienced ongoing issues with being unsteady on his feet. Mr F also reported ongoing issues in respect of his short-term memory, noting that he forgets names, places, and phone numbers that he could previously recall. Mr F also further stated that he has to focus and concentrate a lot more on doing something he would normally do with ease before the incident.
23․I will later in this judgment at [43]-[45] return to the Victim Impact Statement of Mr F.

The offending in Gordon and Kambah: taking motor vehicle without consent, knowingly concerned in arson, and making off without payment

24․On 8 December 2022, the victim, Mr K, secured his car and parked it in the driveway of his residence at Gordon. The single set of keys for the vehicle was noted to be secured in the second drawer in the right-hand bedside table in Mr K’s bedroom.
25․Mr K and his partner departed for Melbourne on the early morning of 9 December 2022. On the same day, Mr K’s teenage children threw a party without adult supervision. The party involved a number of teenage guests and the consumption of alcohol.
26․At about 12.30am, the offender’s younger brother arrived at the property uninvited. CCTV footage of the K residence depicts Ms B, the offender, and the same young person described above at [6] arriving at 3:40am on 10 December 2022.
27․At around 4:50am, two sleeping party guests awoke to the sound of glass smashing. They walked around the corner from the bedroom, and then saw Mr K’s daughter on the floor with blood coming out of her mouth and nose. The agreed facts clarified that no charges been laid in relation to this.
28․CCTV footage captured the offender, his brother, the young person, and Ms B leaving the residence at 4.54am. The footage showed the offender pressing an item that appears to have unlocked Mr K’s car. The group then got into the car with the offender getting into the driver seat. This is count SCCAN2023/132, taking a motor vehicle without consent.
29․At about 5.23AM, CCTV footage at a fuel station in Kambah captured Mr K’s car drive to a fuel pump. The offender’s brother is depicted as filling the car with petrol. The offender then drove away without making any attempts to pay for approximately $149 of fuel. This is count CC2023/5586, making off without payment.
30․Mr K received a call from his son notifying him of the missing car and that his daughter has been assaulted. The son called an ambulance, and Mr K contacted police and ambulance.
31․At about 7.24am, police attended a street in Kambah after the burnt-out car of Mr K had been located. An officer took photographs, which showed the external cabin of the vehicle to have sustained no visible damage but did show damage to the internal cabin. Photographs of the damage to the car were also included in the agreed facts.
32․The car was subject to forensic testing, including fingerprints and DNA from the car’s seatbelt. A male partial DNA profile was obtained from the tapelift of the front driver side seatbelt of the Ford Ranger. The agreed facts noted that it is at least 11 billion times more likely that the offender is the source of the DNA profile.
33․In January 2023, police were granted a search warrant for the address of Ms B and the young person. During the search, Ms B agreed that she, the young person and the offender left the city and then later arrived at the K residence. I note that this placed the Kambah offending as occurring in sequence after the assaults of Mr F and Mr B.
34․Ms B agreed that she entered Mr K’s car, and eventually noted at the conclusion of the execution of the warrant that the offender and his brother had “called someone to burn the car”. This is count CC2023/5653, being knowingly concerned in an arson.

Breach offence: aggravated burglary by joint commission (CC2021/8159)

35․As previously stated, the offender will, upon conviction for the current set of offences, breach the terms of the good behaviour order imposed by Kennett J in Hagen. It is therefore appropriate to discuss the facts in Hagen.
36․The offender was before Kennett J for two offences: aggravated burglary and assault occasioning bodily harm. For the assault, the offender was sentenced to 2 months’ imprisonment, to be served from 26 June 2022 to 25 August 2022: Hagen at [45](4). For the aggravated burglary, Kennett J imposed a term of imprisonment for 12 months from 26 June 2022 to 25 June 2023: Hagen at [45](1). This sentence was to be suspended after the offender served four months’ imprisonment, and upon his entry into a good behaviour order: Hagen at [45](2). This good behaviour order commenced on 25 October 2022.
37․The facts of this offending are summarised in Hagen at [4]-[8].
38․The offender attended the home of the victim along with his mother and other persons, Ms E1 and Ms E2. Ms E1 was the partner of the offender’s older brother, who was at that time detained in the AMC: Hagen at [4]-[5].

39․The offender’s older brother had previously been in a relationship with the victim. A purpose of the visit to the victim’s residence was apparently to retrieve some belongings of the offender’s older brother: Hagen at [6]. At the time of the offending, the victim was at home with her brother and another person: Hagen at [7].
40․The offender and his co-offenders arrived around 2.00am and knocked on the door. One of the persons in the dwelling opened the front door, whereupon the offender and his younger relative opened the screen door and demanded to know “[W]here’s my brother’s shit?”. The victim told them to get out. They did not: Hagen at [7].
41․Relevantly, the offender’s mother then entered the victim’s bedroom and put items into bags. Some of these items belonged to the victim, including personal documents and items from her wardrobe: Hagen at [8]. The offender’s mother then later agreed to return the items that did not belong to the offender’s older brother: Hagen at [8].
42․The offender pleaded guilty in Hagen. Kennett J observed that by doing so, “the offender has accepted liability for his own role in these events and for the acts of his co-offenders on the basis of joint commission.”: Hagen at [12].

Victim Impact Statement

43․Two Victim Impact Statements was tendered at the hearing.
44․The first statement is from Mr F and importantly I note the following is included:
[The year] 2023 is a blur to me. I don’t remember much of or have a detailed memory of the first half [of] 2023…
The first few months after the assault were very difficult as I did not know, at what level I would be able to function. Initially, I was unable to walk or talk properly, and any rational and complex thought processes were heavily impacted. Relatively simple tasks took an inordinate amount of time to work through and complete. Upon completing a task, the amount of extra energy it took to reach that point, left me extremely fatigued… The level of depression and anxiety I felt at times was crushing… I would get angry at simple things, and expressed my anger towards people who did not deserve in [any way] to be the end of such hate.
…
The time I lost, the impact and emotional toll that it had on my family can never be remediated. What I hate the most from what occurred is I hate that my family had to experience this.
…
The assault impacted all facets of my life… To this day I still get random bursts of intense pain in my head which feels like someone is pushing a knife through my brain. I am never certain how my words will sound when I speak. I have to focus and concentrate on my speech, which at times doesn’t come out the way I intend it to. This is an aspect I previously didn’t have any issues with.
At times I am also randomly reminded of the assault when I talk. Similarly, to the random pain I get in my head, I randomly feel like a drunk trying to walk and get a bit unsteady on my feet. Fortunately, over time this aspect has improved, albeit slowly.
45․The Court recognises the very serious effects of the offender’s crimes on Mr F. This is indeed serious criminal offending that has impacted Mr F’s life. Such impact on the victim cannot be said to be unexpected resulting from such serious criminal offending as this. The Court recognises the serious and profound impact of this offending.
46․The second VIS is from Mr K, and it includes the following:
In sharing this statement, I wish to bring to the court’s attention the financial burden [brought] upon my family … when having to replace all key locking devi[c]es attached to the keys that were removed from the premises on that morning…
House keys including security entry doors, entry/exit doors, garage doors, various padlocks, boat keys and locks and after various quotes over $1,700 … I had myself paid more than $980.00 from my personal account.
As for the vehicle, due to the car being burnt out the insurance company deemed the vehicle to be a total loss…
…
At this point, I owed a total $29,870 for the vehicle…
47․The Court recognises the significant effect, in particular financial, of the offender’s crimes on Mr K.
48․The Court further acknowledges the importance of what Mr F and Mr K have expressed in their statements. It is important that this Court receives evidence from both the victims.

Issues at the sentencing hearings

49․The prosecution’s submission was that a sentence of full-time imprisonment was warranted for all but the making off without payment count. Counsel for the offender acknowledged that full-time imprisonment is appropriate, at least for the offences on indictment. Additionally, counsel for the offender submitted that the length of time the offender spent in prison should ensure that rehabilitation can play a role in the sentencing exercise to avoid the offender being institutionalised.
50․The main area of contention between the parties initially, that is at the first and second hearing, was the offender’s mental health conditions and the application of the Verdins principles. The prosecution accepted (Tcpt, 22 May 2024, p 34(10)-(14)) that the offending, at least the assault offending in Civic (common assault (CC2023/608) and causing grievous bodily harm (SCCAN2023/446)), was informed by the offender’s background, including cognitive impairment and trauma. The prosecution initially cavilled with the diagnoses made in the psychological report of Mr Watt of 26 February 2024 (the Watt report) tendered on behalf of the offender, as well as Mr Watt’s supplementary report dated 30 April 2024 (supplementary Watt report). This led to the prosecution seeking an adjournment at the 28 February 2024 sentencing hearing (the February hearing). At the second hearing (22 May 2024, the May hearing) there was extensive cross examination of Mr Watt by the prosecution that was not able to be completed by the prosecution on that day.
51․I will discuss the diagnoses made by Mr Watt later in my reasons. It is convenient at this juncture to note that, in his first report, Mr Watt expressed the opinion that:
(a)The offender met the DSM-5 criteria for generalised anxiety disorder, moderate to severe, at the time of the report.
(b)At the time of the offending, the offending likely suffered from alcohol intoxication and an adjustment disorder, with a disturbance of emotions and conduct.
(c)The offender met the DSM-5 criteria for an underlying condition, being Post-Traumatic Stress Disorder (PTSD), complex, childhood-onset, moderate to severe, [redacted] related.
(d)The offender has probable developmental conditions, namely mild intellectual disability, specific learning disorder (with impairment in reading), ADHD (combined presentation, moderate), and a conduct disorder (adolescent-onset type with limited prosocial emotions, severe).

52․In the supplementary Watt report, on the basis of the offender’s self-report and psychometric testing Mr Watt was of the opinion that the offender likely has a significant mental health impairment and a significant cognitive impairment. Based on the background information supplied with the Watt report and the further assessment he conducted, Mr Watt was of the view that there was sufficient evidence to make the following diagnoses based on the DSM-5:
(a)Adjustment Disorder, with a disturbance of emotions and conduct.
(b)Generalised Anxiety Disorder.
(c)ADHD, combined presentation.
(d)Post-Traumatic Stress Disorder, with intrusions and avoidances from past trauma.
(e)Conduct disorder.
(f)Mild Intellectual Disability.

Timeline

53․As referred to earlier, it is noted that at the February 2024 hearing, counsel for the prosecution requested an adjournment to both consider the Watt report and to make arrangements for Mr Watt to be available for cross-examination. This application was not opposed by counsel for the offender, who accepted responsibility for the late provision of the Watt report.
54․Mr Watt then gave evidence at the sentence hearing in May 2024 (the May 2024 hearing). In essence, the main prosecution issue was that the diagnoses made by Mr Watt were “wanting”. While the prosecution clarified that the prosecution did not necessarily reject the diagnoses made by Mr Watt, the prosecution noted that the diagnoses needed to be further explored given the short amount of time spent by Mr Watt and the serious nature of the conditions. Counsel for the prosecution objected to the diagnoses made by Mr Watt being put forward untested. Ultimately, the prosecution’s position as at the May 2024 hearing was that it did not accept the diagnoses made by Mr Watt and the causal relationship of the diagnoses concerning the offending.
55․Again, as referred to earlier, the May 2024 hearing was adjourned with the evidence of Mr Watt not completed. The bulk of the prosecution cross-examination on that day was focused on whether the offender met the DSM criteria for Post-Traumatic Stress Disorder.
56․Later, in September 2024 the parties confirmed via email that a joint position had been reached in relation to the evidence of Mr Watt. Relevantly, the parties’ in my view, on the evidence, came to a sensible, pragmatic, and appropriate agreed position that:
(a)The offender has a mild intellectual disability, on balance for the purposes of sentencing, which to some extent contributed to or was “causative to some extent” of the offending. As a result, the offender’s moral culpability is lessened to some extent, separately and in addition to the offender’s deprived upbringing: see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy); R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins).
(b)The offender does not presently meet the DSM-5 diagnostic criteria for PTSD.

57․As a consequence of this agreed position, which in my view accords with the state of the evidence, the parts of the two reports by Mr Watt that discussed PTSD were no longer relied upon. Counsel for the offender did confirm that the other diagnoses mentioned in the supplementary Watt report were relied upon, and accepted that the factors were not of significant weight: see [200].

Objective seriousness

58․An assessment of the objective seriousness of an offence has always been an essential part of the sentencing process. As has previously been expressed, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] (Toumo’ua). It is not necessary for a judge to indicate where the offence falls in a scale of low, midrange, or high criminality; what is required is for a court 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 v The Queen [2011] HCA 39; 244 CLR 120 at [29] (Muldrock); see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
59․In my view, there was no significant dispute as between the two parties as to objective seriousness.

Causing Grievous Bodily Harm (SCCAN2023/446)

60․It is well established that the objective seriousness for this offence is to be determined by the culpability of the offender’s conduct and the seriousness of harm occasioned to the victim.
61․Regarding culpability, the prosecution correctly highlighted the following features:
(a)the offender delivered an “unanticipated, unprovoked and forceful punch” to the head that rendered Mr F unconscious.
(b)Mr F was attempting to render assistance to another and de-escalate a violent situation created by the offender when he was assaulted;
(c)The assault was impulsive and involved a single strike;
(d)The offender remained in the vicinity and continued to act aggressively towards the unconscious Mr F before absconding.

62․Concerning the seriousness of the harm, the prosecution noted that Mr F suffered two significant lacerations to his scalp, which will result in permanent scarring. The prosecution noted that Mr F also suffered mild traumatic head injury and loss of consciousness. The head injury also led to problems with Mr F’s motor skills, memory, acuity, and speech. The prosecution also referred to Mr F’s Victim Impact Statement as to the effect of the offending.
63․Counsel for offender submitted that the offence is “less objectively serious” than other offences of its kind when all of the factors are weighed, nevertheless counsel accepted that it did not fall to the “lower end” of the seriousness. The Court agrees that the offending does not fall in the lower end of objective seriousness.
64․Counsel for the offender correctly noted that injuries constituting “grievous bodily harm” exist on a spectrum from a missing front tooth, small, permanent scar, to severe brain damage or quadriplegia: see ST v The Queen [2022] NSWCCA 169 at [66]-[70]; Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [135] (Monfries); see also Crimes Act, Dictionary.
65․Counsel submitted that while there was a single strike to a vulnerable part of the body (the head), Mr F was facing the offender and was approaching him as opposed to, for example, looking the other way. It was submitted that the offending was also not premeditated or sophisticated, and the offender was “heightened and aggressive”, having been antagonised by another person (Mr G).
66․On the extent of the injury, counsel for the offender correctly noted that the following features are relevant:
(a)Mr F lost consciousness for between 45-90 seconds, which counsel submitted was indicative of a mild traumatic head injury.
(b)Mr F sustained two wounds to his scalp, one of which could not be sutured on the night of the offence.
(c)there was no skull fracture or surgery (aside from sutures), and Mr F was discharged from hospital within 10 hours.
(d)for two weeks after the assault, Mr F slurred and could not speak properly. He continues to need to concentrate on his speech, when he did not need to do so before.
(e)Mr F had memory issues for a time.

67․Ultimately, counsel for the offender submitted that the grievous bodily harm suffered by Mr F is relatively lower in the spectrum of “grievous bodily harm”. Such gradations and distinctions in the law are somewhat invidious concepts. Nevertheless, such distinctions are necessary in the law when there are regrettably examples of criminal injury that are even more severe examples on the spectrum of harm.
68․By way of comparison, the Court was referred to the facts of:
(a)R v Daniel (No 2) [2021] ACTSC 117 (Daniel (No 2)), where the victim was struck twice, required resuscitation, and spent three days in induced coma: see at [10], [21]-[25], [34]-[35] (Loukas-Karlsson J);
(b)R v Lacey [2020] ACTSC 241 (Lacey), where the victim suffered a hairline skull fracture and bleeding on the brain that required 25 days in hospital, and that the victim probably will live with a brain injury for the rest of his life: see at [10]-[13] (Elkaim J);
(c)R v Latu [2019] ACTSC 109, where the victim’s injury was “moderately severe” by reference to the spectrum comprising grievous bodily harm (although not in the “most serious category”), complex skull fractures that required 3 days in the hospital, with symptoms of concussion for 6 weeks: at [19], [29] (Murrell CJ); and
(d)R v Byrne [2015] ACTSC 113, where the victim suffered fractures in nasal bones, fracture to base of skull, and bleeding on the brain; the victim required intubation and ventilation, was unconscious for 8 days, and would have died without urgent medical attention: at [16]-[22] (Refshauge J).

69․In submissions, the prosecution noted that while the prosecution has highlighted different features of the offending, both parties are in the agreement that the harm suffered by Mr F would not “fall towards the more serious end of the spectrum of grievous bodily harm”. Further, counsel for the prosecution submitted that the offending would not fall at the lowest end of objective seriousness, but probably towards “lower to mid-range of objective seriousness’”.

Conclusion

70․I accept the identifying features highlighted by the prosecution and counsel for the offender as set out above. The submissions are not in conflict and accord with my view of the facts. The offending does not fall at the lowest end of objective seriousness nor does it fall at the higher end, as exemplified by the cases set out above.

Taking Motor Vehicle Without Consent (SCCAN2023/132)

71․The observations of Refshauge J in R v Roux (No 2) [2015] ACTSC 361 at [78] concerning objective seriousness have been quoted often in this context and are set out below:
Driving someone’s motor vehicle without their consent is also a serious offence. In a city such as Canberra which is very dependent on car transport, the taking of someone else’s motor vehicle which, if they have not purchased a home, may be their most expensive purchase, leads not only to deprivation of that significant property, but serious disruption to the life of the owner and possibly others.
72․The prosecution properly conceded that the offending appears to have involved limited planning and premeditation.
73․Counsel for the offender, referring to Hayne v Zheng [2023] ACTSC 326 at [91], submitted that, despite the offender driving the vehicle, the offending was an “unremarkable” example of this offence. Counsel referred to a number of factors, including:
(a)the duration of driving was only “hours”;
(b)there is no evidence on the nature of the driving;
(c)the damage and loss of vehicle is covered by the arson charge; and
(d)the offence committed using the vehicle was a relatively minor offence, and there were no false plates attached.

Conclusion

74․I accept the identifying features outlined by both the prosecution and the counsel for the offender. The submissions are not in conflict and together the submissions accord with my view of the facts and my view of the relevant identifying features.

Knowingly Concerned in Arson (CC2023/6563)

75․It is uncontroversial that the relevant factors in assessing the seriousness of arson offending include the extent of the damage, the offender’s foresight of the consequences, along with motive and degree of premeditation.
76․Counsel for the prosecution in written submissions noted that the property lost was a vehicle, which was submitted to be “a significant item of personal property, the loss of which is a substantial imposition on the victim”. It was properly conceded that the offending did not involve a great degree of planning or premeditation.
77․Counsel for the offender relied on the observations of Refshauge J in R v Wrigley [2015] ACTSC 114 concerning factors informing the objective seriousness of arson. Counsel for the offender ultimately submitted that the gravity of the offending is the damage and loss of the car. However, while conceding that the offence was serious, counsel for the offender submitted that the offending was an “unremarkable example of such offending” as:
(a)the fire was to a car, and not a residence. Mr K’s car was also burnt in open space and not where the fire might spread;
(b)there was no evidence that the fire posed any risk of injury to any person;
(c)while it was likely that the car was burned in the hope that the offender and others would not be held responsible for stealing it, counsel submitted that the facts do not establish this beyond a reasonable doubt; and
(d)the degree of premeditation appears to have been limited.

78․At hearing, counsel for the prosecution confirmed there was no dispute with the submissions of the offender as to identifying features and objective seriousness of this offending.

Conclusion

79․I accept the features identified by both the prosecution and counsel for the offender as set out above. The identifying features highlighted accord with my view of the facts concerning this charge.

Transfer Charges (CC2023/607, CC2023/608, CC2023/5586)

80․Counsel for the prosecution highlighted the following features regarding objective seriousness:
(a)the common assault (CC2023/608) was unprovoked, impulsive, and involved a single and forceful push.
(b)for the possessing of offensive weapon with intent charge (CC2023/607), the prosecution submitted that offending was impulsive and involved an improvised weapon. The weapon (shattered glass bottle) was submitted to be capable of inflicting severe injury, and the victim was unconscious when it was brandished.
(c)Counsel noted that the value of the unpaid amount for the gasoline was $148.97.

81․Counsel for the offender made the following submissions:
(a)the common assault was a push to Mr B.
(b)the possession of the offensive weapon is made more serious by the agitated state of the offender.
(c)the failure to pay is a minor offence.

Conclusion

82․I accept the features identified by both the prosecution and counsel for the offender as set out above. The submissions are not in conflict and accord with my view of the relevant identifying features.

Subjective circumstances

83․As will become abundantly clear, the Court received a great volume of documentary material concerning the offender’s subjective circumstances, including the pre-sentence report dated 15 February 2024 (the PSR), the two reports from Mr Watt, and a report of 25 September 2022 by Professor Douglas Boer (the Boer report).

Pre-Sentence Report

84․In evidence before me is a pre-sentence report prepared for the offender which includes the following in relation to the offender’s subjective circumstances. At the time of sentence, the offender is 22 years old.

Prior Contact with Corrections

85․The PSR noted that the offender’s compliance while under supervision has been mixed, with breach action recorded.
86․The PSR noted that the offender was remanded into custody in the AMC on 13 January 2023. During the current custodial period, the offender has been subject to disciplinary action on one occasion in March 2023. The author of PSR also noted that service records indicate the offender has demonstrated strong engagement with the AMC cultural team and cultural activities.

Family Background

87․The offender reported that he was born in Queensland and raised in the ACT. The offender advised that he has three siblings. The offender’s parents separated in 2008. Both parents identify as Aboriginal.
88․The offender’s reported a close relationship with his mother and siblings, but that his relationship with his father was strained.
89․[Paragraph redacted]
90․The offender reported that he is currently single and has no dependants. [Redacted]. [Redacted].

Socioeconomic Circumstances

91․Prior to his current incarceration, the offender reported that he had been living in a Justice Housing property for an approximately six weeks. The offender has expressed uncertainty as to where he will live if he is released into the community, although he has previously indicated that he may reside with a family friend upon release.
92․The offender obtained his Year 6 certificate. He was placed in the Learning Support Unit at an ACT high school but was unable to complete Year 7 due to absenteeism. [Redacted]. The offender also reported that he previously obtained his “white card” and asbestos awareness qualifications.
93․The offender is currently employed as a sweeper in the AMC. His most recent outside employment was in the construction sector, working for a demolition company. He expressed an interest in either continuing to work in construction or pursuing a trade in plumbing at the Canberra Institute of Technology. At the time he entered custody, the offender was unemployed.
94․The offender acknowledged that he has some friends involved in criminal activities, although he said he was attempting to minimise contact with them. He identified that poor use of recreational time can be a decisive factor in re-offending and expressed a desire to the author of the PSR to develop a routine to minimise these risks.

Alcohol and Drug Use

95․The offender claimed that he had not used illicit substances as a child. [Redacted].
96․The offender admitted that he had frequently consumed crystal meth from 2016 to 2021, which he attributed as contributing to his offences. Prior to his incarceration in the AMC, the offender noted that he both frequently used cannabis and consumed alcohol.
97․The offender stated to the author of the PSR that he would like to minimise his alcoholic intake upon his release, with a focus on working and saving money. The offender also expressed his belief that he no longer requires support for his use of alcohol and illicit substances, considering them “not a problem anymore”.

Physical and Mental Health Issues

98․The offender reported that he is in good general physical health, The offender disclosed a prior diagnosis for ADHD, and advised that he is not currently prescribed any medications. The ADHD diagnosis and lack of prescriptions was also recorded by a letter from Canberra Health Services received on 20 November 2023.
99․The PSR also refers the Boer report. The Boer report is referred by the PSR as noting the following:
(a)The offender does not meet the criteria for any other major mental health disorder other than ADHD. The ADHD was diagnosed when he was a child, and was treated for 3-4 years on the offender’s estimation.
(b)Intellectual functioning testing in 2014, 2017 and 2020 show the offender to be functioning “in the borderline intellectual functioning level using the appropriate intellectual functioning assessment tool for the [offender’s] age at the time”;
(c)a report from another practitioner opined that the offender’s test results in conjunction with results from an adaptive functioning test is indicative of the offender “having scores consistent with individuals with a mild intellectual disability”. However, “unfortunately the report stopped short” of both diagnosing the offender with such disability or ruling out such a diagnosis.

100․The Boer report itself was also tendered and relied upon by the offender. I will discuss this report further in the following section of my remarks.

Previous Pre-Sentence Report

101․Also before me is a PSR tendered before Kennett J in the proceedings in Hagen dated 21 September 2022.

Psychological and Other Reports

102․The offender also relied on the following reports:
(a)The Watt report and the supplementary Watt report.
(b)The Boer report,
(c)a psychological report by Ms Kate Spencer dated 19 June 2020 (the Spencer report).
(d)[redacted].

103․Mr Watt also gave evidence at the sentence hearing of May 2024 via AVL, prior to the parties reaching an agreed position in relation to the offender’s mild intellectual disability and asserted PTSD.

Watt Report: Subjective Circumstances

104․First, the Watt report provided further context as to the offender’s subjective circumstances. [Redacted]. [Redacted].
105․The offender reported that he “had” a close relationship with his mother. The offender stated that he identified as an Aboriginal person, with links to the Wiradjuri people or “mob”.
106․As for the offender’s education, the Watt Report noted that the offender had increasing difficulties with mainstream school, and that he was moved to a Learning Support Unit.
107․Regarding his employment at the AMC, the offender noted that he was “being productive” at the AMC on remand. Aside from the sweeper job noted in the PSR, the offender reported that he had applied to work in the kitchen. The offender reported that he “tried to do a good job and work well when he had tasks to do”, and also that he had completed training courses whilst at the AMC.
108․[Redacted]. [Redacted]. For his part, the offender characterised his upbringing as difficult, [redacted]. The offender opined that he did not have a father figure to mentor him, with his father being in and out of prison.

Watt report: Psychological Conditions and Formal Diagnoses

109․During the offender’s mental health examination, the offender reported that he had been “down” and generally anxious. The offender stated that he attempted to distract himself from over-thinking, although he had lost sleep over worry. The offender denied any suicidal or delusional thoughts, or that he was experiencing any auditory or visual hallucinations.
110․Referring to previous reports and the offender’s own statements, Mr Watt concluded that the offender was “likely experiencing a generalised anxiety condition”. In cross-examination, Mr Watt clarified that this conclusion was “current”, in the sense that the criteria was satisfied “not back when the offending occurred necessarily”.
111․Mr Watt also noted that the offender’s symptoms were found to satisfy the criteria for a “moderate to severe ADHD condition, with combined presentation of inattention and hyperactivity/impulsivity”.
112․Further, Mr Watt noted that five out of the ten factors considered by the personality screened were found to be “over the threshold”, namely “usually a loner”, “previously losing his temper easily”, “normally a worrier”, “generally perfectionistic”, and “having a history with deviant peers”.
113․Mr Watt discussed past psychometric results testing conducted on the offender, particularly testing the offender’s intellectual functioning. The latest of these tests appears to be one performed by Ms Spencer, detailed in the Spencer report, when the offender was 18 years and 2 months’ old. In cross-examination, Mr Watt noted that the past testing conducted by Ms Spencer in relation to the offender’s adaptive skills was conducted using the Adaptive Behaviour Assessment System, Second Edition (ABAS-2).
114․The offender was found to have an IQ within an “extremely low range” (below 70) when he was 12 years old, during his developmental period. Subsequent IQ assessments yielded higher results, although Mr Watt noted that the offender’s Full Scale Intelligent Quotient “would have been between the Mild Delay range and Borderline [r]ange”.
115․The offender’s adaptive functioning has been found to be “consistently low and compromised”. Mr Watt also referred to the DSM-5 manual, which noted the levels of severity for intellectual disability are defined based on adaptive functioning, as it is this measure that determines the required level of support.
116․The offender for his part confirmed that he had been diagnosed with ADHD, and that he took medication when he was a teenager. I note that this is consistent with what was discussed in the Boer report below at [131].
117․The Watt report also noted a previous diagnosis by a psychologist in 2017 of severe Conduct Disorder, with childhood onset and limited prosocial emotions.
118․Ultimately, Mr Watt was of the opinion that the offender meets the criteria for Mild Intellectual Disability. Overall, Mr Watt’s diagnosis was that the offender has satisfied the DSM-5 criterions (with ICD-10-CM Codes) for the following conditions:
(a)General Anxiety Disorder, moderate to severe. This condition was listed as a “current condition” by Mr Watt.
(b)Alcohol Intoxication and Adjustment Disorder, with a disturbance of emotions and conduct. Mr Watt noted that these are “likely conditions at the time of the offending”.
(c)Several probable development conditions, namely mild intellectual disability, specific learning disorder (with impairment in reading), ADHD (combined presentation, moderate), and Conduct Disorder (adolescent-onset type, with limited prosocial emotions, severe).

119․Mr Watt noted his view that that the offender’s reported current anxiety symptoms are related to the offender being imprisoned for the offences and to the current sentence proceedings. As for the offender’s adjustment disorder, Mr Watt opined that the offender likely developed the disorder over time due to the offender’s disadvantaged background, lack of prosocial skills, and negative peer influences.

Supplementary Watt report

120․As conceded by Mr Watt in his report, he had “limited access time” with the offender to complete his initial report. As such, Mr Watt recommended a further assessment of the offender at the end of his report.
121․Mr Watt provided a supplementary report regarding the offender’s psychological profile.
122․The results of a questionnaire were emailed back by AMC staff. Mr Watt concluded that the offender’s profile indicated the “likelihood of having symptoms of depression and anxiety, a somatic and avoidant condition, ADHD, with conduct problems”.
123․Further, Mr Watt also administered a Neuropsychiatric Unit Cognitive Test (NUCOG) on the offender on 11 April 2024 via AVL. The NUCOG tested five skills area, and Mr Watt noted that the offender scored poorly on all of them (all being two standard deviations from the normal group, and two areas being below three standard deviations). In oral evidence, Mr Watt noted his belief that this test has not been administered by previous psychologists and counsellors that have seen the offender. In his view, the reason why was that a different face-to-face test “would be the preferred test if you had the opportunity”. However, Mr Watt noted that the NUCOG test was “quite suitable” in terms of testing via AVL. The test also has the benefit of being short, as Mr Watt noted that a person is only allocated up to an hour on an AVL with the AMC.
124․Based on the testing, Mr Watt opined that the offender likely has a significant cognitive impairment.
125․Ultimately, Mr Watt concluded in his supplementary report that the offender has been found to have a “significant mental health impairment” based on his self-report, and a significant cognitive impairment based on his psychometric testing.
126․Based on his assessment and the background information supplied in his original report, Mr Watt concluded that there “was sufficient evidence to support the following diagnoses from DSM-5”:
(a)Adjustment Disorder, with a disturbance of emotions and conduct.
(b)Generalised Anxiety Disorder.
(c)ADHD, Combined Presentation.
(d)Conduct Disorder.
(e)Mild Intellectual Disability.

The Boer report

127․Also relied upon by the offender is the Boer report. The Boer report was prepared at the request of the offender’s solicitor prior to the sentence hearing in Hagen. The offender’s solicitor is also his solicitor in the current matter. Professor Boer conducted three interviews with the offender, as well as completed a Level of Service Inventory – Revised risk assessment on the offender.
128․Regarding the offender’s drug and alcohol use, Professor Boer noted that the offender reported no drug or alcohol use problem at the time of the report. Professor Boer reported that the offender begun using a “bit of ice” when he was 17 years old. The offender denied that he was addicted to methamphetamine or cannabis, and at the time of the Boer report the offender reported casual use of the substances and only having the “occasional” beer (10 beers per year). [Redacted]. [Redacted]. I note that the report by the offender of casual use of cannabis and “ice” appears inconsistent with his reports to Mr Watt that he had not used illicit drugs since he was 18 years old. The offender was 20 years old when he was interviewed by Professor Boer.
129․In a passage highlighted by the Watt report, Professor Boer expressed his opinion that the offender suffered experience disadvantage and deprivation, and the connection between such a disadvantage and the offending in Hagen. The relevant portion of Professor Boer’s conclusion read:
[The offender] has experienced disadvantage and deprivation due to [redacted], early exposure to drug abuse by his parents, apparent low socio-economic status, interrupted school attendance, and the criminal lifestyle of his father (and hence the latter’s absence from [the offender’s] life for extended periods of time). In my view, [the offender] has suffered a serious history of disadvantage which resulted in him being vulnerable to many of the cumulative effects of long-term exposure to violence (e.g., poor academic outcomes and learning difficulties, problems with aggression and emotional control, depression and poor mental well-being, and destructive behaviours), not the least of all was the adoption of a criminal lifestyle of which his current offending is ongoing evidence.
(emphasis added)
130․[Redacted].
131․Professor Boer opined that the offender at the time of the report did not meet any criteria for a major mental health diagnosis other than ADHD, which itself may be in partial remission:
In my opinion, [the offender] does not currently meet the criteria for a DSM-5 diagnosis of any major mental health disorder other than having had ADHD diagnosed as a child and medicated accordingly for 3 or 4 years by [the offender’s] estimation.
…
In sum, in my opinion, [the offender] did not appear to be suffering from a mental impairment/condition/ illness at the time of our interviews.
132․As submitted by counsel for the offender, Professor Boer did observe that the offender appeared to have some impairment in short-term memory, concentration, general memory, or intellectual functioning “commensurate with file information of having a possible intellectual disability”.
133․Relatedly, I note as well the note by Professor Boer that the results of intellectual functioning testing in 2014, 2017 and 2020 each time found the offender to be functioning “in the borderline intellectual functioning level” using the appropriate assessment tool for his age.

The Spencer report

134․Counsel for the offender also relied on the Spencer report of 2020. As noted in the Spencer report, the offender was referred by a case manager to assess the offender’s cognitive functioning. This was prompted was observations of the offender [redacted] that the offender had some cognitive difficulties. Ms Spencer noted that it was the thought that an assessment might assist in identifying the offender’s support needs and whether a referral to the NDIS would be appropriate. [Redacted].
135․The test conducted by Ms Spencer revealed that the offender’s FSIQ score was within the range of 69 to 78, with a composite score of 73. An ABAS-2 test also found impairments in the offender’s adaptive functioning, particularly concerning “Living”, “Health and Safety”, “Self-Direction Skills”, and “Social Skills”. Ms Spencer explained that the ABAS-2 was designed to evaluate whether an individual “displays various functional skills necessary for daily living without the assistance of others”. Ms Spencer also noted while the ABAS-2 has been superseded by ABAS-3, the latter was not available to Ms Spencer in time to be included in her report. As such, while the results of the ABAS-2 is indicative of the offender’s adaptive function, Ms Spencer noted that the results “should not be considered to form a full and complete assessment of his capacity”.
136․Mr Watt also noted the overall conclusion by Ms Spencer from the intellectual functioning test (WAIS-IV) and ABAS-II testing that the offender was a young man “who has functional compromise across many domains, particularly in terms of his executive functioning”. Ms Spencer observed that the offender’s scores in these tests are consistent with individuals with “mild intellectual disability”.

137․Counsel for the offender referred to the results of the testing undertaken by Ms Spencer. As noted above, Ms Spencer concluded that the offender obtained a Full-Scale IQ composite score of 73, with his true score likely between 69-78. Ms Spencer noted that this score indicated the offender at the time “functions within the borderline range (4^th percentile) when compared to adults of his age”.
138․The Spencer report also provided further evidence of the offender’s early drug use, namely that the offender was approximately 12 years old when he commenced smoking cannabis and there had been habitual use. The Spencer report ultimately referred to the conclusion by a psychologist, Ms Morris, by way of background that, at the time of the assessment:
[The offender’s] presentation, history, subsequent [course] and current symptoms are consistent with poor cognitive, emotional and adaptive function related to ongoing trauma and neglect, and suspected developmental disorders.
139․The depth of the disadvantaged background of this offender is clear on the basis of the reports summarised above and [redacted].

[Redacted]

140․[Paragraph redacted]

Remorse

141․A document from the offender dated 26 February 2024 directed to the Court was tendered as part of the defence bundle. It includes the following:
I am writing to express my deepest remorse for my actions and the harm that I have caused to the victims …
I understand my behaviour was unacceptable and that it has had a significant impact on their lives. I take full responsibility for my actions and am committed to making amends.
Everyday I think about the shame I feel when reflecting on my behaviour but also the shame I’ve experienced when I had to disclose to family and friends about that night….
Next month [I] turn 22 [years] old and as my Mum has always said to me “[the offender’s first name] you have your whole life ahead of you dahl, don’t be throwing it away in and out of jail because that’s such a waste of life”. When [I] look back and think of the past few years, I realise that [I] have made some bad choices and have made mistakes but [I] have also decided that I really want to change for the better. [I] know no one can do it for you, and have spent many a day planning how to make positive changes to my life.
…
Since being remanded this time, I have found myself to have matured a lot… I have surprised myself in all of the courses I’ve completed and have all the certificates to show for each one.
…
I completely understand how my actions have not only disappointed you but also the victims and my loved ones too.
I want nothing more than to turn my life around and relocating to QLD upon my release is what I wish to do.
142․The author of the PSR observed that the offender “claimed not to recall the events clearly as he had been heavily under the influence of alcohol and drugs at the time the offences were committed”. The offender stated that he accepted responsibility for his involvement, and it was “a dumb thing to do”.
143․During his mental state examination administered by Mr Watt, the offender stated to Mr Watt that he was remorseful for what happened on the night of the incidents and for his part in the offending. Later, the Watt report also noted that while the offender cannot recall much of the incident in Civic, it was “playing on his mind”. The offender expressed “regret and sadness that he had hurt someone due to his actions”. Ultimately, Mr Watt was of the view that the offender had “made admissions of regret and remorse for what happened” and has expressed a desire to engage in counselling and psychoeducation.
144․Counsel for the prosecution in oral submissions noted that there did not appear to be much insight on the part of the offender.
145․Nevertheless, at the hearing, counsel for the prosecution did accept that there was a “glimmer” of remorse revealed in the offender’s document to the Court and acknowledged that the PSR noted that the offender was remorseful. However, counsel maintained that these did not reveal “much of an insight” as to the impact of his offending. Counsel for the prosecution characterised the offender’s email and statements to Mr Watt and the author of the PSR as not necessarily revealing insight.
146․Ultimately, while counsel for the prosecution accepted that there was remorse, counsel for the prosecution submitted that insight on the part of the offender was not revealed.
147․I accept that there is some evidence of remorse before the Court; there is evidence of remorse without as yet a fully developed insight.

Conditional liberty

148․The current set of offences was committed when offender was serving a suspended sentence, and was at liberty subject to a good behaviour order.
149․In R v Tran [1999] NSWCCA 109 at [15], Wood CJ at CL referred to the betrayal of rehabilitation that is reflected in offending committed while on conditional liberty:
Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent[.]
(citations removed)
150․As the prosecution correctly noted in written submissions, the fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence.
151․I therefore take this into account as an aggravating factor on sentence. See also R v Bandy [2018] ACTSC 261 at [29]-[30].

References and Certificates

152․Two references were tendered in support of the offender.
153․First, a letter under the hand of a family friend dated 24 February 2024 is included in the offender’s tender bundle, and includes the following:
I have seen the positive changes [the offender] has made [in] an attempt to turn things around as [the offender] has seen the hurt he caused, positive changes are the courses he has completed when he has been held in remand.
I also know of the rehabilitation he has undergone for substance abuse and seen positive changes in his remorseful behaviour of late. [The offender] is aware of the impact his charges has had on the people involved and wants to turn his life around [,] saying he wants to start a new life in Queensland …
154․A further reference was tendered on the May 2024 hearing, from the hand of Mr Parenas. The letter includes the following:
I have known [the offender] since 2019 through a mutual friend. I believe that [the offender] has the potential to succeed in the workforce and contribute positively to society. I am committed to providing [the offender] with a supportive and inclusive work environment where he can learn, grow, and thrive.
I understand the importance of second chances and rehabilitation, and I am willing to give [the offender] the opportunity to demonstrate his skills and abilities through an apprenticeship…
… I am committed to working closely with [the offender] to ensure a smooth transition back into the workforce and provide him with the necessary support and guidance.
155․The author of the PSR noted that during his current period of incarceration the offender has demonstrated strong engagement with the educational programs, listing a number of certificates.
156․At the May 2024 hearing, an impressive list of certificates were tendered in support of the offender. Counsel for the offender noted that these were all obtained during his current period of incarceration:
(a)A statement of participation for the ACT Corrective Services’ Work Ready Program, running from October 2023 – December 2023.
(b)A certificate of completion for the Young Offender Reintegration Pilot Program, dated 14 December 2023.
(c)A certificate of completion for participating in an educational session on Hepatitis C, dated 17 May 2024.
(d)A statement of attainment for “Prepare and serve espresso coffee”, dated 21 February 2024.
(e)A certificate of achievement for completing ACT Corrective Services’ “Making My Way” program, dated 13 October 2023.
(f)A certificate of achievement for completing ACT Corrective Services’ “AOD Brief Intervention Program”, dated 7 December 2023.
(g)A certificate of achievement for completing ACT Corrective Services’ “Thrive” program, dated 10 November 2023.
(h)A certificate of achievement for completing the Worldview Foundation’s Breakthrough Training Modules. The PSR noted that this was completed on 14 December 2023.
(i)A certificate of completion from ACT Ambulance Services for completing 4 hours of training in relation to “HLTAID011 – Provide First Aid”, dated 14 December 2023.
(j)A certificate of completion for participating in safe work practices, dated 8 May 2023.
(k)A statement of attainment for completing a course “Prepare to work safely in the construction industry”, dated 9 February 2024.

(l)A statement of attainment for completing a course in Crystalline Silica Exposure Prevention, dated 1 February 2024.
(m)A statement of completion for a course in identifying and report asbestos containing materials, dated 21 June 2023.

157․It is important to the offender’s rehabilitation that he has made significant progress while in custody.
158․I take these references and certificates into account on sentence.

Criminal History

159․The offender has a significant criminal history, including prior convictions for:
(a)Joint commission of aggravated burglary and of assault occasioning actual bodily harm (sentenced by Kennett J in Hagen).
(b)Riding/ driving motor vehicle without consent.

160․The offender was sentenced by Magistrate Lawton for unauthorised possession or use of firearms (CC2023/6570) and possession of ammunition (CC2023/6696). Magistrate Lawton sentenced the offender to 4 months’ imprisonment from 11 January 2023 and concluding on 10 May 2023 for count CC2023/6570. Magistrate Lawton also fined the offender $1,000.00 for the possession of ammunition count.
161․[Redacted]. [Redacted]. [Redacted].

Pleas of guilty

162․The offender entered pleas of guilty at the time of his criminal case conference.
163․Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
164․Pursuant to section 35(2)(c) of the Sentencing Act, I note that the pleas were the subject of negotiations between the parties. In Blundell v The Queen [2019] ACTCA 34 at [12] (Blundell), the ACT Court of Appeal stated that the utilitarian value of pleas indicated at criminal case conferencing is such that “a discount in excess of 10%, and almost always within the range of 15 to 20%, is required”.
165․The Court of Appeal in Monfries at [44] noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW. However, the ACT statutory scheme does differ from that of NSW: see Toumo’uaat [50].
166․Counsel for offender submitted that the offender should be accorded a 20% discount in recognition of the timing of his plea. Counsel noted that had the matter proceeded to trial, the witness list contained 19 people who would have been called and a further 20 whose evidence might have been relevant. This points to the significant utilitarian value of the plea. Counsel for the offender noted that pleas at the stage of criminal case conference would normally attract a discount between 15-20%: Blundell at [8]-[14].
167․Further, in written submissions counsel for the offender also submitted that the prosecution’s case was not overwhelmingly strong so as to attract the operation of s 35(4) of the Sentencing Act.
168․In oral submissions, counsel for the prosecution properly accepted that a discount of 20% in light of the point of plea is appropriate.
169․Taking into account the relevant matters, in my view, a discount of approximately 20% is appropriate.

Time in custody

170․The offender has spent 1 year 6 months and 4 days in custody from 11 May 2023 to 14 November 2024 solely referable to these offences. The offender was a sentenced prisoner with respect to separate offences (count CC2023/6570 and CC2022/6696) from the period of 11 January 2023 to 10 May 2023. The offender was arrested for these offences on 11 January 2023.
171․It is appropriate for the sentence I now impose to be backdated to take into account the time in custody exclusively referrable to these offences and also the principles of totality that I discuss below at [242]-[249].

Comparable cases

172․It is important to emphasise, as the High Court stated in DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] (Kiefel CJ, Bell and Keane JJ) when taking into account comparable cases that the considerations that a sentencing judge must take into account are difficult to compare, based on different measures, and often inconsistent:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
173․With this qualification in mind (without entering into a legal philosophical debate concerning the concepts of incomparable versus incommensurable), the following cases from this jurisdiction may provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili v the Queen [2010] HCA 45; 242 CLR 520 at [53]-[54].
174․While acknowledging the “oft-cited limitations of comparable sentences”, counsel for the prosecution referred the Court to the following cases by way of a summary table:
(a)Daniel (No 2);
(b)R v Harmouche [2015] ACTSC 381;
(c)Lacey;
(d)R v Uluikadavu [2020] ACTSC 237;
(e)R v Wieland [2020] ACTSC 16; and
(f)R v Hodge [2019] ACTSC 15.

175․Attached as an annexure to this judgment is a summary of these cases. I take into account the comparable cases to the extent possible, considering the differences that perforce must exist in every individual case that comes before the Court as a matter of individualised sentencing which is at the core of sentencing law.

Application of Bugmy principles

176․Counsel for the offender submitted that the Bugmy principles are engaged for the offender. Counsel for the prosecution properly accepted that Bugmy principles applied to the offender. In my view, the evidence before me is clear in that regard.
177․In Bugmy, the High Court stated that the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because the moral culpability of an offender is likely to be less than the culpability of an offender whose formative years have not been marred in that way: at [40]. Further, the High Court held that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy at [42]-[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy at [44]. Social deprivation may impact on those purposes in different ways. The court in Bugmy explained at [44]:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
178․In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:
(a)the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(b)the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and
(c)the application of the Bugmy principles is not discretionary: Irwin at [3].

179․Relying on the various psychological reports and the PSR, counsel for the offender submitted that the offender’s upbringing was severely disadvantaged. Among other things, counsel for the offender noted that the offender was both [redacted] and drug use during his childhood. [Redacted]. Counsel for the offender also noted that the offender also begun using cannabis at 12 years old, and methylamphetamine at 16 years old.
180․In written submissions, counsel for the offender submitted that the offender’s moral culpability is lessened by the direct causal connection between his upbringing of severe disadvantage and the offending. Counsel submitted that the link is supplied by the offender’s exposure to violence from a young age, [redacted] , early exposure to drugs and alcohol, and the fact that both of his parents have been incarcerated.
181․Counsel for the offender referred to the following observations made in the Boer report:
… in my view there is a connection between [the offender]’s upbringing of disadvantage and his committing these and past offences…
In my view, [the offender] has suffered a serious history of disadvantage which resulted in him being vulnerable to many of the cumulative effects of long-term exposure to violence (e.g., poor academic outcomes and learning difficulties, problems with aggression and emotional control, depression and poor mental well-being, and destructive behaviours), not the least of all was the adoption of a criminal lifestyle of which his current offending is ongoing evidence.
182․[Paragraph redacted].
183․Relevantly, I note the observations of Rothman J in Jackson v The King [2023] NSWCCA 121 at [51] (Jackson) on the impact of childhood deprivation:
Apart from the effect of compromising a person’s capacity to mature and learn from experience, such deprivation normalises alcohol abuse, normalises violence as an appropriate reaction to events and normalises violence otherwise as an ordinary tool for the achievement of wants and desires. Such childhood deprivation may arise and, if it arose, would need to be given effect, whether or not there were psychological issues suffered by an offender either as a result or otherwise.
184․As noted above, counsel for the prosecution accepted that the Bugmy principles applied in relation to the offender. However, counsel for the prosecution properly submitted that there are countervailing considerations that pull in different directions. In particular, counsel for the prosecution highlighted considerations of protection of the community: see Bugmy at [44]-[45].

Application of the Verdins principles

185․In Verdins, the Victorian Court of Appeal identified six ways in which impaired mental functioning may be relevant for sentencing (at [32]):
Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentence in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

262․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and subjective matters of the offender. I also note the discussion and my conclusion at [256] concerning the necessary balance required between the non-parole period and parole period in this case.
263․As I stated in Harlovich v Sebbens [2024] ACTSC 153; 106 MVR 392 at [112]:
The synthesis of sentencing considerations is an avowedly difficult process. This is because sentencing often involves dealing with and weighing conflicting considerations: see R v Low [2022] ACTCA 59 at [50]. See also Veen (No 2), where Mason CJ, Brennan, Dawson and Toohey JJ emphasised that the guideposts that are the purposes of sentencing sometimes “point in different directions” at [476]:
However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
(emphasis added)

264․As a matter of totality, I will also backdate the sentences of imprisonment I impose to start on 11 April 2023. This takes into account the fact that the offender has been effectively on continuous imprisonment since 11 January 2023 given the sentence of Magistrate Lawton from 11 January 2023 to 10 May 2023.
265․The appropriate sentence for causing grievous bodily harm (SCCAN2023/446) is 3 years’ imprisonment, reduced to 2 years 4 months and 24 days on account of the plea of guilty. The sentence will commence on 11 April 2023 and expire on 3 September 2025.
266․The appropriate sentence for being knowingly concerned in an arson (CC2023/5653) is 2 years’ imprisonment, reduced to 1 year and 7 months on account of the plea of guilty. The sentence will commence on 4 June 2025 and expire on 3 January 2027.
267․The appropriate sentence for common assault (CC2023/608) is 7 months and 16 days’ imprisonment, reduced to 6 months on account of the plea of guilty. The sentence will commence on 4 December 2026 and expire on 3 June 2027.
268․The appropriate sentence for possessing an offensive weapon with intent (CC2023/607) is 6 months’ imprisonment, reduced to 4 months and 24 days on account of the plea of guilty. The sentence will commence on 4 April 2027 and expire on 27 August 2027.
269․The appropriate sentence for taking a motor vehicle without consent (SCCAN2023/132) is 6 months’ imprisonment, reduced to 4 months and 24 days on account of the plea of guilty. The sentence will commence on 28 June 2027 and expire 20 November 2027.
270․The appropriate sentence for joint commission of making off without payment (CC2023/5586) is a fine of $300.00, with no time to pay.
271․In relation to the breach offence. I am satisfied that the offender has breached his good behaviour obligations by committing and pleading guilty to fresh offences punishable by imprisonment. I accordingly cancel the good behaviour order imposed by Kennett J in Hagen.
272․I propose to deal with the offender’s breach by way of re-sentence, rather than imposing the balance of the suspended period. As I noted in R v Collier (No 2) [2021] ACTSC 177 at [61], there is a recognition in the authorities that justice may require a different response than imposing the balance of a suspended sentence: PM (No 2) at [20]; Goolagong at [148].
273․The appropriate resentence for aggravated burglary (CC2021/8159) is 7 months imprisonment. This sentence will commence on 21 October 2027 and expire on 20 May 2028.
274․The total aggregate sentence of imprisonment for the current set of offences and the breach offence is therefore a term of 5 years, 1 months and 10 days, commencing on 11 April 2023 and expiring on 20 May 2028.
275․In relation to the sentences of imprisonment imposed for the current set of offences and the breach offending, I impose a non-parole period of 2 years 8 months and 13 days. This period will commence on 11 April 2023 and expire on 23 December 2025. This non-parole period is structured in a way that takes into account the time already served in relation to the sentence imposed by Magistrate Lawton. That is, the offender’s non-parole period will be 52.8% of the term of imprisonment I now impose, but 55% percent of the overall period of imprisonment if the sentence imposed by Magistrate Lawton is also taken into account as a matter of totality.

Orders

276․Accordingly, I make the following orders:
(1)In relation to the current set of offences:
(c)For the offence of causing grievous bodily harm (SCCAN2023/446), the offender is convicted and sentenced to 2 years, 4 months and 24 days’ imprisonment commencing on 11 April 2023 and expiring on 3 September 2025.
(d)For the offence of being knowingly concerned in an arson (CC2023/5653), the offender is convicted and sentenced to 1 year and 7 months’ imprisonment commencing on 4 June 2025 and expiring on 3 January 2027.
(e)For the offence of common assault (CC2023/608), the offender is convicted and sentenced to 6 months’ imprisonment commencing on 4 December 2026 and expiring on 3 June 2027.
(f)For the offence of possessing an offensive weapon with intent (CC2023/607), the offender is convicted and sentenced to 4 months and 24 days’ imprisonment commencing on 4 April 2027 and expiring on 27 August 2027.
(g)For the offence of taking a motor vehicle without consent (SCCAN2023/132), the offender is convicted and sentenced to 4 months and 24 days’ imprisonment commencing on 28 June 2027 and expiring on 20 November 2027.
(h)For the offence of joint commission of making off without payment (CC2023/5586), the offender is convicted and a fine of $300.00 with no time to pay is imposed.

(2)In relation to the breach offending:

(i)The good behaviour order imposed by Justice Kennett on 11 October 2022 is cancelled.
(j)For the offence of aggravated burglary by joint commission (CC2021/8159), the offender is resentenced to 7 months’ imprisonment commencing on 21 October 2027 and expiring on 20 May 2028.

(3)In relation to sentences of imprisonment imposed for the current set of offences and the breach offending, I impose a non-parole period of 2 years 8 months and 13 days, commencing on 11 April 2023 and expiring on 23 December 2025.
(4)Leave is granted for the prosecution to withdraw count CC2023/606 – assault occasioning actual bodily harm.

I certify that the preceding two-hundred and seventy-six [276] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.

Associate:

Date: 26 November 2024

ANNEXURE: CASES REFERRED TO BY COUNSEL

Summary of Comparable Cases

Causing Grievous Bodily Harm

R v Daniel (No 2) [2021] ACTSC 117

1․The first case referred to by the prosecution is R v Daniel (No 2) [2021] ACTSC 117 (Daniel (No 2)). The offender was found guilty after a judge-alone trial of causing grievous bodily harm: Daniel (No 2) at [1]. I was the judge in the matter. As noted by the prosecution, tension between the victim and the offender in Daniel had begun earlier in the night of the offending, when the victim and his group wished to use the pool table being used by the offender and his friends: Daniel (No 2) at [5]. Both parties were otherwise unknown to each other: Daniel (No 2) at [4].
2․The victim’s group ultimately begun playing pool in the table adjacent to the offender’s group: Daniel (No 2) at [5]. The offender and the victim’s girlfriend routinely were in the way of the other when attempting to take a shot: Daniel (No 2) at [5]. Eventually this escalated to the two groups having a verbal altercation: Daniel (No 2) at [5]. The incident culminated in the offender grabbing the victim by the shirt and punching him in the face and then to his throat area: Daniel (No 2) at [5]-[6]. The victim immediately fell backwards to the ground unconscious: Daniel (No 2) at [6]. The victim suffered life threatening injuries and required active resuscitation: Daniel (No 2) at [10]. The victim was hospitalised for 75 days, including 7 days in the Intensive Care Unit: Daniel (No 2) at [10].
3․A salient feature of Daniel (No 2) is the fact that the offender had offered to plead guilty to causing grievous bodily harm in full satisfaction of the indictment: Daniel (No 2) at [70]. The offender had pleaded not guilty to a charge of recklessly inflicting grievous bodily harm, and would have pleaded guilty to causing grievous bodily harm were the charge included in the indictment: Daniel (No 2) at [1], [72]. The prosecution also accepted that the conduct of the offender’s defence was consistent with his admission and his earlier offer to plead guilty to the alternative charge of causing grievously bodily harm: see Daniel (No 2) at [73]. As such, while the offender did not receive any discount due to his plea of guilty, I formed the view that a discount of “approximately 20%” was appropriate under s 35A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act): Daniel (No 2) at [79]-[80], [85], [88].
4․As noted by the prosecution, I found the objective seriousness of the offence to be “at the upper level”: Daniel (No 2) at [37]. I observed that a punch to the face is obviously dangerous act, and this combined with the severe brain injury suffered by the victim leads inexorably to my conclusion as to objective seriousness: Daniel (No 2) at [37].
5․As for subjective circumstances, the offender was 26 years old with no criminal history: Daniel (No 2) at [53], [58]. I accepted that the offender has expressed remorse and was remorseful in relation to the offence: Daniel (No 2) at [65]. Unlike in this case, I also note that there was no express discussion on whether the Bugmy or Verdins principles were engaged.
6․I convicted and sentenced the offender to 3 years and 6 months’ imprisonment, to be served by way of an ICO. In addition to the core conditions, I also imposed further conditions that the offender is to undertake 500 community service within 30 months of the day of sentence, and that he engage in programs as required by ACT Corrective Services to address his criminogenic needs: Daniel (No 2) at [129].

R v Harmouche [2015] ACTSC 381 (Harmouche)

1․In Harmouche, the offender pleaded guilty to one count of causing grievous bodily harm: The offender was acquitted by Burns J of another count, namely recklessly inflicting grievous bodily harm: Harmouche at [1].
2․As noted by the prosecution in its summary table, the offender in Harmouche punched the victim once to his head on the dance floor of a nightclub: Harmouche at [3]. The victim fell backwards to the ground, hitting his head on the stage on his way down: Harmouche at [3]. Ultimately, the victim suffered severe traumatic brain injury as a result: Harmouche at [3]. The victim described being extremely disadvantaged as a result of the offending as the victim has been unable to continue his studies in Australia or Saudi Arabia: Harmouche at [5]. The victim suffers from memory loss, and difficulty remembering places and recent events: Harmouche at [5].
3․A medical report noted that the victim lapsed into a coma for about one-and-a-half months and remained in hospital for 4 months upon gaining consciousness. Among other injuries, the victim was diagnosed with an organic mental disorder with post-traumatic personality change and mild cognitive dysfunctions. The victim’s cognitive functions were also mildly impaired for short-term memory and occasional states of poor concentration: Harmouche at [7].
4․As noted by the prosecution, Burns J took into account the harm suffered by the victim in assessing objective seriousness. Burns J noted the victim suffered severe injuries, “which no doubt have had, and will continue to have, a profound impact on his life”: Harmouche at [19]. Burns J noted that the injuries could not be said to fall within “the worst category of injuries that constitute grievously bodily harm”, and assessed them as being in the “upper range of such injuries” but not amongst the worst: Harmouche at [19].
5․As for the offender’s subjective circumstances, Burns J noted that the offender was 25 years old at the time of sentence and had no prior criminal history: Harmouche at [11], [16]. Burns J also accepted that, at least by the time of the sentence hearing, the offender was remorseful for his actions: Harmouche at [21]. Burns J also noted that the offender apologised and displayed some victim empathy: Harmouche at [14]. The offender was assessed as having low risk of general reoffending, although the author of the PSR noted that the offender would benefit from participating in alcohol and anger management counselling: Harmouche at [14]. There appears to be no submissions made on the application of Bugmy or Verdins in the case: see Harmouche at [11].
6․Burns J considered the offender’s plea of guilty to be an early plea, and reduced the offender’s sentence by 25%: Harmouche at [22]. The offender was ultimately sentenced to 15 months’ imprisonment, with the first six months of which to be served by way of periodic detention: Harmouche at [27], [29]. The remainder of the sentence was to be suspended subject to a good behaviour order for a period of 2 years: Harmouche at [27], [29].

R v Lacey [2020] ACTSC 241 (Lacey)

1․The offender in Lacey pleaded guilty to one count of causing grievous bodily harm: Lacey at [1]. The offender was out and about in Civic celebrating Halloween: Lacey at [4]. The victim had asked the offender’s group for a light for his cigarette: Lacey at [5]-[6]. One of the persons in the offender’s group teased the victim by holding the lighter close to his skin: Lacey at [6]. The victim pushed the lighter away, and the person holding the lighter slapped the victim in the face: Lacey at [6]. The offender pushed the victim from the back, and then followed the victim and punched him in the jaw: Lacey at [6]. The victim lost consciousness and fell to the ground: Lacey at [6].
2․Elkaim J noted that the victim suffered various injuries, including a moderate to severe traumatic brain injury, a left epidural haematoma, and a right-sided temporo-occipital scalp haematoma: Lacey at [11]. The victim was treated at Canberra Hospital for 25 days, followed by an extensive period of rehabilitation. Initially, the victim could not drive, live independently, or work upon being discharged from rehabilitation: Lacey at [12]. Elkaim J noted that the victim now lives with an acquired brain injury, the effects of which “will probably stay with him for the rest of his life”: Lacey at [13].
3․Adopting the approach taken by Murrell CJ in R v Myles [2017] ACTSC 194 (at [13]), Elkaim J assessed the objective seriousness of the offence as “above medium for offences of this type”: Lacey at [9].
4․As for the offender’s subjective circumstances, Elkaim J noted that the offender was 32 years old with previous convictions of assault occasioning actual bodily harm and common assault: Lacey at [17]-[19], [27]. Indeed, the offender was on a good behaviour order imposed for the former offence when he committed the further offending: Lacey at [17]. Elkaim J noted that the offender was also a binge drinker and a cocaine user: Lacey at [23]. The offender had apparently stopped drinking alcohol after the offence, but it was unclear if his use of cocaine had stopped: Lacey at [23]. There was express discussion on the application Bugmy or Verdins, although Elkaim J noted that the offender was taking treatment for anxiety and had previously grappled with suicidal ideations (with an attempt in 2018): Lacey at [24].
5․On the other hand, the offender had also expressed remorse: see Lacey at [25]-[26]. The offender was assessed as having low to medium risk of general reoffending: Lacey at [25], [28], see also at [26]. The offender was also assessed as eligible for an ICO. I note that in this case there were some apparent reluctance on the part of Elkaim J to order an ICOAR: Lacey at [3], but an imposition of an ICO was ultimately not objected to by the prosecution in this case (provided an additional community service component was included): Lacey at [3], [32].
6․For his guilty plea, Elkaim J discounted the offender’s sentence by 25%: Lacey at [2]. Elkaim J imposed a sentence of 27 months’ imprisonment, to be served by way of an ICO: Lacey at [35](a)-(b). Elkaim J did not take further action on the offender’s breach of good behaviour order: Lacey at [35](d). Elkaim J also additionally imposed a community service condition to the ICO, requiring the offender to complete 240 hours of community service work within 12 months from the date of sentence: Lacey at [35](c). For completeness, I note that the deadline for completing the community service hours was extended by Mossop J in R v Lacey (No 2) [2021] ACTSC 269: see at [7].

R v Uluikadavu [2020] ACTSC 237 (Uluikadavu)

1․In Uluikadavu, the offender pleaded guilty to causing grievous bodily harm. The victim and two friends were at a bar in Civic at 1am in February 2019: Uluikadavu at [6]. The offender approached one of the victim’s friends and suggested they go outside: Uluikadavu at [7]. The offender placed an arm around the victim’s friend and accused him of touching the offender’s partner: Uluikadavu at [9]. The victim’s friend refuted the allegation, and an argument ensued for about 40 seconds: Uluikadavu at [10]. The victim was standing behind his friend, and at one point removed the offender’s hand from the back of the victim’s friend neck: Uluikadavu at [10]. This first incident was only defused after the offender’s partner placed herself between the victim’s friend and the offender, pushing the latter away: Uluikadavu at [11].
2․The offender eventually approached the victim’s friend for a second time. The victim gestured to the security guard, who attempted to de-escalate the situation. The offender tried to push the victim’s friend, and the victim pulled the offender away. The offender then started punching the victim, and the victim’s friend hit the offender twice in the head: see Uluikadavu at [13]-[16].
3․Both the victim and the offender were eventually escorted outside the premises. The victim left but then quickly returned to the rear exit looking for his friends: Uluikadavu at [18]. Once at the rear exit, the offender and an unknown male swifty approached the victim: Uluikadavu at [19]. The victim extended his hand in a handshake gesture saying words to the effect of, “Hey, look, I don’t want to fight.”: Uluikadavu at [19]. The offender walked up to the victim, who used his hand in a stop gesture. The offender then pushed victim with both hands. The offender then struck the victim in the head, which caused the victim to fall onto the hard tiles near the rear exist of the venue: Uluikadavu at [20].
4․The victim was unconscious for a time and was woken up by his friend: Uluikadavu at [23],[25]. The victim was taken to the Canberra Hospital and was identified as suffering a number of injuries. The victim underwent “open reductions and internal fixations of his right clavicle and right mandible” the day after the offending, and he was discharged from the hospital the next day: Uluikadavu at [26]. While there was no evidence of ongoing physical disability, the victim lost a tooth. Murrell CJ also inferred that the victim suffered psychological injury, at least temporarily: Uluikadavu at [29]-[30].

5․Murrell CJ assessed the offending as of “significant objective seriousness”: Uluikadavu at [33]. Murrell CJ took into account the aggressive course of conduct of the offender, and his ignoring the victim’s refusal to engage in further dispute. Murrell CJ also took into account that the offender struck the victim in the head, a vulnerable part of the body, which is likely to cause significant injury especially if the victim is standing on a hard surface: see Uluikadavu at [31]-[32]. However, while Murrell CJ noted that the bodily harm suffered by the victim was substantial, it was not at “the upper end of the range” of grievous bodily harm: Uluikadavu at [34].
6․As for the offender’s subjective circumstances, the offender was 23 at the time of the sentence with no prior criminal record: Uluikadavu at [35]-[36]. The offender also has a history of binge drinking: Uluikadavu at [43]. While the offender gone through poverty and witnessed violence a child growing up in Fiji, there appears to be no submission as to the application of Bugmy: Uluikadavu at [37]. The offender has also sought mental health support to discuss emotions and how to handle stressful situations: Uluikadavu at [47]-[48].
7․Murrell CJ also noted that the offender has displayed remorse and insight to his offence and accepted full responsibility for the offence: Uluikadavu at [46]. The offender also has repeatedly expressed his desire to apologise to the victim and his family: Uluikadavu at [46]. Murrell CJ accepted that that the offence was “completely out of character” for the offender, and given the insight he gained it is “very unlikely” that the offender will commit further offences: Uluikadavu at [54], see also [49].
8․Murrell CJ noted that offender’s plea was made “very shortly” before the offender’s scheduled trial date and that the prosecution’s case was “quite strong”. As such, her Honour only applied a discount of 15%: Uluikadavu at [3]-[4]. Murrell CJ ultimately sentenced the offender to 13 months’ imprisonment, to be served by way of an ICO: Uluikadavu at [68]-[69]. The offender was also required to undertake 100 hours of community service work within 12 months: Uluikadavu at [69]-[70].

Taking motor vehicle without consent and arson

R v Wieland [2020] ACTSC 16 (Wieland)

1․The offender in Wieland pleaded guilty to one count of taking motor vehicle without consent and one count of arson. Relevantly, on 3 June 2018, the offender met the victim, whom the offender came to know of through a dating website: Wieland at [4]. The victim picked the offender up in his car and they went back to a hotel. The victim fell asleep, and he awoke early in the morning to discover that the offender had left and taken his car: Wieland at [4]. A few days later, a house was set alight in in Mawson. The house belonged to Housing ACT, and police enquiries revealed that the premises had been occupied by the offender. The offender removed her clothes, placing them in the victim’s car, and drove away in the car after setting fire to the premises: Wieland at [5].
2․Elkaim J noted that the taking motor vehicle without consent offence was “opportunistic” and is “clearly of a less serious nature” than the arson offending: Wieland at [15]. Separately, Elkaim J observed that “arson is always an objectively serious offence”, and noted that the accommodation was public housing: Wieland at [13].
3․As for the offender’s subjective circumstances, Elkaim J noted that the offender was 34 years old at the time of sentence: Wieland at [7]. The offender was also assessed by the author of the PSR as having “medium to high risk of general reoffending” and unsuitable for an ICO as the offender did not have a residential address: Wieland at [11]. The offender had an abusive upbringing, including exposure to illicit drugs and sexual abuse. The offender also had a history of significant problems with alcohol and a history of substance abuse, including cannabis, heroin, and methamphetamine: Wieland at [7], [9]. Elkaim J noted that the offender blamed alcohol, alongside drugs, for the offending: Wieland at [9]. The offender also has mental health issues, including a diagnosis of bipolar disorder. The offender also attempted suicide when held in remand: Wieland at [11].
4․Elkaim J considered the offender’s plea to be made at “relatively early stage”, which entitled the offender to a discount of 20% in light of the strength of the prosecution’s case: Wieland at [2]. The offender was ultimately sentenced to 6 months’ imprisonment for the offence of taking motor vehicle without consent, commencing 24 August 2019 and ending on 23 February 2020. The offender was also sentenced to 2 years’ imprisonment, commencing on 24 December 2019 and ending on 23 December 2021 for the arson offending: Wieland at [23](a)-(b). The total period of imprisonment was therefore 2 years and 4 months, with the balance of the sentence suspended immediately upon the offender entering into a good behaviour order for a period of 2 years and to follow a treatment plan: Wieland at [23](c)-(d).

R v Hodge [2019] ACTSC 15 (Hodge)

1․Finally, the offender in Hodge pleaded guilty to two counts of taking motor vehicle without consent (involving two different vehicles), one count of arson, and two counts of failing to stop when required to do so by police: Hodge at [1](a)-(e).
2․The offender was at the residence of an acquaintance who had keys to her Lancer vehicle in her handbag. When the acquaintance left the room, the offender took the keys and drove off with the vehicle: Hodge at [5]. Ten days later, the offender was at the residence of another acquaintance. Without permission, the offender took the keys to a Holden vehicle belonging to one of his acquaintances and drove away with the vehicle: Hodge at [6]. At 2:40 am the following day, the offender and an unknown woman poured petrol from a fuel cannister on the Lancer. The offender then used a lighter to ignite a petrol trial leading to the vehicle, causing the vehicle to explode and be completely destroyed: Hodge at [8].
3․Murrell CJ assessed the offence of arson as of “substantial objective seriousness”, taking into account the considerations identified by Refshauge J in R v Wrigley [2015] ACTSC 114: Hodge at [11], [16]. Murrell CJ also noted that it was an important consideration that the incident occurred in a primarily residential area at 2.40am: Hodge at [15]. Murrell CJ noted that, as the property was a vehicle, it would likely be of “only modest value compared, for example, to a substantial building”: Hodge at [12]. Murrell CJ observed that while the offender claimed to the police that he was motivated by revenge, this explanation was “bizarre”. Her Honour also took into account the fact that the offence was committed in company: Hodge at [13]-[14].
4․As for the two taking and driving motor vehicle without consent offences, Murrell CJ noted that they were of “moderate objective seriousness” and were “unplanned and opportunistic”: Hodge at [17]. Murrell CJ did note that it was “distasteful” that the offender took vehicles from people who were his acquaintances and presumably considered themselves to be the offender’s friends: Hodge at [17].
5․As for the offender’s subjective circumstances, the offender was a 30-year-old man with an “unenviable” criminal history including aggravated robbery and burglary: Hodge at [20]-[21]. The offender also had a substantial history of drug use and was assessed as having a high risk of general reoffending: Hodge at [38]-[42], [47]. The offender’s childhood was also marred by exposure to alcohol and other substance abuse, domestic violence, and physical or mental abuse: Hodge at [34]. The offender was also subject of a serious assault in 2009, an incident that Murrell CJ observed “has had a dramatic impact on his life”: Hodge at [35]. The offender also had been diagnosed with a number of mental health disorders: Hodge at [44]. At the time of the offending in October 2018, Murrell CJ noted that the offender was out on parole (although a warrant was already issued for his arrest): Hodge at [28]-[30].
6․In light of the timing of the plea, Murrell CJ applied an approximately 25% discount on the sentences that would otherwise been imposed, noting that the high utilitarian value of the pleas should nevertheless apply over considerations of the strength of the prosecution’s case in relation to the 4 out of the 5 counts: Hodge at [3]. The combined discount afforded for the offender’s plea of guilty and assistance to authorities by admitting to driving the stolen Holden was 35%: Hodge at [10].
7․Murrell CJ sentenced the offender to a total of 2 years’ imprisonment: Hodge at [53]. For the two counts of taking motor vehicle without consent, the offender was sentenced to 6 months’ imprisonment, reduced to 4 months and 2 weeks (with partial concurrency of approximately two months between the sentences): Hodge at [52](a)-(b). The offender was sentenced to 18 months’ imprisonment for the arson offending: Hodge at [52](d). Murrell CJ also fixed a non-parole period of 1 year: Hodge at [54].