Director of Public Prosecutions v Higgins (No 3)
[2025] ACTSC 309
•24 July 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Higgins (No 3) |
Citation: | [2025] ACTSC 309 |
Hearing Date: | 20 December 2023, 10 December 2024, 18 July 2025 |
Decision Date: | 24 July 2025 |
Before: | Loukas-Karlsson J |
Decision: | See [366] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – various series of serious offending – breach of good behaviour orders – suspended sentences – attempts to rehabilitate – drug rehabilitation during bail – complex sentencing exercise – significant social deprivation – Bugmy factors enlivened – remorse –– extensive period of pre-sentence custody – risk of institutionalisation |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 26, 35A(1), 160 Crimes (Sentence Administration) Act 2005 (ACT) ss 108, 110(4) Crimes (Sentencing) Act 2005 (ACT) ss 17, 33(1), 35, 64, 65, 72, 97, 133C, 133D, 133G Criminal Code 2002 (ACT) ss 44, 45A, 48, 318(2), 361(1), 403 Human Rights Act (2004) (ACT) s 22 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 19(1), 26(1), 33. Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (General) Act 1999 (ACT) s 63 Road Transport (Road Rules) Regulation 2017 r 287 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 5C, 7A, 19(1) |
Cases Cited: | BP v The Queen [2010] NSWCCA 159; 201 A Crim R 379 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79 Cranfield v The Queen [2018] ACTCA 3 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 DPP v CR (a pseudonym) [2023] ACTSC 293 DPP v Higgins [2023] ACTSC 314 GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Guy v Anderson [2013] ACTSC 5 Gyory v The Queen [2012] ACTCA 28 Hall v The Queen; Barker v The Queen [2017] ACTCA 16 Hogarth v The Queen [2012] VSCA 302; 37 VR 658 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Hili v the Queen [2010] HCA 45; 242 CLR 520 Kelly v Ashby [2015] ACTSC 346 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 Lowe v The Queen [1984] HCA 46; 154 CLR 606; Markarian v The Queen [2005] HCA 25; 228 CLR 357 Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 Millard v The Queen [2020] ACTCA 20 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O’Brien v The Queen [2015] ACTCA 47 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Petterson v The Queen [2013] NSWCCA 133 Postiglione v The Queen (1997) 189 CLR 295 R v Andy [2022] ACTSC 54 R v Bandy [2018] ACTSC 261 R v Beniamini (No 2) [2017] ACTSC 32 R v BI (No 4) [2017] ACTSC 71 R v BM (Unreported, Supreme Court of the ACT, 29 October 2012, Refshauge J) R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Curtis (No 2) [2016] ACTSC 34 R v Davis [2021] ACTSC 335 R v Eyles (No 3) [2017] ACTSC 1 R v Falls [2004] NSWCCA 335 R v Fusimalohi [2015] ACTSC 220 R v Goolagong (No 2) [2021] ACTSC 131 R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 R v Hagen [2022] ACTSC 362 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hill [2016] ACTSC 310 R v Hoschke [2001] NSWCCA 317 R v Irwin [2019] NSWCCA 133 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lindley-Jones [2014] ACTSC 296 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v McConnell-Imbriotis [2024] ACTSC 319 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Minnis [2014] ACTSC 268 R v Ogilvie (No 2) [2016] ACTSC 265 R v Pham [2015] HCA 39; 256 CLR 550 R v PM (No 2) [2015] ACTSC 358 R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 R v Rosewarne [2021] ACTSC 216 R v Salcedo: R v Stretton (No 3) [2018] ACTSC 305 R v Taouk (1993) 65 A Crim R 387 R v TL [2017] ACTCA 18 R v Tran [1999] NSWCCA 109 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Wright [2009] NSWCCA 3 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Re Application by Attorney General (No 3 of 2022) [2004] NSWCCA 303; 61 NSWLR 305 Saga v Reid and Collett [2010] ACTSC 59 Scott v Wynants [2009] ACTSC 62; 4 ACTLR 13 Smith v The Queen [2011] NSWCCA 163 Stanford v The Queen [2007] NSWCCA 73 Taylor v Bowden [2009] ACTSC 13 Taylor v The Queen [2014] ACTCA 9 Thompson v The Queen [2018] ACTCA 2 Veen v The Queen (No 2) (1988) 164 CLR 465 Zdravkovic v Queen [2016] ACTCA 53 |
Parties: | Director of Public Prosecutions J Higgins ( Offender) |
Representation: | Counsel M Dyason ( DPP) T Jackson ( Offender) |
| Solicitors ACT Director of Public Prosecutions Bevan & Co Lawyers and Conveyancers ( Offender) | |
File Numbers: | SCC 23 of 2023 SCC 24 of 2023 SCC 25 of 2023 SCC 209 of 2023 |
LOUKAS-KARLSSON J:
Introduction
1․Mr Jaiden Higgins (the offender) is before me to be sentenced for a significant number of offences. The progress of the offender’s matters to this final point of sentencing has taken some extended time for two main reasons. First, the charges proceeded at different stages and at different times through the court system. Second, there were a number of attempts at drug rehabilitation on the part of the offender in the interim through 2024.[1] Additionally, as a result of both these factors, the sentencing of this offender is not without some significant complexity.
[1] Regrettably in 2025 I have of necessity undertaken medical leave for significant medical treatment.
2․In this judgment, I will refer to the series of offences in accordance with the month of commission by the offender. This is for clarity and is consistent with the approach adopted by counsel. The various series of offences are as follows.
3․On 2 February 2023, the offender pleaded guilty to the following offences committed in June 2021 (June 2021 offending)[2]:
[2] File Number: SCC 23 of 2023.
(a)Riding a motor vehicle without consent (CC2022/2682), contrary to s 318(2) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 5 years’ imprisonment, 500 penalty units, or both.
(b)Attempted robbery (CC2022/10336), contrary to s 309 of the Criminal Code by virtue of s 44. The maximum penalty for this offence is 14 years’ imprisonment, 1400 penalty units, or both.
(c)An offence of common assault (CC2022/2681), contrary to s 26 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 2 years’ imprisonment. This is a transfer charge.
4․On 12 October 2023, the offender pleaded guilty to the following offences committed in June 2022 (June 2022 offending)[3]:
[3] File Number: SCC 209 of 2023.
a)Aggravated burglary by joint commission (CC2023/959), contrary to s 312 of the Criminal Code by virtue of s 45A. The maximum penalty for this offence is 20 years’ imprisonment, 2000 penalty units, or both.
b)Damage property by joint commission (SCCAN2023/378), contrary to s 403 of the Criminal Code by virtue of s 45A of same. The maximum penalty for this offence is 10 years’ imprisonment, 1000 penalty units, or both.
5․As part of the June 2022 offending, the offender was also found guilty of the following offences, following a judge-alone trial before Berman AJ on 2 November 2023 (DPP v Higgins [2023] ACTSC 314 (Higgins)):
a)Assault occasioning actual bodily harm by joint commission (CC2023/962), contrary to s 24(1) of the Crimes Act 1900 (ACT) by virtue of s 45A of the Criminal Code. The maximum penalty for this offence is 5 years’ imprisonment.
6․The offender pleaded guilty to the following offences committed on 30 July 2022 (July 2022 offending):
a)An offence of failing to stop motor vehicle for police (CC2022/7389), contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (RTSM Act).[4] The maximum penalty for this repeat offence is 3 years’ imprisonment, 300 penalty units, or both. A conviction for a repeat offence entails an automatic disqualification from holding or obtaining a driver’s license for a period of at least 12 months: Road Transport (General) Act 1999 (ACT) ss 63(1)(d), 63(2)(b) (RTG Act)[5].
[4] Included in SCC 23 of 2023.
[5] The Court could order a longer period (s 63(2)(b).
b)An offence of aggravated dangerous driving (CC2022/7390), contrary to s 7(1) of the RTSM Act aggravated by virtue of ss 7A(1)(a)(i) and 7A(2).[6] The maximum penalty for this repeat offence where the aggravating circumstance is applied is 5 years’ imprisonment, 500 penalty units, or both.[7] A conviction for this repeat, aggravated offence also entails an automatic disqualification from holding or obtaining a driver’s license for a period of at least 12 months: RTG Act ss 63(1)(f), 63(2)(b), 63(4).[8]
[6] Included in SCC 23 of 2023. See also PTB page 123, charge identifies the two main features. Section 7A set the aggravating circumstances for the offence against s 7. The one pleaded here is s 7A(1)(a)(i) (the person failed to comply, as soon as practicable, with a request or signal given by a police officer to stop the motor vehicle) and s 7A(2) (repeat offender).
[7] This is because a circumstance prescribed in s 7A(1)(a)(i) applied and the offender is a repeat offender, see s 7(1)(b).
[8] The Court could order a longer period (s 63(2)(b); s 63(4).
c)An offence of driving a motor vehicle without consent (CC2022/10061),[9] contrary to s 318(2) of the Criminal Code. The maximum penalty for this offence is 5 years’ imprisonment, 500 penalty units, or both.
[9] Included in SCC 23 of 2023.
d)An offence of damaging property by joint commission (CC2022/7386), contrary to s 403 of the Criminal Code by virtue of s 45A of same. The maximum penalty for this offence is 10 years’ imprisonment, 1000 penalty units, or both.
7․The offender pleaded guilty to the first three charges of the July 2022 offending listed above (failing to stop, aggravated dangerous driving, driving motor vehicle without consent) on 2 February 2023. The offender later pleaded guilty to damage property by joint commission (CC2022/7386) on 21 August 2023.
8․Also on 2 February 2023, the offender pleaded guilty to the following transfer charges, being offending also committed on 30 July 2022:
a)An offence of driving a motor vehicle with a level 3 prescribed concentration of alcohol (PCA) (CC2022/7391), contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RTAD Act). The maximum penalty for this repeat offence for offenders with a level 3 PCA is 6 months’ imprisonment, 10 penalty units, or both (RTAD Act s 26(1)(b). A conviction for this repeat offence in these circumstances also means that the offender is automatically disqualified from holding or obtaining a driver’s license for a period of between 6 months to 3 years: RTAD Act s 33(1)-(3).[10] I note that the prosecution and counsel for the offender asked the Court to amend this charge on 18 July 2025 to delete the otiose word ‘special’.
[10] A shorter suspension period can be ordered, but not lower than 6 months (s 33(2)).
b)An offence of not giving required particulars as a driver involved in a crash (CC2022/7392), contrary to r 287(1) of the Road Transport (Road Rules) Regulation 2017 (Road Rules) by contravening r 287(2)(a) of the same. The maximum penalty for this offence is 20 penalty units.
c)An offence of driving whilst disqualified (CC2022/7393[11]) contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (RTDL Act). The maximum penalty for this offence is 6 months’ imprisonment, 50 penalty units, or both. A conviction for this offence also means that the offender is automatically disqualified from holding or obtaining a driver’s license for 12 months: RTDL Act s 32(5)(a).
[11] This appears to be a typographical error in the prosecution’s tender bundle, as the charge is listed in ICMS as CC2022/7393.
9․Upon conviction for the offences committed in June and July 2022, the offender will be in breach of several good behaviour orders associated with suspended sentences.[12] Similarly, upon conviction, the offender will also be in breach of two other good behaviour orders simpliciter, ie without associated suspended sentences.[13]
[12] PWS at [76].
[13] PWS at [87].
[Paragraphs 10 to 14 redacted]
Agreed facts
15․The agreed facts for sentencing for the current set of offences are set out in three separate statement of facts, which form part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows.
June 2021 offending (attempted robbery, common assault, riding motor vehicle without consent)
16․At about 6:30am on 5 June 2021, the offender was on a street in Chapman, ACT. The victim was at his residential address in Chapman, ACT.[14]
[14] PTB page 40, Agreed Facts at [3]-[4].
17․The victim was woken by a neighbour knocking on the front door of his residence at about 6.45am. The neighbour informed him that three males were inside a vehicle belonging to the victim’s son, parked out the front of his residence.
18․When confronted, the males departed the location on foot.[15]
[15] PTB page 40, Agreed Facts at [5].
19․The victim then got into his car and drove around the streets in the area in an attempt to locate the males.[16] A short time later, the victim located two of the males on a street in Rivett, ACT. The victim exited his vehicle in an attempt to speak with the men. Approaching the men in a civil manner, the victim requested that any item that had been stolen be returned.[17] One of these two men was the offender.[18]
[16] PTB page 41, Agreed Facts at [7].
[17] PTB page 41, Agreed Facts at [8].
[18] PTB page 41, Agreed Facts at [10].
20․As the victim spoke to the two men, a third man appeared and continued to walk past the victim while the other two men began to run. The victim used his mobile phone to capture images of the two men that remained in close proximity to him.[19] The victim stated words to the effect of “I don't want any trouble; I just want the items back”.[20]
[19] PTB page 41, Agreed Facts at [9].
[20] PTB page 41, Agreed Facts at [12].
21․Upon hearing this, the two men stopped running. The offender turned towards the victim, and began to charge at him, demanding his mobile phone. The victim did not surrender his phone, and this resulted in the offender continuing towards the victim with his fists clenched in a manner to cause intimidation.[21] This attempt to steal the victim’s mobile phone is count CC2022/10336, attempted robbery,[22] with a threat of violence being relied upon by the prosecution for the purposes of the offence.[23]
[21] PTB Page 41, Agreed Facts at [12].
[22] See PTB page 25, charge sheet for CC2022/10336.
[23] PWS at [11].
22․The offender made multiple attempts to punch the victim in the face. The statement of facts noted that the victim held fears for his safety and imminent harm due to the demeanour and aggression presented by the offender. The offender continued to make attempts to assault the victim, which eventually created a distance of approximately 10 metres between the victim and his vehicle. These multiple attempts[24] constituted count CC2022/2681, common assault.
[24] PWS at [11].
23․The other two men got into the victim’s vehicle.[25] The offender then stopped approaching the victim, turned around and ran to the rear right hand side of the vehicle, entering the vehicle into the rear passenger seat.[26] The three men proceeded to steal the vehicle. The victim filmed this on his mobile phone.[27] This incident constitutes count CC2022/2682, riding motor vehicle without consent.
[25] PTB page 42 at [15].
[26] PTB page 42 at [16].
[27] PTB page 42 at [16].
June 2022 offending (aggravated burglary, damage property, assault occasioning ABH)
24․In relation to the June 2022 offending, it is relevant to note that the offender had previously been “good mates” with a person (to be referred to as Mr A for anonymity and clarity) who was previously in a relationship with the victim. [28] The offender knew that the man lived with the victim “on and off” at a residence in Macquarie, ACT. The house is located towards the end of a cul-de-sac.[29] The victim also knew of the offender through Mr A for about nine months prior to the offence.[30]
[28] PTB page 82, SOF at [10].
[29] PTB 1 page 82 at [1].
[30] PTB 1 page 82 at [2].
25․Between 20 to 27 June 2022, the offender and Mr A had been communicating via Facebook Messenger regarding Mr A paying back $150.00. Extracts of the messages were included in the statement of facts.[31] At around 6.30pm on 27 June 2022, the victim observed that Mr A had received messages from the offender on his Facebook Messenger, which was signed in on the phone she was using. At this time, Mr A told the victim to not open the messages from the offender, as he did not want the offender to know he had seen them.[32]
[31] See PTB 1 page 83 at [3].
[32] PTB 1 page 84 at [4].
26․On 28 June 2022, the offender and Mr A argued over Snapchat. The offender threatened Mr A, including by words to the effect of “I’m going to come after you” and “you wait and see what’s going to happen”. In response, Mr A blocked the offender. The victim and Mr A also had a disagreement on 28 June 2022, as a result of which the victim told Mr A to stay at his parents’ house instead.[33]
[33] PTB 1 page 84 at [5].
27․At about 9:51pm on 28 June 2022, the offender and another unknown male arrived at the victim’s house on a moped. The moped stopped briefly outside the house, with the unknown male getting off the moped before the offender proceeded to ride the moped through an opening in a brick wall at the end of the cul-de-sac.[34] The unknown male followed the moped on foot.
[34] PTB 1 page 84 at [7]-[8].
28․After parking the moped, the offender and the unknown male walked together on foot towards the victim’s property. The unknown male was carrying a sword with a white handle,[35] a “samurai-style sword”.[36] The offender and the unknown male approached the front door of the house.
[35] PTB 1, page 84 at [9].
[36] PTB 1 page 81 at [3].
29․At this time the victim was in her bedroom with her 4-year-old daughter.
30․The victim then heard banging at the front door. This banging noise was the offender or the unknown male attempting to force entry to the property by kicking the wooden front door.[37] The victim’s daughter started to cry. As the banging continued, the victim screamed words to the effect of “hey stop”, but the banging continued. [38]
[37] PTB page 85 at [11].
[38] PTB page 85 at [11].
31․While holding her daughter, the victim proceeded to move closer to the front door to investigate the banging noise. The victim heard a voice she recognised to be that of the offender, saying words to the effect of “one more kick bro, and it should be all good”.[39]
[39] PTB page 85 at [12].
32․The victim dialled 000. Carrying her daughter, the victim ran to an external glass sliding door that led to her back garden and exited her house, leaving this door open.[40] The victim then ran towards her fence and left her backyard via a gate. The victim walked to her car, and with her daughter got into the front passenger seat and locked the doors.[41]
[40] PTB page 85 at [13[.
[41] PTB page 85 at [14].
33․By this time, the offender and the unknown male had broken down the front door and entered the residence. At least one of the men had the sword, with one of them also having a smaller knife, described as similar to a steak knife. This constituted count CC2023/959, aggravated burglary by joint commission.[42] This is most serious offending.
[42] PTB page 85 at [15].
34․The offender and the unknown male caused a partial hole in a door, above and slightly to the right of the doorhandle. The statement of facts also detailed the damage as a result of the method of entry at the front of the house.
35․This was count CC2023/378, damage property by joint commission.
36․While this was taking place, a neighbour of the victim (the neighbour victim) emerged from his residence to investigate the noise and told the men to “go away”.
37․The two men ran from the victim’s home. The offender continued to the end of the cul-de-sac, where the moped was parked. However, the unknown male struck the neighbour victim with the sword. The neighbour victim ran back towards his residence. The unknown male approached the neighbour victim again before striking him a number of times with the sword. The neighbour victim put his hands up to try to protect his face. As a result of the strikes, the neighbour victim suffered a large cut to the top of his left hand.[43] This event constituted count CC2023/962, assault occasioning actual bodily harm.
[43] PTB page 86, Statement of Facts at [20].
38․As noted above at [5], the offender pleaded not guilty to this offence. In the trial before Berman AJ, the offender did not dispute that the injuries suffered by the third victim amounted to actual bodily harm: Higgins at [20]. Rather, the offender disputed that he was criminally responsible for the injuries suffered by the third victim at the hands of the unknown male: Higgins at [4], [20]. Berman AJ was ultimately satisfied beyond reasonable doubt that the offender committed this offence by joint commission: see Higgins at [26]-[27], [32], [44]-[49], [51]. -+
July 2022 offending (damaging property by joint commission, various driving offences)
39․The facts of the of the July offending also involve the neighbour victim.
40․On the evening of 30 July 2022, the offender returned to the street where the victim and neighbour victim lived. At approximately 6:47pm, the offender approached the neighbour victim’s residence before a co-offender also attended the front of that residence.[44]
[44] PTB page 149, Statement of Facts at [13].
41․What followed was captured by the neighbour victim’s CCTV. The offender first struck the front door of the neighbour victim with his foot. A third unknown male then approached the offender and the co-offender at this time to pull them away. While this was happening, the neighbour victim was inside and could hear noises from outside his residence. The neighbour victim yelled out “I call the police”.[45]
[45] PTB page 149, Statement of Facts at [15]-[17].
42․The offender and the co-offender returned to the neighbour victim’s property numerous times.[46]
[46] PTB page 149, Statement of Facts at [18].
43․The front door of the third victim’s property was damaged. Further, the window next to the front door was broken. Damage was also occasioned to the neighbour victim’s car during the incident.[47]
[47] PTB page 149, Statement of Facts at [19]-[20],
44․This incident constituted count CC2022/7386, damaging property by joint commission.
45․The remainder of the offending occurred on the same day. At about 9.00pm, a man (the last victim) was picking up his daughter from a party in the ACT.[48] The last victim was in his car, and at the time observed someone walking behind the car while he was parked and waiting for his daughter.[49] The offender approached the driver door, reached into the vehicle through the open driver’s window, took the key from the vehicle's ignition, and opened the driver's door.[50]
[48] July Statement of Facts at [22].
[49] July Statement of Facts at [22]-[23].
[50] July Statement of Facts at [23].
46․The offender then pulled the last victim from his car. The offender left with the car a short time later.[51]
[51] July Statement of Facts at [24].
47․The last victim reported the incident to the police. At about 10.50pm, police observed the car travelling on Belconnen Way. The police observed that the car had suffered significant damage and attempted to stop the car by activating their emergency lights and sirens. The car failed to do so, and a pursuit was commenced. The police lost sight of the car a short time later due to speed.[52] This initial failure to stop constituted[53] count CC2022/7389, failure to stop for the police as a repeat offender.
[52] July Statement at [25]-[26].
[53] PWS at [37].
48․Subsequently, at 10.59pm, the police observed the vehicle in question travelling on Belconnen Way and reengaged the pursuit. The police pursued the vehicle to O’Connor, ACT. The statement of facts noted that this pursuit lasted for 11 minutes, during which the car reached a speed of 150 km/h in a posted 60 km/h zone. [54]
[54] July Statement at [27].
49․The pursuit was terminated as the car collided with another vehicle in Dickson, ACT, crossing to the wrong side of the road while travelling at excessive speed. Unsurprisingly, at the time of the collision, the offender did not stop to exchange details with the person collided with.[55]
[55] July Statement at [27]-[28].
50․The car was eventually seen again in Acton, ACT. The car was followed along Barry Drive, where it reached speeds of 100 km/h in a posted 80 km/h zone. The rear tires of the car were destroyed, and the car left gouges in the road, with sparks and rubber flying from both rear wheels.[56]
[56] July Statement of Facts at [29].
51․The car entered the University of Canberra, and in an attempt to evade police the offender drove the vehicle onto foot paths at high speed.[57] The vehicle eventually came to a stop in a dead end.[58]
[57] July Statement of Facts at [30].
[58] July Statement of Facts at [31].
52․The police smashed the driver side window of the car. The statement of facts records that the offender was apparently still revving the engine in an attempt to get away. The police applied a dose of capsicum spray to the offender. [59]
[59] July Statement at [31].
53․Subsequently, the offender was arrested.[60]
[60] July Statement at [31].
54․The events described above constituted the following counts:
a)Count CC2022/10061, driving a motor vehicle without consent.[61]
[61] See PTB page 125.
b)Count CC2022/7390, aggravated dangerous driving as a repeat offender. [62]
[62] PTB page 123
c)Count CC2022/7392, not giving required particulars as a driver involved in a crash.[63]
[63] PTB page 139.
55․At approximately 12.21am on 31 July 2022, the offender underwent breath analysis. The result recorded by the instrument was 0.139 grams of alcohol, being level three. Thus, this constituted count CC2022/3791, driving a motor vehicle with a level 3 PCA as a repeat offender. [64]
[64] PTB page 137. July Statement of Facts at [35].
56․The police issued the offender with an immediate suspension notice and advised him that his right to drive was suspended for a period of 90 days. Relevantly, I note that the offender had been disqualified by the ACT Magistrates Court on 11 November 2021 for holding or obtaining a driver’s license for three years.[65] Thus, that the offender drove a vehicle on 30 July 2022 constitutes count CC2022/7393, driving while disqualified. [66]
[65] PTB page 149-50; Statement of Facts at [22]/
[66] Statement of Facts at [11](f); PTB page 141.
[Paragraph 57 redacted]
Victim Impact Statements
58․Three Victim Impact Statements (VIS) were tendered in this matter.[67]
[67] The fourth victim did not tender a VIS. The first VIS was not read out, and the remaining two was read out by the informant.
59․The first Victim Impact Statement (from the victim of the June 2021 offending) includes the following:
My son … had [h]is car broken into and items stolen. As a result he replaced the items and sold the car as he didn’t feel the make and model was secure anymore.
I… was first assaulted by [the offender] before he and two others stole our car. We were without our car from 5 June to 7 September 2021 and received an insurance excess charge of $950. I was off work for [a] week and suffered many sleepless nights. I still wake at nights and listen to any possible noises. I have since installed security cameras and a gate/fence across our drive to provide a barrier to the back of our property.[68]
[68] PTB page 45.
60․The second Victim Impact Statement (from the initial victim of the June 2022 offending) relevantly includes the following:
I stand before you as a single mother, once feeling the safety and comfort of our home shattered in an instant. The night our house was invaded, I held my daughter tightly, terror coursing through our veins…[69]
[69] There was an objection to the line including “pursued us relentlessly”: Transcript, December 2023, page 12 [5]-[15]. No reference to a pursuit or chase.
The haunting memory and… the fear for our lives still echoes in our minds.[70] My daughter and I cowered in corners, our sanctuary violated. The trauma etched in her innocent eyes has forced us to abandon our home, severing ties to the familiar, and disrupting the stability my child once knew.
[70] As agreed in December 2023 hearing, see Transcript, December 2023, page 13 [31]-[38].
The incident compelled us to uproot our lives, leaving behind a neighbourhood that was once our community. My daughter, once enthusiastic about school, now grapples with the aftermath, forced to abandon her friends and the only school she had ever known. The mere mention of the suburb invokes fear in her, a constant reminder of the harrowing experience she was subjected to.
I implore the court to consider the profound impact this heinous act has had on the emotional well-being of my child and me. The scars are not just physical; they run deep in our psyche…[71]
[71] The reference to the victim’s dog is excluded, as the offender was not before me for animal cruelty.
…
As we seek justice, I implore the court to recognise the depth of our anguish, the emotional toll on my daughter, and the irrevocable loss of our once harmonious home. We stand here not just as victims of a crime but as a family fractured and scarred by an ordeal that transcends the physical boundaries of our house.
61․The third VIS is from the neighbour victim of the June and July 2022 offending, and includes the following:
Since this incident … happened to me, I [do not] fee[l] safe in my house. My son also has concerns about my safety. I also struggle to sleep at [night] as any noise outside makes me anxious and worried. The incident has caused me to be concerned every time I leave the house and my family are worried when they come to visit. I very rarely leave the house including for medical treatment on my liver as I am worried something will happen to my house. I suffer from a disability and do not feel safe in my home but have no option but to remain in my current house. I was happy to help people before but now I am too scared to help anyone, especially when they come and knock on my door.[72]
[72] See also Transcript, December 2023, page 10-11.
62․The Court recognises the serious and long-lasting effects of the offender’s conduct on all the victims and acknowledges the significant impact that the offences had on all the victims.
63․The victim of the June 2021 offending has been seriously affected by the crimes of the offender. The victim of the June 2022 offending, a mother, and her then four-year-old daughter have been profoundly impacted by the offending.
64․Counsel for the prosecution submitted that it is clear that the offending conduct of the 2021 offending has had a detrimental effect on the victim.[73] In my view, this is undoubtedly correct. The victim speaks of sleepless nights, and his need to install additional security measures.[74] The victim of the June 2022 offending, included in her eloquent VIS the effect of the offending crime on both herself and her young child. These deleterious effects cannot be said to be deleterious effects that are unexpected from this appalling offending. These are serious crimes. All people should be able to be safe in their own homes. This mother, and this child should have been safe in their home; safe in their sanctuary.[75] They were not.
[73] PWS at [44].
[74] PWS at [45].
[75] PWS at [46].
65․This Court acknowledges the profound importance of what all the victims had to say in their own words in their Victim Impact Statements.
Issues at the hearing
66․As correctly noted by the offender, the sentencing exercise before the Court is not without its difficulties.[76] Counsel for the offender properly submitted that, on the one hand, the offences include indeed very serious offences as set out above. This must be counterbalanced on the other hand, in counsel’s submissions, by the offender’s age, his deprived background and the need for an “intensive rehabilitation” plan.[77] There is force to this submission on the evidence before me. Intensive rehabilitation that leads to no further recidivism; that is, no further criminal activity on the part of an offender is clearly in the public interest, in the interests of this community and in the interests of the offender himself.
[76] OWS at [1].
[77] OWS at [2].
Objective seriousness
67․Without question, an assessment of the objective seriousness of an offence has always been a part of the sentencing process. As is well established, “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). Nevertheless, it is not necessary for a judge to indicate where the offence falls on a scale of low, midrange, or high criminality, as such nomenclature can be opaque; 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 The Queen v Kilic [2016] HCA 48; 259 CLR 256 at [19].
68․It is convenient to divide the discussion of objective seriousness of the many charges in accordance with the date order of the relevant series of offending.
June 2021 offending
Riding in motor vehicle without consent (CC2022/2682)
69․It is uncontroversial that the factors relevant to objective seriousness of this offence are as set out in R v Rosewarne [2021] ACTSC 216 at [124] (Rosewarne).
70․Thus the relevant factors are as follows:
a)Whether the offender drove or rode in the vehicle: In this case the offender was a rider not a driver in the vehicle.
b)The duration of the offending: In this case the duration of the of the offending as such is unclear.
c)Whether the driving caused damage to the vehicle: see [(d)].
d)Whether the vehicle was recovered undamaged: In this case, the vehicle was not recovered.
71․The above stated identifying features are the features I take into account concerning the objective seriousness of this offence.
Attempted robbery (CC2022/10336)
72․It is uncontroversial that the objective seriousness of an attempt offence is informed by several factors, including the level of sophistication and level of completion or ‘success’ as such.[78] In Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79, the Court of Appeal (Gray P, Penfold and Marshall JJ) adopted (at [29]) the factors stated in R v Taouk (1993) 65 A Crim R 387 thereby emphasising the importance of evaluating the attempt and the chances of completing the crime if the attempt were not interrupted:
[78] PWS at [5].
There was no evaluation [on part of the primary judge] of the seriousness of the offence as one of attempt rather than the commission of the substantive offence. Factors to be weighed are such as those referred to by Badgery-Parker J in R v Taouk (1992) 65 A Crim R 387 at 390 where he commented in respect of a charge of attempt to commit a substantive offence:
After a sentencing judge has established the facts of the offence, his prime task is to evaluate the objective seriousness of the offence. In making such an evaluation, where the charge is of an attempt to commit a substantive offence, it will be relevant for the judge to consider, first, that the charge is of attempt only and, by hypothesis, the substantive offence was not completed; and it will be relevant to consider the chances that the attempt, if not interrupted, would have succeeded. If on the facts it appears that the attempt was unlikely to succeed or indeed, that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce the objective seriousness of the crime. However it must also always be necessary for the sentencing judge to consider the seriousness of that which was attempted. In every case where a person is to be sentenced for an attempt to commit a substantive offence, such factors will need to be weighed if the evidence raises the question for consideration. It may be postulated that where the offence attempted is grave, a sophisticated attempt which came close to success is likely to attract a heavier sentence than a naïve and ill-prepared attempt predestined to fail. On the other hand, a determined and all but effective attempt to commit a minor crime would attract perhaps a more severe sentence than a naïve and inefficient attempt to do the same thing, although the relative triviality of the offence would tend to narrow the margin between the two outcomes. It cannot necessarily be postulated, however, that a naïve and ill-prepared, even incompetent, attempt to commit a serious offence must necessarily attract a lesser sentence than would be incurred by a serious and all but effective attempt to commit an offence of less gravity. There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them, and that relationship has to be weighed in each case in the light of all of the circumstances.
(emphasis added)
73․I note the observations of Refshauge J in R v BI (No 4) [2017] ACTSC 71 at [40], that it will not usually be the case that an attempt will be sentenced at the same level as the completed offence.
74․The prosecution correctly noted that, while there was no actual violence used, there was nonetheless a real threat of violence.[79] The robbery was not completed as no property was taken as the victim did not accede to the offender’s demand concerning the mobile phone.[80]
[79] PWS at [11].
[80] PWS at [12].
75․Similarly, counsel for the offender, correctly, in my view, submitted that the attempted robbery did not evince any “planning, organisation or sophistication”, and was a “very basic example of such offending”. Counsel for the offender submitted that the offending would fall towards the lower end of seriousness for offending of this nature.[81]
[81] OWS at [7].
76․I accept the identifying features identified by both the counsel for the prosecution and counsel for the offender outlined above concerning the attempted robbery. The submissions accord with my view of the identifying features concerning objective seriousness of this offence as identified at [74] and [75] above.
Common Assault (CC2022/2681)
77․As is well established on the authorities, that the offence of common assault can be committed over a wide spectrum of offending involving actual or threatened violence. As such, the prosecution correctly submitted that the circumstances of the offending is an important consideration in this case.[82]
[82] PWS at [13].
78․The prosecution submitted that the assault was of “moderate duration”, with multiple attempted punches and[83] the prosecution noted that the offence was committed in the morning, in public, and in a residential street: R v Davis [2021] ACTSC 335.
[83] PWS at [14].
79․Counsel for the offender conceded that the common assault is of “moderate seriousness” given that there were multiple punches which avoided contact with the victim given his retreat.
80․I accept the identifying features identified by both counsel outlined above concerning the objective seriousness of the assault as I detailed above at [78] and [79].
June 2022 offending
Aggravated burglary (CC2022/959)
81․Counsel for the prosecution referred to the NSW guideline judgment in R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 (Ponfield), and submitted it was useful in assessing the objective seriousness of burglary in this jurisdiction: R v Fusimalohi [2015] ACTSC 220 at [10] (Murrell CJ).[84]
[84] PWS at [18].
82․With reference to the Ponfield factors, counsel for the prosecution referred to the following identifying features including the following:[85]
[85] PWS at [19].
a)The prosecution referred to conditional liberty at the time of the offending. I note in this regard that the breach of conditional liberty is not a matter of objective seriousness but rather a subjective matter. I have discussed this in a number of decisions including R v Bandy [2018] ACTSC 261 at [29], and below at [203].
b)The offence appears to be the result of a degree of planning, as the offender went to the victim’s address because of a dispute with Mr A over $150.00. I accept there was a degree of planning.
c)The prosecution referred to a history of engaging in a similar type of offending. I note again this is not an objective factor but rather to be considered under subjective matters.
d)The offence was committed at the home of a young mother and the offending occurred at 9:51pm on a Thursday night, being a time at which it was likely that persons would be present inside the premises. I accept that this is a highly relevant matter that goes to objective seriousness.
e)I note the damage to the property is separately charged.
f)I note no property was stolen during the offending.
g)Both victims (the victim and her daughter) suffered actual trauma as a result of the offending. I underline the seriousness of this offending in this regard.
83․Counsel for the offender agreed with the submissions of the prosecution and conceded that this offending is a “serious example” of aggravated burglary as indeed it is.[86]
[86] OWS at [9].
84․I accept the identifying features identified by both counsel as I have outlined and discussed above, concerning the objective seriousness of the aggravated burglary. I have delineated in that discussion what the factors are that are relevant to objective seriousness of this offending.
Damage property (SCCAN2023/378)
85․It is uncontroversial on the authorities that the factors relevant to consideration of objective seriousness of the damage property offence include the motive for the damage (eg. whether it was malicious or occurred to facilitate a burglary) and the extent or value of the damage: Rosewarne at [120].[87]
[87] PWS at [20].
86․Relevantly, the prosecution properly submitted that the damage in this instance arose in facilitation of a burglary,[88] and noted the extent of the damage being:
[88] PWS at [21].
a)The front door being completely separated from its frame.
b)A piece of wood being partially torn from the door frame.
c)Two locking mechanisms on the front door being dislodged and broken.
d)Scratches and scraping to the front door.
e)Scuff and shoe marks on the exterior surface of the front door.
f)A partial hole to an internal wooden bedroom door.[89]
[89] PWS at [22].
87․Counsel for the offender properly agreed with the submissions of the prosecution, conceding that this offending is a “serious example” of a damage property offence.[90]
[90] OWS at [9].
88․I accept the identifying features highlighted by both counsel, as I have outlined above concerning the objective seriousness of the damage property offence. I agree on the evidence with the factors identified.
Assault occasioning actual bodily harm (CC2023/962)
89․R v Redmond (No 2) [2022] ACTSC 295 at [7] was referred to regarding the relevant factors informing the objective seriousness of this offence: [91]
[91] PWS at [23]-[24]
The objective seriousness of assault occasioning actual bodily harm is informed by the conduct of the offender including the degree of violence used or the ferocity of the attack, the circumstances surrounding the offending and the nature of the injury caused by the offender. Ordinarily but not necessarily the most significant factor is the nature of the injury: see Waterfall v R [2019] NSWCCA 281, [33].
90․The prosecution referred to the following identifying features with respect to the circumstances surrounding the offending and the degree of violence used.[92] I accept the following features as identified:
[92] PWS at [25].
a)The neighbour victim had exited his residence to investigate the noise coming from the house next door.
b)The neighbour victim told the offenders to “go away”.
c)The unknown co-offender used a sword to commit the offence and cause the resultant injury.
d)The neighbour victim was struck multiple times with the sword.
91․I further note that the neighbour victim suffered a large cut to the top of his left hand, which bled significantly.[93]
[93] PWS at [26].
92․As noted earlier at [38], the offender was found liable for the offence by joint commission.[94]
[94] PWS at [27].
93․It is well established at law that sentencing judges may draw a distinction between criminal liability for offending and individual roles: see KR v R [2012] NSWCCA 32 per Latham J (Whealey JA and Harrison J agreeing) at [19]-[22]; Burrows v R [2017] NSWCCA 45 at [37]; R v Hagen [2022] ACTSC 362 at [27].
94․Although participants in a joint criminal enterprise are equally liable as a matter of criminal responsibility for the offence committed, it is nevertheless the task of the Court to address the moral culpability of each individual offender. An assessment of moral culpability as distinct from criminal responsibility, where the evidence does differentiate between the acts of offenders, is appropriate: see Beale v R [2015] NSWCCA 120. In this case there is a relevant and distinct differentiation on the evidence, between the offender and the unknown co-offender. The Court takes that into account on sentence in relation to the moral culpability concerning this offence.
95․This Court will differentiate between the relative culpability by reference to the conduct of each in the joint criminal enterprise: R v JW [2010] NSWCCA 49; 77 NSWLR 7. See also: R v Wright [2009] NSWCCA 3, R v Hoschke [2001] NSWCCA 317 at [18], R v Goundar [2001] NSWCCA 198; 127 A Crim R 331, and GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198.
96․The prosecution properly conceded that the offender’s culpability for this offence is less than that of the unknown co-offender.[95] I accept this on the basis of the evidence that was before Berman AJ.
[95] PWS at [29].
97․Counsel for the offender correctly submitted that this Court should not accept that the offender knew that the sword had been used on the victim’s dog.
98․Further, counsel for the offender submitted that the offender made no approach to the neighbour victim and that it was the unknown co-offender that engaged in all relevant physical conduct. I underline in this regard that Berman AJ relevantly stated the following:
I am satisfied beyond reasonable doubt that the accused must have been aware that there was a substantial risk that in getting away from the premises the unknown male would inflict actual bodily harm on someone in order to make good their escape. He may not have contemplated that it would be the neighbour… who would be the victim of such an assault but that does not matter. The precise identity of the victim of the offence committed by the unknown male is not relevant nor is the fact that he was the next-door neighbour.
99․Finally I note counsel for the offender submitted that the offender’s culpability for this offence did not meet the threshold for imprisonment.[96]
[96] OWS at [13].
100․I accept generally the identifying features submitted by both counsel, as outlined above. Further, I note the relevant comments of Berman AJ. Finally, as to whether this sentence meets the threshold for imprisonment is a matter I will deal with later in this judgment.
101․Suffice to say at this stage that I am not persuaded that the offence does not meet the threshold for imprisonment.
July 2022 offending
Damage property by joint commission (CC2022/7386)[97]
[97] The property that was damaged was the front door, front window, pot plants and vehicle of the neighbour victim’s residence.
102․Counsel for the prosecution submitted that the damage in this instance was occasioned maliciously, representing another act of harm occasioned on the same victim, being the neighbour victim.[98]
[98] PWS at [33].
103․In relation to this offence, counsel for the offender submitted that in so far as the prosecution relied on the fact that the victim is the same victim as the assault occasioning bodily harm charge (from the June 2022 series), it cannot be established beyond reasonable doubt that the offender knew that the victim was the same, given the offender’s lack of direct involvement in the prior assault occasioning actual bodily harm.[99] I accept this submission as it cannot established on the evidence with the requisite level of proof being proof beyond a reasonable doubt.
[99] OWS at [14].
104․While counsel for the offender conceded that the offence was “wanton”, it was also submitted that it was not a serious or egregious example of such offending, and as such submitted that the imprisonment threshold is not met.[100]
[100] OWS at [15].
105․I accept generally the identifying features submitted by both counsel as outlined above. As to whether this offence meets the threshold of imprisonment, I will deal with that question later in this judgment.
Aggravated dangerous driving (CC2022/7390)
106․It is accepted that the following factors inform objective seriousness of an offence of aggravated dangerous driving:
a)The extent to which the public was put at risk, including the location of the driving (for example, whether it was a busy area with many pedestrians) and the time of the driving.
b)Whether there were any passengers in the vehicle who were put at risk.
c)The extent to which the police were put at risk when trying to terminate the driving.
d)The variety and duration of aspects of the driving that were dangerous; the extent to which it was a multifaceted and/or lengthy course of conduct.[101]
[101] R v Rosewarne [2021] ACTSC 216.
107․In this case, the prosecution properly submitted and I accept that:
a)The driving was late at night.
b)The driving involved multiple police pursuits, driving at high speeds, a collision with another vehicle, and driving on footpaths and the wrong side of the road.
c)Damage was caused to the road by virtue of the damaged wheels of the vehicle.
d)The driving only ended due to the offender reaching a dead-end at the University.
108․As such, the prosecution submitted and I accept on the evidence that this was a lengthy course of conduct involving dangerous driving where both the public and police were placed at risk.[102] I note the duration of the offending.
[102] PWS at [35].
109․Counsel for the offender properly accepted that the driving offences generally were serious matters, subject to one caveat.[103] I will deal with this caveat when I discuss the transfer charges at [112].
[103] OWS at [15].
Driving motor vehicle without consent (CC2022/10061)
110․The prosecution noted that the offender drove the motor vehicle for a ‘moderate’ duration (the second police pursuit lasting 11 minutes).[104] While the vehicle was recovered, the prosecution noted that the vehicle suffered significant damage. Further however, the prosecution properly conceded that the nature of the driving cannot be considered in the inquiry regarding objective seriousness on this count, as the offender has been charged separately with aggravated dangerous driving.[105]
[104] PWS at [36].
[105] PWS at [36].
Failing to stop for police (CC2022/7389)
111․In relation to the objective seriousness of this offence, counsel for the prosecution noted that the pursuit was only terminated due to the speed of the offender’s driving. The prosecution submitted that the nature of the driving was clearly a deliberate and blatant act of attempting to evade the police.[106] I agree on the facts presented before me.
[106] PWS at [37].
Transfer Charges - CC2022/7391 (Drive motor vehicle with level 3 PCA), CC2022/7392 (Failure to give particulars following crash), CC2022/7393 (driving whilst disqualified)
112․In relation to the transferred driving charges, the prosecution correctly submitted that care must be exercised to not “double count” the nature of driving.[107]
[107] PWS at [38].
113․For the driving with a level 3 PCA offence (CC20227391), reference was made to[108] Scott v Wynants [2009] ACTSC 62; 4 ACTLR 13 (Scott), Re Application by Attorney General (No 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305 at [107]-[108] concerning the factors that tend to aggravate the moral culpability involved in this offence (at [20]).
[108] PWS at [39].
114․In this case, the reading of the offender was correctly submitted to be towards the “top end of the range” for level 3.
115․In relation to the charge of failing to give particulars (CC2022/7392), it was clearly this deliberate choice of the offender to not give particulars to the owner of the other vehicle involved in the collision, and that this was done in order to evade police.[109]
[109] PWS at [41].
116․Finally, in relation to the driving while disqualified offence (CC2022/7393), the prosecution noted that it is relevant that the offender was not lawfully allowed to be driving, and that the driving in question was involved in the commission of other offences.[110]
[110] PWS at [42].
117․Counsel for the offender correctly submitted that care must be taken so that the Court does not double count or breach the De Simoni principles.[111] That is in the sense of the drink driving offending being “aggravated by the conduct of the driving” given that the conduct of the driving has essentially been separately charged.[112] I accept the submissions of both counsel that double counting and double punishment must be avoided in sentencing.
[111] OWS at [17].
[112] OWS at [17].
118․I interpolate to note that, from the charge sheet for CC2022/7390 (aggravated dangerous driving),[113] it appears that the offender’s failure to stop for police was relied on as the factor that acted to aggravate the charge: see RTSM Act s 7A(1)(a)(i).
[113] See PTB page 123.
119․Counsel for the offender submitted that the driving contrary to law may be seen as an “internally aggravating factor” of the aggravated dangerous driving charge. As such, any sentence of imprisonment should, in the offender’s submission, be made fully concurrent as both the drink driving and the driving disqualified offences are “inextricably linked”.[114] I will deal concurrency later in this judgment at [306].
[114] OWS at [18]
120․Finally, counsel for the offender noted that the failure to give particulars offence is only punishable by a fine and speaks for itself.[115]
[115] OWS at [19].
Attempts to rehabilitate on the part of the offender
121․At the hearing on 10 December 2024, the parties advised the Court that an agreed timeline of the offender’s efforts at rehabilitation would be provided to the Court. That timeline is summarised below:
a)Wayback Ltd
1) On 6 March 2024, the offender was granted bail to attend Wayback Ltd drug and alcohol rehabilitation in Harris Park, New South Wales.
2) The offender was suspended from this service on 28 March 2024 for not engaging with the service to a sufficient standard.
3) The offender was brought before the Court on 2 April 2024 for the breach of his bail conditions to continue attending the drug rehabilitation service.
(b)Canberra Recovery Services
1) On 26 April 2024, the offender was granted bail to attend Canberra Recovery Services. This is a residential drug and alcohol rehabilitation program in Fyshwick, ACT.
2) The offender commenced his induction phase at this program on 29 April 2024, before progressing to the next stage on 27 May 2024.
3) The offender elected to change to the day program on 11 June 2024, “amidst allegations he was observed to be under the influence of illicit substances and had high levels of Urea (alleged to be a ‘blocking’ agent)”.
4) The offender’s bail was continued on 13 June 2024 despite this change, with the offender to attend the Canberra Recovery Services day program. The offender presented himself to the Court following this change in program.
Subjective matters
122․The offender is now 22 years of age.
The psychologist’s report
123․The report of Ms Leesa Morris (the psychologist) dated 9 December 2024 (the psychologist’s report) was tendered on behalf of the offender during the December 2024 hearing. For the preparation of the report, the psychologist assessed the offender on 22 September 2023 and 2 October 2024 via AVL while the offender was at the AMC.[116] The psychologist estimated that the interviews spanned a total duration of approximately one hour and 45 minutes.
[116] Psychologist’s report page 1.
124․The psychologist’s report provided details regarding the offender’s subjective circumstances and made some psychological diagnoses. I will outline the psychologist’s report’s conclusion as to the subjective circumstances of the offender first.
Subjective Circumstances
125․The psychologist noted the offender as having a history of not complying with conditions in the community. The psychologist [redacted]. The offender for his part stated that he had no custodial infractions as an adult at the September 2023 interview. I note the August 2023 and December 2023 PSRs in so far as the PSRs recorded that the offender had received behaviour warning on three occasions, and one disciplinary action in January 2023.[117]
[117] August PSR page 1; December PSR page 1.
126․[Redacted]. The psychologist’s report noted that the offender’s mother re-partnered in his adult years. When queried as to the quality of his relationship with his stepfather, the offender said “he makes [the offender’s mother] happy.” The psychologist’s report also noted that the offender lives with his mother when in the community.[118]
[118] Psychologist’s Report page 2 [2.1]-[2.2].
[Paragraphs 127 and 128 redacted]
129․[Redacted]. The offender was again exposed to the suicide of a friend who was detained in the Alexander Maconochie Centre in March 2022.[119]
[119] Psychologist’s orris Report at [2.5].
130․The psychologist’s report noted that no incidents of alcohol abuse, gambling, child sexual assault or criminal activity were reported in the offender’s family history. I pause to note, that the August 2023 PSR and December 2023 PSR, which noted that the offender’s mother, siblings, and then-partner all have criminal records. [120]
[120] See August 2023 PSR page 2; December 2023 PSR page 2.
[Paragraph 131 redacted]
132․In relation to the offender’s education, the psychologist’s report noted that the offender ceased attending school in year seven, and that the offender had received suspensions. [Redacted]. The offender reported being disciplined in primary school for “talking, not sitting in [his] chair”, and not doing what was asked of him. The offender denied any bullying issues to the psychologist but noted his difficulty with friendships.[121] The psychologist’s report noted that the offender had poor attendance at school, and that the offender participated in “risk-taking activities” and leaving home without notice.[122]
[121] Psychologist’s Report at [3.2].
[122] Psychologist’s Report at [3.4].
133․The psychologist’s report noted that the offender indicated in September 2023 that he aspired to go to university and study something that would allow him to “give back and stop people from getting [to the AMC]”. The offender noted that he was doing a “pathways to university course”, but that this was interrupted when he was struggling with his mental health.[123]
[123] Psychologist’s Report at [3.3].
134․Similarly to the August 2023 PSR and the December 2023 PSR discussed later, the offender noted that he was employed in “steel-fixing” prior to beginning his Year 12 studies. The offender also worked for about “six or seven-months” doing demolition, work that the offender stated he enjoyed.[124]
[124] Psychologist’s Report at [4.1].
135․The offender’s relationship with his previous partner began in May 2022, and the psychologist’s report noted that this was the offender’s only significant relationship.[125] The offender “broke away” from his partner in around March 2024, and reported that he did not handle the breakup “very good”.
[125] Psychologist’s report at [5.1].
136․In relation to the offender’s health, the psychologist’s report did not record any “significant health issues or injuries requiring treatment or medication”.[126] I note the information noted in the August 2023 PSR and the December 2023 PSR in so far as they record the offender taking Buvidal injections at the time.
[126] Psychologist’s Report at [6.1].
137․The psychologist’s report also provided further information regarding the offender’s drug and alcohol use. First, the psychologist’s report stated that the offender began using alcohol at 12 years of age “when I could get it,” increasing to daily consumption from around 13 years of age until his arrest in July 2022.[127] The offender reported that he used “mostly alcohol” in the period leading up to his arrest.[128]
[127] Psychologist’s Report at [7.1].
[128] Psychologist’s Report at [7.4].
138․The psychologist’s report also noted that the offender began using marijuana when he was 12 years of age, for around five years.[129] The offender reported that he “didn't like the way it made [him] feel” as marijuana “increased my anxiety”, leading him to cease his use.
[129] Psychologist’s Report at [7.2].
139․The psychologist’s report stated that the offender first used “ice”/crystal methamphetamine when he was 13 years of age and used this daily until he was 16 years of age. The offender reported that he had stopped in 2019 “when [his] granddad died”. The Psychologist’s report correctly noted that previous PSRs attributed this cessation to engagement with Ted Noffs counselling.
140․The psychologist’s report noted that the offender began using heroin in 2024. [130] The offender reported going to “heroin” to deal with the depression arising from his break-up, [131] and that he just “thought ‘what is the strongest depression killer?’”.[132]
[130] Psychologist’s report at [7.6].
[131] Psychologist’s Report at [5.2].
[132] Psychologist’s Report at [7.6].
Psychological Diagnosis
141․First, the psychologist noted that the offender met the DSM-V Text Revision (DSM-V TR) criteria for Alcohol Use Disorder, Moderate, “in early remission,”. This is based on the offender’s reports to the psychologist.[133]
[133] Psychologist’s Report at [7.10].
142․The psychologist reported using a “Structured Clinical Interview for DSM-V Disorders” in part during the interview with the offender.[134] The psychologist’s report explained that the structured interview has proven more accurate and comprehensive than “less formally structured interviews”:
[134] Psychologist’s Report at [8.1].
This structured interview has been developed to increase diagnostic reliability though standardising the assessment process. This enables various mental health professionals to agree on diagnoses. It also increases diagnostic validity by systematically probing for symptoms that might otherwise be overlooked. It was developed over the years since 1983 by the National Institute of Mental Health. This instrument has proven to be more accurate and more comprehensive than less formally structured interviews.[135]
[135] Psychologist’s Report at [8.1].
143․The psychologist assessed the offender’s psychological symptoms in September 2023[136] and October 2024. The psychologist relevantly noted that documentation suggested that the offender previously received “six sessions of intervention” with a psychologist prior to 24 July 2023.[137]
[136] Psychologist’s Report at [8.2]-[8.7]; [8.8]-[8.12].
[137] See Psychologist’s Report at [8.7].
144․Ultimately, the psychologist diagnosed the offender with ‘Conduct Disorder, adolescent-onset type, severe’ and ‘antisocial personality disorder’: [138]
[138] Psychologist’s Report at [8.16].
The history provided by [the offender] and supported through numerous reports and assessments indicate that he would have met diagnostic criteria for F91.2 Conduct Disorder, adolescent-onset type, severe. As his behaviour has continued, and Mr Higgins appears to have become more sophisticated in his reports to assessors, it is appropriate that this diagnosis is now superseded by F60.2 Antisocial Personality Disorder. This is a difficult diagnosis to direct at a person as young as Mr Higgins, however, it is appropriate as confirmed by the psychopathy testing below.
145․In relation to the diagnosis of Conduct Disorder, the psychologist stated that it was fortunate, as adolescent-onset Conduct Disorder has “a more positive trajectory than childhood-onset, with change possible”. However, the psychologist observed that this would require an “intensive schema therapy with a Forensic Psychologist”. the psychologist noted her awareness of one such psychologist in the ACT, but as the practitioner works privately this likely places her services outside of the offender’s resources.[139]
[139] Psychologist’s Report at [8.17].
146․Relevantly to the offender’s antisocial personality diagnosis, the psychologist’s report noted the results of a Hare Psychopathy Checklist Screening Version (Hare PCL:SV) test administered on the offender. The psychologist described the test as a shorter version of the Hare Psychopathy Checklist, and noted that without using tools such as the Hare PCL:SV it is not possible to accurately diagnose antisocial personality disorder.[140] A score of 18 or above, in the psychologist’s opinion, is “highly indicative of psychopathy”. The offender scored 19 from his interviews, which in the psychologist’s view suggested that the offender presented with a “psychopathic personality traits”.
[140] Psychologist’s Report at [10.1].
[Paragraphs 147 and 148 redacted]
149․Of particular concern, the psychologist stated that the offender had been observed in PSRs to seek assistance, then quickly disengage:
[The offender] is noted in the Pre-Sentence Reports to seek assistance, and then quickly disengage. He appeared to be interested to see what outcome he was able to secure for himself and then disengaged when he was required to change his behaviours. [The offender] has frequently failed to complete programs due to interpersonal difficulties with workers and authority figures. He was also noted to present two versions of himself to workers, one that expressed remorse and guilt, and another that wished to increase the ‘thrill’ of his offending behaviour and didn’t care about anyone or any consequences.[141]
[141] Psychologist’s Report at [8.14].
150․The psychologist stated that the offender had been recorded in documentation to make claims about services that he was willing to engage with, but “will continue to change his mind in order to avoid having to follow through with his statements”.[142]
[142] Psychologist’s Report at [8.15].
151․Similarly, the psychologist noted that the offender had been observed in both interviews and provided documentation to use “phrasing that was consistent with expected positions”.
Other material relevant to subjective circumstances
152․As part of the documents tendered, in evidence before me are the following pre-sentence reports (PSRs):
a)A PSR dated 7 August 2023 (the August 2023 PSR). This PSR also contained a brief ICO Assessment Report (ICOAR).
b)A PSR dated 5 December 2023 (the December 2023 PSR). This PSR also contained a brief ICOAR.
153․It is self-evident that these PSRs are somewhat out of date. The offender did not attend a hearing on 7 August 2024, and I issued a warrant for his arrest.
154․Regrettably, after the offender’s arrest and remand, the offender did not choose to engage with the authors of the PSR and the ICOAR reports. As such, Corrections was only able to produce a “no-show” PSR dated 8 October 2024 (the “no-show” PSR) and a “no-show” ICOAR dated 8 October 2024 (the “no-show” ICOAR).
155․As such, the most up to date report I have concerning the offender’s subjective circumstances emerges from the psychologist’s report. I also note the timeline of the offender’s time in rehabilitation over the course of 2024 (the rehabilitation timeline), referred to the Court as a matter of joint position of the parties on 8 January 2025.
156․Additionally, in evidence before me are PSRs prepared in relation to the offender in 2018 and 2019. I note that the 2019 PSR contains no relevant details, as the offender chose not to engage with the author during the preparation of that report.
[Paragraphs 157 and 158 redacted]
August 2023 PSR
159․This PSR relates to both the June 2021 and July 2022 offending, save for the damage property by joint commission charge (CC2022/7386).[143]
[143] See August PSR page 1, 4.
Familial background
160․It is clear, in my view from the PSR, that the offender has had a severely disadvantaged background.
161․The offender reported to the author of the August 2023 PSR that he was born and raised in Canberra, and is one of two children of his parent’s union, and has a younger half-brother. The offender described his upbringing in generally negative terms, noting he had been exposed to illicit substance use from a young age. [144]
[144] August PSR page 2.
162․[Redacted]
163․The offender described currently having a positive relationship with his mother, and stated they had remained in contact while he had been in custody. By contrast, the offender reported no contact with his father since his early childhood. The author noted that the offender’s mother verified this information and that both the offender’s parents and brothers had criminal records.
Further Relevant Matters
164․The offender reported that he had been residing with his mother and younger brother prior to entering custody.
165․The report further noted interruptions in the offender’s education. The offender reported that following year seven, his schooling [redacted]. The offender reported he had been enrolled in Year 12 at a college in 2021 but had subsequently failed to complete these studies.[145]
[145] August PSR page 2.
166․The offender reported to the author that he had been employed in the demolition industry for approximately seven months prior to entering custody, and that this had been his longest term of employment.[146] The offender’s mother described the offender as possessing a strong work ethic and noted that he had been well regarded by his employers and colleagues. At the time of this report, the offender worked as a sweeper at the AMC. [147]
[146] August PSR page 2.
[147] August PSR page 3.
167․For his part, the offender stated an intent to return to the construction industry upon release. However, the offender identified that his long-term goal was to study at university and to pursue a career that would enable him [redacted]. The offender claimed that, as a result of having completed a course in construction while in custody, the offender would have a position in the industry upon release. However, the author noted that this claim was unable to be verified.[148]
[148] August PSR page 3.
168․The offender reported to the PSR author that he had been undertaking a university bridging course while in custody. However, the author referred to AMC education staff verifying that the offender had not completed the course, nor any of the required assessments.[149]
[149] August PSR page 3.
169․Relatedly, this report also cited service records which indicated that the offender made numerous attempts to enrol in the Brief Intervention Programs while in custody. However, the offender was regrettably unsuccessful in these attempts, as these programs had been temporarily removed from the programs schedule.[150] The author noted that the Corrections Programs Unit advised that the offender could be assessed for the EQUIPS (Explore, Question, Investigate, Practice, Succeed) suite of therapeutic and educational programs aligned to his areas of criminogenic risk once sentenced.
[150] August PSR page 3.
170․The August 2023 PSR noted that, for his part, the offender completed several self-paced booklets including “Keeping Myself Well”, “Self Esteem”, “Goal Setting”, “Conflict Resolution” and “Introduction to Recovery”. It was additionally confirmed the offender had completed courses in Safe Work Practices, Hygienic Practices for Food Safety, Responsible Service of Alcohol and Construction.
171․I note that the offender stated to the author an intent to enter a residential rehabilitation facility immediately after being released from custody.
172․To the author of the report, the offender claimed to have some pro-social friends in the community, however noted that most of his companions had been involved in some form of criminal activity.
173․The offender reported that he had been in the company of other people during the commission of the current offences. However, the offender indicated to the author of the report his reluctance to discuss this further as he did not want their involvement recorded.[151]
[151] August PSR page 3.
Alcohol and Drug Use
174․To the author of the August 2023 PSR, the offender reported a history of alcohol abuse from when he was approximately 11 years old. The offender stated he often drank to intoxication on weekends and at social gatherings and had experienced memory loss. The offender noted one occasion where he had been hospitalised due to alcohol consumption. [152]
[152] August PSR page 3.
175․The offender’s mother for her part attributed the offender’s alcohol abuse as being related to his traumatic childhood.
176․As to drug use, the offender reported that he began using cannabis when he was 12 years old, smoking the substance daily until he was 17. The offender additionally reported the occasional use of other substances, including prescription medications and heroin.[153] The offender reported commencing methamphetamine use at the age of 13 years, which escalated to the daily use of up to a few points of the substance every day.
[153] August PSR page 3.
177․The author of the report noted that the offender provided conflicting information regarding his illicit substance use. The offender initially stated that he had ceased all use of illicit substances at around 17 years of age, after engaging in counselling. However, the offender later reported he had used illicit substances up until his incarceration in August 2022.
178․The author noted that the offender was reluctant to disclose his drug use in recent years and his current use of illicit substances. However, the offender again identified that he needed to attend a residential rehabilitation facility upon his release from custody in order to achieve abstinence.
179․Finally, the report noted that during the current custodial period (presumably up until the date of the report), the offender had been subject to one urinalysis test on 8 November 2022. The test returned a negative result.[154]
[154] August PSR page 3.
Medical, Emotional and Mental Health
180․The August 2023 PSR noted a Canberra Health Service discharge summary dated July 2020, which recorded the offender as being diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD), drug induced psychosis, substance use disorder and alcohol use disorder.
181․The August 2023 PSR also noted a Canberra Health Services letter dated March 2023 and updated information received on July 2023 which indicated that the offender had no current health or mental health diagnoses, nor current medications or treatments apart from monthly Buvidal injections which commenced 2023. [155]
[155] August PSR page 4.
182․For his part, the offender denied any current diagnosis of ADHD. The offender also reported no history of serious mental health conditions and denied ever self-harming or experiencing suicidal thoughts. However, the offender did disclose experiencing anxiety and depression at times.[156]
[156] PSR page 4.
183․The offender’s mother stated a belief that the offender requires further psychological assessment in order to address childhood trauma. For his part, the offender also reported to the author that he had expressed interest in engaging with a psychiatrist to explore his mental health and any related diagnosis. The offender claimed this option had been unavailable to him while in custody. The author cited service records which verified that the offender engaged with the Supports and Interventions Unit at AMC for four psychology sessions since April 2023, with his psychologist reporting positive engagement during these sessions.[157]
[157] PSR page 4.
184․The author opined that the offender may benefit from further assessment to identify and confirm any diagnoses.[158]
[158] PSR page 5.
December 2023 PSR
185․I note that this PSR related to the damage property by joint commission offence that formed part of the July 2022 offending.
186․As noted by the author of the December 2023 PSR, the offender presented as “uninterested in participating” and repeatedly stated that the information he reported to the author of the August 2023 PSR remains unchanged. As such, the author noted that the majority of the information from the December 2023 PSR has been extracted from the August 2023 PSR.
Prior contact with corrections
187․The information contained in the December 2023 PSR on this subject is broadly similar to the August 2023 PSR. The December 2023 PSR did clarify that the offender received behavioural warnings on three occasions and commendations for positive behaviour on two occasions since he was held on remand in August 2022.[159]
[159] December PSR page 1.
Other matters
188․Beyond similar information to that reported in the August 2023 PSR, the offender relevantly disclosed to the author of the December 2023 PSR [redacted].
189․The December 2023 report noted that the offender has successfully maintained his employment as a sweeper. The offender was also enrolled on a Young Offender Pilot Program on 21 September 2023, although he was exited on 9 October 2023 due to poor attendance.
190․The offender relevantly reported that, at the time, the offender had submitted applications to several residential rehabilitation programs in the community, including the Triple Care Farm, Wayback, We Help Ourselves (WHOS), and Oolong House.
Medical, Emotional and Mental Health
191․The offender described his current mental health as stable. However, the author of the December 2023 PSR noted that service records indicate that the offender was identified by custodial staff as a “Prisoner at Risk” on 31 October 2023. The identification was made following observations that the offender was of “unkempt appearance, poor self-care and unsettled behaviour”, as well as demonstrating “general alert behaviours”.[160]
(d)amend the good behaviour order;
(e) if the offender has given security under the order—
(i) order payment of the security to be enforced; and
(ii) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended);
(f) cancel the order.
Examples for par (d)
impose or amend an additional condition of the order, or amend the term of the order
(3) If the court cancels the good behaviour order, the court must—
(a) if section 109 applies to the offender’s good behaviour order—deal with the offender under that section; or[233]
[233] This only applies if the good behaviour order was made under s 17 of the Sentencing Act (Non-conviction orders).
(b)in any other case—re-sentence the offender for the offence for which the good behaviour order was made (the relevant offence).
340․A resentencing exercise is conducted under the same terms as the original sentence. The Court should possess all relevant previous evidence and be appraised of up to date information concerning the offender since that time.[234]
[234] PWS at [88].
341․In this case, the prosecution noted in its written submissions that it would be appropriate for the Court to either cancel the good behaviour orders and resentence the offender or alternatively simply take no further action.[235] Counsel for the prosecution noted in written submissions that the appropriateness of both options are dependent on how the Court approaches the sentence exercise for the fresh offending and the breach of other good behaviour orders with suspended sentences.[236]
[235] PWS at [89].
[236] PWS at [90].
342․In contrast, counsel for the offender submitted that the appropriate course in relation to these orders is to take no further action given the “future orders that are to be made”.[237] In counsel’s submissions, there is no utility in resentencing other than noting the existence of the good behaviour orders at the time of the offending as an aggravating factor.[238] I accept the submissions of counsel for the offender in this regard. It is appropriate concerning the good behaviour orders without an attached suspended sentence to take no further action.
[237] OWS at [20].
[238] OWS at [20].
343․In my view, the appropriate course taking into account the submissions I have reviewed and the evidence in this case is to note the existence of the good behaviour orders at the time of the offending and as I have discussed earlier in this judgment, refer to the aggravating factor on sentence for the later offences.
Sentence
344․It must be recognised by the Court that the offences committed against the victims have had a serious and significant impact upon all the victims. Both the short and long-term consequences of being a victim of these offences must be acknowledged and is acknowledged by this Court.
345․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 offences and subjective matters relevant to the offender.
346․Firstly, in relation to the matters of the breach of good behaviour orders with suspended sentences, I impose the following sentences (noting that this mirrors the previous sentencing structure):
[Redacted]
347․The appropriate sentence for attempted robbery (CC2022/10336), contrary to s 309 of the Criminal Code by virtue of s 44 is 19 months imprisonment, reduced to 14 months and 7 days’ imprisonment in accordance with the 25% discount on account of the plea of guilty. The sentence for this offence will commence on 16 April 2024 and expire on 22 June 2025.
348․The appropriate sentence for riding a motor vehicle without consent (CC2022/2682), contrary to s 318(2) of the Criminal Code is 6 months’ imprisonment, reduced to 4 and a half months’ imprisonment in accordance with the 25% discount on account of the plea of guilty. The sentence for this offence will commence on 16 April 2024 and expire on 30 August 2024.
349․The appropriate sentence for common assault (CC2022/2681), contrary to s 26 of the Crimes Act is 8 months imprisonment, reduced to 6 months imprisonment in accordance with the 25% discount on account of the plea of guilty. The sentence for this offence will commence on 16 April 2024 and expire on 15 October 2024.
350․The appropriate sentence for aggravated burglary by joint commission (CC2023/959), contrary to s 312 of the Criminal Code by virtue of s 45A is 44 months’ imprisonment, reduced to 39 months and 18 days’ imprisonment in accordance with the approximately 10% discount on account of the plea of guilty. The sentence for this offence will commence on 23 April 2025 and expire on 9 August 2028.
351․The appropriate sentence for damage property by joint commission (SCCAN2023/378), contrary to s 403 of the Criminal Code by virtue of s 45A of same is 9 months’ imprisonment, reduced to 8 months and 3 days’ imprisonment in accordance with the approximately 10% discount on account of the plea of guilty. The sentence for this offence will commence on 23 April 2025 and expire on 25 December 2025.
352․The appropriate sentence for assault occasioning actual bodily harm by joint commission (CC2023/962), contrary to s 24(1) of the Crimes Act by virtue of s 45A of the Criminal Code is 14 months’ imprisonment. This charge was the subject of the judge alone trial by Berman AJ, and so accordingly there is no discount to be applied. The sentence for this offence will commence on 23 April 2025 and expire on 22 June 2025.
353․The appropriate sentence for aggravated dangerous driving (CC2022/7390), contrary to s 7(1) of the RTSM Act aggravated by virtue of ss 7A(1)(a)(i) and 7A(2) is 14 months’ imprisonment, reduced to 11 months and 27 days’ imprisonment in accordance with the approximately 15% discount on account of the plea of guilty. The sentence for this offence will commence on 10 April 2028 and expire on 5 April 2029.
354․The appropriate sentence for failing to stop motor vehicle for police (CC2022/7389), contrary to s 5C of the RTSM Act is 10 months’ imprisonment, reduced to 8 months and 15 days’ imprisonment in accordance with the approximately 15% discount on account of the plea of guilty. The sentence for this offence will commence on 25 November 2027 and expire on 8 August 2028.
355․The appropriate sentence for driving a motor vehicle without consent (CC2022/10061),[239] contrary to s 318(2) of the Criminal Code is 8 months’ imprisonment, reduced to 6 months and 24 days’ imprisonment in accordance with the approximately 15% discount on account of the plea of guilty. The sentence for this offence will commence on 25 November 2027 and expire on 17 June 2028.
[239] Included in SCC 23 of 2023.
356․The appropriate sentence for damaging property by joint commission (CC2022/7386), contrary to s 403 of the Criminal Code by virtue of s 45A of same is 12 months’ imprisonment, reduced to 10 months and 5 days’ imprisonment in accordance with the approximately 15% discount on account of the plea of guilty. The sentence for this offence will commence on 25 November 2027 and expire on 29 September 2028.
357․The appropriate sentence for driving a motor vehicle with a level 3 prescribed concentration of alcohol (PCA) (CC2022/7391), contrary to s 19(1) of the RTAD Act is 2 months’ imprisonment, reduced to 1 months and 21 days’ imprisonment in accordance with the approximately 15% discount on account of the plea of guilty. The sentence for this offence will commence on 25 November 2027 and expire on 14 January 2028.
358․The appropriate sentence for driving whilst disqualified (CC2022/7393) contrary to s 32(1)(a) of the RTDL Act is to pay a fine of 3 penalty units with no time to pay.
359․The appropriate penalty for not giving required particulars as a driver involved in a crash (CC2022/7392), contrary to r 287(1) of the Road Rules by contravening r 287(2)(a) is 3 penalty units with no time to pay.
Disqualification
360․Concerning the offence of failing to stop motor vehicle for police (CC2022/7389), I note the automatic disqualification period of 12 months. Concerning the offence of aggravated dangerous driving (CC2022/7390) I note the automatic disqualification period of 12 months.
361․Concerning the offence of driving whilst disqualified (CC2022/7393), I note the automatic disqualification period of 12 months.
362․Concerning the offence of driving a motor vehicle with a level 3 PCA (CC2022/7391), I order a disqualification period of 6 months.
363․I note there was no submission made by the prosecution against concurrency concerning the disqualification periods.[240] Therefore, in this case I determined that the disqualification periods should be concurrent, considering that this would allow the offender to obtain a drivers license which is an important factor within the issue of rehabilitation.
[240] Transcript, 18 July 2025, page 20.
364․The disqualification periods will commence upon conviction of sentence on 24 July 2025: see s 68 of the RTG Act.[241]
[241] Transcript, 18 July 2025, page 22, 23.
Non parole period
365․Overall, the sentence will result in an effective non-parole period of approximately 51.5% taking into account that the formal start date of the non-parole period cannot formally commence until 16 April 2024: s 64(2) Sentencing Act. The offender will therefore be eligible to apply for parole on 26 February 2026 (see graph of overall sentence at ‘Annexure B’).
Orders
366․For the above reasons, the following orders are made:
a)In relation to the matters of the breach of good behaviour orders with suspended sentences, I impose the following sentences:
[Redacted].
b)In relation to the breach of good behaviour orders without suspended sentences, for [redacted].
c)For the offence of attempted robbery (CC2022/10336), contrary to s 309 of the Criminal Code by virtue of s 44, the offender is convicted and sentenced to 14 months and 7 days’ imprisonment. The sentence for this offence will commence on 16 April 2024 and expire on 22 June 2025.
d)For the offence of riding a motor vehicle without consent (CC2022/2682), contrary to s 318(2) of the Criminal Code, the offender is convicted and sentenced to 4 months and 15 days’ imprisonment. The sentence for this offence will commence on 16 April 2024 and expire on 30 August 2024.
e)For the offence of common assault (CC2022/2681), contrary to s 26 of the Crimes Act, the offender is convicted and sentenced to 6 months’ imprisonment. The sentence for this offence will commence on 16 April 2024 and expire on 15 October 2024.
f)For the offence of aggravated burglary by joint commission (CC2023/959), contrary to s 312 of the Criminal Code by virtue of s 45A, the offender is convicted and sentenced to 39 months and 18 days’ imprisonment. The sentence for this offence will commence on 23 April 2025 and expire on 9 August 2028.
g)For the offence of damage property by joint commission (SCCAN2023/378), contrary to s 403 of the Criminal Code by virtue of s 45A, the offender is convicted and sentenced to 8 months and 3 days’ imprisonment. The sentence for this offence will commence on 23 April 2025 and expire on 25 December 2025.
h)For the offence of assault occasioning actual bodily harm by joint commission (CC2023/962), contrary to s 24(1) of the Crimes Act, the offender is convicted and sentenced to 14 months’ imprisonment. The sentence for this offence will commence on 23 April 2025 and expire on 22 June 2026.
i)For the offence of aggravated dangerous driving (CC2022/7390), contrary to s 7(1) of the RTSM Act, the offender is convicted and sentenced to 11 months and 27 days’ imprisonment. The sentence for this offence will commence on 10 April 2028 and expire on 5 April 2029.
j)For the offence of failing to stop motor vehicle for police (CC2022/7389), contrary to s 5C of the RTSM Act the offender is convicted and sentenced to 8 months and 15 days’ imprisonment. The sentence for this offence will commence on 25 November 2027 and expire on 8 August 2028.
k)For the offence of driving a motor vehicle without consent (CC2022/10061), contrary to s 318(2) of the Criminal Code the offender is convicted and sentenced to 6 months and 24 days’ imprisonment. The sentence for this offence will commence on 25 November 2027 and expire on 17 June 2028.
l)For the offence of damaging property by joint commission (CC2022/7386), contrary to s 403 of the Criminal Code by virtue of s 45A the offender is convicted and sentenced to 10 months and 5 days’ imprisonment. The sentence for this offence will commence on 25 November 2027 and expire on 29 September 2028.
m)For the offence of driving a motor vehicle with a level 3 prescribed concentration of alcohol (PCA) (CC2022/7391), the offender is convicted and sentenced to 1 months and 21 days’ imprisonment. The sentence for this offence will commence on 25 November 2027 and expire on 14 January 2028. The offender is disqualified from driving for a period of 6 months from today, 24 July 2025.
n)For the offence of driving whilst disqualified (CC2022/7393) contrary to s 32(1)(a) of the RTDL Act the offender is convicted and I order the offender to pay a fine of 3 penalty units with no time to pay.
o)For the offence of not giving required particulars as a driver involved in a crash (CC2022/7392), contrary to r 287(1) of the Road Rules by contravening r 287(2)(a), offender is convicted and I order the offender to pay a fine of 3 penalty units with no time to pay.
p)The total sentence I impose is for 6 years 4 months and 21 days’ imprisonment from 16 November 2022 to 5 April 2029. This sentence is subject to a non-parole period of 1 year, 10 months and 11 days that commences on 16 April 2024 as per s 64(2) of the Sentencing Act and the prohibition on non-parole periods thereto. Nevertheless, this results in a non-parole period overall of 51.4% taking into account that the formal start date of the non-parole period does not commence until 16 April 2024 in accordance with s 64(2) of the Sentencing Act. The offender will become eligible for parole on 26 February 2026.
Assistance of Counsel
367․I wish to formally record in this judgment the following. Counsel for the prosecution Mr Dyason and counsel for the offender Mr Jackson were both of utmost assistance in their duty as counsel, to assist the Court. Counsel were both assiduous in their legal work in this sentencing matter that involved quite some complexity. That is a credit to the professionalism of both Mr Dyason and Mr Jackson.
| I certify that the preceding three hundred and sixty-seven [367] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson Associate: Date: 24 July 2025 |
ANNEXURE A
| Case | Objective Features | Subjective Features | Outcome |
| DPP v CR (a pseudonym) [2023] ACTSC 293 Taylor J 18 October 2023 | Charges 1 x Counsel or procure aggravated robbery 4 x Dishonestly drive or ride motor vehicle without consent 3 x Burglary joint commission 2 x Theft joint commission 1 x Aggravated burglary joint commission 1 x Aggravated robbery joint commission Facts The offender was sentenced for a spree of offences, committed with co-offenders when he was 18 years old. At the time of the offences the offender was subject to a suspended period of imprisonment and ICO as well as bail conditions. Objective seriousness “Based on the circumstances known to this Court and applying the factors in Kelly, including the nature, circumstances and timing of the breaching conduct, as well as my view that the conduct demonstrates clearly the offender’s intention to ignore his obligation to be of good behaviour, the only appropriate outcome in relation to the breach of the SSO is the imposition of the sentence.” Plea: 20% | “The youth of the offender is a compelling factor; the community has a clear interest in an outcome that promotes rehabilitation. On the other hand, the serious nature and scope of the offending requires an outcome that properly takes account of the purposes of sentencing which includes punishment and accountability.” | Total sentence pf 6 years 1 month 6 days imprisonment with a non parole period of roughly 50% |
| R v Minnis Murrell CJ 23 September 2014 | Charges Facts Objective seriousness Plea: N/A | 29 years old When offence was committed he was essentially homeless and debts of $10,000 | AOABH – 2 years imprisonment Total sentence of 6 years imprisonment – First 2 years and 3 months to be served in full-time imprisonment, before a period of periodic detention and then a good behaviour order. |
| R v Andy [2022] ACTSC 54 Murrell CJ 10 September 2021 and 23 March 2022 | Charges Facts Objective seriousness Plea: 15-20% | 38 years old at time of offending At 13 was sexually abused | Agg burg – 28 months imprisonment 2.5 years imprisonment fully suspended on imposition of good behaviour order for 2 years |
| R v Lindley-Jones 23 September 2014 | Charges Facts Objective seriousness It is true that the offence occurred at residential premises when someone was at home and known to be at home by the offender. However, it was in the middle of the day and the offender was known to the complainant and the intended victim, his son. It could be characterised as a very unpleasant altercation between neighbours.” The decision by the offender was spontaneous in an attempt to have property he believed was stolen returned. “In my view it is an unusual case of aggravated burglary. It is difficult to assess its seriousness against other cases. It is of significant seriousness but, in all the circumstances, it is towards the lower end of objective seriousness.” Plea: 25% | 45 years old Unenviable criminal history – many matters of dishonesty and violence Deprived background – mother was an alcoholic Suffered physical abuse as a child History of substance abuse | 25 months imprisonment Non parole period of 14 months |
0
81
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