Director of Public Prosecutions v Hudson
[2024] ACTSC 159
•23 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Hudson |
Citation: | [2024] ACTSC 159 |
Hearing Date: | 16 May 2024 |
Decision Date: | 23 May 2024 |
Before: | Hopkins AJ |
Decision: | See [90], [98]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order Assessment – contravention of family violence order – theft – common assault – use carriage service to menace/ harass – references to Bugmy Bar Book – rehabilitation – Drug and Alcohol Treatment Order imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 12A, 34B, 80A, 80S, 80T, 80W, 80Y |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Texts Cited: | Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report, June 2021) |
Parties: | Director of Public Prosecutions ( Crown) Aaron Hudson ( Offender) |
Representation: | Counsel B Morrisroe ( Crown) S Baker-Goldsmith ( Offender) |
| Solicitors ACT Director of Public Prosecutions Peter Agoth & Associates ( Offender) | |
File Number: | SCC 12, 13 of 2024 |
HOPKINS AJ:
Introduction
1․Aaron Hudson, you are to be sentenced for family violence and related offences committed on 2 June and 13 October 2022. These are serious offences involving a significant degree of violence. For this reason, a substantial term of imprisonment must be imposed upon you.
2․Because you are dependent on a controlled drug and this dependency substantially contributed to your offending, you have asked that I make a Drug and Alcohol Treatment Order (Treatment Order). This would suspend the sentence of imprisonment and enable you to address your dependency, your violence, your mental health, and the traumatic childhood and life experiences that underlie your offending behaviour. It would enable you to work towards your rehabilitation in the community under strict supervision with intensive support.
3․I consider that you have demonstrated your readiness to do the hard work required of you under a Treatment Order. I will impose a total sentence of imprisonment of 17 months and 5 days. You have already served 3 months and 5 days of that sentence. I will make an order suspending the remaining 14 months of your sentence on the condition that you engage in a treatment program for 14 months.
4․I will now explain why this is the appropriate sentence and why it is appropriate for you to be given the opportunity to pursue your rehabilitation under a Treatment Order.
The offences
2 June 2022 offences
5․On 2 June 2022, you committed the offences of:
(1)Contravene family violence order (CAN5361/2023), with a maximum penalty of 5 years imprisonment: s 43(2) of the Family Violence Act 2016 (ACT);
(2)Theft (CAN5363/2023), with a maximum penalty of 10 years imprisonment: s 308 of the Criminal Code (ACT);
(3)Common Assault (CAN5362/2022), with a maximum penalty of 2 years imprisonment: s 26 of the Crimes Act 1900 (ACT);
(4)Possess a knife without reasonable excuse (CAN5997/2022), with a maximum penalty of 6 months imprisonment: s 382(1) of the Crimes Act 1900 (ACT);
(5)Possess ammunition (CAN5998/2023), with a maximum penalty of a fine of $1,600: 249(1) of the Firearms Act 1996 (ACT).
6․For each offence where a term of imprisonment can be imposed, a fine can also be imposed in addition to or instead of imprisonment.
7․The facts relating to these offences can be summarised as follows.
8․In 2021, you commenced an intimate relationship with your then partner, whom I will identify by the pseudonym of “Olivia MacDonald” (Ms MacDonald). She is the mother of your son. In March 2022, your relationship with Ms MacDonald ended.
9․On 5 April 2022, Ms MacDonald was granted an Interim Family Violence Order (FVO). You were the respondent to this order. Ms MacDonald was the protected person. This order was amended by consent on 20 May 2022. It was in force on 2 June 2022, when you committed the offences.
10․Amongst other things, the FVO prohibited you from engaging in behaviour that constitutes family violence, and from being at the home of Ms MacDonald or within 50 metres of her, except when engaging in contact handover of your then infant son. The FVO also prohibited you from contacting Ms MacDonald except in defined circumstances, including in relation to facilitating contact handover.
11․At 9:30am on 2 June 2022, you attended the home of Ms MacDonald to provide her with baby formula. This had been arranged in the previous week. There is no suggestion that you attended with any ill intent.
12․You spoke to Ms MacDonald who was holding your son. Ms MacDonald had her mobile phone with her. The phone gave her a sense of safety.
13․At some stage during the interaction, Ms MacDonald left her phone unattended. You took the phone (CAN5363/2023) and left the house, entering your utility vehicle. She did not give you consent to take the phone. It is not clear what motivated you to do this. By taking Ms MacDonald’ phone, and then keeping it against her wishes, you were exercising power and control over her. This makes your conduct with the phone both an act of family violence (CAN5361/2023) and a theft (CAN5363/2023).
14․Shortly after, Ms MacDonald realised that you had taken her phone. She came outside and entered the passenger side of your vehicle to try to get it back.
15․You attempted to use the facial recognition feature of the phone to open it by shoving the phone in her face.
16․Ms MacDonald then mistook your phone for hers, grabbing it and attempting to leave the vehicle. You said words to the effect of, “If you don’t let go of the phone you are going to get hurt”.
17․You attempted to get your phone back, pushing Ms MacDonald in the chest with your elbow. This caused her to feel pain. This was an assault which was also an act of family violence, that needs to be understood in the context of the power and control you exhibited throughout the course of the offending (CAN5362/2022, CAN5361/2023).
18․Ms MacDonald then got out of the vehicle and ran inside, locking the front door. She was still in possession of your phone.
19․You went around the back of the house and entered through the back door. Once inside, you picked your son up from a rocker and left the house. You put him in the passenger seat and started the vehicle in an attempt to drive off. He was not restrained in an appropriate infant car seat.
20․Ms MacDonald tried to stop you from leaving with your son by turning the vehicle off. A neighbour heard her yelling “don’t drive off with the baby without a car seat” and “he’s got my phone”. A second neighbour heard her yelling “give me my baby, give me my phone”. A third neighbour managed to take your son out of the car and return him to Ms MacDonald.
21․Ms MacDonald then offered to swap phones so that you would each have your phones back.
22․You did not return her phone. Instead, you drove off with her phone in your vehicle.
23․At around 10:45am, police located your vehicle parked approximately 100 metres away. They then located you about 5 to 10 metres from Ms MacDonald’ home.
24․You were arrested. You told police you were experiencing pain in your shoulder. An ambulance was called. Whilst you were waiting with police for the ambulance to arrive, you told them you had two knives in your pockets. Police searched you and located a multitool and a folding knife (CAN5997/2022). You did not have a reasonable excuse for possessing this knife.
25․When police searched your vehicle the following day, they located Ms MacDonald’ phone in the cabin, and a number of small calibre ammunition rounds inside a toolbox on the tray of the vehicle.
13 October 2022 offence
26․On 13 October 2022, you committed the offence of using a carriage service to menace (CAN10148/2022), with a maximum penalty of 5 years imprisonment: s 474.17 of the Criminal Code Act 1995 (Cth).
27․The facts of this offence can be summarised as follows.
28․You had been in an intimate relationship with the victim, whom I will identify by the pseudonym of “Leah Clark” (Ms Clark) for about four months.
29․On Monday 10 October 2022, you ended the relationship after Ms Clark told you that she was pregnant and did not intend to terminate the pregnancy.
30․On Wednesday 12 October 2022, Ms Clark came to your home in Queanbeyan to collect her belongings. You were there with another person. A short time later, you left. After you left, Ms Clark collected her belongings and other items from the house, the ownership of which may be disputed.
31․On Thursday 13 October 2022, you sent text messages to Ms Clark as part of an exchange that you initiated. These text messages were menacing and harassing (CAN10148/2022). They became increasingly intimidating and threatening. They caused Ms Clark to feel fear for her safety and the safety of her family, including her daughter.
32․I have read these text messages. They are disturbing. The language used towards Ms Clark is extremely degrading, the threats are terrifying. It is necessary for me to include some of the content so the degree of intimidation and seriousness of the offence can be understood.
33․The exchange progressed from degrading to menacing with you stating: “Unpredictable okay [redacted], you wanna see unpredictable? Is that what you really wanna see? Coz by all means you can see unpredictable angry pissed off me if you want, but I really don’t fucking recommend it.”
34․Ms Clark responded to the effect that she did not want to see you behave in an unpredictable way. Her text is clearly an attempt to calm you. Your next text reads: “To late. Even I don’t want to see unpredictable me but guess what…Use are all about to. Just ask Kayla what happens”.
35․Ms Clark then sent a text asking what you were going to do, and then a further text asking you not to come “here”. You responded: “To late!! Everyone’s gunna see what I’m gunna do soon!!! Ill be in jail or dead by the morning!”
36․Ms Clark responds that she will call the police. Then, in a succession of texts you make clear that the police will not stop you, going on to refer to yourself as “unpredictable bikie me that has nothing to live for!!!!”. You then text “Jail or death who gives a fuck!” and “no cunt is going to stop me”. The exchange is interspersed with responses from Ms Clark in which she pleads with you not to come over or drag her family into the violence. Her fear and distress are apparent from her words. The exchange, recorded in the Agreed Statement of Facts dated 8 May 2024, concludes with you messaging: “No worries see you soon”.
37․In fear of her safety and that of her family, Ms Clark, her mother, and the children that were with them, left their location for a safer place.
38․At about 11:30pm the same day, you sent Ms Clark a Snapchat video of you inside your house consuming a significant quantity of medication, in what she believed was an attempt to take your own life. She reported your suspected overdose to the police.
39․You were arrested on the afternoon of 14 October 2022. In a record of interview, you told police that you did not remember sending the text messages and that you were in the middle of a mental health crisis.
Impact on the victims
40․No victim impact statements were provided to the Court. Despite this, there is no doubt your offending caused very significant fear to both victims at the time. Your offending will inevitably have a lasting impact. Both victims will live with the memory of your violence and the fear they experienced as a result of your actions and words.
41․I do not know whether it will be possible for you address the harm that you have caused and rebuild trust with the mothers of your children. I hope that this will be possible for you. It will take a lot of hard work. It will take patience and a deep commitment to change.
Objective seriousness and considerations applicable to family violence offences
42․An assessment of the seriousness of your offending on each occasion requires consideration of “the nature of family violence and the context of the offending”: s 34B(1) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
43․Family violence is unacceptable in any form. Freedom from family violence is a human right. This freedom must be respected and protected. Whilst anyone may be the victim of family violence, it is predominantly committed by men against women and children. Family violence extends beyond physical violence and may involve exploitation of power imbalances and patterns of abuse over many years. Children exposed to family violence are particularly vulnerable and exposure may have a serious impact on their current and future physical, psychological, and emotional wellbeing. Addressing family violence requires promoting accountability of perpetrators and appropriate intervention: Preamble of the Family Violence Act 2016 (ACT).
44․Particular features that either increase the objective seriousness of your offending, or otherwise require consideration in determining the appropriate sentence to impose, include the fact that in each case, Ms MacDonald and Ms Clark experienced violence from you in or around their home or a place where they were entitled to feel safe. Your infant son was present, though hopefully less likely to be impacted due to his age. You also have a history of serious family violence convictions, demonstrating that there is a pattern of behaviour that must be firmly addressed: see s 34B of the Sentencing Act.
45․In relation to your offending against Ms MacDonald on 2 June 2022, there was no apparent pre-meditation. The behaviour was instead consistent with a lack of impulse control in circumstances where you were affected by the misuse of prescription medication. Whilst the theft of the phone and the assault are not, of themselves, serious examples of those offences, they must be understood in the context of the contravention of the FVO. The contravention of this FVO, understood as the course of conduct, is a serious example of such offending. You exercised, or sought to exercise, power and control over Ms MacDonald for a protracted period. This involved the theft of her phone, the push, the unwanted entry into her home, the removal of your son from her care, and the intervention of neighbours. I note that the phone was returned to Ms MacDonald after it was found by police.
46․There is nothing remarkable about the offences of possessing a knife and ammunition. It is not suggested that this possession was related to the family violence offending for which you are to be sentenced. However, possession of and access to a knife and ammunition by a person who has the capacity to act in the way you did is of significant concern.
47․In relation to the offending against Ms Clark on 13 October 2022, there is the number, nature, and content of the text messages, together with the fear they caused. Judging from the time markings on the screenshots depicting the text messages, the whole exchange took place over approximately 30 minutes. Your conduct is consistent with a lack of impulse control in circumstances in which you were affected by the misuse of prescription medication and the consumption of alcohol.
48․It is important to say that whilst your consumption of prescription medication and alcohol on these occasions helps to explain your actions, it does not excuse them in any way. Nor does it provide a complete explanation for your offending. This is why addressing the causes of your offending must go far deeper than simply addressing your drug and alcohol misuse.
Criminal history and conditional liberty
49․You have a significant criminal record which commences when you were [redacted]. Importantly, for the purposes of your sentencing today, you have been convicted of numerous offences involving violence, including assaults, using carriage services to menace/harass/offend, recklessly threatening to inflict grievous bodily harm, making a demand with threat to endanger health, blackmail, and recklessly inflicting actual bodily harm. Five of these offences were serious family violence or associated offences: see R v Hudson [2019] ACTSC 110 at [43]-[48]; Hudson v The Queen [2020] ACTCA 46.
50․You are not to be punished again for your past offences. However, this history demonstrates that your offending is not an aberration. Instead, it is a continuation of a pattern of offending.
51․The offences for which you are to be sentenced today were committed whilst you were on parole in relation to offences for which you were sentenced to imprisonment for four years and two months. You were granted parole on 19 April 2021. Your parole order ended on 18 December 2022. In addition, you committed the offence on 13 October 2022 whilst you were on bail. This is relevant to determining the appropriate sentence. It is an aggravating factor. It is also an indication that, if you are to break the cycle of offending, a different approach is necessary.
Plea of guilty, remorse, responsibility, and a foundation for change
52․In relation to the offences committed on 2 June 2022, you entered pleas of guilty part way through a hearing in which Ms MacDonald was required to give evidence against you. This must have been difficult for her. The fact that the hearing did not proceed to conclusion and the Magistrate did not have to make a decision provided some saving for the justice system and the community. This will be reflected in a limited reduction of your sentence by 5 percent.
53․In relation to the offence committed on 13 October 2022, after an initial plea of not guilty, the matter was listed for hearing on 12 July 2023. The victim, Ms Clark, did not attend. The matter was relisted for 12 December 2023. On this day you failed to attend. After you were remanded in custody, the matter was again listed for hearing on 28 March 2023. On 30 January 2024, you entered a plea of guilty. You are entitled to a more significant reduction because of the time and expense that was saved, and the fact that Ms Clark was not required to give evidence. I will reduce the sentence I would otherwise have imposed by a little over 10 percent.
54․Mr Hudson, you gave evidence at the sentence hearing on 16 May 2024. It was important that you did so. From what you said, I accept that you are sorry for what you did, and that you do understand that your actions caused fear to Ms MacDonald and Ms Clark. It is clear that you feel significant shame for what you have done.
55․Given the lateness of your pleas of guilty, I consider that it has taken you some time to face the reality of your actions, experience remorse, and develop a commitment to change.
56․That said, in your evidence you were frank in admitting that you have an issue with family violence, and you understand that to address this issue will require you to engage, wholeheartedly, in men’s behaviour change and family violence prevention courses, as well as counselling and other rehabilitation programs.
57․From what you said, I accept that you seek a Treatment Order because you want the opportunity to address your dependency and abuse of prescription medication, your violence as well as the traumatic childhood and life experiences that underlie your behaviour. Your degree of insight and expressed motivation to do the hard work that will be required of you to rehabilitate and heal give me the confidence that you have the capacity to succeed on a Treatment Order.
Subjective circumstances
58․Mr Hudson, I have read and considered the Canberra Health Services’ Drug and Alcohol Sentencing List Suitability Assessment Report and the ACT Corrective Services’ Drug and Alcohol Treatment Assessment. In addition to finding you suitable for a Treatment Order, the reports set out important information about your social history and background, physical and mental health, drug use history, and response to past orders and interventions.
59․You are a 30-year-old Aboriginal man. I have not been told who your people are, or the Country to which you belong, though I understand you have ancestral ties to the South Coast of New South Wales through your father.
60․I do not know whether connection to culture is important to you. If it is important to you, then you should know that strengthening this connection may be beneficial to your wellbeing, healing, and rehabilitation: Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report, June 2021).
61․You experienced significant disadvantage as a child. Your mother was dependent on heroin prior to and after you were born. She and your father separated when you were two. You stayed in her care despite her ongoing use of heroin until you were four or five years of age. These are formative years for a child. Research establishes “that children in families with parental or carer substance abuse are at greater risk of a range of adverse developmental outcomes”. It “may increase the likelihood of children being substance misusers themselves and being involved in the juvenile justice system”: Bugmy Bar Book Project Committee (eds), ‘Early Exposure to Alcohol and Other Drug Abuse’ Bugmy Bar Book (November 2019).
62․You then lived with your father until you were 14 years old in a positive home environment.
63․At the age of 14, you were “forced” out of your father’s home by your stepmother. You returned to live with your mother. She continued to be dependent on illicit substances. You were witness to altercations and violence.
64․Around this time, your half-brother passed away by suicide. You were prevented from going to the funeral. This was a particularly difficult time for you because you shared a close relationship. Your life “went off the rails”. [Redacted]. [Redacted], before moving to live with your aunt in Narooma until you were 18.
65․You left school in Year 8, having experienced behavioural challenges, and completed Year 10 [redacted]. The disruption of your schooling is a significant disadvantage: see, generally, Bugmy Bar Book Project Committee (eds), ‘Interrupted School Attendance and Suspension’ Bugmy Bar Book (October 2023)
66․From the age of 14 to 23, you did not speak with your father, or have his support. You re-established this relationship once your father separated from your stepmother.
67․Canberra Health Services’ clinical records indicate a childhood diagnosis of attention deficit hyperactivity disorder and autism spectrum disorder, along with a history of post-traumatic stress disorder (PTSD), dysthymia, and suicide attempts.
68․You relate your diagnosis of PTSD to seeing someone die in a workplace accident when you were 18 years old.
69․In addition to experiencing complex mental health challenges, you have faced significant physical challenges. These relate to workplace injury and ongoing chronic pain in your shoulder due to osteoarthritis. You also suffered a gunshot injury on 28 August 2023, that required 15 surgeries and four skin grafts. After you were remanded in custody on 13 December 2023 for failing to appear in court, you spent 42 days in The Canberra Hospital due to complications with your recovery. Complications continued after you were returned to prison. Since being granted bail on 8 March 2024, you appeared to have recovered well, though this recovery is ongoing. This injury and the use of pain medication related to that injury and your shoulder pain complicates your capacity to address your substance dependency.
70․Your primary drug dependency relates to opioids and benzodiazepine that were originally prescribed for you when you were 17 or 18 following a workplace injury. You were assessed as having a severe substance use disorder at the time of your offending, relating to these prescription medications. There is little doubt that this dependency, in conjunction with alcohol use on one occasion, contributed substantially to your offending behaviour.
71․A complicating feature of your history is your involvement with an Outlaw Motorcycle Gang (OMCG). I do not know how you came to be a part of this OMCG or how it impacted your life, other than the fact that your use of illicit substances increased during the period of your involvement. I am told that you are no longer a member of this OMCG. It will likely be critical to your long-term rehabilitation for you to ensure that you do not have any further association.
Prospects of rehabilitation
72․Despite significant challenges in your childhood that resulted in you leaving school at a young age, you went on to complete a Year 12 equivalent qualification “through tech” and then completed a Bachelor of Business. To your credit, you started your bachelor’s degree in custody and finished it in the community. These achievements were the foundation for you to develop successful consulting, export, and transport businesses.
73․You have been self-employed for over ten years, operating these businesses. During your time in custody, your businesses suffered significant losses to plant and equipment as a consequence of theft, and damage associated with that theft. These losses have not been recovered through insurance. This has substantially reduced turnover and profitability, resulting in you now focussing your attention on your transport operations. You remain positive about the prospects for this business.
74․You have enrolled to complete a Master of Occupational Health, Safety and Environmental Management.
75․You have identified treatment and rehabilitation goals, including to develop your capacity to be completely drug free so that you are “one hundred percent sober for [yourself and your] son”. You understand that to achieve this you will need therapy to address your drug use and your PTSD. As you made clear in your evidence, you also understand that it will be necessary for you to engage in men’s behaviour change programs as part of your Treatment Order. Completing these programs, and changing your behaviour, is critical to your capacity to be a full-time father for your two-year-old son.
76․Being the best father you can be for your son is core to your motivation. You also have a daughter who is 10 months old. Currently you are having no contact with her. You are hoping that this will change, so that you can develop a relationship with her and become the father that she deserves. For this to happen, you will need to work hard to address your substance dependency, your family violence issues, your mental health, and your overall wellbeing. You will have to work hard to rebuild the trust that has been lost because of your violent behaviours.
77․You have family support from your mother, who is now stable in her own recovery from illicit substance dependency. You also have the support of your father and sister, [redacted]. You have a particularly close relationship with your sister, who kept your businesses going whilst you were incarcerated.
78․Beyond your family, you have the support available to you through your connection with motorsport and sporting clubs. You are the coach of a local gridiron club and hope to resume playing when your leg has healed.
79․I was provided with four character references from people who have known you for five years or more in a personal or business capacity. Amongst other things, these references speak of you as hardworking, dedicated, intelligent, respectful, generous, and committed to family and friends. Some of the references refer to the challenges you have had with misuse of medication and emotion regulation. Some also speak of your remorse. All refer to your commitment to change, with the authors offering their ongoing support in this process.
Time in custody
80․It was agreed that you have spent a total of 95 days in custody in relation to these offences. I will backdate your sentence for the offence of using a carriage service to menace to 18 February 2024, so that it will be fully served today, 23 May 2024.
Sentencing purposes and consideration
81․With the exception of the offence of possession of ammunition, for which the maximum penalty is a fine, no sentence other than imprisonment is appropriate having regard to the seriousness of your offending.
82․In sentencing you today, I am required to consider the purposes of sentencing set out in s 7 of the Sentencing Act.
83․You must be adequately punished in a way that is just and appropriate. This requires consideration of the nature of your offending, the harm you caused and your moral culpability, judged by reference to your experience of disadvantage, which shaped your life as a child and continues to impact you today: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
84․Your sentence must deter you and others from offending, particularly from family violence offending. Your experience of childhood disadvantage reduces the extent to which you can be considered an appropriate vehicle for general deterrence. In plain speech, that means your experience as a child and its ongoing impact on you reduces the extent to which an example can be made of you to deter others from committing offences.
85․The sentence must recognise the harm you caused to Ms MacDonald and Ms Clark, along with others close to them who were impacted by your behaviour, and denounce the conduct you engaged in. It is important that you understand that I am not denouncing you as a person. You are responsible for your offending but it does not define you.
86․Importantly, the sentence must be designed to promote your rehabilitation and protect the community. Though these purposes can conflict, “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”: Hogan v Hinch [2011] HCA; 243 CLR 506 at 537. In your case, rehabilitation depends upon you being able to address your substance dependency, your violence, particularly family violence, and your underlying mental health. Your history of incarceration and the failure of prison to address your cycles of dependency and offending suggest that the intensity of supervision and support offered under a Treatment Order may provide the best potential for you and for the community.
Totality
87․The offence of using a carriage service to menace committed on 13 October 2022 is a discrete offence. It will receive a discrete sentence.
88․The offences committed on 6 June 2022 must each be considered separately. An appropriate sentence must be fixed for each. And yet, the offences of contravening a family violence order, theft, and assault are not, in reality, discrete or separate. The theft of the phone and the assault took place as part of the contravention of the family violence order and the charged conduct is part of the contravention. The assessment of objective seriousness of each offence is informed by the ways in which they relate. The violence involved and harm caused by each is inextricable from the other. This means there is a high degree of overlap. There will be a high degree of concurrency, or overlap, between the sentences imposed on you.
89․Ultimately, the totality principle requires me to step back and ensure that the total sentence imposed on you reflects the overall criminality of your offending, such that the aggregate sentence is just and appropriate for the offences: O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at 249-250. Further, the overall sentence must “hold out a proper measure of hope for, and encouragement to, rehabilitation and reform”: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 341.
Orders
90․For those reasons I will make the following orders:
(1)Aaron Raymond Hudson be convicted of use carriage service to menace/ harass or cause offence (CAN 10148/2022) and he be sentenced to 3 months 6 days imprisonment, reduced from 105 days on account of the plea of guilty, to commence on 18 February 2024 and end on 23 May 2024.
(2)Aaron Raymond Hudson be convicted of contravention of family violence order (CAN 5361/2022) and he be sentenced to 11 months 10 days imprisonment, reduced from 12 months on account of the plea of guilty, to commence on 23 May 2024 and end on 2 May 2025.
(3)Aaron Raymond Hudson be convicted of theft (CAN 5363/2022) and he be sentenced to 5 months 21 days imprisonment, reduced from 6 months on account of the plea of guilty, to commence on 11 December 2024 and expire on 31 May 2025.
(4)Aaron Raymond Hudson be convicted of common assault (CAN 5362/2022) and he be sentenced to 3 months 22 days imprisonment, reduced from 4 months on account of the plea of guilty, to commence on 1 March 2025 and end on 22 June 2025.
(5)Aaron Raymond Hudson be convicted of possess knife without reasonable excuse (CAN 5997/2022) and he be sentenced to 1 month imprisonment, reduced from 5 weeks on account of the plea of guilty, to commence on 23 June 2025 and end on 22 July 2025.
(6)Aaron Raymond Hudson be convicted of possessing ammunition (CAN 5998/2022) and he be sentenced to a fine of $400.00 to be paid within 12 months from today, 23 May 2024.
Drug and Alcohol Treatment Order
91․Mr Hudson, you have asked to serve your sentence as a Treatment Order to enable you to address your dependency on controlled drugs, your violent behaviour, and the underlying causes of your dependency and violence.
92․You are eligible for a Treatment Order. You have pleaded guilty, been convicted, and sentenced to a total period of imprisonment of between 1 and 4 years for four eligible offences, and you are not subject to a sentencing order for another offence: s 12A of the Sentencing Act.
93․I am satisfied on the balance of probabilities that you are dependent on a controlled drug, that this dependency substantially contributed to the commission of the offences, and that you will live in the Australian Capital Territory for the term of the sentence except as directed by the Court: s 12A(2)(a) of the Sentencing Act.
94․It is important to recognise that this is a finding that your dependency was a substantial contributing factor to your offending. It does not, and cannot, explain the family violence offending you engaged in. This is why addressing your dependency is only part of the work that you will have to do to achieve behaviour change as part of your Treatment Order. I trust that you understand this.
95․I consider that it is appropriate to make a Treatment Order having regard to applicable sentencing considerations, information given to the court relating to victim concerns, and the fact that you have given informed consent: ss 12A(2)(b)-(c) of the Sentencing Act.
96․I consider that a Treatment Order is appropriate having regard to the objects of such an order to facilitate your rehabilitation, reduce your dependency and associated health risks, assist your reintegration into the community and promote community safety: ss 12(a)(b)(iii) and 80A of the Sentencing Act. You are eligible for a Treatment Order.
97․Further, I am satisfied, having regard to the treatment and suitability assessments before the Court, that a Treatment Order is suitable for you, that it is appropriate for you to serve a sentence suspended in accordance with a Treatment Order, and that appropriate arrangements for the administration of that order are practicable: ss 80S and 80T of the Sentencing Act.
Orders
98․For those reasons I will make the following orders:
(7)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Aaron Raymond Hudson in respect of the eligible offences of contravention of family violence order (CAN 5361/2022), theft (CAN 5363/2022), common assault (CAN 5362/2022), possess knife without reasonable excuse (CAN 5997/2022), of which Aaron Raymond Hudson has been convicted and for which he has been sentence for a total term of 1 year 2 months.
(8)It be noted that convictions and sentences imposed for the eligible offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.
(9)The Drug and Alcohol Treatment Order be for 1 year 2 months from today, 23 May 2024, to 22 July 2025.
(10)The Custodial Part of the Drug and Alcohol Treatment Order for the eligible offence be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 23 May 2024, until 22 July 2025.
(11)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
(a)The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;
(b)Aaron Raymond Hudson undertake any program, treatment or counselling, alcohol and drug testing, family violence behavioural intervention program or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time;
(c)Aaron Raymond Hudson not return a positive test sample under alcohol and drug testing;
(d)Aaron Raymond Hudson not consume or use alcohol, cannabis, illicit drugs and prescription drugs not prescribed to him;
(e)Aaron Raymond Hudson reside at [redacted];
(f)Between today, 23 May 2024, and 22 August 2024, Aaron Raymond Hudson not leave his place of residence between the hours of 10:00pm each day and 6:00am the next day except for a medical emergency or otherwise as approved by the Treatment and Supervision Team, and present himself to the front door of his residence if requested to do so by a member of Australian Federal Police during this period;
(g)Aaron Raymond Hudson not assault, harass, threaten or intimidate [redacted] or [redacted];
(h)Aaron Raymond Hudson comply with all orders and conditions set out in any family violence order or apprehended family violence order as in force from time to time in which he is a respondent; and
(i)Aaron Raymond Hudson comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(12)Aaron Raymond Hudson be directed to sign a sealed copy of this Order and an undertaking to comply with the Order for the period that this Order is in force before he leaves the Court precincts.
(13)Aaron Raymond Hudson be directed to appear in person or via electronic means in Court on Friday 31 May 2024 at 11:30am.
Final words
99․Mr Hudson, serving your sentence in this way will be challenging. Facing and recovering from your dependency will be difficult. Perhaps more difficult will be having the courage to face and address your history of violence, addressing the underlying causes of this behaviour, and your underlying trauma and psychological vulnerability. You know this far better than I do. It has been your lived experience.
100․You now have a new opportunity to climb this mountain. You will be closely supervised. You will be subject to regular drug and alcohol testing, three times a week to begin with. You will be required to attend court regularly to speak with me or another judge. For a time, this will happen every week. These check-ins will keep you accountable.
101․If you use alcohol or illicit substances, then you will face sanctions. If you do not attend appointments or complete rehabilitation and behaviour change programs, if you do not stay in touch with your case managers or comply with the requirements of the order and behavioural protocol, you will face sanctions. These sanctions may include a return to prison for a period of 7-14 days or longer.
102․If you commit further offences that subject you to imprisonment, then your order will be automatically cancelled.
103․I do not say this to scare you. Just to ensure that you know the challenge you face.
104․But along with supervision, you will receive support. You will have two case managers, one from Corrective Services and one from ACT Health, Alcohol and Drug Service. You will be required to check in with them regularly, to talk about how you are going in achieving your treatment goals. When you are facing challenges or feeling triggered you will need to talk with them. If you lapse and use, then you should tell them. They have a lot of experience. They can help you.
105․You should also talk to your case managers about your successes. Remember, each step you take up the mountain will give you a better view. Each step can be a source of pride for you. Each step will make others proud.
106․If there are steps back along the way, then you will still remember that view. With courage you will continue to climb.
107․Ultimately your case managers want you to succeed. They want to see you reach the summit of that mountain – to enjoy the view from the top.
108․It is important for you to know that I want you to reach the top of that mountain too, as will other judges you speak to along the way. We too will celebrate your successes.
109․Hard work, abstinence, honesty and trust will get you there. You have the strength to do this. I wish you luck.
| I certify that the preceding one hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Hopkins Associate: Date: 10 February 2025 |
Corrigendum: 10 February 2025
Redact the fifth sentence of [64].
Redact the sixth sentence of [64] up until “before moving to live”.
Redact the remainder of the second sentence in [77] after “father and sister,”.
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