Director of Public Prosecutions v Ivanisevic (No 2)
[2023] ACTSC 374
•14 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Ivanisevic (No 2) |
Citation: | [2023] ACTSC 374 |
Hearing Dates: | 1 November 2023, 8 December 2023, 11 December 2023 |
Submissions Last Received: | 13 December 2023 |
Decision Date: | 14 December 2023 |
Before: | Loukas-Karlsson J |
Decision: | (1) On the charge of assault occasioning actual bodily harm (CAN 2629/2022) contrary to s 24 of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to one year and six months’ imprisonment to commence 16 March 2022 and expire 15 September 2023. (2) On the charge of assault occasioning actual bodily harm (SC CAN 463/2023) contrary to s 24 of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 1 year, 6 months and 12 days’ imprisonment to commence 18 July 2023 and expire 29 January 2025. (3) On the charge of assault occasioning actual bodily harm (SC CAN 267/2022) contrary to s 24 of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 1 year, 6 months and 27 days’ imprisonment to commence 15 November 2024 and expire 10 June 2026. (4) I impose a nonparole period of 2 years, 4 months and 17 days commencing 16 March 2022 and expiring 1 August 2024. (5) In relation to parole, I make the following recommendations under s 67 of the Crimes (Sentencing) Act 2005 (ACT) that the offender: (a) Engage in drug and alcohol treatment; (b) Engage in family violence treatment; (c) Engage in anger management treatment; and (d) Engage in mental health treatment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three counts of assault occasioning actual bodily harm – family violence offending – significant criminal history including family violence offences – high and mid range objective seriousness – nascent remorse – sentenced to a term of imprisonment – nonparole period imposed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 48C |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 |
Parties: | Director of Public Prosecutions Marko Ivanisevic ( Offender) |
Representation: | Counsel M Dyason ( DPP) T Jackson ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 273 of 2022 |
LOUKAS-KARLSSON J:
Introduction
1․Mr Marko Ivanisevic (the offender) entered pleas of guilty to three counts of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (Crimes Act). Each offence carries a maximum penalty of five years’ imprisonment as the offending occurred prior to the commencement of s 48C of the Crimes Act.
2․The matter was committed for trial before me. That trial proceeded on 5 June 2023. However, after negotiation, the matter was resolved.
Agreed facts
3․A document outlining the agreed facts was tendered following the resolution to enter guilty pleas to an amended indictment. The agreed facts may be summarised as follows.
Background relationship evidence
4․The offender and the victim met sometime around June or July 2020. They met through the offender’s sister. The couple commenced an intimate relationship, described by the victim as an ‘off and on’ relationship.
5․Sometime prior to June or July 2021, the victim invited a male friend to reside at her address. The relationship between the victim and the male friend was platonic. The victim told the offender that the male friend was residing at her address and the offender asked if she needed help removing him. The victim declined the offender’s offer and asked the male friend to leave, which he did. The male friend had resided with the victim for three weeks. This will become relevant later in the judgment at [14]-[16].
6․The relationship between the offender and the victim ceased around June or July 2021 when the victim entered residential drug rehabilitation.
7․On 31 December 2021, the victim had some wine while at the residential rehabilitation facility. Following her consumption of the wine, the victim phoned the offender and asked him to pick her up, which he did. At some point, the victim and the offender then went to the offender’s address in Kambah, ACT.
8․The victim left the offender in the first week of January 2022. The victim returned to the offender’s residence on or around 7 January 2022 and, until 16 March 2022, the victim’s main place of residence was the offender’s house. All of the victim’s belongings were at the offender’s residence.
9․Soon after the victim commenced residing with the offender, he took her mobile phone and the sim card tray, and hid these items in separate locations in the house. The removal of the victim’s phone from her person had the effect of isolating her from her family, friends and support services.
10․The victim was reliant on Centrelink payments at the time she met the offender. To receive Centrelink payments, a claimant is required to ‘report’ to Centrelink. As the victim did not have her phone, she would report to Centrelink using the offender’s phone. The victim changed her contact details for the purpose of receiving Centrelink to a phone number provided by the offender. Following payment of her Centrelink income, the victim would be given a ‘cash code’ (notification of her payment) which was sent to the number of the sim card the offender had purchased for that purpose. Following receipt of the cash code, the victim would go to Wanniassa, ACT with the offender, withdraw her income, and provide it to the offender.
11․Approximately one week after the victim left residential rehabilitation and began cohabitating with the offender, the offender took her house keys. The offender kept the victim’s house keys on his key chain, which he kept on his person. The victim did not have access to her house keys.
Count 1 – Assault occasioning actual bodily harm (CAN 2629/2022)
12․On the occasion in question, the offender turned the lights off in the house. The offender picked up a drinking glass filled with a small amount of water and hit the victim across the face, causing the glass to smash. This caused a laceration to the victim’s chin. The offender then picked up a piece of glass and held it to the victim’s chest and said to the victim words to the effect of, “I’m going to rip your heart out with this”.
13․The victim was bleeding as a result of the laceration to her chin. The victim cleaned up the glass that was broken during the incident and put a Band-Aid on her chin, which she wore for at least three days. The offender would not let the victim see a doctor but rather offered to stitch the laceration with a burnt needle and some fishing line. The victim sustained a 1-centimetre scar to her chin from the application of force.
Count 2 – Assault occasioning actual bodily harm (SC CAN 463/2023)
14․Sometime between 20 January and 7 February 2022, the offender decided to locate the male friend that had previously resided with the victim. The victim told the offender that the friend lived in Calwell, ACT, but she was not sure where. The offender and the victim got in the offender’s vehicle and the offender drove the victim to Calwell and began driving around the streets looking for the male friend. The offender told the victim he wanted to find where “[the male friend] rested his head”, and that when he located the friend he would “rape [the friend]’s wife on the bonnet of [the offender]’s car”.
15․While driving around Calwell, the offender continued to accuse the victim of sleeping with the male friend. The offender accused the victim of lying about attending rehabilitation, saying she had never gone and had instead been staying with the male friend. The victim denied these matters. The offender had a silver pocketknife in his car, which was kept near the offender’s leg. The offender took the pocketknife and with his left hand, while the vehicle was moving, stabbed the victim to the right arm, just above her elbow, and twice in her right thigh with the pocketknife. The victim felt immediate pain and began to bleed all over her clothes. The offender told the victim that the next stab would be to her lungs.
16․When they returned to the offender’s residence, the offender apologised to the victim and tried to apply first aid by “wrapping the wound up”. The offender said to the victim, “I can’t believe I actually did that”. Again, the offender did not let the victim seek medical treatment.
Count 3 – Assault occasioning actual bodily harm (SC CAN 267/2022)
17․Sometime between 10 and 16 March 2022, the offender was trying to sell his vehicle. A man, who was introduced to the offender by an acquaintance of his, came and took the car for a test drive. Following the test drive, the man told the offender he had to go to the suburb of Coombs, ACT. The victim heard the offender offer the man the vehicle to take to Coombs. The man was gone for a while and the offender became suspicious that the man had stolen the vehicle. The offender reported the vehicle stolen to police. This will become relevant later in this judgment, as discussed at [21]-[24].
18․The same evening the offender reported his vehicle stolen, the victim was on the couch at the offender’s residence. The offender was standing in front of the victim, he had one leg on the ground and the other leg up on the couch next to the victim. The offender held a metal pole with duct tape or a baseball bat above his shoulder and he was standing in a threatening manner.
19․The victim held her legs up to protect herself, the offender told her to “put your fucking legs down” and stated, “I am going to break your fucking leg so badly they are going to have to cut it off”. The victim thought the accused was going to “bash her head in”.
20․The offender then hit the victim across her legs with the bat, causing her pain and bruises on her left thigh.
Report and arrest
21․On 16 March 2022, two police officers attended the offender’s residence to investigate his report of the theft of his motor vehicle. The offender and the victim (who was dressed in her pyjamas) walked outside to meet the officers.
22․One officer went with the offender to inspect his motor vehicle. The other officer saw a female she now knows to be the victim who told the officer that she did not want to stay at the location. The victim told the officer that the offender had assaulted her multiple times. The officer observed swelling, bruising and a scratch to the ridge of the victim’s nose. The officer observed the victim to be extremely nervous and crying towards the end of their conversation. The victim asked the officer if she could retrieve the victim’s mobile phone from the house.
23․The officer took the victim to the police vehicle and went to speak to her fellow officer and the offender. The officer informed them that the police would be taking the victim back to the Police Station. The officer asked the offender whether the victim’s mobile phone was inside the house. The offender directed the officer to a mobile phone at the back of a high cupboard in the kitchen. The officers then transported the victim to the Tuggeranong Police Station.
24․Upon arrival at the Police Station, the victim took part in a Family Violence Evidence in Chief (FVEIC) with the officers. Following the FVEIC, the officers returned to the offender’s residence however the offender was not there. The offender returned in his vehicle a short time later and he was placed under arrest.
Victim Impact
25․While there is no Victim Impact Statement before the Court, the Court acknowledges that these offences would have been distressing for the victim. A bundle of photographs of the injuries sustained by the victim as a result of the offending subject of Count 2 were tendered as part of the Prosecution Tender Bundle. The Court recognises the serious and lasting effects of such crimes on the victim, and further acknowledges the well-known impacts of family violence on victims. Crimes of this nature inevitably carry with them short and long-term effects.
Objective seriousness
26․An assessment of the objective gravity of the offending is a fundamental part of determining the appropriate sentence for the offences: see Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30]; see also R v Van Ryn [2016] NSWCCA 1 at [135].
27․The prosecution made submissions on each count of the offending in accordance with the non-exhaustive characteristics of objective seriousness concerning the offence of assault occasioning actual bodily harm identified by Kennett J in R v Redmond (No 2) [2022] ACTSC 295 (Redmond) at [12]:
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.
Not “rolled-up” counts
28․Initially, the prosecution submitted that the charges of assault occasioning actual bodily harm were “rolled-up” counts. Defence made no contrary submissions to that approach at the sentencing hearing on 1 November 2023.
29․After the sentence hearing, I sought further written submissions on the applicability of rolled-up counts to the matter before me. Counsel for the offender subsequently made submissions contrary to the rolled-up approach, citing R v Jones [2004] VSCA 68 and Reid v The Queen [2014] VSCA 145; 42 VR 295.
30․Thereafter, the prosecution in written submissions properly withdrew the categorisation of the counts as rolled-up counts. The prosecution therefore relied on the surrounding facts as “a circumstance surrounding the offending”. Counsel for the offender agreed at the hearing on 8 December 2023 that “there were threats of a generalised nature which can go to the surrounding circumstances”.
31․This is the correct approach as the Court must be vigilant to avoid both breaches of the principles underlying The Queen vDe Simoni (1981) 147 CLR 383 and breaches of the duplicity principle. I will therefore only have regard to the circumstances surrounding the offences consistent with the relevant principles and authorities referred to above. See also [47] in relation to submissions from counsel for the offender.
Count 1 – CAN 2629/2022
32․The prosecution categorised the offending conduct subject of Count 1 as “glassing”. The prosecution noted that the potential for serious injury means "glassing" offences are of “particular concern”. Relevantly, Refshauge J in R v DR (Unreported, ACT Supreme Court, Refshauge J, 2010) cited with approval the decision of Winch v The Queen [2010] VSCA 141; 27 VR 658, where it was stated at [32]-[33]:
The consequences of glassing are, almost invariably, very serious. Striking to the face or head with a bottle or glass carries a high – and obvious – risk of serious injury. The victim of a glassing almost always suffers severe lacerations; often has permanent facial scaring and suffers physical and psychological damage which is typically long-term and often permanent.
33․There is no doubt that “glassing” is a serious offence: see Ross v Mothersole [2010] ACTSC 125 at [88].
34․The offender turned off the lights before smashing a drinking glass across the victim’s face. This resulted in the victim sustaining a laceration to her chin, resulting in a 1-centimetre scar. I agree that the following factors are of significance in assessing the objective seriousness of this conduct:
(a)The degree of violence used is significant;
(b)Turning off the lights can only be described as having been done in an effort to intimidate the victim prior to the attack occurring. That action in the lead up to the assault would have resulted in the victim experiencing a significant amount of fear;
(c)Turning off the lights was a pre-cursor to the violence. As such, there must have been a level of premeditation to the assault; and
(d)The injury sustained will be a permanent reminder of the incident. The scar is in a prominent location, resulting in an obvious and distressing reminder of the violence.
35․The prosecution submitted this offending was in the high range for offences of this type. I agree, taking into account the foregoing matters, that the offence is in the high range.
Count 2 – SC CAN 463/2023
36․The incident subject of Count 2 involved the offender stabbing the victim twice to the right thigh with a small pocketknife. The prosecution made the following submissions in respect of the objective seriousness of the offending:
(a)The degree of violence used was, again, significant. It involved the use of a weapon and must have resulted in a significant amount pain and blood;
(b)The assault occurred at a time where the victim was trapped in the vehicle with the offender; and
(c)The assault has resulted in two small scars to the victim’s right leg.
37․The prosecution submitted this was also in the high range of offences of this type. Counsel for the offender made submissions that this offence fell within the mid range. In my view, taking into account the matters discussed above, this count is in the high range.
Count 3 – SC CAN 267/2022
38․The assault subject of Count 3 concerned the offender striking the victim across her leg with a bat, causing pain and bruising to her left thigh. The prosecution noted the following in respect of the objective seriousness of this assault:
(a)The degree of violence was “not insignificant”. It involved a single strike with a weapon;
(b)The circumstances surrounding the violence were that the offender believed someone had stolen his vehicle and he was angry. It was unprovoked. The offender was using the victim as a punching bag; and
(c)The injury and pain suffered by the victim was not permanent and would have passed with time.
39․I note that, while not permanent, the victim would have experienced significant pain at the time from being struck with a baseball-like bat.
40․The prosecution made oral submissions that this offence is “approaching mid-range”. Counsel for the offender also submitted this was “in the medium” range. In my view, taking into account the factors discussed above, the matter is broadly in the mid range.
Family violence offending
41․The offences, as acknowledged by counsel for the offender, are aggravated by virtue of having been committed in a domestic setting. I note that s 34B of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) came into effect in August 2021 and requires the Court to “consider the nature of family violence and the context of the offending” when sentencing an offender for a family violence offence. I will discuss this further below at [45] onwards.
42․The significance of the offending being in the context of an intimate relationship is relevant, as was discussed by Refshauge J in Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 (Goundar) at [34]-[35]:
It may not be doubted that family violence is a serious matter and that the courts are right to impose deterrent sentences for such offences.
43․The characteristics of family violence offending, which differentiate this type of offending from other crimes of violence, are well known to the Court. They are worth repeating. Family violence involves the exercise of power and control over a victim, often recurrent and often escalating over time. Family violence offending contributes to the subordination of women, as it is women who are most often offended against, and involves a violation of trust. The Court notes the preamble to the Family Violence Act 2016 (ACT), which includes the following:
(a)Family violence is unacceptable in any form;
(b)Freedom from family violence is a human right;
(c)The justice system should respect and protect all human rights in accordance with the Human Rights Act 2004 (ACT) and international law; and
(d)Family violence is best addressed through a coordinated legal and social response of assistance to victims and the prevention of violence by such things as promoting the accountability of perpetrators of family violence and the appropriate intervention by the police and the courts.
44․The prosecution properly submitted that the conduct of the offender reflects “all the hallmarks of classic family violence offending”. It is clear that “systematically and repeatedly, the offender whittled away the victim’s autonomy making her increasingly vulnerable and dependent on him”. The offending may be described as a violation of trust: see Goundar at [34]-[35], R v Brown (1992) 73 CCC (3d) 242, R v Hamid [2006] NSWCCA 303; 164 A Crim R 179, Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 296 ALJR 107 (Stanley).
45․I note that I have previously discussed s 34B of the Sentencing Act in R v Smith (No 2) [2022] ACTSC 246 (Smith) at [99]-[107] as follows:
The prosecution submitted that the Court must have regard to s34B of the Sentencing Act as this is a family violence offence.
The prosecution noted that the provision was inserted to remind the Court of the legislature’s commitment and intent for family violence matters to be treated as serious matters with complex but well documented dynamics that are not present in other types of offending. In relation to the present facts, the prosecution referred to the “counterintuitive behaviour of a victim who has been violently beaten by [the offender] and then sexually assaulted by him to want to go back to him” as “not the realm of a normal healthy relationship, but is unfortunately not uncommon in domestic violence contexts”.
Section 34B inserted the following:
34B Sentencing—family violence offences
(1)In deciding how an offender should be sentenced for a family violence offence, a court must consider the nature of family violence and the context of the offending, including the following:
(a)the matters mentioned in the preamble to the Family Violence Act 2016;
(b)whether the offending occurred at the home of the victim, offender or another person;
(c)whether the offending occurred when a child was present;
(d)if the offence is a serious family violence offence—whether the offender has 1 or more other convictions for serious family violence offences.
(2)A court must not reduce the severity of a sentence it would otherwise have imposed because—
(a)the offence is a family violence offence; or
(b)a family violence order under the Family Violence Act 2016 or a protection order under the Domestic Violence and Protection Orders Act 2008 (repealed) is in force against the offender in relation to the family violence offence.
The preamble includes the following:
(a)anyone can be a victim of family violence: it occurs in all areas of society, regardless of location, socioeconomic and health status, age, culture, gender, sexual identity, ability, ethnicity or religion;
(b)family violence is predominantly committed by men against women and children;
(c)family violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years;
(d)children exposed to family violence are particularly vulnerable and the exposure may have a serious impact on their current and future physical, psychological and emotional wellbeing.
The Explanatory Statement makes clear that the new section was not intended to reduce a judicial officer’s discretion when considering sentencing factors, but to ensure they consider additional factors.
A question arose during the sentencing hearing about whether the provision applies to these proceedings. The prosecution submitted that it does as it is procedural. In response, counsel for the offender noted that the amendment should not be seen to have a retrospective effect.
The High Court recently considered the applicability of retrospective legislation in Stephens v The Queen [2022] HCA 31. At [33], the majority stated the following:
The underlying principle concerning how to interpret the temporal operation of legislation is based on reasonable expectations.
The majority held that the distinction between substantive and procedural law “can … distract from the underlying principle” (at [32]). The presumption against retrospective operation is more likely to apply in circumstances where the law disturbs such expectations.
In my view, as I explained at the sentencing hearing concerning the applicability of s 34B, it is something of a moot point as courts have recognised over time the same matters as the matters set out by the legislation.
46․I adopt what I had to say there. It is clear from the discussion in Smith that the applicability of s 34B is something of a moot point. Courts have recognised in recent times the same matters that are set out in s 34B. In my view, the legislation is a recognition of the development of the common law in this important area of family violence. I take into account the common law that has developed in this area which I note is consistent with s 34B of the Sentencing Act.
Defence submissions in relation to objective seriousness
47․Counsel for the offender conceded that the offences in this matter “would not be regarded as trivial or even minor”. Counsel for the offender submitted that “there is a significant element of seriousness to them”. Counsel for the offender correctly identified the following factors which contributed to the seriousness of the offending:
(a)The use of a weapon in all incidents;
(b)The pain suffered by the victim;
(c)Elements of coercive control of the victim by the offender;
(d)The use of threats during the incidents;
(e)The incidents were across an almost three-month period.
(f)The incidents were not protracted; and
(g)The level of injury.
48․Counsel for the offender submitted that, while the offending conduct is serious, this would not be the most serious type of offending the Court has seen.
Conclusion on objective seriousness
49․It must be stated that references to low, mid and high range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]. What is required is for a Court to “fully identify 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]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I accept the features identified by the prosecution and defence as detailed above. Thus, in summary:
(a)In respect of Count 1, I find the offending to be in the high range of objective seriousness for offending of this type.
(b)In respect of Count 2, I find the offending to be in the high range of objective seriousness for offending of this type.
(c)In respect of Count 3, I find the offending to be in the mid range of objective seriousness for offending of this type.
Subjective circumstances
50․In evidence before me is a Pre-Sentence Report (PSR) dated 17 October 2023 prepared for the offender which includes the following in relation to the offender’s subjective circumstances.
51․The offender has been known to ACT Corrective Services since 1999 when he was sentenced to Good Behaviour Order (GBO) with supervision. Since that time, the offender has been sentenced to periods of incarceration, GBOs and a Parole Order. It was noted by the author of the PSR that the offender had previously completed a program for family violence offenders in 2011, when serving a prior sentence. Regrettably, the program for family violence did not have the required long term rehabilitative effect.
52․The offender has been remanded in custody since March 2022 in relation to the current offences. Service records indicate the offender’s behaviour in custody has been positive.
53․The PSR details that the offender was born in Croatia and migrated to Australia with his family when he was five years old. He was raised in Sydney and reported a positive upbringing. He has two sisters who reside in Canberra, and he advised of regular contact with one sister and intermittent contact with the other. The offender’s father died in 2016 and his mother in 2019.
54․The offender was married for 22 years, with the relationship ending in 2000. Counsel for the offender submitted that the breakdown of the offender’s marriage was due to the offender’s then wife having an affair. Counsel for the offender further submitted, in effect, that is when the offender began using drugs, to the point of becoming an addict. The marriage produced four children, who are now adults, and eight grandchildren. The offender reported a positive relationship with his ex-wife and regular contact with his children.
55․The offender was in a relationship with the victim of these offences and stated they had been friends for two years prior to forming a relationship. He is currently single.
56․The offender resides in an ACT Housing property alone. He has resided at this property for the past 15 years and is able to return when released from custody, as confirmed by ACT Housing. The offender did discuss plans of moving to Queensland, where he would initially reside with his son and support him with running a business, although stated the timeframe for this was flexible.
57․The offender reported he attended school until Year 10, after which time he left school to commence employment. He reported that he ran his own business until 1997, then worked various jobs within the construction industry and as a painter and plasterer. He ceased working eight years ago and has been receiving welfare payments, in addition to occasional casual work. The offender advised he was caring for one of his sisters for 12 months prior to being remanded in custody and had been receiving a Carer’s Payment. Counsel for the offender submitted that the offender will not be returning to a carer’s role after his release from custody, noting that the family member he was caring for has mental health and drug use challenges and, on reflection, the offender “knows it would be too stressful for him to go back into that role”. The offender is unsure what payment he will be eligible for once released, however, he reported to the PSR author that he has savings and can survive without an income initially.
58․Counsel for the offender submitted that the offender has been a model prisoner. While in custody, the PSR confirmed that the offender has held employment in the bakery earning $61.80 a week, with records indicating positive work performance including working additional shifts when there are shortages. The offender is reportedly residing in the “cottages” in the Alexander Maconochie Centre (AMC) where inmates “can cook for themselves and have more autonomy”.
59․The offender identified two pro-social supports in the community and one friend who was a “bad influence” and was involved with illicit substance use.
60․The offender reported a history of problematic alcohol use after the breakdown of his marriage; he consumed up to four bottles of spirits each day for a period of nine months. The offender stated he reduced his alcohol consumption after experiencing a severe decline in his physical health. Prior to custody, he reported moderate alcohol use in social situations, although also spoke of sharing a bottle of spirits with a friend approximately once a month.
61․The offender reported illicit substance use from the age of 18 years, including cannabis, cocaine and amphetamines. He reported methamphetamine use for a period nine months which he ceased, then resumed when he began a relationship with the victim. The offender advised he used methamphetamines daily for a period of two months, with his last use prior to his arrest. He also reported monthly cannabis use with a friend. The offender stated he believes he will be able to abstain from illicit substance use in the community. He was subject to urinalysis drug testing in custody on 14 March 2023, which returned a negative result.
62․The offender advised the PSR author that he spends his leisure time in the community restoring cars. He is not involved in any organised activities.
63․The offender self-reported a diagnosis of Post Traumatic Stress Disorder following the deaths of his parents and other life stressors. He advised he was prescribed medication although did not like the side effects so ceased taking it. The offender identified that his mental state fluctuates, and acknowledged he may benefit from consistent mental health treatment. Information received from ACT Health advised the offender was assessed upon each admission to custody between 2002 and 2022 and, on each occasion, there was no evidence of a major mental illness and no further contact with mental health services required. ACT Health advised the offender had telephone contact with community mental health teams in 2012 regarding medication and to schedule reviews, which he did not attend.
64․The offender advised he entered pleas of guilty to the current offences although has limited memory of the offending. The offender spoke of regular methamphetamine use at the time of the offending, and stated he was “disgusted” with his behaviour. The offender stated he recalled slapping the victim, however, claimed his memory of the other assaults is unclear. The offender said he was sad to have lost the friendship he had with the victim and that the relationship was positive until methamphetamine use became involved. The author of the PSR indicated that, given the offender’s history of similar offending, any future relationships should be monitored, noting referrals to relationship counselling services could be made if deemed appropriate.
Pre-Sentence Report conclusion
65․The offender is a now 60-year-old man with a criminal history which includes previous violent offences. He reported a history of alcohol abuse and illicit substance use. He has not been diagnosed with a mental health condition although described fluctuations in his mental state. The offender described positive relationships with his children and future plans to move to Queensland to assist his son and to remove himself from antisocial influences.
66․The offender attributed the current offending to methamphetamine use, which he believes will not be problematic when in the community. The report author opined that the offender would benefit from close monitoring to ensure abstinence and engagement in treatment programs to address illicit substance use. The offender would also benefit from engagement in further treatment programs to address family violence. This is undoubtedly correct.
67․The offender was assessed as suitable for a medium level of monitoring with ACT Corrective Services, commensurate with assessed risk. Supervision would include strategies to address the following identified areas of dynamic risk:
(a)Illicit substance use;
(b)Lack of prosocial activities; and
(c)Attitude to offending.
68․Such supervision may also include:
(a)Close monitoring for any illicit substance use and attendance at treatment programs;
(b)Engagement in prosocial activities; and
(c)Treatment programs to address family violence.
69․The offender has been assessed as suitable for a Community Service Work condition per s 90 of the Sentencing Act.
Further materials
70․I note counsel for the offender also tendered three documents at the sentence hearing as follows:
(a)A Statement of Attainment for Use Hygienic Practices for Food Safety;
(b)A Statement of Attainment for Participate in Safe Work Practices; and
(c)A letter from the AMC indicating the offender was referred (on his request) to “Brief Intervention Programs” and remains on the waitlist for these programs.
Remorse
71․Counsel for the offender submitted “it is clear from the PSR that the offender is remorseful and is in a place to address his addiction, so that this revolving cycle of custody stops and he can be a productive member of the community”. The comments relied upon by counsel for the offender in making this submission included the following:
[The offender] advised he pleaded guilty to the current charges although has limited memory of some of the offences. He spoke of regular methamphetamine use at the time, and stated he was “disgusted” with his behaviour. [The offender] stated he recalled slapping the victim, however, claimed his memory of the other assaults is unclear. [The offender] said he was sad to have lost the friendship he had with the victim and that the relationship was positive until methamphetamine use became involved.
72․The prosecution cavilled with this submission, asserting that there has been no demonstration of remorse on the part of the offender. The prosecution correctly submitted that the “bare fact of a plea of guilty is not demonstrative of remorse in the absence of something more”. The prosecution submitted that the comments made by the offender to the PSR author rise to the level of “insight, but not remorse”.
73․The prosecution distinguished between ‘sadness at having lost the friendship he had with the victim’ and ‘disgust at his behaviour’, as compared with an expression or demonstration of understanding of how the victim may have been feeling at the time as a result of his conduct. The prosecution submitted this amounted to a “pre-contemplative stage” of remorse. The prosecution referred to R v Ivanisevic (Unreported, ACT Supreme Court, Refshauge J, 1 July 2010) (R v Ivanisevic) in which Refshauge J stated the following concerning this offender:
In 2002, a Pre-Sentence Report was given in relation to the accused which reported,
The offender appears to have a strong sense of entitlement and to abuse his power in relationships. This is evidenced by his convictions for family violence and breaches of an apprehended violence order and a domestic violence order. The abuse of power is also reflected in the current offence.
…
There is some suggestion that the accused has no remorse and little insight into the offences. He gave evidence before me and he did express remorse. However, I was not entirely satisfied that he yet has an insight into the perception he has of the power relationship between himself and women.
74․The prosecution emphasised that insight clearly did not occur after the offending subject of that sentence and, in this case, insight may have begun but the prosecution submitted it did not amount to genuine remorse. On the facts as I see them, that submission is made good. Counsel for the offender made oral submissions that the Court could find “a small amount of developing remorse”. Counsel for the offender further submitted that the offender’s comments regarding the friendship he had lost reflected recognition on the part of the offender that his behaviour was the cause of this, and that there was no blaming of the victim. The Court recognises in that regard that clearly there is insight and the nascent, and somewhat inchoate, beginnings of remorse in this case.
75․The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence may be treated with caution: see Butters v The Queen [2010] NSWCCA 1 (Butters) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8]; R v Qutami [2001] NSWCCA 353; 127 A Crim R 369. I also note the comments of McCallum JA, as her Honour then was, in Lloyd v R [2022] NSWCCA 18 (Lloyd) at [45]:
Smart AJ’s general observation in Qutami is sometimes mistaken for a principle. It is not. If it were, it would be a wrong principle which required correction. Leaving aside the fact that the rules of evidence do not apply to proceedings on sentence unless the court so directs, the weight to be given to particular kinds of evidence in such proceedings cannot be pre-empted as a matter of principle. The weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge.
(emphasis added)
76․Accordingly, I ascribe some limited weight to the insight and the nascent, but not fully developed, remorse expressed. The weight is limited because the remorse is limited. I have approached this question consistent with the observations I have recited above, noted in Lloyd.
Criminal History
77․The offender has a significant criminal history, relevantly including numerous previous convictions for assault occasioning actual bodily harm, common assault and damage property. The offender has a previous conviction for sexual intercourse without consent, and earlier convictions for obtaining service by deception, using and making false instruments and theft. The offender has a previous conviction for fail to report annually as a sex offender.
78․The offender also has a criminal history in NSW, specifically offences of malicious injury, a number of driving offences, robbery, assault and numerous charges for breaching domestic violence orders.
79․The prosecution submitted the offender has a history of violent offending and violent offending against women. Counsel for the offender properly conceded that, given the offender’s prior criminal history, there is no benefit to be afforded to the offender for being of prior good character and that clearly this is not “an uncharacteristic aberration”. The prosecution referred again to the case concerning the offences of common assault and assault occasioning bodily harm for which the offender was found guilty by a jury in 2010: R v Ivanisevic. That case involved assaults committed on a then domestic partner. However, the Court recognises, as it must, the offending subject of that sentence occurred in 2008, some approximately 14 years prior to this offending.
Pleas of guilty
80․The assessment of the utilitarian value of a plea of guilty is “largely concerned with the timing of the plea and the related benefit to the justice system”: Cranfield v The Queen [2018] ACTCA 3 at [36].
81․The offender entered pleas of guilty after the commencement of the trial, upon the current indictment. As stated earlier, this indictment was different to the indictment originally presented.
82․Relevantly and importantly, counsel for the offender referred the Court to the authority of Blundell v The Queen [2019] ACTCA 34 (Blundell) regarding negotiated proceedings, at [17]:
Another matter that is significant in this case is that, where negotiations result in a plea, it is not relevant to consider any benefit to the offender associated with the Crown abandoning particular charges. In relation to charges that are not pursued, it must be assumed that the offender was not guilty and therefore gained no advantage by the withdrawal of the charges.
(emphasis added)
83․Counsel for the offender submitted that, “once the indictment was presented, and for the first time, pleas of guilty were entered”. Counsel for the offender submitted in the context of this matter, relying on the authority of Toumo’ua, a discount between 15-20 percent would be warranted. The Court in Toumo’ua stated the following at [50]:
However, the ACT statutory scheme does differ from that in NSW. Where the NSW provision requires the sentencing court to consider the fact and timing of the plea and “the circumstances” in which the offender indicated an intention to plead guilty, the ACT provision is much more prescriptive. In addition to requiring the sentencing court to consider “the circumstances” in which a plea was entered or indicated, the ACT provision requires the sentencing court to consider particular circumstances, i.e. whether negotiations have occurred, the seriousness of the offence, the effect on victims and others entitled to make a victim impact statement, and whether the prosecution case “was overwhelmingly strong”.
84․I note that counsel for the offender properly, in oral submissions, reduced the submission on the appropriate discount to 10-15 percent.
85․Counsel for the offender further submitted that there was significant utility in the plea in terms of the administration of justice “as to how the trial was running, the fact the victim was not cross-examined… and was not required to be cross-examined at all”. Counsel for the offender submitted the case for the prosecution could not have been said to be “overwhelmingly strong”.
86․Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. Pursuant to s 35(2)(c) of the Sentencing Act, I note that the pleas were the subject of negotiations between the parties.
87․The prosecution submitted that s 35(2)(c) requires a sentencing court to consider whether the guilty plea was related to negotiations about the charge to which the offender ultimately pleaded guilty. As was said in Toumo’ua at [55]-[56]:
The Explanatory Statement for the Crimes (Sentencing) Bill 2005 (ACT) assists to resolve this ambiguity. It provides the following explanation for the inclusion of s 35(2)(c):
Clause 35(2)(c) is included to enable the Court to discern whether or not a guilty plea associated with negotiations is intended to induce the prosecution not to proceed with a more serious charge. Diminishing credit for guilty pleas associated with negotiations or bargaining is consistent with... [cases that argued] that a lesser discount, or no discount, for a plea of guilty is appropriate in circumstances where the defendant enters a plea as a means of inducing the prosecution not proceed with a more serious charge.
Read in this way, s 35(2)(c) supports a focus on the utilitarian value that is associated with the timing of a plea of guilty. An offender can benefit either from a substantial discount for the utilitarian value of an early plea, or from a lower sentence flowing from a lesser charge or fewer charges following negotiations, but should not usually benefit in both ways.
88․The prosecution submitted the fact that the offender entered pleas of guilty to a fresh indictment on the first occasion it was presented does not increase the utilitarian value of those pleas. The prosecution submitted this is particularly so in circumstances where the offender was not prepared to engage in any meaningful discussion to try and resolve the matter at any time prior. The prosecution submitted the timing of the plea leads to a conclusion that it is a “last-minute” plea. A last-minute plea usually attracts a discount of 10 percent.
89․Taking into account the relevant matters, in my view, a discount of approximately 10 percent is appropriate in accordance with the authorities discussed above, in particular Blundell and Toumo’ua.
Administration of justice
90․I note that the foregoing discussion is additionally subject to the administrative error on the part of the prosecution, such that an additional plea of guilty was subsequently entered on 14 December 2023. See discussion at [134]-[138]. This is a prosecution error which concerned Count 2.
91․In these unusual circumstances, the offender, in my view, assisted in the administration of justice in accordance with s 35A of the Sentencing Act. Accordingly, an additional 10 percent discount is appropriate in relation to Count 2: see Urlich v The Queen [2019] ACTCA 30.
92․I note in accordance with s 35A(4)(b)(i) that the circumstances of assistance in the administration of justice concerning the plea of guilty to Count 2 did not consist solely of a plea of guilty under s 35 of the Sentencing Act, but rather the unusual circumstances that arose as a result of the prosecution error in this case, and the assistance of the offender in that regard.
Rehabilitation
93․Rehabilitation is an important consideration having regard to the progress made by the offender while in custody. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32] stating broadly that ‘rehabilitation is likely to be the most enduring guarantor of community protection and is in the public interest’.
94․Counsel for the offender submitted that the offender’s time in custody “has had the benefit of getting the offender off the drugs and, with appropriate assistance in the community, he can remain off them, thereby promoting his rehabilitation and protecting the community”. Counsel for the offender further submitted that, “when taking into account the contents of the PSR, the progress made by the offender in prison, the fact that he is at an age where he wants to turn things around [and] the remorse he has shown in the PSR, the offender may be at the cross-roads and ready for change”.
95․The offender was assessed in the PSR as medium-high risk of general reoffending. At the sentence hearing on 1 November 2023, I ordered a further Intensive Corrections Order (ICO) Assessment Report to consider any recommended conditions that might apply should the offender be subject to an ICO. This further ICO Assessment Report was received on 28 November 2023. I note the author of the further ICO Assessment Report observed the following:
[The offender] previously completed a program for family violence offenders in 2011 when serving a prior custodial sentence. Despite this he continued re-offending in a similar nature. It is considered the offender would pose a risk to the community and he would require further treatment. It is also considered the offender would benefit from a community supervision upon his release to monitor his engagement in treatment.
The offender’s son expressed his belief that [the offender] would benefit from anger management treatment which appears to be a reasonable observation given the offender’s violent actions against his victims.
96․The offender indicated to the ICO Assessment Report author an intention to engage in family violence treatment, as well as anger management treatment.
97․I note, as was discussed at the sentence hearing on 1 November 2023, that the offender is unlikely to be able to access residential rehabilitation due to the type of offences for which he has previously been convicted, including sexual intercourse without consent. He is also, therefore, not eligible for a Drug and Alcohol Treatment Order under s 12A of the Sentencing Act. The updated ICO Assessment Report noted that the offender believed he would require drug and alcohol treatment in the community to assist him with his goal to abstain from drug use. The offender’s son also expressed a belief that his father would benefit from such treatment.
98․In addition, counsel for the offender made submissions concerning the offender’s long-term plans to relocate to Queensland to work with his youngest son. As stated earlier, while in custody, the offender has been working in the AMC bakery. Counsel for the offender made submissions that while the Court may not find the offender to be at a crossroads, “he is far closer to it than he has been in the past”.
99․On the evidence, in my view, the offender’s prospects for rehabilitation are nevertheless guarded.
Time in custody
100․The offender has spent 1 year, 8 months and 29 days in custody from 16 March 2022 to 14 December 2023 solely referable to these offences.
101․The sentence will therefore be backdated to commence 16 March 2022.
Comparable cases
102․Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
103․The following cases provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
104․The prosecution referred to the comments of Refshauge AJ in R v Bonfield [2021] ACTSC 362 at [141]:
So far as assault occasioning actual bodily harm offences are concerned, sentencing practice was considered in R v Lyons (No 1) [2020] ACTSC 358 at [40]-[44]. Most sentences were of between seven and 18 months with a midpoint of 15 months. In that decision, three cases were considered when the offender had struck the victim in the head in each case. The sentences for these offences ranged from eight months imprisonment to 18 months imprisonment. Regard is also had to R v Winters [2019] ACTSC 245, but that was a much more serious offence.
105․I was referred to the following cases by the prosecution:
(a)R v Tonkin [2019] ACTSC 101
The offender in this matter was charged with two counts of assault occasioning actual bodily harm, one count of forcible confinement and one count of recklessly damage property. The offences occurred in a family violence context, perpetrated against the offender’s mother. The offending involved the offender consuming alcohol and drugs, before asking the victim for the keys to her car. The victim refused. The offender became angry and punched the victim in the face with a closed fist, causing her left eye to become bruised. The victim attempted to escape by asking to use the toilet. While the victim was in the toilet, the offender smashed a hole through the toilet door, then reached in and unlocked the door. The offender took the victim’s mobile phone from her and forcibly removed her from the toilet. In the course of doing so, he struck her left shoulder causing severe pain and significant bruising. The offender was 33 years old at the time of the offending and had previously committed offences of stalking, intimidation and common assault in NSW. The offender entered early guilty pleas. The offender reported a longstanding history of psychological difficulties including depression and suicidal ideation, as well as engaging in significant substance abuse. The offender was assessed as a medium risk of reoffending, with key risk factors including unemployment, financial difficulty, drug and alcohol use, lack of stable accommodation, strained family and mental health. The offender was on conditional liberty at the time as he was serving a suspended sentence in NSW. The offender was sentenced to an overall sentence of 20 months’ imprisonment (three months and four months for the offences of assault occasioning actual bodily harm, respectively). A nonparole period of nine months was imposed.
(b)R v Baxendale [2018] ACTSC 260
The offender in this matter entered pleas of guilty to one count of assault occasioning actual bodily harm and one count of grievous bodily harm. The offender was also sentenced for four charges of common assault. The offender and victim were in an intimate relationship. The offender pushed the victim into a glass cabinet, causing glass to break and the victim to sustain a deep laceration to her right hand. The offender then picked up a portable speaker and struck the victim in the head with it. There was a further incident involving the offender dragging the victim down the stairs by her hair and throwing his weight on top of her, resulting in a fractured ankle. The offending in relation to the assault occasioning actual bodily harm was considered to be above mid-range, given the extent of the injury suffered and the family violence context. The offending subject of the grievous bodily harm charge was considered to be below the mid range. The offender was 31 years old at the time of offending and a number of character references were provided on his behalf. The offender undertook an anger management program and expressed remorse in his letter to the Court. The offender had a criminal history of property damage offences, though no criminal history of personal violence offences. The sentences were suspended after the offender served a period of eight months’ imprisonment, upon him entering into a GBO for three years.
(c)R v Naqvi [2016] ACTSC 345
The offender entered pleas of guilty to one count of recklessly inflict actual bodily harm, one count of forcible confinement and four counts of sexual intercourse without consent. The offender made the victim in this matter get a knife from the kitchen and carve his initials into her arm. She cut the letters “SAB” into her arm. The offender made the victim repeatedly engage in sexual intercourse without her consent, would make threats if the victim did not obey and often slapped, pinched and even headbutted the victim. These offences involved the serious subjugation and degradation of another human being. The offence of recklessly inflicting actual bodily harm was assessed as in the mid range. The offender did not have a significant criminal history. The offender reported physical and sexual abuse as a child. The sentencing judge found the offender did not demonstrate any victim empathy or accept any responsibility for the offences. The offender was sentenced to one year and nine months’ imprisonment for the offence of recklessly inflicting actual bodily harm and an overall sentence of 13 years and 8 months’ imprisonment. A nonparole period of eight years and two months was imposed.
(d)SC v The Queen [2019] NSWCCA 25
The offender was found guilty at trial by jury of one count of aggravated sexual intercourse without consent (inflict actual bodily harm) and two counts of assault occasioning actual bodily harm. The offending pertaining to the assault occasioning actual bodily harm offences involved the offender punching the victim’s mouth which subsequently required six sutures. The second offence involved the offender grabbing the complainant by the ponytail and banging her head into the back of the lounge. The offender then picked her up and threw the victim at the lounge, hitting her ribs and sternum. The offender later grabbed the victim’s neck with both hands on two occasions, resulting in bruising. The assault occasioning actual bodily harm offences were aggravated by the fact of them having occurred in the victim’s home and in the presence of one of her children. The offences were assessed as slightly below mid range. The offender’s prospects of rehabilitation were found to be guarded and the offender had not engaged in treatment for anger management, or expressed remorse for his offending. The offender was sentenced to an aggregate sentence of 10 years’ imprisonment with a nonparole period of seven years and six months. The sentences were confirmed on appeal.
106․Counsel for the offender submitted the comparative cases provided “no utility” as each case is “protean” and turns upon its own facts. It is uncontroversial to observe that, undoubtedly, cases turn on their own facts. Counsel for the offender also submitted the offences of assault occasioning actual bodily harm are committed in a “broad range of circumstances”. That is also correct.
107․I also adopt what was stated by Kennett J in Redmond at [38]. The Supreme Court rarely deals with offences of assault occasioning actual bodily harm on their own. Comparable cases are therefore somewhat limited.
Intensive Corrections Order
108․The sentencing exercise also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Counsel for the offender conceded that the s 10 threshold has been crossed in this case. However, it was submitted by counsel for the offender that an ICO “would not be inappropriate given the circumstances, including the time spen[t] on remand”. When this matter came before me on 7 June 2023, I determined that I should give consideration to the sentence being served by way of ICO.
109․An initial ICO Assessment Report formed part of the PSR dated 17 October 2023 which concluded that the offender is suitable for an ICO and has signed an undertaking to comply with all the obligations of an ICO. As stated earlier at [67]-[68], the author of the PSR opined that the following factors associated with the offending would be targeted if an ICO was imposed:
(a)Alcohol and illicit substance use;
(b)Antisocial associates and lack of prosocial activities; and
(c)Attitude to offending.
110․If an ICO were to be made, Corrective Services recommended that the order contain the following additional conditions:
(a)Engage in programs to address family violence and illicit substance use as directed; and
(b)Abstain from alcohol use.
111․Counsel for the offender submitted an ICO would not be out of range in view of the offender’s prospects for rehabilitation, which can be supported with the supervision of ACT Corrective Services. Counsel for the offender also made this submission in view of the purposes of sentencing under s 7 of the Sentencing Act. Counsel for the offender submitted that the time spent on remand clearly both denounces the conduct of the offender and, as an aspect of the punishment the offender is to receive, it has had the benefit of “getting the offender off the drugs”. Counsel for the offender submitted that, with appropriate assistance in the community, the offender can remain off drugs, thereby promoting his rehabilitation and protecting the community.
112․An issue arose as to whether the pre-sentence custody could be taken into account in the imposition of an ICO. Counsel for the offender submitted that “an ICO cannot be backdated and must commence on the day it is imposed”, referring to s 41 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act).
113․Parties agreed this had the “practical effect” of making it impermissible to backdate a sentence of imprisonment to be served by way of ICO because, as submitted by the prosecution, the sentence would have been served without intensive correction. I further note that, per s 29(1)(b) of the Sentencing Act, an ICO must not be combined with a sentence of full-time imprisonment. I note that, if I determined an ICO was appropriate, it could be dealt with by attributing the pre-sentence custody to a single offence, and imposing the ICO for the other offences.
114․It is necessary to consider whether an ICO is “appropriate in all the circumstances”. In circumstances where the overall sentence of imprisonment is two years or less, an ICO is available. Should the sentence be greater than two years, but not more than four years, then the Court must consider s 11(3) of the Sentencing Act. Section 11 is as follows:
11Intensive correction orders
(1)This section applies if an adult offender is convicted of an offence and the court imposes a sentence of imprisonment.
(2)If the sentence of imprisonment is for not more than 2 years the court may order that the sentence be served by intensive correction in the community (an intensive correction order).
(3)The court may make an intensive correction order if the sentence of imprisonment is for more than 2 years but not more than 4 years, but only if the court considers it is appropriate to do so, having regard to—
(a)the level of harm to the victim and the community caused by the offence; and
(b)whether the offender poses a risk to 1 or more people or the community; and
(c)the offender’s culpability for the offence having regard to all the circumstances.
…
115․Counsel for the offender submitted that s 11(3) should be read in conjunction with the purposes of sentencing at s 7 of the Sentencing Act. The prosecution submitted that this would be a misapplication of s 11(3), which is distinguishable from s 66(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which expressly provides for consideration of the “purposes of sentencing”: see Stanley at [71]-[75]. Broadly, in my view, it is not inappropriate to take into account the purposes of sentencing.
116․The prosecution submitted that if the legislature had intended for s 11(3) to be read in conjunction with s 7 (or s 33 for that matter), it would have expressly provided as such.
117․The prosecution made the following submissions addressing the considerations under s 11(3)(a)-(c) above:
(a)The level of harm inflicted upon the victim was significant; in respect of Count 1 and Count 2, the injuries sustained by the victim are permanent. It was accepted by counsel for the offender in oral submissions that the violence the offender subjected the victim to resulted in an exacerbation of pre-existing mental health conditions the victim possessed. The prosecution submitted that the violence the offender subjected the victim to would have had a significant impact on her life;
(b)The offender poses a risk to any person he enters an intimate relationship with; and
(c)The offender’s culpability for the offending is not reduced in any way.
118․As stated earlier, counsel for the offender maintained that, with appropriate assistance in the community, the offender can continue to progress his rehabilitation. Counsel for the offender submitted that the imposition of an ICO would be “appropriate in all the circumstances” given the offender’s prospects for rehabilitation under the supervision of ACT Corrective Services.
119․I have given proper consideration to this matter. Nevertheless, balancing the objective seriousness of the offences, the criminal record and the subjective matters, I do not consider an ICO appropriate in this case. I have formed the view, as discussed further below, that the overall sentence I impose must be significantly in excess of four years. Therefore, I will not impose an ICO in accordance with s 11(3) of the Sentencing Act.
Statutory and other relevant considerations
120․In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
121․The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
122․As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
123․When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38.
124․In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]:
[W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.]
125․I note the offending in this case involves separate events which ought be properly reflected in the overall sentence.
Sentence
126․It must be recognised by the Court that the offences committed against the victim have had a serious and significant impact upon her. Both the short and long-term consequences must be acknowledged.
127․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 of the offender.
128․The appropriate sentence for Count 1, an offence of assault occasioning actual bodily harm (CAN 2629/2022), is 20 months of imprisonment, reduced to one year and six months on account of the plea of guilty. The offence will be backdated to commence on 16 March 2022 to account for the time already spent in custody.
129․The appropriate sentence for Count 2, an offence of assault occasioning actual bodily harm (SC CAN 463/2023), is 23 months of imprisonment, reduced to 1 year, 6 months and 12 days on account of the plea of guilty.
130․The appropriate sentence for Count 3, an offence of assault occasioning actual bodily harm (SC CAN 267/2022), is 21 months of imprisonment, reduced to 1 year, 6 months and 27 days on account of the plea of guilty.
131․This is an overall sentence of 4 years, 2 months and 26 days’ imprisonment, allowing for appropriate concurrency.
132․I impose a nonparole period of 2 years, 4 months and 17 days, approximately 56 percent of the overall sentence. In relation to parole, I make the following recommendations under s 67 of the Sentencing Act that the offender:
(a)Engage in drug and alcohol treatment;
(b)Engage in family violence treatment;
(c)Engage in anger management treatment; and
(d)Engage in mental health treatment.
Orders
133․For those reasons, I make the following orders:
(1)On the charge of assault occasioning actual bodily harm (CAN 2629/2022) contrary to s 24 of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to one year and six months’ imprisonment to commence 16 March 2022 and expire 15 September 2023.
(2)On the charge of assault occasioning actual bodily harm (SC CAN 463/2023) contrary to s 24 of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 1 year, 6 months and 12 days’ imprisonment to commence 18 July 2023 and expire 29 January 2025.
(3)On the charge of assault occasioning actual bodily harm (SC CAN 267/2022) contrary to s 24 of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 1 year, 6 months and 27 days’ imprisonment to commence 15 November 2024 and expire 10 June 2026.
(4)I impose a nonparole period of 2 years, 4 months and 17 days commencing 16 March 2022 and expiring 1 August 2024.
(5)In relation to parole, I make the following recommendations under s 67 of the Crimes (Sentencing) Act 2005 (ACT) that the offender:
(a)Engage in drug and alcohol treatment;
(b)Engage in family violence treatment;
(c)Engage in anger management treatment; and
(d)Engage in mental health treatment.
Addendum
134․After the sentencing orders were purportedly pronounced on 11 December 2023, an issue arose concerning the Notice Declining to Proceed with Prosecution filed by the ACT Director of Public Prosecutions on 14 June 2023 (“the Notice”). The Notice mistakenly included a charge of assault occasioning actual bodily harm (CAN 2634/2022) to which the offender had entered a plea of guilty before me on 7 June 2023. The prosecution apologised for this very unfortunate administrative error.
135․It was properly agreed between parties that the effect of the filing of the Notice was that this charge had been “extinguished”. It was also agreed between parties that this was in error, and the offender was to be sentenced for three offences of assault occasioning actual bodily harm.
136․The prosecution sought and was granted leave to file a fresh indictment in court with a single ex-officio charge of assault occasioning actual bodily harm (SC CAN 463/2023), intended to replace the charge that had been discontinued in error. I indicated in court on 14 December 2023 that this charge was to be taken to be Count 2. Count 1 and Count 3 on the previous indictment dated 7 June 2023 are to continue to be Count 1 and Count 3 for the purpose of sentence.
137․As a result of the error, all the sentencing orders made on 11 December 2023 were stayed in accordance with s 20 of the Supreme Court Act 1933 (ACT), and the offender was remanded in custody until the matter could come before me again on 14 December 2023. I explained to the offender via audio-visual link from the AMC on 11 December 2023 the circumstances that had arisen. These reasons for sentence and the orders above at [133] include the correct charge number for the now Count 2, SC CAN 463/2022.
138․The offender was arraigned on 14 December 2023 on the ex-officio charge, he entered a plea of guilty and was properly sentenced in accordance with the reasons and orders above. Thus, the formal date of sentence for all counts is 14 December 2023.
| I certify that the preceding one hundred and thirty-eight [138] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 14 December 2023 |
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