Director of Public Prosecutions v Ledbrook-Miller

[2024] ACTSC 254

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Ledbrook-Miller

Citation: 

[2024] ACTSC 254

Hearing Date: 

12 August 2024

Decision Date: 

16 August 2024

Before:

Baker J

Decision: 

See [53]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated assault occasioning actual bodily harm – aggravated property damage – family violence offences – Verdins and Bugmy considerations – discount for guilty plea – where offer to plead guilty not accepted by prosecution – offender sole carer of his children – imposition of suspended sentences backdated by pre-sentence imprisonment

Legislation Cited: 

Crimes Act 1900 (ACT) ss 24(1), 116(3)

Crimes (Sentencing) Act 2005 (ACT) ss 33(1)(a), 33(1)(j), 33(1)(m), 33(1)(o), 33(1)(w), 34B(1)(b), 34B(1)(c), 35

Crimes (Sentence Administration) Act 2005 (ACT) s 86

Family Violence Act 2016 (ACT)

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

DPP v Howe [2024] ACTSC 178

R v Millwood [2012] NSWCCA 2

R v Toumo’ua [2017] ACTCA 7; 12 ACTLR 103

R v UG [2020] ACTCA 8; 281 A Crim R 273

R v Verdins [2007] VSCA 102; 16 VR 269

The Queen v Miller [2019] ACTCA 25

Parties: 

Director of Public Prosecutions ( ACT DPP)

Samuel Mark Ledbrook-Miller ( Offender)

Representation: 

Counsel

H Robinson ( ACT DPP)

J Maher ( Offender)

Solicitors

ACT Director of Public Prosecutions

Aulich Criminal Law ( Offender)

File Numbers:

SCC 85 and 86 of 2023

BAKER J:      

Introduction

1․The offender, Samuel Mark Ledbrook-Miller, has pleaded guilty to the following offences:

(a)Count 1 (CC2022/12415): Aggravated assault occasioning actual bodily harm, contrary to s 24(1) of the Crimes Act 1900 (ACT).

(b)Count 2 (SCCAN/2024/137): Aggravated damage property (valued at under $2,000), contrary to s 116(3) of the Crimes Act 1900 (ACT).

2․The maximum penalty for an aggravated offence of assault occasioning actual bodily harm is 7 years’ imprisonment. The maximum penalty for an aggravated offence of damaging property is 3 years’ imprisonment, a fine of $9,600, or both.

3․The offender now comes before the Court to be sentenced for both offences.

The offences

4․The offender and the victim share two children together and were in an on-and-off again relationship for around three years at the time of the offending.

5․On 9 October 2022, the offender was in the bedroom he shared with the victim at their home in Casey. Their two children, who were aged one and two at the time, were in bed in another room.

6․The offender was on their bed. The victim was naked in the ensuite bathroom, colouring her hair. The victim’s phone was plugged into a charger next to the offender. The offender asked the victim for her phone password, which she refused. The offender had seen a notification that another man had sent the victim a message via Snapchat and he wanted to know about it.

7․The victim entered the bedroom from the ensuite bathroom and asked for her phone back. The offender refused, and the victim swung her hand at the offender, who dodged. The offender then slapped the victim in the face.

8․The victim fell to the ground, exclaiming “don’t hit me, don’t hit me”. The offender slapped her twice to the face with an open hand, causing a left eye hematoma, a right temple abrasion and mild swelling to the right cheek. The offender then pushed the victim onto the bed and straddled her, placing his weight upon her chest (Count 1: aggravated assault occasioning actual bodily harm).

9․The bedhead fell onto the victim. The offender pulled it off her, and then grabbed the victim’s phone, throwing it onto a tiled floor, where it smashed (Count 2: aggravated damage property).

10․The victim returned to the ensuite to get dressed. The offender told her she needed to leave their house. The victim heard one of their children begin to cry. The offender told the victim to go to the child.

11․The victim asked the offender for her car keys, and began to gather her belongings so that she could leave. The offender followed the victim around while she did this, screaming at her. The offender then called his mother as the victim showered and dressed the child.

12․The victim then drove to Gungahlin Police Station with the child. When the victim arrived at Gungahlin Police Station, she told police that she had been beaten by her ‘ex’. The victim was distressed and crying. Her facial injuries were visible. Shortly after, paramedics from ACT Ambulance Services arrived and took the victim to hospital. The victim was discharged from hospital later that day.

13․By this time, the offender’s mother had called triple zero to report a “domestic violence situation happening up in Casey”. The offender’s mother told the operator her son had called her, telling the operator “he’s hit [the victim], um, and, yeah, he’s threatening, he won’t let her leave the house, so – she’s trying to”. Various police officers responded to the triple zero call made by the offender’s mother. At approximately 8:10pm, they arrived at the home of the offender and the victim. The offender informed police that the victim had left. After attending police were notified that the victim had reported an assault at Gungahlin Police Station. The offender was then arrested and cautioned.

Subjective circumstances

14․The offender’s subjective circumstances are set out in a Pre-Sentence Report (PSR) and in an Intensive Corrections Order Assessment Report (ICOAR) both dated 5 August 2024, as well as in two psychological reports, which are further summarised below.

Personal background

15․The offender is 27 years old and currently lives in Forbes, New South Wales. He has three sisters, two of whom are half-sisters.

16․The offender was raised in Forbes until his family relocated to Canberra when he was five years old. His parents separated when he was six years old. The offender and his mother were subjected to family violence, both at the hands of the offender’s father and the offender’s mother’s subsequent partner. When he was 10 years old, the offender’s father broke two of the offender’s ribs when he kicked the offender. The offender’s father served a prison term for this assault. The offender’s step-father was physically and verbally abusive towards the offender. The offender was forced to leave home when he was 16 years old after a fight with his step-father.

17․The offender now has a good relationship with his mother. After he was released from custody on bail, the offender returned to Forbes, where he is now living with his children and his mother. The offender’s mother assists in caring for the children when the offender travels for work.

18․The offender does not have any contact with his father, who he reports as having significant mental health needs.

19․The offender told the PSR author that relocating from the ACT to Forbes has allowed him to distance himself from negative associations. The PSR author verified there are no associations of concern in Forbes and ACT Corrective Services confirmed there are no current orders in place where the offender was the respondent or protected person. The offender’s mother confirmed that the offender is forging new pro-social connections.

Education and employment

20․The offender told the PSR author that he has attention deficit hyperactivity disorder (ADHD), which impacted his education. The offender did not complete year 12, but undertook plumbing qualifications and now runs his own earth moving business.

Substance use

21․The offender reported consuming alcohol for the first time at the age of 15. The offender has at times consumed alcohol heavily, although he reported that his current use is minimal, having consumed only one alcoholic drink in the past six months.

22․At age 14, the offender began smoking cannabis on most days and MDMA on the weekends, due to his home environment and peer group. The offender reported using up to two grams of cocaine each night between the ages of 18 and 21. The offender was caught selling drugs at age 21 and imprisoned for a period of 4 months and 24 days.

23․The offender was charged with possessing anabolic steroids in December 2023. Nonetheless, the PSR report confirmed that the offender’s family has no present concerns about his alcohol or drug use. The offender was subject to urinalysis testing on 20 June 2024, and the results were consistent with the offender’s prescribed medication. The PSR authors reported that the offender demonstrated insight into his drug and alcohol use.

Mental health

24․The offender’s counsel tendered a letter from Mr Sanderson, the offender’s current treating psychologist, dated 30 October 2023 and a report of Dr Jenna Bollinger, dated 26 October 2023.

25․The offender has been diagnosed with ADHD, bipolar disorder, depression, and anxiety. He is currently taking medication for these conditions. A psychological assessment has also found the offender met the DSM-V criteria for post-traumatic stress disorder.

26․Mr Sanderson explained that he currently provides a court approved treatment program to the offender to address the difficulties that the offender experiences with emotional dysregulation, ineffective impulse control, poor interpersonal skills, communication difficulties and self monitoring and self management. Mr Sanderson reported that the offender has attended all scheduled sessions and has undertaken all activities with diligence and commitment. Mr Sanderson considered that, with medication, counselling and skills training, the offender’s prognosis is good.

27․The offender’s mother reported that the offender has accepted his diagnoses and has adjusted to taking medication. She described his current mental health as “very positive”, in contrast to his condition at the time of the commission of the present offences.

Attitude towards the offences

28․The offender told the PSR authors that he agreed with the Police Statement of Facts. He justified parts of his actions as due to frustration he was experiencing towards the victim’s lifestyle choices and perceived risks to his children. The offender accepted this was a poor rationale and accepted that he was responsible for his actions.

29․Whilst the offender verbalised little empathy for the victim in his conversations with the PSR authors, the offender told the PSR authors that it “crushes him” that he exposed his children to family violence after experiencing such violence himself as a child. The PSR author of the PSR considered that the offender’s answers “did not indicate attitudes that would suggest he is motivated to commit similar offences”. A character reference provided by a close friend similarly spoke of the offender’s remorse for his actions and the offender’s commitment to not engage in similar conduct in the future.

Criminal History

30․The offender has a criminal history of family violence, traffic and drug offences in both the ACT and New South Wales.

31․In March 2023, the offender was sentenced in the Bathurst Local Court for charges of common assault, stalk/intimidate and intend fear of physical harm. In July 2023, the offender successfully appealed the severity of the sentence that was imposed for this offending in the NSW District Court and was released on bail after serving one month and 23 days in custody. He was resentenced to a 10-month Intensive Corrections Order which he successfully completed. On 31 October 2023, the offender appeared before in the ACT Magistrates Court for contravening a family violence order. The offender was convicted and entered into a good behaviour order for 12 months. I understand that the present victim was the victim of these offences.

32․As the offender’s counsel noted, the present offences predated the commission of these family violence offences for which the offender has been sentenced. Accordingly, the present offences are the offender’s first in time family violence offences.

Sentencing Considerations

Nature and circumstances of the offending (s 33(1)(a) of the Crimes (Sentencing) Act 2005 (ACT))

33․The prosecution and counsel for the offender submitted that the assault should be assessed as in the mid-range of objective seriousness. The parties also agreed that the offence of aggravated damage property approaches the mid-range of objectiveness seriousness. It may be doubted that this form of assessment is necessary in this jurisdiction: R v Toumo’ua [2017] ACTCA 7; 12 ACTLR 103 at [24]; The Queen v Miller [2019] ACTCA 25 at [18]–[25]. Rather, what is required is an assessment of the nature and circumstances of the offending: s 33(1)(a) of the Crimes (Sentencing) Act.

34․As to the offence of aggravated assault occasioning actual bodily harm, the offender struck the victim with an open hand, rather than a fist, however, the victim’s injuries indicate that the force used was not insignificant, and the strikes were made to the victim’s head, a vulnerable part of her body. The victim was naked at the time of the offending. The offending was spontaneous, but aggressive.

35․While the children of the victim and the offender did not directly witness the offending, they were close enough that a child’s crying could be heard from the bedroom and ensuite: s 34B(1)(c) of the Crimes (Sentencing) Act. The offending occurred in the victim’s bedroom, in her home, where she was entitled to feel safe: s 34B(1)(b) of the Crimes (Sentencing) Act.

36․Damage to a person’s mobile phone is a particularly insidious form of property damage. A person’s mobile phone will frequently contain private information, including photographs and records of conversations with family and friends. A person’s phone may also represent their only means of obtaining assistance in response to acts of violence. For these reasons, damage of a phone in a family violence context is a form of property damage and control which must be denounced and deterred.

Mental health (s 33(1)(m) of the Crimes (Sentencing) Act) and Bugmy principles

37․As noted above, the offender has been diagnosed with ADHD, bipolar disorder, depression and anxiety. As further outlined above, the offender also grew up in an environment that was characterised by family violence.

38․I am satisfied that the combination of these matters is such as to reduce the offender’s moral culpability for his offending: R v Verdins [2007] VSCA 102; 16 VR 269; Bugmy v The Queen [2013] HCA 37; 249 CLR 571. In particular, as a result of his mental illnesses and his own experience of family violence as a child, the offender will necessarily “have fewer emotional resources to guide his (or her) behavioural decisions” than a person who had a “normal” or “advantaged” upbringing: see R v Millwood [2012] NSWCCA 2 at [69] (Simpson J, with whom Bathurst CJ and Adamson J agreed). Accordingly, I will reduce the weight to be given to general deterrence. However, it remains necessary to denounce the offending, to hold the offender accountable, and to impose a sentence which recognises the harm that was occasioned to the victim.

39․I am also satisfied that the offender’s mental illnesses rendered his experience of full-time custody referable to these charges more onerous, and that they would have a similar effect in respect of any further period of full-time custody that is ordered.

Remorse (s 33(1)(w) of the Crimes (Sentencing) Act)

40․Although the offender appears to lack complete insight into the effect of his offending on the victim, I accept that he has demonstrated remorse for his conduct, particularly in recognising the effect of his offending on his children.

Discount for guilty plea (ss 35, 33(1)(j) of the Crimes (Sentencing) Act)

41․The offender pleaded guilty to the present offences on 22 May 2024, which was after the proceedings were listed for trial. However, the prosecutor acknowledged that the offender offered to resolve the proceedings by way of the current pleas of guilty on 16 February 2023, whilst the proceedings were still in the Magistrates Court. In these circumstances, the prosecutor accepted that the “diminution of the utilitarian value [was] caused by the prosecution”, and that it is open to the Court to afford the offender the full benefit of his early pleas.

42․I will afford the offender a 25% reduction in the sentences to be imposed by reason of his pleas of guilty for each of the present offences.

Effect of sentence on offender’s family or dependents (s 33(1)(o) of the Crimes (Sentencing) Act)

43․The offender has sole custody of his two children, who are now aged 3 and 4. I was informed that the victim is unable to care for the children at present, owing to her own mental health issues. I accept the submission of counsel for the offender that any further period of full-time imprisonment would have a significant adverse effect on the offender’s children.

Determination

44․Family violence is unacceptable in any form: Preamble to the Family Violence Act 2016 (ACT). Regrettably, the perpetration of family violence “is a familiar occurrence to the courts in this jurisdiction, indeed across the country”: DPP v Howe [2024] ACTSC 178 at [1]. Such violence gives rise to physical, psychological and emotional harm, which may be profound and far reaching in its impact. As the present case illustrates, the effects of family violence may reverberate throughout generations.

45․The sentences to be imposed for such offences must hold the perpetrators of family violence offences to account and recognise the harm that is caused to the victims of these offences. Accordingly, whilst there is no “separate sentencing regime” for family violence offences (R v UG [2020] ACTCA 8; 281 A Crim R 273 at 299 [47]), the courts have “made consistently clear that perpetrators of family violence should understand that the consequence of their conduct can and will include being sentenced to periods of full-time imprisonment”: Howe at [92].

46․For the reasons outlined above, both of the present offences are serious forms of family violence. The sentences to be imposed must hold the offender accountable for his conduct and recognise the harm that was caused to the victim. As the offender’s counsel properly conceded, the s 10 threshold is crossed for the offence of aggravated assault occasioning actual bodily harm. For the reasons outlined at [38] above, the s 10 threshold is also crossed for the aggravated damage property offence.

47․The offender has served 61 days in custody solely referable to the present offending. In view of this period of full-time custody, and the lengthy period that the offender has spent on bail without further incident, the prosecution did not contend that a further term of full-time imprisonment was required to meet the purposes of sentencing.

48․The offender currently resides outside of the ACT, which would render the administration of an Intensive Correction Order (ICO) impractical. For this reason, he has been assessed by Corrective Services as unsuitable for such an order. The offender’s rehabilitation would be undermined by an order that required him to return to the ACT.

49․The offender’s counsel submitted that the appropriate sentence to be imposed would be either a fully suspended sentence, or a partially suspended sentence that is backdated to take into account the time served, with the sentence fully suspended from the date of imposition. The prosecution accepted that it is open to the Court to impose either form of sentence.

50․After careful consideration, I have determined that the second alternative proposed by the offender’s counsel is appropriate in all of the circumstances. In reaching the conclusion that no further additional period of full-time imprisonment should be imposed, I have taken into account all of the considerations outlined above, and particularly the following:

(i)First, the offender has served a period of full-time custody solely referable to these offences. This period of full-time custody recognises the need for punishment, denunciation and the holding of the offender to account, as well as recognising the harm caused to the victim;

(ii)The offender has proactively removed himself from negative influences in the ACT. He has successfully completed an ICO in New South Wales subsequent to the commission of the present offences. I am satisfied that the offender is remorseful and committed to his program of treatment for his mental illnesses. I am further satisfied the offender is committed to breaking the cycle of family violence for the sake of his children. I am satisfied that the offender has reasonable prospects of rehabilitation and that the protection of the community does not require the imposition of a further term of full-time imprisonment;

(iii)There has been a delay in the imposition of sentence for the present offences. That delay is not attributable to the offender. The imposition of a further term of full-time imprisonment would undermine the rehabilitation that the offender has embarked upon whilst awaiting sentence.

(iv)Any further term of full-time custody would be more onerous to the offender by reason of his mental illnesses and would also create a hardship for the offender’s children.

51․The reduction of the offender’s moral culpability arising from the offender’s mental illnesses and his own experience of family violence as a child are also of importance in determining the proper form of the sentence to be imposed. These matters do not remove the need to recognise the harm caused to the victim, or the need to hold the offender accountable for his actions. However, in the present case these matters are such as to justify giving greater weight to the facilitation of the offender’s rehabilitation, which he has already embarked upon. 

52․Accordingly, I will suspend the sentences of imprisonment that I will impose for both offences.

Orders

53․For the above reasons, the following orders are made:

(1)For the offence of aggravated assault occasioning actual bodily harm (CC2022/12415), the offender is convicted and sentenced to twelve months imprisonment, reduced by 25% by reason of the offender’s plea of guilty to nine months imprisonment, backdated by the period of 61 days of pre-sentence custody. The sentence commenced on 16 June 2024 and will expire on 15 March 2025.

(2)The sentence of imprisonment for the offence of aggravated assault occasioning actual bodily harm is to be wholly suspended with immediate effect, on the condition that Mr Ledbrook-Miller enter into a Good Behaviour Order from the giving of the undertaking until 15 March 2025, subject to the core conditions under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) and a condition that Mr Ledbrook-Miller continue to engage in treatment with Dr Sanderson for a period of at least 6 months. Supervision will only be for the period deemed necessary by ACT Corrective Services.

(3)For the offence of aggravated damage property (SCCAN/2024/137), the offender is convicted and sentenced to three months imprisonment, reduced by 25% to two months and seven days imprisonment, backdated by the period of 61 days of pre-sentence imprisonment. This sentence commenced on 16 June 2024 and will expire on 22 August 2024.

(4)The sentence of imprisonment for the offence of aggravated damage property (SCCAN/2024/137) is to be wholly suspended with immediate effect on the condition that Mr Ledbrook-Miller enter into a Good Behaviour Order from the giving of the undertaking until 22 August 2024, subject to the core conditions under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT). Supervision will only be for the period deemed necessary by ACT Corrective Services.

I certify that the preceding fifty three [53] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: 19/08/2024