Director of Public Prosecutions v Padreny

[2024] ACTCA 4

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Director of Public Prosecutions v Padreny

Citation: 

[2024] ACTCA 4

Hearing Date: 

10 November 2023

Decision Date: 

16 February 2024

Before: 

Loukas-Karlsson, McWilliam and Abraham JJ

Decision: 

(1)	The appeal is allowed.
(2)	The sentence imposed on the respondent by orders made on 30 May 2023 is set aside and in lieu thereof, the following sentence is imposed:

(a)	For the offence of making a reckless threat to kill in contravention of s 30 of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 2022/786), the respondent is convicted and sentenced to a term of imprisonment of 2 years and 6 months, reduced from 2 years 9 months and 11 days on account of his guilty plea, to commence on 26 February 2022 and conclude on 25 August 2024.
(b)	For the offence of an act endangering health (choke) in contravention of s 28(2)(a) Crimes Act (CAN 2022/422), the respondent is convicted and sentenced to a term of imprisonment of 1 year and 6 months, reduced from 1 year and 9 months on account of his guilty plea, to commence on 26 October 2023 and conclude on 25 April 2025.
(c)	For the offence of forcible confinement in contravention of s 34 of the Crimes Act (CAN 2022/787), the respondent is convicted and sentenced to a term of imprisonment of 7 months, reduced from 8 months on account of his guilty plea, to commence on 25 January 2025 and conclude on 24 August 2025.
(d)	For the offence of common assault in contravention of s 26 of the Crimes Act (CAN 2022/789), the respondent is convicted and sentenced to a term of imprisonment of 9 months reduced from 10 months on account of his guilty plea, to commence on 26 May 2025 and conclude on 25 February 2026.
(e)	For the offence of damage property less than $5000 in value in contravention of s 116(3) of the Crimes Act (CAN 2022/801), the respondent is convicted and

sentenced to a term of imprisonment of 6 months,

reduced from 7 months on account of his guilty plea, to commence on 26 December 2025 and conclude on 25 June 2026.

(f)	For the offence of common assault in contravention of s 26 of the Crimes Act (CAN 2022/790), the respondent is convicted and sentenced to a term of imprisonment of 7 months, reduced from 8 months on account of his guilty plea, to commence on 26 April 2026 and conclude on 25 November 2026.
(g)	For the offence of assault occasioning actual bodily harm in contravention of s 24(1) of the Crimes Act (CAN 2022/793), the respondent is convicted and sentenced to a term of imprisonment of 1 year and 2 months, reduced from 1 year and 4 months on account of his guilty plea, to commence on 25 September 2026 and conclude on 24 November 2027.
(h)	For the offence of damage property less than $5000 in value in contravention of s 116(3) of the Crimes Act (CAN 2022/423), the respondent is convicted and sentenced to a term of imprisonment of 6 months, reduced from 7 months on account of his guilty plea, to commence on 26 June 2027 and conclude on 25 December 2027.

(i)    For the offence of act endangering health –

choke/suffocate/strangle in contravention of s 28(2)(a) of the Crimes Act (CAN 2022/4007), the respondent is convicted and sentenced to a term of imprisonment of 1 year, reduced from 1 year and 2 months on account of his guilty plea, to commence on 1 December 2027 and conclude on 30 November 2028.

(j)	For the offence of common assault in contravention of s 26 of the Crimes Act (CAN 2022/4006), the respondent is convicted and sentenced to a term of imprisonment of 9 months, reduced from 10 months on account of his guilty plea, to commence on 30 April 2028 and conclude on 29 January 2029.
(k)	For the offence of damage property in contravention of s 403 of the Criminal Code 2002 (ACT) (CAN 2022/4005), the respondent is convicted and sentenced to a term of imprisonment of 6 months, reduced from 7 months on account of his guilty plea, to commence on 1 January 2029 and conclude on 30 June 2029.
(l)	For the offence of damage property less than $5000 in value in contravention of s 116(3) of the Crimes Act (CAN 2022/424), the respondent is convicted and

sentenced to a term of imprisonment of 6 months,

reduced from 7 months on account of his guilty plea, to commence on 1 February 2029 and conclude on 31 July 2029.

(m)	For the offence of make a demand with a threat to endanger health, safety, or physical wellbeing in contravention of s 32(2) of the Crimes Act (CAN 2023/1866), the respondent is convicted and sentenced to a term of imprisonment of 1 year 5 months, reduced from 1 year 7 months on account of his guilty plea, to commence on 5 July 2029 and conclude on 4 December 2030.
(n)	For the offence of assault occasioning actual bodily harm in contravention of s 24(1) of the Crimes Act (CAN 2022/794), the respondent is convicted and sentenced to a term of imprisonment of 10 months and 24 days, reduced from 1 year on account of his guilty plea, to commence on 1 February 2030 and conclude on 24 December 2030.
(o)	The total sentence of imprisonment is for 8 years, 9 months and 29 days, to commence on 26 February 2022 and conclude on 24 December 2030.
(p)	A non-parole period of 5 years is set, to commence on 26 February 2022 and conclude on 25 February 2027.

Catchwords: 

APPEAL – CRIMINAL LAW – Prosecution appeal against
sentence – threat to kill – forcible confinement – acts
endangering health (choke) – demand accompanied by threat –
assaults occasioning actual bodily harm – damage property –
excessive discounts for late pleas of guilty – mistake as to fact
relevant to objective seriousness – family violence – manifest
inadequacy in relation to components of sentence – appeal
allowed – offender resentenced

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT) ss 33(1)(za), 34B, 35, 65
Crimes Act 1900 (ACT) ss 24(1), 26, 28(2)(a), 30, 32(2), 34,
116(3)

Criminal Appeal Act 1912 (NSW) ss 5D, 6(3)

Criminal Code 2002 (ACT) s 403 Sentencing Act 1995 (WA) s 8(2) Supreme Court Act 1933 (ACT) ss 37E(2)(a), 37O

Crimes (Domestic and Family Violence) Legislation Amendment

Bill 2015 (ACT)
Crimes (Sentencing) Bill 2005 (ACT)

Cases Cited: 

Blundell v The Queen [2019] ACTCA 34
Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79
Cameron v The Queen [2002] HCA 6; 209 CLR 339
CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346
Cranfield v The Queen [2018] ACTCA 3

Cumberland v The Queen [2020] HCA 21; 379 ALR 503
Day v The King [2023] ACTCA 39

Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions v Drake [2019] VSCA 293

Director of Public Prosecutions v Dalgliesh (a pseudonym)

[2017] HCA 41; 262 CLR 428

Director of Public Prosecutions v Karazisis [2010] VSCA 350; 31
VR 634

Director of Public Prosecutions v Harvey [2023] VSCA 234; 105
MVR 373
DPP v Linsley [2023] ACTSC 255
DPP v Moala (No 3) [2023] ACTSC 306
DPP v Padreny [2023] ACTSC 286
DPP v Rohrlach [2023] ACTSC 166
Elias v The Queen [2013] HCA 31; 248 CLR 483
Everett v The Queen [1994] HCA 49; 181 CLR 298

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244
CLR 462

Griffiths v the Queen [1977] HCA 44; 137 CLR 293
Harlovich v Sebbens [2023] ACTSCFC 3
Hayne v Zheng [2023] ACTSC 326
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR
520
Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA
312; 198 A Crim R 565
Hogan v Hinch [2011] HCA 4; 243 CLR 506

House v The King [1936] HCA 40; 55 CLR 499

Inge v The Queen [1999] HCA 55; 199 CLR 295
Kable v Director of Public Prosecutions (1995) 36 NSWLR 374

Kentwell v The Queen [2014] HCA 37; 252 CLR 601

Krutsky v McCormick [2024] ACTSC 3
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Lowndes v The Queen [1999] HCA 29; 195 CLR 665

M C-N (a pseudonym) v The Queen [2023] ACTCA 21
Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; 166 CLR 59
Miller v The Queen [2018] ACTCA 21; 273 A Crim R 27
Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99
MT v The Queen [2021] ACTCA 26; 17 ACTLR 22
Naqvi v The Queen [2017] ACTCA 52
Nyugen v The Queen [2016] HCA 17; 256 CLR 656
O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244

Pearce v The Queen [1998] HCA 57; 194 CLR 610
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Anquetil [2021] NSWCCA 59
R v Avery [2018] ACTCA 57
R v Bonfield [2021] ACTSC 362
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32
R v Day (No 2) [2022] ACTSC 352
R v Dib [2003] NSWCCA 117
R v French [2021] ACTSC 205

R v Goodge [2019] ACTSC 297

R v Kilic [2016] HCA 48; 259 CLR 256

R v Kirkwood [2022] ACTSC 148
R v Loulanting [2015] ACTSC 172

R v Moore [2021] ACTSC 333
R v Nicholas; R v Palmer [2019] ACTCA 36
R v Omari [2022] ACTCA 4
R v Osenkowski (1982) 30 SASR 212
R v Pearson [2020] ACTSC 375
R v Pham [2015] HCA 39; 256 CLR 550

R v Ralston [2020] ACTCA 47; 285 A Crim R 159

R v Sharma [2002] NSWCCA 142; 54 NSWLR 300
R v Takalubegash [2002] ACTSC 66

R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103

R v Tuifua [2023] ACTCA 6
R v UG [2020] ACTCA 8
R v Williams [2016] ACTSC 389
R v Woodland [2007] NSWCCA 29; 48 MVR 360
R v Taylor [2022] NSWCCA 256; 373 FLR 418
Slater v The Queen [2014] ACTCA 33
The Queen v Low [2022] ACTCA 59
Wong v The Queen [2001] HCA 64; 207 CLR 584
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Zhao v The Queen [2018] ACTCA 38

Parties: 

Director of Public Prosecutions (Appellant)
Damien Padreny (Respondent)

Representation: 

Counsel

A Williamson SC (Appellant)
E Chen (Respondent)

Solicitors

ACT Director of Public Prosecutions (Appellant)

ACT Legal Aid (Respondent)

File Number: 

ACTCA 22 of 2023

Decision Under Appeal: 

Court/Tribunal:	ACT Supreme Court
Before:	Refshauge AJ
Date of Decision:	30 May 2023
Case Title:	DPP v Padreny
Citation:	[2023] ACTSC 286

Loukas-Karlsson J: 

1․ 

I have had the considerable benefit of reviewing the comprehensive draft judgment of

McWilliam and Abraham JJ. I respectfully take a different view from their Honours on this

prosecution sentence appeal.

2․ 

There is no question that the total effective sentence imposed by the Judge at first

instance, a very experienced judge in the criminal law, tended towards substantial

leniency. Nevertheless, leniency in sentencing, of itself, does not equate to manifest

inadequacy in sentencing.

3․ 

It is well established that the primary purpose of a Prosecution appeal is to lay down the

principles for the governance and guidance of courts with the duty of sentencing

offenders: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462

(Green) at [1]. In CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346 (CMB)

at [55] the High Court affirmed the following passage from Green with respect to the

limitations of that purpose (at [36]):

… That is a limiting purpose. It does not extend to the general correction of errors made by

sentencing judges. It provides a framework within which to assess the significance of factors

relevant to the exercise of the discretion.

4․	It is appropriate to deal with the appeal grounds before the Court with that limiting
purpose, as underlined by the High Court, as an overarching framework. Further, it is
convenient to deal in this judgment, initially, with the first three grounds of specific error
before dealing with the fourth and final ground of manifest inadequacy.

Specific error grounds

5․	Grounds 1 and 2 involve errors in the plea of guilty discount applied in respect of a
number of charges. I agree with the majority that error is established in respect of both
Ground 1 and Ground 2.
6․	Ground 3 involves an error in the assessment of objective seriousness relating to a
charge of assault occasioning actual bodily harm. I agree with the majority that error is
established in respect of Ground 3.
7․	Error having been established, it is appropriate to then consider the residual discretion
in relation to these discrete errors.
8․	While appeals against sentence by an offender are concerned with the correction of error
in an individual case, the High Court has repeatedly stated that appeals brought by the
prosecution are concerned with the broader level of principle, that is the governance and guidance of courts: see Griffiths v the Queen [1977] HCA 44; 137 CLR 293, Green,
Everett v The Queen [1994] HCA 49; 181 CLR 298 and CMB.
9․	If a sentence is to be increased, it is for the prosecution to identify not only an appellable
error in the decision, but also to negate any reason why the residual discretion not to
interfere should be exercised: See CMB at [34], [60] and R v Nicholas; R v Palmer [2019]
ACTCA 36 at [117].

The residual discretion and the principle against “tinkering”

10․	In terms of the exercise of the residual discretion relevant to the three specific error
grounds discussed above, the question of what has come to be known as tinkering is
relevant.
11․	What is “tinkering”? Tinkering is a relatively slight increase in sentence. Tinkering
encompasses the following: the fact that, were the Court to impose a substituted
sentence, the increase would be so slight as to constitute “tinkering”. The injunction
against tinkering applies to prosecution appeals: Dinsdale v The Queen [2000] HCA 54;
202 CLR 321 (Dinsdale) at [62], R v Woodland [2007] NSWCCA 29; 48 MVR 360 at [53]
and Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312; 198 A Crim R
565 (Hillier) at [48]-[49].
12․	It is doubted that the injunction against tinkering applies to appeals by offenders as it
acts against the interests of the liberty of the offender: see Hillier. See also Krutsky v
McCormick [2024] ACTSC 3 at [14] and Hayne v Zheng [2023] ACTSC 326 at [14].
13․	In my view the Prosecution has failed to demonstrate that a successful appeal on Appeal
Grounds 1 and 2 would amount to anything other than “tinkering” with the sentence, that
is, nothing but a slight adjustment in sentence.
14․	For example, in relation to Ground 1 if the discount were reduced from 25% to 10% it
would result in a difference of approximately 2 months, specifically 2 months and 12
days.
15․	There are 4 sentences which form the crux of appeal ground 2. Thus, if 10% discounts
as contended for by the Prosecution in their appeal ground are applied, as opposed to
the discounts applied by the sentencing judge, the following analysis emerges.
16․	On the first charge (CC2022/786), a sentence of 16 months as opposed to just over 17
months (discount of 16%); a difference of a month.
17․	Second, in relation to charge CC2022/794, a sentence of 10 months as opposed to a
sentence of 10 months and 24 days (a discount of 17%). A difference of 24 days
emerges.
18․	Third, in relation to CC2022/789, 8 months as opposed to 9 months. Again, a slight
difference of a month constituted by a discount of 20% as opposed to 10%.
19․	Similarly, in relation to the fourth charge (CC2022/4066), a sentence of 8 months as
opposed to 9 months constituted by the difference between a discount of 20% to 10%. I
cannot but conclude these are somewhat derisory “tinkering” adjustments to sentence,
that is, taking into account the overarching limiting purpose of prosecution appeals.
20․	Now, in respect of Ground 3 a similar analysis prevails, in my view, on considering the
residual discretion. On the basis of the Prosecution’s submissions, what emerges is that
the ulnar nerve transposition surgery is attributable to the first in time assault occasioning
actual bodily harm offence, not the second in time assault occasioning actual bodily harm
offence as stated by the sentencing judge. In my view, this does not amount to a
substantial difference in sentence but rather a “tinkering”, or slight, difference for which
the residual discretion must apply. The surgery was not ignored by the sentencing judge,
it was referred to in the context of one assault occasioning actual bodily harm and not
the other. The sentence of the first assault occasioning actual bodily harm was nine
months imprisonment. The sentence of the second in time assault occasioning actual
bodily harm was 10 months imprisonment.
21․	Thus, in my view, the three grounds of specific error, where established, should not result
in an increase in sentence on appeal. This is by application of the residual discretion.
22․	In conclusion, it is important that the residual discretion is applied in this case to these
specific error grounds because the gravamen of the grounds, as established, would
result in only relatively slight differences in sentence.
23․	Before leaving this topic it is relevant to note the following from R v UG [2020] ACTCA 8
(UG) at [63]:

Neither the Sentencing Act nor the general law requires a sentencing judge to give lengthy reasons. The delivery of ponderous reasons that rehearse every conceivable consideration should be avoided as it is inimical to the prompt sentencing of offenders in a manner that is clearly communicated to the community and victim. I agree with the following observations of the Court of Appeal in Chin-Charles v The Queen [2019] EWCA Crim 1140, albeit that the

observations concern sentencing within a different statutory framework (at [7]–[8]):

There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual

and legal issues. This should be avoided. …

The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of the appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that.

(citations omitted.)

24․	I note the comments of the Court of Appeal in UG at this juncture to underline that, in my
view, these were particularly technical grounds of appeal.
25․	Having dealt with the first three grounds, it is now appropriate to deal with the fourth and
final ground of manifest inadequacy which must be the crux of this appeal.

Is the overall sentence manifestly inadequate?

26․	Unquestionably, a harsher overall sentence might have been imposed; that is not the
applicable test. That a harsher sentence might have been imposed, in particular taking
into account the extended and serious violence involved, is clear. That a harsher overall
sentence might have been imposed, however, is not determinative. I am not satisfied
that the total sentence and the non-parole period were unreasonable or plainly unjust.
The overall sentence clearly approached but was not below what could justly be imposed
in this case for the following reasons.
27․	First, the principles to be applied as to whether the sentence is manifestly inadequate
have been stated in a number of decisions of the High Court. A Court of Appeal will only
intervene if the sentence is unreasonable or plainly unjust in House v the King terms,
such that the Court of Appeal may infer that, in some way, there has been a failure of
the sentencing judge to properly exercise the sentencing discretion. See Dinsdale, Wong
v The Queen [2001] HCA 64; 207 CLR 584, Hili v The Queen; Jones v The Queen [2010]
HCA 45; 242 CLR 520.
28․	When applying these principles an appellate court must not substitute its own opinion for
that of the sentencing judge on the basis that the appellate court would have given a
higher sentence (in the case of a finding of manifest inadequacy) or a lower sentence (in
the case of a finding of manifest excess). See Lowndes v The Queen [1999] HCA 29;
195 CLR 665 and Director of Public Prosecutions v Drake [2019] VSCA 293 at [29].
29․	Why is this so? It is for the reason that it is not to the point that a Court of Appeal might
have exercised the sentencing discretion differently. That is because, and this bears
repeating, there is no single correct sentence and it is well established that judges at first
instance must be allowed as much flexibility in sentencing as is possible, while taking
into account and being in accordance with consistency of approach and application of
principle. See Markarian v the Queen [2005] HCA 25; 228 CLR 357 (Markarian) at [27]
and Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [46]. In this case, on my review
of the sentencing remarks, the sentencing judge’s approach and application of principle
does allow for flexibility in sentencing.
30․	Second, the exercise of the sentencing discretion is not a simple exercise of sole
consideration of the objective seriousness of offences and then making deductions from
the maximum penalty: see Markarian at [31]. Nothing said by the High Court in R v Kilic
[2016] HCA 48; 259 CLR 256 or Elias v The Queen [2013] HCA 31; 248 CLR 483 detracts
from that proposition: see R v Anquetil [2021] NSWCCA 59 per Bathurst CJ (as his
Honour then was) at [149]:

[T]he maximum penalty is a yardstick to which attention must always be paid, but it is

something which will not necessarily play a decisive role in the final determination.

31․	As I stated at the outset, in this case a very experienced criminal law judge exercised his
sentencing discretion in a manner that may be considered to be lenient. That is not
manifest inadequacy on the principles discussed above. That is not error, it is leniency.
32․	Has this sentence crossed the line in appellate terms, in House v The King terms, from
lenient to manifest inadequacy? Is it plainly unjust? It is not, on my review of the
sentencing judgment as I discuss in further detail below.
33․	His Honour, in a judgment of some 37 pages, dealt with all relevant considerations
concerning both the offences and the offender, the respondent in this prosecution
appeal. The respondent received a total sentence of 5 years and 7 months at the age of
26 for offences committed when he was aged between 23 and 24.

34․ The sentencing judge considered it proper to structure the sentence so that the

respondent would have a “lengthy period of supervision” if and when he was found

suitable for parole by the relevant authorities.

35․ The sentencing judge in this case, at paragraphs [2]-[4], began with the following:

Though the Family Violence Act does not directly address the criminal law concerning acts of family violence, it is a useful description for a phenomenon well known to the criminal law,

which Higgins J described it in the R v Bell [2005] ACTSC 123 at [3] as “a pernicious and

evil phenomenon”. In Beniamini v Craig [2017] ACTSC 30, the Court cited with approval what

had been said in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [77]-[78], namely:

77. …An adequate account of domestic violence should recognise that it typically

involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J

Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian

Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pages 6-7.

78. Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime: J People,

“Trends and Patterns in Domestic Violence Assaults”, NSW Bureau of Crime Statistics

and Research, Crime and Justice Bulletin, No. 89, October 2005, page 2. Domestic assaults accounted for 35%-40% of the assaults recorded by police each year from

1997 to 2004: J People, above, at page 11.3․

Fortunately, the latter estimates are changing, but it is still clear that much family violence is not reported to police, though, fortunately, that which is reported is now taken very seriously and often prosecuted.

In this case it is pertinent to note that, in R v Smith (No 2) [2022] ACTSC 246 at [44] the

Court cited with approval what had been submitted by the prosecutor, noting:

…The prosecution outlined in general sense the “complex and pernicious” nature of

family violence offending wherein victims often act contrary to their own interests and

welfare. The prosecution submitted the following:

A feature of family violence which is most commonly associated with women is the

‘cycle of abuse’ which generally progresses through phases, including a period of

loving and remorseful behaviour by the perpetrator that seduces the victim to remain in the relationship (which is what happened here). It is also characterised by repeated manipulative and controlling behaviour which limits, directs and shapes

a victim’s thoughts, feelings and actions. Perpetrators often combine subtle and

overt methods to maintain their control over a victim or to have them do their

bidding…

36․	The facts of the offending against the victim were covered in some 7 pages of the
judgment in Padreny, outlining the appalling offences. The judge dealt with objective
seriousness of the offences over approximately 9 pages and spent approximately 4
pages detailing subjective factors and approximately 3 pages summarising the Victim
Impact Statements. The judgment was detailed and thorough in all aspects of
sentencing.
37․	The sentencing judge stated the following in relation to the victim of these offences at
[144] -[145]:

Very important too is the acknowledgement of the harm done to the victims. It is easy to overlook or minimise this, but it is a statutory requirement and an important component of constructing a civilised and respectful community.

The Court has taken into account the nature and circumstances of the offending, as has

been described, as well as the findings on Mr Padreny’s personal circumstances. It is also

important to have careful regard to the Victim Impact Statements which show, in stark terms, the effect of these crimes on this victim and those she loves and who love her. Current sentencing practice is also important.

38․	The sentencing judge stated the following concerning the respondent’s rehabilitation at
[143] :

Nevertheless, his wish for rehabilitation is by no means irrelevant and, while it must be approached with considerable caution, the limited steps that he has taken are very important and should, if possible, be used in the sentence to build upon as a start for his reform, which, as with all the other purposes already mentioned, are directed to the protection of the community.

39․ The sentencing judge stated the following in relation to totality at [157]:

The length of the total sentence must then be reviewed to ensure that the principle of totality is respected, and that the total sentence is adequate to reflect the total criminality, but no more than that, and that the total sentence is not excessive and will leave open the realistic prospect of reform and hope for Mr Padreny to achieve his goals when he is released into the community. That has been done. The Court must also ensure that the sentence does not leave the perception that the offender can permit multiple offences with impunity. That has also been considered.

40․ The sentencing judge stated the following in relation to a non-parole period at [161]:

… Accordingly, since the sentence is more than 12 months, consideration must be given to

a non-parole period. Given the period during which Mr Padreny has been in custody, the possibility of a treatment plan of the kind proposed by Dr Ahmed and the progress Mr Padreny has made in custody and the course he has undertaken, a shorter non-parole period seems appropriate. Of course, the objective seriousness of the offending is important and must also be weighed in that consideration. It is also possible, of course, for Mr Padreny to undertake rehabilitation of a significant kind while in custody.

41․	By way of brief background, I note the respondent completed Year 12 and enrolled to
study Physics at the Australian National University. He could not afford to continue his
studies and began working. Work apparently became limited during the COVID-19
pandemic.
42․	The synthesis of sentencing considerations is a difficult process. This is because
sentencing often involves dealing with and weighing conflicting considerations: see The
Queen v Low [2022] ACTCA 59 at [50]. See also Veen v The Queen (No 2) [1988] HCA
14; 164 CLR 465 at 476, where Mason CJ, Brennan, Dawson and Toohey JJ
emphasised that the guideposts that are the purposes of sentencing sometimes “point
in different directions”.
43․	For my part, I cannot conclude there was error in his Honour’s approach. The approach
adopted by the sentencing judge is, in my view, a balanced approach to instinctive
synthesis; in this case his Honour has carefully crafted a sentence to reflect a just result
in this individual case. The Prosecution has not established that the sentence is
unreasonable or plainly unjust.
44․	There must be a place for leniency when an experienced judge forms the view that
leniency at that stage of the offender’s life might lead to reform, as stated in R v
Osenkowski (1982) 30 SASR 212 at 212-213, where King CJ, with respect to prosecution
appeals against lenient sentences, stated:

It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy

where a judge’s sympathies are reasonably excited by the circumstances of the case. There

must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case

of experienced judges, that leniency at that particular stage of the offenders life might

lead to reform.

(emphasis added.)

45․	Kirby J (with whom the other members of the High Court bench agreed) discussed
leniency in Dinsdale at [68] and stated the following in relation to the consistency of
imposing sentences of imprisonment:

…[T]here is no absolute rule. Each case must be judged on its own facts. The adoption of

a blanket rule would itself be an error of sentencing principle. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case, any exceptional circumstances affecting the prisoner, and in

some cases the prisoner’s family, or some feature of the matter that reasonably arouses

a judicial decision that a measure of mercy is called for in the particular case.

(citations omitted.) (emphasis added.)

46․ It is well-established in criminal sentencing that, while sentences need to reflect

community expectations of punishment in the sense of retribution, denunciation and

deterrence, and maintain public confidence in the administration of justice, the sentence

must also take into account the community’s interest in rehabilitation. It cannot be

ignored that offenders must be released from prison at some stage (unless sentenced to

life imprisonment), either at the end of a head sentence, or sooner on parole, depending

on whether the promise of rehabilitation proves to be sound. It is important, for our

society, that offenders are rehabilitated people upon release from custody. Rehabilitation

is not only important for offenders, but also for our broader community. See R v Tuifua

[2023] ACTCA 6 and French CJ’s comments in Hogan v Hinch [2011] HCA 4; 243 CLR

506 at [32].

47․	In conclusion the prosecution, in my view, has not established that the sentence is
unreasonable or plainly unjust. That is a high bar that has not been met by the
Prosecution in the case of this individual respondent. Criminal justice is individual. It
bears repeating, as stated by Mahoney ACJ in Kable v Director of Public Prosecutions
(1995) 36 NSWLR 374, “if justice is not individual, it is nothing”.
48․	In my view the appeal should be dismissed.

McWilliam and Abraham JJ:

49․	This is an appeal by the Director of Public Prosecutions (Prosecution) in relation to
sentences imposed on the respondent on 30 May 2023 by Refshauge AJ: DPP v
Padreny [2023] ACTSC 286 (primary judgment). Damien Padreny was sentenced for
14 offences, to which he pleaded guilty, which were committed against his intimate
partner over an eight-month period between February and October 2020. As reflected
in the table below, the offences involved threats to kill or endanger the safety of the
victim, repeated physical acts of violence including choking and forcible confinement,
and property damage which included punching walls or kicking doors while the victim
was barricaded in another room and setting fire to the victim’s property. The victim
required surgery as a result of two of the offences.
50․	The sentences imposed were as follows:

Series	Date	Offence	Maximum	Sentence
Penalty	Imposed
(imprisonment)	(discount for guilty plea)
1	25 February	CAN 2022/786: Making a reckless	10 years	16 months
2020	threat to kill
(16%)
Crimes Act 1900 (ACT) (Crimes Act), s 30
CAN 2022/787: Forcible	10 years	7 months
confinement
(12.5%)
Crimes Act, s 34
CAN 2022/422: Act endangering	5 years	12 months
health – choke/suffocate/strangle
(14%)
Crimes Act, s 28(2)(a)
2	12 May 2020
CAN 2022/789: Common assault	2 years	8 months
Crimes Act, s 26	(20%)
3	16 May 2020	CAN 2022/801: Damage property	2 years	6 months
less than $5000 in value
(14%)
Crimes Act, s 116(3)
4	14 August	CAN 2022/790: Common assault	2 years	7 months
2020
Crimes Act, s 26	(12.5%)
5	13	CAN 2022/793: Assault occasioning	5 years	9 months
September	actual bodily harm
(10%)
2020	Crimes Act, s 24(1)
CAN 2022/423: Damage property	2 years	6 months
less than $5000 in value
(14%)
Crimes Act, s 116(3)
6	Between	CAN 2022/424: Damage property	2 years	6 months
less than $5000 in value
10	(14%)
September	Crimes Act, s 116(3)
2020 and
CAN 2022/4005: Damage property	10 years	6 months
20
(14%)
September	Criminal Code 2002 (ACT) (Criminal
2020	Code), s 403
CAN 2022/4006: Common assault	2 years	8 months
Crimes Act, s 26	(20%)
CAN 2022/4007: Act endangering	5 years	12 months
health – choke/suffocate/strangle
(14%)
Crimes Act, s 28(2)(a)
7	18	CAN 2023/1866: Make a demand	10 years	12 months
September	with a threat to endanger health,
safety, or physical well-being	(25%)
2020
Crimes Act, s 32(2)
8	10 October	CAN 2022/794: Assault occasioning	5 years	10 months
2020	actual bodily harm
(17%)
Crimes Act, s 24(1)

51․	The total aggregate sentence imposed was 5 years and 7 months’ imprisonment, from
26 February 2022 to 25 September 2027.

52․ A non-parole period of 2 years and 6 months was imposed, which represents

approximately 45% of the total head sentence. The non-parole period expires on 25

August 2024.

53․	The sentencing judge detailed the facts of the offences in the primary judgment at [11]-
[96] and save for a misstatement of an aspect of one offence referred to in Ground 3 of
the appeal, no issue is taken with its accuracy. The sentencing proceeded on the basis
of an agreed statement of facts which is Annexure A to this judgment.
54․	A sentence graph containing the commencement dates for each sentence imposed by
the sentencing judge and displaying the degree of concurrency for each sentence is
Annexure B to this judgment.

Grounds of Appeal

55․	Section 37E(2)(a) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) provides
for appeals from orders of the court, including the present appeal from a single judge.
On such an appeal, the Court of Appeal has the power (among others) to confirm,
reverse or amend the order, giving any order it considers appropriate: s 37O of the
Supreme Court Act. Specifically on an appeal against sentence, it may increase or
decrease the sentence, or substitute a different sentence: s 37O(7) of the Supreme Court
Act.
56․	The primary purpose of an appeal against sentence by the Prosecution is directed to
laying down principles for the governance and guidance of courts having the duty of
sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49;
244 CLR 462 (Green) at [1]; Cumberland v The Queen [2020] HCA 21; 379 ALR
503 at [6]. Even if error is established, the appellate court has an overriding discretion
which may lead it to decline to intervene.
57․	The grounds of appeal raise both specific errors (Grounds 1-3) and manifest inadequacy
(Ground 4), each being error of the kind identified in House v The King [1936] HCA 40; 55
CLR 499 at 505.
58․	The Prosecution appeals the sentence imposed on the following four grounds:

(a) In respect of charge CAN 2023/1866 (the demand with threat to endanger safety

offence), the sentencing judge erred in allowing a discount of 25% for the

respondent’s plea of guilty (Ground 1).

(b) In respect of charges CAN 2022/786, CAN 2022/794, CAN 2022/789 and CAN

2022/4006, the sentencing judge erred in allowing discounts in excess of 10%

for the respondent’s pleas of guilty (Ground 2).

(c) In respect of charge CAN 2022/793, the sentencing judge erred in the

assessment of the objective seriousness of the offence, by failing to take into

account and/or misstating the material facts relevant to that assessment

(Ground 3).

(d) The sentence imposed was manifestly inadequate (Ground 4).

59․ In relation to specific error, this Court has historically applied Kentwell v The

Queen [2014] HCA 37; 252 CLR 601 (Kentwell) at [35], in finding that where error is

established, the appellate court “should re-sentence by exercising the sentencing

discretion afresh, rather than merely confirming the original sentence on the basis that it

fell within the available range”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR

103 (Toumo’ua) at [12]. A real issue arises as to whether that should be applied in the

Australian Capital Territory (ACT). As observed recently by the Court of Appeal in M C-

N (a pseudonym) v The Queen [2023] ACTCA 21 (M C-N (a pseudonym)) at [25], the

application of the Kentwell principle to the broad powers set out in s 37O of the Supreme

Court Act had been assumed in Toumo’ua, rather than decided. Kentwell involved the

New South Wales statutory regime where s 6(3) of the Criminal Appeal Act 1912 (NSW)

(NSW Act) provides that if the Court of Criminal Appeal “is of opinion that some other

sentence, whether more or less severe is warranted in law and should have been

passed”, the Court “shall quash the sentence and pass such other sentence in

substitution therefor, and in any other case shall dismiss the appeal”. By contrast, in the

ACT, where s 37O of the Supreme Court Act permits the Court to “confirm, reverse, or

amend” the order appealed from: s 37O(1)(a) of the Supreme Court Act, it may be that

this Court is not similarly constrained: see M C-N (a pseudonym) at [25]. The difference

was not explored in the present appeal and need not be decided given the nature of the

errors and our broader conclusions.

60․ Further, where the Prosecution succeeds in establishing specific error, “it is not

appropriate to impose a judicially created additional requirement that the sentence be

manifestly inadequate” before an appellate court intervenes to resentence: R v Ralston

[2020] ACTCA 47; 285 A Crim R 159 (Ralston) at [84]. Although contrary views have

subsequently been expressed when dealing with s 5D of the NSW Act, a separate

provision permitting a Crown appeal against sentence: see R v Taylor [2022] NSWCCA

256; 373 FLR 418 at [91] and Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at

[241]-[246], it was not suggested in this appeal that these apply in the ACT.

61․	For the reasons that follow, the Prosecution has established each of the grounds of
appeal. The Court does not exercise its residual discretion to decline to intervene, and
resentences the respondent as set out at [157]-[168] below.

Ground 1 – Was there error in the 25% discount applied in respect of charge CAN

2023/1866?

Ground 2 – Was there error in a discount exceeding 10% for guilty pleas entered in

respect of charges CAN 2022/786, CAN 2022/794, CAN 2022/789 and CAN

2022/4006?

62․ These grounds can conveniently be addressed together.

Submissions

63․	Ground 1 relates to the offence of CAN 2023/1866 (the demand with threat to endanger
safety offence), for which the respondent was sentenced to imprisonment for 12
months, reduced from 16 months. The lesser sentence represents a 25% discount for
a plea of guilty. The sentencing judge at [149] stated:

The final offence of making a demand with a threat to endanger the health, safety or physical

wellbeing of another person…was subject to a plea on the first day it was mentioned in Court

and justifies a significant discount in sentence.

64․	The Prosecution submitted that although the plea was entered on the first mention of the
charge CAN 2023/1866, the conduct captured was the same as was initially the subject
of a different charge. As a result of negotiations, the earlier charge was withdrawn and
replaced. The Prosecution argued that the applicable principle in those circumstances
is that the plea was a late plea, relying on R v Dib [2003] NSWCCA 117 (Dib) at [5]-[6]
(discussed below), and not one for which “a significant discount is justified”.
65․	The respondent submitted that the discount reflected the fact that the plea was entered
at the earliest time the respondent could plead to that particular charge. In cases where
a charge is substituted, caution must be exercised in assuming that the original charge
had foundation, as there may be cases where an initially incorrect or unsustainable
charge was laid and then substituted with one that could be proven. The respondent
relied on the common law principles articulated in Cameron v The Queen [2002] HCA 6;
209 CLR 339 (Cameron) at [20]-[23] in relation to assessing the value of a plea by
reference to the first reasonable opportunity for it to have been entered. The respondent
relied also on R v Moore [2021] ACTSC 333 (Moore); R v Takalubegash [2002] ACTSC
66 (Takalubegash) and R v French [2021] ACTSC 205 (French), said to reflect the
application of that principle.
66․	The Prosecution’s complaint in Ground 2 concerns the discounts in respect of the
following offences:

(a) Making a reckless threat to kill (CAN 2022/786), where 16 months’

imprisonment was imposed, reduced from 19 months (a 16% discount);

(b) Assault occasioning actual bodily harm (CAN 2022/794), where 10 months’

imprisonment was imposed, reduced from 12 months (a 17% discount);

(c) Common assault (CAN 2022/789), where 8 months’ imprisonment was

imposed, reduced from 10 months (a 20% discount); and

(d) Common assault (CAN 2022/4006), where 8 months’ imprisonment was

imposed, reduced from 10 months (a 20% discount).

67․	The sentencing judge dealt with the discretion to apply a discount for the pleas of guilty
in respect of these offences in a global way at [148] of the primary judgment:

Mr Padreny did plead guilty in the Magistrates Court. It was, however, on the day that the matters were listed for hearing and a brief of evidence had been prepared and provided by the prosecution. This did, of course, save court time and effort, and relieved the victim from giving evidence. The plea was the result of negotiations and was agreed some time before the actual hearing date, which would have minimised inconvenience, for example, for witnesses waiting to come to Court. While it was a late plea, it does still justify some discount in the sentence.

68․	The Prosecution submitted that the circumstances in which the pleas were entered did
not justify affording discounts of greater than 10%. As we understood the submission, it
was effectively that the principles guiding the exercise of the court’s discretion were
misapplied, a submission reinforced by the fact that there is a lack of consistency
between discounts for pleas agreed in identical circumstances (on the eve of the trial).
The respondent’s main submission was more explanation than justification, namely that
the sentencing judge may have given the discounts because it allowed his Honour to
give a sentence in round figures.

Principles guiding the exercise of discretion under s 35 of the Sentencing Act

69․	The power of the Court to impose a discount for a guilty plea is derived from s 35 of the
Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Where a custodial sentence is
in contemplation, the Court may impose a lesser period than it would otherwise have
imposed if the offender had not pleaded guilty to the offence: s 35(3) of the Sentencing
Act. In doing so, it is necessary to consider the particular circumstances in which the
plea was entered, including the statutory matters set out in s 35(2) of the Sentencing Act:

(2)

In deciding how the offender should be sentenced (if at all) for the offence, the

court must consider the following matters:

(a)	the fact that the offender pleaded guilty;
(b)	when the offender pleaded guilty, or indicated an intention to plead guilty;
(c)	whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;
(d)	the seriousness of the offence;
(e)	the effect of the offence on the victims of the offence, the victims’ families

and anyone else who may make a victim impact statement.

70․	The applicable discount for a guilty plea is a question of discretion: Cranfield v The
Queen [2018] ACTCA 3 (Cranfield) at [37]-[38]. The starting point is that there is no
tariff in respect of discounts entered at particular stages. In Miller v The Queen [2018]
ACTCA 21; 273 A Crim R 27 (Miller) it was said at [76]-[77]:

76.    It may be accepted that it is common, if not customary, in this jurisdiction for a discount of 25% to be given where a plea of guilty was entered at an early stage in the Magistrates Court. It may equally be accepted, as a general principle, that there should be consistency in fixing discounts for pleas of guilty. There is an obvious public interest in offenders and their advisers knowing the range of discount likely to be fixed when a plea of guilty is entered at a particular stage of a criminal proceeding.

77. Those considerations, however, should not lead the Court to effectively impose a tariff in respect of discounts entered at particular stages. Section 35 of the Sentencing Act makes it clear that the considerations that a court should have regard to in considering the lesser penalty that should be imposed by reason of a guilty plea are not limited to the timing of the plea, as important as that consideration is. It is equally clear that the determination of the appropriate lesser penalty is an evaluative exercise which involves the weighing up of a number of relevant considerations.

71․	As discussed in cases such as Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99
(Monfries) at [47] and Toumo’ua at [49], utilitarian value of a guilty plea is a primary
consideration, as seen through the express words of the Sentencing Act:

(a) section 35(2)(b) requires the Court to take into account when

the offender pleaded guilty, or indicated an intention to plead guilty; and

(b) section 35(5) provides that the earlier in the proceeding that the guilty plea is

made, or indication is given that it will be made, the lesser the penalty the court

may impose.

72․	In Monfries, Murrell CJ referred at [47] to the importance of the timing of a plea to the
assessment of an appropriate discount.
73․	In R v Nicholas; R v Palmer [2019] ACTCA 36 at [49]-[53], the Court of Appeal
considered the applicable discounts for guilty pleas entered in various circumstances, as
follows (emphasis added):

49․ In Williams v The Queen [2018] ACTCA at [47], this Court emphasised that, for public policy reasons, it is important that persons considering an early plea of guilty be justifiably confident that their plea will attract a substantial discount on sentence and also understand that, if they delay in entering the plea, the level of discount is likely to be significantly lower.

50․ In Cranfield, the offender had pleaded guilty a week before the trial was due to commence. The Court increased the sentence discount from five to 10 per cent. In R v

Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua), the offender had pleaded

guilty after committal to the Supreme Court but before a trial date had been set. The Court of Appeal reduced the sentence discount from 25 to 17 per cent. In Zhao v The Queen [2018] ACTCA 38 (Zhao), the offender had pleaded guilty 12 days before the commencement of the trial as a result of successful negotiations regarding a rolled-up count. The Court confirmed the sentence discount of 10 per cent.

51․	Among others, these decisions illustrate that, in circumstances such as the present, an
accused person should confidently expect to receive a discount of 10 per cent— or, perhaps, slightly more if their plea was not entered “on the steps of the Court”.
They should expect that, in the case of such a late plea, a larger s 35 discount will only be given where there are unusual circumstances, such as a very weak Crown case or an earlier offer by the accused to plead to the charges, which the Crown accepted at the last minute.
52․	Ordinarily, a discount of 15 to 20 per cent is allowed for a plea entered before or in connection with criminal case conferencing and prior to the setting of the trial date. Absent unusual circumstances, 20 per cent would be the upper limit in relation to a plea of guilty entered at that stage. In Blundell v The Queen [2019] ACTCA 34 at [13] (Blundell), this Court said:

It is also vital that persons coming to a criminal case conference do so with confidence that pleas of guilty will attract more than a minimum discount. This confidence should also extend to the community at large, knowing that persons will be treated consistently, in turn enhancing the proper administration of justice.

53․	The converse is also true. It is vital that accused persons who choose to wait to
the last minute to enter a plea of guilty appreciate that, absent unusual circumstances, they will not receive a discount that is as high as the discount that they would have received had they pleaded guilty at the criminal case
conferencing stage, which usually occurs soon after a matter has been committed to the Supreme Court for trial.

74․	The case of Blundell v The Queen [2019] ACTCA 34, referred to in the above extract,
also made the point (at [8]) that while there is no mandated practice of specific plea
discounts for different stages of the proceeding (which might be thought to constitute a
tariff), there is a usual practice, and s 33(1)(za) of the Sentencing Act mandates that a
sentencing court consider current sentencing practice when deciding an appropriate
sentence. This includes where principles have been laid down for the exercise of
discretionary discounts.

The applicable principle where a plea of guilty is made to a replacement charge

75․	It is significant that s 35(2)(c) of the Sentencing Act expressly requires the Court to take
into account whether the guilty plea was related to negotiations between the prosecution
and defence about the charge to which the offender pleaded guilty.
76․	The passage on which the Prosecution relied in Dib is at [5]-[6] (emphasis added):

5.      If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact

that in this situation there are less advantages to the administration of justice can
justify a smaller discount.

6.      This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

77․	Dib was later applied in cases such as R v Borkowski [2009] NSWCCA 102; 195 A Crim
R 1 (Borkowski) where it was stated at [32(9)]:

The utilitarian value of a delayed plea is less and consequently the discount is reduced even

where there has been a plea bargain: R v Dib [2003] NSWCCA 117; Ahmad v The Queen

[2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan v The Queen (2008) 51 MVR 572; or the offender has delayed the plea to obtain some forensic advantage: R v Stambolis; Saad v The Queen [2007] NSWCCA 98...

78․	In this jurisdiction, the above passage in Dib has been referred to in cases such as
Monfries at [38] and Slater v The Queen [2014] ACTCA 33 at [35].
79․	The applicability of Dib in this jurisdiction is reinforced when regard is had to the
Explanatory Statement for the Crimes (Sentencing) Bill 2005 (ACT). When discussing
clause 35(2)(c), the reason for its inclusion was stated to be as follows:

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 appellant not to proceed with a more serious charge. Diminishing credit for guilty pleas associated with negotiations or bargaining is consistent with R v Gray [1977] VR 225, R v Shannon (1979) 21 SASR 442 and R v Lyons (unreported) 1993 CCA Tas 20. These cases 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 appellant not to proceed with a more serious charge.

80․	The operation of the statute in this way has been confirmed in cases such as Toumo’ua,
where the Court stated at [56]:

...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.

81․	The principle applies in this jurisdiction for good reason. It would run contrary to the
efficient administration of justice to apply a 25% discount for a guilty plea to a
replacement charge made at a late stage in proceedings. To do so would defeat the
incentive purpose of the discount, as an accused who pleads guilty to a lesser charge
on the same facts on the eve of the hearing would obtain the same maximum sentencing
discount as that applied for guilty pleas made much earlier, where no preparation of the
case was required.
82․	The cases relied upon by the respondent do not support a position to the contrary. As
submitted by the Prosecution, the statute under consideration in Cameron (being
Western Australian legislation) used different language to the equivalent legislation in
the ACT. At the time when Cameron was decided, s 8(2) of the Sentencing Act 1995
(WA) was in terms that simply stated:

A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.

83․	The common law statement of principle in Cameron was in the context of those words
and has subsequently been held not to apply to the statutory regime in NSW: R v Sharma
[2002] NSWCCA 142; 54 NSWLR 300 at [67]-[68]. The same is the case here, where s
35(2) of the Sentencing Act requires the sentencing judge to take into account a number
of factors in assessing utilitarian value, not only when the plea was entered.
84․	It is important to recognise that the principle in Dib was expressed as applying to
circumstances where a plea is entered “a long time after a person is charged”, not to any
case where there is a substituted charge. In Moore, Murrell CJ found at [3] that
notwithstanding the fact that a brief of evidence had been prepared, the plea was entered
at an early opportunity and there remained significant utilitarian value. Takalubegash
was decided prior to the introduction of the Sentencing Act and applied the common law
principle articulated in Cameron. It has been overtaken by both the legislation and the
more recent authorities referred to above. French did not concern any negotiations
followed by a plea to a substituted charge.

Ground 1: CAN 2023/1866

Consideration

85․ The following matters are not in dispute:

(a) The charges to which the respondent pleaded not guilty had been listed for a

seven-day hearing in the Magistrates Court.

(b)	A full brief of evidence had been prepared.
(c)	Negotiations between the parties took place the week prior to hearing.
(d)	A resolution was reached on the last business day prior to the hearing date.
(e)	On the day the hearing was due to commence, among other pleas made by the

respondent, the replacement charge was filed and the respondent pleaded

guilty to it.

(f) The Prosecution then withdrew other charges.

86․	The nature of the original charge was not in evidence before this Court on appeal, and
on the material before this Court it may not have been known to the sentencing judge. It
was further submitted that the facts constituting the replacement charge were the same.
Although this was not expressly conceded by the respondent, there is no reason to doubt
the correctness of the submission.
87․	The submissions now advanced by the respondent were not those advanced below. To
the contrary, in written submissions before the sentencing judge, in response to the
Prosecution’s submission that the lateness of the plea to the majority of the charges
(which must include a reference to this charge) must reduce any discount available, he
submitted:

The offender submits that despite the plea of guilty, the plea on the day of the hearing has considerable utilitarian value. The victim would otherwise have to spend more than a day in court. Seven days have been set aside. The offender acknowledges, however, that he cannot get a full discount.

88․	Although there is no tariff, a full discount would be understood as 25%.
89․	The above submission is a concession by the respondent, based on the circumstances
in which the pleas were entered, that he was not entitled to a full discount. The Court is
entitled to assume that the submission against interest was made by his legal
representative who was obviously aware of the negotiations that led to the plea.
90․	The sentencing judge’s conclusion that the plea justified a “significant discount” is
unexplained. There is no evident justification.
91․	The respondent’s submission that an accused may not plead to an original charge for
reasons that are not his fault (such as an incorrect charge) is well-appreciated, although
there is no basis to suggest that is the circumstance of this plea. The same point was
made in Dib at [6]. However, it is important to recall that the discount is not concerned with fault, but rather is primarily a recognition that the administration of criminal justice
requires significant work to be done in terms of preparing a case for trial, such as
gathering evidence for a brief, preparing witnesses, and allocating judicial and court
resources, extending in some cases to the preparations for empanelling a jury. An early
guilty plea saves investment of resources in those practical matters, described in the
authorities as “utilitarian value”.
92․	That is why, even leaving aside the negotiations that occurred (and contrary to the
respondent’s submissions), a guilty plea to a substituted charge at the commencement
of a seven-day hearing, as obviously accepted by the respondent below, is generally not
to be treated as an early plea: Zhao v The Queen [2018] ACTCA 38 at [27]. While there
is no tariff, in the absence of any particular circumstance taking the case outside the
application of the general principle as explained in Dib, the respondent was not entitled
to the discount of 25% (which is generally considered to be the maximum and ordinarily
granted for an early plea). There are no circumstances justifying a discount of 25% in
this case.
93․	The sentencing judge erred in imposing a sentence that reflected such a result.
Accordingly, the Prosecution succeeds on Ground 1.

Ground 2: CAN 2022/786, CAN 2022/794, CAN 2022/789 and CAN 2022/4006

The circumstances in which the respondent pleaded guilty

94․	As discussed in relation to Ground 1, the material before the sentencing judge in relation
to the pleas the subject of challenge was that there were negotiations the week before
trial and an agreement reached on the last working day before the hearing commenced.
95․	Before the sentencing judge, the Prosecution submitted that the pleas entered on the
day of the hearing were late pleas and this reduced the discounts to be given. The
respondent accepted before the sentencing judge that the pleas were late and did not
warrant a full discount in his written submission before the sentencing judge, as
explained above at [87]-[89].
96․	On appeal, counsel for the respondent sought to argue that the position in relation to the
pleas was more nuanced than put by the respondent below. For example, it was
submitted that at least in respect of the property damage offences, the respondent had
never pleaded “not guilty” to those offences and was entitled to a significant discount for
those offences. However, the discounts applied in respect of those property damage
offences are not the subject of challenge on appeal. The position with respect to each
of the pleas about which the Prosecution complains is that there is nothing about the
circumstances in which the pleas were entered in this case to warrant the extent of the
discounts given to the respondent. Further, there is no basis to the respondent’s
submission that the extent of the discount is because it enabled a sentence in round
figures to be imposed.
97․	Guided by the authorities set out above, each of the four offences the subject of
complaint was a guilty plea arrived at late, if not effectively “on the steps of the Court.”
In those circumstances, the awarding of discounts in respect of four of the offences
being, 16%, 17%, 20% and 20% respectively, was not in accordance with established
principle applied to the circumstances of this case and error is thus established. The
Prosecution succeeds on Ground 2.

Ground 3 – Was there error in the assessment of the objective seriousness of the

assault occasioning actual bodily harm on 13 September 2020 (CAN 2022/793)?

98․	This complaint concerns whether a factual error was made, which caused the sentencing
judge to assess the objective seriousness of the relevant offence on a mistaken basis.
99․	In order to consider the Prosecution’s complaint, it is important to first understand what
the agreed facts of the offence were. They form part of the facts constituting the Series
5 offences, which were agreed as follows (emphasis added):

At some point prior to mid-August 2020, the victim began renting a house in Evatt in the ACT, which was privately owned and leased by [anonymised]. The offender began residing with the victim at this address in mid-August.

On Sunday, 13 September 2020, the offender had gone out for the evening. The victim

phoned the offender saying words to the effect of, “I’ve been waiting up to go to bed until you come back so I can let you in”. The offender responded with words to the effect of, “I don’t care. You can wait for me”. The victim responded “No. You can come back tomorrow. I’m going to go to sleep”.

A short time later the offender arrived at the back door of the victim’s residence. He phoned

the victim and said he was waiting for her to let him in. The victim walked to the living room of the premises and opened the glass sliding door, but keeping the sliding screen door closed and locked. The victim told the offender he was not welcome to come back in the house that night. The offender told the victim he had belongings in the residence, so he had every right to break in.

The offender kicked the screen door until it broke off the frame, and threatened to do more

damage if the victim didn’t let him in. The victim felt afraid and let the offender into the house.

While the offender was gathering his belongings off the couch, he threatened to set fire to it. The offender was holding a gas cylinder with an open flame near the couch. In response, the victim splashed a glass of water on the offender.

The offender then hit the victim on her right arm with the gas cylinder, knocking the glass of water out of her hand. This caused the victim to feel immediate and immense pain in her right elbow. She frightened (sic) and in shock. She fainted and the glass shattered on the floor.

The offender caught the victim as she was falling and lowered her to the ground. When

the victim regained consciousness, the offender left. The victim phoned her mother, and

the ACT Ambulance Service (the “ACTAS”). Police were notified of the incident by the

ACTAS. When police officers attended the location and spoke to the victim, she was adamant she did not want police to be involved.

The victim was taken to the hospital by the ACTAS. The victim was observed by Doctor [anonymised], the ED medical doctor. The victim took photos of the bruising to her arm and the damage to the screen door and later provided the photos to police. The victim later had surgery consisting of an ulnar nerve transposition in her right elbow.

The screen door was later repaired and paid for by [the victim’s parents]. The cost of the

repairs was $1,669.00.

100․	The asserted error relates to the agreed fact that the harm caused to the victim’s elbow
was more than just a bruised elbow as seen from the emphasised words in the agreed
facts above. It required surgery to treat.

101․ The Prosecution submitted that the sentencing judge attributed the requirement for

surgery to a later assault occasioning actual bodily harm by the respondent (being

conduct the subject of CAN 2022/794). That caused the sentencing judge to assess the

conduct in CAN 2022/793 as being of less objective seriousness than it was.

102․ This is what the sentencing judge said about the conduct constituting the first assault

occasioning actual bodily harm on 13 September 2020 (CAN 2022/793) (primary

judgment at [32]-[33], emphasis added):

32․	Mr Padreny said that as he had belongings in the home, he had every right to break in. He then kicked the screen door until it broke off the frame and threatened to do more damage if he was not let in. Feeling afraid, the victim let him in. While collecting his things, Mr Padreny threatened to set fire to the couch in the house. He was, at the time, holding a gas cylinder with an open flame. In response, the victim splashed a glass of water on him. The screen door was later repaired at a cost of $1,669. These were the facts which led to a charge of damaging property of a value not exceeding $5,000.
33․	Mr Padreny then hit the victim on her right arm with a gas cylinder, knocking the glass of water out of her hand. The victim felt immediate and intense pain; she was frightened and in shock. She fainted. Mr Padreny caught her as she was falling and lowered her onto the ground. The victim called her mother, who called an ambulance.
She was taken to hospital, where she was observed by an emergency department
doctor. She photographed her bruised arm and the damage to the screen door. As a result of these events, Mr Padreny was charged with assault occasioning actual bodily harm.

103․ The words emphasised confirm that there is no reference in the summary to the

requirement for surgery, only to the victim’s arm being bruised. When returning to

discuss the objective seriousness of the offence, the sentencing judge then focused only

on the bruising, again, without mentioning that the harm the subject of the first assault occasioning actual bodily harm extended to the requirement for surgery. The relevant

paragraphs are at [81]-[83] of the primary judgment (emphasis added):

81․	In R v Pearson [2020] ACTSC 375 at [24]-[29], this offence was considered. Actual
bodily harm means “any hurt or injury calculated to interfere with the health or comfort
of the victim. Such hurt or injury need not be permanent but must be more than transient or trifling”: R v Donovan [1934] 2 KB 498; 25 Cr App R 1 at 509. This form of injury thus
must be assessed to ensure that it is of sufficient seriousness. Thus, bruising may constitute actual bodily harm: R v Ball [2013] NSWCCA 126 at [67]. Clearly the bruising must be of some significance and not insignificant, or as the definition has it, not
“transient or trifling”.
82․	In the case of the first such assault on 13 September 2020, Mr Padreny hit the victim with a gas cylinder. She fainted and the ambulance attended. They arranged for her to be taken to hospital. She took photographs which were in evidence. They showed a
significant bruise and redness on 15 September 2020, two days later, and it was still clearly evident on 21 September 2020. It was a serious bruising and certainly not transient. It was sufficiently painful for her to faint.
83․	The assaulting was with a gas cylinder clearly used a weapon and is also relevant as are the circumstances. Mr Padreny had behaved badly in staying out late and inconveniencing her and being inconsiderate. Then he returned and broke the screen door and launched this attack on the victim. If, as seems his position, Mr Padreny was affected by drugs, this is serious if it encourages aggression, especially as it makes reasoning with him unable to be successful: R v Pearson at [27].

104․	On a plain reading of the above paragraphs, there appears to have been a mistake as
to the extent of the harm caused by the conduct that was charged as CAN 2022/793.

105․ That such a mistake occurred is confirmed by what was said about the second assault

occasioning actual bodily harm on 10 October 2020, being CAN 2022/794. That offence

involved the respondent kicking the victim’s right hand while wearing heavy work boots,

jarring her thumb and causing her significant pain: [43] of the primary judgment.

106․ The discussion and assessment of the second assault is at [44]-[45] and [84] of the

primary judgment (emphasis added):

44․	Three days later, the victim sought medical attention and x-rays and ultrasound, that is diagnostic medical sonography, of her wrist which was still painful. It showed that she had a thickening of the joint capsules with a possible mild thickening of the volar plate in the right thumb interphalangeal joint. The volar plate is the thick ligament on the underside of the middle joint of a finger which keeps it from hyperextending back. The interphalangeal joint in the thumb is located at the tip of the thumb just before the
fingernail starts and joins the upper bone of the thumb to the lower bone: see Dorland’s
Illustrated Medical Dictionary (24th ed, 1965).
45․	A magnetic resonance imaging investigation was undertaken which confirmed the torn volar plate as well as torn soft tissue in various parts of her thumb and wrist. As a result, she was referred to an orthopaedic surgeon who performed a right endoscopic carpal tunnel release and a right subcutaneous ulnar nerve transposition. These events were the basis for a further charge against Mr Padreny of assault occasioning actual bodily harm.
…
84․	In the second case, on 10 October 2020, Mr Padreny kicked the victim’s thumb which
caused damage already described above (at [44]-[45]). This resulted in ongoing pain, damage to the ligament and cartilage and required surgical procedures to be
permitted. This assault was committed in the victim’s home and the kick was carried
out with his heavy work boots. Though no bones were broken, significant soft tissue injuries can be serious and have had lasting consequences.

107․	The words emphasised above refer to surgical procedures. They further reveal that the
sentencing judge misunderstood that, while there were two surgical procedures carried
out, the transposition surgery in fact related to the earlier assault. It was a mistake easily
made in the context of the multiple offences of the same kind for which the respondent
was being sentenced, and where the two surgical procedures were carried out at the
same time, on 16 September 2021.
108․	The respondent submitted that the sentencing judge did not fail to consider the relevant
injuries, it was simply that the facts were recited in chronological order. However, that
submission cannot be accepted because the sentencing judge assessed the objective
seriousness of “the first assault” and “the second case” separately, as seen from the
emphasised words in the reasoning above.

109․ The mistake as to the extent of the harm suffered was significant to the objective

seriousness of the first assault. There is a quantitative difference between harm that

constitutes bruising and an injury that requires surgery to fix.

110․ That such a mistake occurred is also reflected in the sentences that were imposed:

(a)	9 months (reduced from 10 months) for CAN 2022/793, and
(b)	10 months (reduced from 12 months) for CAN 2022/794.

111․ As the subjective features and other sentencing considerations for each offence were

equal, it may readily be inferred from the shorter period imposed in relation to the first

assault that the sentencing judge mistook the first of the two assaults occasioning actual

bodily harm as being less objectively serious. Such an inference derives from the

established principle that the sentence imposed must be proportional to the objective

seriousness of the offence: Miller at [37].

112․ The circumstances set out for each offence above establish that the objective

seriousness of the first assault occasioning actual bodily harm was in fact greater than

that of the second. On a plain reading of the reasons, the sentencing judge’s assessment

of the objective seriousness of CAN 2022/793 was affected by factual error, which then fed into the ultimate sentence imposed in respect of that offence. The Prosecution

succeeds on Ground 3.

Ground 4 – Was the sentence manifestly inadequate?

113․	The Prosecution submitted that the individual sentences are each manifestly inadequate,
as well as the total or aggregate sentence imposed and the non-parole period.
114․	The principles in relation to assessing whether a sentence is manifestly inadequate are
well-established. Appellate intervention is not justified simply because an appellate court
may have a different view as to the most appropriate sentence: Lowndes v The Queen
[1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR
357 at [28] or where the sentence is markedly different from sentences that have been
imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at
[58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [58].
Rather, the appellant must demonstrate that the sentence is such that it may be inferred
that there was a misapplication of principle by the sentencing judge, although when and
how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at
[58]-[59] and [75]-[76].
115․	It must be accepted that this was a difficult sentencing task for the judge. There were 14
offences relating to at least 8 occasions spread over 8 months, with multiple offences
committed on some of the occasions, and some of the offences charged being rolled up
counts.

116․ The sentencing judge was required to consider the appropriate sentence for each

offence and then turned to questions of concurrency/accumulation and totality: Pearce v

The Queen [1998] HCA 57; 194 CLR 610 (Pearce) at [47]. The totality principle requires

a court, in sentencing an offender for multiple offences, to ensure that the aggregate

term it imposes is “a just and appropriate measure of the total criminality involved”:

Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at [304]. The total effective

sentence and non-parole period required to be served must accurately reflect the overall

or total criminality comprised in the totality of offences: Nyugen v The Queen [2016] HCA

17; 256 CLR 656 at [64]. It must have regard to an offender’s subjective mitigating factors

and must not be excessive or “crushing”: Mill v The Queen [1988] HCA 70; 166 CLR 59.

117․ Although the Prosecution alleges each sentence imposed was manifestly inadequate,

having highlighted the circumstances of offences which he contended were particularly

egregious in relation to the sentences involved, it was accepted that there was a stronger

argument in respect to the sentences for those offences than others. Although the

Prosecution maintained the submission in respect to the other offences based on what had been advanced in writing, these were not expanded upon. The candid submission

that the argument in relation to those offences is not as strong only serves to highlight

that care should be taken before making allegations that all individual sentences are

manifestly inadequate.

118․	Simply because an individual sentence is lenient or at the lower end of the scale is not
sufficient for it to be manifestly inadequate. Despite the serious nature of the offending,
some of the offences have a maximum penalty of 2 years, which limits the scope of any
sentence imposed. Further, where there are multiple offences, it may be that the real
complaint is with the aggregate sentence. As there are multiple offences in relation to
some occasions, it is important to remember that an offender is not to be the subject of
double punishment for offending, although the context in which the conduct occurred is
plainly to be considered. It may be that the circumstances give cause for greater
concurrency between offences that occurred on the one occasion, rather than between
the series of offences which are plainly distinct. If some offences are found to be
manifestly inadequate, they fall to be resentenced, which enlivens the issue of
concurrency and accumulation.

119․ We note that the respondent’s subjective circumstances were set out in detail by the

sentencing judge at [97]-[123] of the primary judgment. There is no complaint about

those matters on appeal and they are adopted as an accurate summary of the evidence

which was also before the Court on appeal. It can properly be characterised as a poor

subjective case. We note also that the respondent was on conditional liberty at the time

of committing all but the last offence. Equally, the sentencing judge provided a careful

summary of the victim impact statements at [124]-[137].

120․ The sentencing judge also discussed the family violence context in which the entire

course of offending occurred, including (at [59]) the mandatory considerations set out in

s 34B of the Sentencing Act. His Honour may have erred in referring to s 34B, as the

offending occurred before that section commenced operation. However, that does not

mean that the family violence context was irrelevant, and these matters have been taken

into account in considering whether any error has been established. Also taken into

account, inter alia, are the circumstances of the offences and the relevant sentencing

principles.

121․ We have also considered the comparative cases referred to during the appeal, noting

their relevance to the task. In Hili, French CJ, Gummow, Hayne, Crennan, Kiefel and

Bell JJ made the following observations (at [53]-[54]) in respect to the relevance of

49.     The victim took photos of the bruising on her wrist and arm and later provide those photos to police. The victim expressed she wanted to make a doctor's appointment, and the offender said she was being stupid, and he would not let her

call her General Practitioner. The offender said he would take the victim's phone
off her if she attempted to make an appointment.

50.     About 5:15pm on Thursday 14 May 2020, the victim told the offender she was going to walk across the road to get something to eat. While she was out of the apartment, the victim phoned DVCS and spoke with a staff member. The staff member encouraged the victim to attend the emergency room for an assessment.

51.     The victim returned to the apartment and made an excuse to leave. She went to the Calvary Hospital emergency department and was observed by Doctor [anonymised], the ED Medical Officer. The victim had X-Rays on her wrist at that time. However, the victim left the hospital prior to receiving the results of her X- Rays.

52.     The victim later obtained the Radiology report and ED discharge summary and provided them to the police at some point after October 2020.

Incident 3 - 16 May 2020

53.     On Saturday, 16 May 2020, the victim and the offender were still staying at the [Apartments in Braddon]. At some point during that day, the victim asked the offender to leave. The offender quickly became aggressive. The victim attempted

to hide from him in the bedroom of the apartment. However, the offender
prevented her from closing the door.

Damaging property, where the value of the damage did not exceed $5,000

54.     The offender punched a hole in the wall, directly next to the bedroom door. The hole was approximately 15cm by 10cm.

55.     The victim was incredibly distressed by the offender punching a hole in the wall. The offender walked away and picked up a container of Italian food and threw it over the carpet. The offender then squashed the food into the carpet with his feet.

The offender also threw two coffees across the room, spilling over the walls and floor. As the offender was leaving, he punched a second hole in the wall, this time near the front door of the apartment. The hole was approximately 5cm by 10cm.

56. Police officers attended the [Apartments in Braddon]. During the course of their
relationship, the offender told the victim he had affiliations with dangerous people,

At about 10:40am that day, the victim telephoned her parents, DVCS, and police. killed without getting his own hands dirty. The victim believed him. Due to this belief, the victim told police officers that she did not want to pursue charges relating to the damage to the apartment.

57.     The victim took photos of the damage and later provided it to police on a date after October 2020. The damage, which was in excess of $2,000.00, was later repaired and paid for by [anonymised], the victim's mother and father.

58.     The victim was moved to a new apartment. A friend, [anonymised], came and stayed with her.

59.     On 17 March 2020, the offender returned to the [Apartment in Braddon] to collect items he had left. The victim walked down the street to talk to the offender, where he threatened to kill her. When the victim walked back to the apartment, she

telephoned DVCS twice and spoke with two different staff members, whom she
told what had happened.

Incident 4 – 14 August 2020

60.     On Friday, 14 August 2020, the offender was preparing to move out of his house in Belconnen. The offender made plans to store his belongings at a property that was being rented by the victim. The offender contacted the victim and requested her

assistance in helping him to pack up his belongings.

61.     The victim arrived at the offender's house later that morning and observed that the offender had not started to pack his belongings yet. The victim tried to motivate the offender to assist her in packing his belongings. The offender refused.

Common assault

62.     The offender cornered the victim by standing in front of her. He pushed her up against a wall with both hands. The victim told the offender that she was leaving. The offender began verbally threatening the victim, yelling loudly. The victim was scared and felt trapped.

63.     The victim pushed the offender with two open hands to create distance between them. The offender became angrier towards the victim after she pushed him. The victim was really frightened. She opened the bedroom door and tried to leave. As she turned away from the offender, he punched her in the back of the head with significant force.

64.     The victim screamed loudly and collapsed to the ground. She was crying and grasping at her head. The offender knelt to the ground next to the victim and began apologising. He assisted the victim to a standing position and guided her

back into the bedroom, at which point he closed and locked the door.

65.     The victim was distraught, dizzy, and in pain. She told the offender that she needed to go home. The offender stated that he was afraid he had punched the victim too hard, and that someone needed to watch her after such a head injury. He insisted that the victim could not leave because he needed to keep an eye on her.

66.     At about 12:27pm, an anonymous person who overheard parts of the incident became concerned and telephoned the police. At about 12:33pm, police officers arrived at the location.

67.     On becoming aware of the presence of police officers, the offender left the residence by climbing over the balcony attached to the bedroom. He told the victim not to talk to the police about anything.

68.     The offender had taken the victim's handbag containing her ID, bank cards and phone. The victim told attending police she was having a panic attack on the balcony when police gained entry to the bedroom. The victim did not disclose to attending police what had happened.

69.     At the time of this incident, [anonymised], the offender's housemate, was present in an adjoining room, but did not hear anything.

70.     After the attending police officers left the location, the victim started walking around the street looking for the offender. On returning to the offender's house, she saw the offender standing with his father. The offender gave the victim her handbag and told her to head upstairs and wait in his room. The offender followed the victim upstairs shortly after and told her he was leaving with his father and he wanted her to continue cleaning and packing his things while he was gone.

71.     The victim told the offender she did not want to stay there, and they began arguing. The offender verbally threatened the victim saying that he would come to her house unannounced, break in and take whatever he wanted. He said he would burn the house down with the victim inside it.

72.     About 1:30pm, the victim left to return home and made a phone call to DVCS and spoke with a staff member. The staff member offered to help her find somewhere safe to go, but the victim declined. The staff member suggested the victim not be at

home alone, for her own safety. The offender called the victim repeatedly for the rest
of the day, repeating threats to burn the house down with the victim inside it.

73.     The victim had her friend, [anonymised], come over to her house to support her. The offender phoned the victim and once he discovered that [the friend] was with the victim, the offender made threats towards [the friend], so the victim convinced [the friend] to leave.

74.     On Saturday, 15 August 2020, the victim attended the surgery of a general practitioner to have her head injury assessed.

Incident 5-13 September 2020

75.     At some point prior to mid-August 2020, the victim began renting a house in Evatt in the ACT, which was privately owned and leased by [anonymised]. The offender began residing with the victim at this address in mid-August.

76.     On Sunday, 13 September 2020, the offender had gone out for the evening. The victim phoned the offender saying words to the effect of, "I've been waiting up to go to bed until you come back so I can let you in". The offender responded with words to the effect of, "I don't care. You can wait for me". The victim responded "No. You can come back tomorrow. I'm going to go to sleep."

77.     A short time later the offender arrived at the back door of the victim's residence. He phoned the victim and said he was waiting for her to let him in. The victim walked to the living room of the premises and opened the glass sliding door, but keeping the

sliding screen door closed and locked. The victim told the offender he was not
welcome to come back in the house that night. The offender told the victim he had
belongings in the residence, so he had every right to break in.

Damaging property, where the value of the damage did not exceed $5,000

78.     The offender kicked the screen door until it broke off the frame, and threatened to do more damage if the victim didn't let him in. The victim felt afraid and let the offender into the house.

79.     While the offender was gathering his belongings off the couch, he threatened to set fire to it. The offender was holding a gas cylinder with an open flame near the couch. In response, the victim splashed a glass of water on the offender.

Assault occasioning actual bodily harm

80.     The offender then hit the victim on her right arm with the gas cylinder, knocking the glass of water out of her hand. This caused the victim to feel immediate and immense pain in her right elbow. She frightened and in shock. She fainted and the glass shattered on the floor.

81.     The offender caught the victim as she was falling and lowered her to the ground. When the victim regained consciousness, the offender left. The victim phoned her mother, and the ACT Ambulance Service (the "ACTAS"). Police were notified of the incident by the ACTAS. When police officers attended the location and spoke to the victim, she was adamant she did not want police to be involved.

82.     The victim was taken to the hospital by the ACTAS. The victim was observed by Doctor [anonymised], the ED medical doctor.

83.     The victim took photos of the bruising to her arm and the damage to the screen door and later provided the photos to police.

84.     The victim later had surgery consisting of an ulnar nerve transposition in her right elbow.

85.     The screen door was later repaired and paid for by [the victim’s parents]. The cost of

the repairs was $1,669.00.

Incident 6 - between 10 September 2020 and 20 September 2020

86.     Between 10 and 20 September 2020, a number of incidents occurred at the victim's house in Evatt.

Damaging property, where the value of the damage did not exceed $5,000

87.     On one occasion during this period, the victim had locked herself in the bedroom of the residence due to the offender's behaviour. The victim saw the handle wiggle, and believed the offender was trying to access the bedroom. The offender verbally demanded that the victim open the door. The offender banged loudly on the door for some time, demanding that the victim let him in. The victim asked the offender if he had any weapons. He assured her that he did not.

88.     The offender began kicking the bedroom door to gain access. The force of the kicks created two holes, measuring approximately 5cm by 10cm, with splintering cracks around each hole on the lower half of the door. The force of the kicks also caused a large, 20cm crack to appear on the opposite side of the door.

89.     The victim saw this crack beginning to emerge on the door whilst she was inside the bedroom. The victim was distressed and decided to unlock the door. As soon as she did so, she ran back to sit on her bed.

Damaging property

90.     The offender then opened the door and entered the room. He approached the bed holding a jet lighter. He used the flame of the jet lighter to ignite the bedsheets. The flame burned through the sheets to expose a mattress protector. The heat of the flame caused an area of the plastic component of this mattress protector to melt.

91.     The victim grabbed a glass of water and used it to extinguish the flame. The offender later discarded both the bedsheets and mattress protector before the victim could take photographs.

Damaging property, where the value of the damage did not exceed $5,000 (continued -
''rolled up" count)

92.     On another occasion, the victim again locked herself in the bedroom due to the offender's behaviour. The offender demanded access to the bedroom, and used a knife to stab and cut the door.

93.     The victim opened the door once the offender had calmed down. The offender laughed about having hacked at the door with a knife and told the victim that he had, "always wanted to do that".

94.     On another occasion, the victim locked herself in the bathroom due to the offender's behaviour. The offender started kicking and punching the door to get to the victim. This conduct caused a 20cm in one side of the door, and two smaller cracks in the other side, measuring about 10cm each.

95.     The repairs to the bedroom and bathroom doors were later performed and paid for by

[the victim’s parents]. The cost of the repairs was $970.00.

Intentionally and unlawfully choking, suffocating, or strangling another person Common assault

96.     On another occasion during this period, the victim was sitting on her bed in the bedroom of her house in Evatt. She and the offender were arguing. The offender punched a wall beside the bedroom door before storming over to the bed and launching himself at the victim.

97.     The victim turned away from the offender and put her arms up in front of herself, covering her face. The victim somehow turned around, and the offender began punching her on the back of the head.

98.     The offender then pushed the victim over, so that she was lying face down on the bed. The offender sat or kneeled on the victim's back and continued to punch her in the back of the head. She could feel the hardness of the offender's knuckles on the back of her head. The victim screamed and tried to wriggle her arms free, but they were trapped underneath her due to the offender being on her back.

99.     Between bouts of punching the victim, the offender pushed down forcefully on the back of the victim's head, forcing her face into the mattress. The victim felt unable to breathe. She attempted to turn her head and gasp for air once the offender resumed punching her. The victim stopped screaming and began attempting to tell the offender that she couldn't breathe.

100.   The force applied by the offender to the back of the victim's head, pushing her face into the mattress, caused her to feel that she couldn't move, and like she was suffocating.

101.   The offender suddenly stopped hitting the victim and got off her. The victim turned head to the side and freed her arms, taking a deep breath. She saw the offender sitting at the edge of the bed looking back and forth between his hand and her. The offender showed the victim his hand, which was covered in blood. The offender said words to the effect of "I don't know if this is my blood. or yours".

102.   The offender apologised and said he couldn't believe what he'd just done. He said that the victim had pushed him too far, and that's why he had acted that way. The victim felt dizzy and had a headache. She took some painkillers and had a shower to

wash the blood out of her hair.

Incident 7 - 18 September 2020

103.   On 18 September 2020, the offender and the victim were at the victim's house in Evatt. The offender requested that the victim transfer money to him. This was a common occurrence.

104.   The victim did only had about two hundred dollars left in her account, so at that time she refused the offender's request. The offender began to follow the victim around the house with a taser that he had been in possession of for several weeks. The offender would set the taser off sporadically to frighten the victim, and then laugh when he saw her reaction.

Make demand with threat to endanger health, safety, or physical wellbeing of another person

105.   The offender continued to follow the victim around, threatening her and setting the taser off, as he asked her to transfer him the money.

106.   The offender believed he and the victim had agreed to use drugs together, and he intended the money to be used to purchase drugs that they would both share in.

107.   The victim ran to her bedroom and closed the door behind her, but didn't lock it. The offender followed and slammed the door open, causing the handle of the door to damage the wall behind it. The offender then forced the victim backward into bedroom wall whilst pointing the taser at her.

108.   The offender held the taser centimetres away from the victim's chest. He threatened to "tase" her if she didn't transfer him as much money as she had in her account. At about 11:23pm, the victim transferred $202.00 to the offender via a banking

application on her mobile telephone whilst the offender continued to hold the taser in
close proximity to the victim's body.

109.   Once the offender could see the money in his account, he left the house telling the victim that he would be back soon.

110.   The victim collapsed to the floor, sobbing. She believed the offender was going to use the taser on her whether she transferred him money or not. She experienced such an intense feeling of fear, due to being so convinced that the offender was going to use

the taser on her that she urinated in her pants.

111.   At about 4:19am on Saturday, 19 September 2020, the victim phone police. She was distressed and afraid, and could only whisper on the phone because she did not want to alert the offender to the fact that she had called. During the call, she mentioned a

taser.

112.   About 4:30am, police attended the victim's house. The victim told police the offender had "lost his shit" and he had "just snapped", and left the location prior to police attendance. She told police she had concerns for her safety, and that the offender's negative behaviour was escalating.

Incident 8 - 10 October 2020

113.   At about 6:30pm on Saturday, 10 October 2020, the offender was at the victim's house in Evatt. The victim had been evicted from this property by [the owner] due to the damage caused during the victim's tenancy.

114.   The victim and the offender had an argument during which the victim was screaming and the offender was pushing her into walls. The victim requested the offender leave the residence.

Assault occasioning actual bodily harm

115.   The offender kicked the victim's right hand, jarring her thumb and causing her significant pain and discomfort. At the time, the offender was wearing heavy work boots. The offender then used a lighter to set fire to a packing box.

116.  At about 6:32pm, [anonymised] a neighbour, overheard the victim's distress and called the police.

117.

At about 6:43pm, police officers attended the residence and spoke with the time. The victim did, however, telephone DVCS and told a staff member what had happened.

118.  On 13 October 2020, the victim attended the Palmerston Medical Centre and reported to Dr [anonymised] that she was experiencing pain in her right thumb as a result of the kick. On 3 December 2020, the victim disclosed to [anonymised] that she had been assaulted.

119.  On 21 December 2020, the victim reported ongoing pain in her thumb to [the doctor]. She was referred for an X-Ray and an ultrasound of her right thumb.

120.  On 26 February 2021, the victim attended Qscan Radiology Clinics and had an X- Ray and an ultrasound on her right thumb. The results revealed a mild thickening of the joint capsule with probable mild thickening of the volar plate in the right

thumb interphalangeal joint.

121.  On 17 July 2021, the victim attended Sport and Spinal Physiotherapy in Gungahlin and reported right thumb and wrist pain from an injury in October 2020. She was referred for a MRI.

122.  On 30 July 2021, the victim attended the Canberra Imaging Group and had a MRI on her right hand and right wrist. The victim was treated by Dr [anonymised]. The MRI confirmed a torn volar joint capsule at its ulnar insertion, a torn meniscal

homologue, a torn radial collateral ligament, and a torn proximal surface of the
triangular fibrocartilage complex in her wrist.

123.  On 14 July 2021, the victim attended the Gungahlin General Practice and spoke to [a doctor]. [The doctor] referred the victim to ... an orthopaedic surgeon.

124.  On 16 August 2021, the victim reported to [the orthopaedic surgeon] that she was experiencing ongoing and increasing pain in her right wrist and thumb.

125.  On 16 September 2021, following further consultations and MRI, the [orthopaedic surgeon] performed the following surgical procedures on the victim's right hand and wrist: (1) a right endoscopic carpal tunnel release; and (2) a right subcutaneous ulnar nerve transposition. These surgeries were performed due to a diagnosis of "median nerve entrapment right carpal tunnel" and "right cubital tunnel syndrome".

Annexure B

Annexure C