Director of Public Prosecutions v Padreny - [2023] ACTSC 286

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Padreny
Citation:	[2023] ACTSC 286
Hearing Date:	19 May 2023
Decision Date:	30 May 2023
Before:	Refshauge AJ
Decision:	(1) Damian Lachlan Padreny be convicted of recklessly threatening to kill a person and sentenced to 16 months imprisonment, commencing on 26 February 2022 and ending 25 June 2023. (2) Damian Lachlan Padreny be convicted of unlawful confinement and sentenced to seven months imprisonment, commencing on 26 February 2023 and ending 25 September 2023. (3) Damian Lachlan Padreny be convicted of intentionally and unlawfully choking, suffocating or strangling a person and sentenced to 12 months imprisonment, commencing 26 February 2023 and ending 25 February 2024. (4) Damian Lachlan Padreny be convicted of assault occasioning actual bodily harm and sentenced to nine months imprisonment, commencing 26 October 2023 and ending 25 July 2024. (5) Damian Lachlan Padreny be convicted of minor damage to property and sentenced to six months imprisonment, commencing 26 March 2024 and ending 25 September 2024. (6) Damian Lachlan Padreny be convicted of assault occasioning actual bodily harm and sentenced to 10 months imprisonment, commencing 26 July 2024 and ending 25 May 2025. (7) Damian Lachlan Padreny be convicted of intentionally and unlawfully choking, suffocating, and strangling another person and sentenced to 12 months imprisonment, commencing 26 December 2024 and ending 25 December 2025. (8) Damian Lachlan Padreny be convicted of making a demand with threat to endanger health and sentenced to 12 months imprisonment, commencing 26 July 2025 and ending 25 July 2026. (9) Damian Lachlan Padreny be convicted of damaging property and sentenced to six months imprisonment, commencing 26 March 2026 and ending 25 September 2026. (10) Damian Lachlan Padreny be convicted of common assault and sentenced to eight months imprisonment, commencing 26 May 2026 and ending 25 January 2027 (11) Damian Lachlan Padreny be convicted of common assault and sentenced to seven months imprisonment, commencing 26 August 2026 and ending 25 March 2027. (12) Damian Lachlan Padreny be convicted of minor damage to property on 16 May 2020 and sentenced to six months imprisonment, commencing 26 November 2026 and ending 25 May 2027. (13) Damian Lachlan Padreny be convicted of common assault and sentenced to eight months imprisonment, commencing 26 November 2026 and ending 25 July 2027. (14) Damian Lachlan Padreny be convicted of damaging property and sentenced to six months imprisonment, commencing 26 March 2027 and ending 25 September 2027.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – family violence offences – threat to kill – unlawful confinement – choking – assault occasioning actual bodily harm – minor property damage – making a demand with a threat – common assault – damaging property – Drug and Alcohol Treatment Order application – application denied – imprisonment
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12, 12A, 29, 33, 34, 46J, 63, 67 Crimes Act 1900 (ACT) ss 24(1), 26, 28(2)(a), 30, 32(2)(a), 48C(1)(k), 116(3) Criminal Code 2002 (ACT) s 403 Family Violence Act 2016 (ACT) s 8 Supreme Court Act 1933 (ACT) pt 8
Cases Cited:	BA v The King [2023] HCA 14; 97 ALJR 358 Beniamini v Craig [2017] ACTSC 30 Cajina v R [2009] ACTCA 2; 3 ACTLR 79 Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 R v Ball [2013] NSWCCA 126 R v Bell [2005] ACTSC 123 R v Bell (unreported, Supreme Court of the Australia Capital Territory, Refshauge AJ, 19 May 2023) R v Bonfield [2021] ACTSC 362 R v Burge [2022] ACTSC 376 R v CV [2013] ACTCA 22; 233 A Crim R 67 R v De Simoni [1981] HCA 31; 147 CLR 383 R v Di Bitonto [2016] ACTSC 280 R v Donovan [1934] 2 KB 498; 25 Cr App R 1 R v Forrest (No 2) [2017] ACTSC 83 R v Fry [2021] ACTSC 138 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Hancock [2021] ACTSC 52 R v John [2017] ACTSC 144 R v Kilic [2016] HCA 48; 259 CLR 256 R v Loulanting [2015] ACTSC 172 R v Lyons (No 1) [2020] ACTSC 358 R v Markarian [2005] HCA 25; 228 CLR 357 R v McLaughlin [2015] ACTSC 201 R v Pahl (No 2) [2017] ACTSC 155 R v Pearson [2020] ACTSC 375 R v Qutami [2001] NSWCCA 353; 2001 A Crim R 369 R v Rogers [2021] ACTSC 355 R v Smith (No 2) [2022] ACTSC 246 R v Stanley [2015] ACTSC 322 R v Steen [2015] ACTSC 259 R v Tonna (No 2) [2020] ACTSC 362 R v West [2015] ACTSC 134 R v Williams [2016] ACTSC 389 Ross v R [2012] NSWCCA 161 Stebbins v Tasmania [2016] TASCCA 6; 25 Tas R 421 Wyper v R; R v Wyper [2017] ACTCA 59
Texts Cited:	Dorland's Illustrated Medical Dictionary (24^th ed, 1965) Julie People, Trends and Patterns in Domestic Violence Assaults (NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin No 89, October 2005) Julie Stubbs, Restorative Justice, Domestic Violence and Family Violence, Australian Domestic and Family Violence Clearing House (Issues Paper No 9, 2004) Scott Fitzgibbon, ‘Fiduciary Relationships Are Not Contracts’ (1999) 82(2) Marquette Law Review 303-353
Parties:	Director of Public Prosecutions Damien Lachlan Padreny ( Offender)
Representation:	Counsel A Brown ( DPP) S Robinson ( Offender)
Solicitors ACT Director of Public Prosecutions Fortify Legal ( Offender)
File Numbers:	SCC 41 of 2023 SCC 42 of 2023

REFSHAUGE AJ:

Introduction

1․Damien Lachlan Padreny has pleaded guilty to 10 offences of violence and four offences of damaging property committed in circumstances of violence. Each of the offences were committed on or in the presence of a woman with whom he was then in an intimate relationship. The offences were, accordingly, committed in a context of family violence within the meaning of s 8 of the Family Violence Act 2016 (ACT), thus they were family violence offences as defined in that Act.
2․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.
4․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…

5․In this context it is now necessary to sentence Mr Padreny, who has sought that a Drug and Alcohol Treatment Order (Treatment Order) be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) to serve any sentence of imprisonment imposed.
6․At the sentence hearing Mr A Brown, who very capably represented the prosecution, tendered, with consent, the prosecution tender bundle. It included:
1.The prescribed and helpful coversheet;
2.The committal and transfer documentation;
3.An agreed statement of facts;
4.A selection of photographs of the effects of certain of the offences;
5.The criminal history of Mr Padreny;
6.Three Victim Impact Statements from:
(i)       [redacted for legal reasons];
(ii)      [redacted for legal reasons];
(iii)     [redacted for legal reasons]; and
7.The statement of facts for offences for which a good behaviour order had been made which, when breached, had been extended and which applied during the period when the current offences, save one, were committed.

7․Because of his request that a Treatment Order be made, the Court ordered that Drug and Alcohol Treatment Assessments and Suitability Assessments under s 46J of the Sentencing Act be prepared. These reports, namely the Drug and Alcohol Sentencing List Report dated 8 May 2023 of Alcohol and Drug Services and the Drug and Alcohol Assessment Report dated 10 May 2023 of ACT Corrective Services were also included the prosecution tender bundle.
8․Mr S Robinson, who acted very professionally for Mr Padreny, tendered without objection a tender bundle containing:
1.A letter from Mr Padreny to the Court dated 14 May 2023;
2.A report from Dr Tanveer Ahmed, consultant psychiatrist dated 18 May 2023; and
3.Four certificates of completion of various programs completed in the Alexander Maconochie Centre.

9․None of the contents of any of these documents were challenged.
10․In addition, both counsel provided written submissions and supplemented them with helpful oral submissions engaging respectfully and helpfully in debate with the Court and answering its questions. From this material the following findings are made.

The facts

11․Having met in a nightclub in August 2019, the victim and Mr Padreny soon thereafter entered into a 14-month long intimate relationship. That included the victim assisting Mr Padreny financially on at least one occasion. By February 2020, they had broken up.
12․On 25 February 2020, they met when Mr Padreny admitted to having “cheated” on her. That distressed her, but he did invite her to come to his house and spend the night together. It appears that the relationship then continued.
13․He went first to his house and called her to come later. When there, they began cooking dinner. During that, Mr Padreny became frustrated and stopped cooking. He and the victim went upstairs to his bedroom to have a chat. On entering his bedroom, Mr Padreny’s demeanour changed and he told the victim that he had lured her back to his house as he planned to kill her. He had been planning to do so ever since they had broken up.
14․Mr Padreny then proceeded to describe the various scenarios that he had considered for killing her: strangulation, cutting her fingers and limbs off until she bled to death. He added that he was looking forward to when he could look into her eyes and watch her life leaving it. Unsurprisingly, the victim became very upset, crying and hyperventilating. Mr Padreny laughed and said her distress sexually aroused him. When appreciating the seriousness of the situation the victim felt unable to leave, a not uncommon feeling for family violence victims.
15․Mr Padreny then told the victim that she was boring and that she was ruining his fun and told her to leave, wishing her luck to get out alive. He then retrieved a knife that the victim had given him and which he kept in his bedroom. He swung the knife at the victim, telling her how fun it would be to dismember her body with the knife she had given him. The victim believed him and felt terrified. Mr Padreny then kept pushing the victim to the wall and not letting her stand up or leave. At one point he held her by the throat with his hand until she felt as if she would fall unconscious, but he then let her go.
16․He told her to look at him again and he said that he would like to look into her eyes as she died. He became enraged when she refused to look at him. The victim then became dizzy, with blurred vision and trying to catch her breath. Mr Padreny grabbed her again by the throat and pushed her to the ground.
17․Mr Padreny then went and lay on his bed facing away from her. His body language led her to believe that he was distressed. He begged her to leave before he did any real damage. She did so, but, after leaving the room, changed her mind and walked back to check that he was okay. Ultimately, she stayed the night with him to look after him.
18․A week later, she still had a sore throat and her mother noticed bruises mainly on her neck, but the victim did not tell her mother how they had been caused nor take any photographs of them.
19․These were the events that led to the charges of making a reckless threat to kill a person, forcibly or unlawfully confining or imprisoning another person and intentionally or unlawfully choking, suffocating or strangling another person to be preferred against Mr Padreny.
20․On 12 May 2020, the victim was staying with Mr Padreny. She had packed her belongings in a couple of suitcases and her handbag. When Mr Padreny left the home, she called her mother. She was still on that call when he returned and he demanded her attention with a threat, so she hung up. She told him she was upset and needed a breather so she went into the bathroom. While she was there, he stacked her bags between the bedroom and the bathroom, then went into his bedroom and locked the door. The victim came out of the bathroom and banged on the bedroom door to get his attention. He opened the door in an aggravated mood, became aggressive to her and threw her belongings down the stairs, despite her screaming at him to stop.
21․Mr Padreny then tried to push the victim down the stairs. He kicked her in the back and pushed her up against the wall. He picked up her handbag and laptop bag, but she grabbed them from him and ran down the stairs. He followed, pushing her in the back, causing her to fall down the last four stairs. These events led to Mr Padreny being charged with common assault as a rolled-up offence.
22․Mr Padreny then took a knife from one of the bags. The victim gathered her belongings and ran out of the house. A neighbour called the police and went outside to tell the victim. The victim panicked as she feared Mr Padreny would be angered by the presence of the police. She phoned him and told him that the police were coming. He came outside, wrapped the knife in some electrical tape and placed it on the windowsill. He then told the victim to provide a united front to the police so that he did not get into trouble.
23․When police attended, the victim apologised to them for wasting their time and told them that there was no issue. When they asked about the knife on the windowsill Mr Padreny said that it was always there and wrapped as the victim was unstable and he did not want her to hurt herself.
24․When the police left, the victim called for a driver from Uber, an app-based transport company, and went to an apartment her parents had arranged for her. She later took photographs of the bruising on her neck and arms, photographs she provided later to police. She was still expressing pain in her back. Two days later, on the advice of staff from the Domestic Violence Crisis Service, she went to the emergency department of Calvary Hospital where an x-ray photograph was taken of her wrist.
25․On 16 May 2020, the victim and Mr Padreny were staying at the apartment. Sometime during the day, Mr Padreny became aggressive and the victim tried to hide from him in the bedroom, but he stopped her from closing the door. Mr Padreny then punched a hole about 15 centimetres by 10 centimetres in the wall next to the bedroom door. This distressed the victim very much. Mr Padreny walked away, picked up a container of Italian food and threw it on the carpet, squashing the food into the carpet with his feet. He threw two cups of coffee across the room, spilling them over the walls and the floor. He then left, punching another hole about 5 centimetres by 10 centimetres in the wall near the apartment door.
26․Although she called police, by the time they arrived, the victim had become fearful because Mr Padreny had previously told her that he had contact with dangerous people who could kill her even if he was locked up and so she told police she did not want to pursue charges. She later took photographs of the damage which was eventually repaired and the cost in excess of $2,000. She later provided the photographs to police. These were the facts that justified the charge against Mr Padreny of damaging property of a value less than $5,000.
27․On 14 August 2020, Mr Padreny prepared to move out of his then residence. He arranged to store some of his property at premises rented by the victim. He called for her to help him. When she arrived, the victim noticed that he had not in fact started packing. She tried to encourage him to do so but he refused.
28․Mr Padreny then stood in front of the victim, cornering her. He pushed her up against the wall with both hands. She said that she was leaving and he yelled at her, threatening her verbally. The victim felt scared and trapped. To create some distance between them, the victim pushed Mr Padreny with both hands, but that made him angrier. Becoming really frightened, the victim opened the bedroom door to leave. Mr Padreny, however, punched her very forcefully on the back of her head. She screamed loudly and collapsed, crying and grasping her head. He then knelt next to her apologising and helped the victim to stand. He guided her back into the bedroom and closed and locked the door. Distraught, dizzy and in pain, the victim told him that she needed to go home. He said that he was afraid that he had punched her too hard and that someone needed to watch her after such an injury. He insisted she not leave so that he could keep an eye on her. An unidentified person, who apparently overheard some part of the incident, called the police, who arrived shortly after.
29․Aware of their arrival, Mr Padreny climbed over the balcony telling the victim not to say anything to police. He then left, taking the victim’s handbag with her identification, bank cards and her phone. After the police had left, apparently not having received a complaint from the victim, she went into the street to find Mr Padreny. She could not find him and returned to his house to find him with his father. Mr Padreny gave her back the handbag and told her to go upstairs to wait in his room. She did so. Shortly after, Mr Padreny came up and told her that he was leaving with his father and that he wanted her to continue cleaning and packing his things while he was gone. The victim told him that she did not want to stay there. They began arguing and Mr Padreny verbally threatened the victim that he would come to her house unannounced, break in and take whatever he wanted. He would then burn the house down with her in it.

30․The evidence is not clear exactly what then happened, but later the victim returned home and called a friend to come over. When Mr Padreny heard that, he threatened the friend. The victim sought treatment from her general practitioner the next day, but the evidence did not disclose the outcome. These events led to the charge of common assault being laid against Mr Padreny as a rolled-up charge.
31․In about mid-August 2020, the victim rented a house in Evatt, ACT, and she and Mr Padreny started living there. On Sunday, 13 September 2020, Mr Padreny went out for the evening. Later, the victim phoned him and said words to the effect of, “I've been waiting up to go to bed until you come home so I can let you in”. He replied with words to the effect of, “I don't care. You can wait for me”. She replied, “[n]o, you can come back tomorrow. I'm going to sleep”. Shortly after that Mr Padreny arrived at the back door. He phoned the victim and said he was waiting to be let in. She went to the living room door, into the living room, opened the glass door but left the sliding screen door locked and told him that he was not welcome that night.
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.
34․Between 10 and 20 September 2020, several incidents occurred which led to further charges. On an undated occasion, the victim had locked herself inside her bedroom in her residence when Mr Padreny tried to get in. He banged loudly on the door demanding to be let in. When asked if he had any weapons, he assured her that he did not. Mr Padreny began kicking the door, creating two holes about 5-10 centimetres in size, with splintering and cracks around each hole, including a large 20 centimetre crack on the inside of the door.
35․Seeing that and being distressed, the victim opened the door and Mr Padreny came in. He was holding a jet lighter with which he ignited the bedsheets. The flames burnt through the sheets exposing the mattress protector, the plastic of which melted with the heat. The victim doused the flames with a glass of water but the sheets and mattress protector had to be discarded. This conduct led to Mr Padreny being charged further with damaging property.
36․On another undated occasion, the victim again locked herself in the bedroom because of Mr Padreny’s behaviour. Again, he demanded access to the room. On this occasion, he used a knife to stab and cut at the door. When he had calmed down, the victim opened the door. Mr Padreny simply laughed at the damage and said he had, “[a]lways wanted to do that”.
37․On another also undated occasion, Mr Padreny started to kick and punch the bathroom door, which the victim had again locked. This caused a 20 metre crack on the outside of the door and two 10-centimetre cracks on the other side. The two doors were later repaired at a cost of $970, which was paid by the victim’s parents. These two incidents were included in a charge of damaging property of a value of less than $5,000, being a rolled-up charge.
38․On yet another undated occasion, the victim and Mr Padreny were arguing in her bedroom while she was sitting on her bed. Mr Padreny punched the wall beside the bedroom door and then stormed over to the bed, lunging himself at the victim. She turned away, put her arms in front of her, covering her face. At some stage, he began punching the back of her head. He then pushed her over until she was lying face down on the bed. He sat or kneeled on her back and continued pressing her, punching her in the back of the head. She screamed and tried to struggle her arms free, but they were trapped beneath her. Between bouts of punching, Mr Padreny pushed down forcefully on the back of the victim’s head, forcing her face into the mattress. She felt unable to breathe. She had to turn her head and gasp for air but he kept punching her. She stopped screaming and tried to tell him that she could not breathe, but he kept applying force to the back of her head, pushing her face into the mattress, causing her to feel that she could not move and that she was suffocating.
39․Suddenly he stopped and she turned her head, freed her arms and took a deep breath. Mr Padreny was sitting on the side of the bed, looking at his hand and the victim. He showed her his hand which was covered in blood. He said words to the effect of, “I don't know if this is my blood or yours”. He then apologised to her and said he could not believe what he had done. He said that the victim had pushed him too far, causing him to act as he did. The victim felt dizzy and had a headache. She had a shower to wash the blood out of her hair. This incident led to the charge of intentionally and unlawfully choking, suffocating, or strangling another person, and a charge of common assault which were preferred against Mr Padreny.
40․On 18 September 2020, at the victim's house, Mr Padreny requested that the victim transfer money to him, a common occurrence. As the victim only had $200 left in her account, she refused to do so. He began to follow her around the house with a taser (see R v Hancock [2021] ACTSC 52 at [17]), which he had had for several weeks. He set it off sporadically to frighten her and laughed at her reaction.
41․It appears that Mr Padreny thought that the victim had agreed that they should use drugs together and he would use the money from her to purchase those drugs that they could share. The victim went to her bedroom and shut the door but did not lock it. Mr Padreny followed, slamming the door open, causing the door handle to damage the wall beside it. He then forced her backward into the bedroom whilst pointing the taser at her.
42․Holding it close to her chest, he threatened to “tase” her if she did not transfer to him as much as she had. Accordingly, she transferred $202 to his account while he continued to hold the taser above her. As soon as he saw the money in his account, he left the residence. The victim collapsed sobbing. She believed that Mr Padreny was going to taser her whether she transferred the money or not. He caused her intense fear of a very high order. Those events resulted in the charge against Mr Padreny of making a demand with a threat to endanger the health, safety or physical wellbeing of another person.
43․By 10 October 2020, the victim had been evicted from the Evatt property because of the damage caused to it. On that day, however, they were in the house, though the evidence is not clear as to how or why they were there if the victim had been evicted. The victim and Mr Padreny were arguing, with the victim screaming and he was pushing her into walls. She requested him to leave. He then kicked her right hand, jarring her thumb and causing her significant pain and discomfort as he was wearing heavy work boots at the time. He used a lighter to set fire to a packing box.
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 (24^th 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.
46․At no time did the victim consent to any assault or violence being inflicted or occasioned to her, and none of the owners of any of the premises consented to any damage being caused to them.

The proceedings

47․On 1 June 2018, Mr Padreny first appeared in the ACT Magistrates Court. He was charged with driving a motor vehicle with a prescribed concentration of alcohol in his breath and with aggravated dangerous driving. He was sentenced to a good behaviour order on each charge for 18 months to be served concurrently. He breached these orders, however, and on 25 May 2020 each was extended to 25 September 2020. The current offences, except for the final charge of assault occasioning actual bodily harm, will, on conviction, breach both of these orders.
48․On 6 January 2022, Mr Padreny was arrested and charged with the offence of intentionally and unlawfully choking, suffocating and strangling another person on 25 February 2020. He was granted bail and the proceedings were adjourned to 17 January 2022 and then further adjourned to 8 February 2022. On that latter day, he was charged with all the other offences, except the following offences committed between 10 and 20 September 2020, namely, damaging property, intentionally and unlawfully choking, suffocating or strangling another person, common assault and threatening to endanger the health, safety and physical wellbeing of a person. He was granted bail. On 17 January 2022, however, he was arrested for an unrelated offence of damaging property on that day and on all the pending charges remanded in custody.
49․On 25 March 2022, he entered pleas of not guilty to the charges he then faced. After a number of adjournments, while he remained in custody, he was, on 17 May 2022, charged with the offence of damaging property, intentionally and unlawfully choking, suffocating or strangling another person. On 31 May 2022, he entered a plea of not guilty to that charge also. He remained in custody. On 12 July 2022, he sought to have the matters listed for hearing. A hearing date was set for 20 to 27 February 2023. A brief of evidence had been prepared. After that matter, however, negotiations were engaged in between prosecution and defence. On 27 July 2022, he was sentenced for the unrelated charge of damaging property and was sentenced to a combination sentence under s 29 of the Sentencing Act being a term of 42 days imprisonment from 17 January 2022 to 27 February 2022 and thereafter a 2 year good behaviour order. This period of imprisonment is relevant to the pre-sentence custody, a period to be later taken into account on sentence for these current matters.
50․On 20 February 2023, the final charge of making a demand with a threat to endanger the health, safety and physical wellbeing of another person was preferred and he pleaded guilty. Mr Padreny was then committed for sentence to this Court and the summary charges were transferred to be dealt with under pt 8 of the Supreme Court Act 1933 (ACT).
51․He appeared in this Court on 10 March 2023 and, having been assessed as eligible to be subject to Suitability Assessments, they were directed to be prepared and a date for sentence set. Mr Padreny has accordingly been in custody since 17 January 2022. The 42 days for when he was serving a term of imprisonment cannot be counted as periods of pre-sentence custody for the purpose of s 63(2) of the Sentencing Act. Thus, the appropriate period of backdating the sentence under s 63(1) will require that any sentence commence on 26 February 2022.

The offences

52․While it is essential for the Court sentencing an offender to find the actual facts on which each charge against that offender is based, other matters are important for a just and adequate sentence to be imposed. The objective seriousness of the actual offence is also an essential matter. This is identified in s 33 of the Sentencing Act where the legislature has itemised the matters that so far as are known to the Court must be considered. In s 33(1)(a) of the Sentencing Act it is referred to as the nature and circumstances of the offence. That incorporates the facts of the offence but also requires the Court to consider other matters to enable the objective seriousness to be properly assessed.
53․The next matter is the maximum penalty for the offence for this is the legislature’s prescription for the worst category of such offence. It also provides a comparison between the seriousness of other offences and the instant offence as well as, when taken into account with all the other relevant factors, a yardstick: see R v Markarian [2005] HCA 25; 228 CLR 357 at [31]; 372.
54․The other matter going to objective seriousness or the nature and circumstances of an offence is the consideration of aggravating or mitigating factors in the actual commission of the offence. Most offences can be committed in a wide variety of ways and in a diversity of circumstances. Current sentencing practice, also a required factor under s 33(1)(za) of the Sentencing Act, has, through the consideration of courts sentencing an offender or appeal courts deciding appeals from sentences, identified such factors.
55․A further relevant factor in relation to all these offences is that they were committed in the context of being family violence offences as defined under the Family Violence Act. That has been regarded as the circumstance of aggravation at common law: R v McLaughlin [2015] ACTSC 201 at [12]; Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 at [32]-[36]. For a number of the current offences, however, as from 17 August 2022 the legislature has created a version of those offences, that is an aggravated offence if it involves family violence, with a greater penalty: see, for example, threat to kill, s 48C(1)(k) of the Crimes Act 1900 (ACT) (the Crimes Act). The section creating the offence, in this case s 30 of the Crimes Act, provides for a greater penalty: see, for example, s 30(c). It is, however, required of the prosecution that the factor of aggravation must be stated in the charge.
56․It is a fine question, on which there has been no submissions, as to whether the common law has effectively been abolished so far as this aspect is concerned, so that the factor of aggravation cannot now be taken into account unless it has been pleaded. This is especially so where the statute provides for an aggravated version of the offence. To sentence an offender for that circumstance of aggravation without pleading it would breach the principle in R v Di Simoni (1981) 147 CLR 383.
57․In this case, however, all the offences, except the last to be charged, namely the offence of assault occasioning actual bodily harm, were preferred before the aggravated offences were created. It would accordingly appear that the common law required a court sentencing an offender to taken into account as an aggravating factor that the offence was committed in the context of family violence.
58․That final most recently charged offence is not pleaded as an aggravating offence, though probably could be so pleaded as it was recently preferred, but was an offence committed well prior to the creation of the aggravated offences. Accordingly, it too can be considered as being aggravated for the purpose of sentencing as it was committed in the context of family violence.
59․In any event, s 34B of the Sentencing Act requires a court sentencing an offender for a family violence offence to have regard to factors such as whether the offence occurred in the home of the victim, offender or another person, a matter also relevant at common law This applied to all the offences. Some were in the victim’s home, some in the offender’s home. There were, however, no children present during any of the offending. Mr Padreny, however, had, at the time of the offending, no other convictions for family violence offences, though he has since then had 14 such offences of which he has been convicted. While this is not directly relevant as the offences were committed after the relationship between the victim and Mr Padreny had ended, it does show that the behaviour was not confined to that relationship and is not an aberration in Mr Padreny’s behaviour.
60․In addition, the Courts have made it clear that there is a trust relationship in relation to domestic relationships which such offences egregiously breach: see for example Wyper v R; R v Wyper [2017] ACTCA 59. Indeed, it has been said that such an offence “necessarily entails” the breach of such a trust: R v Kilic [2016] HCA 48; 259 CLR 256 at [28].
61․Mr Robinson submitted that there was no trust relationship “as that concept is known to the law”. He referred to the R v CV [2013] ACTCA 22; 233 A Crim R 67. That, however, was a very different case. It involved the offender having sexual intercourse with a child. It was an intimate relationship where intercourse had occurred on at least two occasions. This would likely be included in the definition of an “intimate partner” under the Family Violence Act but, of course, it had not been enacted at the time of the commissioning of the offences dealt with in R v CV.
62․The nature of family violence, especially as a crime, has been evolving over the years: BA v The King [2023] HCA 14; 97 ALJR 358 at [36]. It has been noted that there are some similarities between marriages and fiduciary relationships: see, for example, Scott Fitzgibbon, ‘Fiduciary Relationships Are Not Contracts’ (1999) 82(2) Marquette Law Review 303 at 304. Nevertheless, a marriage is not generally recognised as a fiduciary relationship. Thus, in strictness, it may not be covered as a matter of technical law that there is a trust relationship such that family violence breaches that trust. That, however, has been a common description which even the High Court in R v Kilic uses in that term.
63․In this, it may be akin to a breach of conditional liberty which is frequently termed a breach of trust but is probably better described as an abuse of the liberty granted: see for example Stebbins v Tasmania [2016] TASCCA 6; 25 Tas R 421 at [58]; R v Bell (unreported, Supreme Court of the Australia Capital Territory, Refshauge AJ, 19 May 2023). Nevertheless, there is a particular relationship between parties to a marriage or a domestic relationship where there is a degree of interdependence, confidence and mutual reliance and affection. It is unthinkable that such a relationship is not intended to be a respectful one between the parties who will not engage in violence, unfaithfulness or impropriety or deceit. Family violence breaches these thereby undermining the qualities and breaches the bonding of the relationship which has been voluntarily accepted in which the other party was invited to engage in reliance and commitment.

64․In common parlance, therefore, family violence does breach a trust but it may be preferable in legal documents such as sentencing remarks to use some other formulation. The underlying breach of the relationship is, however, a matter of seriousness and aggravates the offending committed in this context. This will affect each of the offences dealt with here. It is not the place of this Court at this stage to determine whether some other formulation should currently be used.
65․Recklessly threatening to kill a person is a crime against s 30 of the Crimes Act which has set a maximum penalty of 10 years imprisonment. It is thus a serious offence but there are a number of other more serious offences. In R v Loulanting [2015] ACTSC 172 some considerations were noted. Thus, the surrounding circumstances are relevant. This includes the fear engendered in a victim, the use of drugs and the nature and seriousness of the threat are all relevant. It is more serious if a weapon is used, a threat is made for the person threatened to be killed or if the killing is capable of immediate realisation: Cajina v R [2009] ACTCA 2; 3 ACTLR 79 at 84-6; [19]-[28].
66․Mr Padreny said that he was affected by using methamphetamine. While there was no weapon possessed by Mr Padreny at this time, the methods proposed were at least very gruesome and, in the circumstances, while not necessarily capable of immediate realisation, likely to be able to be effected in the context of that relationship between himself and the victim. The victim was clearly very afraid, crying and hyperventilating and Mr Padreny’s conduct in laughing and saying that he enjoyed her distress would have aggravated her distress.
67․Later, Mr Padreny got a kitchen knife that the victim had given him at Christmas. He kept swinging it about and told her how fun it would be to dismember her body and the victim felt terrified at this stage. Clearly in that context the threat was quite capable of being carried out. It was thus quite a serious offence but not the most serious version of the offence.
68․Forcible confinement is made a crime by s 34 of the Crimes Act which attracts a maximum penalty of 10 years imprisonment. It, too, is a serious offence. The relevant factors have been set out in the R v Williams [2016] ACTSC 389 at [53] and R v Fry [2021] ACTSC 138 at [32]. It is not necessary to set out each of them but to mention those that are relevant here.
69․There is no clear or exact period for the confinement, but it was clearly more than momentary. It appears not to have been for some hours as is commonly seen. It does not seem to have been premeditated or planned. It was, however, effected forcibly by the victim being pushed into the wall and held at one point by her throat, though that is also part of another offence so there is a commonality of elements between these two offences
70․The violence did escalate, but suddenly ceased. The only purpose seemed to be that Mr Padreny was exerting dominance over the victim. There were, apart from the significant violence, no particular conditions of the confinement that were, for example, degrading, as is often seen. The victim, however, was clearly in great fear and distress. There were some injuries inflicted, but, again, these were also an element of another offence which is relevant to sentence. There again it was a reasonably serious offence but by no means the most serious version of it.
71․Damaging property is prohibited by s 403 of the Criminal Code 2002 (ACT) and renders Mr Padreny liable for a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. Of course, the seriousness of this penalty is because of the range of conduct that can be encompassed within the conduct from the destruction of a motor vehicle or a building to the breaching of a piece of pottery or glassware.
72․Thus, as regularly noted, the primary issue is the cost and value of the damage caused. Nevertheless, the circumstances of the offence are also important. In this case there is no evidence, regrettably, of the cost of the damage to the sheets and the mattress protector. It does not seem as though that would be a substantial amount but not insignificant.
73․The circumstances are always relevant. That it was damaged by fire would be regarded as relevant but that is a separate offence of arson which has not been charged. Apart from being a frightening act, it was wanton destruction as part of Mr Padreny’s exercise of coercion and dominance over the victim.
74․Section 32(2)(a) of the Crimes Act creates the offence of making a demand of another person with a threat to endanger the health, safety or physical wellbeing of that person and provides a maximum penalty of 10 years imprisonment. It is also a serious offence.
75․The considerations for this offence have been recently discussed carefully in R v Rogers [2021] ACTSC 355. The demand there was for a transfer of money. The demand here was for the transfer of money to Mr Padreny. It was, in that sense, a form of extortion. The threat was one of physical harm with the use of a weapon, an aggravating factor. Though tasers have caused death, it seems unlikely that this would be the result here, but it would certainly inflict serious pain and immobility, though temporary.
76․The threat was a personal confrontation with the immediate possibility of the threat being carried out. There was no evidence of premeditation, though the taser being an illegal weapon must have been acquired and likely secreted. After the incident, the victim showed the emotional effect on her of the incident by collapsing on the floor sobbing.
77․The intentional and unlawful choking, suffocating or strangling a person is prohibited by the s 28(2)(a) of the Crimes Act and attracts a maximum penalty of five years imprisonment. It is, thus, a less serious offence than the others already considered. This, however, does not mean necessarily that the actual offending will attract a lesser sentence, for example, for Mr Robinson fairly and properly accepted that the offence committed on 25 February 2020 was more serious objectively than the unlawful confinement. There were, in this case, two offences of this statutory offence.
78․This relatively recently enacted offence was considered in some detail in R v Bonfield [2021] ACTSC 362 at [64]-[73]. As to the first offence, the period of offending did not seem to be very lengthy, but it was more serious because the victim felt that she was falling unconscious, leading to Mr Padreny releasing his grasp. He later grabbed her again, also by the throat, and pushed her to the ground. There was no weapon or any aids used in the offence. It was, however, a deliberate act of aggression designed to threaten and intimidate the victim because she would not look him in the eye. The force must have been significant to achieve its affect and the pain and marks on the victim’s neck do aggravate the offence.
79․The second occasion occurred between 10 and 20 September 2020. Here Mr Padreny pushed her into the bed, down onto the mattress so that she felt unable to breathe. Again, the period of the offending did not seem to be very long but it was an unprovoked, serious attack. It was effected by Mr Padreny, not a small man, sitting or kneeling on her, limiting her movement. He suddenly stopped of his own volition, but the suffocating had been accompanied by his punching of the victim on the head, a known vulnerable part of the body. Again, there was no weapon or aids and no apparent premeditation.
80․Assault occasioning actual bodily harm is proscribed by s 24(1) of the Crimes Act and legislates a maximum penalty of five years imprisonment. It is also a serious offence but not as serious by virtue of that maximum penalty as some other offences.
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].
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.
85․Common assault is made a crime under s 26 of the Crimes Act for which the maximum penalty is two years imprisonment.
86․A number of offences were “rolled-up charges”. That is to say, instead of charging each assault in an incident separately, they were all included in the one charge. The approach to such charges has been considered in detail, after considering the authorities, in R v Forrest (No 2) [2017] ACTSC 83 at [161]. In R v John [2017] ACTSC 144 at [107] the approach was explained as follows:
·     for sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
·     nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
·     the sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
·     the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.

This is the approach that will be taken here.
87․As with the offences of assault occasioning actual bodily harm, the primary factor is the harm suffered by the victim. Nevertheless, the surrounding circumstances and the nature of the attack are also relevant to the objective seriousness: Ross v R [2012] NSWCCA 161 at [20].
88․The first assault was committed on 12 May 2020. It involved Mr Padreny attempting to push the victim down the stairs, kicking her in the back, pushing her into a wall as she was walking down the stairs and then pushing her down the last four stairs. Thus, there was an actual application of force. There were a number of acts and of them, the latter, pushing her down the stairs, was the most serious because of the risk of more serious injury. The Court must be careful, however, not to punish an offender for what might have happened but did not happen.
89․There was some bruising following the incident but not so serious as to constitute actual bodily harm. The incidents happened in the victim’s home. The offender clearly knew that the attacks were wrong, as he directed the victim to present “a united front” to police and deny any problem. This does not increase the objective seriousness of the offence but is relevant to his moral culpability.
90․The second incident occurred on 14 August 2020. This consisted of Mr Padreny pushing the victim against the wall and punching her in the back of the head, again a rolled-up charge. While the push was frightening, the punch to the head was serious. It is a vulnerable part of the body: R v Stanley [2015] ACTSC 322 at [65]. The victim was also, having tried to leave, turning away, not able to defend herself because her back was to Mr Padreny. There were no injuries but the victim became dizzy and felt such pain as to cause her to scream. The offence was in Mr Padreny’s home where she was, as requested, packing his property. Again, Mr Padreny took action to evade the police.
91․The third assault occurred between 10 and 20 September 2020. Again, it was a rolled-up charge. It involved Mr Padreny punching the victim in the back of the head. He then pushed her. It occurred in her residence and again Mr Padreny realised what he had done, apologising to the victim.
92․The final offences are three offences of causing damage to property where the damage is less than $5,000, sometimes called minor damage. This is an offence under s 116(3) of the Crimes Act. The maximum penalty is two years imprisonment, a fine of $8,000 or both. The same considerations apply as for the more serious offence of damaging property referred to above.
93․The first of these offences was committed on 16 May 2020 when Mr Padreny punched two holes in the wall of a serviced apartment rented by the victim’s parents for her. The two holes were incorporated into the one offence. The damage was Mr Padreny’s response to being told to leave. It was a place where the victim was residing. The cost of the damage was reasonably significant at over $2,000.
94․The second was the destruction of the sliding door of the rented home of the victim at Evatt. The cost of repairs was then $1,669 and had to be paid by the parents of the victim as they had rented the apartment for her. The offence was committed because Mr Padreny thought that he was entitled to come in. While BA v The King might superficially suggest that that is so, it does not really do so and it does not appear that he was.
95․Unlike in this case, the person who broke in that case was actually a co-tenant, Mr Padreny was not. Again, this is a classic example of entitled behaviour that was characteristic of Mr Padreny’s relationship with the victim, a common approach amongst perpetrators of family violence.
96․The third of the offences was committed between 10 and 20 September 2020 when Mr Padreny caused damage to the bedroom door which he stabbed and to the bathroom door which he kicked and punched causing cracks. Again, this was in the victim’s residence, however, it did not belong to her and was engaged in by Mr Padreny as he went to get to the victim when she did not want that. It would have felt intrusive to the victim, if not caused her fear. The cost of the repairs was $970.

Subjective circumstances

97․There are several matters of importance in the personal circumstances of Mr Padreny. It is a requirement of the common law and reflected in a number of paragraphs in s 33(1) of the Sentencing Act that the personal circumstances of an offender must be considered.
98․Mr Padreny was born nearly 27 years ago, the only child of his parents. Though they separated when he was a young child, he maintained good relationships with them during most of his childhood. Both of his parents re-partnered and, as a result, he has four stepsiblings and a half-brother and a half-sister. His father remained his primary carer until he was six or seven years old but he spent time with both his parents, though gradually less with his father through conflict with his father's partner. He says he did not always see “eye to eye” with his parents, which sounds as if it was a normal childhood.
99․In the report by Dr Tanveer Ahmed, consultant psychiatrist, he reported that he had found home quite stressful. He said that large parts of his growing up were in a highly conflicted household and said, “[t]hey were very angry people”. This appears to refer to his father’s new partner. He seems to have otherwise had an unremarkable childhood with no exposure to trauma, drug use or family violence, at least according to what he told the authors of the Suitability Assessments. He did experience one traumatic event when he was young, but he declined to give any further details and there is no evidence about that.
100․He did refer, in his letter to the Court, that the unexpected death of his brother in 2020 had an effect on his mental health. He also mentioned that it triggered memories of what he described as “significant historical trauma from witnessing emotional and physical violence between my mother and stepfather as well as abuse directed at myself”. It is possible that this is the trauma earlier mentioned. It is at least curious that he did not mention this to either of the reporters preparing the Suitability Assessments. When he was 17 years old, however, he was “kicked out” of his father's home and lived in a share house.
101․Mr Padreny had a reasonably good experience at school, although there were initially some difficulties with the first school he attended. There were some behavioural issues. His interaction with peers and teachers, however, was generally positive. He successfully completed Year 12 with an acceptable academic performance. He commenced a university degree in physics while working in hospitality, but eventually dropped out of education for financial reasons.
102․He became a fulltime bricklayer and maintained consistent employment, though with a number of employers over time. He commenced working for himself in his own business. It is unclear whether this was in 2017 or 2021. The two dates were given to the two authors of the Suitability Assessments. Unfortunately, work opportunities became limited and this led to a period of unemployment, when he became dependent on Centrelink benefits. This also escalated his drug use.
103․Mr Padreny has had some relationships. Of course, this includes the relationship with the victim of his current offences, which lasted from August 2019 to October 2020. He also reported a long-term relationship that ended in December 2022. That was a difficult one, as his ex-partner experienced some mental health issues. It also appears that she was the victim of further family violence offending, that appears in his criminal record over January 2021 to January 2022. He says, however, that he remains in contact with her and still cares for her.
104․Worryingly, he had an earlier relationship for a year and eight months with a partner that ended in 2019. She was granted a family violence order in 2019 which he breached in 2020. He reported to the author of one of the Suitability Assessments that he was not in an intimate relationship with any of the victims of his family violence offences. This, however, is contrary to the Statement of Facts, with which appears he has agreed, and with his criminal record.
105․He has no children.
106․Mr Padreny has no physical health issues of relevance, though he has some ongoing lower back pain and some dental issues with his wisdom teeth. He has, however, been diagnosed with what is now referred to as attention deficit hyperactivity disorder (ADHD), probably in primary school. He has received no treatment for it. He has had some interaction with community mental health services, but the assessor from Forensic Mental Health Services found no symptoms indicative of any major mental illness.

107․Dr Ahmed, however, opined that he suffers from an “underlying psychiatric diagnosis”. He refers to the ADHD, but did add, “the diagnosis is primarily from his self report as more collateral information from family and school reports would be required to confirm with greater certainty”.
108․Mr Padreny commenced using alcohol as a 12 year old. By the time he was 20 years old he was consuming three to four litres of spirits daily. When he was 24 years old, he reduced his consumption and now uses only socially and sporadically. He began smoking tobacco at around age 15 or 16 and currently smokes about 20 to 30 cigarettes a day, his first being about 30 minutes after he awakens.
109․His first use of illicit drugs was when he began using cannabis at age 16 with daily consumption until he was about 19 or 20 years old, using about one quarter of an ounce daily. He has not used since age 20. His primary drug of choice is amphetamine which he first used at about age 17 or 18. He began daily injections of 3.5 grams by age 22. He has, however, not used since his arrest for these offences.
110․He has used MDMA and ecstasy sporadically in social settings and similarly used psilocybin. His use of cocaine began when he was about 18 years old until he was using daily by age 20, consuming “a ball” (3.5 grams), but that lapsed after about 3 years and he cannot recall his last use.
111․He denies the use of heroin, though a report of 18 October 2022 of Canberra Health Services records a self-reported daily use of heroin from age 15. He also has some use of buprenorphine. This, according to Dr Ahmed, overlaps with his use of substance self-medication for ADHD. He is assessed as likely having a severe substance use disorder, an assessment confirmed by Dr Ahmed.
112․Mr Padreny has had no alcohol, tobacco or other drug treatment. When entering custody after his current arrest, he declined a referral for counselling. In 2018, while on remand for a charge of driving under the influence of alcohol level four, he was approved to participate in the Solaris Therapeutic Community program but he declined to engage with it.
113․Earlier this year, he was approached by the director of alcohol and drug treatment of ACT Corrective Services and the Justice Services manager of Karralika Programs Inc. about a potential admission to the Solaris Therapeutic Community program, but it was reported that his “interaction was extremely short due to his dismissive behaviour and stating that he had no interest in commencing the program”.
114․His counsel, Mr Robinson, did point out that the program is a four month program and he was to be sentenced two months later, which may explain this reluctance though it does still seem to suggest at least an ambivalence to his rehabilitation in the context.
115․Despite this, Mr Padreny managed to complete a number of courses while in custody. Importantly, he completed a Healthy Relationships course, self-paced booklet program in goal setting and self-esteem and, again importantly, self-paced booklet programs in Working Together and Conflict Resolution.
116․Mr Padreny has a relatively short criminal record. He has 19 findings of guilt on his record prior to the current offences and there appear to be two pending matters in New South Wales. His offending began in 2017 with a relatively severe driving offence as mentioned above. Since then, the majority of his offences are family violence offences.
117․He was first sentenced in June 2021 to 11 months imprisonment, which ended in January 2022. Shortly after his release, however, he committed a further offence of damaging property for which he received a sentence of 42 days imprisonment referred to earlier. Mr Padreny has received eight sanctions while in the Alexander Maconochie Centre since 8 February 2022.
118․In preparing the Suitability Assessments, the authors have reported a limited engagement by Mr Padreny. He was said to have “lacked a willingness to answer questions put to him”, though he was mostly cooperative and engaged openly. He said of the current offences that he “did not remember doing any of it” as he had been “using a lot of ice, methamphetamine, at the time”. This was confirmed in Dr Ahmed's report.
119․He found reading the statement of facts “confronting”. He acknowledged that it would have been a troubling experience for the victim who must have felt scared, but it was suggested to him that he did not express remorse or regret. In the report of the Alcohol and Drug Services Suitability Assessment, he has reported as saying that “it was the police that turned against him”, but he did not elaborate. Dr Ahmed notes that:
Those with ADHD are more impulsive, can lack judgment and have greater difficulty regulating mood. This impulsivity and poor judgment overlaps directly with the nature of Mr Padreny's crimes and his associated self-medication with amphetamines. He notes that he had little memory of the crimes. The substance use would further worsen judgment and impulsivity.
120․Dr Ahmed has proposed a treatment plan with medication, psychological counselling, group addiction therapy and oversight by a general practitioner. While, of course, Dr Ahmed’s opinion, qualified though his diagnosis was, must be treated with appropriate respect, there are other issues to be considered. In particular, it is difficult to believe that Mr Padreny has not come into conflict or had occasions where he would have acted impulsively in relation to men, yet the only reported problems that are before the Court or have been before the Courts are in relation to women, in respect of which he now has, including the current offences, 28 offences relating to women in family violence circumstances, none of a similar nature in respect of any dealings with men, including, for example, resisting arrest or similar, out of the total of current 33 offences.
121․Finally, Mr Padreny wrote a letter to the Court. He did express his apologies to the victim and others affected by his actions and acknowledged the effect that this would have had. He said, “I am truly sorry”. He referred to his drug use and noted that the criminal conduct was “uncharacteristic for myself when sober”. He recognised, since being in custody, the negative effect of his drug use. He also referred to the trauma suffered from the death of his brother in 2020.
122․Dr Ahmed’s report must be and is accepted as a professional opinion of reliability though it is, as noted, based on self-report.
123․Mr Padreny’s letter may be a true expression of his current feeling but it suffers from the same difficulties that were mentioned in decisions such as R v Qutami [2001] NSWCCA 353; 2001 A Crim R 369 at [58]-[59], where there is no possibility of testing those assertions. That applies also to Dr Ahmed’s report for the reasons noted above. Thus, they must be approached with caution and scrutinised carefully.

Victim Impact Statements

124․Appropriately, sentencing proceedings are heavily focused on the accused but that is, of course, only because of offending he or she has committed. Such offending usually involves a victim and has resulted in physical, mental, financial or other harm. That harm must, as noted in s 7 of the Sentencing Act, be acknowledged. It is important to balance the focus, not derogating that on the offender, but also giving voice to the victim.
125․In this case, the Court was favoured with three Victim Impact Statements. They were all read out to the Court. This is important, for it ensures that the offender has heard them and, of course, gives life to the words on the page. The first was from the victim’s current partner of now six months. She did not know the victim at the time of the offending but met her when she herself was in need of healing and ready to help someone. They moved in together and have been inseparable since. She described the victim as being “in constant survival mode”.
126․The victim’s back impairment caused some challenges for housing, leading them to have to find a new house which was not easy. She wanted Mr Padreny to know how hard the victim fights every day to overcome her struggles. It is noted that it is now three years since the offending. The victim, she says, has renounced the use of drugs and alcohol, but now has struggles with post-traumatic stress disorder, flashbacks, paranoia and anxiety, together with her pre-existing conditions.
127․In a sign of hope, which the Court earnestly hopes will flourish, the author writes that they “are in the process of growing”. As she said, the victim “did not deserve any of the horror that she had to endure”. She does the best she can “to make each day easier… and help her [the victim] feel she always deserved better”. The Court sincerely hopes that this will be realised.
128․The second statement was from the victim’s mother. She described the victim at the end of the relationship as not “same one that had started the relationship”. The effects, she notes, were affected by pre-existing vulnerabilities and she struggled with her autism diagnosis, “trying to find where she fit [sic] in the world”. She was, as she said, “broken” at the end.
129․The author, the victim’s mother, reported that the victim suffered flashbacks, “cowering in the corner, screaming for hours and hours”. It affected her sleep, left her afraid and lasted for months. The sound of males’ voices, even of her family members, would “send her screaming in terror”. This clearly had an effect on the victim’s mother herself. It stopped her working so that she could support her daughter, the victim. This involved numerous medical appointments and a great deal of time with her, which affected her own mental and physical health. She noted that it also affected other members of the household. She reported ongoing attacks of distress by the victim “at any time, but much worse at night”. It required “a cocktail of medications”. The stress was clearly intense for and on the family.
130․The words used by the victim explain her situation and were extremely challenging. As her mother said, “I wish I could unhear the hours I sat with her while she gave her statements”. That is a hope which is, of course, much to be desired. As the author notes, the victim “will never, ever be the girl she was before this all began”.
131․Finally, the victim read her own statement. It was hard to hear, as it was full of pain and agony and anguish. She noted that for the majority of the relationship, she “lived in intense fear”. As she said, she did not know “if I would live to see another [day] because of all the heinous words and actions that my abuser directed at me”.
132․While there were more than the criminal offences mentioned in her statement, the law, of course, forbids the Court from taking account of those other matters, except to show, as was never suggested, that these were “one off” or uncharacteristic offences in his conduct towards the victim. She confirmed that, despite the passage of time, she continues “to live with, and suffer from, the harm caused to my mental and physical health and wellbeing as a result of these offences”.
133․Her thoughts of death have been constant. Her life has been damaged and contaminated. Hopefully, especially with the help of her now partner, she can no longer say “completely destroyed”, as she has suggested. As often is the case with victims of family violence, she says that “[i]t devastates me to know that I grew to believe that I deserved this abuse”. Indeed, this led to thoughts of suicide, belief that she “was not worthy of life, being alive, living”.
134․She also identified what these offences have robbed from her the thought of “home being safe and peaceful; robbed me of bed being calm, sleep free from terrors…my ability to engage in and enjoy my life…a sense of self”, her passion and energy for hobbies, education, work. Significantly, they eroded her ability to trust her choices, autonomy and independence. She wrote of the effect it had on relationships, some of which are no longer part of her circle of associates.
135․She also described her challenges when she first met Mr Padreny, and they were good and clearly precipitated some of the effects of the offending. The ongoing thoughts of the offences are hugely challenging, leaving her “physically ill”. She lives to forget but the memories are still with her and not a dream or a nightmare. She is now even more vulnerable as ordinary, unavoidable things in life, “even things with safety and comfort of my own family can trigger these attacks”, causing her to “disappear into traumatic memories”.
136․The ending of the relationship made her determined “to never open myself to anyone again”. Hopefully, her new partner will allow her to overcome this, and she seems to be healing with the amazing support she is receiving from her new partner. She is, however, not yet quite “out of survival mode'”. When considering the offences, she decided the effect can be described in one hugely challenging word, “dehumanising”, and this seems very accurate, having considered the facts of them.
137․She wants her life, her autonomy, her safety, back. She wants peace, closure and says, “I just want my life back”. Hopefully, the experience of reading out these thoughts will help that journey. These proceedings will, it is hoped, give her some closure and thus help her healing journey.

Current sentencing practice

138․Another important factor required to be considered is current sentencing practice s 33(1)(za) of the Sentencing Act. Part of this is addressed above when considering the aggravating and mitigating factors for each version of the offences. The other part is from current sentences actually imposed. Some of this can be gained from the helpful ACT Sentencing Database, though it has significant limitations.
139․Some can be addressed from comparable cases or decisions of courts in cases that may be of assistance. For example, the discussion of the offence of threatening to kill in R v Pearson at [56]-[57] is of assistance. Neither party referred to any particular decisions that were submitted to be comparable. The decision in R v Bonfield at [132]-[141] has been of assistance in respect of the offence of endangering health by choking, suffocating or strangling another person. Again, with respect to assault occasioning actual bodily harm, the discussion in R v Lyons (No 1) [2020] ACTSC 358 at [40]-[44] is of assistance. Thought has been had to the ACT Sentencing Database but that is of some difficulty and the information used treated cautiously.

Consideration

140․It is always difficult to sentence an offender, particularly as the factors are so complex these days and the interplay between them makes it difficult to try to meld them together into one instinctive synthesis. This task is considerably helped by the legislature setting out in s 7 of the Sentencing Act, the purposes for which sentences are to be imposed. In this case, the seriousness with which family violence is regarded and that it is not acceptable requires stern consequences, and requiring stern consequences makes punishment a significant factor in any sentence imposed.
141․Similarly, the significant violence Mr Padreny perpetrated reinforces the need to punish, so as to show clearly such conduct is well beyond the norms that a civilised society can accept. Such a sentence must do what it can, despite some debate to show others that such conduct is quite unacceptable, both by denouncing the conduct and also by doing what it can to deter others who might be minded to act in a similar way.
142․Mr Padreny must also be made accountable for his actions. This is particularly so in this case, as his letter does not show he accepts this in clear terms. While his mental health and drug use contributed to the offending, he was, in the end, the perpetrator and must accept responsibility. Indeed, any proper rehabilitation must start with that acceptance and must be based on honesty about his conduct.
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.
144․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.
145․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.
146․There are other matters that are important. There is a claim for compensation for $202 by the victim and $4,639 for her parents. The principles upon which such orders are made are reported in R v Steen [2015] ACTSC 259 at [51]-[52]. See also R v West [2015] ACTSC 134 at [29], R v Pahl (No 2) [2017] ACTSC 155 at [78] and R vPearson at [65]-[73]. These considerations need to be taken carefully into account.
147․However, there is an important basis for saying that such compensation is inappropriate to be provided for. Mr Padreny has been unemployed and there is no evidence that he has any savings. While he may well be able to be employed when released from custody, that is, given his current situation, not a certainty. While his accountability would be enhanced by reparation order, that order would not be able to be effected within a short period of time.
148․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.
149․The final offence of making a demand with a threat to endanger the health, safety or physical wellbeing of another person, however, was subject to a plea on the first day it was mentioned in Court and justifies a significant discount in sentence.
150․Mr Padreny is 26 now, nearly 27, but, at the time of the offending, was 23 to 24 years old. While he is now an adult, for legal purposes the law recognises that the development of the brain does not necessarily match the legal age of maturity. As noted in R v Tonna (No 2) [2020] ACTSC 362 at [44]-[47], young adults up to about 25 years old have still to be recognised as having some of the developmental immaturity of young people, and sentencing must take that into account. In particular, it does require some greater consideration of rehabilitation. To that end, while Mr Padreny has given less than significant commitment to rehabilitation, his engagement in programs and his letter to the Court are some evidence of a glimpse on the horizon that should be encouraged, if possible. This needs to be taken into account in sentence.
151․Mr Padreny has also expressed remorse. Although the prosecutor expressed some reservations, the pleas of guilty in themselves offer some evidence of remorse, but by themselves, not a great deal. Nevertheless, he has expressed his regret in his letter to the Court and this is a relevant factor. He also agreed to the Statement of Facts, though he did prevaricate in the preparation for the Suitability Assessments. His reaction to reading the Statement of Facts may strengthen the expressions in his letter for the Court. Some effect can be given to the remorse he has shown, in addition to his pleas, though of a limited nature.

152․Mr Padreny was, however, on conditional liberty at the time of committing all but the last offence on 10 October 2020. The commission of the offences while on conditional liberty requires a more severe sentence. It constitutes an abuse of the liberty granted to him on condition that he not commit further offences and obey any other conditions applied. It is, arguably, necessary for the sentence to be cancelled, although it appears that it was a combination good behaviour order and not, therefore, subject to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT).
153․Having regard to all these matters, and after considering all the alternatives, it is clear that no other sentence than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
154․There are, of course, 14 offences. Sentencing law requires that the Court not simply impose a sentence on each and then aggregate them. Principles have been fashioned over time to permit a proper sentence to be imposed in these circumstances, relying on many decisions over time. These purposes have been summarised in R v Burge [2022] ACTSC 376 at [117], and based on them, the following matters are relevant here.
155․First, a sentence that is just and appropriate, must first be imposed for each sentence. That has been done. In doing so, the Court must carefully consider whether there are common elements between the offences or whether they are part of the same course of conduct to justify wholly or partly concurrent sentences. In this case, that has been done. It is relevant, for example, for the offences committed on 25 February 2020, as the confinement was effected, in part, by the unlawful choking.
156․Similarly, where the offences are part of the same course of conduct, this will provide some justification for concurrency in the circumstances of the case. This applies also to the offences on 25 February 2020 and those committed on 13 September 2020. In one sense, however, the whole offending was a course of conduct, given that this was the way in which Mr Padreny conducted the relationship. That, however, would not require particular concurrency, and indeed, will make it somewhat more serious: R v Di Bitonto [2016] ACTSC 280 at [93]-[94].
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.

Sentence

158․Mr Padreny, please stand. I order the following:
(1)I convict you of recklessly threatening to kill a person and sentence you to 16 months imprisonment, to commence on 26 February 2022 and expire on 25 June 2023. Had you not pleaded guilty, I would have sentenced you to 19 months imprisonment.
(2)For the offence of unlawful confinement, I convict you and sentence you to seven months imprisonment, to commence on 26 February 2023 and expire on 25 September 2023, that is to be concurrent as to four months on the sentence for threatening to kill. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
(3)I convict you of intentionally and unlawfully choking, suffocating or strangling a person and sentence you to 12 months imprisonment, to commence on 26 February 2023 and expire on 25 February 2024, that is to be cumulative as to 5 months on the sentence for unlawful confinement. Had you not pleaded guilty, I would have sentenced you to 14 months imprisonment.
(4)I convict you of assault occasioning actual bodily harm on 13 September 2020 and sentence you to nine months imprisonment, to commence on 26 October 2023 and expire on 25 July 2024, that is to be cumulative as to five months on the sentence for intentionally and unlawfully choking, suffocating, and strangling another person. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment.
(5)I convict you of minor damage to property, also on 13 September 2020, and sentence you to six months imprisonment, to commence on 26 March 2024 and expire on 25 September 2024, that is to be cumulative as to two months on the sentence for assault occasioning actual bodily harm. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
(6)I convict you of assault occasioning actual bodily harm on 10 October 2020 and sentence you to 10 months imprisonment, to commence on 26 July 2024 and expire on 25 May 2025, that is to be cumulative as to 8 months on the sentence for minor damage. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.
(7)I convict you of intentionally and unlawfully choking, suffocating, and strangling another person and sentence you to 12 months imprisonment, to commence on 26 December 2024 and expire on 25 December 2025, that is to be cumulative as to 7 months on the sentence of assault occasioning actual bodily harm. Had you not pleaded guilty, I would have sentenced you to 14 months imprisonment.
(8)I convict you of making a demand with threat to endanger health and sentence you to 12 months imprisonment, to commence on 26 July 2025 and expire on 25 July 2026, that is to be cumulative as to 7 months on the sentence for intentionally choking, suffocating, strangling another person. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
(9)I convict you of damaging property between 10 and 20 September 2020 and sentence you to six months imprisonment, to commence on 26 March 2026, and expire on 25 September 2026, that is to be cumulative as to two months on the offence of choking, suffocating, and strangling. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
(10)I convict you of common assault on 12 May 2020 and sentence you to eight months imprisonment, to commence on 26 May 2026 and expire on 25 January 2027, that is to be cumulative as to four months on the sentence for minor damage. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment.
(11)I convict you of common assault on 14 August 2020 and sentence you to seven months imprisonment, to commence on 26 August 2026 and expire on 25 March 2027, that is to be cumulative as to three months on the earlier charge of common assault. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
(12)I convict you of minor damage to property on 16 May 2020 and sentence you to six months imprisonment, to commence on 26 November 2026 and expire on 25 May 2027, that is to be cumulative as to two months on the sentence for common assault. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
(13)I convict you of common assault between 10 and 20 of September 2020 and sentence you to eight months imprisonment, to commence 26 November 2026 and expire on 25 July 2027, that is to be cumulative as to one month on the charge of minor damage. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment.
(14)I convict you of damaging property between 10 and 20 September 2022 and sentence you to six months imprisonment, to commence on 26 March 2027 and expire on 25 September 2027, that is to be cumulative as to two months on the sentence for common assault. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
(15)That is an overall period of five years and seven months, to commence on 26 February 2022 and expire on 25 September 2027.

159․You may be seated.
160․The next question is to how the sentence should be served. Mr Padreny has requested that a Treatment Order be made. Since the total sentence, even after the pre-sentence custody has been considered, will exceed the four years which is beyond what s 12(a) of the Sentencing Act provides for the eligibility for the making of such an order, no such order can be made. The seriousness of the matters require some intensive supervision and that provided under a good behaviour order may not be adequate, as the Court cannot easily supervise in the same way as the Sentence Administration Board can, in some ways.
161․Although there are differences between a good behaviour order and parole, that is not always so, as has been recent experience with the Court in a limited way, but to achieve that will involve significant resources. 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.
162․For example, although he has expressed hesitation in the engagement with the Solaris Therapeutic Community, this is an important option that is still available for him and it is commended to him for consideration in the sentence. It is evident also, however, that for him to reintegrate into the community, Mr Padreny will need a lengthy period under supervision. Accordingly, that requires a longer period of parole which can incorporate the treatment plan that Dr Ahmed suggests and will engage with him in, hopefully, enabling him to live a drug and crime-free life in the future.
163․Mr Padreny, please stand.
164․I further order the following:
(16)I set a non-parole period of two years and six months, to commence on 26 February 2022 and expire on 25 August 2024. Under s 67 of the Sentencing Act, it is recommended that, as parole conditions, the Sentence Administration Board consider, if still appropriate, that:
(a)The program recommended by Dr Tanveer Ahmed be implemented; and
(b)That you be assessed for admission to an appropriate family violence prevention program, such as conducted by the Domestic Violence Crisis Service or EveryMan, and if assessed as suitable, undergo such a program.

(17)I direct that a copy of Dr Tanveer Ahmed's report dated 18 May 2023, be provided to the Commissioner of ACT Corrective Services and to the Secretary of the Sentence Administration Board.

165․Mr Padreny, that is a serious sentence, but the offences that you have committed, in my assessment, are very serious offences and need a significant response. It is impossible in those circumstances to make a Treatment Order, but I do urge you to consider and not deviate from, it appears, your relatively recent commitment to rehabilitation. There are options in the Alexander Maconochie Centre and I do urge you to consider carefully the Solaris program which has been found to be very suitable.
166․There are obviously some counselling services and the engagement that you have with programs that are also to be commended. I suggest that you look forward. I have made a very short non-parole period comparatively because I think that you do need a long period of supervision and that the Sentence Administration Board will be able to do that. If you breach its conditions such as ongoing rehabilitation, it will be able to cancel the parole period and send you back to custody, so there are serious consequences in not engaging in that.
167․If you look forward and not back, you need to understand that you have a responsibility. The drugs are an important issue and that needs to be addressed. There is also your mental health that needs to be addressed, but you are ultimately responsible, and you must take that responsibility and work hard to address what has led you to very unsatisfactory relationships that then led you to Court, which then has led you to gaol. If you want to avoid that in future, this is your opportunity. You appear to be able to engage in employment and do that successfully, but if you want a fulfilling life, which includes more than just employment, then you need to take this opportunity.
168․It may not seem, at the moment, with some considerable period left for you in custody, possible to do that but I urge you to be committed to the opportunity that this has given you and that this will, if taken, lead you to a place where you will not commit these kinds of offences again. If you look honestly at yourself, you address those factors that need to be addressed and you can commit yourself to a future in a community that is civilised and needs to live in that way with commitment by all its participants and members.

I certify that the preceding one hundred and sixty-eight [168] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge

Associate: I Harris

Date: 16 October 2023