Director of Public Prosecutions v Parker

[2024] ACTSC 125

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Parker

Citation: 

[2024] ACTSC 125

Hearing Date: 

14 July 2023, 18 April 2024, 23 April 2024, 29 April 2024

Decision Date: 

29 April 2024

Before:

Baker J

Decision: 

See [81].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – purposes of sentencing – applicability of Bugmy principles – where offence committed in breach of conditional liberty – offender assessed as suitable for imposition of an Intensive Corrections Order – positive prospects of rehabilitation – Intensive Corrections Order imposed.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of suspended sentence – breach through commission of further offence in New South Wales – further offence was of less serious nature – importance of rehabilitation – Intensive Corrections Order imposed.

Legislation Cited: 

Crimes Act 1900 (ACT), ss 24, 211(2)

Crimes (Sentence Administration) Act 2005 (ACT), ss 42, 110

Crimes (Sentencing) Act 2005 (ACT), ss 7(1)(g), 11(5), 19(3), 33(1), 35, 53

Cases Cited: 

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

DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP v Dritsas [2023] ACTSC 308

DPP v Khan [2024] ACTSC 19

DPP v Myers (a pseudonym) (No 5) [2024] ACTSC 109

Hogan v Hinch [2011] HCA 4; 243 CLR 506

Jalloh v Macklin [2012] ACTSC 99

Lloyd v R [2022] NSWCCA 18

O'Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244

R v Deng [2017] ACTSC 338

R v Fry [2021] ACTSC 138

R v Hodge [2015] ACTSC 214

R v Lacey [2020] ACTSC 241

R v Lucas [2021] VSC 81

R v Maher [2021] NSWDC 80

R v Myles [2017] ACTSC 194

R v Ngerengere (No 3) [2016] ACTSC 299

R v Parker (No 2) [2022] ACTSC 13

R v Parker [2021] ACTSC 57

R v Pham [2015] HCA 39; 256 CLR 550

R v Porter (No 3) [2022] ACTSC 236

R v Reid [2016] ACTSC 24

R v Stanley [2015] ACTSC 322

R v Swift [2007] VSCA 52; 15 VR 497

R v Wright [2019] ACTSC 146

Stevens v McCallum [2006] ACTCA 13

Taylor v R [2020] NSWCCA 355

White v R [2016] NSWCCA 190; 261 A Crim R 302

Texts Cited:

“Childhood Exposure to Domestic and Family Violence” in Public Defenders (NSW), The Bugmy Bar Book Project (online, November 2019)

Parties: 

ACT Director of Public Prosecutions ( ACT DPP)

Jasmin Parker ( Offender)

Representation: 

Counsel

L Crocker and B Chifuntwe ( ACT DPP)

J McGuire ( Offender)

Solicitors

ACT Director of Public Prosecutions

Paul Edmonds & Associates ( Offender)

File Number:

SCC 76 of 2023

SCC 75 of 2023

BAKER J:      

Introduction

1․On 23 March 2023, the offender, Jasmin Parker, pleaded guilty to the following offences that were committed on 8 August 2021 (the 2021 offences):

(a)Count 1 (CAN3002/2023): assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT).

(b)Count 2 (CAN5692/2022): providing a false name to police, contrary to s 211(2)(e) of the Crimes Act.

2․The maximum penalty for assault occasioning actual bodily harm is 5 years’ imprisonment. The maximum penalty for providing a false name to police is a fine of $500.

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

4․In addition, the offender also comes before the Court for action to be taken on a breach of suspended sentences that were imposed by this Court on 2 February 2022 in respect of two counts of aggravated robbery and one count of attempted aggravated robbery (the robbery offences). The offending that constituted the breach of those suspended sentences was an offence of common assault committed in New South Wales in October 2022 (the 2022 common assault).

5․As detailed further below, these proceedings have been regrettably delayed, first whilst an Intensive Correction Order Assessment Report (ICOAR) was obtained, and second to enable the prosecution to obtain the Statement of Facts relating to the 2022 common assault. The ICOAR was provided to the Court on 8 April 2024. The Statement of Facts for the 2022 common assault was provided to the Court at the hearing this morning. Having received the latter document, I will now sentence the offender.

Background

The 2021 offences

6․At approximately 2:30am on 8 August 2021, the offender and a co-defendant were standing outside the doorway to the Cube nightclub in Canberra city. As they were standing outside the doorway, the victim and her friend left the nightclub. A short time, the co-defendant approached the victim’s friend. Another female present told the co-defendant to go away. The co-defendant began to push the friend in the chest area with both hands. The friend heard the offender telling the co-defendant, “get her, good girl”.

7․The victim saw the offender and co-defendant standing around her friend. She approached them and told the offender and co-defendant to “get off her”. The co-defendant then struck the friend on the right side of her face. As a result, the friend fell to the ground. As she lost her balance and fell to the ground, the friend grabbed the co-defendant’s legs. By this point, the victim had taken hold of the co-defendant’s shoulders. All three women fell to the ground.

8․The offender then walked up to the victim while she was on the ground and kicked her once in the face (Count 1). As a result of this kick, the victim suffered serious injuries, including a fractured eye socket and a fractured left nasal bone. The victim lost consciousness for a brief period immediately following the kick and also suffered two black eyes, a blood nose, swelling to her face and a strained neck. Fortunately, the fractures did not require surgical intervention.

9․The victim was able to get up and walk away, followed by her friend. The offender and co-defendant also left the area.

10․At approximately 4:10am the same morning, police spoke with the offender and co-defendant. During the exchange, the offender told police that name was “[redacted]” (Count 2).

11․Police subsequently identified the offender as the second assailant. They also attended the home address of [redacted], and confirmed that [redacted] did not match the appearance of the offender.

12․On 17 December 2021, the police spoke with the co-defendant. She said that she was not with a female called “[redacted]” on the night of the offending, but refused to give police the name of the female she was with that night. On 14 May 2022, the offender declined to participate in a Record of Interview with respect to the night of the offending.

13․On 20 July 2022, the offender was charged with the offence of providing a false name to police. On 23 March 2023, was charged with assault occasioning actual bodily harm (after originally being charged with a different offence). She entered pleas of guilty to both offences in the Magistrates Court on 23 March 2023.

Victim Impact Statement

14․The victim provided a Victim Impact Statement dated 11 July 2023, in which she described the significant impact the offending has had on her life.

15․In his written submissions, the offender’s counsel took objection to statements in the Victim Impact Statement, and in particular, to factual assertions about the offending that were not part of the agreed facts (for example, concerning a social media post that the offender was said to have posted after the offending). The offender’s counsel properly did not object to the statement being read, but rather submitted that I should give it little weight: see similarly R v Porter (No 3) [2022] ACTSC 236 at [80], citing R vSwift [2007] VSCA 52; 15 VR 497 at [6]. In circumstances where this matter was not an agreed charge, and was not the subject of a separate charge, I accept that it should not be taken into account in determining the sentence to be imposed.

16․The offender’s counsel also formally objected to various paragraphs of the Victim Impact Statement that concerned the psychological impact of the offending on the victim. These paragraphs were properly the subject of a Victim Impact Statement, the purpose of which is to enable victims to “place before the Court, in their own words, the impact of the crime on [them]”: Swift at [6], cited in Porter (No 3) at [82]. As outlined below, I have taken these aspects of the victim impact statement into account.

17․The victim reported that her physical injuries, including the facial fractures, have caused migraines which impact her ability to attend events and appointments. At the time of the offending, the victim was in the process of recovering from bouts of depression and anxiety and was only beginning to be able to attend venues like public bars. The offending has aggravated the victim’s depression and anxiety.

18․Following the assault, the victim became aware that people were communicating on social media about her, prompting her to “further spiral”. She explained that the assault and social media publicity that followed has disrupted her confidence, changed her perspective on being out in public, made her fearful of crowds and nightclubs, and prompted her to question her safety constantly.

19․The victim also described the repercussions of the assault on her family. The victim is the primary carer for her elderly grandmother, and since the assault, she has been unable to engage fully with her family and caring responsibilities.

20․The victim explained that the physical and mental impact of the assault has affected her engagement with her studies, causing her to discontinue her enrolment in university. The victim now needs to study from home, and has spent over $6,000 on required computer and software equipment. In addition, the bag she was carrying at the time of the offending was ruined after it became stained with her own blood.

Subjective circumstances

21․The offender’s subjective circumstances are set out in a Pre-Sentence Report (PSR) dated 27 June 2023 and an Intensive Corrections Order Assessment Report (ICOAR) dated 8 April 2024.

Personal Background

22․The offender is 23 years old.

23․The offender’s parents separated when she was five years old. She did not meet her father again until she was 14. She experienced disadvantage throughout her childhood as a result of her parents’ substance abuse. She was subjected to physical and verbal abuse perpetrated by her mother when she was young.

24․The offender was raised by her grandmother from the age of two. The offender left school in Year 9 or Year 10 to care for her grandmother. The offender’s grandmother passed away when she was 16. The offender was extremely close to her grandmother. Following her grandmother’s death, the offender became suicidal and attempted suicide on two occasions. The passing away of the offender’s grandmother also destabilised her accommodation. The offender was forced to reside in youth refuges or to “couch-surf” with friends.

25․After leaving school, the offender completed a Diploma in Beauty Therapy. She is now employed full time in the beauty industry.

26․The offender is currently single. She was subject to family violence throughout a five-year relationship which ended in 2023. She stated that she had a Protection Order in place, and had reported breaches of the order following the cessation of the relationship. The offender’s former partner was later charged with serious offences (including assault occasioning actual bodily harm and choke/ suffocate/ strangle) against the offender.

27․The offender described having only one pro-social friend to the PSR author. She later explained to the ICOAR author that she has “distanced herself from previous negative influences” and that she now has a “small number of [pro-social] friends”. Her previous serious offending occurred with her mother and she reported to the ICOAR author that she “consciously limit[s] her ongoing contact with her mother, due to her … substance use issues”.

Substance use

28․The offender began consuming alcohol when she was 11 years old. Her alcohol use was “problematic” by the time she was 13 years old and had escalated to “binge-drinking” by the time she was 17–18 years old. The offender informed the ICOAR authors that she has reduced her consumption since 2022 and that she now “rarely drinks alcohol”.

29․The offender also has a previous history of methamphetamine, cocaine and benzodiazepine use. The offender informed the PSR author that she has ceased the use of all of these drugs.

30․The offender reported using cannabis from the age of 14, and on a daily basis from the age of 19. Although she told the PSR author that she ceased using cannabis in 2022, she subsequently told the ICOAR author that she is currently prescribed medicinal cannabis, which she consumes daily via a vaporiser. She provided evidence of a prescription for medicinal cannabis which expired on 28 February 2024, but did not provide a current prescription. Urinalysis samples taken on 14 August 2023, 4 October 2024, and 30 January 2024 tested positive for cannabis.

Mental and physical health

31․The offender reported generally good physical health, though she noted to the ICOAR author that she had been prescribed medication for asthma and “damaged air sacs” in her lungs resulting from pneumonia in 2023. (It is unclear whether that is the medicinal cannabis described above.)

32․The offender has been diagnosed with depression and anxiety. Information from ACT Health indicates that she has been referred to the Home Assessment and Acute Response Team (HAART) following a suicide attempt in October 2020, and that she was again referred to HAART in August 2022 but did not make contact. She has previously engaged in some counselling.

33․The offender denied any serious current mental health conditions. She is not currently receiving treatment for mental health.

Character references

34․The offender tendered character references from Ms Tanika Hill, dated 14 July 2023, and Ms Cassandra Smith, dated 12 July 2023. Ms Hill also gave oral evidence at the sentence hearing.

35․Ms Smith was the offender’s employer at Laser Clinics Australia. She stated that the offender received “glowing reviews” from her clients. She described the offender as “kind and friendly and a pleasure to work with” and said that she is “committed to bettering herself and her future”.

36․Ms Hill has known the offender for 5 years. She said that the offender had told her about her background of neglect and violence. She emphasised the importance of the offender’s grandmother as a mother figure in the offender’s life. She stated that when the offender’s grandmother died while the offender was a teenager, the offender lost an important role model and was “passed through refuges … she couldn’t really find anywhere stable to live”. She also described the offender’s “abusing and controlling relationship” which began around 2019 (when the offender was still a teenager) and ended only recently. Ms Hill described the offender’s ex-partner as “emotionally, physically and verbally abusive” towards the offender and gave evidence that she had witnessed serious acts of family violence against her.

37․Ms Hill also gave evidence in relation to the offender’s attitude to the offending. She stated that the offender read the victim impact statement while on the phone to her. She said that the offender was in tears as she read the statement. The offender told Ms Hill that she regrets the offending, feels remorseful, and that she related to many of the things the victim is going through.

38․Ms Hill was of the view that the offender is “heading in a good direction”. She explained she has witnessed “real growth” from the offender, and considers that if the offender is given a chance, she will “prove she [has] changed”.

39․In cross-examination, Ms Hill disclosed that the offender’s legal representative had assisted her in drafting her written character reference. She explained that she is dyslexic and whilst she is “good at words when speaking verbally”, she has difficulty writing the words down. The involvement of the offender’s legal representative in preparing the reference should have been disclosed in the reference: see similarly DPP v Khan [2024] ACTSC 19 at [43]. Nonetheless, in circumstances where Ms Hill required assistance arising from her dyslexia and ultimately gave evidence on oath, I am satisfied that her reference and evidence is a truthful account of her conversations with the offender.

Criminal history

40․The offender has a criminal history in the ACT and in New South Wales. In 2019, she received suspended sentences for an attempted aggravated robbery with an offensive weapon and two counts of aggravated robbery with an offensive weapon. In 2021, she was convicted of driving a motor vehicle under the influence of alcohol, which constituted a breach of the suspended sentences.

41․The offender’s NSW criminal history includes several dishonesty offences, several offences of damaging property, possession of a prohibited drug, and resisting a police officer. Most recently, the offender was convicted in October 2023 for a family violence related offence of common assault. For this offence, she was sentenced to a Community Corrections Order (CCO) which will expire on 11 October 2024.

42․The commission of the further New South Wales offence give rise to some complexity in the present proceedings. To address that complexity, it is convenient to briefly set out a chronology of the key events in the offender’s criminal history:

18 May 2021:               Justice Burns of the ACT Supreme Court imposed three concurrent suspended sentences for aggravated robbery (CAN2019/8376) and attempted aggravated robbery (CAN2019/8375) committed on 20 May 2019, and for aggravated robbery committed on 23 July 2019 (CAN2019/8377): R v Parker [2021] ACTSC 57.

10 June 2021:              The offender commits a conviction for a level 3 Prescribed Concentration of Alcohol offence (CAN2021/6248) (the driving offence).

8 August 2021:            The present offences (assault occasioning actual bodily harm and give false name to police) were committed.

11 November 2021:     The offender is convicted of the driving offence (CAN2021/6248).

2 February 2022:         Chief Justice Murrell cancelled the suspended sentences as a result of the offender’s conviction for the driving offence (CAN2021/6248), and on resentence, imposed a further suspended sentence of 21 months, upon the offender entering into a two-year good behaviour bond. The new suspended sentences expired on 1 February 2024: R v Parker (No 2) [2022] ACTSC 13.

23 March 2023             The offender pleaded guilty to the present offences.

1 October 2022            The offender committed the 2022 NSW offence of common assault.

October 2023               The offender was convicted of the 2022 NSW offence of common assault and sentenced to a CCO.

43․As a result of a “procedural quirk”, the suspended sentences imposed by Burns J on 18 May 2021 did not become liable to be cancelled by the present offending (the 2021 offences). This was because the suspended sentences imposed by Burns J had previously been cancelled by Murrell CJ on 2 February 2022. The sentences that were reimposed by her Honour therefore date from 2 February 2022, and do not cover the period of the present offending. However, the fact that the offending occurred in breach of conditional liberty at the time that it was committed remains relevant to the sentences to be imposed for the 2021 offences.

44․However, the NSW offence of common assault committed on 1 October 2022 (the 2022 NSW common assault) constitutes a breach of the offender’s good behaviour obligations, which were conditions of her release under the suspended sentences that were imposed by Murrell CJ on 2 February 2022. It follows that I must cancel the offender’s Good Behaviour Orders imposed on 2 February 2022 and either impose the suspended sentence for the original offences or re-sentence the offender for the original offence: s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). Both parties agreed that this should be done as a part of the present sentencing task so that totality principles may be properly applied.

Intensive Corrections Order Assessment Report

45․At the initial hearing before me on 14 July 2023, both parties agreed that an ICOAR should be obtained to assess whether the offender is suitable for an Intensive Corrections Order (ICO). The report was ordered by this Court on that date. When inquiries were subsequently made about why the report had not been received, the Court was informed that preparation of the report had not commenced because the proceedings had not been listed for sentence. The report was ultimately received by the Court on 8 April 2024.

46․The ICOAR outlined the offender’s background, as summarised above. The report also noted that that offender has established stable employment, accommodation, has some pro-social connections and engaged appropriately with the assessment period. Apart from the present offending, the ICOAR reported that the offender had previously engaged satisfactorily with the Good Behaviour Order (although the PSR had previously noted she “at times failed to attend appointments and was slow to engage in interventions to address illicit drug use”).

47․However, the report recorded concerns that the offender “appeared to deflect blame to the victim and failed to express understanding of the impact of her actions on the victim”. The Report also noted that the victim of the offence expressed continued concerns regarding their need for protection from violence or harassment from the offender.

48․The ICOAR assessed the offender as suitable for an ICO. The report noted that, if an ICO were made, the offender would be encouraged to engage with ongoing mental health supports and services to address her attitude toward the offending so as to reduce her risk of recidivism. The offender would also be assessed for suitability for participation in the EQUIPS foundation and Aggression programs. The ICOAR also assessed the offender as suitable for a Community Service work condition, and noted that the offender has signed a Community Services Work Health Declaration, indicating her ability to undertake Community Service Work.

Current sentencing practice

49․I am required to have regard to current sentencing practice: s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT).

50․The parties provided me with two authorities concerning the offending that was said to be similar to the present: R v Wright [2019] ACTSC 146 and Jalloh v Macklin [2012] ACTSC 99. Those decisions are summarised in Annexure A to this judgment.

51․In determining the sentence to be imposed on the offender, I have taken into account the sentences imposed in these cases. I have however, borne in mind the limitations of these cases, which concern offending and offenders with different objective and subjective characteristics to the present case. I have also borne in mind that sentences imposed in comparative cases illustrate, but do not define, the possible range of sentences available, and cannot cap the sentencing discretion: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]; DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51] – [53].

52․The prosecution also drew my attention to several cases relating to violence at licenced venues and “one-punch” assaults: R v Myles [2017] ACTSC 194, R v Lacey [2020] ACTSC 241 and R v Deng [2017] ACTSC 338. These decisions are also summarised in Annexure A to this judgment. In each case the injuries inflicted were more serious than those sustained in the present case, and the offender was sentenced for reckless infliction of grievous bodily harm (rather than actual bodily harm, as in the present case). An offence of inflicting grievous bodily harm attracts much higher maximum penalties in comparison to the present offending. Accordingly, the sentences imposed in those authorities are of no guidance to the sentence to be imposed for the present offending.

Discount for guilty plea  

53․The offender entered a plea of guilty in the Magistrates Court on 23 March 2023, following the disclosure of material and provision of a brief of evidence to defence, further negotiations, and the charging of the current offence which replaced a more serious charge. I will afford a 25% discount in respect of the offender’s plea of guilty pursuant to ss 33(1)(j) and 35 of the Crimes (Sentencing) Act.

Determination

The sentences to be imposed for the 2021 offending

54․I am required to assess the nature and circumstances of the 2021 offending: s 33(1)(a) of the Crimes (Sentencing) Act.

55․The offending constituting the assault was a serious instance of assault occasioning actual bodily harm. As the prosecutor submitted, immediately before the assault, the victim had come to the aid of her friend, who had been assaulted by the co-defendant. At the time of the offender’s assault, the victim was lying on the ground in a vulnerable position. She did not pose any direct threat to the offender. The offender targeted the victim’s face and head, which are vulnerable parts of the body: R v Hodge [2015] ACTSC 214 at [15]; R v Fry [2021] ACTSC 138 at [41]; R v Stanley [2015] ACTSC 322 at [65]; R v Lucas [2021] VSC 81 at [156]. The offence was committed in company with the co-defendant. Offences committed in company will heighten the fear that will be experienced by a victim: White v R [2016] NSWCCA 190; 261 A Crim R 302 at [14] and [94]; DPP v Dritsas [2023] ACTSC 308 at [27]. Although the offending was spontaneous, and although the co-defendant was the first to commence the assault, I also bear in mind that the offender had encouraged the co-defendant to assault the victim’s friend.

56․As noted above, at the time that the offender committed the offence, she was on conditional liberty. She was subject to two concurrent suspended sentences for aggravated robbery and attempted aggravated robbery committed on 20 May 2019 and a further aggravated robbery committed on 23 July 2019. The present offending occurred less than three months after the offender was afforded the benefit of this conditional liberty.

57․The sentence to be imposed must also recognise the harm that was occasioned to the victim. As a result of the offending, the victim sustained a fractured eye socket and a fractured left nasal bone. She briefly lost consciousness and suffered two black eyes, a blood nose, swelling to her face and a strained neck. As the prosecution submitted, these are serious injuries which are “at the upper end of actual bodily harm”. The Victim Impact Statement also outlined further psychological and financial harm caused by the offending, as summarised above. It is clear that the victim has been greatly impacted by the offending. I have taken into account the harm caused to the victim in accordance with ss 7(1)(g), 33(1)(f) and 53 of the Crimes (Sentencing) Act.

58․The offence of give false information was also a serious example of this type of offending. The offender committed the offence to avoid criminal responsibility for her own offending. The offender would have known that this offending had resulted in significant harm to the victim. The name provided by the offender was the name of a real person. This aspect of the offence of providing a false name risked the possibility of that person being wrongly charged with an offence that she did not commit.

59․I must also consider the offender’s subjective case.

60․The offender has had a disadvantaged background. As outlined above, she was exposed to violence and subject to neglect from a young age. In her teens, she experienced homelessness, had an interrupted education, and engaged in substance abuse. These matters are relevant to the offender’s moral culpability for the offending: s 33(1)(i) and (m) of the Crimes (Sentencing) Act. As Yehia DCJ (as her Honour then was) held in R v Maher [2021] NSWDC 80 at [71]:

… Growing up experiencing or witnessing anger and/or violence and being exposed to such violence in families and communities can lead to individuals responding with anger and violence ‘almost automatically’ in response to other people’s behaviour of perceived provocation, and a reduced capacity to access other ways of dealing with these triggers.

See further “Childhood Exposure to Domestic and Family Violence” in Public Defenders (NSW), The Bugmy Bar Book Project (online, November 2019).

61․As Yehia DCJ further observed at [73], this history of deprivation and disadvantage is relevant in the way set out by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [43] – [44]:

43․… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

44․Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest … that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

62․I am satisfied that the offender’s moral culpability for her offending is reduced to some extent by reason of her background. I will reduce the weight to be given to general deterrence, denunciation, and punishment. However, as I discuss further below, the protection of the community remains of significance in determining the sentence to be imposed.

63․The offender has expressed some limited remorse for the offence of assault occasioning actual bodily harm, in particular to her friend Ms Hill. I do not accept the prosecution’s contention that this evidence should be given little weight because the offender herself did not give evidence: cf R v Reid [2016] ACTSC 24 at [23]. As these are sentence proceedings, hearsay evidence is admissible and may be given weight in making factual determinations: Lloyd v R [2022] NSWCCA 18 at [45] per McCallum JA (as her Honour then was), Hamill and Cavanagh JJ agreeing. For the reasons I have stated above, I do accept Ms Hill’s account of the offender’s distress on becoming aware of the full extent of her victim’s injuries and of the impact of those injuries on the victim’s grandmother. Having had a close relationship with her own grandmother, I accept that the offender has expressed real remorse for the consequences of her actions.

64․Nevertheless, as noted in the PSR and the ICOAR, the offender has “avoid[ed] taking responsibility for her offending behaviour”. She has “attribute[d] blame on the victim by claiming she acted in self-defence”. The offender’s suggestion to the PSR authors that the victim was “equally involved in the incident” is directly inconsistent with the Agreed Statement of Facts. The statements made by the offender to these authors indicates that, whilst the offender has remorse for the harm that has been occasion to the victim, she has limited insight into her responsibility for the causing of that harm.

65․The offender explained to the PSR author that she gave a false name because she was stressed about her then-current legal matters, and was concerned about the inconvenience of taking time off work. This explanation does not demonstrate any real remorse for this aspect of her offending.

66․In view of the above, there can be no question that the s 10 threshold is crossed. Counsel for the offender did not contend otherwise. It follows that the offender must be sentenced to a term of imprisonment. However, it remains necessary to determine the form of imprisonment that should be ordered.

67․It is of concern that the offender committed an offence in NSW following the present offending. As noted above, the offender is currently subject to a Community Corrections Order relating to an October 2023 conviction for a family violence-related offence of common assault. It is also of significant concern that the present offending was committed while the offender was subject to a suspended sentence imposed in relation to the 2019 offences of aggravated burglary (which the offender had already breached once through the commission of the driving offence) and that the offender breached the conditions of that suspended sentence again in 2022 through the commission of the 2022 common assault offence.

68․Notwithstanding these concerns, I am satisfied that the offender has reasonable prospects of rehabilitation. As the PSR author observed, the offender’s primary criminogenic risk factors include her personal relationships, her mental health issues, and her attitude toward offending. However, she has significant protective factors. She has successfully managed to obtain stable employment and accommodation; she has ceased her previous significant drug use, with the exception of medicinal cannabis (which appears to be borne out by her urinalysis results); and she has taken proactive action to distance herself from negative influences.

69․Most importantly, as a result of the delay in obtaining the ICOAR, the offender has now been at liberty for 9 months since the sentence proceedings were first listed, without incident. Whilst earlier delays in the commencement of the proceedings were attributable in part to the offender’s failures (in particular, to provide police with her real name, and to attend court on the first and second mentions of the matter), this further delay is not in any way attributable to the offender (or indeed to the prosecution). As a result of this delay, the offender has had the benefit of what has become, in effect, a Griffiths remand (in substance, if not in form). The offender’s compliance with the conditions of her bail during this period is a significant matter which provides a further assurance to the Court that the offender will be able to comply with the conditions of an ICO.

70․The most effective guarantor of the protection of the community is rehabilitation: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 538-539 [32]. The offender is still relatively young. She is 23 years old. She was 20 years old at the 2021 offences. The offender’s progress towards rehabilitation would be significantly impeded by a sentence of full-time imprisonment. Such a sentence would sever her prosocial community ties, including her employment and her prosocial friendships. An ICO will permit the offender to maintain these connections, under the supervision of Corrective Services.

71․The authorities of this Court, like authorities in other Australian States and Territories, recognise that the strength of an ICO is in imposing a punitive sentence that will support, rather than impede, an offender’s rehabilitative path: see R v Ngerengere (No 3) [2016] ACTSC 299 at [21] – [22] and the cases cited therein. I am satisfied that it is appropriate to impose an ICO.

72․As urged by the prosecution, I will impose a curfew condition, which will prohibit the offender from leaving her house after 10:00pm. I will also impose an order for community service. These orders will ensure that need for punishment, denunciation and deterrence (both general and specific) are met. The curfew, together with an order prohibiting the offender from contacting or approaching the victim or her friend, will also assist in protecting the community.

73․The victim seeks a reparation order of $375 for the loss of her handbag which was stained with blood following the assault. I have been provided with a receipt which indicates the value of the handbag is $375 USD. The offender consents to the reparation order. I will make an order requiring the repayment of the equivalent amount in Australian dollars as at the date of the offending ($510 AUD).

Breach of suspended sentence

74․As noted at [44] above, the commission of the NSW offence of common assault breached the suspended sentences imposed by Murrell CJ on 2 February 2022. As a result of this breach, the suspended sentences must be cancelled and a determination must be made as to whether the suspended sentences should be imposed, or the offender resentenced.

75․The prosecution and the offender agreed that proceedings for the breach should be dealt with at the same time as the sentence for the present offences. For this reason, the sentence proceedings were adjourned initially to 23 April 2024, so as to enable the prosecution to obtain the Statement of Facts relating to the common assault charge: Stevens v McCallum [2006] ACTCA 13 at [194] and [207]. Difficulties obtaining those facts led to the further adjournment of the proceedings, ultimately to today.

76․In DPP v Myers (a pseudonym) (No 5) [2024] ACTSC 109 at [16] – [18], McWilliam J observed that the following considerations should be borne in mind when considering whether a suspended sentence should be imposed following a breach:

16․In this jurisdiction, there is no presumption in favour of the imposition of a sentence that was suspended: DPP v Lawson [2023] ACTSC 244 at [21], citing Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35].

17․Nonetheless, when determining the action to be taken in response to a breach of a suspended sentence, it must be recognised that the offender avoided serving full-time imprisonment by entering into the Good Behaviour Order: Taylor v R [2020] NSWCCA 355 at [21], citing The Queen v PM (No 2) [2015] ACTSC 358 at [19] and Saga v Reid [2010] ACTSC 59 at [99] – [101]. As McWilliam J recognised in DPP v JJ (No 2) [2024] ACTSC 74 at [29],

If the court does not enforce the statutory regime by imposing the suspended sentence (or otherwise re-sentence the offender in a manner that properly reflects the breach), then the incentive to comply with good behaviour obligations might be reduced, which in turn, may cause the community to perceive that this regime is a ‘toothless tiger’.  The former risks the maintenance of a safe society; the latter reduces respect for the law.

18․However, it must also be borne in mind that the objective of the suspended sentence that was originally imposed was “reformative as well as penal”: The Queen v PM, citing Tanner v Brown [2011] TASSC 59 at [94]. The objective of rehabilitation remains a relevant consideration when determining the action to be taken following cancellation of the Good Behaviour Order under s 110. This objective will be of particular weight when determining the action to be taken in response to the breach of a suspended sentence by a young person: see Chapter 8A of the Crimes (Sentencing) Act 2005 (ACT).

77․The Statement of Facts for the common assault indicates that that offence occurred on 1 October 2022. The offender was sharing a hotel room in Sydney with the victim, whom she had met about a month prior. A friend of the offender was also present. During the evening, the offender could not find some cannabis which she had brought with her to the hotel room. The offender picked up a pair of scissors and threatened to stab the victim. She swung her hand, which was holding the scissors, at the victim. No contact was made, and the victim was uninjured. The victim then kicked the accused onto the hotel room bed, before he left the room and contacted security and police. At the time, the victim and the offender had been communicating by text for about one month. It appears to be, in those circumstances, that the NSW Local Court has classified the offence as a family violence offence.

78․As the offender’s counsel submitted, this offending, whilst a serious form of common assault, was nonetheless of a much “lower order” to the offending (that is, an aggravated robbery) for which the suspended sentences were imposed. The offending did not occasion any injury. The offender was sentenced to a Community Corrections Order with standard conditions (not to commit any offences and to appear before the Court if called to do so during the term of the order).

79․My findings as set out at [68] – [72] above concerning the importance of facilitating the offender’s rehabilitation apply with equal force in determining the appropriate action to be taken on cancellation of the suspended sentences.

80․Taking into account each of the above matters, I will not impose the suspended sentences. I will resentence the offender on the aggravated robberies. On resentence, I will take into account the period of the suspended sentence that was served without incident. As the offender is also being sentenced today for the 2021 offending, I will also take into account principles of totality: O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26]. For the aggravated robbery offences, I will impose an aggregate further period of imprisonment of 10 months, but will order that these sentences also be served by way of ICOs. Recognising the different criminality and different victims involved in the two sets of offending, I will order that the sentence for assault occasioning actual bodily harm be partially accumulated on the breach offences.

Orders

81․The orders of the Court are as follows:

Breach offences

(1)I cancel the Good Behaviour Orders imposed on 2 February 2022 in respect of the following offences:

(a)CAN2019/8376 (aggravated robbery).

(b)CAN2019/8375 (attempted aggravated robbery).

(c)CAN2019/8377 (aggravated robbery).

(2)I re-sentence the offender to the following sentences:

(a)For CAN2019/8376 (aggravated robbery): a sentence of imprisonment for 5 months, commencing on 29 April 2024 and expiring on 28 September 2024.

(b)For CAN2019/8375 (attempted aggravated robbery): a sentence of imprisonment for 4 months, commencing on 29 June 2024 and expiring on 28 October 2024.

(c)For CAN2019/8377 (aggravated robbery): a sentence of imprisonment for 5 months, commencing on 29 September 2024 and expiring on 28 February 2025.

(3)The total sentence will be imprisonment for 10 months, commencing on 29 April 2024 and expiring on 28 February 2025.

(4)I order that those sentences be served by way of an Intensive Correction Order subject to the core conditions listed in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions under s 11(5) of the Crimes (Sentencing) Act 2005 (ACT):

(a)That the offender remain at her place of residence between 10:00pm and 6:00am daily until 28 October 2024, unless there is a medical emergency, and following that date until ACT Corrective Services directs otherwise via a signed notice, and

(b)That the offender engage in rehabilitation programs as directed by ACT Corrective Services.

The 2021 offences

(5)For the offence of assault occasioning actual bodily harm (CAN3002/2023), the offender is convicted and sentenced to 18 months’ imprisonment (reduced from 24 months on account of the offender’s guilty plea), commencing on 29 August 2024 and expiring on 28 February 2026.

(6)I order that this sentence be served by way of an Intensive Correction Order subject to the core conditions listed in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions under s 11(5) of the Crimes (Sentencing) Act 2005 (ACT):

(a)That the offender remain at her place of residence between 10:00pm and 6:00am daily until 28 October 2024, unless there is a medical emergency, and following that date until ACT Corrective Services directs otherwise via a signed notice, and

(b)That the offender engage in rehabilitation programs as directed by ACT Corrective Services,

(c)That the offender perform 20 hours of community service within 12 months, and

(d)That the offender not contact, approach, threaten or harass [redacted] or [redacted] or cause any other person to contact, approach, threaten or harass [redacted] or [redacted] in person or by phone, phone application or any social media platform.

(7)For the offence of providing a false name to police (CAN 5692/2022), the offender is convicted. I impose a fine of $400 to be paid by 30 June 2024.

(8)Pursuant to s 19(3) of the Crimes (Sentencing) Act 2005 (ACT), I make a reparation order requiring the offender to pay $510 AUD to the victim of the offending, [redacted].

I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: 29 April 2024

ANNEXURE A

Comparative Case	Charge	Offending	Subjective circumstances of the offender	Sentence
R v Wright [2019] ACTSC 146	Assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT).	The offending involved an alcohol fuelled “one punch” attack that occurred a residential premises. The victim had been drinking alcohol with the offender and a number of other people at a licenced premises throughout the evening, and they subsequently returned to one of the group member’s home and continued to consume alcohol. The offender began to engage in aggressive conversation with a member of the group, and a short time after, the offender stood up from where he was sitting, and walked past the victim towards to use the toilet. The victim was seated, and from behind him, and outside is line of vision the offender punched the victim once in the face and yelled “get out, you’re full of shit”. The victim exited the residence.	The offender was 29 years old at the time of offending. He had three children and was in full custody of two of them. The offender had left school after year 9 and denied any illicit drug use since seven years prior, although his Pre-Sentence Report indicated daily cannabis use up to a year prior. The offender’s criminal history was non-violent and included offences involving alcohol, driving offences, and offensive behaviour.	13 months’ and 14 days imprisonment (after a 10% discount for a guilty plea) to be served by way of ICO, a condition of which was that the offender complete 100 hours’ of community service within 12 months.
Jalloh v Macklin [2012] ACTSC 99 (appeal against sentence on the grounds that the sentence was manifestly excessive, and the sentencing judge failed to give sufficient weight to the appellant’s prospects of rehabilitation)	Assault occasioning actual bodily harm, contrary to s 24(1) of the Crimes Act 1900 (ACT).	The appellant punched and kicked his domestic partner in the head a number of times, causing loss of consciousness. The victim sustained injuries including “extensive facial swelling, bruising and a comminated fracture of the right Zygomatic arch”: Jalloh at [7]. The appellant also attempted to choke his partner and hit her over the head with a chair.	The appellant had a history of violence and his criminal history involved a number of convictions including offences of common assault and assault with intent to rob and robbery in company. The appellant also had a “history of mental disorder and exposure to violence in his youth”: Jalloh at [9].	Two years’ imprisonment with a non-parole period of 18 months’ for the offending. The appeal against sentence was dismissed and the Court found the sentence imposes was appropriate, notwithstanding the appellant’s subjective circumstances.
R v Myles [2017] ACTSC 194	Recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT).	The offender punched the victim in the face after seeing his partner hug the victim and mistakenly concluding the victim was his partner’s boyfriend and that his partner and the victim “had cheated on him.” At the time of the offending the offender had consumed approximately 21 standard drinks. The offending involved the deliberate delivery of an “unanticipated, unprovoked and strong punch to the victim’s face”. The injuries sustained by the victim were serious but “not the worst type of grievous bodily harm”.	The offender was 23 years old at the time of the offending and had no significant criminal history. The offender had a history of polysubstance abuse, using cannabis heavily and regularly using cocaine. Alcohol was the offender’s “principal drug of abuse” and self-identified as an alcoholic. The offender was assessed as suitable for an ICO in which treatment would target alcohol consumption and anger management issues.	One year and 10 months’ imprisonment to be served by way of ICO, a condition of which included the completion of 249 hours of community service.
R v Lacey [2020] ACTSC 241	Causing grievous bodily harm, contrary to s 25 of the Crimes Act (ACT).	The offender was exiting a nightclub at 3:40am with a group of friends. The victim approached the group to ask for a light for a cigarette. Another male in the group “teased” the victim by holding a lighter very close to the victim’s skin. The victim pushed the lighter away, which prompted the other male to slap the victim and the offender to push him from behind. The offender then followed the victim and punched him in the jaw, causing the victim to lose consciousness and fall to the ground.	At the time of offending, the offender was subject to a Good Behaviour Order, which was imposed in respect of an assault occasioning actual bodily harm charge. The offender had a number of other convictions for common assault. The offender was a cocaine user and a binge drinker; Elkaim J made a finding that his alcohol use led to his offending. The offender was assessed as suitable for the imposition of an ICO and the offender had demonstrated “good prospects of rehabilitation” (at [30]) and attempts at dealing with his alcohol problem. The prosecution did not seek to be heard against the imposition of an ICO but suggested that additional community service conditions be included as part of the ICO.	27 months’ imprisonment to be served by way of ICO, a condition of which included the requirement the offender undertake 240 hours of community service work within 12 months from the date of sentence
R v Deng [2017] ACTSC 338	Recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT)	The offender and another male were involved in a physical altercation at a club. The victim of the offending attempted to intervene and separate the two men. During this process there was a point at which the victim was standing in front of the offender but not facing towards him. At this point the offender struck the victim in the jaw causing the victim to fall to the ground and strike his face on a solid metal table. The offending question was a single incident, did not include an element of premeditation and was assessed as being in the lower range of objective seriousness.	The offender had no relevant criminal history. From the age of 16 to 20 years old the offender engaged in binge drinking on a weekly basis. The offender took “full responsibility” for his offending and identified that alcohol and drug consumption was a “contributing factor” to the offending: at [9]. The offender was assessed as being at a low risk of recidivism owing to a  number of strong prosocial factors including a supportive family network and consistent full time employment history. He was assessed as being suitable for an ICO.	12 months’ imprisonment to be served by way of ICO, a condition of which included the requirement to attend and participate in treatment, counselling or programs relating to drug and alcohol use, or the management of mental health.