Director of Public Prosecutions v Rand

[2023] ACTSC 408

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Rand

Citation: 

[2023] ACTSC 408

Hearing Date: 

23 June 2023

Decision Date: 

27 June 2023

Before:

Refshauge AJ

Decision: 

   (1)    Adrian Richard Rand be convicted of threat to kill (CAN 9340/2022) and be sentenced to 2 years and 8 months imprisonment to commence on 16 August 2022 and end on 15 April 2025.

   (2)    Adrian Richard Rand be convicted of intentionally inflicting actual bodily harm (CAN52/2023) and be sentenced to 2 years imprisonment to commence on 16 July 2024 and expiring on 15 July 2026.

Drug and Alcohol Treatment Order

(3) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Adrian Richard Rand in respect of the primary offence of making a threat to kill (SCCAN2022/9240) of which he has been convicted and for which he has been sentenced to 2 years and 8 months’ imprisonment.

   (4)    That Order be extended to the offence of intentionally inflicting actual bodily harm (SCCAN52/2023), of which Adrian Richard Rand has been convicted and for which he has been sentenced, and which is an associated offences of the primary offence.

   (5)    It be noted that convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.

   (6)    The Drug and Alcohol Treatment Order be from today, 27 June 2023, to 15 July 2026.

   (7)    The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 2 years from today, 27 June 2023, until 26 June 2025.

(8) The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 27 June 2023, until 15 July 2026.

(9) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Adrian Richard Rand be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 27 June 2025, until the end of the total sentence, 15 July 2026, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment.

(10)    For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:

a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;

b.     Adrian Richard Rand undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time;

c.     Adrian Richard Rand not return a positive test sample under alcohol and drug testing; and

d.     Adrian Richard Rand comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.

(11)    Adrian Richard Rand be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force to before he leaves the Court precincts.

(12)    Adrian Richard Rand be directed to appear on Friday 30 June 2023 at 12:30pm.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – threat to kill – intentionally inflicting actual bodily harm – family violence – offending associated with drug use – Drug and Alcohol Treatment Order made

Legislation Cited: 

Family Violence Act 2016 (ACT), Dictionary, ss 8 and 9

Crimes (Sentence Administration) Act 2005 (ACT), s 85

Crimes (Sentencing) Act 2005 (ACT), ss 10, 33(1), 34(b), 35, 46J, 46K, 62, 80W, 80Y, 80ZA

Crimes Act 1900 (ACT), ss 23, 30

Cases Cited: 

Beniamini v Craig [2017] ACTSC 30

R v Bell [2005] ACTSC 123

R v Bonfield [2021] ACTSC 362

R v Crawford (No 1) [2020] ACTSC 248

R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179

R v Peric (No 3) [2022] ACTSC 387

R v Rogers [2021 ACTSC 355

R v Fredes [2020] NSWSC 1332

R v Campbell (No 4) [2019] ACTSC 240

R v Day (No 2) [2022] ACTSC 352

R v Forrest (No 2) [2017] ACTSC 83

R v Loulanting [2015] ACTSC 172

R v Nicholas; R v Palmer [2019] ACTCA 36

R v Rogers [2021] ACTSC 355

R v Tresize (Unreported, ACT Supreme Court, 7 September 2012, Nield AJ)

Parties: 

Director of Public Prosecutions ( Crown)

Adrian Richard Rand ( Offender)

Representation: 

Counsel

M Howe ( DPP)

C Duffy ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 280 of 2022

SCC 281 of 2022

REFSHAUGE AJ:     

Introduction

1․The Court has often remarked on the seriousness of family violence offences and the need for them to be taken as seriously as they clearly are: see, for example, R v Bell [2005] ACTSC 123 at [30]; Beniamini v Craig [2017] ACTSC 30 at [1]-[2]; R v Bonfield [2021] ACTSC 362 at [1]-[4]; R v Peric (No 3) [2022] ACTSC 387 at [1]. It is also sometimes connected with the use of alcohol or illicit drugs: see, for example, R v Rogers [2021 ACTSC 355 at [3]-[6].

2․The causes of such offences are, as explained in the R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at 192 [67]-196 [88], often the attitude to women or the relationship, which encourages, accepts, or at least minimises unhealthy interactions through violence, coercion and domination.

3․Thus, the prospect of seeking reform can be doubly challenged by the need to address two habits, the attitude to relationships and the dependency on drugs. There has, however, been some success in this, under the programs presented in the Drug and Alcohol Sentencing List of the ACT Supreme Court.

4․In this context, the Court is now required to sentence Adrian Richard Rand, who has pleaded guilty to an offence of intentionally inflicting actual bodily harm and of making a threat to kill another person. Mr Rand has asserted that the offences were substantially contributed to by his dependency on illicit drugs. He has sought that any sentence of imprisonment be served by a Drug and Alcohol Treatment Order (Treatment Order) made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

5․Since the victim of the offence of making a threat to kill is or was an intimate partner of Mr Rand, and so a family member, the offence is a family violence offence: see ss 8 and 9 and the Dictionary to the Family Violence Act 2016 (ACT).

6․At sentencing, the Prosecution, represented by Mr M Howe, tendered without objection the prescribed Prosecution Tender Bundle. Behind the helpful and required Cover Sheet, it included the indictment to which Mr Rand had pleaded guilty, an agreed Statement of Facts, Mr Rand’s Criminal History, a Pre-Sentence Report dated 21 April 2023, a police Statement of Facts of two prior offences, of which Mr Rand had been convicted, and an email setting out the contents of some telephone conversations Mr Rand had made to his former partner and others.

7․Because of his request for consideration to him being subject to a Treatment Order, the Court ordered preparation of Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act of Mr Rand. These were prepared and included in the Tender Bundle. These were the Drug and Alcohol Sentence List Suitability Assessment Report dated 13 June 2023 of Alcohol and Drug Services, with a Case Plan, and the Drug and Alcohol Treatment Assessment dated 16 June 2023 of ACT Corrective Services. A letter from Karralika Programs Inc dated 13 June 2023 was also included.

8․Ms C Duffy who appeared for Mr Rand tendered without objection a letter dated 21 June 2023 from Mr Rand and a letter dated 21 June 2023 from the Canberra Recovery Hub, an agency of the Salvation Army, which provides a structured day program for people experiencing problems associated with alcohol or other drug use. The program is provided in a community setting to include one-to-one support and case work, therapeutic and educational group services and referral to other services, programs and residential facilities.

9․None of the contents of this material was challenged. In addition, Mr Howe provided helpful and targeted written submissions, and both he and Ms Duffy provided oral submissions that were of assistance to the Court, as well as engaging in respectful debate and answering the Court’s questions.

10․From this material, the following findings are made.

The Facts

11․Mr Rand and the female victim had been in an intimate relationship from about 2019. By 2022, however, the relationship had become somewhat strained as they spent less time together.

12․On 6 July 2022, they exchanged text messages, in which Mr Rand appears to wish her well with the male victim. Later, the male victim attended the property where the female victim lived, and the two friends had dinner together.

13․After dinner, the two victims retired to the female victim’s bedroom to watch television. They fell asleep, fully clothed, on the bed.

14․Mr Rand then went to the house on an electric scooter, which he parked in the driveway. He entered the backyard of the premises through the side gate, entered the house through the rear sliding door, and went to the bedroom of the female victim, where the lights were off but the television was on.

15․He called the female victim a “fucking slut” and told the male victim to “get the fuck out”. He then left the bedroom and the house. He remained outside for about 5 minutes, during which time he sent a text to a friend that he had found the female victim in bed with a man and that she was a slut. He then texted the female victim with sexualised abuse and adding, of the male victim, “And him … a dead man walking”.

16․While it is not clear on the evidence that the female victim had read the message, Mr Rand’s plea of guilty accepts that she had, and that he intended her to fear that the threat would be carried out, or, at least, he was reckless as to whether or not she would fear that. There was, of course, no lawful excuse for the threat and, given his earlier expletives, it appears that the circumstances made it reasonable that she would fear that it would be carried out.

17․These were the facts that were the basis for the charge of making a threat to kill another person, namely the male victim.

18․Mr Rand then returned to the bedroom, carrying a bowie knife, being a large fixed-blade fighting knife. He stood next to the bed, but not blocking the doorway.

19․He verbally abused the female victim and yelled at the male victim to “get the fuck out”. Fearful of being attacked, especially as he had noticed the knife in Mr Rand’s hand, the male victim grabbed Mr Rand and punched him. The two fell onto the bed and scuffled with one another. During the scuffle, the male victim was at one stage on top of Mr Rand. He felt something in his back. Mr Rand managed to throw the male victim off him.

20․At some point in the scuffle, Mr Rand intentionally stabbed the male victim twice in the back.

21․The two other people in the house, who had earlier dined with the victims, heard the commotion and came to the female victim’s bedroom. They saw what was happening and yelled at Mr Rand to leave, which he did.

22․The male victim felt a warm fluid running down his back and noticed a lot of blood on the floor. One of two other occupants called the police, who attended with ambulance officers. The male victim was taken to the hospital and treated for the wounds, which were of a depth of approximately 4.5 centimetres and 3 centimetres respectively. They were cleaned and irrigated, and he was discharged.

23․These were the facts that led to the charge of intentionally inflicting actual bodily harm.

24․Mr Rand kept texting the female victim until he was arrested at about 5.15 pm on 8 July 2022. The text were crude expressions of abuse about what, on the facts, turns out to be untrue, at least on that night, of a sexual relationship between her and the male victim.

25․Mr Rand made some admissions on interview after his arrest. He admitted that he was pretty upset when he saw the two victims in the bedroom. After going outside, he sent the threatening text, returned with the knife but had no intention of using it.

26․When remanded in custody, Mr Rand kept telephoning the female victim, but she did not answer. He then phoned other people, continually complaining of what he thought was a sexual relationship between the two victims. In these messages, he attempted to suggest that the female victim had some responsibility for the offending.

27․Worryingly, he also said, “I got accepted to rehab not that I'd really want to go to rehab but it's better than where I am.” He also said on 22 August 2022, “I'll put in a COVID claim as soon as I get out, then I won't have to go to rehab for a week.” He also made claims of being of Aboriginal heritage when in jail, which he describes as, “Just something I pulled.”

The Proceedings

28․As noted above, Mr Rand was arrested on 8 July 2022 and was refused bail by the police. He appeared in the ACT Magistrates Court the next day and was remanded in custody.

29․The current charges were actually not proffered until 6 October 2022, and he pleaded not guilty to them on 27 October 2022.

30․After several adjournments, Mr Rand was committed for trial on 27 October 2022 to this Court. Bail was refused on 29 November 2022. Later, he applied for bail againand, on 16 May 2023, it was granted. Thus, he had been in custody for 315 days since his arrest. This custodial period on the charges he now faces must be taken into account on sentence.

31․The proceedings were listed for a criminal case conference on 9 and 14 February 2023 and, as a result, a new indictment was presented. On 8 March 2023, he pleaded guilty to the charges he now faces. That justifies some discount on the sentence to be imposed. He was referred to the Drug and Alcohol Sentencing List and, on 21 April 2023, Suitability Assessments were directed to be prepared.

The Offences

32․Having found the facts, as has been done, the Court, in order to impose a just and adequate sentence, must consider the other factors that s 33(1) of the Sentencing Act requires to be taken into account.

33․The first of these is the nature and circumstances of the offence: s 33(1)(a) of the Sentencing Act, which in common law is the objective seriousness of the offence.

34․This requires the Court to have careful regard to the maximum penalty which the legislature has set for the offence. It sets the penalty for the worst category of offence and a comparator for the seriousness of other offences. Taken with all the other relevant factors, it provides a yardstick.

35․Making a threat to kill is an offence against s 30 of the Crimes Act 1900 (ACT) (‘Crimes Act’), which provides for a maximum penalty of 10 years imprisonment. It is thus a serious offence. As with many offences, perhaps most, this offence can be committed in many ways and, in order to assess the nature and circumstances of the actual offending actually committed in this case, the Court needs to have regard to the factors that Sentencing Courts and Appellate Courts have identified as the aggravating and mitigating factors in deciding sentencing appeals.

36․The surrounding circumstances are relevant: see R v Loulanting [2015] ACTSC 172 at [32]. Here that includes the fact that Mr Rand was able to get into the bedroom earlier and his anger and outburst when he got into the room. These would have been of significant relevance to the fear that the female victim would have felt about the possibility of the threat he later made being carried out. It was also reinforced by the fact that he returned shortly after sending the text with the threat, but carrying a knife, and not a small one, with which he could have carried out the threat. Having the means of giving effect to the threat is clearly an aggravating factor. The incident was an offence of family violence, which also aggravates the seriousness of the offence.

37․Section 34(b) of the Sentencing Act thus applies, as, indeed, it is a serious family violence offence because of the maximum penalty. Thus, it is important to take into account that the offence occurred in the home of the female victim. There was no child present and, while Mr Rand has been convicted for family violence offences, they were not serious family violence offences, and so are not mandated for further consideration. They do, however, show stark similarities which, apart from the section, show an ongoing attitude of Mr Rand to the women of whom he has a relationship, and, in particular, the possessiveness and jealously shown, which is of an explosive and dangerous nature. This attitude is also shown in his attempts to blame the female victim, an attitude that requires a stern response: R v Fredes [2020] NSWSC 1332 at [44].

38․Further, it also involved the production of a knife. Courts have always regarded the use of knives as a serious matter: R v Forrest (No 2) [2017] ACTSC 83. They are relatively easily obtained and can cause really serious harm up to and including death. While it can be accepted that the threat by itself was not so serious, the subsequent re-entry and production of the knife would have instilled great fear in the female victim.

39․Regrettably, there is no Victim Impact Statement and so the exact feelings of the female victim, and any consequential problems she has suffered as a result, can only be accepted in general terms, but that must be done.

40․Intentionally inflicting actual bodily harm is made an offence by s 23 of the Crimes Act, and that attracts a maximum penalty of 5 years’ imprisonment. By that measure, it is not as serious an offence as the making of a threat to kill, but of course, the particular circumstances are important. The offence itself can be committed in two ways under the section: with an intention or recklessly. Here, the offence is charged as an intentional one, and it is to that to which Mr Rand has pleaded guilty. This is a more serious version of the offence.

41․The use of the knife, as noted above at [38], is a matter that the Courts take seriously and which aggravates the offence. The situation in which the stabbing occurred was that it was in the bedroom of the female victim. The male victim had been sleeping and was in a vulnerable position. He clearly had woken up at the stage when the fight broke out, noticed the knife, and had the presence of mind to try to deflect the attack by himself attacking Mr Rand, but Mr Rand gained the upper hand.

42․The offences were not premeditated, but it was an immediate response. It appears that Mr Rand thought of, at least, confronting the male after he had left the residence upon finding the two on the bed. The injuries were also serious. They were, of course, two stab wounds. They did not, as often happens, require the male victim to be admitted into hospital. It seems likely that they were sutured but even that fact is absent on the evidence, and he was discharged after about four and a half hours. Again, there was no Victim Impact Statement and, accordingly, any particular problems that the male victim had, either at the time or subsequently, are not within the evidence before the Court.

Subjective circumstances

43․The next matter that the Court must consider are the personal circumstances of Mr Rand. Section 33(1)(m) of the Sentencing Act and other paragraphs as well make that clear.

44․Mr Rand was born 37 years ago, and, it appears, his father left the home before or soon after. He was raised solely by his mother until she remarried. His stepfather, however, drank alcohol and engaged in violence, both physical and verbal, including Mr Rand as a victim.

45․After leaving home and being on the streets for some time, Mr Rand moved to Adelaide at age 15 to live with his biological father. He finished his year 10 schooling there. He then returned to Canberra, but only lived with his mother for about three months before being on the streets again and in the refuges because of the continuing abuse by his stepfather.

46․After 3 months, he was allocated some housing,but, after an incident where associates trashed the house, he moved out. He later purchased a house with his then partner when he was 30.

47․After leaving school, he later tried to complete Year 11 but was unable to do so, because, as he says, his Attention Deficit Hyperactivity Disorder (ADHD), made it impossible. He has, however, completed a Pest Control Licence and a Certificate in Construction. He also is reported to have a Certificate as a Broadband Service Technician.

48․He appears to have left Canberra for about 7 years when he was 18 years old, working and living interstate. He returned at age 25 and resumed positive contact with his mother, as his stepfather, following a motorcycle accident, had received a compensation payout and moved to Queensland. His relationship with his mother is now very positive and he meets with her every week. She will support him if he is sentenced to a Treatment Order.

49․Mr Rand has had two significant relationships. One began when he returned to Canberra and was positive unless she abused alcohol when his partner would become violent. The relationship broke down when he was 32 years of age.

50․He formed a relationship with the female victim about 4 years ago and it was positive. His partner, however, used illicit drugs and that caused problems. He said the relationship ended in November 2022. He is presently single. He has no dependents.

51․Mr Rand conducted his own roof restoration business from about 2016, after working for about 3 years for the previous owner, from whom he bought it. His arrest and further custody have prevented him from working in the business, and he is looking at options for the future. He could not revive the business immediately if subject to a Treatment Order. He is currently a recipient of Jobseeker payment through Centrelink.

52․Mr Rand has some prosocial associates, who are not users of drugs, and he has reconnected with them since he was granted bail.

53․Mr Rand reported no current physical problems or issues. He is, as noted at [47], subject to ADHD, for which he received a diagnosis at age 15. He has some treatment, though that did not continue while he was in custody on remand.

54․He has also had a diagnosis of depression and anxiety, for which he has been prescribed medication.

55․Mr Rand started drinking alcohol when he was 13 years old. He “binged” out on it, saying that he would drink “as much as I could get my hands on because I abused it as a teenager”. He said that he does not drink alcohol anymore and he did not enjoy the effect of it on his behaviour. He was, however, drinking about 3 drinks a day for about 12 months before his current arrest.

56․He first smoked tobacco at about the same age and continues to do so. He has his first cigarette shortly after he wakes up, and smokes about 15 cigarettes a day.

57․He used cannabis for the first time when he was about 13 or 14 years old. Initially, he used sporadically but ceased using in his mid-20s or later. He has not used since then.

58․His primary drug of choice is methamphetamine, which he first used when he was in his mid-20s. Since then, he has smoked one to two grams a day. He gave it up when arrested for these offences and says that he has not used it in custody since then. Five drug tests conducted in that time have all returned negative results.

59․Mr Rand has had some Alcohol, Tobacco, and Other Drug Treatment. He attended the Ted Noffs Rehabilitation Program as a 16-year-old but left after about 6 weeks or 2 months. He commenced engaging in individual counselling with the Directions Health Services from mid-2019. He completed Alcohol and Drug Awareness (Harm) Preventive Training in November 2019. When in custody, he also completed six programs, including, importantly, conflict resolution. When granted bail, he reconnected with the Directions Health Services where he sees the General Practitioner regularly.

60․He is also engaged with the Canberra Recovery Hub, which is confirmed by the letter in evidence from the agency. He has also been assessed as suitable for the Matrix Program of Karralika Programs Inc, where he may be admitted on 10 July 2023.

61․Mr Rand has a prior criminal record. His first offending was in New South Wales in 2006 when he was convicted of possession of drugs. Since then, including that offence, his record shows 14 offences both in New South Wales and the ACT.

62․Apart from an offence of having stolen goods in custody and two offences of driving while suspended, his prior offences are mainly drug related, family violence or weapons charges. He has five offences of driving with a drug in his oral fluid, an offence of common assault and possession of a weapon, both family violence offences and possession and supply of drug offences all on his record. He has served a prior prison sentence and has also been subject to an Intensive Correction Order. He breached the order for continued use of drugs, and when resentenced for breaches and a further order was made, he further breached it with drug use. He was then incarcerated for the balance of his sentence. He has also served a period in custody for driving offences.

63․Mr Rand presented as polite, future focused and engaged with the assessment process for his Suitability Assessments.

64․He explained that prior to the current offences he had been drinking and using drugs. This, he said, had triggered him his offending. He says that “it was impulsive because I was on ice instead of my meds and I made a lot of mistakes that night”. He says that he regrets everything about it and that he should not have had the knife. He did identify how the offences would have affected the female victim, his former partner.

65․This is confirmed in his letter to the Court, where he also expressed that he “deeply regret[s]” the offending. He engaged with rehabilitation agencies as soon as he was granted bail and is committed to it, despite his rather equivocal statement on the phone from the Alexander Maconochie Centre.

Current Sentencing Practice

66․Section 33(1)(za) of the Sentencing Act requires the Court to take into account current sentencing practice so far as it knows it.

67․This can be done by inspecting the ACT Sentencing Database. Though it has significant limitations, it can provide some information.

68․The Database shows that, for making an intentional threat to kill, there were 3 sentences recorded: 2 of full-time custody and one of 4 months fully suspended. The full‑time custody were of periods of between 2 and 3 years.

69․The Prosecution did refer to some comparable cases. This is the other way to assess this consideration and usually more helpful as it gives more detail of the cases than is recorded in the Database and applies the principles. Not all of the offences were of the offence of a threat to kill, but there was some value in the information provided.

70․The decisions, all of which have been considered were R v Rogers [2021] ACTSC 355, R v Day (No 2) [2022] ACTSC 352, and R v Loulanting [2015] ACTSC 172. For the offence of intentionally inflicting actual bodily harm, the comparable cases were R v Campbell (No 4) [2019] ACTSC 240; R v Tresize (Unreported, ACT Supreme Court, 7 September 2012, Nield AJ).

71․The terms of imprisonment for intentionally inflicting actual bodily harm, recorded in the Database, were from 8 months’ imprisonment to 4 years’ imprisonment.

Consideration

72․In order to determine the sentence, the Sentencing Act sets out the purposes for which a sentence may be imposed: see s 7 of the Sentencing Act. These do not always point in the same direction and must be considered carefully. To provide a sentence that is just and adequate, the Court must engage with these purposes and all the factors required to be addressed and engaged in an instinctive synthesis of them.

73․Violence is certainly a very serious matter and leads to great distress to the victims but also disrupts the peace of the community as a whole. There must be consequences, and punishment is important.

74․Though there is debate about it, this will, at least to some extent, also deter others who may intend to engage in the same conduct from doing so. It will, importantly, acknowledge the harm done to the victims and denounce the conduct. This is also directed to protection of the community, that is, in reality, the purpose of the criminal law.

75․In this regard, consideration must also be given to rehabilitation which, if achieved, can be an important part of such protection.

76․Mr Rand pleaded guilty after the criminal case conference. This does justify some discount on sentence under s 35 of the SentencingAct. The evidence was very strong, but not overwhelming as there were issues of intentionality that could have been advanced though not necessary because of his plea. A modest discount is available and this has been accepted: R v Nicholas; R v Palmer [2019] ACTCA 36.

77․Mr Rand's childhood disruption leading to experiences of family violence, homelessness, and interrupted schooling, although rather limited, is also relevant and moderates his moral culpability.

78․The offences were part of a course of conduct, and, while it is important that each one be the subject of a proper sentence, this has some moderating effect on the sentence to be imposed.

79․The nature and circumstances of the offending is important, as are the personal circumstances of Mr Rand. These have been addressed above. His early introduction to drug use, though not so much to his drug of choice, is also relevant.

80․The harm done to the victims is important and must be considered, despite the absence of Victim Impact Statements. The plea of guilty is also relevant. His efforts of rehabilitation must also be taken into account.

81․Nevertheless, the seriousness of the offences is significant. Having considered all of the alternatives, no sentence other than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act. The time that Mr Rand has spent in custody is important and that will be taken into account by backdating the start of the sentence: s 62 of the Sentencing Act.

82․Given that there are two offences, the principle of totality needs to be respected. This requires the Court after imposing the sentence for each offence to have “a last look” to see that the aggregate sentence is not excessive, but appropriate and will leave room for Mr Rand to achieve his objectives when released.

[His Honour spoke directly to Mr Rand]

83․Mr Rand, please, stand.

(1)I convict you of making a threat to kill (CAN 9340/2022). I sentence you to 2 years and 8 months imprisonment to commence on 16 August 2022 and expire on 15 April 2025. Had you not pleaded guilty I would have sentenced you to 3 years imprisonment.

(2)I convict you of intentionally inflicting actual bodily harm (CAN 52/2023). I sentence you to 2 years imprisonment to commence on 16 July 2024 and end on 15 July 2026, that is to be cumulative as to 15 months on the sentence for making a threat to kill. Had you not pleaded guilty I would have sentenced you to 2 years and 5 months imprisonment.

84․You may be seated.

85․It is necessary, however, to determine how that period of imprisonment is to be served as there are various methods available under the Sentencing Act. Mr Rand has sought that a Treatment Order be made to help him address his drug dependency. Since that is the most significant cause of his offending, it's appropriate to address this first.

86․To do so, it must be determined whether Mr Rand is eligible for such an Order to be made for him. The eligibility criteria are set out in ss 12A and 80S of the Sentencing Act. Those in s 80S are really a question of whether he is suitable for such an order to be made and whether there are appropriate arrangements for its administration. That can be addressed later when suitability is considered.

87․It is first necessary then to address eligibility. Mr Rand has been sentenced to a term of 2 years and 8 months imprisonment for the primary offence, which is the offence of making a threat to kill. That is more than the minimum period of eligibility for a Treatment Order to be served, namely, 12 months imprisonment, and less than the maximum eligible period, namely, 4 years imprisonment. He pleaded guilty to the offence. He pleaded guilty to the other offence, which is also, as both offences are, eligible offences.

88․The total period of sentence, which is 3 years and 11 months, is below the maximum eligible period of 4 years. The Suitability Assessments of Alcohol and Drug Services have assessed Mr Rand as likely to have a severe substance use disorder (dependence). No challenge was made to this assessment and it is consistent with his history, and it is accepted. He also said that he was under the influence of methamphetamine and alcohol at the time of the offending. Again, no challenge was made to that and, again, it is accepted.

89․Mr Rand has lived elsewhere in Australia but Canberra is really his home. The Court is satisfied that he will be a resident in Canberra for at least the period of the sentence.

90․Mr Rand has signed a form consenting to the making of a Treatment Order. It also shows, as do the Suitability Assessments, that he has had a clear explanation of the Treatment Order and his obligations under it, were one to be made for him. He has had an opportunity to ask any questions he has about a Treatment Order and had them answered in terms that he appeared to understand. He has, accordingly, has sufficient information to make an informed decision about whether to consent to the making of a Treatment Order, which he has done.

91․Mr Rand is, accordingly, eligible for a Treatment Order to be made for the serving of this sentence.

92․Thus, the real issue for the Court, and as required by s 80S of the Sentencing Act, is whether he is suitable for the making of a Treatment Order and whether appropriate arrangements can be made.

93․The Court has considered carefully the Suitability Assessments, which have been carefully, professionally, and comprehensively prepared. No challenge was made to any of their contents. No pre-sentence report has been prepared.

94․Both Suitability Assessments recommend that Mr Rand is suitable under the regime of s 80T of the Sentencing Act. The case plan prepared by Alcohol and Drug Services proposes that he commence at the Matrix Program of Karralika Programs Inc. That program is described in R v Subasic (No 2) [2023] ACTSC 79 at [25]-[26]. Accordingly, there are arrangements for the administration of the Treatment Order, which are entirely appropriate.

95․There are no matters mentioned in Table 46K of the Sentencing Act that would make it inappropriate for a Treatment Order to be made for Mr Rand. Finally, although the sentence of imprisonment has commenced on 16 August 2022 so that he has served part of the sentence already, and it will therefore be partially suspended on the making of a Treatment Order, this does not prevent a Treatment Order being made for Mr Rand for the reasons set out in R v Crawford (No 1) [2020] ACTSC 248 at [91]-[111].

[His Honour spoke directly to Mr Rand]

96․Mr Rand, please stand.

(3)I order that a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act be made for you in respect of the primary offence of making a threat to kill (CAN 9340/2022), of which you have been convicted and for which you have been sentenced to 2 years and 8 months imprisonment.

(4)The Order is extended to the offence of intentionally inflicting actual bodily harm (CAN 52/2023), for which you have also been convicted and for which you have been sentenced and which is an associated offence of the primary offence.

(5)It is noted that the convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.

(6)The Drug and Alcohol Treatment Order is from today, 27 June 2023, to 15 July 2026.

(7)The treatment and supervision part of the Drug and Alcohol treatment Order be for 2 years from today, 27 June 2023, until 26 June 2025.

(8)The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 27 June 2023, until 15 July 2026.

(9)Under s 80ZA of the Crimes (Sentencing) Act 2005, you are required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the treatment and supervision part of the Drug and Alcohol Treatment Order, that is 27 June 2025, until the end of the total sentence, 15 July 2026, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.

(10)For the treatment and supervision part of the Drug and Alcohol Treatment Order, the core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 are hereby imposed:

(i)You are to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the treatment and supervision team and obey all reasonable directions of any member of that team about where you reside, with whom you associate and your attendance from time to time.

(ii)You are not to return a positive test sample under alcohol and drug testing; and

(iii)You are to comply with any directions of the Court from time to time about attendance in court in person or by electronic means.

(11)You are directed to attend the court registry before you leave the Court today to sign a sealed copy of this order and an undertaking to comply with the order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that the order is in force; and

(12)You are directed to appear in this Court on Friday, 30 June 2023 at 11.30 am.

[His Honour spoke directly to Mr Rand]

97․Mr Rand, that is the formal part of the proceedings and that is a lot of words.

98․You have not been in the Courts that often, but you probably understand most of what is going on, after all, most of it is about you and about what you have done.

99․These were very serious offences and, therefore, a serious sentence has been imposed, but I do not require you to serve any further time in custody, provided that you comply with the Drug and Alcohol Treatment Order, and the silly stuff you said on the phone from AMC is gone, not revisited.

100․There will be quite a lot of supervision of you one way and another. You will have two case managers, one from Corrective Services and one from Alcohol and Drug Services, and they are people who will both supervise you but also support you.

101․This Court is designed to work towards you being crime and drug free and it takes time, and even though you have done really well so far, and you are well into the program and so on, Matrix is quite a hard program and there will be challenges over time.

102․You have still got triggers, you are still and probably will always be at risk of dependency, but your ability to manage that and move forward will improve very significantly over time. If you want this, then this is the right place to come. The Court will support you the best it can, but only if you do the right thing.

103․So, urinalysis three times a week initially, case management, attendance at programs, all the rest of it and coming to court. You will see me or another judge, but at the moment me, quite regularly for the first few months or so. That is an opportunity for me to see how you are going, to congratulate you if you are going well, to punish you or sanction you if you are not. Sanctions are usually a warning or a point, what we call a point. A point is a day in custody. We generally do not put you into custody until you have earned seven points, but I can do it up to as few as 3 at a time, or up to 14, depending on the circumstances of it, and then we see as a possible reset and so on.

104․If you commit any offences, if they are offences that subject you to imprisonment, the order is cancelled automatically. There is no discretion about that. If you are not doing well, there are things you can do. The first is to talk to your case managers. They are there, as I said, to supervise you but they are also to support you. They want you to succeed if it is at all possible, but that means working hard and you doing work because we cannot do it, you have got to do it yourself. You are smart enough, intelligent enough, been around long enough to know how this works and we will identify what is going wrong.

105․You generally cannot hide that from us, and I am not saying that to frighten you or to worry you but to just say the reality is if you want this, not back through that door to the AMC, then what you need to do is work hard and make sure that you are committed to a future that is the kind of future that you want. Now, one of the things that we will consider is a family violence prevention program. They can be pretty hard and they can be pretty challenging but most of the people who have done them through this program have found them ultimately to be very valuable to them and they have learnt a lot of insight about that.

106․The other thing that is really important is not to run away. Come into Court, keep your programs, do the right thing. If you run away, almost all, unfortunately not all, but almost all of those have been brought back, and almost inevitably they end up in prison. If things are going tough and you have to be discharged, there are some other options, so do not run away because you think, well, I am going back to prison. If you come back, that is a big sign that you are committed and we will look at other options if we have to, but preferably keep on the straight and narrow. Do this program and do it right.

107․The final thing that I need to say is that honesty is really important. None of this macho rubbish. Honesty is important. Of course, you have got to be honest to me because I am a judge and therefore telling me lies is perjury. That is an offence, but to your case managers and to your counsellors, it sometimes can be hard to open up and confront some of the problems that you have and so on. Ultimately it will strengthen you. The other thing is to be honest with yourself. It is very easy to say that was not really bad because if you admit it is bad, that can be shaming and shaming is not something that you feel good about, but it is actually quite a good emotion because it teaches you where the boundaries are, what is right and what you do not need to do.

108․We have all got things we are ashamed about. I have got things that I am ashamed about. I am not going to share them with you, but, you know, we do and it helps us to know how we should not act, where we should go in the future and not being honest with yourself minimising what you have done because you want to feel good about yourself and not feel judgmental about what you have done is actually not helping you in this process. It can be hard. I hope this works. I think you are a really good prospect, but I cannot choose them. I can only offer you this opportunity and I hope that it works. So put your nose to the grindstone, put your shoulder to the wheel. You clearly are able to do that. You had a roofing restoration business for 10 years. You know, we need that kind of construction. We need good people in the community who actually understand the proper and respectful relationships with partners that crime is not of help to you or to the community and drugs just get in the way. So I wish you all the best.

I certify that the preceding one hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge

Associate: Julia Liu

Date: