DPP v Rohrlach
[2023] ACTSC 166
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Rohrlach |
Citation: | [2023] ACTSC 166 |
Hearing Date: | 19 June 2023 |
DecisionDate: | 5 July 2023 |
Before: | McWilliam J |
Decision: | 1. For the offence of CC2022/271, choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) a sentence of 6 months and 4 days imprisonment is imposed, reduced from 7 months on account of the guilty plea, to commence on 4 July 2023 and conclude on 7 January 2024. 2. For the offence of CC2022/7408, the second charge of choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT), a sentence of 7 months and 1 day is imposed, reduced from 8 months on account of the guilty plea to commence on 4 August 2023 and conclude on 4 March 2024. 3. The total sentence of 8 months and 1 day will be suspended from 5 July 2023 on the condition that the offender enter into a good behaviour order for the remainder of the sentence (5 July 2023 to 4 March 2024) and undertake to comply with the obligations under ss 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT). I impose the following additional condition: (a) That the offender continue to attend any rehabilitation or intervention program and be subject to such supervision through Corrective Services, that the Director-General or their delegate considers to be appropriate. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offence of choking – where victims were children – where conduct was of lower objective seriousness – where offender had presence of childhood trauma and social disadvantage – suspended sentence imposed |
Legislation Cited: | Crimes Act 1900 (ACT), s 28 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 35, 53 Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 86 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cranfield v The Queen [2018] ACTCA 3 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | Director of Public Prosecutions Bradley Wayne Rohrlach ( Offender) |
Representation: | Counsel M Dyason (Director of Public Prosecutions) T Sharman ( Offender) |
| Solicitors ACT Director of Public Prosecutions Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 275 of 2022 |
McWILLIAM J
The offender, Mr Bradley Wayne Rohrlach, has pleaded guilty to two counts of an act endangering health by choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (CC2022/271; CC2022/7408). The maximum penalty for each offence is 5 years’ imprisonment.
Facts of the offending
The facts are agreed and summarised as follows.
At approximately 7:00pm on 30 July 2022, the two child victims, KI and QG, were at Watson oval with two of their friends. While at Watson oval, one of the victims’ friends contacted the stepson of the offender, OL, by telephone and invited him to join them.
When OL arrived, the boys played a game of “slap boxing”. During the game, KI claimed that OL broke the rules. KI said he responded by hitting OL in the eye and nose. OL became upset and went home and told his mother that he had got the better of KI in a “slap box” contest. He told his mother that KI, QG, and one of their friends had then “jumped him”.
At approximately 8:40pm that same evening, KI, QG, and their two friends returned to KI’s home for a sleepover. Also at the home were KI’s father and younger sister.
Shortly after, at approximately 9:00pm, the younger sister of KI heard a voice calling out from outside the front door and then the hallway. She saw the offender and OL’s mother inside the house, who asked, ‘Where’s [KI]?’, before they proceeded to enter KI’s bedroom.
Inside the bedroom, KI was standing in the doorway. QG and one of the friends were sitting on the bed. The other friend was sitting in a chair. The victims and their friends heard the door handle open and the offender said, ‘Hello [KI] … Well, you boys, we’re going to have a talk’. KI told them to, ‘Get out of my room’.
The offender then walked towards KI, put him in a headlock with his right arm and pulled him onto the bed. The offender and KI dropped to the bed, with the offender on top of KI (first count of offending).
The offender then reached out with his left hand and momentarily grabbed QG by the neck, which restricted QG’s ability to breathe (second count of offending).
The offender then released KI and QG and began to disentangle them from the bed.
By this time, KI’s father had come into the bedroom and recognised the offender and OL’s mother. KI and QG were seated on the bed, with the offender in the process of getting off the bed.
KI’s father said, ‘What the fuck is going on? Get the fuck out’. After some further yelling from the offender and OL’s mother, KI’s father tried to diffuse the situation and said, ‘We’ll sort this out tomorrow, just get out’. The offender and OL’s mother left the room and walked out of the house.
After the offender had left, KI’s father called Triple 0 and reported the incident, with police statements being taken the following day from KI, his father and his sister. QG and the two friends later took part in recorded interviews.
On the evening of 31 July 2022, police arrested the offender at his home. OL’s mother was also arrested and provided an interview to police, during which she agreed that the offender had gone into “Dad mode” and raised his voice throughout.
The offender’s custodial status
Following his arrest, the offender spent a period of time in custody referable to both the current offences as well as prior offences. He has been the subject of a grant of bail since 31 October 2022. By reason of a backdated sentence, only one day in custody is referable to the current offending.
The Court’s sentencing task
The Court’s task on sentencing the offender is discussed repeatedly among the authorities. Explaining the sentencing objectives and considerations is nevertheless an important part of delivering reasons on sentence, as much as for the benefit of explaining them to the particular offender and to those who may be reading a sentencing judgment for the first time, as for demonstrating that each of the sentencing objectives has been given due consideration.
Regard must be had to the relevant sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which are as follows:
7 Purposes of sentencing
(1)A court may impose a sentence on an offender for 1 or more of the following purposes:
(a)to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
(b)to prevent crime by deterring the offender and other people from committing the same or similar offences;
(c)to protect the community from the offender;
(d)to promote the rehabilitation of the offender;
(e)to make the offender accountable for his or her actions;
(f)to denounce the conduct of the offender;
(g)to recognise the harm done to the victim of the crime and the community.
(2)To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.
Individualised justice
A central part of the Court’s task is working out what constitutes “justice” for the particular individual before the Court. In MT v The Queen [2021] ACTCA 26; 17 ACTLR 22, the Court of Appeal stated at [56]:
The principle of individualised justice is central to all sentencing exercises; any sentencing court is required to impose a sentence that is just and appropriate in all the circumstances, including the circumstances personal to the offender.
The application of that principle means that in imposing a sentence which balances the need for denunciation, punishment, and general and specific deterrence against the need to support and promote an offender’s rehabilitation, the sentence that is just and appropriate is uniquely crafted for that individual offender.
As can be seen from s 7 above, the sentencing objectives also play a role in recognising the harm to the victim, empowering the victim through their participation in the sentencing process and, if it is practicable and appropriate, engaging the offender in repairing damage done to the victim or their property.
In considering what is necessary to protect the community, general deterrence has a role to play, as does the period of imprisonment to some extent, but sometimes what is necessary to protect the community will be to craft a sentence that promotes the rehabilitation of the particular offender, to address underlying causes or criminogenic risk factors. A period of supervision through corrective services may be appropriate to ensure that an offender has a degree of support and structure while remaining in the community. Such supervision may not be achieved by a lengthy term of imprisonment. It is therefore not always in the community’s protective interest to lock someone up. I will return to that matter at the end of these reasons.
It is also important to keep in mind what was said in Thorn v Laidlaw [2005] ACTCA 49 at [30], in that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives.
In implementing these objectives, the Court must have regard to the various considerations set out in s 33 of the Sentencing Act. The nature and circumstances of the offence (s 33(1)(a)) have already been set out above. To the extent that other considerations listed in s 33 are relevant, they have been included in the discussion that follows.
Plea of guilty (s 33(1)(j) of the Sentencing Act)
The offender pleaded guilty on the first day of a three-day trial, following negotiations in the week prior to the trial. This is a case where there is a real likelihood that the Court will sentence the offender to imprisonment (s 35(1)(b)).
Section 35(3) of the Sentencing Act provides for the Court to impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offence. In Cranfield v The Queen [2018] ACTCA 3 at [37] (Cranfield), the Court stated the following:
37. The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47]:
The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10–15%. A common sense approach to “utilitarian value”, the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.
During the sentencing hearing, the offender’s counsel drew attention to the history of negotiations that occurred, and the position taken by the Director, including that one of the counts against the offender was abandoned before the offender then pled guilty to the remaining two counts.
Notwithstanding that it was the product of negotiations and the Court was notified as soon as a resolution had been reached that the guilty plea was to be entered (that is, the Court was given slightly earlier notification of the intention to plead guilty), I accept the prosecution’s submission that the plea here is properly to be viewed as a last-minute plea. However, taking into account the submissions to which I have referred and the other matters set out in s 35(2) of the Sentencing Act, which are separately dealt with below, I have determined approximately 12% as the appropriate discount to be applied.
Objective seriousness (s 33(1)(a) of the Sentencing Act)
The circumstances of the offence include assessing the objective seriousness of the conduct involved. In explaining the approach the Court takes to evaluating the objective seriousness, it suffices to refer to some general propositions:
(a)When considering the seriousness of the case before it, the Court considers where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
(b)When the Court speaks about assessing the “objective” seriousness of the conduct, the task that it is describing is one that considers the conduct without regard to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].
(c)The subjective features (being the aspects of the offending personal to the offender) and the after-effects of offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].
The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v R [2005] HCA 25; (2006) 228 CLR 357 at [31], which is why the 5 years’ imprisonment penalty was included at the commencement of these reasons.
Considerable assistance was provided by Mr Dyason who appeared for the prosecution, in setting out features specific to the offence here, of an act endangering health (choke/strangle/suffocate), citing R v Bonfield [2021] ACTSC 362 at [68]-[69] (Bonfield), where Refshauge AJ helpfully collected the authorities and drew from them considerations which may be significant in assessing the objective seriousness. They include the following:
(a)The length of time during which the “choking” persisted;
(b)The amount of force used;
(c)Whether the offending resulted in the victim’s breath being restricted;
(d)Whether verbal threats were made at the time of the choking;
(e)Whether the victim sustained any injuries as a result of the choking;
(f)Whether any aides like rope or cable were used;
(g)The circumstances in which the offender released the victim from the choke;
(h)The vulnerabilities of the victim;
(i)Whether the offence was deliberate and a sustained course of conduct designed to threaten and inflict harm;
(j)Whether the conduct occurred in the context of family violence.
To this, I would add the location where the conduct occurred as bearing upon the objective seriousness in the present case and whether the offence occurred in the presence of children.
With respect to the conduct against the victim KI:
(a)The length of time of the actual choke in the headlock was unknown. By inference from the other surrounding circumstances, including the fact that the boy’s father came into the room at a time when the offender was getting off the bed, the headlock was of short duration.
(b)There was some force used as the victim was pulled into a headlock at a level sufficient to then cause the pair to fall onto the bed, with the offender positioned on top of the victim.
(c)The victim’s capacity to breathe was not said to have ever been restricted by the headlock.
(d)No specific verbal threats were made at the time of the offending.
(e)The victim did not sustain any injuries as a result of the offending.
(f)No aides or weapons were used in furtherance of the offending.
(g)It appears as though the offender voluntarily released the victim from the headlock.
(h)The victim was a child and vulnerable for that reason. That vulnerability would have been plain to the offender.
(i)The offence was designed to threaten harm. It was a disproportionate response to what had occurred between the victim and the offender’s step-son in the park.
(j)The offence occurred in the victim’s bedroom, a private and personal space where he was most entitled to feel safe from harm.
I accept however, that the conduct was not deliberate, planned or sustained. While the offender plainly intended to seek out the victim to remonstrate with him for his conduct in relation to his step-son, there does seem to have been a spur of the moment loss of control when he came face to face with the victims. I do not consider the level of premeditation to be such as to aggravate the seriousness of the offence.
The offence in relation to the second victim, QG contains many of the same features of the first offence. The differences are that the victim’s ability to breathe was restricted, but the length of time in which the offence occurred was fleeting. Even though the location of the offence was not this victim’s own bedroom, it was still a private space, where he was equally entitled to feel safe.
Those features indicate that while the nature of the crime itself was serious, the conduct involved was far from what would be considered to be the upper or even medium level of offending.
Personal circumstances of the victim (s 33(1)(d) of the Sentencing Act)
The personal circumstances of the victims were that each was a child. I have taken that into account as affecting the objective seriousness of the offence above.
However, the prosecution drew attention to comments of Latham J in R v Smith [2005] NSWCCA 286 at [54] which I consider to be apt to repeat in the circumstances with which the Court here is presently dealing, namely that “even when offences against children are committed as a result of momentary lapses of control … this Court has stressed that appropriately severe sentences have an important deterrent function.”
Victim impact (s 33(1)(f) of the Sentencing Act)
The victims here did not wish to provide victim impact statements. That is understandable given their age. The degree of involvement each victim has in the sentencing process is entirely a matter for the victim. No inference about the harm suffered by the victim can be drawn from that fact: s 53(1)(b) of the Sentencing Act.
Subjective circumstances of the offender
This offender’s subjective circumstances carry great significance in getting a full understanding of what fed into the offending and what to do about it by way of a just and appropriate sentence.
The offender has been the victim of repeated childhood trauma. The details of that trauma will not be repeated here for two reasons. The first is that a suppression order was made at the hearing in respect of the evidence. The second is that even without a suppression order, it is preferable not to risk re-traumatisation by repetition of the events that caused the trauma.
I accept from the medico-legal evidence before the Court and other reports that what occurred has had a catastrophic effect on every aspect of the offender’s life and his behaviour. There have been deep psychological consequences and substance abuse that followed, as well as consequences for him being unable to complete his education, which has in turn led to limiting his job opportunities.
There is no doubt that the offender has accumulated social disadvantage, and that the principles articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [40]-[44] apply. A useful summary was provided by Loukas-Karlsson J in R v KN [2020] ACTSC 218 at [98]:
In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:
(a)the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(b)the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133at [3] (Irwin); and
(c) the application of the Bugmy principles is not discretionary: Irwin at [3].
The offender’s substance abuse only commenced after he was subjected to childhood trauma. It has in turn been reported as partially causative of his criminal offending behaviour. He has a lengthy criminal history in both the Territory and NSW (s 33(1)(m) of the Sentencing Act). In that regard, I have applied Kelly v Ashby [2015] ACTSC 346 at [38], where Refshauge J emphasised the purpose in considering an offender’s criminal record by reference to what was set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8. In short, an offender’s criminal history does not mean that the offender is given a longer sentence, but it speaks against leniency, when compared with someone who comes to be sentenced as a person of prior good character.
The offender is currently voluntarily seeking treatment and support in order to address the psychological effects of the historical trauma, which has contributed to the commission of the offences here (s 33(1)(t) of the Sentencing Act). There was evidence from Woden Community Service as to the programs for change in which the offender has participated and other programs for which he is on the waiting list.
Although the offender accepts full responsibility for the commission of the offence (s 33(1)(i) of the Sentencing Act), the reason why the offender committed the offence was explained by the offender’s partner in a letter to the Court. She also attended the sentencing hearing and was therefore available to assist the Court, if required. In particular, the partner described the protective parental drivers behind what led to them both attending upon the house of her son’s friends that night (s 33(1)(v) of the Sentencing Act).
She described her son (the offender’s step-son) struggling with friendships due to his own disabilities and that she had reluctantly allowed him to “hang out” with certain friends at a nearby oval for friendship’s sake. Within 20 minutes of him going to the oval, he had returned home with a battered face and pain in his body, shaken and extremely upset. She asked the offender to drive her to the victim’s home with a view to having a face-to-face conversation with the parents and the boys to deal with what had occurred. Both the offender and his partner say they would have handled the situation very differently and the offender deeply regrets how he interacted with the two victims. I accept the offender has demonstrated remorse (s 33(1)(w) of the Sentencing Act). The sparing of the child witnesses from giving evidence is also relevant to remorse: Cranfield at [34]-[36].
Finally, I have taken into account that the offender has a partner and a new-born baby (less than 3 months old). There are also three children from a previous relationship and the offender has an older son (who is 11) who is living with the family for the first time in many years, after the relative with whom he was residing passed away. The partner’s letter to the court addressed the impact that a full-time custodial sentence would have on her and their family (s 33(1)(r) of the Sentencing Act). It suffices to say here that the offender is her biggest support in assisting her to combat her post-natal depression.
Comparable cases
The prosecution again gave assistance in providing a table which included a number of cases involving an offence where choking was part of the conduct. Discussing these cases during the hearing, it was clear that they were of little assistance in terms of establishing any sentencing pattern applicable to the present conduct. This offence can cover a wide spectrum of conduct and the sentences discussed below all involved conduct that was objectively much more serious in a family violence context.
The case of Bonfield dealt with a brief choking episode in a family violence setting (de facto partners). The offender only released the victim when their child intervened. For the choking offence, the offender was sentenced to imprisonment for 14 months, reduced from 16 months on account of a guilty plea.
In R v Peric (No 3) [2022] ACTSC 387, the offence again involved domestic partners. During an argument, the offender had pushed his partner to the floor (a separate offence), and then straddled his partner while she was face down, placed his hands around her neck and applied pressure so that the victim was unable to breathe for approximately 10 seconds. A sentence of 18 months imprisonment was imposed, to be served by way of a drug and alcohol treatment orders with the term of imprisonment suspended as a consequence.
In R v Dillon [2018] ACTSC 164, the choking offence was also in a family violence context, with the offender choking his son and daughter, rendering them unconscious. A sentence of 2 years and 11 months was imposed for each offence, reduced by 20% in each case on account of a guilty plea.
In R v Smith [2020] ACTSC 277, the choking followed a verbal argument between the offender and a woman with whom the offender was in a relationship. The offender had grabbed the woman’s face with both hands, squeezed her throat and challenged her complaint that he was hurting her. In relation to the objective seriousness of the conduct, Elkaim J stated at [12]:
12. Domestic violence is always unacceptable. Being choked is a terrifying experience. The choking in this case does not seem to have carried on beyond a few seconds nor caused any injury so I assess the objective seriousness of the offence at below medium. …
For that offence, Elkaim J imposed a sentence of imprisonment for 19 months reduced from 24 months on account of a guilty plea. The aggregate sentence which involved a further count of inflicting grievous bodily harm was imprisonment for 31 months and 8 days, suspended upon entry into a good behaviour order with a community service work order for 175 hours.
In that case, Elkaim J referred to R v Cowling [2019] ACTSC 138 (relevantly here) as being roughly comparable, and I have also taken it into account when considering any sentencing pattern or practice. This was yet another case involving domestic violence. Part of the offending involved the offender choking the victim to the point where she felt as though she could pass out and the conduct was accompanied by threats. The offence was also rolled up in that it involved three discrete instances where the offender choked the victim. For that offence, a sentence of imprisonment was imposed for 3 years, reduced to 2 years and 6 months on account of a guilty plea.
The appropriate sentence
Counsel for the offender initially submitted that the threshold provided by s 10 of the Sentencing Act (namely imprisonment as a sentence of last resort) was not crossed.
However, I disagree. Whether the cause was a spontaneous exacting of revenge for the harm done to his step-son or an impulsive and misplaced attempt at vigilante justice, it is obvious that the offence must be condemned in the strongest terms in order to fulfill the objective of general deterrence. To some extent, this offender is not an appropriate vehicle for general deterrence because of his subjective circumstances, but whatever dispute has erupted or harm has been caused between their children, there is nothing that excuses parents from inviting themselves into another’s household and using any force against a child victim, let alone choking them, however short-lived such conduct may have been. The offender himself has recognised that in the remorse he has expressed.
After the pleas of guilty have been taken into account and taking into account this offender’s particular subjective circumstances set out in detail above, a sentence of imprisonment of 6 months and four days should be imposed in respect of the first offence and 7 months and 1 day in respect of the second offence.
Totality and concurrency considerations arise. In particular, each offence occurred within a very short space of time of each other and are properly to be viewed as the one course of conduct. It is appropriate that the majority of each term of imprisonment be served concurrently.
The sentence will also be backdated by 1 day to take account of the time the offender has already spent in custody referable to this offence.
Should a suspended sentence (in part or in whole) be ordered here?
To return to the objective of what constitutes a sentence that is just and appropriate for this particular offender in light of his circumstances, an intensive corrections order was not an appropriate option due to the lack of a recent formal assessment and the parties agreeing before the matter was listed for a sentencing hearing that the same objectives could be achieved in different ways here. The possibility of a suspended sentence has therefore emerged as a prime candidate for consideration.
McCallum CJ recently held in Director of Public Prosecutions v Earle [2023] ACTSC 93 at [19]:
There is a single common law of Australia which includes common law principles of sentencing concerning, for example, general deterrence, proportionality and totality. However, each State and Territory (and indeed the Commonwealth) has its own statutory sentencing regime and consequently its own individualised sentencing jurisprudence.
The recent decision (delivered on 1 May 2023) by the Court of Appeal in the Supreme Court of Victoria, Henry v The King [2023] VSCA 100, deals with common law principles of sentencing in relation to the imposition of a suspended sentence and the rationale behind it. The Court of Appeal stated at [105] (citations omitted, emphasis added).
When a judge is considering the imposition of a suspended sentence, various factors often will vie for paramountcy in the exercise of the sentencing discretion, and often factors will point in different directions. It has been recognised, however, that a suspended sentence can promote reformation, and may be imposed in the community’s interest to prevent re-offending. … Despite the fact that service of imprisonment is conditionally suspended, it may also be regarded as a significant punishment. … Moreover, even if a sentence was wholly suspended it still plays a role in general deterrence. …And as Batt and Buchanan JJA observed in Buhagiar:
Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society: R v Davey [1980] FCA 134; (1980) 50 FLR 57; 2 A Crim R 254 at FLR 65; A Crim R 260-1. A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community’s interest and generally designed to prevent re-offending: at FLR 67; A Crim R 262. In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King CJ referred in R v Osenkowski (1982) 30 SASR 212 at 212–13, or for some other sufficient reason should have this particular avenue open to him, provided the conditions of the suspension are observed: R v P [1992] FCA 626; (1992) 39 FCR 276 at 285, a decision of the Full Court of the Federal Court. (The three cases cited in this paragraph all concerned Crown appeals.) ...
The reference to Buhagiar is to: DPP v Buhagiar and Heathcote [1998] 4 VR 540 at 547.
The offender here is either currently engaged in, or on a waitlist for, programs to change his behaviour. Such programs are designed to address the underlying history of trauma that led to his substance abuse and criminal offending in the first place. He has substance abuse issues that need to be addressed, and critical parenting responsibilities. Extracting him from the community, and from the courses that he is undertaking, and placing him in a full-time custodial sentence is not the best way to protect the community here.
The better course is to place him under supervision on a conditionally suspended sentence, through a good behaviour order which includes in it conditions that he continue to attend the present courses that he is enrolled in and/or waitlisted for, or such other intervention courses as are considered appropriate by the Director of Corrective Services. Ideally, he would continue the programs with which he is currently engaging in a positive way. The wait-list for one particular program may prove a hurdle for him, and for that reason it is appropriate to leave a large degree of flexibility to the supervisor at Corrective Services to determine what may be appropriate.
I consider it appropriate to impose a condition that will promote the steps that the offender is already taking to rehabilitate and change his behaviour. The offender’s present interaction with the justice system has presented him with a real opportunity to finally address and deal with a number of underlying causes and it is important that he does not give up on those steps once this sentence is imposed.
Orders
The following sentence is imposed:
(1) For the offence of CC2022/271, choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) a sentence of 6 months and 4 days imprisonment is imposed, reduced from 7 months on account of the guilty plea, to commence on 4 July 2023 and conclude on 7 January 2024.
(2) For the offence of CC2022/7408, the second charge of choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT), a sentence of 7 months and 1 day is imposed, reduced from 8 months on account of the guilty plea to commence on 4 August 2023 and conclude on 4 March 2024.
(3) The total sentence of 8 months and 1 day will be suspended from 5 July 2023 on the condition that the offender enter into a good behaviour order for the remainder of the sentence (5 July 2023 to 4 March 2024) and undertake to comply with the obligations under ss 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT). I impose the following additional condition:
(a)That the offender continue to attend any rehabilitation or intervention program and be subject to such supervision through Corrective Services, that the Director-General or their delegate considers to be appropriate.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: 5 July 2023 |
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