R v DQ

[2020] ACTSC 352

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DQ
Citation:	[2020] ACTSC 352
Hearing Date:	17 December 2020
Decision Date:	18 December 2020
Before:	Mossop J
Decision:	See [64]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted murder – offender’s conduct involved the attempted murder-suicide of her and her two children – above mid range of objective seriousness – no criminal history – diagnosis of major depressive disorder – context of separation from ex-husband – low risk of future reoffending – sentences of full-time
imprisonment
Legislation Cited:	Crimes Act 1900 (ACT), ss 12, 117(1) Criminal Code 2002 (ACT), s 44
Cases Cited:	Beniamini v Craig [2017] ACTSC 30 Director of Public Prosecutions v Kelly [1999] VSC 399 Guode v The Queen [2020] VSCA 257 Hudson v The Queen [2010] VSCA 332; 30 VR 610 Laipato v The Queen [2020] ACTCA 35 R v Kelly [2018] ACTSC 332 R v Keshtiar [2004] VSC 140 R v Ophel [2019] ACTSC 325 R v Playford [2017] QSC 337 R v Quail [2013] VSC 190 R v Rapovski [2015] VSC 359 R v RG [2006] NSWSC 21 R v Sidaros (No 4) [2020] ACTSC 87 The Queen v Miller [2019] ACTCA 25 The Queen v Swift [2007] VSCA 52; 15 VR 497 Western Australia v Radovic [2020] WASCA 46; 282 A Crim R 223
Parties:	The Queen (Crown) DQ (Offender)
Representation:	Counsel
A Williamson (Crown)
S Whybrow (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
McKenna Taylor (Offender)
File Number:	SCC 274 of 2019
MOSSOP J:
Introduction

1. The offender, who I will refer to as DQ, pleaded guilty to two counts of attempted murder contrary to s 12 of the Crimes Act 1900 (ACT) by virtue of s 44 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is life imprisonment.

Facts
2.	The facts are agreed and are, in summary, as follows.
3.	In 2008 the offender married her husband, who I will refer to as NT. The marriage was a tumultuous one. They had two children together, a daughter born in 2012, who I will refer to as DT, and a son born in 2014, who I will refer to as TT.
4.	In 2016 the offender and NT separated. Initially, the pair had verbally agreed
arrangements relating to NT’s visits with the children. Between October 2016 and
October 2017, the offender did not allow NT to see the children. This caused NT to commence divorce proceedings in the Family Court in order to obtain custody. NT initially requested equal share of the children, but eventually the parties agreed to a 70-30% custody arrangement in favour of the offender.
5.	Court orders were also made requiring the offender to pay money to NT. In the event that she defaulted on payments, the offender was required to sell her residence, which was of significant sentimental value to her. The offender was extremely unhappy with the orders and did not want NT to have either the residence or access to her children.
6.	On 5 July 2019 the offender did not pay NT $25,000 as required by the court orders. As a result of this default on payment, the offender was required to pay $100,000 to NT on or before 5 August 2019. As of 18 July 2019 the offender had an outstanding debt on her home of $186,968 and had approximately $28,000 in savings.
7.	From 21 July 2019, the children were returned to the offender in time for the start of the school term. Sometime before 5:43am on 21 July 2019, the offender ignited a couch in the lounge room of her residence, as well as items in the linen cupboard. She had at some stage spread olive oil and brandy where the sofa was in the living room,
presumably in an attempt to enhance the fire. She then returned to the children’s
bedroom where they co-slept together and laid down. Her mobile phone was underneath the pillow. The fire and smoke spread throughout the house as the offender and her two children lay in bed.
8.	DT, who was six years old, woke up to smoke penetrating through the closed bedroom door. She was struggling to breathe and saw that her mother and brother were already awake and struggling to breathe. The offender had placed a pillow over her head. TT, who was five years old, jumped around the bedroom and began to cry. He found respite
from the air underneath his blankets. The offender told both children to “stay calm”. At one point, DT screamed for water. The offender told her to calm down and stated, “this
is what happens”.
9.	At one point, the children heard their neighbour, who I will refer to as HL, knocking on the window of the bedroom. HL observed that the smoke had started to expel through the roof of the house and saw the smoke spread throughout the home. He screamed out
to the family “It’s [HL] from across the road, your house is on fire!” He could hear the children crying from inside. He continually bashed on the window and yelled out “get on
the ground and come to the window and I’ll get you out”. HL repeated this phrase over a
period of three to four minutes. He heard the offender and observed her to be very calm and not panicked.
10.	Upon hearing HL knocking on the window, the offender told her children to “just stay on the bed”. DT went over to the window to see who was knocking on the window and the
offender said to her “just go back to your spot”. The offender did not get up throughout
the incident. She cried as she remained lying down.
11.	Firefighters and emergency crew were called to the scene by neighbours. The offender did not call for help at any point. Firefighters arrived after 6am. They looked through the
window and observed there to be a glow and ‘smoke logging’. Firefighters observed that
there was no ventilation into the house as there was no smoke escaping. They were required to smash the window where the flame was observed to gain entry into the residence. Firefighters had no visibility within the house and were required to use thermal imaging to feel their way around the house. Once inside, they observed that there was a fire to the right in the main bedroom and partly in the walk-in robe of the main bedroom. The walk-in robe was stacked full of newspapers and magazines. The flames in this area almost reached the ceiling and reached between 2.5 m and 3 m tall.
12.	The residence was split level. Firefighters initially attempted to extinguish the fire on the couch. It was eventually turned and doused with water. They then commenced searching the house for any residents trapped inside. They proceeded up the stairs and felt a massive build-up of heat and believed there was another fire lit upstairs. They located a bedroom, forced the door open and found the offender lying face up unconscious on the bed. She was completely limp and she was carried out to a triage area where crew members began to perform oxygen therapy on her.
13.	Firefighters returned to the bedroom and recovered TT who was up against the end of the bed near the window. DT was also recovered. Both children were unconscious. A fireman commenced CPR on DT whilst oxygen gear was set up for her. CPR was also performed on TT and paramedics observed that he had jawlock, which is indicative of a state of hypoxia. The offender and her two children were taken to hospital.
14.	In the ambulance the offender eventually regained consciousness. She became combative and kept pushing the oxygen mask off her face. She was administered a
sedative to calm her down and was observed mumbling several times thereafter “my
babies, my babies”.
15.	A search warrant was executed at the offender’s residence on the same day. Forensics
officers and fire crew re-entered the house to establish the cause of the fire. Forensics made a number of observations. Excluding the main entry door and two open front windows, all other doors and windows including those with damage to glass panes were fixed or locked closed. There was no sign of forced entry or attempts made by the occupants to self-rescue or self-evacuate the residence. It was observed that there appeared to be two separate seats of fire from two separate ignition events, one on the right side of the two-seater couch in the lounge room and one in the main bedroom
walk-in robe. A long green ‘Bic’ lighter was observed on the floor in the western hallway
of the house. Forensics determined that the DNA located on the lighter was 95 billion times more likely to originate from the offender than from any other unknown individual unrelated to the offender. An open bottle of Smirnoff vodka was also observed in the hallway.
16.	Whilst the cause of the fire cannot be determined due to the lack of an identifiable ignition source, no other possible causes for the fire were identified. Given that there were two separate seats of fire which could not be attributed to the fire spreading, human intervention was required to initiate the fire.
17.	There were two smoke alarms fitted at the residence. The batteries of both were disconnected.
18.	The report from Dr Amanda Jane Van Diemen dated 7 May 2020 discloses that TT presented to Canberra Hospital on 21 July 2019 with the following injuries:

(a)	smoke inhalation;
(b)	biochemical abnormalities arising as a result of smoke inhalation or oxygen deprivation;
(c)	superficial burns to nostrils, and upper and lower lips; and
(d)	two areas of possible abrasion or possible superficial burns to the tip of the tongue.

19.     TT required approximately 24 hours of supportive therapy for his inhalation injury.

Victim impact statement

1. The offender’s ex-husband, NT, provided a victim impact statement that was read by the

   prosecutor. He described hearing from police on 21 July 2019 that the offender and his children had been in a housefire and were gravely injured. He was in Sydney at the time and was terrified for his children. He went to Westmead Hospital to see his children which he described as incredibly frightening. He described being shocked to learn that the offender had purposefully lit the fire. He has been left to comfort two small children and explain to them why their mother had done something so horrific. Since the incident, NT has had nightmares about what could have happened to his children. Since the incident the children have lived with him full-time. He now has full financial responsibility for the children and said that since the fire he has had to purchase everything for them. He also has a 23-year-old son who has a condition which has made him wheelchair bound and requires 24-hour assistance. He said that the fire and court case has taken valuable time away that he could have spent with his son before his son dies from his illness.

21.     The victim impact statement also included other material not directly relevant to the impact of the offending upon the victim or the children which I have not referred to. It is not uncommon for victim impact statements to go beyond the matters which will be of direct relevance to the sentencing exercise. In this case, counsel for the Crown pointed to what was said in The Queen v Swift [2007] VSCA 52; 15 VR 497 at [6]-[7] as indicating the appropriate way to deal with the admissibility of the contents of victim impact statements. Counsel for the offender did not demur from this approach. In the context of this case, it provided an appropriate approach to the victim impact statement.

1. There was also a statement included in the evidence which was headed “a statement

   from [DT] and [TT]”. I have not placed any weight upon this document as it is not clear

   how it was produced and whether or not it fairly reflected the views of these children.

Objective seriousness

23.     The charge of attempted murder is an extremely serious one. Unlike actual murder it requires a specific intent to kill. Notwithstanding the gravity of the offence, the objective seriousness of the offence may vary greatly depending upon the circumstances of an individual case. An attempted murder may be more serious than some successful murders.

24.    This was an attempted murder-suicide. As it involved the offender’s children, it

necessarily involved the most extreme breach of her parental obligations. It involved the complete abrogation of her duty to her children and exploitation of her authority over them in order to carry out her plan. It involved a degree of premeditation. The offender had disabled the smoke alarms. She had also spread some olive oil and brandy around the couch. She persisted in her attempts to achieve the murder-suicide by directing her children to stay in position even when they were upset and when the neighbour tried to assist.

25.     It was a serious attempt which, but for the actions of the neighbour and the fire brigade, would have been successful. Given that the children were found unconscious, they were on the cusp of death and experienced the whole of the trauma associated with death. Both required resuscitation. TT continued to be in an immediately life-threatening condition, requiring being placed in an induced coma on mechanical ventilation and flown to Westmead Hospital.

26.     While the attempt did not involve parental betrayal in the form of violence or physical

restraint it did involve abuse of parental authority in order to achieve the children’s
compliance with the offender’s plan.

27.    The offending carried with it other consequences, most particularly the damaged property arising from the method adopted for the attempted murder.

28.     Recognising the wide range of circumstances that are accommodated by the charge of attempted murder, it is above the mid range of objective seriousness for this offence.

Subjective circumstances

29.     The offender is currently 48 years old and was 47 at the time of the offending. She has no criminal history.

30.     She was born in Canberra. Her parents moved to Canberra when her father was appointed to a position at the Sri Lankan High Commission. Her father died when she was nine years old. She attended university in Sydney but returned to Canberra in 1992 when her mother became sick with breast cancer. Her mother died in 1997. She ultimately completed a degree in science at the Australian National University in 2000. She commenced work at a Commonwealth government department in 1995 and worked there up until the time of the incident.

31.     She reported that she married her husband in 2008 and they separated in 2015. She said that the relationship deteriorated after they had children. She alleged that she was sexually abused by her husband and stated that he took little parental responsibility, preferring her to adopt a more traditional role of mother and wife in the family home. The offender stated that, despite this, she wanted to repair the marriage and did not wish to separate at that time.

32.     She stated that at the time of the offence, she and her ex-husband shared custody of the children. She thought this arrangement was destabilising for the children. The offender reported that following the separation, she struggled to cope with the pressures of being a single parent during the times she cared for the children. Further, she stated that her relationship with her ex-husband continued to deteriorate due to their differing parenting styles.

33.     The offender’s employment was terminated earlier this year.

34.     The offender has not had any problematic use of alcohol or illicit drugs.

35.     She described a history of experiencing ongoing psychosocial stressors which were exacerbated following the separation from her husband. She said that despite being engaged with social workers at the time, she had no valuable supports to assist her in dealing with the stressors resulting from the tumultuous relationship with her ex-husband and the stress she felt from being a single parent. She claimed she tried various avenues

for support but “nothing helped”.

36.     While in custody she has been diagnosed with major depressive disorder and cluster B personality vulnerabilities and is prescribed antidepressant and antipsychotic medication.

37.    The offender accepted the information contained in the AFP Statement of Facts. However, while she stated she took responsibility for her actions, she appeared to place

blame on external factors for her offending. She said she “felt bad” for her offending,

although stated she was not in her right mind. She claimed she had no support and felt she needed help. She was unable articulate what support she needed at the time, other than stating she felt she needed someone to talk to. She acknowledged that she was attempting suicide and the murder of her children, although stated that she prefers not to think of her actions in that way. She denied that the offending was motivated to avoid financial issues. She claimed she had not slept that night and was waking up every 30 minutes. The author of the pre-sentence report said that the offender appeared adamant that her lack of sleep that night was a contributor to her committing the offence, stating

“if I got even 4 hours sleep, it would not have happened”.

38.     The author of the pre-sentence report’s opinion was that:

[The offender] has been assessed as low risk of general reoffending. While she acknowledged the seriousness of her offending, she appeared to place blame for her offending on the lack of support she had at that time. [The offender] was unable to articulate what support she needed, other than she needed someone to talk to. She acknowledged she had access to social workers during the lead up to the offence, although claimed that nothing was helping her situation.

39.     Two reports of Dr Stephen Allnutt were tendered in relation to the offender’s mental state

at the time of the offending.

40.     The reports contain a review of medical records that indicate that from 2015 she was having significant mental health consequences from her marital difficulties. These included panic attacks, recurrent attacks of emotional episodes of crying, mild depressive symptoms, lack of motivation, depression, lack of sleep, loss of interest, loss of energy,

tiredness and irritability. She suffered a back strain in 2016. There were multiple doctors’

visits reporting anxiety and depression and back pain between 2015 and 2019. The records also included allegations of sexual assault by her husband. She is recorded as having received assistance from a psychologist and of being prescribed antidepressant medication.

41.    The first report dated 30 October 2019 indicated that she had a constellation of symptoms consistent with a major depressive episode and also several post-traumatic stress symptoms. At the time of the offending, Dr Allnut thought she had a major depressive disorder characterised by depressed mood, poor sleep, sleep disturbance, diminished energy and motivation, poor self-esteem, limited interests, anhedonia (an inability to feel pleasure) and intermittent suicidal thoughts. He considered the features of post-traumatic stress disorder warranted a diagnosis of chronic adjustment disorder. He concluded that the offender would have retained the capacity to know the nature and quality of the conduct. He said that although depression was associated with impulsive aggression, that did not appear to match the facts of this case which involved a degree of planning. He said that it was possible that mental impairment could have distorted her thought processes because depression is associated with homicidal or suicidal behaviour, driven by a pathologically distorted pessimistic or nihilistic perspective of the person on the current circumstances and future. He did not consider that she was delusional at the time of the offending.

42.     In his report of 17 June 2020 Dr Allnut maintained his view that, at the time, the offender was suffering from a major depressive episode with probable associated post-traumatic stress symptoms. However, she did know the nature and quality of the conduct. The account that she provided to him was consistent with making decisions and immediate plans to set a fire, but in the context of persistent emotionality, characterised by feelings of hopelessness, frustration, anger and despair.

43.     Seven character references were tendered on behalf of the offender. Six of those are authored by a person who has known the offender for a substantial period of time. Each attest to her honesty and good character. Some of them refer to the decline in her mental health prior to the incident. They all reflect their shock at what has happened. There is also a reference from the coordinating Chaplain at the Alexander Maconochie Centre (AMC) which refers to the offender being extremely unwell at the time of her arrival at the AMC but that now she has regained some stability in her mental health. He refers to her being an intelligent and compassionate person who thinks deeply about life.

44.     Consistent with the information that was given to Dr Allnutt, the hospital notes indicate that whilst in custody the offender has taken a range of medications to stabilise her mental health and that selection has been an ongoing process.

45.     I do not accept the submission made by counsel for the Crown that the offender lied

when she spoke to Dr Allnutt in September 2019 and that she is “a calculating and manipulative person who will lie when she believes it will be advantageous to her”. The

only basis for this submission appeared to be that the offender disclosed additional matters, adverse to her interests, to Dr Allnutt in May 2020 which she had not disclosed when she first saw Dr Allnutt in September 2019. Counsel for the Crown contended that these additional memories demonstrated that she was lying about her lack of memory of the events on the first occasion that she saw Dr Allnutt. This submission cannot be accepted. It has a very slender basis. In his report of 30 October 2019 Dr Allnutt himself identified a range of reasons that might explain her loss of memory other than a false reporting of a lack of recollection. The additional matters that she disclosed on the second occasion were matters which were adverse to her interests in that they disclosed more detail about what she had done and included statements consistent with an

intention to cause death. Such disclosures are inconsistent with the Crown’s

characterisation of her as a lying manipulator. While I accept that statements made to medical practitioners for medicolegal purposes need to be scrutinised, I do not consider that the general submission made by counsel for the Crown can be established on the basis of the difference in reporting to Dr Allnutt. Rather, I accept that the offender is genuinely remorseful for her conduct. I accept the submission by counsel for the offender that the evidence of the coordinating Chaplain at the AMC provides a sound basis for a conclusion that she suffers deep sorrow at what she has done to her children.

46.    In relation to the references tendered which attest to her good character, those references indicate her good character outside the context in which the offending occurred. They are not inconsistent with aberrant behaviour such as what occurred in the present case in the context of the long and acrimonious breakdown of her relationship and the associated Family Court proceedings related to money and her children.

Plea of guilty

47.     The offender pleaded guilty in the Supreme Court on 29 July 2020 following the criminal case conference. The trial had been due to start in the week of 24 August 2020.

48.     The offender had initially been charged with a single count of damaging property by fire with intent to endanger the life of another person (Crimes Act s 117(1)). The matter was committed to the Supreme Court on 29 October 2019. Following committal, ex officio charges of attempted murder were brought. An additional count of damaging property by fire with intent to endanger life was also brought so that there were two such backup charges. This was done by an indictment filed on 21 January 2020. On 11 May 2020 the matter was listed for trial and the parties were given leave to approach the Registrar for an earlier criminal case conference date. The offender had obtained reports from Dr Allnutt dated 30 October 2019 and 17 June 2020. These were served on the Crown sometime after 17 June 2020. At a criminal case conference held on 7 July 2020 the offender offered to plead guilty to one or both of the backup charges. The Director of Public Prosecutions declined to accept this and shortly after this position was communicated, the offender pleaded guilty to the two charges of attempted murder. There was considerable utilitarian value in the plea having regard to the avoidance of a hearing and the avoidance of any necessity for the two children to give evidence.

49.     For the reasons given earlier, I do not accept the submission made on behalf of the

Crown that the guilty plea should not be taken as reflective of remorse on the offender’s

part.

50.     Contrary to the submissions made on behalf the offender, I do not consider that the case should be treated as one in which there was an early plea. It was clearly one in which

some exploration of whether or not there was a defence based upon the offender’s

mental condition was appropriate. I do not consider that the exploration of that issue significantly undermines the submissions made in relation to remorse, but it does affect the timing of the plea and hence its utilitarian value. In the circumstances, I consider that a reduction of approximately 17.5% on account of the plea of guilty is appropriate.

Time in custody

51.     The offender has been in custody since 22 July 2019, a period which is solely referrable to these offences. That is a period of 515 days (one year and almost five months) prior to today.

Comparable cases

52.     The parties referred to a number of cases in order to allow the court to assess current sentencing practice. Because of the nature of the charge and the unusual circumstances

the parties provided cases from both inside and outside the ACT. The Crown’s written

submissions provided a helpful summary table referring to R v Playford [2017] QSC 337 (R v Playford), R v Rapovski [2015] VSC 359; R v Quail [2013] VSC 190; R v Kelly [2018] ACTSC 332 (R v Kelly); R v Ophel [2019] ACTSC 325 (R v Ophel); Hudson v The Queen [2010] VSCA 332; 30 VR 610; R v Keshtiar [2004] VSC 140. In addition, counsel for the offender referred to Director of Public Prosecutions v Kelly [1999] VSC 399; R v Sidaros (No 4) [2020] ACTSC 87; Guode v The Queen [2020] VSCA 257; R v RG [2006] NSWSC 21; Western Australia v Radovic [2020] WASCA 46; 282 A Crim R 223.

53.     Amongst these cases R v Playford and R v Kelly are the most factually similar. The sentence in R v Playford must be understood in the context that there was also a murder charge which led to a sentence of life imprisonment and hence reduced the overall significance of the attempted murder charge. I have treated with some caution those decisions which involve verdicts of not guilty by way of mental impairment and nominated terms (R v Kelly; R v Ophel) because of the fact that the estimation of such a sentence

“is a very difficult and artificial task” having regard to the fact that the mental impairment

means that the person is not morally responsible for the commission of the offences and the differing views amongst single judges about the nature of that task: see R v Kelly at [64].

Consideration

54.     Any case involving a parent in a depressive state attempting to commit suicide and murder their own children clearly involves a level of distorted thinking. The evidence in

this case presents a picture of a long period during which the offender’s mental health

was affected by the breakdown of her marriage, conflict with her ex-husband over the children and the Family Court proceedings relating to custody of the children and division of property. This provides a context in which the offending occurred.

55.     I accept that the offender suffered from a depressive disorder at the time of the offending and that this was of long-standing but increased in the context of the pressures brought about by the finalisation of the Family Court proceedings and the inability of the offender to properly accept the outcome. It is difficult to disentangle the effects of the depressive

disorder from the “cluster B personality vulnerabilities” referred to in the pre-sentence

report. I do not consider that the evidence establishes a diagnosis of post-traumatic stress disorder or chronic adjustment disorder. The factual basis for those conditions is not adequately established by the evidence, given that it relates to allegations of conduct which were very serious, raised in the context of acrimonious Family Court proceedings and not established by evidence that I consider to be reliable. I do, however, consider that the depressive illness should be given some weight as it was a matter of

long-standing and had the potential to distort the offender’s thinking to some extent. The

weight is limited, however, by the conclusions of Dr Allnutt that she was not delusional
and retained the capacity to know the nature and quality of the conduct.

56.     The offender is at a low risk of further offending. The circumstances of her offending arose very much from the situation in which she found herself and her children. The evidence indicates that she is otherwise a person of good character. However, she must be held accountable for her actions, her conduct must be denounced, the harm done to her children must be recognised and she must be punished in a way that is just and appropriate.

57.     In my view, the appropriate starting point on each count is a sentence of nine years imprisonment. That is reduced by approximately 17.5% on account of the plea of guilty, giving a sentence of seven years and five months. Because of the existence of two separate victims, there must be a degree of accumulation between the sentences. However, the degree of accumulation must be qualified by the fact that there was a single set of acts performed by the offender and, more importantly, the requirement to ensure an appropriate overall sentence. The sentences will be cumulative as to two years but otherwise concurrent. This gives a head sentence of nine years and five months. The non-parole period will be six years and four months which is approximately 67% of the head sentence. The commencement date of the first sentence will be backdated to take into account the period spent in custody on remand.

Written submissions

58.     Finally, before making orders to give effect to these conclusions, it is necessary to note one procedural matter.

59.     Counsel for the Crown provided written submissions at the commencement of his oral submissions. The submissions were 21 pages long and contained an analysis of seven comparable cases, as well as referring to 34 other authorities. The oral submissions that he made very closely reflected the content of those written submissions. He had not provided those written submissions to the court prior to the hearing or at the commencement of the hearing. When asked why this was the case he said he had not provided them because he had not heard the submissions that may be made on behalf of the offender and that might affect what the Crown says. He said that the Crown was under no obligation to put submissions forward in writing but that often those appearing for the Crown do so as a matter of convenience.

60.     While it is true to say that the Crown is not obliged to provide written submissions on sentence, the approach adopted in this case was inconsistent with the standard directions contained in Practice Direction 4 of 2018. That provides liberty to the parties to provide written submissions but requires that if they are provided they are to be provided at the same time as evidentiary material is provided. In the case of the Crown, that is four clear working days prior to the sentence date and for the offender, two clear working days prior to the hearing date.

61.     Not only was the approach adopted inconsistent with the Practice Direction and the standard directions made pursuant to it, it was also quite clearly inconsistent with the efficient disposition of the matter before the court. Written submissions are of great assistance to the court in all but the simplest sentencing matters. Their provision on behalf of the Crown and the offender is to be encouraged. The obvious purpose of the requirements of the Practice Direction is to permit such submissions to be considered by the court and the other side in advance of the hearing. So far as the court is concerned, advance notice of detailed submissions that are to be made is very important for the capacity of the court to deal with the cases before it in a timely and efficient manner. It makes it much more likely that a sentence will be able to be dealt with on the day of the hearing or promptly thereafter.

62.     That is particularly the case where, as here, the written submissions had within them a principled challenge to the approach routinely taken by the court on particular aspects of sentencing. The written submissions of the Crown made a principled challenge to the manner in which the assessment of objective seriousness is articulated. The submissions contended for a position inconsistent with that adopted by single judges: see Beniamini v Craig [2017] ACTSC 30; and by the Court of Appeal: Laipato v The Queen [2020] ACTCA 35 at [156]; cf The Queen v Miller [2019] ACTCA 25 at [18]-[23]. Although the submissions raised questions of general principle and were contrary to a decision of the Court of Appeal, this aspect of the written submissions was not referred to orally. Unless the only purpose of dealing with the issue in that manner was to bury a potential appeal point, yet avoid the submission on appeal that it was not raised below, it was unhelpful for the Crown to put its submissions forward in this manner.

63.     The approach adopted by counsel in the present case was inconsistent with Practice Direction 4 of 2018. It reflects a misunderstanding of the approach to be taken in relation to written submissions. If the case was one in which the Crown considered, for some good reason, it was appropriate to withhold written submissions on sentence from the court and the other side, then it should seek a direction that would depart from the requirements of the Practice Direction. There was no good reason for such an approach in this case. While counsel for the offender had not provided written submissions, any oral submission made by counsel for the offender could properly have been addressed orally by counsel for the Crown after it had been made and that would not have detracted from the utility of providing written submissions in accordance with the Practice Direction.

Orders

64.     The orders of the Court are:

1.       On the charge of attempted murder (SCCAN2020/2) the offender is convicted and sentenced to imprisonment for seven years and five months commencing on 22 July 2019 and ending on 21 December 2026.

2.       On the charge of attempted murder (SCCAN2020/3) the offender is convicted and sentenced to imprisonment for seven years and five months commencing on 22 July 2021 and ending on 21 December 2028.

3.       The non-parole period commences on 22 July 2019 and ends on 21 November 2025.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 22 January 2021