Blattman v Boon

1. The respondent, Steven Patrick Boon, entered pleas of guilty to the following offences for which he was sentenced on 13 March 2024 in the ACT Magistrates Court as follows: (a) CC2024/7519: Aggravated dangerous driving (first offender), contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) – sentenced to the rising of the court with a 12-month license disqualification imposed. (b) CC2024/7521: Aggravated common assault, contrary to s 26 of the Crimes Act 1900 (ACT) – sentenced to the rising of the court. (c) CC2024/7522: Contravene family violence order, contrary to s 43(2) of the Family Violence Act 2016 (ACT) – 18 months of imprisonment, commencing 13 March 2025 to be served by way of intensive correction order. (d) CC2024/7527: Use carriage service to harass, contrary to s 474.17(1) of the Criminal Code 1995 (Cth) – 12 months of imprisonment commencing 13 March 2025 to be served by way of intensive correction order. (e) CC2024/7524: Use carriage service to make a threat to kill, contrary to s 474.15(1) of the Criminal Code 1995 – 12 months of imprisonment commencing on 13 September 2026 to be served by way of intensive correction order. (f) CC2024/7523: Contravene family violence order, contrary to s 43(2) of the Family Violence Act – 12 months of imprisonment commencing on 13 September 2026 to be served by way of intensive correction order. (g) CC2024/7525: Aggravated threat to inflict grievous bodily harm, contrary to s 31 of the Crimes Act – 9 months of imprisonment commencing on 13 September 2026 to be served by way of intensive correction order. (h) CC2024/7526: Aggravated threat to distribute intimate image of another person, contrary to s 72E of the Crimes Act – 9 months of imprisonment commencing 13 September 2026 to be served by way of intensive correction order. (i) CC2025/225: Contravene family violence order, contrary to s 43(2) of the Family Violence Act 2016 – sentenced to the rising of the court. (j) CC2025/226: Contravene family violence order, contrary to s 43(2) of the Family Violence Act 2016 – sentenced to the rising of the court.

2. The total period of imprisonment imposed on the respondent was 30 months commencing 13 March 2025 and ending 12 September 2027. The entire period of imprisonment was to be served by an intensive correction order (ICO).

3. This appeal is brought by the Director of Public Prosecutions relying on a single ground of appeal that the sentence imposed was manifestly inadequate. The appellant contended that both the individual and total term of imprisonment imposed, as well as service of the period of imprisonment by ICO, was manifestly inadequate. The appellant submitted that the appeal ought to be allowed and that the Court would decline to exercise its discretion not to intervene and resentence the respondent.

4. On 11 November 2025, I dismissed the appeal with reasons to follow. These are those reasons.

Summary of the offending

5. The respondent and the victim of the offending had been married for approximately 17 years with the relationship ending in December 2023. At the time of the offences, the respondent and the victim had two children.

CC2024/7519 – aggravated dangerous driving (maximum penalty: 3 years of imprisonment, 300 penalty units, or both; automatic licence disqualification of 12 months)

6. This offence took place on 26 January 2024. The respondent and victim had been arguing at their residence in [redacted]. The respondent left the house and got in his car; the victim followed him outside onto the driveway. The respondent then ‘revved’ the vehicle’s engine and accelerate towards her. The victim was fearful she would be struck by the respondent and jumped out of the way towards her garage. In doing so, she struck a brick wall and injured her face and damaged the glasses she was wearing.

CC2024/7512 – aggravated common assault (maximum penalty: 3 years of imprisonment)

7. The respondent then drove his vehicle further to where the victim had been standing. He stopped and exited the vehicle and ran towards the victim who commenced running into the garage in an attempt to re-enter the residence. The respondent caught up to the victim, push her onto the ground by her shoulders. The respondent said to the victim: “If this new relationship breaks up over this, I’ll kill you” The respondent then left the location. A short time later, he telephoned the victim and repeated this threat to the victim. CC2024/7527 – use carriage service to harass (maximum penalty: 5 years of imprisonment)

8. On 6 February 2024, a deputy registrar of the Magistrates Court granted a Family Violence Order (“FVO”) against the respondent, prohibiting him from contacting the victim, with some exceptions. The respondent was personally served with the FVO on 19 March 2024. At about 7.13pm on 19 March 2024, the respondent sent a message to the victim via the WhatsApp messaging application from his mobile phone number. About 2 hours later, at 9.18pm, the respondent sent the victim a further message via WhatsApp with a picture depicting him setting the FVO on fire.

CC2024/7524 – use carriage service to make a threat to kill (maximum penalty: 10 years of imprisonment)

9. On 21 July 2024, between 8.15pm and 8.45pm, the respondent sent several messages to the victim via WhatsApp. The messages contained various threats including multiple threats to pour napalm on the victim and set her alight. At 9.33pm, the respondent sent the victim a video via WhatsApp which depicted an object exploding in the backyard of their [redacted] residence. The respondent sent messages to the victim which referred to the respondent preparing explosives and threatening to kill her. The victim feared the respondent’s threats would be carried out.

CC2024/7522 – contravene FVO (maximum penalty: 5 years of imprisonment, 500 penalty units or both)

10. Between 19 March 2024 and 23 July 2024, the respondent sent several hundred text messages via WhatsApp using 3 different mobile phone numbers. Many of the text messages were of a threatening and controlling nature.

CC2024/7525 – aggravated threat to inflict grievous bodily harm (maximum penalty: 7 years of imprisonment)

11. At 6.49pm on 24 July 2024, the respondent sent a picture to the victim via WhatsApp that depicted a pipe bomb which was accompanied by a message which said, “A gift for you” and “See after midnight cunt”. At 10.12pm, the respondent sent a further picture to the victim which depicted a damaged pot. This image was accompanied several messages that indicated the respondent had blown the pot up and that he would do the same to the house. Following this, the respondent sent the victim a picture of a pile of ammunition. The respondent had indicated to the victim previously that he was planning to obtain a firearm from the black market. CC2024/7526 – aggravated threat to distribute intimate image (maximum penalty: 4 years of imprisonment, 400 penalty units or both)

12. On the same evening between 9.22pm and 9.30pm, the respondent messaged the victim via WhatsApp with several abusive messages in addition to a threat to send an intimate image of the victim to her family members. The victim believed the respondent possessed intimate images of her and feared the respondent would distribute them. This conduct also constituted the charge CC2024/7523 – contravene FVO.

CC2025/225 – contravene FVO (maximum penalty: 5 years of imprisonment, 500 penalty units or both)

13. On 10 October 2024, whilst remanded in custody, the respondent contacted, his mother, [redacted]. In the course of their conversation the respondent asked if the victim was at the [redacted] residence and [the respondent’s mother] confirmed that she was. One of the conditions of the FVO prohibited the respondent from locating or attempting to locate the victim.

CC2025/226 – contravene FVO (maximum penalty: 5 years imprisonment, 500 penalty units or both)

14. At 9.28am on 10 October 2024, the respondent contacted [his mother] again asking her to contact the victim. [the respondent’s mother] told the respondent she could not contact the victim; however, the respondent asked her to send the victim a text message. The respondent asked [his mother] to pass a verbal message onto the victim. The FVO prohibited the respondent from causing another person to contact the victim.

Background

Proceedings before the Magistrate

15. On 11 March 2025 sentencing submissions were made by the prosecutor and the respondent’s legal representative.

16. The material before the magistrate included agreed statements of fact, the respondent’s criminal history, a collection of photographs and an intensive corrections order assessment report (ICOAR) which concluded that the respondent was a medium risk of reoffending and determined him ‘unsuitable’ for an ICO.

17. There were also two references for the respondent, two psychological assessments by Ms Vanessa Edwige dated 9 January and 30 January 2025, a statement of detainee employment from the Alexander Maconochie Centre, a letter from the Supports and Interventions Program and a letter from Karralika dated 24 January 2025.

18. A victim impact statement was read aloud by the victim during the proceedings. The statement detailed the varied and debilitating effect upon the victim of the respondent’s offending conduct as well as the victim’s strong wish for him to rehabilitate so that he can be involved in their daughter’s life.

19. The prosecutor appearing for the appellant emphasised the objective seriousness of the offending and submitted that the opinions contained in Ms Edwige’s reports should not have the effect of reducing the respondent’s moral culpability nor moderating the need for general deterrence. The appellant accepted that the two contravene FVO offences (CC2025/225 and 226) were “technical” breaches committed in custody. The appellant noted the respondent had been assessed as unsuitable for an intensive corrections order. The prosecutor accepted that the “underlying factor causing this offending” was the respondent’s drug use.

20. The prosecutor made the following submission with respect to the prospect of an ICO: We say that your Honour would not adopt that course. That’s in part, having regard to the report and the offender being found not suitable.

21. The respondent’s legal representative emphasised the significance of the contents of Ms Edwige’s report and submitted that a “full discount” was warranted for the respondent’s pleas of guilty. The “objectively serious” nature of the offences was conceded. The submissions highlighted that the respondent’s unsuitability for an ICO arose from his drug and alcohol dependency and it was submitted that the very nature of an intensive corrections order would involve addressing his challenges with drug use. The respondent’s abstinence from drug use whilst on remand was supported by consistent urinalysis results which had returned negative results.

22. The respondent accepted that his criminal history contained an entry from 2007 when he was sentenced in the Victorian County Court for an offence of recklessly causing serious injury for which he received a period of 2 years and 6 months of imprisonment, suspended after service of 6 months. The offence occurred in a family violence context. It is also involved use of drugs. It was noted that the offence in fact occurred in 2004 and the respondent had been on bail in Victoria without issue for 3 years whilst waiting the finalisation of his matter in 2007.

23. It was conceded on the respondent’s behalf that the offending warranted the imposition of periods of imprisonment and a submission was advanced that any term of imprisonment should be served in the community.

24. The matter was for sentence two days later, on 13 March 2025. The Magistrate’s decision

25. The magistrate referred to DPP v Jewell [2023] ACTSC 348, Pasinis v The Queen [2014] VSCA 97 and Marrah v The Queen [2014] VSCA 119 and the guidance they offered with respect to sentencing for family violence offences. His Honour cited Jewell at [108] where McWilliam J stated, “the importance of these offences occurring in a family violence context must be emphasised” and Pasinis at [57] where that court observed: General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.

26. The magistrate recorded the salient features of the offending and observed “I’ve considered a lot of the - first three series being the driving series, the extended breach and the final breach as essentially one course of conduct but obviously I’ve imposed sentences individually, but taking that into account in respect to totality”.

27. The magistrate had regard to factors set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT) and the preamble to the Family Violence Act as required by s 34B of the Crimes (Sentencing) Act. The magistrate identified factors he considered to be “particularly aggravating” which included the offending was a course of conduct which occurred over an “extended period” and involved “repeated communications with the applicant [in the family violence order], threats, belittling remarks, offensive comments and then of course we have the escalation in behaviour by [the respondent] on 24 and 25 July in which he sent her a number of text messages again insulting her, threatening to kill her, threatening to cause serious harm to her”.

28. The magistrate concluded with respect to the offending “they are matters that call for periods of imprisonment” and that “the court must send a message both to [the respondent] and to the community at large that this sort of offending will not be tolerated”.

29. The magistrate detailed the respondent’s subjective factors, noted his diagnosed adjustment disorder and formed the view that the respondents illicit drug use had exacerbated his mental health condition and “led to the commission of these serious offences”. The magistrate concluded that the reports before him “attempt to explain his behaviour but ultimately they do not mitigate, in my view”.

30. The magistrate recorded that at the time of sentencing the respondent had spent 232 days remanded in custody for the offending, observing: [The respondent] has now spent 232 days in custody, just shy of eight months’ of imprisonment. That is, in my view, significant period of time for a man who, although he has served a period of imprisonment some 20 years ago, has otherwise led a law abiding life in more recent time.

31. His Honour went on: [I]t appears that [the respondent] can return to the community, under supervision obviously and otherwise – and hopefully return to a law-abiding life noting that he’s demonstrated the ability to do so in the past.

32. The magistrate determined that the material supported a finding that the respondent was a strong prospect of rehabilitation and noted that the respondent had been found unsuitable for an ICO because of “unaddressed substance use”.

33. The magistrate applied a 25 per cent discount in recognition of the pleas of guilty and determined that an ICO was appropriate in the circumstances, endorsing the description of “model employee” while on remand and noting that he had been abstinent from drug use. By reference to his reasons for the purposes of s 78(6) of Crimes (Sentencing) Act the magistrate observed that this section of the act “does not render [the respondent] ineligible for an intensive corrections order as such, because it seems to me that the purpose of the order would achieve what the author of the report has expressed as a potential issue”. The magistrate determined that an ICO: [W]ould provide intensive supervision of [the respondent] to ensure that he does not fall back into illicit substance use and then re-offend. So despite the author finding the defendant unsuitable for it I have reached the conclusion that I will impose an intensive corrections (sic) order in respect of [the appellant] from today. It will effectively be for the – he will be supervised for the next two and half years. I propose to impose an additional condition in addition to the core conditions.

34. The respondent was sentenced in the terms set out at the commencement of this judgement. The effect of which was from the date of sentence a period of 30 months of imprisonment to be served in the community while subject to an ICO with respect to CC2024/7522, 7523, 7524, 7525, 7526 and 7527. The magistrate sentenced the respondent to the rising of the court on CC2024/7519 and 7521 and CC2025/225 and 226 “noting” the period the respondent had already spend in pre-sentence custody.

The appeal

35. The Supreme Court’s jurisdiction on an appeal against sentence from the Magistrates Court is governed by part 3.10 of the Magistrates Court Act 1930 (ACT) (the ‘MCA’), namely s 219B(1)(f).

36. The power for this Court to intervene, if error is established, is found at s 219F of the MCA: 219F Powers of Supreme Court (1) On a review appeal, the Supreme Court may, after considering the evidence before the Magistrates Court and any further evidence called by leave of the Supreme Court— (a) dismiss the appeal if satisfied that the decision of the Magistrates Court should be confirmed; or (b) set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court. (2) If, under subsection (1) (b), the Supreme Court sets aside, quashes or otherwise varies or amends a decision of the Magistrates Court, the Supreme Court may— … (c) for a decision mentioned in section 219B (1) (f)— (i) impose the sentence or penalty the Supreme Court considers appropriate; (ii) by order, exercise any power that the Magistrates Court might have exercised; or … (5) The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.

37. The High Court in House v The King [1936] HCA 40; 55 CLR 499 identified two bases upon which an appellate court may set aside a sentence imposed at first instance: One is where there is specific error, such as taking into account irrelevant considerations, failing to take into account relevant considerations, mistaking the facts or acting on a wrong principle. The other is where the court cannot identify such a specific error but the sentence is what is now called manifestly excessive or inadequate and the court may infer that there has been an error such that the discretion has not been properly exercised. Ground of appeal

38. The Director relied on a single ground of appeal that the sentence imposed by the magistrate was manifestly inadequate. The Director argued that the individual terms imposed as well as the total term of imprisonment imposed and the manner of service, was manifestly inadequate.

39. The principles relating to this ground are well established As the Court of Appeal held in R v Nicholas; R v Palmer [2019] ACTCA 36 at [67]: • Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge. • The relevant test is whether the sentence is unreasonable or plainly unjust. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice. • In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles. • It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence.

40. For this ground to succeed a consideration of all the matters relevant to determining the sentence must compel a conclusion that there was a failure by the magistrate to properly exercise the discretion because a proper sentencing process, applying the principles of sentencing, could not have yielded the plainly unjust or unreasonable outcome imposed on the respondent.

41. If error is established, the appellant must exclude any reason why the residual discretion not to intervene to increase the sentence should be exercised. The Full Court of the Supreme Court held in Harlovich v Sebbens [2023] ACTSCFC 3 that the residual discretion applies on a prosecution appeal against appeal, and “is not limited” by s 219B of the MCA and observed at [82]: [T]he residual discretion is concerned with questions of fairness and justice, both to the offender and with respect to the administration of justice generally. Some aspects of the discretion may be best addressed by application of the s 219F(5) discretion to dismiss an appeal “if the court considers that no substantial miscarriage of justice has happened”. Determination The assessment of objective seriousness

42. It is useful to first consider the magistrate’s assessment of objective seriousness.

43. As Baker J observed in Barrett (a pseudonym) v Pemberton [2025] ACTSC 152 at [19]: The principles relating to a Magistrate’s duty to make an assessment of objective seriousness in this jurisdiction are well established. It is necessary for the sentencing court to make an assessment of the objective gravity, or objective seriousness of the offending: Forster-Jones v The Queen [2020] ACTCA 31 at [29] – [30]. However, it is not necessary to reach a conclusion in the form of ‘labels’ such as ‘low-range’, ‘mid-range’ or ‘high range’ offending. Indeed, it has been held that: … references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case. R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]; R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [18] – [25]

44. The obligation to assess the objective seriousness is not fulfilled merely by a recitation of facts and that was not the approach taken by the magistrate. The magistrate recorded that the driving offence involved the respondent “driving at his partner and then assaulting her”.

45. The magistrate also referred to what Ms Mcann for the Director conceded in the appeal hearing was “some peculiarity” in the way the respondent had been charged with respect to some of the conduct. This was a reference to their being a contravention offence which covered the entire period of offending and individual charges for specific conduct within that period.

46. The magistrate took into account: (a) The features of the offences which influenced an assessment of their objective seriousness including the deliberate and repeated nature of the conduct which persisted over an “extended period”; (b) The offensive and belittling nature of the conduct; (c) The escalation in the respondent’s conduct that the latter offences represented culminating in a threat to the victim’s life and threats to cause her serious harm;

47. The magistrate readily concluded that the offending conduct captured by each individual charge was sufficiently serious to warrant imprisonment. There was no complaint about his Honour’s assessment in this regard. The individual sentences

48. The appellant contended that the individual sentences and the aggregate result were manifestly inadequate in light of the objective seriousness of the offences and relevant purposes of sentencing Sentenced to the rising of the court: CC2024/7519;7521 and CC2025/225;226.

49. The respondent was sentenced to the rising of the court for the following offences: (a) CC2024/7519: aggravated dangerous driving (b) CC2024/7521: aggravated (family violence) common assault (c) CC2025/225 and 226: contravene family violence order.

50. The maximum penalty for each offence recorded above, as a ‘yardstick’, demonstrates the objective seriousness of each offence. The dangerous driving offence involved the respondent driving toward the victim and the common assault offence saw him pursue and push her when she attempted to flee from him. The assault involved the application of physical force.

51. The contravene family violence order offences occurred when the respondent was on remand in the AMC. The prosecutor at first instance described them as “technical” examples of the offence. An unfortunate reference. Any conduct which contravenes a family violence order is in breach of the order. Of course, the contravening conduct involved and the circumstances which attend to it can influence whether the offence is a more or less serious example. It was not an insignificant factor that this contravening conduct occurred after the respondent had been remanded in custody in relation to offending against the victim. The prosecutor’s reference to the conduct which contravened the FVO as “technical” was perhaps intended to capture that neither contravention directly involved the victim. Each offence involved the respondent engaging with a third party about the victim. First to confirm where the victim was residing and secondly in an attempt to have contact made with the victim. There was no evidence that either contravention in fact resulted in direct engagement with the victim by the third party.

52. Against that background the prosecutor, properly in my view, accepted that the offences were “low end”. Notwithstanding that concession the magistrate determined that each contravention warranted the imposition of a term of imprisonment.

53. It can be accepted that a sentence to the rising of the court is a sentence of imprisonment which typically operates for a short period: Ledson v Taylor [2010] ACTSC 42; R v Pritchard (1836) 7 C. & P. 303. As Refshauge J observed in Ledson at [57] (citing Knight v Birch (1992) 106 ACTLR at [36]-[37]; 106 FLR 109 at [119]: It is a nominal punishment, almost never appropriate for serious offences. Such sentences have to be treated with some care.

54. The appellant submitted that “when regard is had to the serious nature of the present offences and the relevant purposes of sentencing for offences involving family violence, the sentencing disposition in the present case was unreasonably disproportionate to the gravity of the offending and failed to reflect those relevant sentencing purposes”. This submission might have merit if it was not plain that his Honour determined to impose such a sentence taking into account the almost 8 months that the respondent had been in custody by the time of sentencing hearing.

55. The question of recognition of time on remand when a sentence is to be served by way of ICO is not without complication. The Director conceded as much describing the issue as “vexed” citing R v Ingram [2016] ACTSC 199, R v Ngerengere (No 3) [2016] ACTSC 299, R v Johnston [2017] ACTSC 280 at [42]-[43] and DPP v Djerke (No 2) [2023] ACTSC 341 at [6]. The question of backdating more generally has also been the subject of considerable analysis: R v Elphick (no 2) [2015] ACTSC 23; R v Williams [2017] ACTSC 298; Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210; McIver v The King [2023] ACTCA 48; 20 ACTLR 303.

56. On a fair reading of his remarks the magistrate was aware that he was prohibited from imposing a period of full-time imprisonment in combination with a sentence to be served by way of intensive correction order. The only conclusion available on a fair reading of the sentencing remarks in my view, is that the magistrate determined that the period the respondent had spent on remand sufficiently captured the seriousness of the four offences for which the sentence to the rising of the court was imposed.

57. The Director referred to the practice of reducing a term of imprisonment to reflect a period spent in pre-sentence custody as “highly undesirable” citing the observations of Penfold J in R v Johnston and Djerke (No 2). Moreover, the Director’s submissions set out numerous complications that attend to the sentencing task when an offender who has spent time on remand is to be sentenced for multiple offences and a determination is made to impose an ICO. The Director highlighted the “difficulty” presented by the prohibition in s 80(1) of the Crimes (Sentencing) Act on an ICO served consecutively with a sentence of full-time imprisonment and the application of ss 70 and 71 which is unnecessary to explore further for the present purposes. Suffice it to say that the Director accepted that the legislative regime in these circumstances makes for a sentencing task that is not straight forward.

58. The submissions acknowledged that the conclusion reached by Penfold and Refshauge JJ in Ingram and Ngeregere (No 3) that the legislation did not permit an ICO to be backdated to a take account of pre-sentence custody may not be “entirely accurate”. R v Slifkas [2019] ACTSC 40 and R v Figura (No 2) [2019] ACTSC 299 would appear to suggest that such an approach is permitted. Figura (No 2) involved an offender sentenced for multiple offences. Neither Slifkas nor Figura were the subject of appeal.

59. The Director submitted that s 80(1) “appears” to preclude an outcome which would see an offender sentenced to periods of full-time imprisonment by reference to time already spend on remand (and no non-parole period) and the remaining sentence/s imposed as periods of imprisonment to be served by ICO.

60. The analysis contained in the Director’s submissions concluded with a concession that the magistrate was not assisted by the parties with the application of the difficult sentencing regime and that “his approach could be seen as an attempt to grapple with the difficulties encountered by the statutory scheme”. In my view this is the only way to view his Honour’s approach.

61. The Director accepted that the complications created by the commonly occurring sentencing scenario whereby an offender has been on remand and is to be sentenced for multiple offences and an ICO is contemplated, require legislative clarification. Whilst it may be, as the Director submitted, that in some cases “the inability to backdate a sentence or imposes a full-time component for other offences potentially leads to a manifestly inadequately sentences and other unjust outcomes”, the outcome for the four offences subject to this appeal was not manifestly inadequate.

62. The sentence to the rising of the court was imposed taking into account almost 8 months of pre-sentence custody. Such an approach was plainly available to the magistrate regardless of the complications created by the prospect of an ICO. The “low end” nature of the contravention offences did not demand the imposition of a severe period of imprisonment in the circumstances and the salient features of the driving offence and the related common assault (including that they were part of a single criminal enterprise) to which his Honour had regard warranted a period of imprisonment with a substantial degree of concurrency. The sentences imposed, in the circumstances, were not manifestly inadequate. The sentences imposed on the remaining offences

63. The Director also contended that the period of imprisonment imposed on each of the other offences, the aggregate sentence and the manner of service of the total period of imprisonment is manifestly inadequate “having regard to the gravity of the offending and the relevant purposes of sentencing”.

64. The respondent was charged with what is best be described as a ‘global’ charge of contravening the FVO, CC2024/7522 which covered offending between 19 March 2024 and 23 July 2024 during which the respondent sent hundreds of messages to the victim. For this offence the respondent was sentenced to 18 months of imprisonment.

65. CC2024/7523 (contravene FVO) captured a shorter period between 24 and 25 July 2024 and involved far fewer messages to the victim. For this offence, the respondent was sentenced to 12 months of imprisonment.

66. The following offences all occurred within the period of the contravention offences CC2024/7522 and CC2024/7523:

• CC2024/7527 (carriage service to harass) occurred on 19 March 2024 and the respondent was sentenced to 12 months of imprisonment. • CC2024/7524 (use carriage service to make threat to kill) occurred on 24 July 2024 and the respondent was sentenced 12 months of imprisonment

• CC2024/7525 (aggravated threat to inflict grievous bodily harm) occurred on 24 July 2024 and the respondent was sentenced to 9 months of imprisonment.

• CC2024/7526 (aggravated threat to distribute intimate image) occurred on 24 July 2024 and the respondent was sentenced to 9 months of imprisonment.

67. The period of imprisonment imposed on CC2024/7527 was entirely concurrent with the period of imprisonment imposed on CC2024/7522. CC2024/7524 was entirely consecutive on CC2024/7527. CC2024/7523, 7525, 7526 were entirely concurrent with CC2024/7527.

68. The Director conceded that the interaction of the charges and the conduct captured by each charge was a ‘peculiar’ aspect of the matter which his Honour was obliged to recognise. The offences were to a degree legally and factually intertwined. The offences involved significantly harassing and threatening conduct which the respondent appeared capable of fulfilling. As his Honour recognised it was conduct which had a significant effect upon the victim and it was conduct which warranted imprisonment.

69. The director conceded the following matters: (a) The subjective case for the respondent supported the imposition of a sentence which promoted rehabilitation. (b) The sentencing task required the application of the totality principle and a need to avoid double punishment in light of the way the respondent was charged. (c) There is no single correct approach to the structure of a sentence which involves multiple offences and questions of concurrency or cumulation are discretionary. (d) “Care” was necessary in the respondent’s case to ensure the sentence imposed did not go beyond that which the total criminality demanded because of the fact that “the offences all occurred within the same or similar period of time”.

70. Notwithstanding those concessions the Director maintained the position that the seriousness of the offending warranted the imposition of a sentence with greater accumulation and that the gravity of the offending called for sentences of full-time imprisonment.

71. The total period of imprisonment imposed was not insignificant. The period imposed on each individual sentence was the result of a reduction in recognition of the respondent’s plea of guilty about which the appellant makes no complaint. It cannot be ignored that the respondent had spent a substantial period on remand by the time he came to be sentenced. This was in the context of a criminal history which consisted of two prior entries, namely, defacing private premises for which the respondent was fined in 2021, and recklessly causing serious injury for which the respondent received a sentence of 2 years and 6 months (suspended after 6 months) from the Victorian County Court in 2007 for offending that occurred in 2004.

72. It is trite, though bears repeating, that the sentencing task involves discretion and a process of ‘instinctive synthesis’. Whilst that process does not serve to “cloak the task of the sentencer in some mystery” it does reflect the task of the sentencer to take all the relevant factors into account and arrive at a single outcome which “balances many different and conflicting features”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611 [75].

73. The High Court in Barbaro v The Queen [2014] HCA 2; 253 CLR 58 rejected a strictly “mathematical” approach to sentencing. At [34], the plurality said: Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. (Footnotes omitted.)

74. The Director referred to the outcome imposed on the offender in Jewell by way of comparison.

75. On close consideration the offending in Jewell can be readily distinguished from the offending in this instance. Jewell did involve an aggravated (family violence) threat to kill which carried a maximum penalty of 13 years of imprisonment and a contravention of a family violence order which carried a maximum penalty of 5 years of imprisonment. A significant feature distinguishing the offender in Jewell from the respondent, was that at the time the offences were committed he was subject to three suspended sentence orders for offending against the same victim (including two counts of threatening to kill her). The aggravated threat to kill in Jewell involved attendance by the offender at the victim’s home for at least an hour, the use of a knife to enforce the threat to kill after entering her home and a victim who thought she would be killed. In addition, the Court of Appeal endorsed the conclusion of the sentencing judge that the offender was at an increased risk of reoffending because of his childhood experience and his mental health diagnosis. The appellate in this matter made no complainant about any of the magistrate’s findings with respect to the respondent’s prospect of rehabilitation.

76. The magistrate was required to ensure a sentence which properly reflected the overall criminality of the conduct. The principles governing totality were stated in R v Carberry [2023] ACTCA 32 at [92]: There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways: Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19, at [56]. In determining questions of accumulation or concurrence, his Honour was required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill v The Queen (1988) HCA 70; 166 CLR 59.

77. The High Court described the process when sentencing an offender in relation to multiple offences in Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [64] as follows: Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency. (Citations omitted.)

78. As I have already recognised, the sentencing task which confronted the magistrate was not straight forward. It required an assessment of multiple individual offences. The offences were objectively serious and the effect of the offending on the victim was an important consideration. There was pre-sentence custody to reckon with and the imposition of an ICO to consider. As the Director conceded the respondent presented a compelling subjective case. There was foundation to conclude that rehabilitation was a realistic prospect for the offender.

79. It is necessary for an appellate court to “respect the wide discretion of the sentencing judge concerning an appropriate sentence”: R v Nicholas; R v Palmer [2019] ACTCA 36 at [66]. That being so, to justify intervention the appellant must establish that the sentencing discretion miscarried because the sentences imposed were inadequate in light of the gravity of the offending.

80. The recent observation in DPP v Hojlund [2025] ACTCA 52 at [22] is apposite: In an appeal concerning only the sentence duration and no overt error in reasoning, the word “manifest” will often have real work to do. The Macquarie Dictionary describes the ordinary meaning of that word as “readily perceived by the eye or the understanding; evident; obvious; apparent; plain”. The requirement that the inadequacy be “manifest” reflects that the ground is only made out where the result is inappropriately lenient to such a degree that it supports an inference that there was a latent error of principle committed by the sentencing judge, even though no error can be identified on the face of the reasons given.

81. As was observed by the Court of Appeal in CX v The Queen [2017] ACTCA 37 at [28] and acknowledged by the appellant: Questions of concurrency and accumulation are discretionary matters for a sentencing judge and there may be a variety of means to achieve a total sentence that appropriately reflects the totality of the criminal behaviour. As questions of accumulation are intuitive, the level of transparency that can be provided by a sentencing judge are limited.

82. The structure of the sentence was achieved by a combination of concurrence and cumulation. The determination that significant concurrency was warranted as between some of the offences does not by itself demonstrate manifest inadequacy. Indeed, as the appellant conceded (and his Honour recognised) the need to avoid double punishment was a complication which required careful consideration. It is instructive to consider the observation of the Court of Appeal in R v Meyboom [2012] ACTCA 48 at [64]-[65] as to the application of the principle of totality when determining questions of concurrency and cumulation: That is, the High Court [in Mill v The Queen (1988) HCA 70; 166 CLR 58] recognised that the task of imposing the appropriate sentence for the totality of the offender's criminal behaviour may require more than just choosing the appropriate individual sentences and then providing for them to run concurrently or consecutively in accordance with the concurrency and accumulation principles. A sentencing judge may need to provide for more or less concurrency or accumulation than the concurrency and accumulation principles would suggest, in order to ensure that the total sentence matches the totality of the criminal behaviour. On that analysis, a failure to provide for concurrency or accumulation in accordance with the concurrency and accumulation principles might reflect not an error in applying those principles but rather the use of those techniques in order to comply with the totality principle, a principle which, in our view, must take priority over the general guidance provided by the concurrency and accumulation principles. It seems to follow from that possibility that an apparent failure to apply the concurrency and accumulation principles should not necessarily be identified as erroneous unless the total sentence concerned seems to be inadequate or excessive.

83. The result of his Honour’s consideration in this case was individual sentences and an aggregate sentence of some severity. The appellant has not established that either the individual sentences or the aggregate sentence imposed was below the range that could “justly be imposed consistent with sentencing standards”: Nona v The Queen; R v Nona [2015] ACTCA 34 at [89].

84. Taking into account the principles I have identified, the objective seriousness of the offending, the subjective circumstances of the respondent and the ‘peculiarity’ in the charging which necessitated care to avoid double punishment, neither the individual sentences imposed nor the total sentence imposed, were manifestly inadequate. The manner of service

85. Despite its service in the community, an ICO is a term of imprisonment. So much was acknowledged by the Court of Appeal in Wyper v The Queen [2017] ACTCA 59; 19 ACTLR 288 at [127] when it identified that the legislature intended an ICO to be an “onerous sentence of imprisonment, albeit one that was served in the community”. Plainly not the equivalent of a period of full-time imprisonment, an ICO nonetheless imposes a substantial level of supervision upon an offender which demands compliance. A failure to comply with the onerous obligations can result in a determination by the Sentence Administration Board that an offender should return to custody.

86. Whilst the appellant acknowledged that there is no barrier to the imposition of an ICO where the offending includes sexual or family violence, in this instance it was submitted that the “gravity of the offending called for sentences of full time imprisonment to adequately reflect the seriousness of the offending and the purpose of sentencing, including general denunciation and recognition of harm done to the victim and the community”.

87. The overall sentence imposed on the respondent was undoubtedly structured so as to recognise the almost 8 months he had spent on remand. The magistrate concluded that the period on remand was “a significant period of time for a man who, although he has served period of imprisonment some twenty years ago, has otherwise led a law-abiding life in more recent times” and acknowledged that after a period of incarceration many years earlier the respondent had gone on to “become a well-respected contributor to the community”.

88. The magistrate also observed that the respondent had been a “model employee” whilst in custody, had taken steps to address his use of illicit substances whilst in custody and had remained abstinent from illicit substance use whilst in custody. The offending conduct occurred in the context of the respondent developing an adjustment disorder in the face of his marriage breakdown and “making the foolish decision” to engage in illicit substance use. The appellant did not challenge any of these findings.

89. The decision of the magistrate to order that the 30-month period of imprisonment be served by an ICO was undoubtedly attended to by a degree of leniency. It was open to the magistrate to conclude that the extension of leniency was warranted in the circumstances. The respondent had entered pleas of guilty at early opportunity, had taken steps in custody to address the factors driving his offending conduct and had not offended for many years. It was also well open to the magistrate to conclude that the period he had already spend in custody in relation to the episode of offending conduct had achieved some level of deterrence and punishment.

90. The imposition of an ICO can clearly reflect purposes of sentencing for offending in a family violence context such as punishment, denunciation and general deterrence. In this instance there was a proper foundation for rehabilitation to also carry significant weight in the sentencing task.

91. Whilst the order directing the sentence be served by ICO was lenient, it does not demonstrate that the sentencing discretion miscarried. The magistrate, applying correct sentencing principles, sufficiently explained in his sentencing remarks the basis for the exercise of his sentencing discretion and imposed a sentence that is within the available range.

92. The appellant has not established that the individual sentences, the aggregate sentence or the manner of service were manifestly inadequate.

Residual discretion

93. Had I come to a different conclusion about the success of the single ground of appeal, I would nonetheless have determined to exercise the residual discretion not to intervene. To re-sentence the respondent in my view would occasion an unfair burden upon him and severely undermine his progress towards rehabilitation in circumstances where he has been in the community serving the ICO since 13 March 2025, he has obtained full time employment and participated in rehabilitation programs at Karralika and Everyman.

Conclusion

94. The single ground of appeal has not been established. For those reasons, the appeal was dismissed.

Orders

95. On 11 November 2025 I made the following order: (1) The appeal is dismissed. I certify that the preceding ninety five [95] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor.

Associate: O Williams Date: 10 March 2026