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1. I have had the considerable benefit of reviewing the comprehensive draft judgment of McWilliam and Abraham JJ. I respectfully take a different view from their Honours on this prosecution sentence appeal.

2. There is no question that the total effective sentence imposed by the Judge at first instance, a very experienced judge in the criminal law, tended towards substantial leniency. Nevertheless, leniency in sentencing, of itself, does not equate to manifest inadequacy in sentencing.

3. It is well established that the primary purpose of a Prosecution appeal is to lay down the principles for the governance and guidance of courts with the duty of sentencing offenders: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [1]. In CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346 (CMB) at [55] the High Court affirmed the following passage from Green with respect to the limitations of that purpose (at [36]): … That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.

4. It is appropriate to deal with the appeal grounds before the Court with that limiting purpose, as underlined by the High Court, as an overarching framework. Further, it is convenient to deal in this judgment, initially, with the first three grounds of specific error before dealing with the fourth and final ground of manifest inadequacy.

Specific error grounds

5. Grounds 1 and 2 involve errors in the plea of guilty discount applied in respect of a number of charges. I agree with the majority that error is established in respect of both Ground 1 and Ground 2.

6. Ground 3 involves an error in the assessment of objective seriousness relating to a charge of assault occasioning actual bodily harm. I agree with the majority that error is established in respect of Ground 3.

7. Error having been established, it is appropriate to then consider the residual discretion in relation to these discrete errors.

8. While appeals against sentence by an offender are concerned with the correction of error in an individual case, the High Court has repeatedly stated that appeals brought by the prosecution are concerned with the broader level of principle, that is the governance and guidance of courts: see Griffiths v the Queen [1977] HCA 44; 137 CLR 293, Green, Everett v The Queen [1994] HCA 49; 181 CLR 298 and CMB.

9. If a sentence is to be increased, it is for the prosecution to identify not only an appellable error in the decision, but also to negate any reason why the residual discretion not to interfere should be exercised: See CMB at [34], [60] and R v Nicholas; R v Palmer [2019] ACTCA 36 at [117].

The residual discretion and the principle against “tinkering”

10. In terms of the exercise of the residual discretion relevant to the three specific error grounds discussed above, the question of what has come to be known as tinkering is relevant.

11. What is “tinkering”? Tinkering is a relatively slight increase in sentence. Tinkering encompasses the following: the fact that, were the Court to impose a substituted sentence, the increase would be so slight as to constitute “tinkering”. The injunction against tinkering applies to prosecution appeals: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [62], R v Woodland [2007] NSWCCA 29; 48 MVR 360 at [53] and Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312; 198 A Crim R 565 (Hillier) at [48]-[49].

12. It is doubted that the injunction against tinkering applies to appeals by offenders as it acts against the interests of the liberty of the offender: see Hillier. See also Krutsky v McCormick [2024] ACTSC 3 at [14] and Hayne v Zheng [2023] ACTSC 326 at [14].

13. In my view the Prosecution has failed to demonstrate that a successful appeal on Appeal Grounds 1 and 2 would amount to anything other than “tinkering” with the sentence, that is, nothing but a slight adjustment in sentence.

14. For example, in relation to Ground 1 if the discount were reduced from 25% to 10% it would result in a difference of approximately 2 months, specifically 2 months and 12 days.

15. There are 4 sentences which form the crux of appeal ground 2. Thus, if 10% discounts as contended for by the Prosecution in their appeal ground are applied, as opposed to the discounts applied by the sentencing judge, the following analysis emerges.

16. On the first charge (CC2022/786), a sentence of 16 months as opposed to just over 17 months (discount of 16%); a difference of a month.

17. Second, in relation to charge CC2022/794, a sentence of 10 months as opposed to a sentence of 10 months and 24 days (a discount of 17%). A difference of 24 days emerges.

18. Third, in relation to CC2022/789, 8 months as opposed to 9 months. Again, a slight difference of a month constituted by a discount of 20% as opposed to 10%.

19. Similarly, in relation to the fourth charge (CC2022/4066), a sentence of 8 months as opposed to 9 months constituted by the difference between a discount of 20% to 10%. I cannot but conclude these are somewhat derisory “tinkering” adjustments to sentence, that is, taking into account the overarching limiting purpose of prosecution appeals.

20. Now, in respect of Ground 3 a similar analysis prevails, in my view, on considering the residual discretion. On the basis of the Prosecution’s submissions, what emerges is that the ulnar nerve transposition surgery is attributable to the first in time assault occasioning actual bodily harm offence, not the second in time assault occasioning actual bodily harm offence as stated by the sentencing judge. In my view, this does not amount to a substantial difference in sentence but rather a “tinkering”, or slight, difference for which the residual discretion must apply. The surgery was not ignored by the sentencing judge, it was referred to in the context of one assault occasioning actual bodily harm and not the other. The sentence of the first assault occasioning actual bodily harm was nine months imprisonment. The sentence of the second in time assault occasioning actual bodily harm was 10 months imprisonment.

21. Thus, in my view, the three grounds of specific error, where established, should not result in an increase in sentence on appeal. This is by application of the residual discretion.

22. In conclusion, it is important that the residual discretion is applied in this case to these specific error grounds because the gravamen of the grounds, as established, would result in only relatively slight differences in sentence.

23. Before leaving this topic it is relevant to note the following from R v UG [2020] ACTCA 8 (UG) at [63]: Neither the Sentencing Act nor the general law requires a sentencing judge to give lengthy reasons. The delivery of ponderous reasons that rehearse every conceivable consideration should be avoided as it is inimical to the prompt sentencing of offenders in a manner that is clearly communicated to the community and victim. I agree with the following observations of the Court of Appeal in Chin-Charles v The Queen [2019] EWCA Crim 1140, albeit that the observations concern sentencing within a different statutory framework (at [7]–[8]): There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. … The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of the appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that. (citations omitted.)

24. I note the comments of the Court of Appeal in UG at this juncture to underline that, in my view, these were particularly technical grounds of appeal.

25. Having dealt with the first three grounds, it is now appropriate to deal with the fourth and final ground of manifest inadequacy which must be the crux of this appeal.

Is the overall sentence manifestly inadequate?

26. Unquestionably, a harsher overall sentence might have been imposed; that is not the applicable test. That a harsher sentence might have been imposed, in particular taking into account the extended and serious violence involved, is clear. That a harsher overall sentence might have been imposed, however, is not determinative. I am not satisfied that the total sentence and the non-parole period were unreasonable or plainly unjust. The overall sentence clearly approached but was not below what could justly be imposed in this case for the following reasons.

27. First, the principles to be applied as to whether the sentence is manifestly inadequate have been stated in a number of decisions of the High Court. A Court of Appeal will only intervene if the sentence is unreasonable or plainly unjust in House v the King terms, such that the Court of Appeal may infer that, in some way, there has been a failure of the sentencing judge to properly exercise the sentencing discretion. See Dinsdale, Wong v The Queen [2001] HCA 64; 207 CLR 584, Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520.

28. When applying these principles an appellate court must not substitute its own opinion for that of the sentencing judge on the basis that the appellate court would have given a higher sentence (in the case of a finding of manifest inadequacy) or a lower sentence (in the case of a finding of manifest excess). See Lowndes v The Queen [1999] HCA 29; 195 CLR 665 and Director of Public Prosecutions v Drake [2019] VSCA 293 at [29].

29. Why is this so? It is for the reason that it is not to the point that a Court of Appeal might have exercised the sentencing discretion differently. That is because, and this bears repeating, there is no single correct sentence and it is well established that judges at first instance must be allowed as much flexibility in sentencing as is possible, while taking into account and being in accordance with consistency of approach and application of principle. See Markarian v the Queen [2005] HCA 25; 228 CLR 357 (Markarian) at [27] and Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [46]. In this case, on my review of the sentencing remarks, the sentencing judge’s approach and application of principle does allow for flexibility in sentencing.

30. Second, the exercise of the sentencing discretion is not a simple exercise of sole consideration of the objective seriousness of offences and then making deductions from the maximum penalty: see Markarian at [31]. Nothing said by the High Court in R v Kilic [2016] HCA 48; 259 CLR 256 or Elias v The Queen [2013] HCA 31; 248 CLR 483 detracts from that proposition: see R v Anquetil [2021] NSWCCA 59 per Bathurst CJ (as his Honour then was) at [149]: [T]he maximum penalty is a yardstick to which attention must always be paid, but it is something which will not necessarily play a decisive role in the final determination.

31. As I stated at the outset, in this case a very experienced criminal law judge exercised his sentencing discretion in a manner that may be considered to be lenient. That is not manifest inadequacy on the principles discussed above. That is not error, it is leniency.

32. Has this sentence crossed the line in appellate terms, in House v The King terms, from lenient to manifest inadequacy? Is it plainly unjust? It is not, on my review of the sentencing judgment as I discuss in further detail below.

33. His Honour, in a judgment of some 37 pages, dealt with all relevant considerations concerning both the offences and the offender, the respondent in this prosecution appeal. The respondent received a total sentence of 5 years and 7 months at the age of 26 for offences committed when he was aged between 23 and 24.

34. The sentencing judge considered it proper to structure the sentence so that the respondent would have a “lengthy period of supervision” if and when he was found suitable for parole by the relevant authorities.

35. The sentencing judge in this case, at paragraphs [2]-[4], began with the following: Though the Family Violence Act does not directly address the criminal law concerning acts of family violence, it is a useful description for a phenomenon well known to the criminal law, which Higgins J described it in the R v Bell [2005] ACTSC 123 at [3] as “a pernicious and evil phenomenon”. In Beniamini v Craig [2017] ACTSC 30, the Court cited with approval what had been said in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [77]-[78], namely: 77. …An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pages 6-7. 78. Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime: J People, “Trends and Patterns in Domestic Violence Assaults”, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No. 89, October 2005, page 2. Domestic assaults accounted for 35%-40% of the assaults recorded by police each year from 1997 to 2004: J People, above, at page 11.3․ Fortunately, the latter estimates are changing, but it is still clear that much family violence is not reported to police, though, fortunately, that which is reported is now taken very seriously and often prosecuted. In this case it is pertinent to note that, in R v Smith (No 2) [2022] ACTSC 246 at [44] the Court cited with approval what had been submitted by the prosecutor, noting: …The prosecution outlined in general sense the “complex and pernicious” nature of family violence offending wherein victims often act contrary to their own interests and welfare. The prosecution submitted the following: A feature of family violence which is most commonly associated with women is the ‘cycle of abuse’ which generally progresses through phases, including a period of loving and remorseful behaviour by the perpetrator that seduces the victim to remain in the relationship (which is what happened here). It is also characterised by repeated manipulative and controlling behaviour which limits, directs and shapes a victim’s thoughts, feelings and actions. Perpetrators often combine subtle and overt methods to maintain their control over a victim or to have them do their bidding…

36. The facts of the offending against the victim were covered in some 7 pages of the judgment in Padreny, outlining the appalling offences. The judge dealt with objective seriousness of the offences over approximately 9 pages and spent approximately 4 pages detailing subjective factors and approximately 3 pages summarising the Victim Impact Statements. The judgment was detailed and thorough in all aspects of sentencing.

37. The sentencing judge stated the following in relation to the victim of these offences at [144]-[145]: Very important too is the acknowledgement of the harm done to the victims. It is easy to overlook or minimise this, but it is a statutory requirement and an important component of constructing a civilised and respectful community. The Court has taken into account the nature and circumstances of the offending, as has been described, as well as the findings on Mr Padreny’s personal circumstances. It is also important to have careful regard to the Victim Impact Statements which show, in stark terms, the effect of these crimes on this victim and those she loves and who love her. Current sentencing practice is also important.

38. The sentencing judge stated the following concerning the respondent’s rehabilitation at [143]: Nevertheless, his wish for rehabilitation is by no means irrelevant and, while it must be approached with considerable caution, the limited steps that he has taken are very important and should, if possible, be used in the sentence to build upon as a start for his reform, which, as with all the other purposes already mentioned, are directed to the protection of the community.

39. The sentencing judge stated the following in relation to totality at [157]: The length of the total sentence must then be reviewed to ensure that the principle of totality is respected, and that the total sentence is adequate to reflect the total criminality, but no more than that, and that the total sentence is not excessive and will leave open the realistic prospect of reform and hope for Mr Padreny to achieve his goals when he is released into the community. That has been done. The Court must also ensure that the sentence does not leave the perception that the offender can permit multiple offences with impunity. That has also been considered.

40. The sentencing judge stated the following in relation to a non-parole period at [161]: … Accordingly, since the sentence is more than 12 months, consideration must be given to a non-parole period. Given the period during which Mr Padreny has been in custody, the possibility of a treatment plan of the kind proposed by Dr Ahmed and the progress Mr Padreny has made in custody and the course he has undertaken, a shorter non-parole period seems appropriate. Of course, the objective seriousness of the offending is important and must also be weighed in that consideration. It is also possible, of course, for Mr Padreny to undertake rehabilitation of a significant kind while in custody.

41. By way of brief background, I note the respondent completed Year 12 and enrolled to study Physics at the Australian National University. He could not afford to continue his studies and began working. Work apparently became limited during the COVID-19 pandemic.

42. The synthesis of sentencing considerations is a difficult process. This is because sentencing often involves dealing with and weighing conflicting considerations: see The Queen v Low [2022] ACTCA 59 at [50]. See also Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 476, where Mason CJ, Brennan, Dawson and Toohey JJ emphasised that the guideposts that are the purposes of sentencing sometimes “point in different directions”.

43. For my part, I cannot conclude there was error in his Honour’s approach. The approach adopted by the sentencing judge is, in my view, a balanced approach to instinctive synthesis; in this case his Honour has carefully crafted a sentence to reflect a just result in this individual case. The Prosecution has not established that the sentence is unreasonable or plainly unjust.

44. There must be a place for leniency when an experienced judge forms the view that leniency at that stage of the offender’s life might lead to reform, as stated in R v Osenkowski (1982) 30 SASR 212 at 212-213, where King CJ, with respect to prosecution appeals against lenient sentences, stated: It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offenders life might lead to reform. (emphasis added.)

45. Kirby J (with whom the other members of the High Court bench agreed) discussed leniency in Dinsdale at [68] and stated the following in relation to the consistency of imposing sentences of imprisonment: …[T]here is no absolute rule. Each case must be judged on its own facts. The adoption of a blanket rule would itself be an error of sentencing principle. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case, any exceptional circumstances affecting the prisoner, and in some cases the prisoner’s family, or some feature of the matter that reasonably arouses a judicial decision that a measure of mercy is called for in the particular case. (citations omitted.) (emphasis added.)

46. It is well-established in criminal sentencing that, while sentences need to reflect community expectations of punishment in the sense of retribution, denunciation and deterrence, and maintain public confidence in the administration of justice, the sentence must also take into account the community’s interest in rehabilitation. It cannot be ignored that offenders must be released from prison at some stage (unless sentenced to life imprisonment), either at the end of a head sentence, or sooner on parole, depending on whether the promise of rehabilitation proves to be sound. It is important, for our society, that offenders are rehabilitated people upon release from custody. Rehabilitation is not only important for offenders, but also for our broader community. See R v Tuifua [2023] ACTCA 6 and French CJ’s comments in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].

47. In conclusion the prosecution, in my view, has not established that the sentence is unreasonable or plainly unjust. That is a high bar that has not been met by the Prosecution in the case of this individual respondent. Criminal justice is individual. It bears repeating, as stated by Mahoney ACJ in Kable v Director of Public Prosecutions (1995) 36 NSWLR 374, “if justice is not individual, it is nothing”.

48. In my view the appeal should be dismissed.

McWilliam and Abraham JJ:

49. This is an appeal by the Director of Public Prosecutions (Prosecution) in relation to sentences imposed on the respondent on 30 May 2023 by Refshauge AJ: DPP v Padreny [2023] ACTSC 286 (primary judgment). Damien Padreny was sentenced for 14 offences, to which he pleaded guilty, which were committed against his intimate partner over an eight-month period between February and October 2020. As reflected in the table below, the offences involved threats to kill or endanger the safety of the victim, repeated physical acts of violence including choking and forcible confinement, and property damage which included punching walls or kicking doors while the victim was barricaded in another room and setting fire to the victim’s property. The victim required surgery as a result of two of the offences.

50. The sentences imposed were as follows:

Series Date Offence Maximum Sentence Penalty Imposed (imprisonment) (discount for guilty plea)

1 25 February CAN 2022/786: Making a reckless 10 years 16 months threat to kill 2020 (16%) Crimes Act 1900 (ACT) (Crimes Act), s 30 CAN 2022/787: Forcible 10 years 7 months confinement (12.5%) Crimes Act, s 34 CAN 2022/422: Act endangering 5 years 12 months health – choke/suffocate/strangle (14%) Crimes Act, s 28(2)(a) 2 12 May 2020 CAN 2022/789: Common assault 2 years 8 months Crimes Act, s 26 (20%) 3 16 May 2020 CAN 2022/801: Damage property 2 years 6 months less than $5000 in value (14%) Crimes Act, s 116(3) 4 14 August CAN 2022/790: Common assault 2 years 7 months 2020 (12.5%) Crimes Act, s 26

5 13 CAN 2022/793: Assault occasioning 5 years 9 months actual bodily harm September (10%) 2020 Crimes Act, s 24(1) CAN 2022/423: Damage property 2 years 6 months less than $5000 in value (14%) Crimes Act, s 116(3) 6 Between CAN 2022/424: Damage property 2 years 6 months less than $5000 in value 10 (14%) September Crimes Act, s 116(3) 2020 and CAN 2022/4005: Damage property 10 years 6 months 20 Criminal Code 2002 (ACT) (Criminal (14%) September 2020 Code), s 403 CAN 2022/4006: Common assault 2 years 8 months Crimes Act, s 26 (20%)

CAN 2022/4007: Act endangering 5 years 12 months health – choke/suffocate/strangle (14%) Crimes Act, s 28(2)(a) 7 18 CAN 2023/1866: Make a demand 10 years 12 months with a threat to endanger health, September (25%) safety, or physical well-being 2020 Crimes Act, s 32(2) 8 10 October CAN 2022/794: Assault occasioning 5 years 10 months actual bodily harm 2020 (17%) Crimes Act, s 24(1)

51. The total aggregate sentence imposed was 5 years and 7 months’ imprisonment, from 26 February 2022 to 25 September 2027.

52. A non-parole period of 2 years and 6 months was imposed, which represents approximately 45% of the total head sentence. The non-parole period expires on 25 August 2024.

53. The sentencing judge detailed the facts of the offences in the primary judgment at [11]- [96] and save for a misstatement of an aspect of one offence referred to in Ground 3 of the appeal, no issue is taken with its accuracy. The sentencing proceeded on the basis of an agreed statement of facts which is Annexure A to this judgment.

54. A sentence graph containing the commencement dates for each sentence imposed by the sentencing judge and displaying the degree of concurrency for each sentence is Annexure B to this judgment.

Grounds of Appeal

55. Section 37E(2)(a) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) provides for appeals from orders of the court, including the present appeal from a single judge. On such an appeal, the Court of Appeal has the power (among others) to confirm, reverse or amend the order, giving any order it considers appropriate: s 37O of the Supreme Court Act. Specifically on an appeal against sentence, it may increase or decrease the sentence, or substitute a different sentence: s 37O(7) of the Supreme Court Act.

56. The primary purpose of an appeal against sentence by the Prosecution is directed to laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [1]; Cumberland v The Queen [2020] HCA 21; 379 ALR 503 at [6]. Even if error is established, the appellate court has an overriding discretion which may lead it to decline to intervene.

57. The grounds of appeal raise both specific errors (Grounds 1-3) and manifest inadequacy (Ground 4), each being error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 505.

58. The Prosecution appeals the sentence imposed on the following four grounds: (a) In respect of charge CAN 2023/1866 (the demand with threat to endanger safety offence), the sentencing judge erred in allowing a discount of 25% for the respondent’s plea of guilty (Ground 1). (b) In respect of charges CAN 2022/786, CAN 2022/794, CAN 2022/789 and CAN 2022/4006, the sentencing judge erred in allowing discounts in excess of 10% for the respondent’s pleas of guilty (Ground 2). (c) In respect of charge CAN 2022/793, the sentencing judge erred in the assessment of the objective seriousness of the offence, by failing to take into account and/or misstating the material facts relevant to that assessment (Ground 3). (d) The sentence imposed was manifestly inadequate (Ground 4).

59. In relation to specific error, this Court has historically applied Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell) at [35], in finding that where error is established, the appellate court “should re-sentence by exercising the sentencing discretion afresh, rather than merely confirming the original sentence on the basis that it fell within the available range”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [12]. A real issue arises as to whether that should be applied in the Australian Capital Territory (ACT). As observed recently by the Court of Appeal in M C- N (a pseudonym) v The Queen [2023] ACTCA 21 (M C-N (a pseudonym)) at [25], the application of the Kentwell principle to the broad powers set out in s 37O of the Supreme Court Act had been assumed in Toumo’ua, rather than decided. Kentwell involved the New South Wales statutory regime where s 6(3) of the Criminal Appeal Act 1912 (NSW) (NSW Act) provides that if the Court of Criminal Appeal “is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed”, the Court “shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal”. By contrast, in the ACT, where s 37O of the Supreme Court Act permits the Court to “confirm, reverse, or amend” the order appealed from: s 37O(1)(a) of the Supreme Court Act, it may be that this Court is not similarly constrained: see M C-N (a pseudonym) at [25]. The difference was not explored in the present appeal and need not be decided given the nature of the errors and our broader conclusions.

60. Further, where the Prosecution succeeds in establishing specific error, “it is not appropriate to impose a judicially created additional requirement that the sentence be manifestly inadequate” before an appellate court intervenes to resentence: R v Ralston [2020] ACTCA 47; 285 A Crim R 159 (Ralston) at [84]. Although contrary views have subsequently been expressed when dealing with s 5D of the NSW Act, a separate provision permitting a Crown appeal against sentence: see R v Taylor [2022] NSWCCA 256; 373 FLR 418 at [91] and Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [241]-[246], it was not suggested in this appeal that these apply in the ACT.

61. For the reasons that follow, the Prosecution has established each of the grounds of appeal. The Court does not exercise its residual discretion to decline to intervene, and resentences the respondent as set out at [157]-[168] below.

Ground 1 – Was there error in the 25% discount applied in respect of charge CAN 2023/1866?

Ground 2 – Was there error in a discount exceeding 10% for guilty pleas entered in respect of charges CAN 2022/786, CAN 2022/794, CAN 2022/789 and CAN 2022/4006?

62. These grounds can conveniently be addressed together.

Submissions

63. Ground 1 relates to the offence of CAN 2023/1866 (the demand with threat to endanger safety offence), for which the respondent was sentenced to imprisonment for 12 months, reduced from 16 months. The lesser sentence represents a 25% discount for a plea of guilty. The sentencing judge at [149] stated: The final offence of making a demand with a threat to endanger the health, safety or physical wellbeing of another person…was subject to a plea on the first day it was mentioned in Court and justifies a significant discount in sentence.

64. The Prosecution submitted that although the plea was entered on the first mention of the charge CAN 2023/1866, the conduct captured was the same as was initially the subject of a different charge. As a result of negotiations, the earlier charge was withdrawn and replaced. The Prosecution argued that the applicable principle in those circumstances is that the plea was a late plea, relying on R v Dib [2003] NSWCCA 117 (Dib) at [5]-[6] (discussed below), and not one for which “a significant discount is justified”.

65. The respondent submitted that the discount reflected the fact that the plea was entered at the earliest time the respondent could plead to that particular charge. In cases where a charge is substituted, caution must be exercised in assuming that the original charge had foundation, as there may be cases where an initially incorrect or unsustainable charge was laid and then substituted with one that could be proven. The respondent relied on the common law principles articulated in Cameron v The Queen [2002] HCA 6; 209 CLR 339 (Cameron) at [20]-[23] in relation to assessing the value of a plea by reference to the first reasonable opportunity for it to have been entered. The respondent relied also on R v Moore [2021] ACTSC 333 (Moore); R v Takalubegash [2002] ACTSC 66 (Takalubegash) and R v French [2021] ACTSC 205 (French), said to reflect the application of that principle.

66. The Prosecution’s complaint in Ground 2 concerns the discounts in respect of the following offences: (a) Making a reckless threat to kill (CAN 2022/786), where 16 months’ imprisonment was imposed, reduced from 19 months (a 16% discount); (b) Assault occasioning actual bodily harm (CAN 2022/794), where 10 months’ imprisonment was imposed, reduced from 12 months (a 17% discount); (c) Common assault (CAN 2022/789), where 8 months’ imprisonment was imposed, reduced from 10 months (a 20% discount); and (d) Common assault (CAN 2022/4006), where 8 months’ imprisonment was imposed, reduced from 10 months (a 20% discount).

67. The sentencing judge dealt with the discretion to apply a discount for the pleas of guilty in respect of these offences in a global way at [148] of the primary judgment: Mr Padreny did plead guilty in the Magistrates Court. It was, however, on the day that the matters were listed for hearing and a brief of evidence had been prepared and provided by the prosecution. This did, of course, save court time and effort, and relieved the victim from giving evidence. The plea was the result of negotiations and was agreed some time before the actual hearing date, which would have minimised inconvenience, for example, for witnesses waiting to come to Court. While it was a late plea, it does still justify some discount in the sentence.

68. The Prosecution submitted that the circumstances in which the pleas were entered did not justify affording discounts of greater than 10%. As we understood the submission, it was effectively that the principles guiding the exercise of the court’s discretion were misapplied, a submission reinforced by the fact that there is a lack of consistency between discounts for pleas agreed in identical circumstances (on the eve of the trial). The respondent’s main submission was more explanation than justification, namely that the sentencing judge may have given the discounts because it allowed his Honour to give a sentence in round figures.

Principles guiding the exercise of discretion under s 35 of the Sentencing Act

69. The power of the Court to impose a discount for a guilty plea is derived from s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Where a custodial sentence is in contemplation, the Court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offence: s 35(3) of the Sentencing Act. In doing so, it is necessary to consider the particular circumstances in which the plea was entered, including the statutory matters set out in s 35(2) of the Sentencing Act: (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement.

70. The applicable discount for a guilty plea is a question of discretion: Cranfield v The Queen [2018] ACTCA 3 (Cranfield) at [37]-[38]. The starting point is that there is no tariff in respect of discounts entered at particular stages. In Miller v The Queen [2018] ACTCA 21; 273 A Crim R 27 (Miller) it was said at [76]-[77]: 76. It may be accepted that it is common, if not customary, in this jurisdiction for a discount of 25% to be given where a plea of guilty was entered at an early stage in the Magistrates Court. It may equally be accepted, as a general principle, that there should be consistency in fixing discounts for pleas of guilty. There is an obvious public interest in offenders and their advisers knowing the range of discount likely to be fixed when a plea of guilty is entered at a particular stage of a criminal proceeding. 77. Those considerations, however, should not lead the Court to effectively impose a tariff in respect of discounts entered at particular stages. Section 35 of the Sentencing Act makes it clear that the considerations that a court should have regard to in considering the lesser penalty that should be imposed by reason of a guilty plea are not limited to the timing of the plea, as important as that consideration is. It is equally clear that the determination of the appropriate lesser penalty is an evaluative exercise which involves the weighing up of a number of relevant considerations.

71. As discussed in cases such as Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 (Monfries) at [47] and Toumo’ua at [49], utilitarian value of a guilty plea is a primary consideration, as seen through the express words of the Sentencing Act: (a) section 35(2)(b) requires the Court to take into account when the offender pleaded guilty, or indicated an intention to plead guilty; and (b) section 35(5) provides that the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.

72. In Monfries, Murrell CJ referred at [47] to the importance of the timing of a plea to the assessment of an appropriate discount.

73. In R v Nicholas; R v Palmer [2019] ACTCA 36 at [49]-[53], the Court of Appeal considered the applicable discounts for guilty pleas entered in various circumstances, as follows (emphasis added): 49․ In Williams v The Queen [2018] ACTCA at [47], this Court emphasised that, for public policy reasons, it is important that persons considering an early plea of guilty be justifiably confident that their plea will attract a substantial discount on sentence and also understand that, if they delay in entering the plea, the level of discount is likely to be significantly lower. 50․ In Cranfield, the offender had pleaded guilty a week before the trial was due to commence. The Court increased the sentence discount from five to 10 per cent. In R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua), the offender had pleaded guilty after committal to the Supreme Court but before a trial date had been set. The Court of Appeal reduced the sentence discount from 25 to 17 per cent. In Zhao v The Queen [2018] ACTCA 38 (Zhao), the offender had pleaded guilty 12 days before the commencement of the trial as a result of successful negotiations regarding a rolled-up count. The Court confirmed the sentence discount of 10 per cent. 51․ Among others, these decisions illustrate that, in circumstances such as the present, an accused person should confidently expect to receive a discount of 10 per cent— or, perhaps, slightly more if their plea was not entered “on the steps of the Court”. They should expect that, in the case of such a late plea, a larger s 35 discount will only be given where there are unusual circumstances, such as a very weak Crown case or an earlier offer by the accused to plead to the charges, which the Crown accepted at the last minute. 52․ Ordinarily, a discount of 15 to 20 per cent is allowed for a plea entered before or in connection with criminal case conferencing and prior to the setting of the trial date. Absent unusual circumstances, 20 per cent would be the upper limit in relation to a plea of guilty entered at that stage. In Blundell v The Queen [2019] ACTCA 34 at [13] (Blundell), this Court said: It is also vital that persons coming to a criminal case conference do so with confidence that pleas of guilty will attract more than a minimum discount. This confidence should also extend to the community at large, knowing that persons will be treated consistently, in turn enhancing the proper administration of justice. 53․ The converse is also true. It is vital that accused persons who choose to wait to the last minute to enter a plea of guilty appreciate that, absent unusual circumstances, they will not receive a discount that is as high as the discount that they would have received had they pleaded guilty at the criminal case conferencing stage, which usually occurs soon after a matter has been committed to the Supreme Court for trial.

74. The case of Blundell v The Queen [2019] ACTCA 34, referred to in the above extract, also made the point (at [8]) that while there is no mandated practice of specific plea discounts for different stages of the proceeding (which might be thought to constitute a tariff), there is a usual practice, and s 33(1)(za) of the Sentencing Act mandates that a sentencing court consider current sentencing practice when deciding an appropriate sentence. This includes where principles have been laid down for the exercise of discretionary discounts. The applicable principle where a plea of guilty is made to a replacement charge

75. It is significant that s 35(2)(c) of the Sentencing Act expressly requires the Court to take into account whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty.

76. The passage on which the Prosecution relied in Dib is at [5]-[6] (emphasis added): 5. If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. 6. This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

77. Dib was later applied in cases such as R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 (Borkowski) where it was stated at [32(9)]: The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: R v Dib [2003] NSWCCA 117; Ahmad v The Queen [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan v The Queen (2008) 51 MVR 572; or the offender has delayed the plea to obtain some forensic advantage: R v Stambolis; Saad v The Queen [2007] NSWCCA 98...

78. In this jurisdiction, the above passage in Dib has been referred to in cases such as Monfries at [38] and Slater v The Queen [2014] ACTCA 33 at [35].

79. The applicability of Dib in this jurisdiction is reinforced when regard is had to the Explanatory Statement for the Crimes (Sentencing) Bill 2005 (ACT). When discussing clause 35(2)(c), the reason for its inclusion was stated to be as follows: Clause 35(2)(c) is included to enable the Court to discern whether or not a guilty plea associated with negotiations is intended to induce the appellant not to proceed with a more serious charge. Diminishing credit for guilty pleas associated with negotiations or bargaining is consistent with R v Gray [1977] VR 225, R v Shannon (1979) 21 SASR 442 and R v Lyons (unreported) 1993 CCA Tas 20. These cases argued that a lesser discount or no discount, for a plea of guilty is appropriate in circumstances where the defendant enters a plea as a means of inducing the appellant not to proceed with a more serious charge.

80. The operation of the statute in this way has been confirmed in cases such as Toumo’ua, where the Court stated at [56]: ...s 35(2)(c) supports a focus on the utilitarian value that is associated with the timing of a plea of guilty. An offender can benefit either from a substantial discount for the utilitarian value of an early plea, or from a lower sentence flowing from a lesser charge or fewer charges following negotiations, but should not usually benefit in both ways.

81. The principle applies in this jurisdiction for good reason. It would run contrary to the efficient administration of justice to apply a 25% discount for a guilty plea to a replacement charge made at a late stage in proceedings. To do so would defeat the incentive purpose of the discount, as an accused who pleads guilty to a lesser charge on the same facts on the eve of the hearing would obtain the same maximum sentencing discount as that applied for guilty pleas made much earlier, where no preparation of the case was required.

82. The cases relied upon by the respondent do not support a position to the contrary. As submitted by the Prosecution, the statute under consideration in Cameron (being Western Australian legislation) used different language to the equivalent legislation in the ACT. At the time when Cameron was decided, s 8(2) of the Sentencing Act 1995 (WA) was in terms that simply stated: A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.

83. The common law statement of principle in Cameron was in the context of those words and has subsequently been held not to apply to the statutory regime in NSW: R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 at [67]-[68]. The same is the case here, where s 35(2) of the Sentencing Act requires the sentencing judge to take into account a number of factors in assessing utilitarian value, not only when the plea was entered.

84. It is important to recognise that the principle in Dib was expressed as applying to circumstances where a plea is entered “a long time after a person is charged”, not to any case where there is a substituted charge. In Moore, Murrell CJ found at [3] that notwithstanding the fact that a brief of evidence had been prepared, the plea was entered at an early opportunity and there remained significant utilitarian value. Takalubegash was decided prior to the introduction of the Sentencing Act and applied the common law principle articulated in Cameron. It has been overtaken by both the legislation and the more recent authorities referred to above. French did not concern any negotiations followed by a plea to a substituted charge.

Ground 1: CAN 2023/1866 Consideration

85. The following matters are not in dispute: (a) The charges to which the respondent pleaded not guilty had been listed for a seven-day hearing in the Magistrates Court. (b) A full brief of evidence had been prepared. (c) Negotiations between the parties took place the week prior to hearing. (d) A resolution was reached on the last business day prior to the hearing date. (e) On the day the hearing was due to commence, among other pleas made by the respondent, the replacement charge was filed and the respondent pleaded guilty to it. (f) The Prosecution then withdrew other charges.

86. The nature of the original charge was not in evidence before this Court on appeal, and on the material before this Court it may not have been known to the sentencing judge. It was further submitted that the facts constituting the replacement charge were the same. Although this was not expressly conceded by the respondent, there is no reason to doubt the correctness of the submission.

87. The submissions now advanced by the respondent were not those advanced below. To the contrary, in written submissions before the sentencing judge, in response to the Prosecution’s submission that the lateness of the plea to the majority of the charges (which must include a reference to this charge) must reduce any discount available, he submitted: The offender submits that despite the plea of guilty, the plea on the day of the hearing has considerable utilitarian value. The victim would otherwise have to spend more than a day in court. Seven days have been set aside. The offender acknowledges, however, that he cannot get a full discount.

88. Although there is no tariff, a full discount would be understood as 25%.

89. The above submission is a concession by the respondent, based on the circumstances in which the pleas were entered, that he was not entitled to a full discount. The Court is entitled to assume that the submission against interest was made by his legal representative who was obviously aware of the negotiations that led to the plea.

90. The sentencing judge’s conclusion that the plea justified a “significant discount” is unexplained. There is no evident justification.

91. The respondent’s submission that an accused may not plead to an original charge for reasons that are not his fault (such as an incorrect charge) is well-appreciated, although there is no basis to suggest that is the circumstance of this plea. The same point was made in Dib at [6]. However, it is important to recall that the discount is not concerned with fault, but rather is primarily a recognition that the administration of criminal justice requires significant work to be done in terms of preparing a case for trial, such as gathering evidence for a brief, preparing witnesses, and allocating judicial and court resources, extending in some cases to the preparations for empanelling a jury. An early guilty plea saves investment of resources in those practical matters, described in the authorities as “utilitarian value”.

92. That is why, even leaving aside the negotiations that occurred (and contrary to the respondent’s submissions), a guilty plea to a substituted charge at the commencement of a seven-day hearing, as obviously accepted by the respondent below, is generally not to be treated as an early plea: Zhao v The Queen [2018] ACTCA 38 at [27]. While there is no tariff, in the absence of any particular circumstance taking the case outside the application of the general principle as explained in Dib, the respondent was not entitled to the discount of 25% (which is generally considered to be the maximum and ordinarily granted for an early plea). There are no circumstances justifying a discount of 25% in this case.

93. The sentencing judge erred in imposing a sentence that reflected such a result. Accordingly, the Prosecution succeeds on Ground 1.

Ground 2: CAN 2022/786, CAN 2022/794, CAN 2022/789 and CAN 2022/4006 The circumstances in which the respondent pleaded guilty

94. As discussed in relation to Ground 1, the material before the sentencing judge in relation to the pleas the subject of challenge was that there were negotiations the week before trial and an agreement reached on the last working day before the hearing commenced.

95. Before the sentencing judge, the Prosecution submitted that the pleas entered on the day of the hearing were late pleas and this reduced the discounts to be given. The respondent accepted before the sentencing judge that the pleas were late and did not warrant a full discount in his written submission before the sentencing judge, as explained above at [87]-[89].

96. On appeal, counsel for the respondent sought to argue that the position in relation to the pleas was more nuanced than put by the respondent below. For example, it was submitted that at least in respect of the property damage offences, the respondent had never pleaded “not guilty” to those offences and was entitled to a significant discount for those offences. However, the discounts applied in respect of those property damage offences are not the subject of challenge on appeal. The position with respect to each of the pleas about which the Prosecution complains is that there is nothing about the circumstances in which the pleas were entered in this case to warrant the extent of the discounts given to the respondent. Further, there is no basis to the respondent’s submission that the extent of the discount is because it enabled a sentence in round figures to be imposed.

97. Guided by the authorities set out above, each of the four offences the subject of complaint was a guilty plea arrived at late, if not effectively “on the steps of the Court.” In those circumstances, the awarding of discounts in respect of four of the offences being, 16%, 17%, 20% and 20% respectively, was not in accordance with established principle applied to the circumstances of this case and error is thus established. The Prosecution succeeds on Ground 2.

Ground 3 – Was there error in the assessment of the objective seriousness of the assault occasioning actual bodily harm on 13 September 2020 (CAN 2022/793)?

98. This complaint concerns whether a factual error was made, which caused the sentencing judge to assess the objective seriousness of the relevant offence on a mistaken basis.

99. In order to consider the Prosecution’s complaint, it is important to first understand what the agreed facts of the offence were. They form part of the facts constituting the Series 5 offences, which were agreed as follows (emphasis added): At some point prior to mid-August 2020, the victim began renting a house in Evatt in the ACT, which was privately owned and leased by [anonymised]. The offender began residing with the victim at this address in mid-August. On Sunday, 13 September 2020, the offender had gone out for the evening. The victim phoned the offender saying words to the effect of, “I’ve been waiting up to go to bed until you come back so I can let you in”. The offender responded with words to the effect of, “I don’t care. You can wait for me”. The victim responded “No. You can come back tomorrow. I’m going to go to sleep”. A short time later the offender arrived at the back door of the victim’s residence. He phoned the victim and said he was waiting for her to let him in. The victim walked to the living room of the premises and opened the glass sliding door, but keeping the sliding screen door closed and locked. The victim told the offender he was not welcome to come back in the house that night. The offender told the victim he had belongings in the residence, so he had every right to break in. The offender kicked the screen door until it broke off the frame, and threatened to do more damage if the victim didn’t let him in. The victim felt afraid and let the offender into the house. While the offender was gathering his belongings off the couch, he threatened to set fire to it. The offender was holding a gas cylinder with an open flame near the couch. In response, the victim splashed a glass of water on the offender. The offender then hit the victim on her right arm with the gas cylinder, knocking the glass of water out of her hand. This caused the victim to feel immediate and immense pain in her right elbow. She frightened (sic) and in shock. She fainted and the glass shattered on the floor. The offender caught the victim as she was falling and lowered her to the ground. When the victim regained consciousness, the offender left. The victim phoned her mother, and the ACT Ambulance Service (the “ACTAS”). Police were notified of the incident by the ACTAS. When police officers attended the location and spoke to the victim, she was adamant she did not want police to be involved. The victim was taken to the hospital by the ACTAS. The victim was observed by Doctor [anonymised], the ED medical doctor. The victim took photos of the bruising to her arm and the damage to the screen door and later provided the photos to police. The victim later had surgery consisting of an ulnar nerve transposition in her right elbow. The screen door was later repaired and paid for by [the victim’s parents]. The cost of the repairs was $1,669.00.

100. The asserted error relates to the agreed fact that the harm caused to the victim’s elbow was more than just a bruised elbow as seen from the emphasised words in the agreed facts above. It required surgery to treat.

101. The Prosecution submitted that the sentencing judge attributed the requirement for surgery to a later assault occasioning actual bodily harm by the respondent (being conduct the subject of CAN 2022/794). That caused the sentencing judge to assess the conduct in CAN 2022/793 as being of less objective seriousness than it was.

102. This is what the sentencing judge said about the conduct constituting the first assault occasioning actual bodily harm on 13 September 2020 (CAN 2022/793) (primary judgment at [32]-[33], emphasis added): 32․ Mr Padreny said that as he had belongings in the home, he had every right to break in. He then kicked the screen door until it broke off the frame and threatened to do more damage if he was not let in. Feeling afraid, the victim let him in. While collecting his things, Mr Padreny threatened to set fire to the couch in the house. He was, at the time, holding a gas cylinder with an open flame. In response, the victim splashed a glass of water on him. The screen door was later repaired at a cost of $1,669. These were the facts which led to a charge of damaging property of a value not exceeding $5,000. 33․ Mr Padreny then hit the victim on her right arm with a gas cylinder, knocking the glass of water out of her hand. The victim felt immediate and intense pain; she was frightened and in shock. She fainted. Mr Padreny caught her as she was falling and lowered her onto the ground. The victim called her mother, who called an ambulance. She was taken to hospital, where she was observed by an emergency department doctor. She photographed her bruised arm and the damage to the screen door. As a result of these events, Mr Padreny was charged with assault occasioning actual bodily harm.

103. The words emphasised confirm that there is no reference in the summary to the requirement for surgery, only to the victim’s arm being bruised. When returning to discuss the objective seriousness of the offence, the sentencing judge then focused only on the bruising, again, without mentioning that the harm the subject of the first assault occasioning actual bodily harm extended to the requirement for surgery. The relevant paragraphs are at [81]-[83] of the primary judgment (emphasis added): 81․ In R v Pearson [2020] ACTSC 375 at [24]-[29], this offence was considered. Actual bodily harm means “any hurt or injury calculated to interfere with the health or comfort of the victim. Such hurt or injury need not be permanent but must be more than transient or trifling”: R v Donovan [1934] 2 KB 498; 25 Cr App R 1 at 509. This form of injury thus must be assessed to ensure that it is of sufficient seriousness. Thus, bruising may constitute actual bodily harm: R v Ball [2013] NSWCCA 126 at [67]. Clearly the bruising must be of some significance and not insignificant, or as the definition has it, not “transient or trifling”. 82․ In the case of the first such assault on 13 September 2020, Mr Padreny hit the victim with a gas cylinder. She fainted and the ambulance attended. They arranged for her to be taken to hospital. She took photographs which were in evidence. They showed a significant bruise and redness on 15 September 2020, two days later, and it was still clearly evident on 21 September 2020. It was a serious bruising and certainly not transient. It was sufficiently painful for her to faint. 83․ The assaulting was with a gas cylinder clearly used a weapon and is also relevant as are the circumstances. Mr Padreny had behaved badly in staying out late and inconveniencing her and being inconsiderate. Then he returned and broke the screen door and launched this attack on the victim. If, as seems his position, Mr Padreny was affected by drugs, this is serious if it encourages aggression, especially as it makes reasoning with him unable to be successful: R v Pearson at [27].

104. On a plain reading of the above paragraphs, there appears to have been a mistake as to the extent of the harm caused by the conduct that was charged as CAN 2022/793.

105. That such a mistake occurred is confirmed by what was said about the second assault occasioning actual bodily harm on 10 October 2020, being CAN 2022/794. That offence involved the respondent kicking the victim’s right hand while wearing heavy work boots, jarring her thumb and causing her significant pain: [43] of the primary judgment.

106. The discussion and assessment of the second assault is at [44]-[45] and [84] of the primary judgment (emphasis added): 44․ Three days later, the victim sought medical attention and x-rays and ultrasound, that is diagnostic medical sonography, of her wrist which was still painful. It showed that she had a thickening of the joint capsules with a possible mild thickening of the volar plate in the right thumb interphalangeal joint. The volar plate is the thick ligament on the underside of the middle joint of a finger which keeps it from hyperextending back. The interphalangeal joint in the thumb is located at the tip of the thumb just before the fingernail starts and joins the upper bone of the thumb to the lower bone: see Dorland’s th Illustrated Medical Dictionary (24 ed, 1965). 45․ A magnetic resonance imaging investigation was undertaken which confirmed the torn volar plate as well as torn soft tissue in various parts of her thumb and wrist. As a result, she was referred to an orthopaedic surgeon who performed a right endoscopic carpal tunnel release and a right subcutaneous ulnar nerve transposition. These events were the basis for a further charge against Mr Padreny of assault occasioning actual bodily harm. … 84․ In the second case, on 10 October 2020, Mr Padreny kicked the victim’s thumb which caused damage already described above (at [44]-[45]). This resulted in ongoing pain, damage to the ligament and cartilage and required surgical procedures to be permitted. This assault was committed in the victim’s home and the kick was carried out with his heavy work boots. Though no bones were broken, significant soft tissue injuries can be serious and have had lasting consequences.

107. The words emphasised above refer to surgical procedures. They further reveal that the sentencing judge misunderstood that, while there were two surgical procedures carried out, the transposition surgery in fact related to the earlier assault. It was a mistake easily made in the context of the multiple offences of the same kind for which the respondent was being sentenced, and where the two surgical procedures were carried out at the same time, on 16 September 2021.

108. The respondent submitted that the sentencing judge did not fail to consider the relevant injuries, it was simply that the facts were recited in chronological order. However, that submission cannot be accepted because the sentencing judge assessed the objective seriousness of “the first assault” and “the second case” separately, as seen from the emphasised words in the reasoning above.

109. The mistake as to the extent of the harm suffered was significant to the objective seriousness of the first assault. There is a quantitative difference between harm that constitutes bruising and an injury that requires surgery to fix.

110. That such a mistake occurred is also reflected in the sentences that were imposed: (a) 9 months (reduced from 10 months) for CAN 2022/793, and (b) 10 months (reduced from 12 months) for CAN 2022/794.

111. As the subjective features and other sentencing considerations for each offence were equal, it may readily be inferred from the shorter period imposed in relation to the first assault that the sentencing judge mistook the first of the two assaults occasioning actual bodily harm as being less objectively serious. Such an inference derives from the established principle that the sentence imposed must be proportional to the objective seriousness of the offence: Miller at [37].

112. The circumstances set out for each offence above establish that the objective seriousness of the first assault occasioning actual bodily harm was in fact greater than that of the second. On a plain reading of the reasons, the sentencing judge’s assessment of the objective seriousness of CAN 2022/793 was affected by factual error, which then fed into the ultimate sentence imposed in respect of that offence. The Prosecution succeeds on Ground 3.

Ground 4 – Was the sentence manifestly inadequate?

113. The Prosecution submitted that the individual sentences are each manifestly inadequate, as well as the total or aggregate sentence imposed and the non-parole period.

114. The principles in relation to assessing whether a sentence is manifestly inadequate are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28] or where the sentence is markedly different from sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [58]. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [58]-[59] and [75]-[76].

115. It must be accepted that this was a difficult sentencing task for the judge. There were 14 offences relating to at least 8 occasions spread over 8 months, with multiple offences committed on some of the occasions, and some of the offences charged being rolled up counts.

116. The sentencing judge was required to consider the appropriate sentence for each offence and then turned to questions of concurrency/accumulation and totality: Pearce v The Queen [1998] HCA 57; 194 CLR 610 (Pearce) at [47]. The totality principle requires a court, in sentencing an offender for multiple offences, to ensure that the aggregate term it imposes is “a just and appropriate measure of the total criminality involved”: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at [304]. The total effective sentence and non-parole period required to be served must accurately reflect the overall or total criminality comprised in the totality of offences: Nyugen v The Queen [2016] HCA 17; 256 CLR 656 at [64]. It must have regard to an offender’s subjective mitigating factors and must not be excessive or “crushing”: Mill v The Queen [1988] HCA 70; 166 CLR 59.

117. Although the Prosecution alleges each sentence imposed was manifestly inadequate, having highlighted the circumstances of offences which he contended were particularly egregious in relation to the sentences involved, it was accepted that there was a stronger argument in respect to the sentences for those offences than others. Although the Prosecution maintained the submission in respect to the other offences based on what had been advanced in writing, these were not expanded upon. The candid submission that the argument in relation to those offences is not as strong only serves to highlight that care should be taken before making allegations that all individual sentences are manifestly inadequate.

118. Simply because an individual sentence is lenient or at the lower end of the scale is not sufficient for it to be manifestly inadequate. Despite the serious nature of the offending, some of the offences have a maximum penalty of 2 years, which limits the scope of any sentence imposed. Further, where there are multiple offences, it may be that the real complaint is with the aggregate sentence. As there are multiple offences in relation to some occasions, it is important to remember that an offender is not to be the subject of double punishment for offending, although the context in which the conduct occurred is plainly to be considered. It may be that the circumstances give cause for greater concurrency between offences that occurred on the one occasion, rather than between the series of offences which are plainly distinct. If some offences are found to be manifestly inadequate, they fall to be resentenced, which enlivens the issue of concurrency and accumulation.

119. We note that the respondent’s subjective circumstances were set out in detail by the sentencing judge at [97]-[123] of the primary judgment. There is no complaint about those matters on appeal and they are adopted as an accurate summary of the evidence which was also before the Court on appeal. It can properly be characterised as a poor subjective case. We note also that the respondent was on conditional liberty at the time of committing all but the last offence. Equally, the sentencing judge provided a careful summary of the victim impact statements at [124]-[137].

120. The sentencing judge also discussed the family violence context in which the entire course of offending occurred, including (at [59]) the mandatory considerations set out in s 34B of the Sentencing Act. His Honour may have erred in referring to s 34B, as the offending occurred before that section commenced operation. However, that does not mean that the family violence context was irrelevant, and these matters have been taken into account in considering whether any error has been established. Also taken into account, inter alia, are the circumstances of the offences and the relevant sentencing principles.

121. We have also considered the comparative cases referred to during the appeal, noting their relevance to the task. In Hili, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ made the following observations (at [53]-[54]) in respect to the relevance of sentences passed in other cases (footnotes omitted): 53. Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases... Care must be taken, however, in using what has been done in other cases. 54. In Director of Public Prosecutions (Cth) v De La Rosa Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”.

122. Relevantly, in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428, Kiefel CJ, Bell and Keane JJ observed (at [49]): In Elias v The Queen, French CJ, Hayne, Kiefel, Bell and Keane JJ said: “[t]he administration of the criminal law involves individualised justice”. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case. It is also the case that, as Gleeson CJ said in Wong v The Queen: “[t]he administration of criminal justice works as a system ... It should be systematically fair, and that involves, amongst other things, reasonable consistency.” As was explained by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen: “[t]he consistency that is sought is consistency in the application of the relevant legal principles.”

123. Statements to the same effect were also made in R v Pham [2015] HCA 39; 256 CLR 550 at [28] and R v Omari [2022] ACTCA 4 at [57].

124. Against that backdrop, we focus initially on the offences which the Prosecution has identified as being of particular significance, being the offences in series 1, the assault occasioning actual bodily harm in series 5 (CAN 2022/793) and the offence of making a demand with a threat to endanger life in series 7 (CAN 2023/1866).

Series 1 offences

125. Emphasis was placed on the offences in series 1, being the threat to kill, forcible confinement and choking on 25 February 2020. The Prosecution emphasised the sentences of 16 months’ imprisonment for the threat to kill offence and 12 months for the choke offence in the first series of offences as being manifestly inadequate, noting that the forcible confinement also attracted a sentence of 7 months’ imprisonment. In doing so, the Prosecution referred to the sentences imposed in respect to comparable offending in R v Day (No 2) [2022] ACTSC 352 (Day (No 2)), which were upheld on appeal: see Day v The King [2023] ACTCA 39 (Day).

126. Day (No 2) involved offences committed over the course of one night in a domestic violence context, contrary to s 28(2)(a) (choke offence) and s 30 (threat to kill offence) of the Crimes Act, and in contravention of a family violence order. In Day (No 2), the first choke offence involved the victim being choked for 10 to 20 seconds, with an estimated force of 5 out of 10 and no restriction to her breathing. The victim considered this conduct to be a “warning”. The second choke offence occurred some hours later and was more serious. It involved the offender grabbing the victim from behind when she was leaving the house, placing two hands around her neck, and applying so much pressure to her throat that she could not breathe. The victim attempted to shout for help, and the offender said words to the effect of “I am dragging you back inside right now, and you are dead” (threat to kill offence). The offender had a significant criminal history, which involved family violence, and was convicted by a jury (so no plea discount was applied). The aggregate sentence imposed was 4 years and 6 months, with a non-parole period of 2 years and 10 months. The individual sentences imposed for the first and second choke offences, the threat to kill offence and breach of the family violence order were 1 year and 3 months, 2 years and 6 months, 3 years and 6 months, and 12 months’ imprisonment, respectively. An appeal on the basis that the aggregate sentence was manifestly excessive was dismissed, although the overall sentence was described by the Court of Appeal as “stern”: Day at [66].

127. Accepting the limitations in respect to the relevance of sentences passed in other cases, the sentences imposed in this case are substantially lower. The non-parole period imposed in this case was less than that in Day (No 2). This is in a context where, unlike Day (No 2), the respondent was sentenced for at least 8 episodes of offending in this case.

128. It is timely to recall that the facts of the offending are contained in the primary judgment at [13]-[19]: 13․ [On 25 February 2020] He went first to his house and called her to come later. When there, they began cooking dinner. During that, Mr Padreny became frustrated and stopped cooking. He and the victim went upstairs to his bedroom to have a chat. On entering his bedroom, Mr Padreny’s demeanour changed and he told the victim that he had lured her back to his house as he planned to kill her. He had been planning to do so ever since they had broken up. 14․ Mr Padreny then proceeded to describe the various scenarios that he had considered for killing her: strangulation, cutting her fingers and limbs off until she bled to death. He added that he was looking forward to when he could look into her eyes and watch her life leaving it. Unsurprisingly, the victim became very upset, crying and hyperventilating. Mr Padreny laughed and said her distress sexually aroused him. When appreciating the seriousness of the situation the victim felt unable to leave, a not uncommon feeling for family violence victims. 15․ Mr Padreny then told the victim that she was boring and that she was ruining his fun and told her to leave, wishing her luck to get out alive. He then retrieved a knife that the victim had given him and which he kept in his bedroom. He swung the knife at the victim, telling her how fun it would be to dismember her body with the knife she had given him. The victim believed him and felt terrified. Mr Padreny then kept pushing the victim to the wall and not letting her stand up or leave. At one point he held her by the throat with his hand until she felt as if she would fall unconscious, but he then let her go. 16․ He told her to look at him again and he said that he would like to look into her eyes as she died. He became enraged when she refused to look at him. The victim then became dizzy, with blurred vision and trying to catch her breath. Mr Padreny grabbed her again by the throat and pushed her to the ground. 17․ Mr Padreny then went and lay on his bed facing away from her. His body language led her to believe that he was distressed. He begged her to leave before he did any real damage. She did so, but, after leaving the room, changed her mind and walked back to check that he was okay. Ultimately, she stayed the night with him to look after him. 18․ A week later, she still had a sore throat and her mother noticed bruises mainly on her neck, but the victim did not tell her mother how they had been caused nor take any photographs of them. 19․ These were the events that led to the charges of making a reckless threat to kill a person, forcibly or unlawfully confining or imprisoning another person and intentionally or unlawfully choking, suffocating or strangling another person to be preferred against Mr Padreny.

129. Dealing with the choke offence first, the offence itself is serious. The Revised Explanatory Statement to the Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015 (ACT), which created the separate choking offence, referred to various research in stating (at p 8): Non-fatal strangulation by a partner is one of the most important predictive risk factors for intimate partner homicide.

130. The offence occurred shortly after the offender told the victim that he would like to look into her eyes and watch her life leaving her body, and then swinging a knife at her. While itself not an aggravating feature (because the earlier conduct was the basis of separate offences), it obviously informs the intention of the respondent at the time as communicated to the victim, which impacts upon the genuine fear felt by the victim when the respondent then grabbed her neck. The physical pressure of the choke was also strong enough that the victim felt as if she would fall unconscious and later became dizzy with blurred vision, trying to catch her breath. The victim was left with a sore throat and bruises on her neck still visible a week later.

131. To understand the spectrum of conduct by which a Court assesses the objective seriousness of an offence, it is helpful to explain some of the features of conduct that may be of relevance in assessing the objective seriousness of the offence. For this offence, without being exhaustive, the following have been referred to: (1) the length of time during which the “choking” persisted; (2) the amount of force used; (3) whether the victim’s breathing was restricted; (4) whether verbal threats were made at the time of the choking; (5) whether the victim sustained any injuries; (6) whether any aides like rope or cable were used; (7) the vulnerabilities of the victim; (8) whether the conduct was deliberate and sustained, designed to threaten and inflict harm; and (9) whether the conduct occurred in a family violence context: see for example, R v Bonfield [2021] ACTSC 362 (Bonfield) at [68]-[69]; DPP v Linsley [2023] ACTSC 255 at [12]; and DPP v Rohrlach [2023] ACTSC 166 (Rohrlach). These features are not to be treated as a checklist. As explained by McCallum CJ in DPP v Moala (No 3) [2023] ACTSC 306 at [24], having referred to both Bonfield and Rohrlach in the context of an offence contrary to s 28(2)(a) of the Crimes Act: …Such lists can be useful provided their limits are understood. A list of factors drawn from decided cases can never serve as a proxy for the central judicial function of making an evaluative assessment of the overall objective seriousness of an offence having regard to the circumstances of the case at hand. The offender’s submissions treated Refshauge AJ’s discussion of the authorities [in Bonfield] as a checklist of factors in the absence of which an offence would sit at the bottom of the range of objective seriousness. That is plainly not what his Honour intended. It is trite that the absence of an aggravating factor does not mitigate an offence; it simply means the offence is not aggravated by that factor.

132. The objective seriousness of this offence was high, which is not reflected in the sentence imposed bearing in mind the relevant sentencing considerations including the respondent’s subjective case. Manifest inadequacy is established for the individual sentence imposed in respect of CAN 2022/422.

133. The sentence imposed for the threat to kill, being 16 months’ imprisonment, is also manifestly inadequate. This sentence is also infected by the error in Ground 2 given the lateness of the plea. Features that may inform the objective seriousness have been discussed in cases such as R v Williams [2016] ACTSC 389 (Williams) at [45], R v Loulanting [2015] ACTSC 172 (Loulanting) at [37], R v Pearson [2020] ACTSC 375 (Pearson) at [22]; Day (No 2) at [44]; and Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79 (Cajina) at [19]-[28].

134. The circumstances surrounding the making of a threat to kill which may be relevant to an assessment of the threat’s seriousness, without being exhaustive, may include: (1) if the threat is made in person; (2) the subjective fear engendered in a victim by the threat; (3) any use of drugs by the offender at the time the threat is made; (4) the nature and seriousness of the threat; (5) if the offender has a weapon at the time of the threat; (6) if the threat is capable of immediate realisation; and (7) any premeditation on behalf of the offender: see for example, Williams at [45], Loulanting at [37], Pearson at [22]; Day (No 2) at [44]; and Cajina at [19]-[28].

135. In the circumstances of the present case, the threat was made in person, in the bedroom, with the respondent telling her that he had lured her there to kill her, and describing the different ways he had thought of carrying out that threat. That is itself indicative of premeditation. The subjective fear engendered in the victim was that she was going to die. The threat was capable of immediate realisation. The family violence context is again an aggravating feature. These features amount to a level of objective seriousness that was far from the lower end of the spectrum, with no factors otherwise mitigating the respondent’s moral culpability (such as mental impairment or social disadvantage considerations). Against the yardstick of a maximum penalty of 10 years’ imprisonment, a term of 16 months is manifestly inadequate. Error is thus also established with regard to the individual sentence for CAN 2022/786.

136. The remaining offence in series 1, namely forcible confinement, is not otherwise manifestly inadequate. Factors that may inform the objective seriousness of the offence include (1) the length of the unlawful confinement; (2) the extent that it was premeditated or planned; (3) the way in which it was effected; (4) the purpose of it; (5) the conditions under which the victim was confined including the behaviour towards the victim, the level of restraint, any physical or verbal abuse and whether the victim was subject to degrading behaviour; (6) the extent of fear instilled; and (7) the injuries inflicted: see for example Williams at [53], and Naqvi v The Queen [2017] ACTCA 52.

137. The confinement itself was of relatively short duration. The offender used his body to prevent the victim from leaving the room, which is undoubtedly very serious. However, the matters which would be regarded as significantly aggravating the conduct are reflected in the other offences referred to above. The injuries inflicted were the product of conduct that was the subject of separate charges within the series. When considered as a separate act charged within a series, the 7-month term of imprisonment, while very lenient, is not individually manifestly inadequate.

Assault occasioning actual bodily harm in series 5 (CAN 2022/793).

138. This is the offence the subject of Ground 3 where the sentencing judge made a mistake as to objective seriousness. This offence involved a weapon, being a gas cylinder, and is described above at [103]. Having regard to all the circumstances, the sentence imposed of 9 months’ imprisonment is manifestly inadequate. The offence of making a demand with a threat to endanger life in series 7 (CAN 2023/1866).

139. This offence occurred at the victim’s home when the respondent asked that she transfer money to him, which she refused to do. She only had $200 in her account. As a result, the respondent followed her around the house with a taser, threatening her and setting the taser off, as he demanded she transfer money. The victim ran to her bedroom and closed the door, although did not lock it. The respondent followed her, slammed the door open, causing the handle of the door to damage the wall behind it. He forced the victim backward against the bedroom wall whilst pointing the taser at her, holding it centimetres away from her chest. He threatened to “tase” her if she did not transfer him as much money as she had in her account. At about 11:23pm, the victim transferred $202.00 via a banking application on her mobile telephone whilst he continued to hold the taser in close proximity to her body. Once the offender could see the money in his account, he left the house, threatening to return.

140. Features informing the objective seriousness of this offence include the nature of the demand, the manner and circumstances in which it is made, and the nature of the threat itself (see, for example, R v Goodge [2019] ACTSC 297 at [29], R v Kirkwood [2022] ACTSC 148 at [75]). Here, the demand was for money, and it was made in person (as distinct from by letter or online), with the holding of a taser in close proximity to the victim demonstrating that the threat could be immediately carried out, in circumstances where the victim was effectively trapped in her bedroom until she complied with the demand. This offending occurred against the backdrop of repeated acts of violence against the victim over the previous months, as reflected in the other charges. Taking into account those matters, the sentence imposed failed to reflect the objective gravity of the offence, which was very serious and should be denounced. Manifest inadequacy has therefore also been established in relation to this offence.

Remaining offences

141. In relation to the remaining offences (not those highlighted by the Prosecution), having carefully considered the submissions, the circumstances of the offending and relevant sentencing principles, we are not persuaded that they are manifestly inadequate. That said, generally, those sentences could properly be described as being at the very low end of the sentencing range.

Aggregate sentence

142. Given our conclusion in respect to the individual offences, save for any issue of the residual discretion to decline to intervene, the Court would re-sentence for those offences which are manifestly inadequate. As explained above, this enlivens the issue of concurrency/accumulation.

143. We accept that the aggregate sentence imposed of 5 years and 7 months’ imprisonment, is manifestly inadequate. It fails to properly reflect the nature and gravity of the offences and the number of occasions on which they were committed. This inadequacy has occurred as a result of some individual sentences being manifestly inadequate, the specific errors in Grounds 1-3, and undue concurrency imposed between offences which fails to reflect, inter alia, that the offending occurred on at least eight separate occasions over a period of 8 months (some counts being rolled up counts).

144. In Pearce, the majority in the High Court stated at [46]-[47] (references omitted): 46. Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. Questions of cumulation and concurrence may be affected by particular statutory rules. 47. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

145. We note the observations in R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 where it was stated at [92] that (emphasis added): 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; (1988) 166 CLR 59. A sentence should not be ‘crushing’ in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result or accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length): R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]- [17]. Against these considerations, a sentence should not lead to a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences, or that an offender is being offered a discount for multiple offending: O’Brien v The Queen [2015] ACTCA 47 at [26]. Making two counts wholly concurrent may reveal error in that to do so fails to take account of the differences in the conduct which were the subject of punishment on each count: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [49].

146. The recent decision of Day commented upon what may constitute a “just and appropriate” aggregate sentence by reference to the principle of totality of criminality at [67], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27], as follows: In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

147. We return to these principles below.

Non-parole period

148. Finally, it is necessary to consider the non-parole period which was imposed reflecting 45% of the aggregate head sentence.

149. The Prosecution submitted that the non-parole period was manifestly inadequate. Relying on Toumo’ua at [92]-[103], the Prosecution argued that a non-parole period should ordinarily constitute a substantial part of the total sentence, and that where a period of less than 50% of the total sentence is imposed, the sentencing court must explain how such a low non-parole period still bears an “appropriate relationship” to the head sentence, citing Lowe v The Queen [1984] HCA 46; 154 CLR 606 (Lowe) at 610 and Inge v The Queen [1999] HCA 55; 199 CLR 295 at [59].

150. The respondent submitted that the short non-parole period set was imposed with a view to ensuring the sentence was not crushing, and with a focus on rehabilitation and re-integrating into the community. This was explained by the sentencing judge. These were permissible sentencing objectives, and within the wide exercise of the discretion in setting the non-parole period.

151. The applicable principles are set out comprehensively in Toumo’ua at [94]-[103] and the authorities there-cited. Without repeating the detailed consideration, the following guides the exercise of the discretion in setting a non-parole period: (a) The Court is required to set a non-parole period when imposing a total term of imprisonment of one year or more: s 65 of the Sentencing Act, save if the Court considers that it would be inappropriate to set a non-parole period having regard to the nature of the offence or offences and the offender’s antecedents: s 65(4) of the Sentencing Act. (b) The purpose in setting a non-parole period is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: Power v The Queen [1974] HCA 26; 131 CLR 623 (Power) at 629. (c) The discretion is wide, but there must be an “appropriate relationship” between a head sentence and the associated non-parole period: Lowe at 610. (d) A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender’s subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power at 627; Lowe at 615. (e) Specifically, the deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term. While other objectives (such as rehabilitation) may take on more significance, the sentence must be of a severity appropriate in all the circumstances of the offending.

152. The Court of Appeal concluded the relevant part of its discussion at [103] as follows: Ordinarily, a nonparole period should constitute a substantial part of the total sentence. In some cases, a nonparole period of less than 50 per cent of the total sentence may bear an appropriate relationship to the total sentence. However, when an unusually low nonparole period is set, the sentencing court should explain why, in the particular case, it considers that the low nonparole period bears an “appropriate relationship” to the total sentence and is therefore a proper exercise of the sentencing discretion.

153. In broad terms, the above principles were similarly stated in MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [49], with the Court of Appeal going on to state at [50(c)]: The proportion of the sentence that is to be served by way of nonparole period is a matter for judicial discretion and cannot be reduced to a mathematical formula. However, ordinarily the nonparole period will occupy a substantial part of the total term. In the ACT, nonparole periods generally constitute 50–70 per cent of the total term.

154. The sentencing judge’s reasons for the shorter non-parole are contained in the primary judgment at [161]-[162]: 161. …Accordingly, since the sentence is more than 12 months, consideration must be given to a non-parole period. Given the period during which Mr Padreny has been in custody, the possibility of a treatment plan of the kind proposed by Dr Ahmed and the progress Mr Padreny has made in custody and the course he has undertaken, a shorter non-parole period seems appropriate. Of course, the objective seriousness of the offending is important and must also be weighed in that consideration. It is also possible, of course, for Mr Padreny to undertake rehabilitation of a significant kind while in custody. 162․ For example, although he has expressed hesitation in the engagement with the Solaris Therapeutic Community, this is an important option that is still available for him and it is commended to him for consideration in the sentence. It is evident also, however, that for him to reintegrate into the community, Mr Padreny will need a lengthy period under supervision. Accordingly, that requires a longer period of parole which can incorporate the treatment plan that Dr Ahmed suggests and will engage with him in, hopefully, enabling him to live a drug and crime-free life in the future.

155. His Honour’s reference to the objective seriousness of the offending as remaining important in the consideration of the non-parole period is difficult to reconcile with the period that was then set. Having regard to the number and gravity of the offences, as well as the lack of any particular subjective circumstances warranting a significantly reduced time in full-time custody, a non-parole period of two and half years in the circumstances of these offences was plainly inadequate.

156. While the incorporation of a treatment plan for the respondent once he attains parole is relevant and significant, it cannot override other sentencing objectives to the point where the period in full-time custody bears little to no relationship to the scope and gravity of the offending itself. There was capacity for a lengthy period of supervision to assist in rehabilitation and reintegration into the community while still ensuring that the minimum period to be served was substantial and reflected a severity appropriate in all the circumstances of the offending. This error is established.

Residual discretion

157. As error has been established, the issue of the residual discretion arises. As earlier observed, the Court retains a residual discretion to refuse to intervene and resentence an offender: Green at [1] and [24]; CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 (CMB) at [54]; R v Avery [2018] ACTCA 57 at [6(d)]. The discretion is broad and is concerned with the avoidance of “unfairness or injustice that may be occasioned by the Court allowing a prosecution appeal against sentence”: Harlovich v Sebbens [2023] ACTSCFC 3 (Harlovich) at [37], and see [4], [5]. Discretionary reasons for dismissal of a prosecution appeal notwithstanding established error may include (non-exhaustively) “delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown”: Director of Public Prosecutions v Karazisis [2010] VSCA 350; 31 VR 634, cited in Ralston at [80]; and see Harlovich at [2]. The onus is on the prosecution to satisfy the Court that this discretion should not be exercised in favour of the respondent: CMB at [66]; and see Harlovich at [5].

158. The Prosecution argued that the residual discretion to decline to intervene should not be exercised here, submitting that the sentence was so markedly inadequate that it necessitates appellate correction “to maintain public confidence in the criminal justice system”: Green at [69]. Further, none of the reasons that may commonly justify the exercise of the residual discretion were present here. None were pointed to. We note that the respondent did not place any material before the Court in the event of resentencing.

159. The separate error of manifest inadequacy across the structure of the sentence means that the resentencing exercise will not be a matter of mere tinkering.

160. All those matters are persuasive in determining that the residual discretion should not be exercised here. The respondent argued that increasing the individual sentences by reference to a decrease in a guilty plea would be no more than tinkering, and that a limited resentencing exercise may otherwise be possible. It was further submitted (relying on cases such as Borkowski at [70] and Director of Public Prosecutions v Harvey [2023] VSCA 234; 105 MVR 373 (Harvey) at [59]) that guidance to judicial officers can be achieved by the Court explaining why the sentences imposed on the respondent were wrong without increasing the sentence.

161. However, the submission fails to appreciate the nature of the errors established in this case, and that no matter exists which would otherwise involve the residual discretion being exercised to not interfere. This case is different to the circumstances in Borkowski. In Harvey, the Court declined to exercise its residual discretion, stating inter alia, at [60] that “another purpose of Crown appeals is to vindicate the public interest in imposing the proper sentence in a given case. The residual discretion is therefore not exercised by default. Its exercise depends on the identification of circumstances that justify the Court in leaving the sentence undisturbed, even though it was imposed in error”. As discussed, there is no basis identified in this case. The purposes for which the Prosecution brought the appeal included to correct error in principle and to maintain adequate standards of punishment. Such purposes, in the circumstances of this case, would not be achieved by the Court declining to intervene.

Resentencing

162. As to the sentences to be imposed, the objective seriousness of each of the offences has been considered when dealing with Ground 4 above. A number of the authorities relevant to sentencing practice have also been discussed above, as providing assistance in reaching the views about the adequacy of the individual sentences. To these may be added the cases listed in the Prosecution’s table filed as part of the appeal submissions, which have been taken into account without repeating the various authorities in detail here.

163. Specifically with regard to the individual sentence of CAN 2022/794 (the second offence of assault occasioning actual bodily harm), the respondent submitted that if Ground 3 was established in relation to CAN 2022/793, the converse was that the Court should reduce the second in time offence. Otherwise, there is a real risk that the respondent will be punished twice for the victim having undergone an ulnar nerve transposition surgery.

164. The relevant part of the reasons has been set out at [106] above, where the sentencing judge says (at [84]) that the conduct the subject of the charge “resulted in ongoing pain, damage to the ligament and cartilage and required surgical procedures to be permitted”. These words indicate that his Honour was concerned with the fact that surgery was required at all, not the fact that the surgery which took place involved two surgeries. The risk identified by the respondent is without foundation.

165. The subjective features, including the offender’s drug use, criminal history and letter of remorse, were set out in the primary judgment at [97] to [123]. Those matters remain relevant and applicable to the re-exercise of the discretion. The fact that the respondent was on conditional liberty at the time of committing all but the last offence on 10 October 2020 is also a matter to take into account: see [152] of the primary judgment.

166. The other sentencing objectives referred to in the primary judgment dealing with denunciation, general and specific deterrence (at [140]-[142]), rehabilitation (at [143]) and harm to the victim (at [124]-[137], [144]) also remain applicable and have been taken into account.

167. With regard to applicable discounts for the pleas of guilty, those offences that were the subject of complaint on appeal but not identified as manifestly inadequate will accord with the statements of principle and the factual position articulated in relation to Grounds 1 and 2. The discounts given for the guilty pleas in relation to the offences the subject of Grounds 1 and 2 is 10% for each offence. Otherwise, as a matter of procedural fairness, the discounts that were determined by the sentencing judge for the offences that were not the subject of any challenge in that regard will remain applicable.

Totality and concurrency considerations

168. The applicable principles relating to totality considerations are set out in O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26] and have been applied here to ensure that the aggregate sentence is “just and appropriate” for all the offences. It invites consideration of concurrency and accumulation considerations, and the requirement to ensure that the overall sentence is not “crushing”. In that regard, it must be remembered that a sentence is not crushing merely because it may be of long duration. That may be simply a product of a just and appropriate sentence paying regard to the overall criminality.

169. The degree of concurrency between the individual sentences is shown in the diagram at Annexure C to this judgment. The following is provided to assist in understanding the structure adopted on resentence: (a) Where offences are part of a series, there is a degree of concurrency applied between the offences. This is to reflect the course of conduct, with the offences committed on the same day or during the same period, against the same victim. That said, the criminality of one offence does not encompass all the criminality for other offences, and accordingly part of individual sentences are to be served consecutively to reflect additional criminality involved. There is also concurrency between series of offences. (b) The gravity of some offences is greater than others. To reflect that seriousness in criminality, those sentences have a longer period where the time to be served is solely referable to that offence. (c) Otherwise, the structure maintains a substantial degree of concurrency across the offences. This is because the length of time to be served in prison by virtue of the number of offences committed is a heavy sentence even with substantial overlap. In a sentence of significant length, as is the case here, there comes a point when general and specific deterrence objectives are met and imposing further lengthy terms of imprisonment for every sentence does little to achieve the objectives of denunciation and recognition of harm to the victim. (d) Finally, the rehabilitation of the respondent is a matter that influenced the reasoning of the sentencing judge and it remains of importance for the respondent successfully reintegrating into the community once he has served the minimum period of imprisonment. The non-parole period still gives the respondent a lengthy period of time under supervision, while still bearing proportionality to the sentence overall.

170. Sight cannot be lost of the very serious nature of this offending conduct. The respondent repeatedly engaged in acts of physical violence against his partner, over 8 months. He did so (with limited exception) while on conditional liberty. There is little in terms of mitigating factors. General and personal deterrence must play a significant role in the sentences imposed, as must denunciation and punishment.

Orders

171. For the above reasons, the orders are as follows: (1) The appeal is allowed. (2) The sentence imposed on the respondent by orders made on 30 May 2023 is set aside and in lieu thereof, the following sentence is imposed: (a) For the offence of making a reckless threat to kill in contravention of s 30 of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 2022/786), the respondent is convicted and sentenced to a term of imprisonment of 2 years and 6 months, reduced from 2 years 9 months and 11 days on account of his guilty plea, to commence on 26 February 2022 and conclude on 25 August 2024. (b) For the offence of an act endangering health (choke) in contravention of s 28(2)(a) Crimes Act (CAN 2022/422), the respondent is convicted and sentenced to a term of imprisonment of 1 year and 6 months, reduced from 1 year and 9 months on account of his guilty plea, to commence on 26 October 2023 and conclude on 25 April 2025. (c) For the offence of forcible confinement in contravention of s 34 of the Crimes Act (CAN 2022/787), the respondent is convicted and sentenced to a term of imprisonment of 7 months, reduced from 8 months on account of his guilty plea, to commence on 25 January 2025 and conclude on 24 August 2025. (d) For the offence of common assault in contravention of s 26 of the Crimes Act (CAN 2022/789), the respondent is convicted and sentenced to a term of imprisonment of 9 months reduced from 10 months on account of his guilty plea, to commence on 26 May 2025 and conclude on 25 February 2026. (e) For the offence of damage property less than $5000 in value in contravention of s 116(3) of the Crimes Act (CAN 2022/801), the respondent is convicted and sentenced to a term of imprisonment of 6 months, reduced from 7 months on account of his guilty plea, to commence on 26 December 2025 and conclude on 25 June 2026. (f) For the offence of common assault in contravention of s 26 of the Crimes Act (CAN 2022/790), the respondent is convicted and sentenced to a term of imprisonment of 7 months, reduced from 8 months on account of his guilty plea, to commence on 26 April 2026 and conclude on 25 November 2026. (g) For the offence of assault occasioning actual bodily harm in contravention of s 24(1) of the Crimes Act (CAN 2022/793), the respondent is convicted and sentenced to a term of imprisonment of 1 year and 2 months, reduced from 1 year and 4 months on account of his guilty plea, to commence on 25 September 2026 and conclude on 24 November 2027. (h) For the offence of damage property less than $5000 in value in contravention of s 116(3) of the Crimes Act (CAN 2022/423), the respondent is convicted and sentenced to a term of imprisonment of 6 months, reduced from 7 months on account of his guilty plea, to commence on 26 June 2027 and conclude on 25 December 2027. (i) For the offence of act endangering health – choke/suffocate/strangle in contravention of s 28(2)(a) of the Crimes Act (CAN 2022/4007), the respondent is convicted and sentenced to a term of imprisonment of 1 year, reduced from 1 year and 2 months on account of his guilty plea, to commence on 1 December 2027 and conclude on 30 November 2028. (j) For the offence of common assault in contravention of s 26 of the Crimes Act (CAN 2022/4006), the respondent is convicted and sentenced to a term of imprisonment of 9 months, reduced from 10 months on account of his guilty plea, to commence on 30 April 2028 and conclude on 29 January 2029. (k) For the offence of damage property in contravention of s 403 of the Criminal Code 2002 (ACT) (CAN 2022/4005), the respondent is convicted and sentenced to a term of imprisonment of 6 months, reduced from 7 months on account of his guilty plea, to commence on 1 January 2029 and conclude on 30 June 2029. (l) For the offence of damage property less than $5000 in value in contravention of s 116(3) of the Crimes Act (CAN 2022/424), the respondent is convicted and sentenced to a term of imprisonment of 6 months, reduced from 7 months on account of his guilty plea, to commence on 1 February 2029 and conclude on 31 July 2029. (m) For the offence of make a demand with a threat to endanger health, safety, or physical wellbeing in contravention of s 32(2) of the Crimes Act (CAN 2023/1866), the respondent is convicted and sentenced to a term of imprisonment of 1 year 5 months, reduced from 1 year 7 months on account of his guilty plea, to commence on 5 July 2029 and conclude on 4 December 2030. (n) For the offence of assault occasioning actual bodily harm in contravention of s 24(1) of the Crimes Act (CAN 2022/794), the respondent is convicted and sentenced to a term of imprisonment of 10 months and 24 days, reduced from 1 year on account of his guilty plea, to commence on 1 February 2030 and conclude on 24 December 2030. (o) The total sentence of imprisonment is for 8 years, 9 months and 29 days to commence on 26 February 2022 and conclude on 24 December 2030. (p) A non-parole period of 5 years is set, to commence on 26 February 2022 and conclude on 25 February 2027.

I certify that the preceding one hundred and seventy-one [171] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: Annexure A

STATEMENT OF FACTS 1. The offender, Damian Padreny (born 10 June 1996), has pleaded guilty to the following offences: (a) Making a reckless threat to kill another person on 25 February 2020; (b) Forcibly or unlawfully confining or imprisoning another person on 25 February 2020; (c) Intentionally and unlawfully choking, suffocating, or strangling another person on 25 February 2020; (d) Common assault on 12 May 2020; (e) Damaging property, where the value of the damage did not exceed $5,000 on 16 May 2020; (f) Common assault on 14 August 2020; (g) Assault occasioning actual bodily harm on 13 September 2020; (h) Damaging property, where the value of the damage did not exceed $5,000 on 13 September 2020; (i) Damaging property between 10 September 2020 and 20 September 2020; (j) Intentionally and unlawfully choking, suffocating, or strangling another person between 10 September 2020 and 20 September 2020; (k) Damaging property, where the value of the damage did not exceed $5,000 between 10 September 2020 and 20 September 2020; (l) Common assault between 10 September 2020 and 20 September 2020; (m) Making a demand with a threat to endanger the health, safety, or physical wellbeing of another person on 18 September 2020; and (n) Assault occasioning actual bodily harm on 10 October 2020.

2. Between February and October 2020, the offender engaged in a number of acts of actual or threatened violence towards [anonymised] (the "victim"), who was, at the time, the offender's intimate partner. During this period, the offender also damaged property belonging to, or used by, the victim.

PENALTIES

3. The maximum penalty for the offence of making a reckless threat to kill another person contrary to s 30 of the Crimes Act 1900 (ACT) is 10 years imprisonment. 4. The maximum penalty for the offence of forcibly or unlawfully confining or imprisoning another person contrary to s 34 of the Crimes Act 1900 (ACT) is 10 years imprisonment. 5. The maximum penalty for making a demand with a threat to endanger the health, safety, or physical wellbeing of another person contrary to s 32(2) of the Crimes Act 1900 (ACT) is 10 years imprisonment. 6. The maximum penalty for damaging property contrary to s 403 of the Criminal Code 2002 (ACT) is 10 years imprisonment, a fine of $160,000, or both. 7. The maximum penalty for intentionally and unlawfully choking, suffocating, or strangling another person contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) is 5 years imprisonment. 8. The maximum penalty for assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT) is 5 years imprisonment. 9. The maximum penalty for damaging property, where the value of the damage did not exceed $5,000 contrary to s 116(3) of the Crimes Act 1900 (ACT) is 2 years imprisonment, a fine of $8,000, or both. 10. The maximum penalty for common assault contrary to s 26 of the Crimes Act 1900 (ACT) is 2 years imprisonment.

PLEA DATES

11. On 29 March 2022, the offender pleaded guilty to the following charges now before the court in the ACT Magistrates Court: (a) Damaging property, where the value of the damage did not exceed $5,000 on 16 May 2020; (b) Damaging property, where the value of the damage did not exceed$5,000 on 13 September 2020; and (c) Damaging property, where the value of the damage did not exceed $5,000 between 10 September 2020 and 20 September 2020.

12. The pleas were entered at the fifth mention, in circumstances where no pleas had previously been entered. 13. On 20 February 2023, the offender pleaded guilty to the following charges now before the court in the ACT Magistrates Court: (a) Making a reckless threat to kill another person on 25 February 2020; (b) Forcibly or unlawfully confining or imprisoning another person on 25 February 2020; (c) Intentionally and unlawfully choking, suffocating, or strangling another person on 25 February 2020; (d) Common assault on 12 May 2020; (e) Common assault on 14 August 2020; (f) Assault occasioning actual bodily harm on 13 September 2020; (g) Damaging property between 10 September 2020 and 20 September 2020; (h) Intentionally and unlawfully choking, suffocating, or strangling another person between 10 September 2020 and 20 September 2020; (i) Common assault between 10 September 2020 and 20 September 2020; (j) Making a demand with a threat to endanger the health, safety, or physical wellbeing of another person on 18 September 2020; and (k) Assault occasioning actual bodily harm on 10 October 2020 14. In relation to the charges referred to at [13(a) - (f), (k)], the pleas were entered at the tenth mention. These were the original charges that were initially laid in the ACT Magistrates Court, and to which the offender initially pleaded not guilty. 15. In relation to the charges referred to at [13(g) - (i)], the pleas were entered at the fifth mention. These were the original charges that were initially laid in the ACT Magistrates Court, and to which the offender initially pleaded not guilty. 16. In relation to the charge referred to at [13(j)], the plea was entered at the first mention, following a negotiation on the charge between the parties.

FACTS RELATING TO THE OFFENCES

17. On Saturday, 17 August 2019, the victim and the offender met at Cube nightclub in Canberra City, in the Australian Capital Territory (the "ACT"). 18. Not long after this meeting, the victim helped the offender move to a share house in Ngunnawal, where she assisted the offender with paying rent, and where she resided the majority of the time. Around the end of October 2019, the offender moved in with the victim at her parents' house in Gungahlin. The offender lived at the victim's parents' house until mid-February 2020, when he then moved to a share house in Belconnen. 19. The offender and the victim were in an intimate relationship for approximately one year. 20. Between October 2020 and February 2022, the victim disclosed the following offences to police.

Incident 1 – 25 February 2020 21. On Tuesday, 25 February 2020, the offender contacted the victim and they met up at a park near the offender's house in Belconnen. The offender revealed to the victim that he had "cheated" on her. The victim found this information distressing, and the pair discussed that it would likely be the last time that they would see each other. 22. The victim told the offender that she wanted to go back to his house with him to spend the evening together. The offender agreed. He requested that the victim wait at the park until he was ready for her to come to the house, at which point he would call her. 23. About one hour later, the offender phone the victim and gave her directions to his house. When the victim arrived at the offender's house, they began cooking dinner. While cooking dinner, the offender became frustrated. The pair stopped cooking dinner and went upstairs to have a chat in the offender's bedroom.

Making a reckless threat to kill another person Forcibly or unlawfully confining or imprisoning another person Intentionally and unlawfully choking, suffocating, or strangling another person

24. Upon entering the offender's bedroom, his demeanour changed immediately. He stated that he had lured the victim back to his place as he had planned to kill her. He said he had been planning to kill her since they had "broken up" a couple of weeks prior. 25. The offender went on to describe to the victim in disturbing detail different scenarios in which he would kill her. He mentioned using methods to kill the victim such as strangulation, and cutting off her fingers and limbs until she bled out. The offender told the victim that no matter how he chose to kill her, he was looking forward to the moment that he looked into her eyes and watched the life leaving her body as she died. The offender also told the victim that he wanted to keep her eyeballs. 26. The victim was afraid, crying, and hyperventilating. The offender laughed and said he enjoyed watching her distress and commented that he was sexually aroused by it. The victim took some time to grasp the seriousness of the situation. When she did, she didn't feel as though she was able to leave. 27. The offender told the victim that she was boring him and ruining his fund by not being upset anymore. The offender told the victim to leave, and wished her luck in getting out alive. 28. The offender then retrieved a kitchen knife that the victim had gifted him for Christmas the year prior, which he kept in his bedroom. The offender began swinging the knife around and gesturing towards the victim with it. The offender told the victim how fun it would be dismembering her body, and how he would love to use the knife she had given him to do that. The victim felt terrified, as she believed that the offender would carry out the threat. 29. The offender kept pushing the victim into the wall in the corner of his bedroom and not letting her stand up to leave. At one point, he held the victim against the wall by her throat with his hands until she felt as though she would fall unconscious, at which point the offender took his hands off her throat. 30. The offender told the victim to look at him because he wanted to look into her eyes while she died. The offender became enraged because the victim refused to look at him in the eyes. The victim was dizzy, had blurred vision, and was trying to catch her breath. The offender grabbed her by the throat and pushed her to the ground. The victim had her hands on the offender's arm, trying to defend herself, and then decided to let go because she felt as though if she tried to fight back it would just escalate the attack. 31. The offender then went and lay down on his bed, facing away from the victim. The offender's body language led the victim to believe that he was distressed. The offender begged the victim to leave. before he did any real damage. 32. The victim walked out of the offender's room, but then changed her mind about leaving and went back in to check that the offender was okay. 33. When she did, the offender told the victim that she should call police because of what had just happened. The offender reiterated that he had been planning to kill the victim for a long time, and acknowledged the horror of it now that it had become more of a reality. The offender expressed that he was struggling with suicidal thoughts. The victim insisted she stay the night with the offender to look after him. 34. At about 9:43pm on 4 March 2020, the victim phoned the Domestic Violence Crisis Service ("DVCS") and spoke with a staff member. She reported that she had a sore throat and bruising from the incident one week earlier. The staff member encouraged the victim to seek medical attention. 35. The victim's mother, [anonymised], observed marks on the victim's neck around that time, but did not know how the bruising was caused. 36. The victim did not take photographs of her injuries. 37. In the days following the incident, the victim phoned a friend who lived overseas, and told him what had happened. He encouraged the victim to tell her mother, which she later did.

Incident 2 – 12 May 2020 38. On Tuesday, 12 May 2020, the victim was staying with the offender at his house. She had her belongings in a couple of suitcases and her handbag. At one point, the offender left the house and the victim took the opportunity to phone her mother. When the offender returned to the house, the victim was still on the phone to her mother. The offender demanded her attention and threatened her, so she would hang up. After the victim hung up the phone, she expressed she was upset and was going to go and have a breather. While the victim was in the bathroom, the offender collected her belongings and stacked them between the bedroom and the bathroom on the first floor and locked himself in his bedroom. 39. The victim exited the bathroom and banged on the bedroom door to get the offender's attention. He opened the door and was in an aggravated mood. The offender became aggressive toward the victim and proceeded to throw her belongings down the stairs inside the residence. The victim was screaming at the offender to stop. 40. The victim exited the bathroom and banged on the bedroom door to get the offender's attention. He opened the door and was in an aggravated mood. The offender became aggressive toward the victim and proceeded to throw her belongings down the stairs inside the residence. The victim was screaming at the offender to stop.

Common assault 41. The offender then attempted to push the victim down the stairs with his hands. The offender then kicked the victim in the back and pushed her into a wall. 42. The offender picked up the victim's handbag and laptop bag. The victim grabbed these items from the offender and started running down the stairs. The offender followed her and used his hands to push the victim in the back, causing her to trip and fall down the last four stairs. The victim landed on the floor at the bottom of the stairs and tried to collect her belongings. 43. The offender took a kitchen knife out of one of the victim's bags which contained kitchen supplies. The victim gathered her belongings and ran out the front of the house, leaving the offender inside. 44. During the incident, a neighbour, [anonymised], had overheard parts of the incident and phoned the police. [The neighbour] came out the front of the house and let the victim know that the police were on their way. The victim panicked, fearing that the offender would be angered further by the presence of police officers. 45. The victim phoned the offender and told him that the police were coming. The offender wrapped the knife he had taken from the victim's bag in a thick layer of electrical tape and came outside with the knife, where he placed it on a windowsill. The offender told the victim that they had to present a united front to the police so that he did not get into trouble. When police officers attended, the victim told them that there was no issue and apologised for wasting their time. 46. One of the attending police officers observed a knife on the windowsill and asked whether it was always there, and why it was wrapped up in electrical tape. The offender told the officer that the victim was unstable, and he didn't want her to hurt herself with the knife, so he had safety-proofed it. 47. When police left, the victim got an Uber and travelled to the [A block of] Apartments,… in Braddon in the ACT. Her parents had booked the victim a room for her to stay in at that location. 48. Later that day, the victim contacted the offender and invited him to come to the Adina Apartments and discuss what had happened. The victim mentioned to the offender that she was experiencing pain in her back from where he had kicked her, and also that she had bruising and pain in both of her wrists. 49. The victim took photos of the bruising on her wrist and arm and later provide those photos to police. The victim expressed she wanted to make a doctor's appointment, and the offender said she was being stupid, and he would not let her call her General Practitioner. The offender said he would take the victim's phone off her if she attempted to make an appointment. 50. About 5:15pm on Thursday 14 May 2020, the victim told the offender she was going to walk across the road to get something to eat. While she was out of the apartment, the victim phoned DVCS and spoke with a staff member. The staff member encouraged the victim to attend the emergency room for an assessment. 51. The victim returned to the apartment and made an excuse to leave. She went to the Calvary Hospital emergency department and was observed by Doctor [anonymised], the ED Medical Officer. The victim had X-Rays on her wrist at that time. However, the victim left the hospital prior to receiving the results of her X- Rays. 52. The victim later obtained the Radiology report and ED discharge summary and provided them to the police at some point after October 2020.

Incident 3 - 16 May 2020 53. On Saturday, 16 May 2020, the victim and the offender were still staying at the [Apartments in Braddon]. At some point during that day, the victim asked the offender to leave. The offender quickly became aggressive. The victim attempted to hide from him in the bedroom of the apartment. However, the offender prevented her from closing the door.

Damaging property, where the value of the damage did not exceed $5,000 54. The offender punched a hole in the wall, directly next to the bedroom door. The hole was approximately 15cm by 10cm. 55. The victim was incredibly distressed by the offender punching a hole in the wall. The offender walked away and picked up a container of Italian food and threw it over the carpet. The offender then squashed the food into the carpet with his feet. The offender also threw two coffees across the room, spilling over the walls and floor. As the offender was leaving, he punched a second hole in the wall, this time near the front door of the apartment. The hole was approximately 5cm by 10cm. 56. At about 10:40am that day, the victim telephoned her parents, DVCS, and police. Police officers attended the [Apartments in Braddon]. During the course of their relationship, the offender told the victim he had affiliations with dangerous people, and regardless of whether he was locked up or not, he could easily have her killed without getting his own hands dirty. The victim believed him. Due to this belief, the victim told police officers that she did not want to pursue charges relating to the damage to the apartment. 57. The victim took photos of the damage and later provided it to police on a date after October 2020. The damage, which was in excess of $2,000.00, was later repaired and paid for by [anonymised], the victim's mother and father. 58. The victim was moved to a new apartment. A friend, [anonymised], came and stayed with her. 59. On 17 March 2020, the offender returned to the [Apartment in Braddon] to collect items he had left. The victim walked down the street to talk to the offender, where he threatened to kill her. When the victim walked back to the apartment, she telephoned DVCS twice and spoke with two different staff members, whom she told what had happened.

Incident 4 – 14 August 2020

60. On Friday, 14 August 2020, the offender was preparing to move out of his house in Belconnen. The offender made plans to store his belongings at a property that was being rented by the victim. The offender contacted the victim and requested her assistance in helping him to pack up his belongings. 61. The victim arrived at the offender's house later that morning and observed that the offender had not started to pack his belongings yet. The victim tried to motivate the offender to assist her in packing his belongings. The offender refused.

Common assault 62. The offender cornered the victim by standing in front of her. He pushed her up against a wall with both hands. The victim told the offender that she was leaving. The offender began verbally threatening the victim, yelling loudly. The victim was scared and felt trapped. 63. The victim pushed the offender with two open hands to create distance between them. The offender became angrier towards the victim after she pushed him. The victim was really frightened. She opened the bedroom door and tried to leave. As she turned away from the offender, he punched her in the back of the head with significant force. 64. The victim screamed loudly and collapsed to the ground. She was crying and grasping at her head. The offender knelt to the ground next to the victim and began apologising. He assisted the victim to a standing position and guided her back into the bedroom, at which point he closed and locked the door. 65. The victim was distraught, dizzy, and in pain. She told the offender that she needed to go home. The offender stated that he was afraid he had punched the victim too hard, and that someone needed to watch her after such a head injury. He insisted that the victim could not leave because he needed to keep an eye on her. 66. At about 12:27pm, an anonymous person who overheard parts of the incident became concerned and telephoned the police. At about 12:33pm, police officers arrived at the location. 67. On becoming aware of the presence of police officers, the offender left the residence by climbing over the balcony attached to the bedroom. He told the victim not to talk to the police about anything. 68. The offender had taken the victim's handbag containing her ID, bank cards and phone. The victim told attending police she was having a panic attack on the balcony when police gained entry to the bedroom. The victim did not disclose to attending police what had happened. 69. At the time of this incident, [anonymised], the offender's housemate, was present in an adjoining room, but did not hear anything. 70. After the attending police officers left the location, the victim started walking around the street looking for the offender. On returning to the offender's house, she saw the offender standing with his father. The offender gave the victim her handbag and told her to head upstairs and wait in his room. The offender followed the victim upstairs shortly after and told her he was leaving with his father and he wanted her to continue cleaning and packing his things while he was gone. 71. The victim told the offender she did not want to stay there, and they began arguing. The offender verbally threatened the victim saying that he would come to her house unannounced, break in and take whatever he wanted. He said he would burn the house down with the victim inside it. 72. About 1:30pm, the victim left to return home and made a phone call to DVCS and spoke with a staff member. The staff member offered to help her find somewhere safe to go, but the victim declined. The staff member suggested the victim not be at home alone, for her own safety. The offender called the victim repeatedly for the rest of the day, repeating threats to burn the house down with the victim inside it. 73. The victim had her friend, [anonymised], come over to her house to support her. The offender phoned the victim and once he discovered that [the friend] was with the victim, the offender made threats towards [the friend], so the victim convinced [the friend] to leave. 74. On Saturday, 15 August 2020, the victim attended the surgery of a general practitioner to have her head injury assessed.

Incident 5-13 September 2020 75. At some point prior to mid-August 2020, the victim began renting a house in Evatt in the ACT, which was privately owned and leased by [anonymised]. The offender began residing with the victim at this address in mid-August. 76. On Sunday, 13 September 2020, the offender had gone out for the evening. The victim phoned the offender saying words to the effect of, "I've been waiting up to go to bed until you come back so I can let you in". The offender responded with words to the effect of, "I don't care. You can wait for me". The victim responded "No. You can come back tomorrow. I'm going to go to sleep." 77. A short time later the offender arrived at the back door of the victim's residence. He phoned the victim and said he was waiting for her to let him in. The victim walked to the living room of the premises and opened the glass sliding door, but keeping the sliding screen door closed and locked. The victim told the offender he was not welcome to come back in the house that night. The offender told the victim he had belongings in the residence, so he had every right to break in.

Damaging property, where the value of the damage did not exceed $5,000 78. The offender kicked the screen door until it broke off the frame, and threatened to do more damage if the victim didn't let him in. The victim felt afraid and let the offender into the house. 79. While the offender was gathering his belongings off the couch, he threatened to set fire to it. The offender was holding a gas cylinder with an open flame near the couch. In response, the victim splashed a glass of water on the offender.

Assault occasioning actual bodily harm 80. The offender then hit the victim on her right arm with the gas cylinder, knocking the glass of water out of her hand. This caused the victim to feel immediate and immense pain in her right elbow. She frightened and in shock. She fainted and the glass shattered on the floor. 81. The offender caught the victim as she was falling and lowered her to the ground. When the victim regained consciousness, the offender left. The victim phoned her mother, and the ACT Ambulance Service (the "ACTAS"). Police were notified of the incident by the ACTAS. When police officers attended the location and spoke to the victim, she was adamant she did not want police to be involved. 82. The victim was taken to the hospital by the ACTAS. The victim was observed by Doctor [anonymised], the ED medical doctor. 83. The victim took photos of the bruising to her arm and the damage to the screen door and later provided the photos to police. 84. The victim later had surgery consisting of an ulnar nerve transposition in her right elbow. 85. The screen door was later repaired and paid for by [the victim’s parents]. The cost of the repairs was $1,669.00.

Incident 6 - between 10 September 2020 and 20 September 2020 86. Between 10 and 20 September 2020, a number of incidents occurred at the victim's house in Evatt.

Damaging property, where the value of the damage did not exceed $5,000 87. On one occasion during this period, the victim had locked herself in the bedroom of the residence due to the offender's behaviour. The victim saw the handle wiggle, and believed the offender was trying to access the bedroom. The offender verbally demanded that the victim open the door. The offender banged loudly on the door for some time, demanding that the victim let him in. The victim asked the offender if he had any weapons. He assured her that he did not. 88. The offender began kicking the bedroom door to gain access. The force of the kicks created two holes, measuring approximately 5cm by 10cm, with splintering cracks around each hole on the lower half of the door. The force of the kicks also caused a large, 20cm crack to appear on the opposite side of the door. 89. The victim saw this crack beginning to emerge on the door whilst she was inside the bedroom. The victim was distressed and decided to unlock the door. As soon as she did so, she ran back to sit on her bed.

Damaging property 90. The offender then opened the door and entered the room. He approached the bed holding a jet lighter. He used the flame of the jet lighter to ignite the bedsheets. The flame burned through the sheets to expose a mattress protector. The heat of the flame caused an area of the plastic component of this mattress protector to melt. 91. The victim grabbed a glass of water and used it to extinguish the flame. The offender later discarded both the bedsheets and mattress protector before the victim could take photographs.

Damaging property, where the value of the damage did not exceed $5,000 (continued - ''rolled up" count) 92. On another occasion, the victim again locked herself in the bedroom due to the offender's behaviour. The offender demanded access to the bedroom, and used a knife to stab and cut the door. 93. The victim opened the door once the offender had calmed down. The offender laughed about having hacked at the door with a knife and told the victim that he had, "always wanted to do that". 94. On another occasion, the victim locked herself in the bathroom due to the offender's behaviour. The offender started kicking and punching the door to get to the victim. This conduct caused a 20cm in one side of the door, and two smaller cracks in the other side, measuring about 10cm each. 95. The repairs to the bedroom and bathroom doors were later performed and paid for by [the victim’s parents]. The cost of the repairs was $970.00.

Intentionally and unlawfully choking, suffocating, or strangling another person Common assault 96. On another occasion during this period, the victim was sitting on her bed in the bedroom of her house in Evatt. She and the offender were arguing. The offender punched a wall beside the bedroom door before storming over to the bed and launching himself at the victim. 97. The victim turned away from the offender and put her arms up in front of herself, covering her face. The victim somehow turned around, and the offender began punching her on the back of the head. 98. The offender then pushed the victim over, so that she was lying face down on the bed. The offender sat or kneeled on the victim's back and continued to punch her in the back of the head. She could feel the hardness of the offender's knuckles on the back of her head. The victim screamed and tried to wriggle her arms free, but they were trapped underneath her due to the offender being on her back. 99. Between bouts of punching the victim, the offender pushed down forcefully on the back of the victim's head, forcing her face into the mattress. The victim felt unable to breathe. She attempted to turn her head and gasp for air once the offender resumed punching her. The victim stopped screaming and began attempting to tell the offender that she couldn't breathe. 100. The force applied by the offender to the back of the victim's head, pushing her face into the mattress, caused her to feel that she couldn't move, and like she was suffocating. 101. The offender suddenly stopped hitting the victim and got off her. The victim turned head to the side and freed her arms, taking a deep breath. She saw the offender sitting at the edge of the bed looking back and forth between his hand and her. The offender showed the victim his hand, which was covered in blood. The offender said words to the effect of "I don't know if this is my blood. or yours". 102. The offender apologised and said he couldn't believe what he'd just done. He said that the victim had pushed him too far, and that's why he had acted that way. The victim felt dizzy and had a headache. She took some painkillers and had a shower to wash the blood out of her hair.

Incident 7 - 18 September 2020 103. On 18 September 2020, the offender and the victim were at the victim's house in Evatt. The offender requested that the victim transfer money to him. This was a common occurrence. 104. The victim did only had about two hundred dollars left in her account, so at that time she refused the offender's request. The offender began to follow the victim around the house with a taser that he had been in possession of for several weeks. The offender would set the taser off sporadically to frighten the victim, and then laugh when he saw her reaction. Make demand with threat to endanger health, safety, or physical wellbeing of another person 105. The offender continued to follow the victim around, threatening her and setting the taser off, as he asked her to transfer him the money. 106. The offender believed he and the victim had agreed to use drugs together, and he intended the money to be used to purchase drugs that they would both share in. 107. The victim ran to her bedroom and closed the door behind her, but didn't lock it. The offender followed and slammed the door open, causing the handle of the door to damage the wall behind it. The offender then forced the victim backward into bedroom wall whilst pointing the taser at her. 108. The offender held the taser centimetres away from the victim's chest. He threatened to "tase" her if she didn't transfer him as much money as she had in her account. At about 11:23pm, the victim transferred $202.00 to the offender via a banking application on her mobile telephone whilst the offender continued to hold the taser in close proximity to the victim's body. 109. Once the offender could see the money in his account, he left the house telling the victim that he would be back soon. 110. The victim collapsed to the floor, sobbing. She believed the offender was going to use the taser on her whether she transferred him money or not. She experienced such an intense feeling of fear, due to being so convinced that the offender was going to use the taser on her that she urinated in her pants. 111. At about 4:19am on Saturday, 19 September 2020, the victim phone police. She was distressed and afraid, and could only whisper on the phone because she did not want to alert the offender to the fact that she had called. During the call, she mentioned a taser. 112. About 4:30am, police attended the victim's house. The victim told police the offender had "lost his shit" and he had "just snapped", and left the location prior to police attendance. She told police she had concerns for her safety, and that the offender's negative behaviour was escalating.

Incident 8 - 10 October 2020 113. At about 6:30pm on Saturday, 10 October 2020, the offender was at the victim's house in Evatt. The victim had been evicted from this property by [the owner] due to the damage caused during the victim's tenancy. 114. The victim and the offender had an argument during which the victim was screaming and the offender was pushing her into walls. The victim requested the offender leave the residence.

Assault occasioning actual bodily harm 115. The offender kicked the victim's right hand, jarring her thumb and causing her significant pain and discomfort. At the time, the offender was wearing heavy work boots. The offender then used a lighter to set fire to a packing box. 116. At about 6:32pm, [anonymised] a neighbour, overheard the victim's distress and called the police.

117. At about 6:43pm, police officers attended the residence and spoke with the victim. The victim did not disclose the above offences the attending officers at the time. The victim did, however, telephone DVCS and told a staff member what had happened. 118. On 13 October 2020, the victim attended the Palmerston Medical Centre and reported to Dr [anonymised] that she was experiencing pain in her right thumb as a result of the kick. On 3 December 2020, the victim disclosed to [anonymised] that she had been assaulted. 119. On 21 December 2020, the victim reported ongoing pain in her thumb to [the doctor]. She was referred for an X-Ray and an ultrasound of her right thumb. 120. On 26 February 2021, the victim attended Qscan Radiology Clinics and had an X- Ray and an ultrasound on her right thumb. The results revealed a mild thickening of the joint capsule with probable mild thickening of the volar plate in the right thumb interphalangeal joint. 121. On 17 July 2021, the victim attended Sport and Spinal Physiotherapy in Gungahlin and reported right thumb and wrist pain from an injury in October 2020. She was referred for a MRI. 122. On 30 July 2021, the victim attended the Canberra Imaging Group and had a MRI on her right hand and right wrist. The victim was treated by Dr [anonymised]. The MRI confirmed a torn volar joint capsule at its ulnar insertion, a torn meniscal homologue, a torn radial collateral ligament, and a torn proximal surface of the triangular fibrocartilage complex in her wrist. 123. On 14 July 2021, the victim attended the Gungahlin General Practice and spoke to [a doctor]. [The doctor] referred the victim to ... an orthopaedic surgeon. 124. On 16 August 2021, the victim reported to [the orthopaedic surgeon] that she was experiencing ongoing and increasing pain in her right wrist and thumb. 125. On 16 September 2021, following further consultations and MRI, the [orthopaedic surgeon] performed the following surgical procedures on the victim's right hand and wrist: (1) a right endoscopic carpal tunnel release; and (2) a right subcutaneous ulnar nerve transposition. These surgeries were performed due to a diagnosis of "median nerve entrapment right carpal tunnel" and "right cubital tunnel syndrome". Annexure B Annexure C