DPP v Al-Mofathel [2025] ACTSC 493

Facts

5. On 31 August 2024, the offender and Daniel Fensom (the co-offender) entered a residence in Deakin without permission of the occupants. The offenders were both wearing dark clothing and had their faces covered. One of the offenders was holding a claw hammer and the other was holding a club hammer. This conduct gives rise to the charge of aggravated burglary.

6. The victim, who lived at the residence, encountered the offenders inside the property. One of the offenders yelled at the victim and punched him on the left side of his face, causing him to fall back onto the lounge. This conduct gives rise to the charge of common assault by joint commission.

7. After a short time, the victim went into the kitchen and was told by one of the men to empty his pockets. He placed his wallet and mobile telephone on the table. One of the offenders took the victim’s wallet and phone, and then both offenders left the residence. This conduct gives rise to the charge of minor theft by joint commission.

The court’s task

8. The offender is to be sentenced in accordance with the sentencing purposes set out in s 7 of the Sentencing Act, and the mandatory relevant considerations set out in s 33 of the Sentencing Act, insofar as they are relevant. The offender is also sentenced with the principle of individualised justice in mind: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

9. The court is required to consider the nature and circumstances of the offences. This includes an assessment of the objective seriousness of the offence. Any sentence imposed must be proportionate to the seriousness of the offence. The court takes an objective approach to that assessment, with the maximum penalty for the offence as a yardstick.

10. The conduct constituting each offence will also have individual features which guide the court in determining where the offence sits within the range of conduct that falls within any given offence.

11. In relation to other offending that must be taken into account (s 33(1)(b) of the Sentencing Act), the usual approach to the objective seriousness of a scheduled offence has been discussed in R v Campbell [2010] ACTCA 20 and applies to the scheduled offences here. When considering the additional offences in crafting the sentence for the principal offence, the court cannot impose a penalty exceeding the maximum penalty for the principal offence (s 57(3) of the Sentencing Act). However, the usual approach is not the only approach. Here, the co-offender has already been sentenced in relation to the same offences, including having the additional offences taken into account: DPP v Fensom [2025] ACTSC 272 (Fensom). At [2] of that decision, the Chief Justice considered that the two further offences were integrally linked with the substantive offence and thus would not result in any significant increase in the penalty to be imposed. I have taken the same approach for reasons of both parity and comity.

12. In addition, one of the features for consideration with regard to the scheduled offences is that they were committed by joint commission. Accordingly, an assessment of the offender’s role or degree of responsibility in the offending, and his culpability, is necessary: s 33(1)(i) of the Sentencing Act; see also R v Hagen [2022] ACTSC 362; 374 FLR 260 at [27] and the cases there-cited.

13. Here, the offender’s role in the assault has been left deliberately vague in the agreed facts and otherwise, the conduct of the offenders was comparable. I have assessed the objective seriousness on that basis. Otherwise, I have taken into account the features informing the objective seriousness as follows: (a) Both circumstances of aggravation were present, namely the conduct occurred in company and in possession of an offensive weapon; (b) The property on which the offender trespassed was residential, which was more serious than an offence involving commercial premises; (c) The occupants of the premises were present at the time of the burglary, the offenders interacted with the occupants and the weapons were visible to the occupants while the offenders moved about the premises; (d) There was a degree of planning or pre-meditation given that the offenders left the premises and returned, with their faces covered and with weapons; and (e) In respect of the assault, physical trauma was suffered by the victim, who experienced pain upon being punched by one of the offenders.

14. Given those features, the objective seriousness of the conduct was towards the middle of the range of conduct covered by the aggravated offence.

Victim impact (s 33(1)(f) of the Sentencing Act)

15. There were no victim impact statements before the court.

Plea of guilty (ss 33(1)(j) and 35 of the Sentencing Act)

16. The offender pleaded guilty at an early opportunity following negotiations. The plea enlivens the potential application of a discretionary discount: s 35(3) of the Sentencing Act; Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]. In exercising the discretion, the court must have regard to the matters specified in s 35(2) of the Sentencing Act. Utilitarian value is a primary consideration: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]; and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [49].

17. The objective seriousness of the conduct has been discussed above. Of significance here, 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. The circumstances in which the plea occurred here involved negotiations, which led to the offender pleading to lesser charges which were scheduled. As stated in Toumo’ua at [56]: … 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.

18. Applying that principle, a 20% discount is appropriate.

Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

19. The offender was born in Iraq and suffered a turbulent childhood due to the Iraqi war engulfing the country. His family fled and ultimately migrated to Australia in 1996. He has support from his parents and siblings. He was previously married. He has no dependants. He completed year 12 and has been regularly employed in various industries. Upon release he will require assistance from Centrelink (s 33(1)(n) of the Sentencing Act). He has access to accommodation through ACT Housing.

20. Unlike his co-offender, he does not appear to have any separate mental health issues (that is, other than those related to the consequences of drug use). However, he does have a relevant criminal history, extending back as far as 2006 and including convictions for violent offending. It disentitles him from leniency here.

21. The offender also has a substance use disorder, which has included regular use throughout his adult life and escalated to the use of methamphetamine through his mid- 20s with continued high frequency use until his current custodial period. The current offending was related to the drug use (s 33(1)(p) of the Sentencing Act), with the offender consuming drugs at the same premises he later burgled.

22. While in custody, he has voluntarily completed the EQUIPS Addiction program, for which he is to be commended (s 33(1)(t) of the Sentencing Act).

Remorse (s 33(1)(w) of the Sentencing Act)

23. The evidence did not establish remorse to an extent that would warrant any significant mitigation, but in the offender’s favour, he did accept the unlawfulness of the conduct and elaborated on the wide-ranging impact on the victims and the general community.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

24. The prosecution assisted the court with a number of comparable cases where the conduct involved home invasions where there was interaction with the occupants. They include DPP v Stasinos [2023] ACTSC 179; DPP v Fisher [2023] ACTSC 29; DPP v Dawson (No 2) [2022] ACTSC 64; R v Crick [2021] ACTSC 106; and R v Catanzariti [2020] ACTSC 326. I have taken these cases into account to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].

25. Having regard to parity considerations, Fensom was obviously also of significance. However, the facts on which the co-offender was sentenced were different and there were different mitigating subjective features present.

Pre-sentence custody

26. The offender has spent 11 days in custody referable to the current offending.

Totality

27. The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited). Although there is only one offence for which the offender is being sentenced, and he has spent only 11 days in custody referable to that offence, he has now spent more than 400 days in continuous custody, which should be taken into account. There comes a point beyond which further time in custody to punish or express denunciation, or to give effect to specific deterrence, becomes meaningless. I think that point has been reached here.

Disposition: Should a Drug and Alcohol Treatment Order be made?

41․ I have taken into account the relevant sentencing purposes. Accepting that the imposition of a term of imprisonment is a sentence of last resort (s 10 of the Sentencing Act), no other sentence is appropriate here in terms of being proportionate to the conduct and the nature of the offence.

28. As to the manner in which the sentence is to be served, disposition by way of a Drug and Alcohol Treatment Order (Treatment Order) is the appropriate outcome: s 12A(2)(b) of the Sentencing Act. There are three reasons for that finding. First, the offender will have served a short period in full-time custody referable to these offences, and as I have said above, totality considerations have persuaded me that in the circumstances, that length of time is sufficient to achieve the objective of personal deterrence. Punishment, denunciation, recognition of victim impact and general deterrence are reflected in the length of the sentence, a matter which itself is influenced heavily by the sentencing practice in terms of what may be appropriate.

29. Second, I have considered the objects of a Treatment Order set out in s 80O of the Sentencing Act as follows: (a) facilitating the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; (b) reducing the offender’s dependency on alcohol or a controlled drug; (c) reducing the health risks associated with such dependency; (d) assisting the offender’s integration into the community; and (e) promoting community safety by reducing re-offending.

30. Rehabilitation is promoted by the interventionist and therapeutic basis of a Treatment Order. The community will be better protected in the longer term by reducing and ideally eliminating the criminogenic risk factor that caused this offender to offend.

31. Third, I am satisfied of the other formal requirements for a Treatment Order: (a) On the reports provided to the court, the offender is both eligible and suitable for a Treatment Order: ss 80S and 80T of the Sentencing Act. (b) The offender’s dependency on substance use and addiction was directly related to his offending: s 12A(2)(a)(i) and (ii) of the Sentencing Act. (c) The offender has consented to the Treatment Order, having been given a clear explanation of what it involves: s 12A(2)(c) of the Sentencing Act. (d) The offender will live in the ACT for the duration of the sentence except as directed by the court: s 12A(2)(a)(iii) of the Sentencing Act. (e) There are no concerns relating to the safety or welfare of any victim: s 12A(2)(b)(ii) of the Sentencing Act.

32. It is not necessary to set a non-parole period because the making of a Treatment Order means that the sentence becomes an “excluded sentence of imprisonment” under s 64 of the Sentencing Act.

Orders

33. The orders of the Court are: (1) For the offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (CAN 8833/2024), and taking into account the offences of common assault by joint commission (CAN 874/2025) and minor theft by joint commission (CAN 839/2024), the offender is convicted and sentenced to a term of imprisonment for 20 months, reduced to one year and four months on account of his guilty plea, to commence on 31 October 2025 and conclude on 28 February 2027. Drug and Alcohol Treatment Order (Treatment Order) (2) A Treatment Order under s 12A of the Sentencing Act is made for Mustafa Al- Mofathel in respect of the eligible offence of aggravated burglary, for which he has been convicted and for which he has been sentenced to a total term of imprisonment of one year and four months, commencing from today, 10 November 2025 and concluding on 28 February 2027. (3) The conviction and sentence imposed for the said eligible offence is hereby incorporated into the Treatment Order in the Custodial Part of the Order. (4) The Treatment and Supervision Part of the Treatment Order is for 12 months from today, 10 November 2025 until 9 November 2026. (5) The Custodial Part of the Treatment Order for the eligible offence will be suspended under s 80W of the Sentencing Act from today, 10 November 2025, until 28 February 2027.

Good behaviour order (6) Pursuant to s 80ZA of the Sentencing Act, and conditional upon compliance with Orders 7 and 8 of the Treatment Order, a good behaviour order is made, commencing from 10 November 2026 (the day after the end of the Treatment and Supervision Part of the Treatment Order) and concluding on 28 February 2027 (the end of the total sentence that is the subject of the Treatment Order). (7) Under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), Mr Al-Mofathel must sign an undertaking to comply with the good behaviour order, including the core conditions of the order set out in s 86 of the CSA Act. (8) A probation condition is imposed, requiring Mr Al-Mofathel to: (a) accept supervision by the Commissioner of ACT Corrective Services or their delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate; and (b) obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment. Treatment and Supervision Conditions and Directions (9) For the Treatment and Supervision Part of the Treatment Order: (a) The core conditions of the Order set out in s 80Y of the Sentencing Act are hereby imposed. (b) Mr Al-Mofathel is directed to travel to Canberra Recovery Service Residential program on 10 November 2025 and admit himself to the residential drug rehabilitation program at that facility by 12:00pm. (c) Mr Al-Mofathel is directed to complete the drug rehabilitation program or any other program of intervention, treatment or counselling he is directed to complete, including urinalysis or case management that may be required by any member of the Treatment and Supervision Team. (d) Mr Al-Mofathel is to obey all reasonable directions of any person in charge of the program and all the rules of the program and the facility, which may include directions about where he resides, with whom he associates and his attendance from time to time. (e) Mr Al-Mofathel is not to leave his approved place of residence between any curfew hours directed by the Treatment and Supervision team, other than for a medical emergency, and he is to present himself to the front door of the residence if required by an officer of ACT Policing. (f) Should Mr Al-Mofathel leave or be discharged from the treatment program before completing it, he is to report to ACT Corrective Services by 4:00pm on the next business day with a view to having his Treatment Order reviewed. (g) Mr Al-Mofathel is not to consume or use alcohol, cannabis, illicit drugs, or prescription drugs not prescribed to him. (h) Mr Al-Mofathel is to comply with any directions of the court from time to time about attendance at court in person or by electronic means. (10) Pursuant to s 12A(6) of the Sentencing Act, I direct that written notice of the order, together with a copy of these orders, be given to the offender.

I certify that the preceding 33 [thirty-three] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: