DPP v Donnelly [2025] ACTSC 411

1. The offender, Daniel Donnelly, is to be sentenced for the following offence: (a) One count of aggravated common assault (family violence) (CC2025/710) contrary to s 26 of the Crimes Act 1900 (ACT) which attracts a maximum penalty of 3 years imprisonment.

2. The offender has also asked that the following offence be taken into account pursuant to pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) in making a sentence related order for the principal offence: (a) One count of aggravated damage property (family violence) (CC2024/10771) contrary to s 116(3) of the Crimes Act which attracts a maximum penalty of 60 penalty units, 3 years imprisonment, or both.

Agreed facts

3. By October 2024, the offender had been in a relationship with the complainant for about four months.

4. On Friday 25 October 2024, the offender and the complainant had been having an argument over the phone, during which the offender claimed that the complainant was being unfaithful to him. The complainant told the offender that she would go over to his house so that they can talk further about this accusation.

5. About 6pm on the same date, the complainant, in the company of her then four year old son, [redacted], and her two friends, [redacted] and [redacted], drove to the offender's residence at [redacted] in the ACT ('the [redacted] Unit'). The complainant parked her vehicle opposite to the [redacted] Unit, exited her car and started to walk towards the offender's unit. About this time, the offender emerged from his unit and started to approach the complainant. The offender was dressed in boxer shorts and a dressing gown. While the offender was approaching the complainant, he started yelling abuse at her and accusing her of infidelity.

6. When the offender approached the complainant, he grabbed hold of the collar of an orange jumper that the complainant was wearing. The offender pulled the collar of the jumper with so much force that it caused the jumper to tear.

7. As result of the offender forcefully pulling the complainant's jumper, the complainant lost her footing and start to fall forward. Also, as a result of the jumper being pulled by the offender, the collar of the jumper rubbed sharply against the complainant's neck causing a red mark on the left side of the complainant's neck.

8. The complainant got back into her car and started to drive away. The complainant then contacted her friend, [redacted], and told him what had just happened. Shortly after this, Mr [redacted] went to the Tuggeranong Police Station to report the incident. Police later attended the complainant's house to speak to her about the incident. Police also obtained photographs of the tear to the complainant's jumper.

9. On Sunday 27 October 2024, the complainant went to the Tuggeranong Police Station and took part in a Family Violence Evidence in Chief Interview.

10. On Monday 28 October 2024, Police attended the [redacted] Unit and placed the offender under arrest. The offender was taken to the ACT Regional Watch House where he was charged in relation to this matter. While at the Watch House, the offender took part in a Digital Record of Interview (DROI). During the DROI, the offender made the following assertions: (a) the complainant came to residence on 25 October 2024 with two of her friends and they were yelling and abusing him from outside his residence. (b) The offender went outside to confront the complainant and her friends and told them to "fuck off" and the complainant was begging him to come back home with her.

Nature and circumstances of the offending

11. The maximum penalty provided for by the legislature serves as an indication of the relative seriousness of the offence. The maximum penalty in this matter reflects the community’s intolerance for violent offending committed in the context of domestic relationships.

12. An assessment of the nature and circumstances of the offending requires consideration of the objective seriousness of the conduct establishing the offence. An assessment of where the offending falls on the spectrum from the least serious example of the offending to the most serious example of the offending, is an important consideration. I approach this assessment by identifying the features of the conduct engaged in by the offender which inform its objective seriousness.

13. To that end I note that the conduct occurred in the context of a verbal argument with the victim who had attended upon the offender. The offending was in public. The Director conceded that I could not take the presence of the child in the vehicle into account as an aggravating feature of the offence as there was no evidence that the child was able to see or hear the altercation. The force used by the offender to pull the victim was sufficient to rip her jumper and leave a red mark on the left side of her neck. The conduct was clearly deliberate and reflected some desire to control the victim.

14. The jumper being the property damaged was not an item of high value. The damage property offence occurred as part of a course of conduct and was the result of the use of force which underpinned the assault charge.

15. Taking those features into account, as the prosecution appropriately conceded, this was not an especially serious example of the offence. This characterisation is not intended to minimise or undermine the victim’s experience of the conduct to which I will come.

Subjective circumstances

16. The offender is a 30-year-old Aboriginal man. I have had the benefit of the extensive consideration of his personal circumstances detailed in R v Donnelly [2021] ACTSC 336 at [80] – [105] by Refshauge AJ, as well as the thoughtful submissions made on his behalf by Ms Baker-Goldsmith in the sentencing hearing.

17. In summary, the offender had a difficult upbringing characterised by disadvantage which included periods of homelessness, exposure to domestic violence and the perpetration of physical abuse against him. Perhaps unsurprisingly then, the offender has had mental health challenges as an adult and has been diagnosed with depression and attention deficit hyperactivity disorder. The offender began using cannabis at age 13 with his drug use extending to methamphetamine later in life. The offender commenced drinking alcohol around the age of 15 years. The offender engaged in some drug rehabilitation treatment prior to the imposition of a drug and alcohol treatment order (DATO) which was ultimately cancelled by Christensen AJ on 17 April 2025.

18. Ms Baker-Goldsmith tendered two program acceptance offers from the Ngunnawal Bush Healing Farm (NBHF) dated 2 September 2025 and 18 February 2025. The NBHF is a rehabilitation facility which provides residential services for Aboriginal and Torres Strait Islander peoples in the ACT with a focus on healing through connection to country, culture and community. The more recent acceptance offer from the NBHF confirmed a place for the offender in the next ‘day program’.

19. Ms Baker-Goldsmith also tendered a statement of reasons pursuant to s 44 of the Corrections Management Act 2007 (ACT). The statement records the reasons behind a direction by the Director-General of Corrective Services that the offender’s accommodation at the Alexander Maconochie Centre (AMC) need not be separate from convicted detainees whilst on remand.

20. The reasons indicated that the offender was assaulted on 18 November 2024 at the AMC and that he is required not to associate with several detainees which severely limits the accommodation options for him. The reasons concluded that it was in the offender’s interests to be housed away from other detainees for his own safety and that he would benefit from being accommodated with detainees with whom he has a familial and cultural connection.

21. Ms Baker-Goldsmith submitted that the offender had, in fact, been the victim of two serious assaults at the AMC, including more recently, a stabbing. No charges have been instituted against any person as a result of either incident. Ms Baker-Goldsmith submitted that the only conclusion that could be drawn from these circumstances was that offender’s most recent period in custody had been very difficult for him and for his family. As a consequence of the direction with respect to his accommodation needs the offender has been denied the possibility of engaging in programs in custody that might assist with his rehabilitation.

22. The offender’s disadvantaged childhood, marred by early exposure to domestic violence, physical abuse and homelessness must be given “full weight”. In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44], the High Court explained that childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”.

23. The offender’s childhood experience included exposure to the kind of conduct he engaged in toward the victim. His childhood experience to an extent ‘normalised’ physical responses to conflict. This of course does not condone the offender’s behaviour toward the victim, but it does go some way to explaining it. Another feature of the offender’s disadvantaged childhood was exposure to drug use at an early age. The offender commenced using drugs at a time when he was not capable of making a fully informed decision.

24. The effect of the offender’s childhood experience is such that he should not bear the same degree of responsibility as an offender who did not have the same negative experiences in childhood: see R v Millwood [2012] NSWCCA 2 per Simpson J (with whom Bathurst CJ and Adamson J agreed at [69]).

25. Like Refshauge AJ and Christensen AJ, I am satisfied that this sentencing task requires the application of the principles in Bugmy and R v Henry [1999] NSWCCA 111; 46 NSWLR 346. I consider that giving ‘full weight’ to the offenders disadvantaged upbringing operates to reduce his moral culpability to a degree and that punishment and general deterrence should be moderated as a result.

Remorse and rehabilitation

26. Remorse is a factor that influences an assessment of the potential for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. As I noted in DPP v Benn (No 2) [2025] ACTSC 266, a remorseful offender is more likely to have insight into their conduct and some desire to reform. Rehabilitation, in turn, is the best guarantor of community safety if it can be achieved and is in both the offender’s and the community’s best interests: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].

27. This is not a matter where I have the benefit of a pre-sentence report which might have included consideration of the offender’s attitude toward the offending. I do not have any evidence before me about the offender’s level of remorse. I am satisfied that the offender’s plea of guilty is some indication of his willingness to take responsibility for his offending conduct.

28. The material demonstrates that the offender is willing to engage with supports in the community which are specific to his cultural needs and which will address the challenges he has faced in the community that are contributing to his engagement with the criminal justice system. The offender accepts his participation in Buvidal treatment whilst in custody has been of significant benefit to him and this is a matter the Sentence Administration Board (SAB) will no doubt take into account. The offender’s mother remains supportive of him and will be a source of strength and care for him when he is released into the community. The offender can live with her, though has also been accepted into the Justice Housing Program (JHP) and accommodation will be available to him through that program when he is released.

29. The offender has demonstrated a mixed response to court orders in the past. He is now 30 years of age. With the attainment of some maturity and motivation not to return to the custodial environment, it may be that he is reaching a time in his life where he appreciates the need to dramatically change course. The SAB will be in a good position to consider and determine the offender’s needs. I am satisfied that he presents with promise for rehabilitation and this is a factor which should be afforded some weight. Victim impact statement

30. A victim impact statement was read aloud by the victim.

31. The statement was an articulate and thoughtful expression of the complexities that can attend to relationships which have featured violence. The victim acknowledged the pain caused by the offending and her regret at it contributing to the offender being remanded in custody.

32. The victim graciously expressed her forgiveness of the offender for the violence he used against her. She noted her confidence that he is capable of becoming a man who does not resort to violence. The victim told the offender that she believes that “he has it in him to be a good man” and her belief that he is capable of “so much more that what has happened in the past”. The victim expressed her hope that the offender can “stay clean” and realise the kind of life that “deep down” he desires.

33. The victim expressed her heartache because of the violence the offender has endured in custody. The victim recorded that she considers the violence perpetrated against him in custody to represent a “heavy price” that is “far beyond” what she would “ever have wished for him”.

34. The victim told the offender she bears him no ill will. The victim wished him a peaceful, stable, loving life.

35. The provision of the victim impact statement, so carefully and powerfully expressed, assisted me to understand the extent of the harm occasioned by the conduct and the effect of it on the victim. It is indeed to the victim’s credit that she is able to extend grace and forgiveness to the offender for his treatment of her. The victim’s willingness to forgive the offender cannot dictate the approach to the sentence imposed upon him, nor does it undermine the need for his conduct to be denounced and for him to be accountable.

Plea of guilty

36. The offender was due to take his trial today before a jury. Instead, he entered a plea of guilty to the offence of aggravated common assault which the Director accepted in full satisfaction of the indictment. The Court was advised two days ago that the matter had resolved.

37. The offender’s plea spared the need for the victim to participate in a trial and spared the court and the community the cost of a jury trial. I accept his plea as an indication of his willingness to accept responsibility. Criminal history

38. The offender has an extensive criminal history which primarily consists of burglary, theft, property damage, and driving offences. In the context of an extensive history, he is not significantly recorded for violent offences. There is one relevant entry being a damage property offence, which involved the same victim, that the offender was sentenced for in the ACT Magistrates Court in February this year.

39. The offender’s criminal history is not an aggravating feature, but it does limit the leniency that can be afforded to him.

Time in custody

40. The offender has not spent any time in custody attributable to this offending. He was arrested on 28 November 2024 and refused bail in the ACT Magistrates Court that day. The offender was re-sentenced following the cancellation of his DATO on 17 April 2025 by Christensen AJ to a total period of 4 years imprisonment to commence on 27 February 2023 and end on 26 February 2027 with a non-parole period of 2 years, 2 months, and 4 days. The offender has now been eligible for parole for some months and has an application for parole pending which is to return to the SAB in October 2025.

Conditional liberty

41. The offender committed this offending whilst subject to bail and awaiting re-sentence following the cancellation of his DATO: see DPP v Donnelly (No 2) [2025] ACTSC 157.

42. Further offending while on conditional liberty represents a betrayal of the opportunity to remain in the community and should be “regarded very seriously”: R v Tran [1999] NSWCCA 109 at [15]. It is a factor relevant to a determination of the appropriate punishment for an offence but does not influence the objective seriousness of it: Smith v The Queen [2011] NSWCCA 163 at [26]. I bear in mind that I must approach this feature of the offending with care to avoid double punishment: Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [61].

Current sentencing practise

43. As I observed in DPP v Howe [2024] ACTSC 178, common assault charges are not regularly dealt with in this court and are typically resolved in the ACT Magistrates Court.

44. In Howe I noted at [88] – [89]: For the offence of common assault sentenced in the ACT Magistrates Court, the penalties imposed include a good behaviour order (GBO) (49.7 per cent), a period of full-time imprisonment (16.5 per cent), a fine (11.1 per cent), a fully suspended sentence (11 per cent), an ‘other order’ (5.7 per cent), a partially suspended sentence (4.8 per cent), a period of imprisonment to be served as an intensive corrections order (ICO) (0.5 p[er cent) and finally, periodic detention (0.3 per cent). For the offence of common assault sentenced in the ACT Supreme Court, the penalties imposed include a period of full-time imprisonment (48.1 per cent), a fully suspended sentence of imprisonment (17.5 per cent), a period of imprisonment to be served as an intensive corrections order (ICO) (13 per cent), a partially suspended sentence (8.4 per cent), a GBO (8.4 per cent) and finally, a fine (4.5 per cent). For the offence of damage property not exceeding $5,000 sentenced in the ACT Magistrates Court, the penalty imposed include a GBO (40 per cent), full-time imprisonment (24.9 per cent), a fine (23.7 per cent), a fully suspended sentence (6.1 per cent), a partially suspended sentence (2.7 per cent) and then a nominal penalty. For the offence of damage property not exceeding $5,000 sentenced in the ACT Supreme Court, the most penalties imposed include a period of full-time imprisonment (68.1 per cent), a period of imprisonment to be served by an ICO (10.1 per cent), a fully suspended period of imprisonment (8.7 per cent), a GBO (7.2 per cent), a partially suspended sentence (4.3 per cent) and then a fine (1.4 per cent).

45. I acknowledge that there is limited utility in bare sentencing statistics and the reference above to common assault was not the aggravated version of the offence now before me. I also bear in mind that consideration of comparable sentencing outcomes is to ensure consistency in the application of legal principle, not the pursuit of numerical equivalence.

Determination

46. In sentencing the offender, I have regard to the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act. The reduction of the offender’s moral culpability moderates the weight of punishment and general deterrence to a degree. The sentence must recognise the harm done to the victim, deter the offender from engaging in this kind of conduct and give effect to his prospect of rehabilitation. Holding the offender accountable is also an important consideration.

47. I have also had regard to the matters contained in s 34B of the Crimes (Sentencing) Act that are relevant in this matter. As I also observed in Howe at [90]: The community speaks with one voice when it condemns family violence and laments the pervasive, negative effects of it on individuals, on families and on our communities. Sentencing Courts must make clear to perpetrators of family violence that their conduct will not be tolerated.

48. Perpetrators of family violence should be in no doubt that the use of violence in intimate relationships is not tolerated. Consequences of such conduct can and will include being sentenced to periods of full-time imprisonment. In R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551, the Court observed at [41]: [V]iolent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.

49. It need hardly be said any longer that which Loukas-Karlsson J observed in R v EP (No 3) [2019] ACTSC 242 at [88], namely that “the Courts have made it clear that women must not be treated by men as property”.

50. Mr Deakes for the Director conceded that this was not a matter where s 10 of the Crimes (Sentencing) Act “threshold” had been crossed. This is, of course, a reference to the need for a court to be satisfied that a sentence of imprisonment is the only appropriate outcome having regard to possible alternatives, before such a sentence is imposed.

51. The concession made by Mr Deakes in my view was entirely appropriate. The offending does not warrant a period of imprisonment. I have formed this view having regard to the nature and circumstances of the offending, the offender’s subjective factors as well as the need to take into account the additional offence of damage property.

52. The offender, if released on parole in October will be subject to a range of parole conditions which could include the supports which have been arranged for him in the community; engagement in the NBHF and housing with the JHP. He intends on continuing with Buvidal treatment having identified it as having significant benefit for him in relation to his ongoing challenge with the use of illicit substances. The offender has a supportive relationship with his mother. His relationship with the victim is no longer. The offender is currently single.

53. The offender will have significant motivation to address his challenges and the factors driving him to criminal offending if he is given the opportunity to return to the community by the SAB. He will remain under their scrutiny until February 2027. One imagines that his motivation to comply with parole conditions to remain in the community, will only have been strengthened by his recent experience of violence whilst in custody which has left him with permanent scarring. The requirement for the offender to engage with parole authorities until February 2027 is significant protection for the community against any further reoffending.

54. Taking that circumstance into account, both parties submitted that there was no need for the sentence I impose to require compliance with specific conditions. I agree. There is much sense in the offender understanding the importance of compliance with parole conditions and focussing on that requirement when he is released. If he is successful in doing so, he will achieve compliance with the sentence I intend to impose. Any conduct on parole which falls short of “good behaviour” such that he would be in breach of the order I impose, is sufficient to hold the offender accountable and in my view will promote the promise he has for rehabilitation.

Orders

55. The orders of the Court are: (a) On the count of aggravated common assault (family violence) (CC2025/710), the offender is convicted. Pursuant to s 13 of the Crimes (Sentencing) Act he is required to sign an undertaking to be of good behaviour for 12 months from today. (b) For 12 months the offender must accept the supervision of the Director-General of Corrective Services or their delegate and comply with all reasonable directions.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor Associate: P Beohm Date: 5 September 2025