DPP v Downs [2025] ACTSC 481

1. Trent William Downs (offender) is before the court having pleaded guilty to five offences of contravening a family violence order (FVO), contrary to s 43(2) of the Family Violence Act 2016 (ACT) (FV Act).

2. The dates on which the offences occurred are as follows: (a) CAN 11884/2023 (First Offence): 24 November 2023; (b) CAN 12393/2023 (Second Offence): 4 December 2023; (c) CAN 12394/2023 (Third Offence): 4 December 2023; (d) CAN 1566/2024 (Fourth Offence): 15 December 2023 and 31 January 2024; and (e) CAN 3828/2025 (Fifth Offence): 23 March 2024.

3. The maximum penalty for each offence is a fine of $80,000, a term of imprisonment for five years, or both.

4. In addition to those five charges, the offender has requested that two further charges be taken into account (collectively, the Scheduled offences): (a) CAN 6028/2024 use unregistered / suspended vehicle; and (b) CAN 6029/2024 use uninsured vehicle on road or road related area.

5. The Scheduled offences attach to the Fifth Offence of contravening a family violence order as the principal offence.

6. Upon conviction for the offences, the offender will also be in breach of two suspended sentences that were imposed in the Magistrates Court on 22 September 2023: (a) CAN 968/2023 aggravated common assault (family violence) contrary to s 26(1) of the Crimes Act 1900 (ACT) (Crimes Act); and (b) CAN 970/2023 aggravated common assault (family violence) contrary to s 26(1) of the Crimes Act.

7. For each sentence that was suspended, the offender had signed an undertaking to comply with good behaviour obligations for a period of two years (from 22 September 2023 until 21 September 2025). Facts

8. The FVO that was breached was issued in the Magistrates Court on 10 August 2023. It named the offender as the respondent to the order. The protected persons named in the FVO were “CC” and her three children “QN”, “QM” and “EF”.

9. EF is the biological son of the offender. Under the FVO, the offender was relevantly prohibited from being at the home of the protected persons, being within 100 metres of the protected persons, contacting the protected persons, and engaging in behaviour that constitutes family violence towards the protected persons.

First Offence

10. On 24 November 2023, the offender sent QN the following message over Snapchat (in reference to sibling contact with her brothers): You need to be going to contact your 13 start doing what your fucking told stop worrying bout dick and whatever else is going on this is a fucking joke. It is one day out of your busy week that you fucking have you need to start pulling your fucking head in. Second and Third Offences

11. On the evening of 4 December 2023, CC and QN were scheduled to have a meeting outside of a residence in Taylor. QN’s carer, “NB”, was aware of this.

12. At about 9:41pm on that date, the offender entered the residence where QN was present and living at the time. CCTV footage captures QN walking into the residence with the offender one metre behind her.

13. At about 9:51pm on that date, the offender and CC left the residence. CCTV footage captures the offender within one metre of CC while they are leaving the residence.

14. The conduct was charged separately in relation to each protected person.

Fourth Offence

15. At around 5:00pm on 15 December 2023, the offender, wearing a balaclava, entered CC’s home. He walked into CC’s bedroom and removed the balaclava. The offender was agitated and aggressive, yelling at CC that he was going to have the house run through. He screamed at CC, saying words to the effect of “QN is a skank, a slut and she is going to get what is coming to her”. The offender was frothing at the mouth and spitting while he yelled at CC. He went on to threaten CC that he was going to take EF and move with him to Queensland.

16. QM was present in CC’s home and heard the confrontation from a separate room.

17. The offender left CC’s home at about 5:15pm.

18. On 31 January 2024, CC received a phone call from a number she did not recognise. She answered the phone and recognised the voice on the phone to be that of the offender. The offender asked CC if police had been at her residence that day, to which she responded “yes”. The offender sounded very angry and proceeded to call CC a “fucking idiot” repeatedly before she hung up the phone. The conduct taken together constitutes the Fourth Offence.

Fifth Offence

19. At about 8:00pm on 23 March 2024, QN was outside on a footpath with two of her friends. The offender was in his vehicle. He drove up to the group and slowly drove past them. The offender hung his head out of the driver’s side window and yelled at QN, “fuck you bitch, I’m gonna get you”. He then drove away. The court’s task and the sentencing considerations

20. I will deal with the established legal principles affecting the court’s discretion briefly. In sentencing the offender for the driving offences, the court has at the forefront of its consideration the purposes of sentencing, set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which include (in summary form) making the offender accountable and denouncing and adequately punishing his conduct, deterring the offender and other people from committing the same or similar offences, recognising the harm done to the victims of the crimes and the community and promoting the offender’s rehabilitation.

21. The mandatory relevant considerations set out in s 33 of the Sentencing Act have also been considered below insofar as they relate to the offender’s circumstances, and in accordance with the principle of individualised justice: 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)

22. A consideration of the nature and circumstances of the offences includes an assessment of the objective seriousness of the offence. I referred recently to the principles guiding that assessment in DPP v Brymer [2025] ACTSC 430 (Brymer) at [25]-[26]. The court takes an objective approach, with the maximum penalty for the offence as a yardstick.

23. With regard to contravening an FVO, the mandatory statutory considerations and features informing the seriousness of the conduct were also discussed in Brymer at [33]- [38] and are incorporated into these reasons.

24. The First Offence involved contact via text message. The message was threatening and the contact was with a child (that is, a person with known vulnerability). There was a degree of premeditation as the conduct involved typing the message.

25. The Second and Third Offences involved physical breaches of the FVO, with the offender knowingly being within one metre of one of the protected persons involved. Again, there was a degree of pre-meditation as the offender would have had to travel to the location of where the protected young person was. Again, that protected person was someone with known vulnerability (being a child).

26. The Fourth Offence is objectively the most serious of all the breaches. It involved the offender physically attending a protected person’s home and then telephoning that protected person. The conduct involved two instances, both of which were threatening and frightening, although clearly the first instance was more serious as it was in person in the home of two of the protected persons. It is thus treated as a rolled-up count, encompassing greater criminality than that of an individual count (R v Forrest (No 2) [2017] ACTSC 83 at [164]). There was a degree of pre-meditation in the offender travelling to the home of a protected person and wearing a balaclava.

27. The Fifth Offence was fleeting but is also of increased seriousness as it includes the scheduled offences which must be taken into account (s 33(1)(b) of the Sentencing Act). The approach to scheduled offences has been discussed in R v Campbell [2010] ACTCA 20 at [43]-[50] and applies here. Scheduled offences increase the objective seriousness of the primary offence.

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

28. There was no victim impact statement before the court in respect of the current offending. There was a victim impact statement before the court in respect of the conduct that was sentenced by way of a suspended sentence.

Plea of guilty (ss 33(1)(j) and 35 of the Sentencing Act) and assistance to law enforcement authorities (ss 33(1)(l) and 36 of the Sentencing Act)

29. In respect of three of the five offences which were transferred from the Magistrates Court (First, Second and Third Offences), terms of imprisonment are under contemplation. Having regard to the mandatory matters for consideration under s 35(2) of the Sentencing Act, I have exercised the discretion under s 35(3) of the Sentencing Act to reduce the sentence that would otherwise have been imposed by 25% each because: (a) The offender pleaded guilty. (b) The timing of the pleas had significant utilitarian value (as to which, see Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]). (c) The offences are serious, but their gravity is not of a kind where a percentage-based approach might be considered inappropriate.

30. In respect of the Fourth and Fifth Offences, the prosecution submitted that there was an overwhelming case, invoking the operation of s 35(4) of the Sentencing Act. That section mandates that the court must not give a significant discount for a plea if, based on the established facts, the court considers that the prosecution case was overwhelmingly strong. I discussed the applicable principles at length in DPP v Stewart [2023] ACTSC 252 at [90] and have applied them here without repeating them. Given that the primary reason the case was overwhelming was because of the admissions made by the offender and such admissions are relevantly considered also to be a form of assistance to law enforcement authorities, in such circumstances, I consider that a combined discount of 19% is appropriate (comprised of 10% for assistance and 9% for the pleas of guilty themselves).

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

31. The offender is a 28-year-old man. From the contents of the intensive correction order assessment report, he had the benefit of a mostly positive and stable family environment, until his mother was diagnosed with cancer and ultimately passed away when he was 17 years of age. This was a momentous event for him during his formative years. The lack of supervision while the family was focussing on the health of his mother ultimately produced a degree of disadvantage, because it led to early drug use, lack of attendance at school and the offender becoming a first-time father at a young age.

32. He now resides in Queanbeyan. His contact with his children has been limited by the FVO which expires on 30 June 2027.

33. He reported that alcohol and drug use contributed to his behaviour (s 33(1)(p) of the Sentencing Act), as well as not having seen the children for a period of 11 months. To the extent that this constitutes the offender’s reason for offending (s 33(1)(v) of the Sentencing Act), it really is no excuse. It cannot be said that the offender was in any way mistaken or did not know about the terms of the FVO. His lack of respect for the terms of the order is patent from the numerous occasions on which it was breached in various ways.

34. He does have a history of substance use with limited alcohol and drug treatment. He has since demonstrated a clear commitment to his recovery in that regard and engaged in a structured treatment pathway (s 33(1)(t) of the Sentencing Act). Ultimately he was found unsuitable for a drug and alcohol treatment order for other reasons and that is not now being pursued on sentence.

Criminal antecedents of the offender (s 33(1)(m) of the Sentencing Act)

35. The offender had limited prior criminal history, but was on conditional liberty at the time of the offending, which is an aggravating feature. The suspended sentences were for aggravated common assault, with the victims of those assaults being among the protected persons that were then the subject of the breach of the FVO.

36. I have had regard to the fact that the offender has not re-offended since March 2024, but that may have been assisted by the fact that the relationship between the two ceased. In my view, contrary to the offender’s submissions, his history means that specific deterrence ought to be given weight in any sentence to be imposed.

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

37. Having read the evidence in its entirety, and taking into account the offender’s efforts at rehabilitation, I consider there is a degree of remorse, although I have not given remorse separate significant weight, noting that remorse was also expressed in earlier court proceedings shortly before the current offending occurred.

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

38. I have taken into account the cases referred to in the parties’ written submissions, and I have considered DPP v Jewell [2023] ACTSC 348 in particular and my more recent decision of Brymer as well. I have given consideration to consistency in the sentencing practice in both length and manner of sentence.

Pre-sentence custody

39. The offender has spent three days in pre-sentence custody in total, referrable to the offences.

Totality

40. 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). Concurrency considerations operate most strongly for the Second and Third Offences. The overall structure also takes into account the number of offences and a significant adjustment has been made for further concurrency as part of a final view of the total effective sentence to be imposed.

41. In addition, the period to be served in full-time custody prior to the sentence then being suspended is the shortest that I consider to be appropriate to give effect to the sentencing objectives outlined above, including having regard to totality considerations arising from the imposition of any term of imprisonment following the breaches of the suspended sentences.

42. The sentence is also structured so that there is a lengthy period provided for supervision. That gives the offender maximum opportunity to rehabilitate in the community, through any targeted program addressing family violence that is considered appropriate.

Disposition

43. The imposition of a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act. The gravity of the offending is such that a term of imprisonment is the only appropriate outcome here. The offender was found suitable for an intensive correction order. While I do not disagree with the contents of that report, given the totality of the offending and the gravity in particular of the Fourth Offence, and the breach of the suspended sentences that must also be accommodated in the sentencing structure, combined with the fact that the offender has served very little time in custody to date that might have otherwise constituted sufficient punishment and denunciation, an intensive correction order simply would not give sufficient weight in terms of a sentence that is proportionate to the gravity of the offending. However, I have borne in mind that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30].

Consequences for the breach of the suspended sentence

44. The principles applying to breaches of suspended sentences have been set out in numerous cases. I have discussed them in DPP v Rohrlach (No 2) [2025] ACTSC 192 at [9]-[14]. I have considered: (a) The proportion of the term of the good behaviour order that had been served without breach: R v Curtis (No 2) [2016] ACTSC 34 (Curtis) at [18]; (b) Any rehabilitation attained by the offender prior to the breach: Curtis at [18]; (c) The nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed: Curtis at [18]; (d) The relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending: Curtis at [18]; (e) The prospects of the offender's rehabilitation: Curtis at [18]; (f) The actual facts of the matter for which the offender was first sentenced: R v Beniamini (No 2) [2017] ACTSC 32 at [53]; (g) Whether the breach indicates an intention to disregard the obligation to be of good behaviour: Bukulaptji v The Queen [2009] NTCCA 7; 24 NTLR 210 at [35], cited in The Queen v PM (No 2) [2015] ACTSC 358 (PM) at [22]; (h) Whether the offender has received any warnings about the consequences of breaches: PM at [22]; (i) The level of understanding of the offender of his obligations under the terms of the order and the consequences of the breach: PM at [22]; and (j) The nature of judicial and community resources previously devoted to the offender: R v Bennett [2017] ACTSC 104 at [11].

45. Here, the offending occurred within months of the order being made. There was no rehabilitation at the time the further offending occurred. The conduct constituting the breach was against the very persons that were victims of the previous offending. Committing an offence is a serious breach of a good behaviour order. There were five breaches here. The breach conduct cannot be said to have arisen by virtue of mistake or misunderstanding. The underlying offences which were the subject of the suspended sentences were each serious. All of those circumstances lead to the conclusion that here, the cumulative sentences of two months and 15 days should be imposed. As they are chronologically the first offences in time, I will order that those terms be served first. Orders

46. The orders of the Court are: (1) In respect of the first offence of breaching a family violence order (CAN 11884/2023), the offender is convicted and sentenced to a term of imprisonment of five months, reduced to three months and 21 days on account of his guilty plea, to commence on 1 November 2026 and conclude on 21 February 2027. (2) In respect of the second offence of breaching a family violence order (CAN 12393/2023), the offender is convicted and sentenced to a term of imprisonment of six months, reduced to four months and 15 days on account of his guilty plea, to commence on 1 May 2026 and conclude on 15 September 2026. (3) In respect of the third offence of breaching a family violence order (CAN 12394/2023), the offender is convicted and sentenced to a term of imprisonment of six months, reduced to four months and 15 days on account of his guilty plea, to commence on 23 May 2026 and conclude on 7 October 2026. (4) In respect of the fourth offence of breaching a family violence order (CAN 1566/2024), the offender is convicted and sentenced to a term of imprisonment of 11 months, reduced to eight months and 28 days on account of his guilty plea, to commence on 1 December 2025 and conclude on 28 August 2026. (5) In respect of the fifth offence of breaching a family violence order (CAN 3828/2025), the offender is convicted and sentenced to a term of imprisonment of five months, reduced to four months and one day on account of his guilty plea, to commence on 1 October 2026 and conclude on 1 February 2027. (6) Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), the good behaviour order in respect of Trent William Downs is cancelled and the terms of imprisonment are imposed as follows: (a) For the first offence of aggravated common assault (CAN 968/2023), the term of imprisonment of one month is imposed to commence on 21 October 2025 and conclude on 20 November 2025. (b) For the second offence of aggravated common assault (CAN 970/2023), the term of imprisonment of one month and 15 days is imposed to commence on 28 October 2025 and conclude on 12 December 2025. (7) The total term of imprisonment is one year, four months and one day commencing on 21 October 2025 and concluding on 21 February 2027. (8) The sentence is suspended from 1 March 2026, until the conclusion of the sentence (21 February 2027) on the condition that Trent William Downs enter into a good behaviour order for the period of the remainder of the sentence (1 March 2026 to 21 February 2027) including the following conditions: (a) He is to undertake to comply with the core conditions pursuant to ss 85 and 86 of the CSA Act. (b) Pursuant to ss 13(4)(g) of the Sentencing Act, a probation condition (as defined in the Sentencing Act) including that: (i) The offender is to report to ACT Corrective Services on or before 4:00pm on 2 March 2026. (ii) Thereafter, the offender is to submit to the supervision of the Director-General responsible for administering the sentence or their delegate, for as long as deemed necessary, including to comply with any reasonable directions targeted at supporting the offender’s rehabilitation.

I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: