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1. Daniel Fensom stands to be sentenced after pleading guilty to a single count of aggravated burglary contrary to s 312(a) of the Criminal Code 2002 (ACT). The offence attracted both circumstances of aggravation under that section, being the commission of the offence in company with another person and the possession of a weapon. The maximum penalty is imprisonment for a period of 20 years, which serves an important yardstick in the sentencing task. The statute offers a fine as an alternative penalty but that would plainly not be appropriate in the circumstances of the present case.

2. Mr Fensom asks the Court to take two further offences into account, being an offence of joint commission theft contrary to s 321 of the Criminal Code, which carries a maximum penalty of imprisonment for six months, and a joint commission offence of common assault contrary to s 26(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of imprisonment for two years. In accordance with orthodox sentencing principle, the taking of those further offences into account would ordinarily result in an increase in the penalty to be imposed. In the present case, however, those two further offences were very much linked with the substantive offence and will not result in any significant increase in the penalty to be imposed.

3. Mr Fensom pleaded guilty in the Magistrates Court. The prosecution accepts (with respect, appropriately) that, while the prosecution case was strong, it was not overwhelmingly so, such as to attract the application of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT). Accordingly, Mr Fensom is entitled to a lesser penalty to reflect the utilitarian value of his plea. I consider it appropriate in all the circumstances to allow a discount of 25%.

4. It is necessary to make an assessment of the objective circumstances of the offence. In the present case, that assessment is necessarily interwoven with aspects of Mr Fensom’s subjective case. He is currently aged 28 years. He is of Aboriginal and Greek background. His country as an Aboriginal man is Wiradjuri country, which spans a large portion of the state of New South Wales. However, the circumstances of Mr Fensom’s childhood did not permit him to develop a strong connection with country. Instead, an itinerant childhood due to his father’s “criminal occupation” saw him subjected to domestic violence, out of home care, child sexual abuse, incarceration of a parent and juvenile detention. Each of these circumstances is known to cast a long shadow on the psychiatric health of a young person: https://bugmybarbook.org.au.

5. By 2024, the year Mr Fensom turned 27, he had spent much of his adult life grappling with drug addiction, committing offences and being incarcerated. In August 2024, he suffered a fractured jaw which became infected. He was transferred from Wagga Wagga Hospital to Canberra Hospital for maxillofacial surgery. On arrival, he was aggressive and displaying signs of paranoia. He was accordingly transferred to the Adult Mental Health Unit under the Mental Health Act 2015 (ACT).

6. The notes concerning that transfer record that he was thought to be suffering from a drug-induced psychosis in the context of methamphetamine and cannabis use. He remained in the Adult Mental Health Unit for two weeks before being transferred for surgery to Canberra Hospital on 30 August 2024. He had surgery that day and required further surgery on 1 September 2024. The offence for which he is now to be sentenced was committed between those two dates.

7. Whilst he was in the Adult Mental Health Unit, Mr Fensom had met his co-offender in this matter, Mr Al-Mofathel. Mr Al-Mofathel has not yet been dealt with for the offence as he is currently in custody in New South Wales. Mr Al-Mofathel in turn knew the victim of the offence, Mr Ebbott, as a person he had met in jail.

8. On 31 August 2024, Mr Al-Mofathel and Mr Fensom went to Mr Ebbott’s house. The offender told a psychiatrist who provided a report to the Court for these proceedings, “we went to the house in Deakin to get some drugs”. I have no difficulty accepting that the victim’s house was a place where drugs could be purchased that day. Although the statement of agreed facts is silent on that issue, it is a matter relevant to Mr Fensom’s explanation for the offence which may inform his culpability. I am satisfied by reference to what Mr Fensom told the psychiatrist and on the balance of probabilities that at the very least Mr Fensom believed Mr Ebbott to be a person who sold drugs. No other reason is given for the visit.

9. The two men arrived at Mr Ebbott’s house at midday and left shortly afterwards. Mr Fensom told the psychiatrist that, while they were there, they smoked drugs. Mr Al-Mofathel also took the opportunity to pray. It may be inferred that he adheres to the Muslim faith as the facts suggest he was praying on a mat on the floor. He left his sunglasses and vape on the ground next to where he was praying. The two men returned to Mr Ebbott’s house at 4:00pm, whereupon Mr Al-Mofathel got into an argument with another resident of the home, whom he also knew, because he thought his sunglasses and vape had been stolen. In fact, they were later located on the floor in the area where he had been praying. In any event, the men left without the sunglasses and the vape. They returned at 9:00pm but were not admitted into the house. They returned again at 11:30pm and pushed their way in. They were wearing dark clothing and had their faces covered. During the intrusion into the house, Mr Al-Mofathel punched Mr Ebbott in the face.

10. During the proceedings on sentence, I was shown a video of the home invasion captured on CCTV footage. The act of violence inflicted by Mr Al-Mofathel was shocking. The circumstances of the burglary were otherwise relatively unexceptionable, although it must be noted that the two men were armed with hammers. They took Mr Ebbott’s wallet and phone and that accounts for the joint commission theft offence. The punch to Mr Ebbott accounts for the joint commission common assault.

11. Medical notes recorded by the psychiatrist in the report before the Court reveal that Mr Fensom was still an admitted patient at Canberra Hospital that day. He left the hospital against medical advice. Throughout the day, staff at the hospital were attempting to call him to remind him that he was due to have a further procedure the following day to remove a foreign object from his chin. At some point, he was contacted and reminded that he needed to fast. He did not return to Canberra Hospital until 5:15am the following morning. The medical notes describe him as being pleasant and polite at that time. He told staff he had consumed four energy drinks at around 1:00am. He had the surgery to remove the foreign body, was returned to the ward, later became non-compliant with the observations of medical staff and discharged himself again against medical advice.

12. Mr Fensom was arrested for the aggravated burglary on 13 September 2024 and has remained in custody since that date. On 17 September 2024, he was examined by the psychiatrist who prepared the report before the Court, Dr Nadine Fox. She described him as having persecutory ideation, “[l]ikely drug-induced psychosis resulting”.

13. My purpose in recounting the circumstances in this way is to demonstrate that Mr Fensom was plainly in a state of psychosis when he committed the offence. The more difficult question, however, is to determine the extent to which that should reduce his moral culpability for the offence.

14. Objectively, the offence may properly be described, as was submitted on Mr Fenson's behalf, as being mid-range. The Director of Public Prosecutions identified a list of factors that lend seriousness to the offence. They include: (a) the fact that both circumstances of aggravation were present, that is being in company and in possession of an offensive weapon; (b) the fact that the property on which the offender trespassed was residential, which is more serious than an offence involving commercial premises; (c) the fact that the occupants of the premises were present at the time the burglary was committed; (d) the fact that there was interaction with the occupants and the occupants were impliedly threatened by the presence of weapons; (e) the fact that there was evidently a degree of planning given the use of face coverings and weapons; and (f) the physical trauma suffered by the victim, who experienced pain upon being punched by Mr Fensom's co-offender.

15. Noting those matters, it is necessary to assess Mr Fensom’s role and culpability individually: R v Hagen [2022] ACTSC 362 at [27]. In the present case, Mr Fensom has less culpability for the offending than Mr Al-Mofathel, who is the person who knew the victim from their acquaintance in jail and who punched the victim, as the video shows, suddenly and unexpectedly.

16. The DPP further submitted that, despite the fact that Mr Ebbott did not provide a victim impact statement, the Court could take judicial notice that offences of this type have a lasting psychological effect on victims, as well as causing inconvenience and expenses in relation to the replacement of items stolen. While I accept that inconvenience was caused in this case, I do not accept that lasting psychological impact is a matter as to which the Court can or should take judicial notice. People react to these kinds of incidents differently. Mr Ebbott knew Mr Al-Mofathel through their time in jail together. In the absence of a victim impact statement, I am not prepared to make any finding as to the impact of the events on him. Even so, I accept that the offence was of some objective seriousness, for the reasons I have explained.

17. As already noted, the more difficult question is the extent to which the offender’s moral culpability is reduced by the circumstances in which he committed the offence. The report provided by Dr Nadine Fox gives a careful explanation of those factors. She was cross-examined by the prosecutor with a view to establishing whether the psychosis was more likely drug-induced than organic. However, the distinction between a drug-induced psychosis and a psychotic illness is not always binary and is not an easy distinction to draw.

18. There can be little doubt that the offender was abusing methamphetamine at the time and that this affected his mental state. It is trite that, as a matter of legal principle, a sentence should not be reduced on that account, where a person has chosen to consume prohibited substances. But Mr Fenson has a complex history of trauma and dysfunction. The features of his childhood to which I have referred explain his resort to the abuse of prohibited substances. That is relevant in two ways.

19. First, in my assessment, it does reduce his moral culpability. If not because of the principles stated in the decision in R v Verdins [2007] VSCA 102; 16 VR 269, the matter is in the category of cases where the offender is less responsible for his own drug abuse by reason of the features of his upbringing. He did not enjoy the kind of support and parenting that is conducive to a productive life. Instead, he faced numerous challenges and traumas.

20. Secondly, the offender’s history of drug addiction and the reasons for it mean that the purpose of rehabilitation must dominate the present sentencing exercise. That is for a number of reasons. The first is his age. At 28, Mr Fensom is still a relatively young man. That alone is a reason to give the sentencing purpose of rehabilitation significant weight. Secondly, he has a lengthy criminal record as a result of which he has spent much of his adult life in jail. A criminal record can be a factor against leniency. However, the principle of individualised justice requires the Court to give real consideration to the impact of repeated incarceration on this offender in particular.

21. That leads me to the third consideration, which is the content of the report of Dr Fox. She expressed the opinion that Mr Fensom has a presentation consistent with complex post-traumatic stress disorder along with major depressive disorder, which appears to have developed while Mr Fenson has been in custody. She noted that he has experienced multiple past episodes of drug-induced psychosis but does not appear to meet the diagnostic criteria for a chronic psychotic illness such as schizophrenia. He displays insight into the effects of illicit substances on his mental state, including referring to himself as having experienced multiple previous episodes of drug-induced psychosis, stating that methamphetamine makes him feel both paranoid and invincible. Dr Fox noted that his presentation comes against a background of significant childhood disadvantage in the circumstances I have already identified.

22. Dr Fox considered the application of Verdins principles. She concluded that it is likely that Mr Fensom experiences chronic symptoms related to his chronic PTSD and borderline personality traits including impulsivity, distrust of others, hyper-vigilance, difficulty managing his emotions and flashbacks. She noted those presentations against his disclosed personal history of child abuse.

23. Dr Fox recorded that, at the time of the instant offence, Mr Fensom formed the view that Mr Ebbott was supplying drugs to young teenagers. I note that, in the CCTV footage which I viewed, there was a relatively young-looking girl whom Mr Fensom says he saw through the window before they entered the premises. Mr Fensom explained to Dr Fox that at the time of the offence he was in a drug-induced psychosis and thought he was Batman, saving the putative child victim from the drug dealer, Mr Ebbott. I do not mean to suggest that those are established facts but they do explain Mr Fensom’s state of mind at the time. No doubt that belief was associated with Mr Fensom’s own childhood traumas. Dr Fox considered that the Court could consider legal orders mandating involvement in drug and alcohol treatment.

24. The second relevant part of her report, apart from her diagnosis, is where she expressed the opinion that, on balance, a custodial sentence would weigh more heavily on Mr Fensom. Based on the full amount of material before me, that appears to be a moderate understatement. Dr Fox noted that Mr Fensom’s depression was likely precipitated in part by his ongoing remand in the custodial setting weighing on his chronic feelings of low self-esteem, hopelessness and worthlessness and contributing to his experiencing suicidal thoughts.

25. Thirdly, Dr Fox expressed the opinion that, on the balance of probabilitie,s there is a serious risk that a sentence of imprisonment would have a significant adverse effect on Mr Fensom’s mental health. Again, I have no difficulty accepting that opinion.

26. In all the circumstances, it is clear that the purpose of rehabilitation must be the predominant purpose in the present sentencing exercise. That said, as is often the case, the very factors that give rise to the need for rehabilitation are also factors that indicate a risk of recidivism. Indeed, Mr Fensom is assessed in the pre-sentence report as posing a high risk of recidivism. Even so, it is clear enough that the best protection against recidivism in his case is rehabilitation. As noted in the submissions put on his behalf, it has been acknowledged that rehabilitation is the most durable guarantor of community protection: Hogan v Hinch [2011] HCA 4; 243 CLR 506 per French CJ at [32].

27. For those reasons and balancing as best I can the competing purposes of sentencing, I determined when the matter came before me last week that Mr Fensom should appropriately be placed on a Griffiths remand and granted bail for a period of six months with regular check-ins with the Court. The bail conditions were agreed during the sentencing process last week and are set out below: 1. The offender resides with his father, Darren Fensom, until obtaining an address with Justice Housing or as otherwise directed by Corrective Services. 2. To report to Corrective Services today, 27 June 2025. 3. Engage with Corrective Services as directed. 4. Not to consume illicit substances. 5. Not to be in the suburb of Deakin. 6. Not to be within 100 metres of Harry Ebbot. 7. Not to be in the company of Mustafa Al-Mofothel. 8. Not to contact Mustafa Al-Mofothel. 9. To remain compliant with any medication prescribed by a general practitioner.

28. On those conditions, the Court will have an opportunity to monitor the course of Mr Fensom’s rehabilitation and his engagement with the pro-social influences he has developed, of his own initiative and to his credit, during his period of incarceration since September last year.

29. I note in that context that the offender has a strong subjective case with powerful letters of support from people who have encountered him during his period of imprisonment. Foremost amongst those is a letter dated 16 January 2025 from QTIC (Quality Training in Construction), which speaks to the progress Mr Fensom has made in achieving a qualification in the construction industry. The letter states: Daniel has exhibited an exceptional level of dedication and eagerness to learn throughout the program. His active engagement and willingness to embrace new opportunities are indicative of his motivation for self-improvement and his determination to create a better path forward.

30. I am mindful of the fact, as I was reminded by the prosecutor, that against that improvement, the pre-sentence report records that Mr Fensom's “behaviour in custody has been problematic”. He has been subjected to formal disciplinary actions on a number of occasions. My assessment of those disciplinary actions is that they appear mostly to be associated with attempts to use drugs or smoke cigarettes whilst in the prison.

31. On balance, I accept what Mr Fensom himself has told me this morning, that he does better when he has the opportunities of accommodation and employment that are presently available to him than in custody. There is ample support from the psychiatrist report and Mr Fensom’s own words that this is a young man for whom, to adopt the language of a report published last year, “Jailing is failing”.

32. For those reasons, I propose to continue Mr Fensom's bail for a period of six months.

33. I have indicated to Mr Fensom that in the event that he does not fare well in his path of rehabilitation, he is likely to be returned to custody for something in the order of a period of six months. However, of necessity, that will be a decision I will have to make at the conclusion of the period of Griffiths remand.

Orders

34. For those reasons I continue bail on the conditions identified.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: