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CAN 8157/2025 Attempted Aggravated s 312(a) of the Code 20 years’ Burglary (by virtue of s 44 of the imprisonment, 2,000 Code) penalty units, or both.

CAN 8158/2025 Intentionally damage s 116(3) of the Crimes 2 years’ imprisonment, property Act 1900 (ACT) 50 penalty units, or both

CAN 8155/2025 Obstruct (resist) territory s 361 of the Code 2 years’ imprisonment, public official 200 penalty units, or both

The sentencing task

2. The court sentences the offender in accordance with the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), taking into account the mandatory relevant considerations set out in s 33 of the Sentencing Act, insofar as they relate to the offender’s circumstances, and having regard to the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

3. Having considered other possible alternatives, I have determined that a term of imprisonment for each offence is the only appropriate sentence in all the circumstances: s 10 of the Sentencing Act. However, the remaining period of full-time custody will be suspended from the date of imposition of the sentence to enable the offender to pursue rehabilitation through a residential drug rehabilitation program.

Other offending to be taken into account (s 33(1)(b) of the Sentencing Act)

4. The offender has also elected to have an additional offence (CAN 8164/2025) of falsely representing himself to be a territory public official contrary to s 360(2) of the Code taken into account, as permitted by s 57 of the Sentencing Act.

5. Applying the approach discussed in R v Campbell [2010] ACTCA 20 at [46]-[50], the offender is not to be separately sentenced for the additional offence. Instead, the additional offence is part of the consideration of the appropriate disposition for the offence to which it attaches (CAN 8157/2025). Nature and circumstances of the offending (s 33(1)(a) of the Sentencing Act)

Aggravated burglary on 21 July 2025

6. Drawing from an agreed statement of facts before the court, the aggravated burglary offence occurred at about 3:30am on 21 July 2025.

7. The offender attended a construction site in Phillip in the ACT in company with a co-offender and attempted to enter one of the portable offices located on site. The site manager became aware of the offenders’ presence through CCTV cameras located on site and contacted security, who notified police. Police arrived shortly after and saw the co-offender in the construction site. Police entered the site and gave chase to the co-offender, eventually placing him under arrest. The co-offender told police that he had been at the site with the offender.

8. Police subsequently reviewed CCTV footage provided by the site manager, which showed the offender on site. The offender later admitted (following his arrest on 22 August 2025) that he gained entry to the construction site with the co-offender, attempting to find a money box in the site office.

Attempted aggravated burglary and damage property on 26 July 2025

9. On 26 July 2025, the offender attempted to enter a residential property in Rivett by using a steel hatchet to try to pry open the front door. Victim 1 was at home at the time with his nephew (Victim 2). When Victim 1 approached the front door, the offender falsely identified himself as a police detective and asked Victim 1 if he could be let inside for some water. The offender was unable to produce any form of identification when requested to do so by Victim 1. The offender continued to insist that he be let in, before trying to open the security door. Victim 1 told the offender that he would be calling the police before closing and locking the door, at which point the offender kicked the security door three times before leaving the property. The actions of the offender caused damage to the security screen door, lock and striker, as well as concaving the security mesh. Resist territory official on 26 July 2025

10. Later that morning, police located the offender walking on a greenbelt in Rivett. Police observed the offender to be carrying a black helmet and a backpack. Police approached the offender and told him he was under arrest for attempted burglary. The offender refused to submit to arrest and tried to walk away from police while refusing to comply with the attending officers’ requests to drop the helmet he was carrying. Police discharged conducted energy weapons multiple times as well as capsicum spray, both of which had no effect. The offender was eventually restrained, arrested and cautioned following the arrival of additional police officers.

The objective seriousness of the offending

11. The court must evaluate where the above offending sits on the hypothetical spectrum of conduct, with regard to the maximum penalties set out above as a yardstick. While that spectrum takes into account the circumstances of both the offence and the criminal, at this stage of the court’s consideration, the assessment is concerned only with the objective gravity of the conduct, with matters personal to the offender considered separately. Given the number of offences, and the common features of much of the conduct, the seriousness of the offending has been considered in groups, by the type of offence.

Attempted / Aggravated Burglary Offences

12. As seen from the 20-year maximum penalties for these two offences, home invasions are generally objectively serious matters: R v CN; R v SN; R v Rix [2019] ACTSC 293 at [19]. As set out in cases such as DPP v Clissold [2023] ACTSC 250 at [33], features informing the objective seriousness of this type of offence include the following: (a) The nature of the premises that were burgled. (b) Whether damage, not separately charged, was caused to the premises. (c) Whether the occupants of the premises were present at the time the burglaries were committed. (d) The motivation for the burglaries. (e) Whether the burglaries were pre-meditated, planned or organised, and their level of sophistication.

13. For the aggravated burglary on 21 July 2025, this was of a construction site with the aggravating circumstance being the presence of a co-offender. It was carried out at a time when no one was present. The offender’s motivation was personal gain, in a desire to obtain money to feed his drug addiction. This was an unsophisticated example of the offence and although aggravated, falls at the low end of the spectrum of aggravated conduct.

14. For the attempted aggravated burglary, the approach is as set out in R v BI (no 4) [2017] ACTSC 71 and the cases there-cited. In addition to the above factors being relevant to the attempt, the court considers whether the attempt was inept, or was doomed to fail, or whether the attempt was grave and carried out with sophistication. The reason why the attempt as not completed informs the degree of seriousness, ranging from the offender changing their mind, to police intervention, or through other good fortune.

15. The circumstances here occurred at a residential premises, at a time when two occupants, one of whom was an 11-year-old child, were at home. The offender interacted with the occupant and became agitated when he was refused entry into the premises, causing damage to the security door (which is the subject of a separate charge). While the offender’s behaviour appeared erratic and knocking on the door was unsophisticated, there was a degree of planning as demonstrated by the use of a steel hatchet, which is the aggravating circumstance. The attempt was thwarted through “good fortune” of the occupant being home, refusing to permit entry and locking the door. Those different features all increase the seriousness of the conduct, resulting in a similar level of criminality to the circumstances of the actual aggravated burglary.

Damage property

16. Considerations relevant to the objective seriousness of the offence were discussed by Murrell CJ in R v Rosewarne [2021] ACTSC 217 at [120]. The offender kicked the security door of the premises three times after being refused entry, causing damage to the door lock and striker, as well as the security mesh. The value of the damage is unknown, but I consider the conduct to be a less serious example of this type of offence.

Resist Territory public official

17. The offender’s behaviour was again at the low end of objective seriousness. Although it did not involve violence, the interaction between the police and the offender was prolonged and involved multiple instances of refusing to act as directed by police so that they could approach him.

Effect on Victims (s 33(1)(f) of the Sentencing Act)

18. No victim impact statements were before the court. While the court does not speculate about victim impact, it need hardly be said that interacting with someone who was impersonating a police officer in order to gain access to the victim’s premises is at least unsettling and that fixing damaged property causes inconvenience. Burglary is also viewed seriously because of the obvious risk to personal safety and the indirect impact such conduct has on the feeling of safety in the community. Conditional Liberty

19. The offender was on conditional liberty at the time of the subject offending by way of a Griffiths Remand imposed by McCallum CJ approximately one month before, being 18 June 2025. This is an aggravating feature.

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

20. The offender entered pleas in the Magistrates Court for each of the offences, with the pleas relating to the offending on 26 July 2025 entered after a brief of evidence was th prepared, albeit they were still early pleas, occurring on the 4 mention. Although there appear to have been some negotiations, the utilitarian value of this serious offending remained high, and I consider it remains appropriate to apply a 25% discount to the sentence that would have otherwise been imposed in respect of each of the offences.

Cultural background, character, antecedents, age and physical or mental condition of the offender (s 33(1)(m) of the Sentencing Act)

21. The offender’s subjective circumstances have previously been set out in this court by McCallum CJ: DPP v Fensom [2025] ACTSC 272. Those circumstances were also discussed in three reports before the Court on sentence, namely a Drug and Alcohol Sentencing List Suitability Assessment Report, an Intensive Correction Order Assessment Report and a psychiatric report.

22. I accept without traversing the detail that the offender experienced a significantly unstable and distressing childhood, which impacts upon the sentencing considerations in a way that both reduces moral culpability as well as heightens the need for intervention and supports to carefully manage the risk of reoffending. He has not held consistent employment since the age of 16.

23. Unsurprisingly, the offender has been diagnosed with a number of mental health challenges, the details of which were before the court. These affect the offender’s daily functioning and overall sense of safety. The offender also reported a history of drug-induced psychosis resulting in various hospitalisations in the past. The offender also has significant physical injuries affecting his back and jaw. I consider that due to these challenges, full-time custody will weigh heavily on this offender.

24. The offender has a significant criminal history of like offending across the ACT and NSW, which disentitles him from leniency. However, the record cannot be divorced from the social disadvantage. It is revealing of the offender’s desperate circumstances that much of his offending occurred during periods of instability. The offender recalled that he would purposely place himself in situations where he expected to be apprehended as custody provided a level of stability, including accommodation and regular meals, to which he did not otherwise have access.

25. The offender suffers from a substance use disorder, which he cites as a primary contributing factor to his criminal behaviour. The offender first used alcohol at 10 or 11 years of age, the use of which became problematic between the ages of 14 and 17. The offender also began using cannabis at around this time, which progressed to daily use by the age of 14 or 15. He commenced daily use of methamphetamine at 18 years of age, and has also reported using heroin, benzodiazepine and ecstasy at various times throughout his life.

26. The offender has made efforts to address his substance use disorder, the latest of which was the residential program at Arcadia House. He has also previously completed the Solaris program and SMART Recovery while in custody. The offender has expressed a desire to continue his rehabilitation journey in a longer-term structured residential program and has been very fortunate to have been offered a residential rehabilitation program at Karralika, immediately following his being sentenced.

Pre-sentence custody

27. As at the date of sentence, the offender has spent 116 days in custody directly referable to the subject offences, which will be taken into account by way of backdating. He has since been granted bail to pursue drug rehabilitation.

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

28. The prosecution provided a list of comparable cases to assist the court, including Clissold, R v Blundell [2022] ACTSC 379, and R v Cook [2022] ACTSC 381. I have had regard to those but there are numerous cases dealing with offences of the kind committed by the offender here. In R v Bessant [2020] ACTSC 365 at [37]-[41], Refshauge AJ observed that the range of circumstances for offences that include aggravated burglary is “so wide that it is difficult to identify, with any reasonable utility, a singular sentencing practice.” His Honour referred to a range of generally between one year to two years and six months’ imprisonment for the offence of aggravated burglary, citing R v Lockwood [2018] ACTSC 288 at [49].

Parity

29. A more influential factor is the fact that the co-offender in the aggravated burglary has already been sentenced to a 12-month intensive correction order and the circumstances (based on the statement of facts upon with the co-offender was sentenced) suggest similar roles. The principle of parity therefore applies, namely that parties to the commission of the same offence should, other things being equal, receive the same sentence: Saipani v The Queen [2021] ACTCA 5 at [56] citing Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 609. In giving effect to the principle, the court must have regard to the objective and subjective differences between the co-offenders: Thompson v The Queen [2018] ACTCA 2 at [24] and [26]. The offender here was found suitable for an Intensive Correction Order, however, more targeted intervention is also available to him.

Totality

30. 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). There are two features of the offending which warrant adjusting the individual sentences to achieve a degree of concurrency. The first is that three of the offences were really part of the same series of offending on the one day, which commenced with the offender knocking on the victim’s door, impersonating a police officer in an attempt to enter and then leaving the house and being arrested a short time later that morning.

31. The second feature that impacts upon the overall length of the sentence (albeit to a lesser extent) is that the offender has also spent 128 days in custody referable to other offending, in addition to the pre-sentence custody referred to above. The longer the period of time for which a person is in full-time custody, the heavier its effect and the court must guard against a sentence being crushing. Of course, the manner in which a sentence is carried out may alleviate those concerns and this is one of the aspects of the instinctive synthesis undertaken in balancing the various sentencing considerations.

Disposition

32. Accepting that the imposition of a term of imprisonment is a sentence of last resort, such an outcome is necessary here to give effect to the full suite of relevant sentencing objectives including personal deterrence, punishment and denunciation, as well as recognising the harm and impact of the offending upon the victims.

33. However, 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]. As mentioned, the offender has already spent in full-time custody referrable to the offending. Specific deterrence and punishment must be given weight, but realistically a further lengthy period of time in full-time custody is unlikely to achieve anything.

34. General deterrence and denunciation can be seen through the length of the total effective sentence to be imposed and ensuring that length of time is proportionate to the gravity of the offending.

35. The offender here has a long-term history of incarceration and polysubstance use disorder, such that he will likely require the structured parameters and supports offered by a Drug and Alcohol Treatment Order (Treatment Order) if he is to overcome his drug dependence and reintegrate into the community to live pro-socially.

36. Considering the requirements of s 12A(2) of the Sentencing Act, on the evidence before the Court, I was satisfied that: (a) The offender is dependent on a controlled drug: s 12A(2)(a)(i) of the Sentencing Act. (b) Such dependency substantially contributed to the commission of the offences: s 12A(2)(a)(ii) of the Sentencing Act. (c) 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. (d) There are no concerns relating to the safety or welfare of any victim: s 12A(2)(b)(ii) of the Sentencing Act.

37. 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.

38. I have also considered the objects of a Treatment Order set out in s 80O of the Sentencing Act (as required by s 12A(2)(b)(iii) of the Sentencing Act), which are 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.

39. All of those objectives would appear to be relevant to the offender’s circumstances. The focus for the remainder of the sentence to be imposed is appropriately that of rehabilitation, achieved through a Treatment Order: s 12A(2)(b) of the Sentencing Act.

40. 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

41. The orders of the Court are: (1) For CAN 11172/2025, Aggravated burglary, contrary to s 312(a) of the Criminal Code 2002 (ACT) (Code), the offender is convicted and sentence to a term of imprisonment for 15 months, reduced to 11 months and 7 days on account of his guilty plea backdated to commence on 19 April 2026 and conclude on 25 March 2027. (2) For CAN 8157/2025, Attempted Aggravated Burglary, contrary to s 312(a) of the Code (by virtue of s 44 of the Code), the offender is convicted and sentenced to a term of imprisonment for 15 months reduced to 11 months and 7 days on account of his guilty plea to commence on 15 February 2027 and conclude on 21 January 2028. (3) For CAN 8158/2025, Intentionally damage property, contrary to s 116(3) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to a term of imprisonment for 3 months, reduced to 2 months and 7 days on account of his guilty plea, to commence on 1 January 2028 and conclude on 7 March 2028. (4) For CAN 8155/2025, Obstruct (resist) territory public official, contrary to s 361 of the Code, the offender is convicted and sentenced to a term of imprisonment for 3 months, reduced to 2 months and 7 days on account of his guilty plea, to commence on 12 February 2028 and conclude on 18 April 2028. (5) The total effective sentence of imprisonment is for a period of 2 years, commencing on 19 April 2026 and concluding on 18 April 2028. THE COURT NOTES: the above sentence takes into account CAN 8164/2025, impersonating territory public official contrary to s 360(2) of the Code.

Drug and Alcohol Treatment Order (6) Pursuant to s 12A(2) of the Sentencing Act, a drug and alcohol treatment order (Treatment Order) is made for Daniel Fensom in respect of the following eligible offences: (a) CAN 1172/2025, aggravated burglary; (b) CAN 8157/2025, attempted aggravated burglary; (c) CAN 8158/2025, damage property; and (d) CAN 8155/2025 obstruct (resist) Territory official. (7) Pursuant to s 80C of the Sentencing Act, the convictions and sentences imposed for the said eligible offences are hereby recorded and incorporated into the Custodial Part of the Treatment Order. (8) The total period for which the Treatment Order is in force is 1 year, 8 months and 6 days to commence on 13 August 2026 conclude on 18 April 2028. (9) The Treatment and Supervision Part of the Treatment Order is for one year and 6 months from today, 13 August 2026 to 12 February 2028. (10) Pursuant to s 12A(3) and 80W of the Sentencing Act, the Custodial Part of the Treatment Order for the eligible offences will be suspended from today, 13 August 2026, until the conclusion of the Treatment Order on 18 April 2028 on the condition that the offender agrees to complete a treatment program. (11) Under s 80ZA of the Sentencing Act, Daniel Fensom is required to sign an undertaking to comply with the offender’s Good Behaviour obligations from the day after the end of the Treatment and Supervision Part of the Treatment Order, being 13 February 2028, until the end of the total sentence, 18 April 2028, with the following conditions: (a) The core conditions under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT); (b) A probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him, including as to alcohol and drug testing, counselling and treatment. (12) 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 Fensom is to travel directly to Karralika on 13 August 2026 and admit himself to the residential drug rehabilitation program at that facility. (c) Mr Fensom is directed to complete the said 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 Fensom 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) Following the completion of any residential program, Mr Fensom 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 Fensom leave or be discharged from the directed 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 Fensom is not to consume or use alcohol, cannabis, illicit drugs or prescription drugs not prescribed to him. (h) Mr Fensom is to comply with any directions of the court from time to time about attendance at court in person or by electronic means. (13) The offender is directed to attend court for DASL review in person or via AVL on Tuesday, 18 August 2026 at 12:30pm.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: