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1. Alexander Given (a pseudonym) (the offender) is before the court for sentence having pleaded guilty to: (a) one charge of aggravated intentional threat to kill another person, contrary to s 30 of the Crimes Act 1900 (ACT) (CAN 1833/2025); and (b) one charge of take motor vehicle without consent, contrary to s 318 of the Criminal Code 2002 (ACT) (SC CAN 511/2025).

2. The maximum penalty for the offence of aggravated intentional threat to kill is 13 years’ imprisonment. The maximum penalty for the offence of take motor vehicle without consent is five years’ imprisonment, a fine of $80,000, or both.

3. The sentence to be imposed for the two offences is crafted in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56]. It takes into account the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and the mandatory relevant considerations set out in s 33 of the Sentencing Act insofar as they apply here.

Facts

4. The facts set out below are taken from a statement of facts that were before the court.

5. At around 12:00pm on 9 February 2025, the offender entered a property where BN was working as a tradesperson. He spoke to BN briefly and then left.

6. The offender returned to the property at about 4:00pm that afternoon. BN was packing his trade tools into his white Mitsubishi Triton. The offender said to BN, “I need your help to save my son. My son is in someone else’s car, and he has been kidnapped. I can’t do it by myself.” BN responded that that was not his problem and that the offender needed to contact the police.

7. The offender then walked around BN’s vehicle until he was next to the driver’s side door. He entered the vehicle and shut the door behind him. The offender then reversed over the green belt, accelerated over the curb and drove away (CAN 511/2025).

8. At about 5:40pm that afternoon, MI was at home with her two children and several guests. MI had previously been in a relationship with the offender for 10 years until they separated four years prior to this incident. The offender is the father of her children.

9. MI observed a white Mitsubishi Triton stop outside the residence. She left the residence and approached the passenger door of the vehicle. MI observed the offender to be in the driver’s seat.

10. MI asked the offender what had happened. He exited the vehicle and stated that he had stolen the Ute to come to her residence and see their children. MI tried to calm the offender down as he walked towards the front door of the residence. She told him that he was allowed to see the children but needed to calm down and be quiet. The offender shouted, “Who’s inside? Who’s inside? What’s going on? I need to see the kids.”

11. One of the children approached the offender and MI and cuddled the offender’s leg. As this happened, the offender looked MI in the eyes and said, “I’m going to kill you, you know that” (CAN 1833/2025). MI responded, “I know” and started to cry. The offender then stated, “That’s how it’s going to end” and started singing.

12. The offender made several attempts to enter the residence, but these were blocked by MI. One of the guests told the offender to back off and that police were coming, at which point he left the scene in the white Mitsubishi Triton. He was apprehended in that vehicle at around 6:50pm in the evening.

Consequences of offending

13. The offender was subject to a suspended sentence order at the time the index offences were committed. He had been sentenced to a term of imprisonment for a period of nine months for driving a motor vehicle at a police officer. Due to pre-sentence custody, the offender was taken to have served 141 days of that period (four months and 19 days) and the remaining 133 days (four months and 11 days) was suspended upon the offender undertaking to be of good behaviour from 1 March 2024 to 28 February 2025.

14. Upon conviction for the present offences, the offender will be in breach of the good behaviour order imposed on 1 March 2024. However, the offender also committed other offences, with the offending commencing on 1 December 2024. Those offences have been dealt with in the Magistrates Court. The offender has now been sentenced for the lesser offences and has served terms of imprisonment totalling approximately 11 months.

15. Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), the court must deal with the breach of the good behaviour order and cancel the good behaviour order. The court must either impose the suspended sentence or re-sentence the offender. The applicable principles governing the exercise of the court’s discretion have been set out in DPP v Beroukas (No 2) [2024] ACTSC 294 at [7]-[15] and DPP v Rohrlach (No 2) [2025] ACTSC 192 at [9]-[17].

16. The breach was serious (being further offending) and the nature of the offending here was also serious. The court further takes into account all the conduct which constitutes the breach and there has been significant other offending. However, the offender had completed the majority of the good behaviour order and the imposition of the remaining part of the sentence that had been suspended has been somewhat overtaken by the offender subsequently serving terms of imprisonment for the offences that constituted the breach.

17. The original offence was of a different kind to the offending here and the offender had served a portion of that sentence in full time custody prior to it being suspended. That is, this was not a case where the entire sentence was suspended. In all those circumstances, to impose the remainder of the sentence would now be a disproportionate outcome. I therefore consider that it is appropriate to resentence the offender. The material that was before the court on the initial offence was before the court. I have given it consideration and have broadly adopted the various considerations set out in detail in the original sentence, including the sentencing discount of 25% for the guilty plea entered.

18. Applying the principles of deterrence and punishment and giving effect to the policy underlying the regime of suspending sentences, the offender will be required to serve a longer period of time in full time custody than the four months and 19 days that were previously served, but not the entirety of the sentence.

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

19. The court must consider the objective gravity of the offence by reference to the nature of the crime (and elsewhere, the circumstances of the criminal) and the sentence imposed must be proportionate. This involves evaluating the conduct within a theoretical spectrum and with the maximum penalty as a yardstick. In accordance with Laipato v The Queen [2020] ACTCA 35 at [156], factors that inform the character of each offence’s objective seriousness here have been articulated below.

Aggravated threat to kill

20. A non-exhaustive list of features bearing on the threat to kill offence was set out in DPP v Jewell [2023] ACTSC 348 at [41], namely: (a) Whether the threat was made in person. (b) The subjective fear engendered in the victim by the threat. (c) Any use of drugs by the offender at the time the threat was made. (d) The nature and seriousness of the threat. (e) Whether the offender had a weapon at the time of the threat. (f) Whether the threat was capable of immediate realisation. (g) Any premeditation on behalf of the offender.

21. This offending was aggravated because it involved family violence. The court therefore must have regard to the factors set out in s 34B of the Sentencing Act: (a) The matters mentioned in the preamble to the Family Violence Act 2016 (ACT). (b) Whether the offending occurred at the home of the victim, offender or another person. (c) Whether the offending occurred while a child was present. (d) Whether the offender has one or more other convictions for serious family violence offences.

22. In this case, the threat was made in person and at the victim’s home, while a child was present. There is no express statement of the subjective fear engendered in the victim, but the facts show that she had a physical reaction consistent with fear and that she accepted the threat, albeit whether the threat was of imminent danger as opposed to some point in the future is unclear. The offender was under the influence of intoxicating substances at the time of the offending. He did not have a weapon and there is no evidence that the threat was premeditated. The threat was not specific or graphic in nature. Because of the physical proximity between the offender and the victim, he was in a position to carry out the threat immediately, although I accept this does not appear to have been his intention.

Take motor vehicle without consent

23. The five-year maximum penalty indicates that the legislature views this offence relatively seriously. Applying R v Massey (No 3) [2021] ACTSC 156 at [29], the following considerations inform the objective seriousness of the offence: (a) The period of driving and the length of distance driven. (b) Whether the vehicle was used in the commission of another offence. (c) Whether the offender was the driver and not only the passenger. (d) The manner of driving, unless subject to a separate charge. (e) Whether the vehicle was damaged. (f) Whether the vehicle was returned to the owner.

24. The offender took the vehicle for just under three hours. The length of distance driven is unknown but was not insignificant. The vehicle was used to transport the offender to MI’s residence, where the other offence was committed, so to that extent was used in the commission of another offence. There is no information before the court as to the manner of driving or any damage to the vehicle. I note that the offender was unlicensed at the time he drove the vehicle, which aggravates the offending.

25. Overall, I consider that this offence falls at the lower end of objective seriousness.

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

26. No victim impact statement was before the court. While the court does not speculate, that does not mean that the court ignores the victim impact entirely. It is apparent that the offending caused distress for MI. The taking of BN’s vehicle would also have caused him inconvenience.

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

27. The offender entered pleas of guilty and is entitled to a discretionary discount in accordance with s 35(3) of the Sentencing Act. I have considered the mandatory considerations listed in s 35(2). Here, the pleas followed plea negotiations and there was a benefit. The timing of the pleas occurred some four months after his matter was committed for trial but well before the hearing. There had also been early representations to resolve the matter prior to the pleas being entered. The pleas provided significant utilitarian value, and this 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 at [49]. For instance, they avoided the need for MI to have to give evidence.

28. The offender sought a higher discount but in line with principles collected in DPP v Padreny [2024] ACTCA 4 at [69]-[82], the benefits obtained through plea negotiations, and the seriousness of the offending (including the involvement of MI and children), I have determined that a discount of 20% is appropriate. Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

29. The offender is a 32-year-old Wiradjuri man. His background was before the court through several reports. He has limited familial support. The reports illustrate a disadvantaged upbringing, and I have given this full weight including a reduction in moral culpability: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [43]-[44]. The offender was exposed to drugs and alcohol at a young age, and I am satisfied that the Henry principles are enlivened (as to which see R v Henry [1999] NSWCCA 111; 46 NSWLR 346).

30. The offender has a lengthy criminal history that disentitles him to leniency. Recalling s 34B of the Sentencing Act, the offender does not have any prior convictions for serious family violence offences.

31. However, an aggravating factor (see KQE v DPP [2024] ACTCA 7 at [40]) is that the offending occurred while the offender was on conditional liberty, because he was subject to a suspended sentence order and a New South Wales Community Corrections Order at the time.

32. He has significant mental health concerns. I do not consider they reduce his moral culpability significantly here, but they do have other consequences, such as how a custodial sentence will impact on the offender. The offender’s circumstances may also increase the need for lengthy supervision.

33. The offender was intoxicated at the time of the offending, and I accept that this contributed to his behaviour. It is to his credit that he has used the time in custody to complete a drug rehabilitation program.

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

34. The offender has showed some remorse, particularly in relation to his charge of threat to kill. In his conversations with report writers, he described being “disappointed” in his actions, saying that he was “so sorry” and felt “guilt and remorse” for what he had done. The offender reflected, “I caused harm to people and that’s not what I’m about”.

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

35. I have had regard to authorities on the aggravated threat to kill offence referred to in DPP v Jewell [2023] ACTSC 348 at [40] and R v Massey (No 1) [2020] ACTSC 256 at [76]-[78], and R v Massey (No 3) [2021] ACTSC 156 in addition to R v Rosewarne [2021] ACTSC 217 on the take motor vehicle without consent offence. Pre-sentence custody and totality considerations

36. As at the date of sentence, the offender has spent 92 days in custody referrable to this offending. This time will be taken into account by way of backdating his sentence.

37. However, in the period leading up to his sentence, the offender has also spent a considerable amount of time in custody referable to other offending (343 days). This has been taken into account in applying principles of totality and in the ultimate disposition.

38. In addition, the taking of the motor vehicle and the aggravated intentional threat to kill may be viewed as the one course of conduct but the sentence must still be structured to avoid the perception of a discount for multiple offending.

Disposition

39. The imposition of a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act. The preamble to the Family Violence Act speaks of family violence being unacceptable in any form, and the justice system’s role in protecting the human right to freedom from such violence. Further, children exposed to family violence are particularly vulnerable and the exposure may have a serious impact on their physical and psychological development. I consider that a term of imprisonment is the only sentence that recognises the gravity of the offending here, including a period of full-time custody. However, the offender has served time in custody referable to this offending and I am not persuaded any further period in custody will achieve any of the sentencing purposes in terms of denunciation, punishment or recognition of victim impact.

40. The offender was found unsuitable for a drug and alcohol treatment order, and I accept the assessment and reasons given for that view. The court should endeavour to avoid inadvertently setting offenders up to fail. I would not have imposed an order that involved a residential rehabilitation treatment even if the offender had been found suitable, because he has just completed the same type of program while in custody.

41. The offender was found suitable for an intensive corrections order (ICO). I agree that the structure and targeted intervention of such an order support rehabilitation. However, the offender’s complex history, his issues surrounding sustained compliance and the consequences for any breach cause me to hesitate, again due to similar concerns as those which count him out of a formal treatment order. In addition, an ICO is not available as part of a combination sentence and the offender has spent time in custody.

42. On fine balance, someone with the offender’s past drug addiction and mental health issues may benefit from greater flexibility through a partially suspended sentence. Although the threat offence is a serious offence, the gravity of the conduct was not such as to make a partially suspended sentence inappropriate. I think it is probably the best fit in terms of achieving a flexible but lengthy period of supervision.

43. Ideally, such a sentence would have had a rehabilitation condition attached to it, supporting and reinforcing the rehabilitation that the offender has undertaken while in custody. The court was assisted by the efforts of the Drug and Alcohol Treatment Team following the hearing in attempting to gauge the prospect of the offender being able to access a day rehabilitation service outside the Treatment Order regime. However, I do not have sufficient information to satisfy me that an appropriate program would become available to him within a reasonable period of time following sentence, and accordingly, I cannot impose a rehabilitation condition. If circumstances change, there is always the possibility of amending the conditions of the good behaviour order with a view to formulating a clear treatment plan for the offender.

Orders

44. The orders of the Court are: (1) For CAN 9444/2023, the suspended sentence imposed on 1 March 2024 is cancelled pursuant to s 110 of the Crimes (Sentencing) Act 2005 (ACT) and the offender is resentenced to a term of imprisonment for nine months, backdated to commence on 14 October 2025 and conclude on 13 July 2026. (2) For CAN 1833/2025, intentional threat to kill, the offender is convicted and sentenced to a term of imprisonment for two years and two months, reduced to one year, eight months and 23 days on account of his guilty plea, to commence on 4 June 2026 and conclude on 26 February 2028. (3) For SC CAN 511/2025, take motor vehicle without consent, the offender is convicted and sentenced to a term of imprisonment for one year, reduced to nine months and 18 days on account of his guilty plea, to commence on 18 August 2027 and conclude on 4 June 2028. (4) The total effective sentence is two years, seven months and 22 days. (5) The sentence is to be suspended after 233 days, namely from 5 June 2026, on the offender giving an undertaking to comply with good behaviour obligations with the following conditions: (a) The core conditions set out in ss 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT); (b) Pursuant to s 13(4)(d) of the Sentencing Act and s 95 of the Sentence Administration Act, a probation condition that the offender 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 directions targeted at supporting the offender’s abstention from controlled substances, such as urinalysis and any counselling or other program of intervention supporting the offender’s mental health.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam.

Associate: Date: