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1. Mr Brad Jewell has pleaded guilty to three charges, being: (a) Making an aggravated threat to kill another person, contrary to s 30 of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 3248/2023). The aggravated offence carries a maximum sentence of imprisonment for 13 years. (b) Aggravated stalking, contrary to s 35 of the Crimes Act (CAN 3249/2023). The aggravated offence carries a maximum penalty of imprisonment for seven years. (c) Contravening a family violence order (FVO) contrary to s 43 of the Family Violence Act 2016 (ACT) (CAN 3260/2023). The offence carries a maximum penalty of imprisonment for five years, a 500 penalty unit fine or both.

2. The circumstances of aggravation for the threat to kill and stalking offences arise by operation of s 48C(2) of the Crimes Act, which provides that the offence is an aggravated offence if the offence involves family violence.

3. As a consequence of this offending, the offender is also in breach of a good behaviour order previously imposed by the Magistrates Court on 16 March 2022 in respect of offences CAN 8771/2021, CAN 5495/2021 and CAN 5496/2021. The consequence of these breaches will be discussed later in these reasons.

4. The offender is further in breach of a Commonwealth recognizance order in respect of offence CAN 8772/2021. Section 20A of the Crimes Act 1914 (Cth) precludes this Court dealing with the matter. This breach will be dealt with by the Magistrates Court and the Commonwealth DPP in due course.

Facts of the offending

5. The facts of the offending are agreed and may be summarised as follows. It is necessary to set the facts out at some length, as the stalking and contravene FVO offences involve a long pattern of behaviour.

6. The victim of the offending is the offender’s ex-partner. They had been in a relationship between 2021 and early in 2023. In the few months before they broke up, the offender had become very possessive of, and paranoid about, the victim.

Aggravated stalking offence

7. Shortly after the relationship ceased, on 5 March 2023, the offender called the victim 10 times, and sent 323 text messages to the victim. These included threats to attend her residence and gain entry to it, as well as the following messages: (a) “oh and I can't go over unless invited well I might just break the rules”, (b) “arrived at house now I'm going to fucking lose it”, (c) “you shouldn't have fucking done this”, (d) “you really really shouldn't have”, (e) “you fucked up”, (f) “I'll be back tonight to fucking talk this definitely ends tonight [victim]”, (g) “last laugh is mine this time fuck you”, (h) “you're going to do everything I fucking ask tonight”, (i) “I've been asking to see you for fucking days now and I'm not going to stop until I either see you or you tell me or I'm dead”, (j) “I hope you're ready to see me I'm on my way”, (k) “you are done I want to watch you burn now”, and (l) “I'm coming back over and if the front door is locked ill leave”.

8. On the same day, the offender was captured on CCTV at the victim’s home on three occasions.

9. The behaviour continued over the next few days. Over 6 and 7 March 2023, the victim received 40 phone calls from the offender, as well as 175 text messages. Among them were the following messages: (a) “Unlock the fucking door because I'm coming in”, (b) “I will kick the front door in”, (c) “last chance now he's dead”, (d) “I'm corning back now and I'm fucking pissed”, and (e) “you are now my enemy also”.

Aggravated threat to kill

10. The offender was captured on the victim’s CCTV twice on 6 March 2023. About midnight that night, the offender went to the victim’s house and banged on the back door. The victim was home with her three children. He was holding a large hunting knife. The victim recalls the offender saying, “let me in or I'll kick the fucking doors in”. The victim acquiesced to the request, as due to a previous incident where the offender had smashed through the front glass door of her house, she believed the offender would carry out the threat.

11. The offender grabbed the victim, pointed the knife at her and stated he was going to kill her (this conduct constitutes the threat to kill offence). The victim feared for her life and pleaded for the offender to let her go and to talk about the issue. She was terrified and prepared herself to die.

12. The offender eventually stopped. He attempted to force the knife into the victim’s hand. He said he wanted her to kill him. The victim refused. The victim was terrified that her children would wake up and see the offender with a knife. She made her way into the front loungeroom, away from her children. The offender remained in the loungeroom for an hour, speaking to the victim, before he left the house. He left the knife behind. At this stage, the victim was too scared to call the police, as she was scared that the offender would attempt to hurt her if she did so.

Continuation of aggravated stalking offence

13. Later in the day on 7 March 2023, the offender sent the following messages to the victim: (a) “If you’re lucky it’ll be me that dies tonight”, (b) “You have no idea what’s coming for you two”, (c) “Times up now”, (d) “So who did you rat me out to”, (e) “I’m coming now bitch, I’m coming for you”, (f) “Now I’m going to do what has to be done”, (g) “I die today [victim]”, and (h) “You done what’s about to happen just [know] that”.

14. The offender continued to contact the victim that evening, and at 7:30pm sent the following text: “You left the laundry sliding door open, I’ll close it for you”.

15. The offender then sent a further message stating that he would hop the fence into the victim’s backyard and shut the door himself. The victim responded to the message, telling the offender not to enter her residence and that her older son was home. The offender then called the victim eight times. The offender then sent the following messages to the victim: (a) “This isn’t going to end good [victim] I’m getting very aggravated with you”, (b) “No remorse now bitch”, (c) “Now you fucked me over I’m throwing the rules out the window”, (d) “I will see you soon fucking rat” and (e) “How long can you hide for [victim]”.

16. CCTV footage captured the offender at the residence that evening. The victim observed this remotely, was terrified, and hid in the roof with her son.

17. On 8 March 2023, the offender sent a total of 228 text messages to the victim. All of them read: “You better have me killed.”

18. On 9 March 2023, the offender sent 18 text messages to the victim, including the following: “Don’t you or anyone in your family ever come near me ever again I don’t know what will happen the next time we cross paths” and “I’m coming over in 25 minutes”.

19. Similar behaviour occurred over the period from 10 March 2023 to 13 March 2023. Dozens of calls were made, and texts were sent. This included the offender visiting the house of the victim on 11 March 2023, and sending texts such as the following: (a) “I’ll see you later today”, (b) “I’m going to your place after 2pm”, (c) “Ok I can wait a lifetime can you handle this for a lifetime”, (d) “I’m at your house”, (e) “Fine you want me dead then you can watch it on your cameras”, (f) “I’ll take my own life but just know that you are the one that killed me I bet that puts a smile on your face”, and (g) “I’m going to call you one more time!! If you don’t answer then you WILL see me.”

20. The victim answered one phone call from the offender on 13 March 2023. During that call, the offender threatened to kill the victim.

21. On 14 March 2023, the offender visited the victim’s residence once. He sent the following texts: (a) “Please answer or I’ll come over and park in your driveway until you do”, (b) “I’ll die before I leave”, (c) “I’ll be back tomorrow”, (d) “I’ll be back and if you haven’t answered me I’m coming inside”, (e) “This is what you want so watch your camera. I’ll go deeper and deeper until you answer or I’m dead”, and (f) “I’m calling your parents”.

Breach of family violence order offence

22. The victim attended the ACT Magistrates Court on that day, and on 14 March 2023 the offender was named as the respondent to an interim FVO. The victim was moved to emergency housing.

23. The conditions of the FVO included, inter alia, a prohibition on the offender being at the house of the victim, within 100 metres of the victim or their children, contacting the victim or their children, attempting to locate the victim or their children, or engaging in behaviour against the victim or her children that constituted family violence.

24. The offender continued to call and text the victim every day from 14 March 2023. Although the FVO had been issued, it had not been served on the offender.

25. On 18 March 2023, the following text messages were sent: (a) “I can be very persuasive when I need to be…looks like my only option left is to go visit a few people and see if they can help me get in contact with you you’ve forced my hand [victim]”, (b) “I apologise for what ever happens but you’ve pushed me so far past my limit I don’t know what’s going to happen”, (c) “Are you coming out or do I have to come in”, (d) “I guess it’s my time to die then. I’m coming looking everywhere for you and no one better get in my fucking way.”, (e) “I know you hate me [victim] but what you are doing is so fucking wrong.” (f) “I don’t know if you are safe, I don’t know where you are or who you’re with? I don’t fucking know anything!!!!!!!!!!!!!!!!!!!!!!” (g) “I apologise for whatever happens but you’ve pushed me so far past my limit I don’t know what’s going to happen.” (h) “I can be very persuasive when I need to be…..looks like my only option left is to go visit a few people and see if they can help me get in contact with you. You’ve forced my hand [victim].” (i) “Last resort is almost upon me!!” (j) “Not a single word for weeks are you fucking kidding me?? I hope you stay in hiding forever or better yet ……………. Yes”, and (k) “Not a single word you fucking disrespectful piece of shit.”

26. The victim noticed the offender was at her house that afternoon via notification from her CCTV camera. She notified the police, who attended the residence at 6:00pm. The offender was located asleep in his car, parked 50 metres from the house. He was informed that he was in breach of the FVO and arrested. It later transpired that the offender had not been served with the FVO. He was then served and released from custody.

27. The victim subsequently attended upon the police for a Family Violence Evidence in Chief Interview and provided to them the knife left at her house by the offender on 7 March 2023.

28. The behaviour that follows constitutes the contravention of an FVO offence, following its service on the offender.

29. Between 19 and 27 March 2023, the offender called the victim every day. In total, he called her 34 times and sent nine text messages. He attended her residence on 20, 21, 22, 24, 25 and 27 March 2023, on some of those days more than once.

30. On 27 March 2023 the offender sent the victim text messages including the following: (a) “Missed FaceTime call from you ….accident or you setting me up again?”, (b) “I guess I’ll wait for the cops to turn up then”, (c) “Can I call and talk to you for 2mins?”, (d) “Sorry this is the last thing, I say this as a broken man with tears as I text this! All the memories that we share from our years together now all belong to you!! I don’t want them anymore..because I mean absolutely nothing to you those memories mean nothing to me and can only bring sadness upon me. I’m sorry [victim] I truly am.” (e) “Not that you care but I’m letting you know I’m reactivating my tinder account”.

31. On the same day, the victim reported the FVO contraventions to the police and provided evidence including copies of text messages and CCTV footage.

32. On 28 March 2023 the offender called the victim three times and sent her a text message. At 8:30pm police attended his residence, but nobody came to the door. At 9:43pm, the offender sent the victim the following text: “They missed me….”. This caused the victim great fear.

33. On 29 March 2023 the following occurred: (a) At 10:03am, the offender sent the following text message to the victim: “I fucking hate you with everything I have…now I hope you die”. The victim was scared for her life as a result of this. (b) At 8:59pm, the offender sent the following message to the victim: “Are you seeing someone else? Please answer me because I’m going out of my mind and I’ll just come over then you’ll have to get me locked up and I know that’s what you want so I’ll just come”. (c) At 9:22pm the victim contacted the police in tears, and informed them of the recent contraventions. She said she was scared that the offender would attend her house and that she was generally terrified. (d) At 9.45pm the police attended the offender’s residence, but were unable to locate him.

34. On 30 March 2023 the following occurred: (a) At 1.45am, the police returned to the offender’s residence, and again were unable to locate him. (b) At 3:40am, the police found the offender lying in bushland. He was arrested. The police held concerns about his mental health at that time, and he was not offered the opportunity to participate in an interview.

The Court’s sentencing task

35. The Court’s task in sentencing the offender is guided by s 7 of the Crimes (Sentencing Act) 2005 (ACT) (Sentencing Act), which sets out the purposes of sentencing. In determining what is “adequate punishment” by way of a sentence that is “just and appropriate”, the principle of individualised justice applies. A more detailed discussion of that principle and the applicable authorities is set out in DPP v Rohrlach [2023] ACTSC 166 at [18]-[23]. Without repeating the summary here, the Court must balance the different objectives in s 7 of the Sentencing Act in all the circumstances, giving consideration to the offender’s personal circumstances.

36. Of equal importance among the objectives (s 7(2) of the Sentencing Act) are the objectives of general and specific deterrence, protection of the community, promotion of the offender’s rehabilitation, making the offender accountable for his actions, denouncing the conduct of the offender and recognising the harm done to the victim of the crime and to the community. Objective seriousness (s 33(1)(a) of the Sentencing Act)

37. The Court must consider the nature and circumstances of the offence. This is the objective seriousness of the conduct in question. The evaluation is described as the “objective” seriousness because the court disregards matters personal to the offender and determines the seriousness wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 (Muldrock) at [27].

38. The approach is well-established. It is described again below for the benefit of those involved in this particular proceeding, who may not be familiar with the various and often nuanced aspects of sentencing. The following principles apply: (a) The sentence imposed must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 (Miller) at [37]. (b) The Court is required to consider where the facts of the particular offence committed by the offender lie in the “spectrum”, from the least serious instances of the offence to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. (c) The subjective features (being the aspects of the offending personal to the offender) and the after-effects of offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12]. (d) The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. (e) It is preferable to articulate the factors that inform the character of an offence’s objective seriousness: Miller at [22]; Laipato v The Queen [2020] ACTCA 35 at [156].

39. In respect of each of the offences, the offender was on conditional liberty at the time, which is an aggravating feature.

Aggravated threat to kill

40. The parties helpfully provided authorities outlining factors relevant to the assessment of the objective seriousness of this offence. These included R v Williams [2016] ACTSC 389 at [45], R v Loulanting [2015] ACTSC 172 (Loulanting) at [37], R v Pearson [2020] ACTSC 375 at [22] and R v Day (No 2) [2022] ACTSC 252 at [44]. I have also considered the discussion in Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79 at [19]-[28].

41. The circumstances surrounding the making of a threat to kill are relevant to an assessment of the threat’s seriousness. Without being exhaustive, the authorities above have considered features such as the following: (a) If the threat is made in person or not; (b) The subjective fear engendered in a victim by the threat; (c) Any use of drugs by the offender at the time the threat is made; (d) The nature and seriousness of the threat; (e) If the offender has a weapon at the time of the threat; (f) If the threat is capable of immediate realisation; and (g) Any premeditation on behalf of the offender.

42. Section 34B(1) of the Sentencing Act separately requires the Court to take into account a number of matters, including (relevantly here) whether the offending occurred at the home of the victim.

43. A list of considerations such as the above is not to be considered as a checklist, the absence of any of which reduces the objective seriousness of the offence. As McCallum CJ recently made the point in DPP v Moala (No 3) [2023] ACTSC 306 at [24] (emphasis added): Such lists can be useful provided their limits are understood. A list of factors drawn from decided cases can never serve as a proxy for the central judicial function of making an evaluative assessment of the overall objective seriousness of an offence having regard to the circumstances of the case at hand... It is trite that the absence of an aggravating factor does not mitigate an offence; it simply means the offence is not aggravated by that factor.

44. Here, the threat was in person. The subjective fear engendered in the victim was at its highest – she thought she was going to actually die. There is no reference to the use of drugs. The nature and circumstances of the threat was also of the most serious kind, in that the offender was standing in the victim’s home at midnight, had grabbed her and pointed a hunting knife at her.

45. The threat was capable of immediate realisation. There was premeditation in that the offender travelled to the victim’s house with the knife and banged on the door in order to gain physical access to the victim.

46. I note the statutory circumstance of aggravation because of the family violence context. However, this is already accounted for by the fact that such feature is an element of the aggravated offence. It is factored into the considerations through the higher maximum penalty applying.

47. Objectively, this is a very serious example of what is, by definition, a serious family violence offence (s 34B of the Sentencing Act).

Aggravated stalking

48. In Vuolo v Fall [2023] ACTCA 33 (Vuolo) it was stated at [49] that “It must be borne in mind that the offence of stalking contrary to s 35 of the Crimes Act can take many forms, as seen from the definition in the section...” That definition is as follows: (1) For this section, a person stalks someone else (the stalked person) if, on at least 2 occasions, the person does 1 or more of the following: (a) follows or approaches the stalked person; (b) loiters near, watches, approaches or enters a place where the stalked person resides, works or visits; (c) keeps the stalked person under surveillance; (d) interferes with property in the possession of the stalked person; (e) gives or sends offensive material to the stalked person or leaves offensive material where it is likely to be found by, given to or brought to the attention of, the stalked person; (f) telephones, sends electronic messages to or otherwise contacts the stalked person; (g) sends electronic messages about the stalked person to anybody else; (h) makes electronic messages about the stalked person available to anybody else; (i) acts covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person; (j) engages in conduct amounting to intimidation, harassment or molestation of the stalked person.

49. The prosecution drew attention to the authority of DD v Ilievski [2016] ACTSC 115, where Murrell CJ stated at [28]: The objective seriousness of stalking conduct should be assessed by reference to the range of conduct that is captured by the concept of stalking as defined in s 35(2) of the Crimes Act 1900 (ACT). Stalking conduct includes loitering near the stalked person, keeping them under surveillance, interfering with their property and other conduct which has more immediacy in terms of capacity to cause fear of harm than does, generally speaking, communication by telephone or electronic messaging.

50. Relevant features present in this case that have been previously considered include: (a) the volume of communication and stalking conduct (see Morrison v Maher (No 2) [2022] ACTSC 63 (Morrison) at [132]), (b) whether the period over which the stalking occurred was brief or sustained (see Vuolo at [73]), (c) whether the acts constituting the offence were physical acts proximate to the victim (Morrison at [121]), and (d) whether the intent of the offender was to cause fear of harm in the victim, as opposed to merely harassing the victim (Morrison at [121]).

51. Again, the particular location, being the victim’s home, must also be taken into account as well as the fact that the offending occurred (at times) when a child was present: s 34B of the Sentencing Act. Otherwise, the family violence context is already part of the elements of the offence and is not an aggravating feature.

52. Here, the volume of communication and stalking conduct was high. There were 138 phone calls, 950 text messages and 10 house attendances. More than 300 of those messages were sent on one day alone.

53. The conduct occurred over a sustained period, being a month. While it was obviously not many months or years, when the conduct involved the volume of stalking here, the period of time is significant.

54. The acts constituting the offence included physical acts, in that the offender was at the victim’s house on 10 occasions.

55. In terms of whether the intent of the offender was to cause fear of harm in the victim, one only has to read the messages set out above to see that was the case. There were direct threats that were clearly intended to cause the victim to fear that both she and her son would be harmed.

56. There were also other messages that carried the same implication indirectly. For example, the offender sent a message to the victim that she had left the laundry sliding door open and that he would close it for her. Of itself, this might not seem to be as serious as a direct threat of harm in a text message. However, in my view, it was equally sinister in content. When a threat of harm via text message is received, if the person is not within the victim’s proximity, the threat cannot be carried out immediately. Here, the message sent by the offender came within hours of the offender standing in the victim’s house with a hunting knife, threatening to kill her. It was a message sent shortly after the offender’s multiple texts, one of which stated, “you have no idea what’s coming for you two”. The purportedly innocuous text told the victim: (a) that the offender was close enough to see the back of the victim’s house; (b) that he intended to approach her house; and (c) that he would be right at the laundry door of her property.

57. The intention of it was to say, “I’m here, and I’m coming to your door”. Although the content of the message did not expressly threaten harm, in context, it conveyed to the victim that she could be harmed at any moment. That message was an insidious communication.

58. Following receipt of that message and seeing the offender on the CCTV camera at her house, it is unsurprising that the victim hid in the roof with her son.

59. Remembering that stalking is constituted by two or more incidents of the conduct listed in s 35 of the Crimes Act, those features put the offender’s conduct towards the upper range of the spectrum. He engaged in almost the full range of the conduct proscribed by statute, on many occasions, over a sustained period.

Contravene FVO

60. The object of the FVO was to ensure the protection of a vulnerable young woman and her family from the offender. Cases which have discussed the features of objective seriousness in respect of contravening a family violence order include: Loulanting at [42]; R v Wright [2018] ACTSC 58 at [45]; R v Rogers [2021] ACTSC 355 (Rogers) at [52], [55]; R v Smith [2021] ACTSC 114 (Smith) at [27]; R v Elliot (No 2) [2022] ACTSC 390 (Elliot) at [52]; R v Michalopoulos [2020] ACTSC 27 (Michalopoulos) at [19]; Morrison at [122], [125]; R v Elson [2020] ACTSC 264 (Elson) at [15]; R v NX (No 2) [2019] ACTSC 131 (NX) at [14].

61. In Elliot at [44] it was stated (references omitted): … Although such orders are known as Family Violence Orders, it is also known that family violence is not limited to the infliction of physical harm, but can include mental harm, such as may be caused by menacing, threatening or intimidating behaviour or, indeed, coercion. It is an exercise of power over, and instilling powerlessness in, the victim.

62. Features to take into consideration, drawn from the authorities above, include the following: (a) What: The content of the breach, such as whether there was actual violence: Rogers at [55], Smith at [27]; whether messages were threatening, intimidating, abusive or indecent: Elliot at [45]; or whether the use of a weapon was involved: Elson at [15]. Whether the breach was committed in the presence of children: NX at [14]. (b) How: The means by which the breach occurred, such as whether it was made by personal approach, text message, phone call and so forth: Loulanting at [42]. (c) Where: The location of the breach, with an offence occurring in the victim’s home being a statutory factor of aggravation: s 34B(1)(b) of the Sentencing Act; Rogers at [53]. (d) Duration: Whether the breach was isolated or repeated, or whether it was of significant duration or over a sustained period: Rogers at [55], Smith at [27]; Loulanting at [42]. (e) Intention: Whether the breach was deliberate or in substantial defiance of the order the offender was required to respect: Michalopoulos at [19]; Rogers at [54]. (f) Premeditation: Whether the offending involved premeditation: Elson at [15].

63. Here, again, the features of the conduct were all of significant seriousness. The nature of the breach involved multiple attendances at the victim’s home, at least one of the messages was abusive and threatening, and persistent phone calls. This is a form of violence, constituting mental harm in the sense described in Elliot above.

64. The nature of the breach included personal approaches to the victim (albeit unsuccessful), in that he attended her residence on six days, and on some of those days more than once. The offence occurred partly at the victim’s home.

65. The breach was not isolated. In addition to the numerous attendances at the victim’s house, the offender called the victim every day for nine days and sent the victim numerous text messages over the period 19 to 27 March 2023. It was of a significant duration because of the volume of conduct in the period during which the offending occurred.

66. The breach must have been deliberate, as the offender had been arrested before he was even served with the FVO. The offender was then served with the FVO and his conduct constituting the breach occurred from the following day onwards for nine days.

67. When comparing the offender’s conduct towards the victim before she took out the FVO with that after the offender was served with the FVO, such order regrettably appears to have had little effect in terms of deterring the offender. Taking these features into account, while the conduct was not the most egregious falling within the spectrum, it was certainly extremely serious.

Effect on the victim (ss 33(1)(f) of the Sentencing Act)

68. No formal victim impact statement was before the Court. By operation of s 53(1)(b) of the Sentencing Act, I must not draw any inference about the harm suffered by a victim from the fact that a victim impact statement is not given to the court in relation to the offence.

69. However, the agreed facts provide evidence of the contemporaneous impact upon the victim. As described above, the victim was scared for her life a number of times over the period in question. She was scared also for the safety of her children. She was terrified to the point where she hid in the roof of her house, called the police on numerous occasions, and had to be moved to emergency housing. On the agreed facts, the trauma to her was not hypothetical.

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

70. The Court had before it a Pre-Sentence Report (PSR) dated 17 July 2023, as well as two reports: a psychological assessment by clinical psychologist Mr Matt Visser dated 4 September 2023 and a psychiatric report by forensic psychiatrist Dr Anthony Barker dated 15 December 2021. The report by Dr Barker was created for prior proceedings but was provided on this sentence.

Family background and education

71. The offender is 43 years old. He is one of six children. He had a difficult upbringing, reporting to the author of the PSR that his parents abused alcohol and he suffered violence at the hands of his father. Dr Visser’s report notes that the offender’s parents were often violent towards each other when the offender was growing up. The offender noted examples of this behaviour. It is not necessary to describe here what he witnessed as a child, or what was inflicted on him and his siblings by his father. His father passed away when the offender was 18 years old.

72. In terms of family, the offender has supportive relationships with his mother and siblings. Much of the above account of the offender’s background was corroborated by his mother, particularly in terms of his childhood exposure to alcohol abuse and violence. The offender also has two children from a previous relationship. He has a good relationship with his children and contacts them frequently. He has an amicable relationship with the mother of his children.

73. The offender left high school prior to completing Year 7. He worked in a muffler shop full-time from age 13. He has worked full-time since that age, most recently running his own business in the scrap metal industry. Bugmy principles

74. This is a case where it was argued (and accepted) that the Bugmy principles applied. In R v Bugmy [2013] HCA 37; 249 CLR 571 (Bugmy), the plurality in the High Court said at [43] and [44]: 43. …The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience... 44. …An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

75. The material establishes, on the balance of probabilities, that the offender was exposed to violence on behalf of his parents during a dysfunctional childhood. I accept the offender did not have a safe and stable parental environment growing up, and this is likely to have impacted on his lack of emotional regulation and decision-making. Such impacts are well documented: Bugmy Bar Book Committee, ‘Childhood Exposure to Domestic & Family Violence” in The Bar Book Project (Sydney, NSW, The Public Defenders, 2019) at 4-8.

76. The prosecution advanced an argument that the application of the Bugmy principles may pull the sentencing Court in different directions. That is, the prosecution relied on what was stated by the plurality in Bugmy at [44]. They cited further in support Munda v Western Australia [2013] HCA 38; 249 CLR 600, where the majority stated relevantly at [58] (citations omitted, emphasis added): …[T]he interplay of the considerations relevant to sentencing may be complex … In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance… It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances.

77. This is undoubtably so as a general principle and necessitates a careful approach in the circumstances here, where the Bugmy principles apply. Here, the offender’s moral culpability is somewhat reduced on account of his childhood. Clearly, he has poor emotional regulation, impulse control and decision-making abilities. This poor regulation no doubt contributed to the present offending.

78. However, it also increases the risk of future offending and the need for the community to be protected. Given the serious conduct involved in each of the offences, the offender was clearly in no fit state to embark upon a new relationship and yet one of his final messages to the victim documented above refers to him reactivating his Tinder account, which I infer was the offender telling the victim he was moving on to seek connections with other women. The breach of the FVO demonstrates that a court order has not been sufficient deterrence for this offender. In an attempt to protect the community, including women with whom the offender may seek to form any type of attachment in the future, weight should be afforded to rehabilitation. Counselling and treatment are required to effect behavioural change. Addressing these areas will be reflected in the sentence to be crafted. That is what individualised justice requires.

Medical, emotional and mental health

79. The offender’s poor mental health overlaps with the circumstances of his upbringing.

80. The PSR author records that the offender has been diagnosed with depression and a history of suicidal ideation and suicide attempts, including one earlier this year. In his report, Dr Barker diagnosed the offender with Major Depressive Disorder. However, Mr Visser in his report records that the preferred diagnosis is that of Post-Traumatic Stress Disorder (PTSD). Mr Visser’s opinion is that the offender meets the criteria for PTSD, although the condition Complex-PTSD is a better fit. Mr Visser states the following: In addition to one of the criteria for PTSD being “Irritable behaviour and angry outbursts,” (E1) complex childhood trauma has been correlated with poor emotional regulation, attachment issues, and physical aggression, all of which are clearly demonstrated by Mr Jewell. To date he has also received no treatment in relation to his trauma, although his medication, when he takes it consistently, appears to be a protective factor. As a result of his symptoms, I would suggest a moderate causal relationship between the offending behaviour and his mental illness.

81. The prosecution accepts that the offender’s childhood experiences form a strong basis for this diagnosis. It is further accepted that, as a consequence, the Verdins principles are enlivened in this sentence.

82. Those relevant principles are set out in Ngata v The Queen [2020] ACTCA 18 at [18]- [20]. A finding of a mental impairment, such as that which exists in the present case, may be relevant in a number of ways. The ways that it may be relevant were set out as a non-exhaustive list in R v Verdins [2007] VSCA 102; 16 VR 269 at [32], with that summary later cited with approval in R v Guode [2020] HCA 8; 267 CLR 141 at [8].

83. Applying those principles without repeating them, I accept that the offender’s diagnosis means that again the moral culpability of his offending is reduced. The offender has been prescribed medication to assist in managing his mental health. However, at the time of the offending, the offender had stopped taking his medication and I accept the submission made by the legal representative for the offender that this goes some way to explaining what appears to have been an uncontrollable emotional and psychological state over the period of about a month.

84. Accepting the medical opinion before the Court, I find there is some connection between the offender’s diagnosis of PTSD and his offending. In particular, the uncontested statement that “complex childhood trauma has been correlated with poor emotional regulation, attachment issues, and physical aggression” appears to me to be directly applicable in the circumstances of this case.

85. I further accept that full-time custody may weigh more heavily on this particular offender, (s 33(1)(r) of the Sentencing Act) and his diagnosis has – in that respect – a bearing on the kind and conditions of sentence to be imposed.

86. As with the operation of the Bugmy factors, taking the offender’s mental impairment into account and applying Verdins principles may result in sentencing objectives that pull in opposite directions: DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. As a result of his mental health, the offender may not be an appropriate vehicle for general deterrence. However, because of his impairment, the offender may present a more significant danger to the community, and the consideration of specific deterrence may require more weight. The evaluation of the extent of significance of the above considerations is discretionary: Blake v The Queen [2021] NSWCCA 258 at [42].

87. The offender’s mental health could be treated through therapy with an appropriate psychologist. The offender is willing and able to engage in such therapy. Further, Mr Visser opines that engagement in an anger management course would be of value to the offender. In the same vein, while in custody, the offender completed all four sessions of the Brief Intervention Clinic through Custodial Mental Health Services. There is some evidence that the offender is willing to address his mental health issues. As I have already noted, such rehabilitation is important in this case to reduce the risk of harm to the community.

Alcohol and/or drug use (s 33(1)(p) of the Sentencing Act)

88. The offender was not affected by drugs or alcohol at the time of the offending and does not have a history of recent alcohol abuse, nor of drug use apart from some cannabis use when he was younger. He has not drunk at all since the passing of his sister in 2018. However, he has reported a historic suicide attempt which involved consumption of MDMA.

Attitude to the offences and remorse (s 33(1)(w) of the Sentencing Act)

89. The offender did not deny the facts of his offending and demonstrated a degree of insight into his offending. The offender accepted full responsibility for his actions and felt he deserved the time he had spent in custody thus far.

90. He has his own explanation for and rationalisation of his behaviour, namely that he was unsure of the status of his relationship with the victim and was concerned for her wellbeing. This explanation is very difficult to match with the content of his texts and the substances of his actions. The offender’s lack of insight in this regard alone indicates a clear need for intervention through counselling and education. Nevertheless, the offender accepts that he caused the victim fear and should have walked away from the situation. His stated intention is to comply with the FVO and never contact the victim again.

91. The fact that the offender has entered pleas of guilty and not required the victim to go through the ordeal of giving evidence in a contested trial is a separate matter that can be taken into account in respect of remorse: see Cranfield v The Queen [2018] ACTCA 3 (Cranfield) at [34] and [36] (and the authorities there-cited).

Plea of guilty (s 33(1)(j) of the Sentencing Act)

92. The offender entered pleas of guilty to the offences at an early stage, before a brief of evidence was prepared. The Court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offence: s 35(3) of the Sentencing Act. If it does so, the penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act.

93. The applicable discount for a guilty plea is a matter of discretion: Cranfield at [37]-[38]. It is necessary to consider the particular circumstances in which the plea was entered. However, the utilitarian value of the plea is the primary policy consideration of the legislation: Cranfield at [38].

94. In the present case, it was accepted by the prosecution that a full discount of 25% would usually be granted in respect of such an early plea, which has a utilitarian value at its highest. However, some reliance was placed on s 35(4) of the Sentencing Act, which 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.

95. I discussed the applicable principles at length in DPP v Stewart [2023] ACTSC 252 at [90] and have applied them here without repeating them.

96. In respect of the aggravated threat to kill offence, while the case was strong, I am not persuaded it was overwhelmingly strong. The position is different for the aggravated stalking and breach of the FVO offences. The objective evidence obtained from the victim’s phone and the victim’s CCTV camera located at her house suggest that an acquittal was realistically unlikely for either of those two offences.

97. Accordingly, I will apply a 25% discount in respect of the aggravated threat to kill offence and a 9% discount for each of the aggravated stalking and breach of FVO.

Criminal history (s 33(1)(m) of the Sentencing Act)

98. The offender does have a criminal history. Although it was relatively limited, it was accepted that his history includes prior offences that are relevant to the present offending. I have taken the history into account in the manner described in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8. The offender’s prior criminal history does not mean that a longer sentence is to be imposed, but it speaks against leniency when compared with someone who comes to be sentenced as a person of prior good character.

Current sentencing practice (ss 33(1)(za), 34A(a) of the Sentencing Act)

99. As submitted by the Prosecution, ensuring consistency in sentencing practice relates to the consistent application of relevant legal principles. Current sentencing practice does not cap the upper nor lower ranges of a possible sentence: DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [83].

100. The Prosecution provided great assistance by way of a table of comparable cases. They include the authorities already discussed in these reasons when dealing with the objective seriousness for each of the three offences. Without repeating those authorities again, I have had regard to the sentences imposed in each of those cases.

101. However, and importantly here, the legislation providing for an aggravated offence when the conduct is in a family violence context only commenced on 10 August 2022. The previous authorities were not dealing with the aggravated offence in respect of the threat to kill and stalking offences, with higher maximum penalties applicable. An increase in the maximum penalty is an indication that the sentences for that offence ought to be increased: Muldrock at [31]. That is reinforced by the Explanatory Memorandum to the Family Violence Legislation Amendment Bill 2022 (ACT) where it was stated at 6-7: Setting higher maximum penalties for aggravated offences provides guidance to the courts and the ACT community about the seriousness of family violence offences compared to other offences. The higher maximum penalties will help to prevent family violence offending by deterring individuals from committing these offences. The penalties will also help to protect the community and victims from the risk of further harm from family violence offenders by allowing longer terms of imprisonment to be imposed and operate as a mechanism to publicly recognise the harm done by family violence offending.

102. Applying the above, the fact that these offences are the aggravated form with a higher maximum penalty means that the terms of imprisonment to be imposed on this offender will also increase from what may previously have been imposed in an earlier statutory context.

Breach of GBOs

103. Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT), the Court is required to cancel a good behaviour order imposed for the three prior offences, one of burglary, and two of intentional threat to kill. The Court must either impose the suspended sentence or re-sentence the offender.

104. The total sentence imposed on the offender in the Magistrates Court was eight months. This was comprised of three concurrent sentences: eight months for the burglary, and six months for each threat to kill. The sentences had been suspended upon the offender entering into an 18-month good behaviour order, and he had completed approximately 11 months of that sentence when the most recent offending occurred.

105. The matters relevant to this decision have largely been addressed above. I have accepted earlier in these reasons the various matters submitted to be relevant in respect of each sentence imposed in the Magistrates Court. They addressed the diagnosis of a major depressive disorder (now diagnosed as PTSD), a connection between the offender’s symptoms and the offences, the fact that a custodial setting would weigh more heavily on the offender and that he would be at an elevated risk of suicide in custody.

106. Given that it has been accepted the s 10 threshold (of the Sentencing Act) has been crossed in relation to the three offences for which the offender is being sentenced in this Court, I consider it an appropriate exercise of the Court’s discretion to simply impose the suspended sentence. In doing so, I have taken into account that the original offending is of the exact same nature and involve the same complainant. The current offences represent an escalation in the offender’s criminality, and there is little evidence of any rehabilitation (following engagement with Yeddung Mura and restorative justice) or insight gained between March 2022 and March 2023 when the offender was released on the suspended sentences.

107. The sentences must be imposed in a manner that preserves the concurrency ordered by the Magistrate: Barron v Laverty [2019] ACTSC 198 at [72]. Having regard to totality considerations and the matters referred to in relation to the offender’s very unfortunate subjective circumstances, it will contain a substantial overlap with the sentence I impose for the other three offences.

Disposition

108. The importance of these offences occurring in a family violence context must be emphasised. This is not the place to set out the worrying published statistics about family violence and the rate of victims killed at the hands of an intimate partner. It suffices to refer to what was said in Pasinis v The Queen [2014] VSCA 97 at [57]: General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.

109. Similarly, in Marrah v The Queen [2014] VSCA 119 at [25], the Court of Appeal stated: The gravity of the offending was aggravated by the fact that the applicant was at the time the subject of an intervention order, which he flagrantly disregarded. Offending of this nature is too often perpetrated by men whose response to difficulties in a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship.

110. And recently in this jurisdiction, in DPP v Murphy (No 2) [2023] ACTSC 277, Mossop J stated at [103]: ...More practically useful is the understanding that current sentencing practice recognises the significance of family violence offending, usually perpetrated by men upon women, and the social significance of deterring that conduct and protecting the community from such conduct.

111. Specific deterrence is a factor that will also carry emphasis here, particularly when the offender’s criminal history includes family violence offences, and he was on conditional liberty in respect of those prior offences when the current offending occurred. However, it is also evident from the material that the offender’s mental health and diagnosis of PTSD has played a significant role in his prior offending and in his current offending. Unless these underlying problems particular to this offender are addressed, there is a concern that the offender may repeat his history, notwithstanding the PSR author’s view that the offender was low risk of reoffending.

112. These matters all indicate that no sentence other than a term of imprisonment is appropriate. Further, the nature of the offending is such that an intensive correction order is not appropriate. In that regard, he was assessed as unsuitable for other reasons relating to his accommodation. It is clear there will need to be targeted intervention in relation to domestic violence and respectful behaviour, as well as ongoing treatment for the offender’s PTSD and associated depression issues.

113. The legislature has guided the imposition of a lengthy term of imprisonment by virtue of the objectively serious conduct involved here and the 13-year maximum penalty for an aggravated threat to kill, seven-year maximum penalty for aggravated stalking, and five-year penalty for the breach of the FVO. However, the principle of totality still operates, as to which, see O’Brien v The Queen [2015] ACTCA 47 at [26]. This offender’s very significant social disadvantage does reduce his moral culpability, which is reflected in a term of imprisonment that is both less than what otherwise may have been the case and with a longer period for which the offender is to be eligible for parole. The purpose of crafting the sentence in this way is to permit the offender sufficient time in custody to undertake effective intervention and then to demonstrate that compliance for a lengthy period under supervised parole conditions.

114. Finally, having taken an overview of the sentence structure as a whole, I have considered it appropriate to significantly adjust the concurrency for the individual sentences imposed.

Orders

115. The Court imposes the following sentence: (1) For the offence of making an aggravated threat to kill another person, contrary to s 30 of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 3248/2023), the offender is convicted and sentenced to a term of imprisonment of 4 years and 6 months, reduced from 6 years on account of the guilty plea, and backdated to commence on 30 March 2023. (2) For the offence of aggravated stalking, contrary to s 35 of the Crimes Act (CAN 3249/2023), the offender is convicted and sentenced to a term of imprisonment of 2 years, 8 months and 23 days reduced from 3 years on account of the guilty plea, to commence on 23 September 2026. (3) For the offence of contravening a family violence order contrary to s 43 of the Family Violence Act 2016 (ACT) (CAN 3260/2023), the offender is convicted and sentenced to a term of imprisonment of 2 years, 3 months and 9 days, reduced from 2 years 6 months on account of the guilty plea, to commence on 23 April 2028. (4) In relation to charge CAN 8771/2021, the Good Behaviour Order is cancelled and the suspended sentence is imposed, being a term of imprisonment of 8 months, to commence on 18 January 2030. (5) In relation to charge CAN 5495/2021, the Good Behaviour Order is cancelled and the suspended sentence is imposed, being a term of imprisonment of 6 months, to commence on 18 January 2030. (6) In relation to CAN 5496/2021, the Good Behaviour Order is cancelled and the suspended sentence is imposed, being a term of imprisonment of 6 months, to commence on 18 January 2030. (7) The total period of imprisonment is 7 years, 5 months and 19 days, commencing on 30 March 2023 and concluding on 17 September 2030. (8) I set a non-parole period of 3 years and 9 months, concluding on 29 December 2026.

I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam

Associate: Date: 23 November 2023