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1. The offender in this matter, Mr Navid Kayvanshokoohi, has pleaded guilty to the following six offences: (a) Charge 1: Intentionally causing damage to property, contrary to s 403(1) of the Criminal Code 2002 (ACT) (Criminal Code) (CAN 5184/2024); (b) Charge 2: Making a demand with a threat to endanger the health, safety or wellbeing of another person, contrary to s 32(2) of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 5187/2024); (c) Charge 3: Aggravated furious, reckless or dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Road Safety Act) (CAN 5190/2024); (d) Charge 4: Trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code (CAN 5389/2024); (e) Charge 5: Making a demand with a threat to kill another person, contrary to s 32(1)(a) of the Crimes Act (CAN 8931/2024); and (f) Charge 6: A summary transfer charge of common assault, contrary to s 26(1) of the Crimes Act (CAN 8930/2024).

2. The offending relates to a short spree of offending (demands, damage to property and assault) from the morning to the early afternoon of 9 May 2024, culminating in three police pursuits. Blood analysis of the offending confirmed the presence of methylamphetamine.

3. The offender has elected to have the following charges arising from the same incident also taken into account under s 57 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act): (a) Minor theft, contrary to s 321 of the Criminal Code (CAN 8932/2024, attaching to Charge 1 as the principal offence); (b) Minor theft, contrary to s 321 of the Criminal Code (CAN 5186/2024, attaching to Charge 2 as the principal offence); (c) Possession of property suspected of being proceeds of crime, contrary to s 114C of the Crimes Act (CAN 6153/2024, attaching to Charge 4 as the principal offence); and (d) Driving under the influence of a drug, contrary to s 24(1)(a) Road Transport (Alcohol and Drugs) Act 1977 (ACT) (CAN 5191/2024, attaching to Charge 3 as the principal offence).

4. I will refer to those four charges as the Additional Offences.

Court’s sentencing task

5. The task of the Court is to sentence the offender by reference to the sentencing purposes set out in s 7(1) of the Sentencing Act. These include ensuring that the offender is “adequately punished” for the offence in a way that is “just and appropriate”.

6. Of equal importance among the purposes (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 victims of the crime and the community.

7. The Court must achieve those objectives in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

8. The mandatory relevant considerations are set out in s 33(1) of the Sentencing Act. These have been considered below to the extent relevant in the circumstances of this offender. A term of imprisonment is a sentence of last resort: s 10(2) of the Sentencing Act.

9. As to the task with regard to the Additional Offences, in the reasoning that follows, I have taken them into account in accordance with the approach set out in R v Campbell [2010] ACTCA 20, where the Court of Appeal stated at [46]-[50] (emphasis added): 46. Section 57(3) of the Sentencing Act further provides that any penalty imposed for the offence for which Ms Campbell appeared for sentence cannot exceed the maximum penalty for that offence, notwithstanding that the additional offences are taken into account. 47. Spigelman CJ has explained how a court is to take such offences into account in R v Barton (2001) 121 A Crim R 185 where (at 195 [64]) his Honour said: The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. 48. This is, obviously, constrained by s 57(3) of the Sentencing Act and by other relevant principles of sentencing, such as the principle of totality set out in Mill v The Queen (1988) 166 CLR 59. 49. When taking these offences into account, it is not necessary for the court to indicate precisely what effect the taking of them into account has on the sentence that is imposed. 50. When s 57(3) of the Sentencing Act speaks of taking the offences into account, it means taking them into account in the same way as other matters are taken into account for the purpose of sentence. No doubt it will generally have the result of increasing the sentence about to be imposed. It may, in some cases, have the result of altering the nature of that sentence. But apart from those considerations, the additional offences will no doubt be taken into account as part of the sentencing process in assessing the character of the offender and the prospects of rehabilitation. What is clear, of course, is that the offender is not to be sentenced for the additional offences. There may be occasions when it is appropriate for a judge to refer to the effect which [the judge] gives to additional offences taken into account in that way, but it is not obligatory for [the judge] to do so. Facts giving rise to the offences

10. The facts of the offences have been set out below chronologically, rather than the order in which they were charged on the certificate setting out the charges committed to the Court for sentence pursuant to s 90A of the Magistrates Court Act 1930 (ACT). The names of the victims have been anonymised.

Charge 5: Demand with threat to kill

11. At around 11:47am on 9 May 2024, the first victim, Mr T, was leaving his residence by car. The offender drove a Ford Ranger into his driveway, blocking his exit. The victim exited his vehicle and approached the offender. From his position about 3 metres from the driver’s side window, the victim observed the offender to have an object in his lap resembling a knife in a black sheath, about 30cm in length. The victim reported feeling scared for his safety.

12. The offender said to the first victim words to the effect of, “you slept with my wife, give me your money, I’m going to kill you”. The offender briefly drove away, but reattended the victim’s driveway three times over a period of 20 minutes. Each time, the offender used threatening language towards the victim, making him fear for his safety.

Charge 6: Common assault

13. At around 12:06pm, the offender stopped the Ford Ranger aggressively outside a construction site, with the passenger side window wound down. He yelled at a tradesman, the second victim, Mr K, making reference to the Deco Hotel and the victim’s family. The offender pointed a baton-like implement at the victim, who mistook it for a black handgun.

14. The second victim immediately ran from the location, jumping fences in an attempt to hide in fear of his safety. While fleeing, Mr K sustained a laceration above his right eye from jumping a fence. He ran to a neighbouring residence, where he contacted the police.

Charge 1: Property damage (minor theft taken into account)

Charge 2: Demand accompanied by threats (minor theft taken into account)

15. A short time later, the offender exited the Ford Ranger and approached the vehicle of a third victim, Mr G, while he was sitting inside. The offender banged on the side (of the vehicle) in an attempt to gain access to the rear tray toolboxes and break the rear window, but did not damage them. Mr G exited the vehicle and walked away. The offender took Mr G’s phone and keys from the vehicle.

16. The offender then smashed the passenger side window of the ute of the second victim (Mr K) and took Mr K’s phone and keys from inside the cabin of the vehicle.

17. Mr G returned to his vehicle and realised that his phone and keys were missing. The offender approached Mr G, demanding that he provide the passcode to his phone. Mr G was afraid that he would be assaulted if he did not comply, so he provided his phone passcode.

18. At about 12:20pm, the offender made a 4-second call from Mr G’s phone to Mr G’s employer. The offender then returned to the driver seat of the Ford Ranger and drove away. He still had possession of both phones but threw Mr K’s phone out of the window moments later.

Charge 3: Aggravated dangerous driving (driving under the influence taken into account)

19. At around 12:38pm, police observed the grey Ford Ranger bearing the same number plate as identified to police driving northbound on Northbourne Avenue. At about 12:40pm, police activated their emergency lights and sirens in an attempt to conduct a traffic stop. The offender failed to stop for police and turned left onto Macarthur Avenue in O’Connor. Shortly after, the police observed the offender throw a black iPhone out of the window of the Ford Ranger and the pursuit ceased.

20. Between 12:42 and 1:12pm, multiple police units sighted the Ford Ranger driving through O’Connor and Lyneham. At about 12:54pm, police activated their emergency lights and sirens in an attempt to conduct a traffic stop. The offender again failed to stop for police and continued through O’Connor, evading police.

21. At about 1:10pm, police sighted the Ford Ranger on Wattle Street in Lyneham and initiated pursuit of the vehicle. Police successfully deployed a tyre deflation device, causing damage to the rear left tyre on the vehicle. The offender continued driving, crossed over to the incorrect side of the road, turned right onto Brigalow Street in Lyneham and continued at speed, where it was intercepted at 1:12pm.

22. The offender was placed under arrest. Police searched the offender and found a small clip seal bag containing a clear crystalline substance suspected to be methamphetamine.

23. He underwent a breath-screening test at 1.37pm that was negative. Police believed the offender to be under the influence of drugs, having regard to his manner of driving, physical demeanour, slurred speech, mood swings and that he was falling asleep. A sample of his blood was taken and found positive for methylamphetamine.

Charge 4: Traffick in controlled drug other than cannabis (deal with proceeds of crime taken into account)

24. During a subsequent search of the Ford Ranger on 10 May 2024, police located approximately 50 grams of amphetamine, digital scales, approximately $10,000 in cash, large quantities of small clip seal bags and elastic bands, all consistent with the dealing in, or supply of, illicit substances.

Time in Custody

25. The offender was arrested on the day of the offending. He has spent 12 days in custody in relation to the present charges and was granted bail under strict conditions on 20 May 2024. This period will be taken into account in the sentence to be imposed.

Plea of guilty (s 35(3) of the Sentencing Act)

26. The offender entered pleas of guilty on 12 September 2024, at the tenth mention in the Magistrates Court, following negotiations but prior to preparation of the prosecution brief. The principles guiding the exercise of the Court’s discretion to apply a discount in respect of a guilty plea have recently been set out in Robertson v DPP [2024] ACTCA 26 at [23]- [26] and I will apply those principles without repeating them.

27. It was accepted by the prosecution that the pleas had significant utilitarian value, and that the offender should therefore be afforded a significant discount. Having considered the timing of the pleas and the fact that they were a result of negotiations (with the consequence that the offender received a benefit from such a process), the effect of the offending on the victims referred to in the facts above, and the level of seriousness of the offending as found above, I will impose a lesser penalty, with the applicable discounts being in excess of approximately 20% in respect of each offence, although not quite the maximum commonly applied, due to the fact that the pleas were negotiated.

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

28. The nature and circumstances of the offence call attention to the objective seriousness of the conduct in question. The approach is to consider where the facts of the particular offence and offender lie on 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].

29. The evaluation is “objective”, in that 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].

30. 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].

31. 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]. The maximum penalties, relevantly here confined to the terms of imprisonment, are as follows: (a) Damage property, make demand with threat, and traffic in controlled drug: 10 years each. (b) Aggravated dangerous driving: 3 years. (c) Make demand with threat to kill: 20 years.

32. The maximum penalty of 10 years’ imprisonment indicates the “relative seriousness” of the offence: R v Hoang [2015] ACTSC 138 (Hoang) at [34], applying Muldrock. Making a demand with threat to kill is therefore an offence of greater gravity.

Charge 1 – Property damage (minor theft taken into account)

33. Considerations relevant to the objective seriousness of the offence were discussed by Murrell CJ in R v Rosewarne [2021] ACTSC 217 (Rosewarne) at [120]. They include: (a) The motive for the damage or theft; for example, whether damage was malicious or occurred to facilitate a burglary; and (b) The extent or value of the damage.

34. Here, the motive was to facilitate a burglary, notwithstanding that the offender was under the influence of drugs at the time. The value of the damage to the vehicle (being the cost of replacing the smashed window) and the victims’ mobile phones and/or keys were not specified. I accept this would have been at some cost and inconvenience to the victims. Given the spectrum of conduct which falls within the offence, this was at the low end, but not the lowest end, due to this offence including a scheduled offence.

Charge 2: Demand accompanied by threats (minor theft taken into account)

35. In R v Goodge [2019] ACTSC 297 (Goodge), Mossop J stated at [29]: In assessing the gravity of the offence of making a demand with a threat, regard must be had to the nature of the demand, the manner and circumstances in which it is made and the nature of the threat to endanger the other person’s health, safety or physical well-being. …

36. In this case, the demand for the passcode to the phone that had just been taken was in person. The nature of the demand was specific, but the threatened harm was non-specific. Taking into account that the offence covers conduct that resists lawful apprehension or detention (s 32(2)(b) of the Crimes Act), as well as conduct that prevents or hinders a police officer from lawfully investigating an act reasonably calling for investigation (s 32(2)(c) of the Crimes Act), the conduct here fell at the very low end of the spectrum of offending.

Charge 3: Aggravated dangerous driving (driving under the influence taken into account)

37. In relation to the dangerous driving offence, the offence is already aggravated under sub-ss 7A(1)(a)(i) and (vi) of the Road Safety Act, being that the offender failed to comply, as soon as practicable, with a request or signal given by a police officer to stop the motor vehicle, and that the person was driving in a way that put at risk the safety of a vulnerable road user. As such, those matters are not separately considered because they are reflected in the higher maximum penalty which provides the yardstick.

38. Features relevant to this offence have also been discussed in Rosewarne at [122] and more recently by Taylor J in DPP v Clarke (No 2) [2023] ACTSC 261 at [38]. They are as follows: (a) the extent to which the public and other road users were put at risk, the number of them and their vulnerability (children, the elderly, frail or disabled); (b) the nature of the location where the driving occurred (residential, busy commercial, shared user zone) and the time of day or night of the driving; (c) whether there were any passengers in the vehicle who were put at risk, especially if there were young children; (d) the variety and duration of aspects of the driving that were dangerous and the extent to which it was a multifaceted and/or a lengthy course of conduct especially factors such as driving into oncoming traffic, onto footpaths or other places where pedestrians are, through stops signs, red lights or give way signs; (e) the distance driven and the period of the driving; (f) the speed of the vehicle and regard for the conditions; (g) whether the vehicle is engaged in a pursuit from police or fails to stop when directed to do so by police; (h) whether the offender was intoxicated by alcohol or drugs and the degree of intoxication; (i) whether there was competitive driving or street racing on a public road or showing off; (j) any damage occasioned to other vehicle[s], objects, houses or people; and (k) the extent to which police were put at risk when trying to terminate the driving.

39. Here, the offender was evading apprehension for his earlier offending. The offence occurred around midday, along the main roads of relatively busy roads, and in residential areas with two schools in the vicinity. Road users and pedestrians were potentially at risk although there is no mention of actual motorists or pedestrians taking evasive action. The offender here was significantly intoxicated.

40. Further, the count rolls up three failures to stop over the course of 34 minutes. That is not a short period when considering the ongoing exposure to risk. As described in R v Jones [2004] VSCA 68 (Jones) at [13], a rolled-up count is a collection of counts bundled into a single count. It is different from a representative count. The approach to be taken in such circumstances was explained by Refshauge J in R v Forrest (No 2) [2017] ACTSC 83 at [161]-[164], including the following: (a) The rolled-up charge comprehends a number of offences, but for sentencing purposes, it constitutes the one offence: R v Beary [2004] VSCA 229; 11 VR 151 at [14]. (b) That means only one sentence can be imposed, with a single maximum penalty applying for that offence. The sentence is not invariably the sum of the individual sentences that could have been imposed had the individual offences been separately charged, though that may be the case: R v Samia [2009] VSCA 5 at [12]. In that way, the process provides a considerable benefit to the offender: Jones at [13]. (c) The criminality encompassed in a rolled-up count is greater than that of an individual count: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73; 259 A Crim R 327 at [82]; Ly v The Queen [2014] FCAFC 175; 227 FCR 304 at [125]; R v Richard [2011] NSWSC 866 at [65(f)]. (d) The rolled-up nature may also have a bearing on other aspects of the sentencing process, such as accumulation and concurrency: R v De Leeuw [2015] NSWCCA 183 at [116].

41. This is the aggravated form of the offence that was charged. Taking into account the scheduled offence and the rolled-up nature of the charge, this was plainly a serious offence.

Charge 4: Traffic in controlled drug other than cannabis (deal with proceeds of crime taken into account)

42. Relevant factors were discussed by the Court of Appeal in Bui v The Queen [2015] ACTCA 5 at [41] and R v Zdravkovic [2015] ACTSC 393 at [24], endorsed on appeal in Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 (Zdravkovic) at [39]-[42]. Without repeating the authorities from which the factors are drawn, they include the following: (a) The role of the accused; those whose level in the operation is at a higher level of the hierarchy being more culpable. (b) While the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects. (c) The motivation for the offence, the purpose of profit being a more serious matter.

43. In relation to the first of those factors, in Zdravkovic at [40], the Court of Appeal stated that it may be more accurate to say that an offender’s role is to be determined by examining what is known about the offender’s conduct.

44. Considering each of those matters in the context of the present offending, the facts above did not indicate where the offender was in the higher levels of the hierarchy of any syndicate. For example, he may have been a street level dealer, in contrast to other cases such as R v Negah [2019] ACTSC 243 at [20] (Negah), comprising one of many small parts that made up the whole of the enterprise which typically relies on willing user-dealers to supply drugs to others.

45. The amount of drug possessed is not of chief importance (see Wong v The Queen [2001] HCA 64; 207 CLR 584 at [67]-[70]), but is nonetheless relevant to the objective seriousness: R v Bezan [2004] NSWCCA 342; 147 A Crim R 430 at [34]. 50g is at the lower level of the trafficable quantity range, which extends up to 3kg of methylamphetamine before it is deemed commercial (see Schedule 1 of the Criminal Code Regulation 2005 (ACT)).

46. The offender admitted that he had previously been involved in small-scale supply to fund his habit and due to this being linked with his personal consumption, although the objective seriousness of trafficking offences is not mitigated to any significant degree merely because the offence was self-induced by abuse of drugs: R v Dang [2005] NSWCCA 430 per Howie J at [32]. I do not consider the evidence went so far as to establish a profit motive.

47. Taking into account the features insofar as they are known, this offence also falls at the relatively low end of the hypothetical spectrum.

Charge 5: Threat to kill

48. The features that may be significant have been discussed in relation to Count 2 above. As I discussed in R v Watson [2022] ACTSC 95 (Watson) at [28]-[29], the same factors arise for consideration in considering the objective seriousness of the threat to kill.

49. Here, the threat itself was a bare (and spurious) threat, made in circumstances of anger, without detail or specificity. By blocking the victim’s vehicle from exiting the driveway and possessing a weapon, and returning three times, I accept that this would have caused great fear in the victim. The proximity was such that the offender was in a position of being able to carry out the threat and the presence of the weapon lent credibility to the threat. This is mitigated somewhat by the fact that the offender never left his vehicle (and there was no evidence the vehicle itself was being used as a physical threat to the victim) and the weapon on the offender’s lap was not used or brandished.

Charge 6: Common assault

50. In R v Kirkwood [2022] ACTSC 148, Kennett J stated in relation to common assault at [65]: Common assault can reflect a wide range of circumstances and encompasses both actual violence and threatened violence that causes the complainant to fear immediate harm. Where the offence is constituted by a threat of violence, the Court should consider the nature of the conduct that caused the complaint to fear immediate harm.

51. The conduct here involved a person unknown to the victim behaving in a volatile manner, yelling and pointing a weapon at the victim, thereby causing the victim to apprehend violence. It is less serious than actual violence being caused. I accept that the offender is not responsible for the laceration ultimately suffered by the victim and have taken the injury sustained into account as indicative of the degree of the victim’s fear, in that he did fear immediate harm, taking emergency measures to extract himself from the situation. Nevertheless, the conduct here falls at the low end of conduct covered by the offence.

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

52. There were no victim impact statements before the Court. To the extent that the agreed facts included the evidence of the fear of the victims, to which I have earlier referred, I have taken that into account. Otherwise, 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: s 53(1)(b) of the Sentencing Act.

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

53. Remorse can be a factor influencing the assessment of an offender’s prospects for rehabilitation: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. There was a letter from the offender to the Court in which many words of apology and embarrassment were written. He did not affirm that letter under oath in the witness box, however his statements were corroborated to some extent in one of the character references that was before the Court as well as in the report provided by a private rehabilitation provider, Connect Global, on 11 July 2024.

54. The offender had limited memory of the offences, due to his regular methylamphetamine use and psychosis leading up to and during the offences. He reportedly displayed some insight into the impact of his behaviour, stating that he was glad no one was injured as a result.

55. Insofar as ‘remorse’ is demonstrated through expressions of regret, I do not consider that it is of great weight here. I think the better indicator of remorse is probably what the offender has done after his offending, to bring himself out of the self-destructive spiral he was in and commit to rehabilitation. This is discussed separately below.

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

56. A pre-sentence report dated 14 November 2024 (PSR) was before the Court. The offender is now 30. He has been known to ACT Corrective Services since 2015 for previous offences and has struggled with a drug addiction for many years.

57. The offender had a difficult upbringing, the details of which were included in the PSR. However, he has a supportive mother and wife, both of whom provided affidavit evidence to the Court, which I accept. He has young children, and his wife is currently pregnant and due to give birth to their third child together (her fourth) in January 2025.

58. He also has a supportive former employer, who in a letter to the Court confirmed his willingness to employ the offender again. The offender (and his family) also has stable private rental accommodation.

59. The offender has a significant medical history, including treatment for cancer, injury in car accidents, an episode where he was beaten, and a number of mental health conditions, some of which relate to his early upbringing. In 2017, he was diagnosed with severe Post-Traumatic Stress Disorder (PTSD), major depression and anxiety. He reported experiencing psychosis at the time of the present offending. No evidence of psychotic illness was found following assessment upon his admission to custody. However, there are records indicating concerning behaviour while in custody when he was not cognisant of his surroundings and appeared to be experiencing hallucinations, which resulted in him being taken to hospital shortly before he was released on bail into a drug rehabilitation program run by Connect Global Limited.

60. The offender reported cocaine use from the age of 15, and methamphetamines from the age of 21. He used substances regularly for six months. After meeting his wife, his use decreased. He reported “occasional use”, which would escalate to “benders” lasting a couple of weeks or longer. While under the influence, the offender also reported gambling all funds available to him on poker machines, something he would not do when not using.

61. There were two current (November 2024) expert medical reports tendered, which broadly corroborated and expanded upon the contents of the PSR. The first was prepared by Dr Richard Furst, Forensic Psychiatrist. The second was prepared by Mark Podesta, Psychologist. I accept the contents of those reports. The key points concerned the diagnoses of multiple disorders, including substance use disorder, substance-induced mental disorder (drug-induced psychosis) and obsessive-compulsive disorder, along with depression and anxiety.

62. Dr Furst drew a causal link between the offender’s medical conditions and the offending. I accept this to be the case, which enlivens principles articulated in R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269 at [32], approved in R v Guode [2020] HCA 8; 267 CLR 141 at [8] and applying to the sentencing regime in the ACT: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [64]-[66].

63. In response to the current offending, between May and July 2024 the offender attended a residential rehabilitation facility operated by Connect Global Limited, for two and a half months, after which he participated with the Bail Safe program which allowed him to learn skills and coping strategies and the benefit of learning from others in similar situations. He also had access to regular counselling, group therapy and Narcotics Anonymous meetings. His twice-weekly urinalysis tests have all returned negative results. I have taken that into account under s 33(1)(t) of the Sentencing Act, as voluntary treatment undertaken for the condition that contributed to the commission of the offences.

64. He has expressed the desire to continue his treatment in the community and at home with his family. His treatment concludes on 29 December 2024. His wife has expressed her support of him remaining in the program until January 2025 and preparing him for the decrease in the level of support under the program, including through referrals to other services if needed.

65. He has also reported ceasing contact with antisocial associates. He and his wife have a small group of pro-social friends who are long-standing family friends. Two persons from his network provided supportive character references. He clearly has a number of connections in life who are committed to ensuring that he does not return to the point at which he committed the present offending.

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

66. The offender has been previously convicted in the Magistrates Court of 13 offences between 2015 and 2021, including multiple instances of driving while disqualified or licence suspended, possession of drugs and possession of prohibited weapons. His repeated offending, including one count of damaging property, has resulted in two separate breaches of good behaviour orders imposed in 2015.

67. He has also been convicted and sentenced in relation to 6 offences in New South Wales, including for possessing a knife in a public place and multiple counts of possession of equipment for administering prohibited drugs. There are also proceedings for drug related offences extant in the Waverley Local Court.

68. The offender’s prior criminal history does not mean that a longer sentence is to be imposed (Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478), but it speaks against leniency when compared with someone who comes to be sentenced as a person of prior good character.

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

69. I have taken into account a number of cases by way of comparison to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].

70. The prosecution helpfully provided sentencing statistics and referred the Court to a number of cases of varying degrees of comparability. Drawing from those statistics, for offences involving a demand with threat to kill or endanger life, sentences of imprisonment were frequently imposed. The cases discussed below have been of more assistance than the statistics, due to the additional details provided in explaining what subjective features fed into the sentence ultimately imposed in each case.

71. The prosecution did not refer to cases dealing with the common assault offence, presumably because the circumstances in which such an offence may arise are so many and varied.

Comparable cases dealing with demand with threat to kill offences

72. In R v Britt [2015] ACTSC 402, the offender demanded that the victim transfer ownership of a car, or alternatively money. The threat was, “You’d better be thinking more zeroes, a life is worth more than that”. The offender had taken the victim to the offender’s garage, forced a hacksaw against his chest and robbed him of his car keys. The offender has similar subjective circumstances in terms of substance abuse and mental health conditions, but unlike the circumstances of the present offender, he was in breach of a good behaviour order. As part of a number of sentences imposed, Penfold J imposed a sentence for the demand with threat to kill offence of two and a half years’ imprisonment.

73. In R v UG [2019] ACTSC 290, the offender was sentenced for damaging property, aggravated dangerous driving, making a demand with threat to kill, as well as two charges of common assault and one charge of possession of an offensive weapon. The threat to kill involved the offender threatening to kill a child if his partner did not comply with his demand to get into a car, after swinging an axe at her and rampaging through their house. The offence was aggravated by the element of family violence. The offender was intoxicated at the time, had a depressive illness and substance abuse issues. For the threat to kill, the offender was sentenced to 14 months’ imprisonment, reduced from 18 months on account of his guilty plea. For the damage property (comprised of damage to the house), the offender was sentenced to 6 months’ imprisonment, reduced from 9 months. For the aggravated dangerous driving offence, he was sentenced 9 months’ imprisonment, reduced from 12 months. The total effective term was 16 months’ imprisonment, suspended after 4 months on entry into a supervised good behaviour order.

74. In Watson, the offender was involved in the making of a demand for $25,000 with the threat to kill the victim’s housemate. The victim was trapped in a vehicle with the co-offenders, who possessed a sword and had shown the victim a video of another purported kidnapping. The offender provided the victim’s address to the co-offenders, drove them to that address, and received financial reward for her efforts. She was sentenced to 21 months’ imprisonment, reduced from 2 years and 4 months on account of her early plea, which was suspended upon entry into a drug and alcohol treatment order.

75. The offending in the present case is plainly significantly less serious than that involved in each of Britt, UG and Watson.

Damage property

76. In DPP v Campbell (No 2) [2024] ACTSC 105, the offender smashed a car window with a machete. The Court accepted it would have caused inconvenience and some cost. The victim was in the car at the time and the offender was trying to frighten him. The offender was on conditional liberty, had a background of significant disadvantage, a diagnosis of PTSD and depression, a drug addiction and an extensive history of similar offending. He was sentenced to 6 months’ imprisonment following conviction at trial.

77. In R v Dawson [2022] ACTSC 64, the offender smashed two car windows with garden shears while on a burglary spree. As the car was otherwise functional, the offending was assessed to be at low objective seriousness. The offender had issues with drug addiction, had compelling subjective circumstances and was on conditional liberty at the time. He was sentenced to 4 months’ imprisonment, reduced from 5 months on account of his plea.

Demand accompanied by threats

78. In R v McLeish (No 2) [2022] ACTSC 90, the offender demanded money and a mobile phone, pointing an object the victim thought was a gun through a window. There were children present. The offender’s motive was uncertain, he was on conditional liberty, there was an absence of reform, remorse or rehabilitation. The offender was sentenced to 10 months’ imprisonment, reduced from 12 months on account of his plea, and suspended after 56 days (the pre-sentence term) upon entry into a 24-month supervised good behaviour order with a community service work condition.

79. In R v Rogers [2021] ACTSC 355, the offender threatened his ex-partner while holding a gun and accompanied by another male. The offence was aggravated by the element of family violence. The offender had a drug addiction, and he had a history of trafficking and dishonesty offences. He was sentenced to 15 months’ imprisonment, reduced from 17 months on account of his plea, and the custodial part suspended upon entry into a drug and alcohol treatment order. Aggravated dangerous driving

80. In R v McConnell-Imbriotis [2024] ACTSC 319 (McConnell-Imbriotis), the offender was flagged by police for driving slowly but sped off when they tried to pull him over, driving over a concrete roundabout and through a red light. The pursuit was short, occurred in the early hours of the morning and involved only police vehicles. He had an extensive history of similar offending and had undergone an extensive drug rehabilitation program prior to being sentenced for the subject offences. He was sentenced to 10 months’ imprisonment, reduced from 12 months on account of his plea. His total effective sentence was suspended upon entry into a good behaviour order of 2 years and 2 months.

81. In R v Law [2021] ACTSC 351, the offender sped away from police through suburban streets on the wrong side of the road and through a red light and collided with another vehicle. He was a repeat offender and was disqualified and on parole at the time. He had an unremarkable childhood, a “very depressing” history with extensive driving offences and a dependence on methylamphetamines. He was sentenced to 15 months’ imprisonment, reduced from 18 months, which was to be served by a drug and alcohol treatment order.

Trafficking in controlled drug other than cannabis

82. In Lawrence v The Queen [2007] ACTCA 10; 1 ACTLR 158, the Court of Appeal was considering a sentence imposed for two offences against section 603(7) of the Criminal Code, at a time when the maximum penalty was the same as that applying here. In that case, the offender’s conduct was found (at [4]) to have arisen from “a relatively well organised drug distribution exercise”. He was sentenced to five years’ imprisonment and a non-parole period of 2 years, in respect of the count of trafficking in methylamphetamine, which had a total pure weight of 39.322 grams. The Court stated at [6] (approving the comments of the sentencing judge) and at [18]: 6. … his Honour was obviously drawn to his conclusion that: drug dealing is a blight upon the Australian community … the considerations of general deterrence require that a custodial sentence, a full-time custodial sentence, be imposed. … 18. … A person found in possession of 40 grams of methamphetamine, in the course of trafficking the drug, must be seen as committing a very serious offence, and the penalty must reflect this.

83. More recently, in R v Merrilees (No 2); DPP v Merrilees [2024] ACTSC 364, the offender was found to be a street level user-dealer who trafficked approximately 70g of cocaine. The offender was on conditional liberty at the time. The offender fled the country and achieved a degree of rehabilitation in that time. He was sentenced to 9 months’ imprisonment for the trafficking offence, within a total effective sentence of 3 years and 3 months.

84. In R v Williams [2022] ACTSC 72, the offender held a position of trust within the trafficking operation and was motivated by profit alongside his own addiction. There was 790g of methylamphetamine involved. He was sentenced to 3 years’ imprisonment, reduced from 4 years on account of his guilty plea, and placed on a drug and alcohol treatment order.

85. Again in McConnell-Imbriotis, the offender trafficked about 32g of methylamphetamine, with a proceeds of crime offence taken into account. He was sentenced to a term of imprisonment of 1 year and 8 months, reduced from 2 years on account of his plea, with the total sentence wholly suspended upon entry into a good behaviour order of 2 years and 2 months.

Other sentencing considerations – bail undertaken in quasi-custodial conditions

86. The offender sought that the Court take into account the very strict bail conditions that were imposed on him for a period of approximately 2 months, from 21 May 2024 to 13 July 2024, when he participated in a strict residential drug rehabilitation placement.

87. The principles applying to this consideration were set out in La v The Queen [2021] NSWCCA 136 at [43]-[45] (emphasis added): 43. A sentencing court is entitled to take into account any conditions of bail granted to an offender awaiting sentence where those conditions may be particularly harsh or restrictive. Such terms are often referred to as “quasi-custody”. Prior to a court taking into account conditions of quasi-custody as a basis for reducing a sentence, or commencing a sentence from an earlier date than it otherwise would have, there has to be an evidentiary foundation to establish the nature, kind and effect of any restrictions: see Bonett v R [2013] NSWCCA 234 at [50] where Adamson J said: “Whether restrictions outside of gaol amount to quasi-custody is a question of fact: see for example R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery- Parker JJ and R v Serratore [2000] NSWSC 696 per Kirby J at [31]-[35]. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing Judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However, in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing Judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to.” 44. The question of whether time spent in residential rehabilitation programs amounts to quasi-custody has been considered in a number of authorities including Kelly v R [2018] NSWCCA 44 and also in Small v R [2018] NSWCCA 290. At [37] of Small, Hoeben CJ at CL said: “37. Time spent in a residential rehabilitation program may constitute quasi-custody. Whether the conditions amount to quasi-custody is a question of fact. … A reduction in sentence does not depend entirely on whether the residential program has been productive nor the applicant’s motive for undertaking it. The rationale for the allowance is the need to factor into the sentencing exercise the restriction on an offender’s liberty during the period of the program. … … 39. The question of in what manner quasi-custody should be taken into account is a matter for the discretion of the sentencing Judge and a question of fact and degree. There is no mandatory requirement to accommodate quasi-custody by way of backdating, nor to provide reasons for not doing so, even if backdating may appear to be the preferable course.” 45. A range of factors which may assist an offender in establishing the onus of demonstrating that a particular rehabilitation program fulfils the description of quasi-custodial conditions has been identified in a variety of decisions of this Court. They were summarised in Kelly at [11].

88. The significance of the emphasised passages is to highlight the points of principle that I consider applicable in the present case.

89. The reference to the factors in Kelly v The Queen [2018] NSWCCA 44 is a reference to the following indicia at [11]-[13]: (a) Whether the course was residential; (b) Whether the environment is a disciplined one, and how strict that discipline is; (c) Whether the offender is subject to restrictions, and if so, the nature and extent of those restrictions; (d) Whether the time spent in rehabilitation has been productive; (e) The nature of the programs that an offender participates in during the period of rehabilitation; (f) Whether the programs are compulsory or optional; (g) Whether the person has a mobile phone or access to one, or access to the internet or other forms of communication; (h) Whether a person in able to travel in an unrestricted way from the facility, and if so to what extent and for what purposes; (i) Whether the person is entitled to receive visitors and, if so, whether there is any restriction on the visitors and the length of the visit; (j) Whether full-time or part-time employment is permitted, or forms part of the program; (k) Whether volunteering activities are permitted, and if so to what extent and for what purposes.

90. As with the statutory sentencing regime in NSW, such a consideration is not a mandatory relevant consideration, but it is a permissible consideration in the Territory, given that s 33(3) of the Sentencing Act makes it clear that the Court is not limited to considering only the matters prescribed in the statute. A failure of a court to take account of time spent in a residential program that qualifies as quasi-custody has been held to constitute an error in the exercise of the sentencing discretion: Renshaw v The Queen [2012] NSWCCA 91 at [28]-[29]; Reddy v The Queen [2018] NSWCCA 212; 86 MVR 96 at [28]- [34].

91. The evidence here included a report from Connect Global Limited. It addressed some of the matters set out above, the most significant being that the residential program provided 24/7 supervision, and that participation was required in all aspects of the program. The nature of the programs explained in the report was sufficient to indicate the range and comprehensive nature of the program. I would have been assisted to know whether the offender was able to travel in an unrestricted way from the facility and whether he had access to his mobile phone while at the facility, but that information is not fatal to the Court taking the program into account.

92. In addition, counsel relied upon the strict bail conditions, which required him to be under the supervision of Bail Safe Health Group Pty Ltd and which prevented him from leaving his place of residential accommodation except for the purposes of reporting to police, Corrective Services, attending conferences with his legal representative, attending court or obtaining medical treatment. That condition was in place until 8 November 2024. I agree that the offender’s liberty was significantly curtailed during his period on bail up until that date. He reported spending most of his time training and participating in boxing with a coach at his house. Fitness equipment is similarly something that is available to those held in custody, although they may not have the luxury of a personal boxing coach.

Licence Disqualification

93. Following the hearing, the Court received additional assistance from the parties in respect of the timing of an automatic minimum disqualification period of 12 months, which applies upon conviction pursuant to s 63(2)(b) of the Road Transport (General) Act 1999 (ACT) (General Act). No order is required for the operation of the automatic disqualification. A court order is only required if the Court is imposing a longer period.

94. Importantly, the disqualification takes effect from the date of conviction or finding of guilt, or a later date if the Court so orders: s 68 of the General Act. There is no power to backdate a disqualification period under the statute.

95. I do not consider it necessary to extend the disqualification period here. Having regard to the conduct giving rise to the disqualification, I consider 12 months is sufficient to serve the purposes of punishment and denunciation and specific and general deterrence.

Determination

96. In R v White [2023] ACTCA 35 (White), the Court of Appeal stated at [76]: It is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between sentences passed and the circumstances of the crimes committed: R v Scott [2005] NSWCCA 152 at [15]. …

97. Notwithstanding the application of the Verdins principles, my view is that the offences each require general deterrence. Given the offender’s criminal history, I also consider that personal deterrence is required. Accordingly, for each of the sentences save as to the common assault offence, I am satisfied that no penalty other than imprisonment is appropriate. The parties did not submit otherwise. The length of the term of imprisonment for each offence is shaped by the authorities referred to above.

98. In terms of the structure of the sentence, I am mindful of the comments of the Court of Appeal in White at [82] that offences committed in a “single drug induced criminal spree” should be taken into account through appropriate concurrency of terms of imprisonment, having earlier referred at [62] to the decision of Howie J in R v Jarrold [2010] NSWCCA 69 at [56], who made the point that the course of conduct principle does not automatically require concurrency of sentences: ... [S]entences are not to be made concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct. The question to be asked is, can the sentence for one offence encompass the criminality of all the offences? (citation omitted)

99. Having regard to the totality considerations outlined in O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26], the sentences will have a degree of concurrency to reflect the fact that there was a single course of conduct. However, they will also be partially cumulative, to reflect that there were separate victims and to give effect to the separate criminality of each of the offences.

100. The question then becomes how each term of imprisonment is to be served. In this case, the combination of the onerous bail conditions, and the evidence confirming the offender’s total compliance with those conditions, makes this a case where the offender has used the time between offence and sentence to his full advantage. Given the offending was sparked by a relapse, this may have been a case where I considered a Drug and Alcohol Treatment Order was appropriate. However, the offender’s participation in the residential program in the meantime means that the impetus for such an order falls away.

101. Had the conditions of quasi-custody not been imposed on the offender and complied with, the sentence to be imposed would have had an additional component of full-time custody to be served. However, having regard to those matters, there is a very strong subjective case for giving weight to the reformative nature provided by a sentence that reflects the 12 days already served but is otherwise suspended upon conditions.

102. The offender has been assessed as suitable for a good behaviour order with a medium level of intervention, with particular focus on his finances, illicit substance use and mental health. Whilst the offender was assessed as not suitable for a community service work condition as he had expressed that he did not want to participate in community service work, he has subsequently confirmed his willingness to undertake suitable work. I am not attracted to a condition of that kind for this offender, given his present program commitments, imminent increase in family responsibilities, and the author of the report’s recommendation of targeting areas that are risk factors.

103. A suspended sentence will enable him to complete the Bail Safe program, to get his mental health in order, to then obtain the employment that was anticipated in the evidence, to attend to his family responsibilities and to strive to be a better role model to his children, and a more helpful partner to his wife, than he has been in the past. Including here the sixth aspect of Verdins, which concerns the impact of imprisonment on the mental health of an offender, at this point, full-time custody would only send him backwards.

Orders

104. The orders of the Court are as follows: (1) For the offence of making a demand with a threat to kill another person, contrary to s 32(1)(a) of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 8931/2024), the offender is convicted and sentenced to a term of imprisonment of 8 months, reduced from 10 months 8 days on account of his guilty plea, to commence on 24 November 2024 and conclude on 23 July 2025. (2) For the offence of making a demand with a threat to endanger the health, safety or wellbeing of another person, contrary to s 32(2) of the Crimes Act (CAN 5187/2024), the offender is convicted and sentenced to a term of imprisonment of 6 months and 9 days, reduced from 8 months on account of his guilty plea, to commence on 1 March 2025 and conclude on 9 September 2025. (3) For the offence of aggravated furious, reckless or dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (CAN 5190/2024), the offender is convicted and sentenced to a term of imprisonment of 7 months, reduced from 9 months on account of his guilty plea, to commence on 1 July 2025 and conclude on 31 January 2026. (4) For the offence of trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code) (CAN 5389/2024), the offender is convicted and sentenced to a term of imprisonment of 1 year 6 months 21 days, reduced from 2 years on account of his guilty plea, to commence on 25 October 2025 and conclude on 15 May 2027. (5) For the offence of intentionally causing damage to property, contrary to s 403 of the Criminal Code (CAN 5184/2024), the offender is convicted and sentenced to a term of imprisonment of 4 months, reduced from 5 months 8 days on account of his guilty plea, commencing on 1 February 2027 and ending on 31 May 2027. (6) The total effective term of imprisonment of 2 years 6 months 8 days is suspended after 12 days, with the suspension to take effect on 6 December 2024, on the condition that the offender enter into a Good Behaviour Order for a period of 2 years and 7 months under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act) with the following conditions: (a) To be subject to the core conditions pursuant to s 86 of the CSA Act. (b) To complete the Bail Safe program currently being undertaken; (c) To be subject to the supervision of the Director-General of Corrective Services or their delegate, and obey all reasonable directions of that person for a period of 31 months, or such lesser period as deemed appropriate by the supervisor; (d) To supply samples of breath, saliva, blood or urine for alcohol or drug testing, if required by a corrections officer; (e) To attend assessments, programs and counselling as directed, particularly in relation to drug rehabilitation, financial counselling and mental health; and (f) To report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City on or before 4pm on Monday, 9 December 2024. (7) For the offence of common assault, contrary to s 26(1) of the Crimes Act (CAN 8930/2024), the offender is convicted and sentenced, pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT), with a good behaviour order imposed upon the undertaking of the offender to comply with the obligations under the CSA Act, and upon the conditions specified in order 6, for a period of 12 months from 6 December 2024 until 5 December 2025.

I certify that the preceding one hundred and four [104] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: