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[2026] ACTSC 188
Supreme Court of the ACT
2026-06-05
Baker J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v McHenry Citation: [2026] ACTSC 188 Hearing Date: 29 May 2026 Decision Date: 5 June 2026 Before: Baker J Decision: (1) For the offence of burglary (SCCAN2024/95), the offender is convicted and sentenced to 18 months imprisonment, commencing on 22 February 2026 and expiring on 21 August 2027 (2) The above sentence be suspended from today on the conditions that the offender enter into a good behaviour order with the following conditions: (a) The core conditions; (b) That the offender accepts supervision for the time deemed necessary by corrective services; and (c) That the offender engages in treatment as deemed appropriate by corrective services. Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – offender and victim neighbours – common assault and property damage taken into account – Bugmy and Verdins principles apply – significant childhood trauma – impact of trauma on psychological functioning – offender already spent 103 days in custody –suspended from date of sentencing Legislation Cited: Criminal Code 2002 (ACT) ss 311, 403 Crimes Act 1900 (ACT) s 26 Crimes (Sentencing) Act 2005 (ACT) Pt 4.4, s 10 Cases Cited: R v Campbell [2010] ACTCA 20 Bugmy v R [2013] HCA 37; 249 CLR 571 R v Verdins [2007] VSCA 102; 16 VR 269 Parties: Director of Public Prosecutions David Andrew McHenry (Offender) Representation: Counsel M Lucero (DPP) S Baker-Goldsmith (Offender) Solicitors ACT Director of Public Prosecutions Peter Agoth and Associates (Offender) File Number: SCC 99 of 2024 SCC 145 of 2024 BAKER J: Introduction
The offender, David Andrew McHenry, has pleaded guilty to one count of burglary (SCCAN2024/95) contrary to s 311 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 1400 penalty units, imprisonment for 14 years, or both. He now stands to be sentenced for this offence.
The offender also seeks that the following offences be taken into account pursuant to Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT): (a) One count of common assault (CC2023/11145) contrary to s 26(1) of the Crimes Act 1900 (ACT), carrying a maximum penalty of 2 years’ imprisonment; and (b) One count of property damage (CC2023/11147) contrary to s 403 of the Criminal Code, carrying a maximum penalty of 1000 penalty units, 10 years’ imprisonment, or both.
The offending
The offender and the victim were neighbours.
At around 3pm on 12 November 2023, the offender entered the victim’s home through an unlocked front door. The offender’s adult son was with him. Other members of the victims’ family were also at home at the time.
The offender went to the victim’s bedroom where the victim was asleep. The victim woke to the offender striking him on the head several times. The offender accused the victim of stealing his phone. Whilst this occurred, the offender’s son was standing at the victim’s bedroom door. However, there is no allegation that the offender’s son was involved in the assault in any way.
The victim tried to escape, by jumping out of his bed, moving over a table and running out of the bedroom. The offender grabbed at him, causing a light scratch to the victim’s neck. The victim then ran into the lounge room.
Once in the lounge room, the offender grabbed the victim and struck him in the head several more times. The offender’s son attempted to calm the offender down and get him to leave the house. The victim’s father also told the offender and the offender’s son to leave. The victim’s father warned the offender that he was going to call the police.
Eventually, the offender and his son left the house. The victim’s father called triple zero and reported the assault.
The offender returned to the victim’s home later that evening. He was yelling in the street, and waving a walking stick around. The offender used the walking stick to whip the flowers in the victim’s garden and hit the letterbox.
Police were called. They observed the offender holding a bent walking stick with no handle, a garbage bin tipped over, a pot plant laying on its side and the handle of a walking stick on the ground.
The offender told police that the victim had stolen his phone and called him a paedophile, which had triggered him. He said he would flog the victim every day. Police arrested the offender.
The offender subsequently participated in a record of interview on 2 January 2024, in which he told police the following: (a) He had left his phone on the coffee table at the victim’s home a few days earlier when he had gone to the victim’s home to retrieve a set of scales that he had lent the victim. (b) Once he got home and realised he had left his phone, he returned to the victim’s house. The victim’s father called his phone, but it was turned off and could not be located when the victim’s father and the offender searched the house. The victim’s father told the offender that the victim had probably stolen the offender’s phone. (c) He had purchased the phone using his mother’s inheritance money. He felt betrayed because he was on good terms with the victim’s family and the victim had previously stolen a phone from him a few years ago and the offender had given him a “second chance”. He also explained that the incident had taken place around the anniversary of his mother’s death. (d) In the following days, he purchased a cheap phone and used that to log in to his accounts on the missing phone. He saw that the victim had hacked into his accounts and reported to police that the victim had stolen and sold his phone. (e) He had gone to the victim’s house to tell them that he was going to go to the police station if his phone was not returned. (f) During the scuffle with the victim, the victim’s family’s three dogs attacked him causing bite marks, the victim’s girlfriend brandished a syringe at him and the victim’s father “jabbed [him] a few times in the chest” with a sword, leaving marks. He ran away from the house and the three of them screamed at him saying he was a paedophile. (g) Being called a paedophile triggered his complex PTSD and he went back a few hours later and used his walking stick to hit the mailbox and kicked over the bin. He said what he said about flogging the victim because he was angry.
The offender
The offender is 62 years old.
As a young child, the offender was exposed to parental drug and alcohol misuse, and family violence. He was emotionally and physically abused by his father. His sisters were sexually abused. He continues to feel grief from his inability to protect them. He is hypervigilant and has persistent invasive thoughts and flashbacks of his childhood trauma.
A report of Ms Edwige, psychologist, was tendered on behalf of the offender. In that report, Ms Edwige provided a comprehensive explanation of the long-term effects of the offender’s childhood. Ms Edwige expressed the opinion that the offender meets the criteria for Complex Post-Traumatic Stress Disorder-Severe (CPTSD-Severe), Major Depressive Disorder with Anxious Distress and Attention Deficit Hyperactivity Disorder (ADHD).
The offender told the Pre-Sentence Report (PSR) author that he has mobility issues resulting from a portion of his foot being amputated following a previous accident. He also disclosed long-standing symptoms of anxiety, depression, suicidal ideation and CPTSD, with Canberra Health Services confirming these diagnoses. The offender also advised that he had formal diagnoses of Borderline Personality Disorder and ADHD. The offender reported to the PSR author that he is in the process of applying for the National Disability Insurance Scheme (NDIS).
The offender disclosed to the PSR author that he has a history of problematic alcohol use beginning in his teenage years. He denied ongoing issues with alcohol. The offender also disclosed occasional cannabis use and denied using any other illicit substances. A urinalysis test on 10 November 2025 detected both alcohol and cannabis. There is no evidence that alcohol or any illicit substances contributed to the offending conduct.
The PSR author reported that the offender contextualised the offence within a long history of interpersonal conflict and disputes with the victims. He expressed a level of regret and indicated a desire to engage in restorative justice but seemed focused on “finalising the matter rather than recognising the broader victim impact”. I consider that the offender has limited remorse for the offences. Determination
It is necessary for the Court to assess the objective seriousness of the offences relative to other offences of this kind. Of most significance is the circumstances in which the offender commenced inflicting violence upon the victim. The victim was at home, asleep and vulnerable when the offender commenced his attack.
Nonetheless, there are other features which render the offending somewhat less serious than is commonly the case for offences of this kind. In particular, the offender did not break into or use force when entering the property; there was no weapon used; the offender acted alone; there was no significant damage to property, nor significant injury sustained by the victim. I am not satisfied that the offending was planned. The offender’s account to police, that he had attended the victim’s house to warn him that he was going to go to the police station again if his phone was not returned, was not challenged by the prosecution. I find that the offending was spontaneous and impulsive.
It was agreed by the parties that there was some degree of provocation but acknowledged that the provocation was separated in time from the offending and the offending was an objectively disproportionate response to the purported theft of the offender’s phone.
The prosecution has properly accepted that both Bugmy v R [2013] HCA 37; 249 CLR 571 and R v Verdins [2007] VSCA 102; 16 VR 269 principles are enlivened. I accept this concession. As Ms Edwige indicated in her report, the offender’s history of severe and cumulative trauma beginning in early childhood and continuing across his lifespan has profoundly shaped his psychological functioning. The long-term effects of that background have included the development of CPTSD. I am satisfied that these interrelated matters provide some explanation for the context in which the offending occurred. In particular, the offender’s spontaneous resort to violence is more understandable in view of this history. It follows that somewhat less weight should be given to the need for denunciation and general deterrence. It remains necessary, however, to consider the weight to be given to rehabilitation and the protection of the community.
In this respect, the offender has a criminal history across the ACT, NSW, Queensland and South Australia including dishonesty offences, non-compliance with conditional liberty and some offences of violence. However, there have been significant periods where the offender has not been dealt with by the criminal justice system. As the offender’s counsel submitted, these periods demonstrate that the offender “does have it in him to act pro-socially”. Further, as the offender’s counsel noted, the offender has lived on the same street as the victims for the two and a half years since the offending without further incident, and has successfully complied with onerous bail conditions during this time.
The offender was accepted into the Detention Exit Community Mental Health Outreach Program on 18 September 2025. The offender’s caseworker attended court for the proceedings on sentence, and has written a letter confirming his support of the offender remaining in the community. Ms Edwidge has recommended that the offender receive trauma informed counselling and psychiatric assistance. I am satisfied that with sufficient support, the offender has reasonable prospects of rehabilitation.
There is no dispute that the s 10 threshold is crossed, and that a sentence of imprisonment is appropriate in all of the circumstances. However, in view of the offender’s subjective case, and positive prospects of rehabilitation, it was conceded by the prosecution that it would be open to the Court to order that the offender serve a portion of the sentence in the community. The prosecution further conceded that the 103 days’ of full time custody already served by the offender prior to sentence is sufficient to meet the need to recognise the harm which the offending caused. I agree.
The offender pleaded guilty on the first day of the trial. However, I was informed that the matter was resolved the previous week, and the attendance of the jury pool and witnesses were not required. In these circumstances, I will afford a 10 percent reduction for the offender’s plea of guilty.
The offender will be sentenced to 20 months’ imprisonment for the offence of burglary, reduced to 18 months to take into account the offender’s plea of guilty. In setting this term of imprisonment, I have taken into account the offences of common assault and property damage, in the way outlined in R v Campbell [2010] ACTCA 20 at [46]-[50].
For the reasons outlined above, the sentence will be suspended from today, on condition that the offender be of good behaviour, and that he accept counselling and other treatment as recommended by Corrective Services
Orders
I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker. Associate: Date:
DPP
McHenry