DPP v Miller

1. The participant comes before the Court at this time for finalisation of a review proceeding that arose out of an application by the prosecution for cancellation of his drug and alcohol treatment order (treatment order) pursuant to s 80ZE(1) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The treatment order has been cancelled, as of today, and this judgment provides the reasons for that decision, along with the determination as to finalisation of the review proceedings following cancellation.

2. From the outset it is relevant to observe that I am satisfied it is in the interests of justice to conduct a hearing for a review of the treatment order: s 80ZH(1) Sentencing Act. The participant’s engagement with the treatment order has been mixed, and an opportunity for review enables consideration as to the prospects of the order meeting its objects per s 80O of the Sentencing Act. It is also, of course, mandatory that a review occur where the prosecution bring an application for cancellation, as has occurred here: s 80ZH(4)(b) Sentencing Act.

3. In the proceeding of the review as it arises in the circumstances of this matter, the parties have been heard as to the cancellation application, and as noted already, a decision as to cancellation has been made. The cancellation was in accordance with ss 80ZE(1)(c) of the Sentencing Act. That is, on a basis that the continuation of the order is unlikely to achieve the objects of the treatment order. It follows that, as observed in R v Cook (No 2) [2024] ACTSC 27 at [10] as to a cancellation pursuant to s 80ZE:

[A] preliminary consideration is the extent to which there was compliance with the treatment and supervision part of the order. Having considered that, the court then turns to consider if it is appropriate in the circumstances to resentence. If it is not, the suspended portion is imposed.

Background

4. On 21 August 2023, Mr Miller was sentenced for family violence offences and for which a treatment order was imposed: DPP v Miller (a pseudonym) (Supreme Court of the Australian Capital Territory, Refshauge AJ, 21 August 2023).

5. The offences involved two offences of choking, strangling, or suffocating another person, contrary to s 28(2)(a) of the Crimes Act (1900) ACT (Crimes Act). This offence carries a maximum penalty of seven years imprisonment. The victims of that offending were the then partner of Mr Miller, and his then three year old son. The offending otherwise involved an offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act, and also carrying a maximum penalty of 7 years imprisonment. All of the offences were aggravated by involving family violence. The details of the offending are set out in the unreported decision, which is, with necessary redactions, attached as a schedule to these reasons.

6. The offending occurred in a context of substance use. Mr Miller had been drinking alcohol and was intoxicated at the time of the offending. It was otherwise also found by the sentencing judge that Mr Miller had a likelihood of a severe substance disorder at the time, and his dependency on alcohol substantially contributed to the offending.

7. The following sentences were imposed:

Charge number: CAN 1290/2021 24 months imprisonment, reduced from 32 months imprisonment on account of Choke/ suffocate/ strangle, aggravated by family the plea of guilty violence, of the child victim Charge number: CAN 1289/2023 18 months imprisonment, reduced from 24 months imprisonment on account of Choke/ suffocate/ strangle, aggravated by family the plea of guilty violence, of the adult victim Charge number: CAN 1292/2023 12 months imprisonment, reduced from 16 months imprisonment on account of Assault occasioning actual bodily harm, the plea of guilty aggravated by family violence, of the child victim

8. A total period of 48 months imprisonment was imposed for these offences.

9. After having regard to the time that Mr Miller had spent in presentence custody, a treatment order was imposed for a period of three years, 9 months, and 12 days. The treatment and supervision part of the order was for a period of two years, until 21 August 2025.

10. At the original sentence proceeding, Mr Miller was also sentenced for a breach by reoffending of a good behaviour order made on 19 December 2022 for family violence offences of common assault and for choking/strangling/suffocating another person. He was resentenced for those offences and periods of imprisonment, that had already been served, were imposed. Those sentences did not form part of the original treatment order that was imposed.

Cancellation decision

11. On 6 February 2025, the prosecution moved on an application dated 3 February 2025 for cancellation of Mr Miller’s treatment order. The application was opposed. Mr Miller maintains that he has a commitment to the order and his intentions to rehabilitate.

12. The application was brought pursuant to s 80ZE of the Sentencing Act, contending that: (a) the offender is unwilling or unlikely to comply with a condition of the offender’s treatment order: s 80ZE(1)(c) Sentencing Act; and/or

(b) the continuation of the treatment and supervision part of the order is not likely to achieve the objects of the order: s 80ZE(1)(d) Sentencing Act.

13. During the hearing of the application, the prosecution did not, sensibly, press cancellation pursuant to s 80ZE(1)(c), recognising that the participant remained willing to comply with the order and that there were prospects of compliance.

14. As to the continuation of the order not being likely to achieve the objects of the order, the prosecution submitted that the participant has being “languishing” on the order, and has not utilised the integrated treatment regime available to him. His progress on the order was submitted to be mixed, and an imperfect attempt at rehabilitation. While the non-linear nature of rehabilitation was acknowledged, it was submitted that the participant’s inability to progress beyond phase one of the order is indicative of the order being unlikely to achieve its objects.

15. On behalf of the participant, it was submitted that, overall, the trajectory on the treatment order had been “more positive than negative”. While it was conceded that the participant had been on the order for a lengthy period of time, it was submitted that challenges have occurred which delayed progress. The challenges that have arisen were explained with reference to evidence that the participant gave during the cancellation application.

16. The participant explained that he has had a lifelong struggle with Attention Deficient Hyperactivity Disorder (ADHD) and that, in the absence of securing employment, he has not been able to obtain the necessary medical assistance to secure appropriate medication. The participant explained that he has attempted to secure employment, though experienced setbacks due to illness and injury, but that he now has available to him a car which will assist in securing employment. He is committed to engaging in training programs and securing any employment that could be available to him. He is motivated to do so to fund the necessary medical treatment he requires, as well as to progress with his life goals. The participant acknowledged that he had made mistakes while on the treatment order, and that he has already received numerous opportunities. He expressed that the order had nonetheless already changed his life, and that he wanted to remain on the order with a view to completing it so that he could finish what he started. Consideration

17. Section 80ZE(1)(d) does not define ‘objects’ for the purposes of that subsection, or section. It seems to me that it relates to the objects of a treatment order as provided in s 80O of the Sentencing Act, which provides:

80O Objects of drug and alcohol treatment orders The objects of making a treatment order in relation to an offender is to— (a) facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and (b) reduce the offender’s dependency on alcohol or a controlled drug; and (c) reduce the health risks associated with the offender’s dependency on alcohol or controlled drugs; and (d) assist with the offender’s integration into the community; and (e) promote community safety by reducing the level of criminal activity caused by alcohol or controlled drug dependence in offender.

18. Further, in the absence of a legislated meaning in s 80ZE of the Sentencing Act, it seems to me that the objects of an order for a particular offender are capable of extending to the objects of an order as they relate to the individual participant.

19. In the case of Mr Miller, this has been to not only achieve progress with rehabilitation in respect to substance dependency, but to do so also in respect to family violence offending. As was observed by Refshauge AJ in the original sentence decision at 15:

[A] treatment order will require him to remain drug and alcohol abstinent. This must reduce the risk of reoffending, especially if, as likely, he is required during the treatment order program to undertake family violence prevention counselling.

20. Accordingly, Mr Miller has been required throughout the order to engage with both substance dependency rehabilitation, and a program in respect to family violence offending. His compliance with those requirements has been mixed (detailed further below at [30]-[33]) and his progress gradual. Nonetheless, it does not necessarily follow that the objects are of order are not likely to be achieved.

21. The order was demonstrating a reduction in his dependency on alcohol or a controlled drug, reducing the health risks associated with this, and, consequently, promoting community safety by reducing the level of criminal activity caused by such substances.

22. Nonetheless, the gradual progress on the order is such that it had reached a point that it can no longer be considered that a treatment order is facilitating the participant’s rehabilitation, nor assisting with his integration into the community. Rather, it is impeding it.

23. Mr Miller’s mixed compliance has meant that he has demonstrated a pattern throughout the order of periods without sanction points, then an accrual of points, and a provisional suspension of the order leading to a return to custody. Upon release from custody, he achieves a period of compliance, but then repeats the pattern of accrual of points leading to again being suspended. He experiences circumstances that limit the ability for a reduction in sanction points. The consequence of this pattern has meant that he has remained on phase one of the treatment and supervision part of the order, without any progression to a phase with less onerous requirements.

24. By way of example, the chronology relied upon by the prosecution in support of the application sets out the most recent issues of compliance. Mr Miller had nil sanction points accrued as at mid December 2024 and was within reach of moving to phase two of the program. However, by early January 2025, he had accrued sanction points for an occasion of missed urinalysis and for admitted use of methamphetamine. He also produced in this period a number of medical certificates due to injuries he had sustained through misadventure. At the time the cancellation proceeding commenced on 6 February 2025, the participant indicated an intention to secure employment. Thereafter, he engaged in some employment, but was finding it challenging to secure consistent employment. He also required medical assistance for further injuries sustained, and then accrued further points for an occasion of missed urinalysis. This led to a further provisional suspension of the order while the cancellation application hearing was pending. Throughout this period, Mr Miller was only able to demonstrate positive progress such that one sanction point was removed for his participation in an online substance dependency program.

25. In all of the circumstances, it has been increasingly difficult for Mr Miller to progress with his rehabilitation. The period of time he has had to achieve this through a treatment order has shown that a treatment order is not the mechanism that can best support Mr Miller to progress his rehabilitation. At this point, with his imperfect compliance limiting his capability to move beyond phase one of the treatment order, Mr Miller is being hampered in his progression of rehabilitation. The onerous requirements of phase one of the treatment order, in terms of the program engagement, urinalysis testing, case management, supervision, and court attendance requirements are a hindrance to achieving the original sentencing objective of rehabilitation.

26. Importantly, the onerous obligations of phase one have had a role in impeding his ability to engage with employment, which is a critical step for him to further progress with rehabilitation. While this circumstance is entirely of Mr Miller’s own doing, given his mixed compliance with the order, it means in effect that his real prospects of rehabilitation have not been able to be realised while subject to the treatment order. While a treatment order recognises and supports the non-linear nature of rehabilitation, it is apparent that a treatment order is no longer the mechanism by which Mr Miller’s rehabilitation can be facilitated.

27. This determination is also made with reference to the remaining portion available to him to complete the order, being that it ends in August 2025. While the treatment and supervision part of the order can seemingly be extended (ss 80X(2)(b)(i), 80ZH(6) Sentencing Act), such a course would not alter the impediments to rehabilitation that the order is causing for this participant.

28. It follows that the treatment order is cancelled pursuant to s 80ZE(1)(d) of the Sentencing Act on a basis that the continuation of the order is not likely to achieve the objects of the order.

Extent to which there was compliance

29. It is next to be considered, in determining whether it is appropriate in the circumstances to resentence, the extent to which there was compliance with the treatment and supervision part of the order.

30. As already observed, Mr Miller’s compliance has been mixed. With reference to the evidence adduced by the prosecution on the review, the following is of particular significance:

(a) He has engaged with urinalysis and returned negative results from urinalysis testing for solid periods, but also lapsed with substance use on occasions throughout the order. The most recent use of substances was at the start of January 2025. Mr Miller describes that over the Christmas/New Year’s period, he was not able to access his usual supports, and he lapsed; (b) He has engaged with required program supports, including with a day program, a residential rehabilitation program, counselling supports, and with online alcohol and drug rehabilitation programs for solid periods, but also had an occasion of being exited from a program for consuming hand sanitiser; (c) He has experienced various illnesses and experienced various injuries arising from misadventure, but has typically provided appropriate supporting medical certificates and information objectively confirming such health conditions, and their impact on his ability to comply with conditions; and (d) He has engaged with a family violence offender program, albeit he has not consistently attended and is not described as fully engaging with the program.

31. It is relevant to observe that Mr Miller has been afforded a level of tolerance for his imperfect compliance with the treatment order that has stretched the patience of this Court and the treatment team. A previous cancellation application, on 24 September 2024, was refused. It was not established that Mr Miller was unwilling or unlikely to comply with the order, or that, at that time, the objects of the order were not likely to be achieved.

32. Mr Miller demonstrated at that time, despite his imperfect compliance, a strong determination to meet the requirements of the treatment order. To his credit, he did for a time. He still did not though achieve perfect compliance such that he could progress to the next phase of the treatment order.

33. Overall, it is, as the prosecution submitted, with little able to be said against this on his behalf, an example of mixed compliance with the treatment order.

Appropriate in the circumstances to resentence

34. Despite the mixed compliance with the order, Mr Miller has remained committed to rehabilitation. While his progress has been gradual, and an example of the non-linear nature of rehabilitation, he has made rehabilitative progress. As far as this Court is aware, on the information provided for the review, he has not been convicted of further offences, which, importantly, includes that he has not committed family violence offences since February 2023.

35. For the purposes of the review, Mr Miller’s mother and a number of friends have provided letters to the Court in which they speak of his commitment to rehabilitation. His mother says that “from who he was at where he was at the start of the [treatment order] till now he’s making progress in every aspect of his life”. Mr Miller himself speaks of this in letters he has provided to the Court throughout the review. He says “[the treatment order] was to help change my life and it is doing just that, I am a totally different person now”.

36. The prosecution did not submit against a conclusion that it was appropriate in the circumstances to resentence. I am satisfied that it is appropriate to take such a course. Despite the cancellation of the treatment order, there has been rehabilitative progress, and rehabilitative intentions, that are appropriately considered in a resentence exercise.

Resentence exercise

37. The offences committed were serious examples of family violence. The seriousness with which the Court, and the community, regard such offending was reflected in the original sentence decision of Refshauge AJ. The other purposes of sentencing were also reflected, including the considerations provided by s 34B of the Sentencing Act and the effect on the victims from the offending. I agree with the observations made by his Honour.

38. The offending involved a concerning escalation of violence against an intimate partner and a child, and warrant deterrent sentences that denounce the conduct and bring accountability for such offending. It is clear that imprisonment is the only appropriate penalty.

39. I consider that the terms of imprisonment originally imposed are appropriate ones in all of the circumstances. I also agree with his Honour’s application of s 35 of the Sentencing Act as to the reduction for the plea of guilty and the totality principle. Mr Miller’s subjective circumstances are also set out in those reasons.

40. It follows that on resentence, a total term of imprisonment of 48 months is to be imposed. The main consideration is then whether to impose a nonparole period, or a combination sentence.

41. The prosecution submitted that a nonparole period be imposed. It was submitted that further time in fulltime custody is warranted to reflect the objective seriousness of the offending.

42. On behalf of Mr Miller, it was submitted that the Court consider imposing a partially suspended term of imprisonment, with effect from today. It was submitted that this will enable Mr Miller’s progress towards rehabilitation to be supported, with it meaning his housing can be retained and he can secure employment. It was submitted that such an order would also not impede the prospect of restoration of the family unit. That is, that the opportunity for Mr Miller to be restored as the primary carer for his son is informed, from Child and Youth Family Services (CYF) perspective, by Mr Miller’s ability to progress with and achieve rehabilitation in the community.

43. During the review process, the participant said in evidence that an extended period in custody would likely result in in his ACT Housing residence no longer being available to him, and he explained his concerns as to potential CYF action. While neither of these concerns were otherwise substantiated, and I am cautious to place weight on this as the prosecution raised, I do accept the submission on behalf of the participant that the loss of housing would undermine any progress towards or potential for rehabilitation. Secure housing is fundamental to progress with rehabilitation. It would be of significant detriment to the participant, and ultimately, the community, if the orders to be imposed undermined this rehabilitative foundation.

44. I also accept the submission made that the impact on Mr Miller’s child, and family, is of relevance. I am conscious that s 33(1)(o) of the Sentencing Act requires the Court to consider the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependents. On the information provided to this Court, a sentencing order involving further time in custody and parole would have the prospect of care and protection orders until Mr Miller’s son reaches 18 years of age being applied for. If granted, this could have the effect of his son being under the supervision of care and protection authorities until he reached adulthood. Such an outcome, while still a somewhat speculative one, is unlikely to be of the same benefit to the child as that of being raised by his father, provided his father achieves rehabilitation. The Court was informed that Mr Miller has had ongoing supervised contact with his son and that he is rebuilding his relationship with the child.

45. It is somewhat perverse that considering the effect on the offender’s son is of relevance in this sentencing exercise, in circumstances where it was Mr Miller’s harm to his son that has led to the need for a sentencing exercise. Nonetheless, s 33(1)(o) of the Sentencing Act is a relevant consideration in the circumstances of this matter. Mr Miller’s mother expresses that if “[the offender] goes back to jail that will affect [the child] very much and effect the rest of the family”.

46. It is otherwise submitted on Mr Miller’s behalf that he has mental health challenges that he is committed to addressing. In his evidence, Mr Miller expressed that the inability to secure necessary medication causes him to be like an “energiser bunny” which has impacted on his ability to meet treatment order expectations. He has insight into the importance of securing treatment in this regard, and gave evidence that he has sought to do this while in custody. His evidence was that he has not been able to secure access to a doctor while in the Alexander Maconochie Centre to receive his needed medications. Prior to his most recent entry to custody, he had engaged with his general practitioner for a mental health plan, and he intends to pursue this once in the community.

47. Mr Miller otherwise expressed a willingness to continue engagement with a family violence program, and that his non-completion of it to date reflects his challenges with illness and injury. He emphasised that he had routinely produced medical certificates as required.

48. I accept this. With reference to the chronology produced by the prosecution as to the participant’s engagement with the treatment order, it is apparent that he was seldom sanctioned for a failure to produce a medical certificate. It is also apparent that he was seldom sanctioned for failing to attend Court. It is to his credit that he sought to be accountable throughout the treatment order, indicative of his intention, motivation, and capability to rehabilitate.

Consideration

49. It appears to me that in all of the circumstances, the decision as to the orders to be imposed on resentence ought to be significantly informed by the sentencing purpose of promotion of rehabilitation, and, accordingly, Mr Miller’s prospects of rehabilitation.

50. Despite the mixed compliance, and the challenges and likely frustrations he has experienced throughout the order, Mr Miller has demonstrated a commitment to achieving rehabilitation. He had sought to meet his obligations under the treatment order to the best of his capacity and capability. I am satisfied he has a genuine intent to not return to being the person he was at the time of the offending, and that he strives to genuinely be a better father and member of the community.

51. I am conscious that a suspension of the term from today involves a level of leniency that, at least with respect to the objective seriousness of the offending, committed while on a suspended term, is not warranted. However, the solid basis for prioritising rehabilitation in the original sentence decision remains as relevant as it did at the time of the original imposition of the sentence. A continuation of incarceration at this time would only serve to undermine the progress that has been made towards rehabilitation, and ultimately be likely to be of even more detriment to the child victim from the original offending.

52. Mr Miller has, importantly, made substantial gains in his ability to be abstinent from substance use, and he has not been convicted of further offences. There is no suggestion of further family violence conduct. He has demonstrated a commitment to rehabilitation and has made solid progress in that regard. He has developed insight into his substance use and offending behaviour, and he has developed support networks to assist him with continued rehabilitation. He has protective factors available to him in terms of housing, a car, a capability to secure employment, and a supportive family.

53. All of this is to say that I am satisfied that Mr Miller maintains a genuine commitment for rehabilitation, and for addressing his criminogenic risks. While his progress towards rehabilitation has been imperfect, there has nonetheless been progress.

54. Accordingly, I am satisfied that it is appropriate to make a further order that prioritises the promotion of rehabilitation in the sentence to be imposed. A combination sentence, one that partially suspends the term from today, will give effect to this. Mr Miller will continue to be supervised and supported with his rehabilitation while in the community, while also having the deterrent effect of no prospect of leniency if he does not achieve that rehabilitation.

55. In so deciding, I emphasise that I have given careful consideration as to the role of community protection in the sentencing exercise. At the last sentence proceeding, the assessment was made that Mr Miller’s release from custody, with support through a treatment order, would not cause undue risk to community members, in particular, family members. The information known to this Court on the occasion of this sentencing proceeding is that the progress made towards rehabilitation is such that the risk of reoffending has not increased from that time, and, if anything, has reduced. There remains a prospect that such a risk can be ultimately ameliorated by the proposed orders.

56. At this point of Mr Miller’s rehabilitation, and recognising the sentencing purposes pursuant to s 7 of the Sentencing Act and sentencing considerations including s 34B of the Sentencing Act, I am satisfied that a sentence that involves a suspension of the term of imprisonment from today, with supervision, is appropriate. This will maintain the deterrence of the prospect of imprisonment from non-compliance, while giving effect to the progress with, and the prospects of, rehabilitation being achieved.

Time in custody

57. It is then necessary to consider the period of time that Mr Miller has spent in custody, prior to the original sentence decision, and during the treatment order. Being a resentence, these periods are to be taken into account pursuant to s 63 of the Sentencing Act. The following periods apply:

Period in custody prior to the original sentence imposed 2 June 2023 – 21 August 2023 81 days Periods in custody during the treatment order 1 December 2023 – 8 December 2023 8 days 5 April 2024 – 22 April 2024 18 days 2 May 2024 – 14 May 2024 13 days 13 September 2024 – 24 September 2024 12 days 25 February 2025 – 17 March 2025 21 days Total 153 days

58. In addition, Mr Miller spent an additional four months in custody prior to the original sentence imposition (2 February 2023 – 1 June 2023). While not time in custody attributable to the current offences the subject of sentence, as this period was related to time served on sentences not the subject of the treatment order, this period has relevance in an application of the totality principle.

59. Mr Miller also spent a total of 95 days in residential rehabilitation, which the prosecution accepts is a form of ‘quasi-custody’ for the purposes of s 63 of the Sentencing Act. I do not consider it appropriate to take the period in residential rehabilitation as according exactly with a period in a custodial environment, but I do take it into account in the exercise of the discretion as to when the sentence is to be backdated to commence: s 63(1) Sentencing Act.

60. I consider it appropriate to that the presentence custody be regarded as a period of 8 months, that is, the sentence is to commence on 17 July 2024.

Orders

61. For those reasons the following orders are made:

(1) Confirm the cancellation decision pursuant to s 80ZE (1)(d) of the Crimes (Sentencing) Act 2005 (ACT) made on 17 March 2025;

(2) Pursuant to s 80ZE(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) James Miller is resentenced.

(3) The conviction of James Miller of choke, strangle, suffocate another person (CAN 1290/2023) is confirmed and he is sentenced to 24 months imprisonment, to commence on 17 July 2024 and end on 16 July 2026.

(4) The conviction of James Miller of choke, strangle, suffocate another person (CAN 1289/2023) is confirmed and he is sentenced to 18 months imprisonment, to commence on 17 April 2026 and end on 16 October 2027.

(5) The conviction of James Miller of assault occasioning actual bodily harm (CAN 1292/2023) is confirmed and he is sentenced to 12 months imprisonment, to commence on 17 July 2027and end on 16 July 2028.

(6) The total sentence of 4 years imprisonment, commencing on 17 July 2024 and ending on 16 July 2028 is to be suspended from 17 March 2025.

(7) James Miller is required to sign an undertaking to comply with good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 3 years and 4 months, commencing on 17 July 2024 and ending on 16 July 2028, with the following additional conditions: (a) A probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.

(b) That he engage in drug and alcohol rehabilitation, and family violence programs.

I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: Schedule: Transcript of reasons of DPP v Miller (a pseudonym) (Supreme Court of the Australian Capital Territory, Refshauge AJ, 21 August 2023) HIS HONOUR: It does seem that the community has become more sensitive to the infliction of violence as unacceptable, especially family violence. Authorities, including the police, are less inclined to consider that violence against family members, including children and especially women, is not just a private matter but can be a crime and should be investigated and, where appropriate, prosecuted. This has developed over time, with great change even in the lifetime of those in this court today. Thus, for example, it was only on 17 August 2022 that this Territory took the step of making certain offences of violence, such as assaults, choking, strangling and suffocating, or assault occasioning actual bodily harm, to be more serious – that is, aggravated – when committed in circumstances involving family violence. The explanatory statement for the Family Violence Legislation Amendment Bill 2022, which introduced these changes, explained that the policy objective was: To ensure that domestic and family violence offenders are held to account and to help improve access to justice and remove trauma for victims in court proceedings. Indeed, it was only in 2015 that the offence of choking, strangling or suffocating was expressly made a crime: see R v Green (No 3). Indeed, as pointed out in R v Cowling, the court referred to the research mentioned in the explanatory statement to the Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015, which introduced that offence, when it was explained that: Non-fatal strangulation by a partner is one of the most important predictive risk factors for intimate partner homicide. In this context, James Miller has pleaded guilty to two offences of choking, strangling or suffocating another person, and assault occasioning actual bodily harm, all of which were aggravated by being offending involving family violence. On sentence, Mr D Armstrong, counsel for the Crown, tendered without objection the prosecution tender bundle. Behind the useful cover sheet, it included the committal documents and agreed statement of facts; Mr Miller's criminal history; a presentence report; a letter dated 21 June 2023 from Karralika Programs Inc, reporting on the completion by Mr Miller of the Matrix Program conducted by that agency; and relevant documentation as to the offences for which good behaviour orders were made, being offences of choking, strangling or suffocating another and common assault, which orders will be breached on conviction of Mr Miller for the current offences. The good behaviour orders were made where a sentence of imprisonment was suspended on conviction. Mr Miller has asked that a sentence of imprisonment be served by a drug and alcohol treatment order, 'treatment order', under section 12A of the Crimes (Sentencing) Act 2005 of the ACT, 'Sentencing Act'. Accordingly, on 19 May 2023 the court, in setting a date for sentence, directed the preparation of drug and alcohol sentencing assessments, 'suitability assessments', under section 46J of the Sentencing Act. Those suitability assessments were also included in the prosecution tender bundle, being the Drug and Alcohol Sentencing List suitability assessment dated 31 July 2023 of the Alcohol and Drug Service, with a case plan, and the drug and alcohol treatment assessment dated 2 August 2023 of ACT Corrective Services. Mr A Doig, counsel for Mr Miller, tendered, also without objection, a letter dated 1 August 2023 to the court from Mr Miller; a letter dated 7 August 2023 from the Supports and Interventions Unit of ACT Corrective Services; a letter dated 23 May 2023 from the Canberra Recovery Hub; an undated letter from [the adult victim], Mr Miller's partner; and a letter dated 8 August 2023 from Mr Miller's mother. Mr Doig also tendered without objection four certificates relating to work and courses undertaken by Mr Miller in custody. They were a certificate dated 3 March 2023 from Hepatitis ACT for Mr Miller's 'willingness to participate in hepatitis education and prevention', and three certificates of Access Recognised Training, one dated 9 May 2023 of completion of a group in the Responsible Service of Alcohol, one dated 8 May 2023 of completion of a course in Hygiene Practices for Food Safety, and one dated 21 March 2023 for participation in Safe Work Practices. None of the contents of any of this material was challenged. Both counsel provided targeted, thoughtful and very helpful written submissions, which they supplemented by oral submissions, assisting the court when engaging in respectful debate and answering the court's questions. From this material the court makes the following findings. The facts On 2 February 2023, Mr Miller was staying at the residence of his partner, [redacted], with whom he was in an intimate partner relationship. Also there was his son, [redacted], who was three years of age. Mr Miller had been drinking alcohol and was intoxicated. When he was talking to [redacted], the child could not understand what was being said to him; Mr Miller was slurring his words. Because of this, Mr Miller became highly agitated and aggressive. He grabbed [the child] and took him to the living room. [The adult victim] was concerned about what she could hear and went into the living room, to see Mr Miller holding [the child] by the throat, suspended off the ground. Attempting to stop that, [the adult victim] said words to the effect of 'You can't treat people like that. You can't treat children like that.' She then took hold of [the child] and carried him back to the bedroom and placed him on the bed. These were the facts that constituted choking, strangling or suffocating [the child], an offence involving family violence. Mr Miller came into the bedroom and grabbed [the adult victim] from the rear around the throat with both his hands, applying pressure. They both fell onto the bed, with [the adult victim] on top of him. Mr Miller then placed his arm around the front of [the adult victim’s] neck and applied pressure to her neck in a headlock pattern. She tried to release herself but was unable to do so because of shortness of breath. She did manage to escape from the hold ultimately. These were the facts that constituted choking, strangling or suffocating [the adult victim], an offence also involving family violence. [The adult victim] then left the residence and contacted police, who attended on her at the location where she had gone. She explained what had happened and showed the red marks around the front of her neck, which she described as 'sore'. Police attended the residence and, after being unable to negotiate a peaceful entry, they entered the residence, intending to arrest Mr Miller. He was arrested for family violence assault. While in the residence, police noticed that [the child] had an abrasion and bruises under his right eye. They also saw red and white marks on his chest and the right side of his neck. The white marks appeared to be the size of a finger, with redness around the white marks. Ambulance officers attended and asked [the child] if anything hurt, and he pointed to his chest and neck, as well as minor bruising on his right ankle. He was taken to The Canberra Hospital, where a medical practitioner noted signs of strangulation on [the child] and swelling to his eye socket, as well as further injuries to his chest and neck. These were the facts that founded the charge of assault occasioning actual bodily harm on [the child]. No permission was given for Mr Miller to strangle, choke or suffocate [the adult victim], [the child], or to assault [the child]. The proceedings As noted, Mr Miller was arrested on 2 February 2023. He appeared in the ACT Magistrates Court the next day and was remanded in custody. On 24 February 2023, the next appearance, he entered a plea of guilty to each charge, an early plea. A presentence report was ordered. He remained in custody. On 28 April 2023 the offences were found proved, but the proceedings were adjourned for sentence to 5 May 2023. On that day, however, Mr Miller was instead committed for sentence to this court, to appear in the Drug and Alcohol Sentencing List. He remained in custody. As noted above, he appeared in this court on 19 May 2023 and, after finding him eligible to proceed with preparation of the suitability assessments, they were directed to be prepared and the proceedings listed for sentence on 11 August 2023. Mr Miller has remained in custody and has now spent 200 days in custody. This will be taken into account on sentence. The offences The finding of the facts of the offences for which an offender is to be sentenced is only part of the necessary consideration for sentencing. The common law required the courts to have regard to the offence – Wong v R – and this is sometimes referred to as 'objective seriousness of the offence': Stanley v Director of Public Prosecutions (New South Wales). In this jurisdiction, the court sentencing an offender is required to consider the matters which are described as the nature and circumstances of the offence: section 33(1)(a) of the Sentencing Act. This includes two matters after the finding of the facts. The first is the maximum penalty for the offence. This is, of course, the legislated direction to the court really setting out the penalty for the worst category of the version of the offence to be committed and so is a comparator for the seriousness of the offence compared to other offences. It is also, taken with all the other relevant factors, a yardstick: see McKarrion v R. The other matter is how the version of the offence as it was actually committed is to be assessed for seriousness. This comes from the factors that courts over time have identified as aggravating or mitigating factors. This can also constitute some of the current sentencing practice, which is also required by the court to be considered by the court: section 33(1)(za) of the Sentencing Act. Choking, strangling or suffocating another person is an offence proscribed by section 28(2)(a) of the Crimes Act, which, where it is an aggravated offence because it involves family violence – section 48C of the Crimes Act – is punishable by a maximum penalty of seven years' imprisonment. It is thus a serious offence, often attracting a sentence of imprisonment, but by no means the most serious of offences in the criminal calendar. As a relatively new offence, there is not a great deal of jurisprudence on the offence. In R v Cowling, the court referred to considerations including duration of the offending, amount of force, level of obstruction of breathing, seriousness of injuries, and other relevant conduct. In R v Bonfield, consideration was given to what could be ascertained from a number of decisions considering the offence. In addition to the matters already mentioned, the other matters include whether threats were made, whether the victim lost consciousness, the use of aids such as a rope, cable or the like, or, importantly here, whether the victim was particularly vulnerable, like a child. All these make the offence more serious. The context will also be relevant, for although it is a family violence offence and so this cannot of itself aggravate the offence, it is an element of it. As it is an element of it, the offence may be used as part of a deliberate and sustained course of conduct designed to threaten or inflict harm and so exercise coercive control. The relevant feature is that [the child] was three years old, particularly vulnerable. The offence was more serious as Mr Miller picked him up by the throat, a serious way of choking, strangling or suffocating a small child. There was no precise evidence of how long the offence lasted, but it does not seem to have been for very long and there is no evidence that either victim lost consciousness or had particular difficulty in breathing, though [the adult victim] was clearly having some difficulty, described as 'shortness of breath'. The force was clearly significant, leaving marks, but not very serious, though it left marks on [the child’s] neck and there was some redness on [the adult victim’s] neck. These suggest significant application of pressure, especially on [the child]. The offending was only ended when [the adult victim] managed to take [the child] away into the bedroom and when she escaped Mr Miller's grip. While the prosecution submitted that there was a particular breach of trust in the offending against [the child] that is already an element of the offence because it was a family violence offence, which is the source of that trust. The presence of the child during the offending against [the adult victim] is also an aggravating factor: Talukder v Dunbar. It is also relevant, as accepted by Mr Doig, that Mr Miller had already been sentenced for a period of two months' imprisonment for offending in a similar way against another victim, but not a family violence victim. Assault occasioning actual bodily harm is an offence contrary to section 24 of the Crimes Act and in this case is aggravated as it involved family violence: section 48C of the Crimes Act. It attracts a maximum penalty of seven years' imprisonment, the same maximum penalty as the other offence. The nature of the injuries, being the actual bodily harm, is a very important factor: see R v Bloomfield. Here the injuries were mainly marks, bruises and abrasions. There were no breaches of the skin, although that may well have made it a more serious offence. Again, the youth and vulnerability of [the child] as the victim is an aggravating factor. It is a repeat offence in the sense that, as Mr Doig again conceded, Mr Miller had earlier also committed a similar offence but only common assault, where [the child] was the victim and for which he was sentenced to imprisonment for two months, though wholly suspended. Subjective circumstances The other important common law factor that a court sentencing an offender must consider are the subjective circumstances of the offender: Wong v R. There are a number of matters referred to in section 33(1) of the Sentencing Act, most especially paragraphs (j), (m) and (n) of the section, which approximate this consideration. Mr Miller was born 31 years ago, one of three children. His brother died in a cot death in infancy. His parents had what was described as an 'on-again off-again relationship', but there was no family violence, alcohol abuse or drug use in the family. He did live with his grandfather for two years. His father returned to the family when Mr Miller was beginning high school. He had an unremarkable childhood, though he did have problems at school when he was bullied. He left school after Grade 10, but, as is noted, completed a number of courses in the Alexander Maconochie Centre. Mr Miller has had two significant relationships. His first relationship was a very problematic one, where his partner was a drug user and very violent towards Mr Miller. The child, [redacted], was born of the union. Mr Miller became full-time father for some time, but Child and Youth Protection Services have now placed [the child] with Mr Miller's father. [The adult victim] has become engaged to Mr Miller. They have been in a relationship for 14 months. The current offence is the only offence committed against her, and her letter shows that she remains devoted to him. Mr Miller was first employed shortly after school as a mechanic, but he had no formal qualifications. He has had a number of employment positions, including installing solar panels and electrical work, employment in hospitality, though he did not complete an apprenticeship as a chef. He has worked night shifts in concreting and also engaged in roof-trussing, building house frames, formwork, steel-fixing and carpet-laying. Mr Miller has no current physical ailments or disabilities. His mental health, however, is more problematic. He has had a diagnosis of oppositional defiance disorder, attention deficit hyperactivity disorder, anxiety, depression, and post-traumatic stress disorder, for the latter of which he is prescribed medication. He has been attending a psychologist while in the Alexander Maconochie Centre. This does raise an issue of his mental health and the relationship with any sentence to be imposed. Mr Miller commenced smoking cigarettes at the age of nine years, I think it is. Nine years. Sorry, I'll just double-check. Eleven years of age. He now smokes his first cigarette as soon as he wakes up and consumes about 25 cigarettes a day. He first smoked cannabis at age 14 and continued throughout high school. Prior to his latest arrest, he was smoking a couple of cones through the day and six or seven before bed. He claims that he has not used in custody, and a negative urinalysis is some affirmation of that. He says that he no longer feels the need to continue using it. He first consumed alcohol when he was 16 years of age, and that escalated after he left school and entered the workforce. He would consume a six-pack of beer or half a crate a day. Prior to his arrest he had moved on to whisky and would consume one to two 750-mil bottles of whisky a day. [The adult victim] suggested that his consumption has been exacerbated by the tragedy of the death of his [redacted] when, as a result of intoxication, she fell, hit her head and died from a bleed to the brain. Mr Miller has said that he wishes to be able to support [redacted’s] children and this will require a significant effort by him, but it is a significant motivation. He has used cocaine and ecstasy drugs occasionally, but these are not a significant feature in his drug use or offending. Mr Miller has been seeing a psychologist, as noted above, but has not had much, if any, alcohol treatment. He was referred to SMART Recovery after his earlier arrest and did participate for a while. Mr Miller has a very short criminal history. It commenced in 2017, when he was convicted of drink-driving. In all, he has five convictions on his record. As has been noted above, he has a conviction for assault on [the child] and an earlier conviction for choking, strangling or suffocating another person, with whom he was not in a relationship. Though these two offences are of significance and must be treated seriously, Mr Miller is not to be denied of all leniency for a very limited criminal record. Mr Miller has expressed remorse, and his partner and his mother have confirmed that. He did enter an early plea. While not always an expression of remorse, it can be taken so in this case, with all the other factors. It is said that in the presentence report he denied the offending. What was actually said is: Mr Miller reported that he did not agree with the statement of facts due to being unable to remember the events. He expressed his belief that the factor contributing to the offences was alcohol consumption. Mr Miller reported that it is upsetting and devastating that this has happened. He stated that it is hard to believe, as he would not describe himself as an aggressive person. Mr Miller reported that he would not wish it upon either victim, as they are people he loves the most. He stated that this reinforces that he should attend residential rehabilitation. The first sentence is ambiguous as to whether he is denying the facts or simply confirming that he could not confirm or deny them or he has no memory of them. The second paragraph is clear: that he takes responsibility for the offending and is devastated that he could behave in this way. This is reflected in the ACT Corrective Services suitability assessment, where it is reported that he 'could not really agree or disagree with the statement of facts due to having had no memory of the incident'. This is not incredible. It did add there that he 'failed to accept responsibility for his actions', which is of some concern, but his letter to the court is more forthcoming. He did, it is further reported, try to shift some blame, but again, his letter to the court does show an acceptance of responsibility and of regret. Whether this is a better understanding of what he did or just an effort for the court is not entirely clear. There is also what has been said by his partner and his mother in their letters, where they do report remorse and acceptance of responsibility. They, of course, are also devoted to him. They also know him best. His acknowledgment is also reinforced by the efforts he has made to secure rehabilitation. He has completed the Matrix Program while in custody, reached out to other rehabilitation agencies, and ceased using drugs. He has had limited family violence intervention and did present at some stage with a victim mentality. He has also attended the Supports and Intervention Unit of ACT Corrective Services, where he is described as 'motivated to progress and has attended all sessions with enthusiasm'. He has 'demonstrated a strong ability to integrate these therapeutic knowledges into his active life and has consistently completed, after hours in his own time, outside sessions'. Mr Miller did engage in assessments for the suitability assessments. He was forthcoming with the information requested, and the obligations were explained to him. He appeared to understand the treatment order. It is noted that he commenced to make 'check-in' calls with Karralika Therapeutic Inc during his time in custody, described as 'an indication of his genuine desire to obtain a treatment order and engage in interventions to address his alcohol dependency'. He did ask questions and appeared to understand the answers. He displayed some insight into some of the contributing factors for his substance use and expressed a desire to change his lifestyle. Conditional liberty As noted, Mr Miller has, by committing these offences, breached two good behaviour orders made when he was convicted on 19 December 2022 for the offence of choking, suffocating and strangling another person and common assault on [the child] as a family violence offence. There are two consequences of this. The first is that the court must deal with the breach. Although the orders were made in the Magistrates Court, this court, as the sentencing court now, can deal with them. As they were made when a sentence of imprisonment was imposed, the order must be cancelled: section 110 of the Crimes (Sentence Administration) Act 2005 of the ACT. The court may then impose the original sentence or resentence the offender. The approach to such a decision has been set out in Guy v Anderson. It is appropriate to follow that. It is important to have the facts of those offences, and they have been included in the prosecution tender bundle. In brief, a resident of [redacted], who will be referred to as 'the victim', saw a neighbour's dog walking down the street, followed by a two-year-old boy. She picked the boy up in her arms, when Mr Miller approached her. He appeared to be drunk and demanded the return of 'his son'. While the victim was holding him, Mr Miller slapped the boy, who was [the child] and who started to cry. Mr Miller said, 'You ran out of the house. Why would you do that for?' The victim put [the child] on the ground and walked to her front door. Mr Miller exchanged some words and then approached her and grabbed her with two hands around her throat, choking her and forcing her to the ground. The victim tried to fight free but could not do so. The victim's partner then came out of the house and forced Mr Miller off the victim. After a short argument, Mr Miller walked away with [the child]. The police later arrived and arrested Mr Miller, noting that he was under the influence of substances. At the time, Mr Miller was subject to a good behaviour order made when he had been convicted of driving with a prescribed concentration of alcohol; thus, he was, for those offences, at conditional liberty. No action was taken on that breach, however. For these offences, Mr Miller was sentenced to two months' imprisonment for the common assault on [the child] and two months' imprisonment for the choking, strangling and suffocating of the victim, both immediately suspended, with good behaviour orders for 12 months. Since the pleas of guilty to the current offences have been entered, it will be inevitable that the good behaviour orders must be cancelled and either the original sentences imposed or Mr Miller resentenced. Given the similar nature of the offences breaching the orders, it is appropriate to impose the sentences suspended. The second matter is that the sentences to be imposed on Mr Miller will be more severe because the fresh offences were committed while Mr Miller was at conditional liberty. This means that he has breached one of the conditions by which he was entitled to be at liberty and not in custody, the condition being that he not commit any further offences. This will be taken into account in sentence. Current sentencing practice Consistency is an important sentencing value. Part of that can be identified if courts have regard to the sentences that are currently being imposed. This is the other part of current sentencing practice under section 33(1)(za) of the Sentencing Act, which was also addressed above. It is important to recognise that no sentence is a precedent: Lacey v the Attorney-General (Queensland). Similarly, other sentences do not set boundaries or cap the sentences to be imposed: Director of Public Prosecutions (Victoria) v Dalgliesh. Nevertheless, comparable cases can be of assistance: Barbero v R, Munda v Western Australia. Given that choking, strangling and suffocating another person are still relatively new offences, the jurisprudence is still growing. For example, there are still only 17 sentences recorded in the ACT Sentencing Database. Of these, just under half were sentences of full-time imprisonment and, of those half, were of between 13 and 18 months' imprisonment – that is, four cases. Neither counsel provided any comparable cases. The wide range of offending constituting assaults and assaults occasioning actual bodily harm make it difficult to identify appropriate comparable cases. Consideration The difficult task of sentencing is to bring all the relevant factors, many of which point in different directions, into a single sentence. This is referred to as the instinctive synthesis that the court must carry out. It is very helpful if the purpose of the sentence can be identified to show how the synthesis can be drawn together. This is greatly helped by the legislature having set out, in section 7 of the Sentencing Act of this jurisdiction, the purposes for which a sentence can be imposed. The seriousness of these family violence offences means that a significant level of punishment is required. This will also help to denounce the conduct of Mr Miller, making it clear that this is not acceptable in a civilised community. While somewhat debatable and dependent on the knowledge of others, some others may be deterred from committing such offences by the sentence imposed. Certainly, so far, Mr Miller himself has not been deterred, despite a penalty already for such offences. Nevertheless, it may be argued that a more severe penalty may become necessary in order to deter him, and that is to be taken into account also. Such a deterrence of Mr Miller and others, if it can be achieved, will help to protect the community, an important purpose of sentencing. A response that requires effort by Mr Miller, whether incarcerated or other effort, will help make him accountable. Since it is clear that much of the cause of his offending has been his intoxication, for him to rehabilitate is likely to be successful if he is prepared to do it, and the best protection for the community. It is also necessary to acknowledge the harm done to the victims. It does appear that [the adult victim], at least, would, as many victims do, want her to be acknowledged by Mr Miller's rehabilitation and the return of him to her as a partner on whom she can rely. Mr Miller pleaded guilty at a very early stage. This justifies a significant discount on sentence. He did not require the prosecution to prepare a brief of evidence. It is necessary to have regard to the nature and circumstances of the offences. Mr Miller's personal circumstances are a plea of guilty, the efforts he had made to address his criminogenic issues, the fact that he was at conditional liberty when he offended, that he has a history of violence and family violence, and his remorse. It is also relevant as to when he became a user of alcohol and the reasons for that. Nevertheless, having regard to all the matters and considering all the alternatives available, it is clear that no other sentence than a sentence of imprisonment is appropriate: section 10 of the Sentencing Act. Neither counsel took any other approach. Prosecution counsel did not submit that a treatment order would be an appellable error. There are, of course, five offences for which a sentence must be imposed: the two offences for which a good behaviour order will be cancelled, and the three current offences. A proper, discrete sentence must be imposed for each, and the term of imprisonment or other penalty must be carefully considered to ensure that Mr Miller is not punished twice. Thus, while the seriousness that is required when a sentence is imposed – because the fresh offences were committed while at conditional liberty must not become double punishment for offences committed and already punished. The court must also consider whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct as here in the current offences or contain common elements. That latter matter was not so relevant here. The length of the total term of imprisonment to be imposed must also be considered carefully to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed but no more than that, and that the total sentence is not excessive but will leave open the realistic prospect of reform and maintain the hope for Mr Miller to take an effective part in the community and realise his aims when he is released. This may result in what is seen as some leniency, in that some sentences are made concurrent, but, while the total criminality of Mr Miller is an important factor, his growing awareness of the need for rehabilitation and the steps he has actively taken is also important, as is the circumstances of his long and entrenched alcohol use; thus, it requires a sentence proportionate to his culpability for the crimes, the effect on the community, but also Mr Miller's subjective circumstances and the value of reform to both the community and himself. Mr Miller, please stand. I convict you of the first offence of choking, strangling or suffocating another person. I cancel the good behaviour order made on 19 December 2022 for common assault and confirm the conviction. I cancel the good behaviour order made on 19 December 2022 for choking, strangling and suffocating another person and confirm the conviction. For the common assault, I sentence you to two months' imprisonment to commence on 2 February 2023 and expiring on 1 April 2023. For the first offence of choking, strangling and suffocating another person, I sentence you to two months' imprisonment commencing on 2 April 2023 and expiring on 1 June 2023. For the choking, strangling and suffocating of [redacted], I convict you of that offence and I impose a sentence of 24 months' imprisonment commencing on 2 June 2023 and ending on 1 June 2025. That is to be wholly cumulative on the sentences for the earlier offences. Had you not pleaded guilty, I would have sentenced you to 32 months' imprisonment. I'm sorry. For the second offence of choking, strangling and suffocating, I impose a sentence of 18 months' imprisonment to commence on 2 March 2025 and expiring on 1 September 2026. That is to be cumulative as to 15 months on the first sentence for choking, strangling or suffocating [the child]. Had you not pleaded guilty, I would have sentenced you to 24 months' imprisonment. For the assault occasioning actual bodily harm, I sentence you to 12 months' imprisonment to commence on 2 June 2026 and end on 1 June 2027. That is to be cumulative as to nine months on the sentence for the second offence of choking, strangling and suffocating. Had you not pleaded guilty, I would have sentenced you to 16 months' imprisonment. You may be seated. Mr Miller has been sentenced now to a total of 52 months' imprisonment, of which he has now completed two of the sentences fully, leaving 48 months of which he is to serve from 3 June 2023 to 1 June 2027. The question now is how should that sentence be served. There are, under the Sentencing Act, a number of ways in which a sentence of imprisonment can be served, from full-time custody, to a non-parole period, to a suspended sentence, and other particular methods of sentencing, such as intensive corrections order and treatment orders. Mr Miller has sought that a treatment order be made, so it is appropriate that that be considered first. In order to do so, it must be established that Mr Miller is eligible for such an order. If so, the court must be satisfied that he is suitable, that it is suitable that the sentence of imprisonment be suspended and that there are suitable arrangements for the administration of the order. The eligibility criteria are set out in sections 12A and 80S of the Sentencing Act. Those in section 80S are really the question of suitability and suitable arrangements, so they can be considered if Mr Miller is otherwise eligible. The eligibility criteria in section 12A of the Sentencing Act will accordingly be addressed. Mr Miller has pleaded guilty to the relevant offences, all of which are eligible offences. The earlier two offences – the sentences imposed when the good behaviour orders were cancelled need no further be considered. Since these sentences have been fully served, they cannot and therefore should not be associated offences of the primary offence. For the primary offence of choking, strangling or suffocating another – in this case, [the child] – he has been sentenced to two years' imprisonment, which is more than the minimum period of sentence of 12 months for which an offender can be eligible for a treatment order. Together with the other associated offences, the total sentence is not more than the maximum eligible sentence, namely four years. The suitability assessment of Alcohol and Drug Services assess Mr Miller as likely to have a severe substance disorder. This is confirmed by his history of alcohol use, including as described in the suitability assessments of ACT Corrective Services, his criminal record, and the letters from him to the court, as well as that from his partner and his mother. There was no challenge to this finding. The court is satisfied that he has a dependence on alcohol and that this substantially contributed to the current offending. Mr Miller has lived in Canberra all his life and there is no reason to suggest that he will not be resident in the ACT until the end of his sentence. Mr Miller has signed the prescribed consent form for the making of a treatment order. The suitability assessments report that he has had his obligations under the order explained to him, that he has had an opportunity to ask any questions that he wishes to ask, and that he has been provided with answers which he appears to understand. He has in his eligibility assessment form confirmed these matters. The court is satisfied that he has had sufficient information to make an informed consent to the making of a treatment order and the giving of the consent, which he has done. Mr Miller is not subject to any other sentencing order within the meaning of section 12A of the Sentencing Act, the two sentences following the cancellation of the good behaviour orders having been completely served. Accordingly, Mr Miller is eligible for a treatment order to be made for him. The assessment of the Alcohol and Drug Services recommends that he is suitable. The suitability assessment of ACT Corrective Services recommends that he is not suitable. This is because of the following: - Criminal record and response to previous court orders - Mr Miller has been assessed as not suitable due to his lack of compliance with previous court orders. Although Mr Miller has previously complied with the supervision component of these orders, he has frequently reoffended while subject to these orders, including with significant family violence offences. This service is of the opinion that a treatment order may not deter Mr Miller from further family violence offences, placing the victims at risk. While Mr Miller's history does justify some scepticism, and this has been shown, it must be considered a little more carefully. Since his incarceration and subsequent to his reoffending, his period in custody has been productive. He is listed by his counsel as: - Having consistent weekly appointments with his supports and intervention clinician. - Pursuing medication for his ADHD. - On medication for PTSD, anxiety and depression. - Being employed in the kitchen. - Completed every course available. - Having a pending referral to undertake rehabilitation at CRS. - Being sober for six months. It is clear from the evidence, both of the agreed statement of facts for the current offences and the statement of facts for the earlier offences, as well as the other evidence, and his criminal record on which is shown two drink-driving offences of the five offences, that alcohol is a significant problem for him and, so far, associated with every family violence offence. He is currently sober. A treatment order will require him to remain drug- and alcohol-abstinent. This must reduce the risk of reoffending, especially if, as likely, he is required during the treatment order program to undertake family violence prevention counselling. In the court's view, Mr Miller is suitable for a treatment order. The case plan shows an appropriate and suitable program for him and, while he has breached good behaviour orders made when sentences of imprisonment were suspended, he is, in all the current circumstances, suitable for the sentence of imprisonment to be suspended while under a treatment order and, it is expected, while he is abstinent, especially from alcohol. Accordingly, it is suitable for Mr Miller to have a treatment order made for him to serve his sentence of imprisonment. The term of imprisonment commences on 2 June 2023, and so when it is suspended, as it will have to be under section 80W of the Sentencing Act, which requires it to be fully suspended, it will in fact be partially suspended because he has served part of the period of imprisonment, but this does not prevent a treatment order from being made, for the reasons set out in R v Crawford (No 1). Mr Miller, please stand. I make a drug and alcohol treatment order under section 12A of the Crimes (Sentencing) Act 2005 for you in respect of the primary offence of choking, strangling and suffocating another, namely [the child], of which you have been convicted and for which you have been sentenced to two years' imprisonment. The order is extended to the offences of choking, strangling and suffocating another person, namely your partner, and assault occasioning actual bodily harm, of which you have also been convicted and for which you have been sentenced, and which are associated offences of the primary offence. It is noted that convictions and sentences imposed for the primary and associated offence have been recorded and are hereby incorporated into the drug and alcohol treatment order in the custodial part of the order. The drug and alcohol treatment order is for three years, 9 months and 12 days from today, 21 August 2023, to 1 June 2027. The custodial part of the drug and alcohol treatment order for the primary and associated offences are hereby suspended under section 80W of the Crimes (Sentencing) Act 2005 of the ACT, from today, 21 August 2023, until the end of the sentence, namely 1 June 2027. Under section 80ZA of the Crimes (Sentencing) Act 2005 of the ACT, you are required to sign an undertaking to comply with the offender's good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 of the ACT from the day after the end of the treatment and supervision part of the drug and alcohol treatment order, 21 August 2023, until the end of the total sentence, 1 June 2027, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising him, including as to urinalysis, counselling and treatment. For the treatment and supervision part of the drug and alcohol treatment order, the core conditions of the order, set out in section 80Y of the Crimes (Sentencing) Act 2005 of the ACT, are hereby imposed. You are to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the treatment and supervision team, and obey all reasonable directions of any member of that team about where you reside, with whom you associate and your attendance from time to time. You are not to return a positive test sample under alcohol and drug testing and you are to comply with any directions of the court from time to time about attendance at court, in person or by electronic means. You are directed to attend the court registry before you leave the court precincts to sign a sealed copy of this order and an undertaking to comply with the order and any obligations under the Crimes (Sentence Administration) Act 2005 of the ACT for the period that this order is in force, and you are directed to appear in person on Friday, 25 August 2023 at 11.30 am. Remarks to participant Mr Miller, that's a lot of words, but you probably understand most of it. You have been in court before, but not very often, but most of it is about you and what you have done. It is important, however, that I explain what has been done. The behaviour that you committed, you may not remember it, but it is, as described and as agreed now and as found by the court, quite despicable behaviour. It's very bad behaviour in our community now. As a result, I have sentenced you to a serious term of imprisonment for the three offences. I mean, to pick up [the child] by his neck is, you understand disgraceful. THE PARTICIPANT: Yes. HIS HONOUR: If the alcohol is the precipitation for that offending, then let's get that addressed, and in that sense, if you are committed to addressing that, then you've come to the right place. This court will support you, and the professional people that support the court will support you. At the end of the day, however, only you can do this work. You are the one who has to change yourself. You are the one that has to come to terms with your use of alcohol and any other drugs that you use. You will be the person who has to change your life. What you need to do is look forward. You need to identify where you want to be, and that presumably is having a family, being a father to your child, and possibly further children, to get back into jobs and work, being useful in the community and doing things, not having to look over your shoulder, not in the community when people despise you and dislike you, and being a proper, useful, helpful, wonderful member of the community. If you work hard at this and achieve this to the extent that you can graduate from the supervision and treatment part of the order, then you are likely to be drug or alcohol and crime free. But you will have to work hard, and it will not be easy. It will not be difficult. It's helpful at the moment that you have spent six months, approximately, drug free or alcohol free, and you will now need to be abstinent. If you are breaching that, if you return a positive on drug and alcohol testing, then you will be punished. The punishment is, briefly, by the imposition of points. The points represent – one point is one day in custody. We don't usually sentence you to custody until you have accumulated seven points, and then you go into seven or 14 days' imprisonment. That's intended to be a punishment but also to be a reset so that you can come out and, if you wish, to continue on. If you commit other offences, then it is likely, and inevitable if you commit an offence that will justify a term of imprisonment, the order will be cancelled, and that's the end of it. So you need to focus carefully on doing the right thing, working hard and being abstinent and not committing further offences, but in addition, it's not easy. There will be case management. There will be counselling. There will be attendance at counselling and courses. You've done the Matrix. You know roughly what's likely to be involved. You will need to attend within 48 hours at the Canberra Recovery Hub and get to work in that, and being assessed, and entry into that program. There will be a whole program for you, and you will get a letter from my associate before you leave which sets out the broad outline. It will give you the names of your case managers and their telephone numbers, and you will need to be there, contact them and speak to them about that during the short period of time, and I expect to see you on Friday, when you can tell me that you've already made some contacts with the Canberra Recovery Hub and your case managers. There are a couple of things that I need specifically to explain to you. One is that if things get difficult, then don't hide it and don't run away. We have been able to return almost everyone who has absconded and then they have the full treatment order cancelled and you have to spend the rest of the three years and nine months and so on in custody serving that sentence. It will be difficult, but as you overcome challenges, you will get stronger and you will be able to build up a stronger ability to manage the issues that you need to deal with. If things are getting difficult, then speak to people. You know? Many males seem to think, 'Well,' you know, 'I can't tell anyone. I can't share, anyone. I can't explain to anyone because I'm a man and I'm macho.' That's not true. Tell people what's going on, how it's difficult, and they will support you. They can't do it for you, but they can support you, and often they can give you ideas and supports and people who can support you and help you doing this. You will see me, at least initially, every week, and you can raise things with me if they're difficult. I can assist you in dealing with that. We have some flexibility that we can use. Judges have quite a lot of power. I'm not, unfortunately, omnipotent and can solve everything, but there are things that can be dealt with and changed and addressed, and if you raise them and we deal with them, then they won't become festering, and problems, and you get into difficulties, and possibly get into problems and need to go back to prison and so on. We don't want that. The other thing that's really important is honesty. You won't succeed unless you're honest. First of all, be honest with your case managers and the court. Of course, it's an offence to tell lies to the court, but it's not helpful to tell lies or not tell the truth to your case managers and your counsellors. All right? It can be difficult. It can be difficult, but if you are not honest, then you will lose our trust, and if you lose our trust, it will be very difficult for us to assist you to ensure that you will succeed in this program, and it is likely that you will get into trouble. So be honest. But also, really importantly, be honest with yourself, right? It's very easy to kind of diminish what you do because if you face up to what you've really done, it can be very ashaming. Shame is a difficult emotion for you to deal with and so we try to say, 'Well, it wasn't that bad,' all right, because then you don't feel so shame. But shame is, at one level, a good emotion because it tells you this is something you don't want to do and you won't do it again. Be honest to yourself. Acknowledge that something that you have done is shameful, and recognise that, but move on. If you're dishonest, if you can't be honest with yourself, if you make light of it, if you say, 'Well, I don't remember what happened,' now you will understand that you have agreed that you picked up [the child] by his throat and squeezed it, right? That's very shameful, but we're moving on. This is something that you don't want to do again. You will recognise that for what it is so that you can grow, so that you can address what you need to do, so that you can move forward and achieve what you need to do. There's much more that you will learn. You're in this for two years, if you want to. Many people have succeeded and succeeded very well. It will be a long and difficult journey, but you can do it if you commit yourself to it and start off really working hard for it and undertaking the hard work that's necessary for it. I'm sure this can be done. I wish you every good luck. You may be seated.