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1. The offender, Tamara Nicholls (a pseudonym), is to be sentenced for one count of arson (CAN2023/9368), contrary to s 404(1) of the Criminal Code 2002 (ACT) to which she entered a plea of guilty on 14 March 2024. The offence carries a maximum penalty of 1500 penalty units, imprisonment for 15 years or both.

2. By the commission of this offence, the offender has breached three Good Behaviour Orders (GBOs) imposed in the ACT Magistrates Court on 16 December 2022. Accordingly, in addition to sentencing the offender for the arson offence, the Court must determine the action to be taken in respect to each of the breaches.

3. These proceedings have been adjourned on prior occasions because of the offender’s failure to engage with ACT Corrective Services to enable reports to be prepared. Whilst not ideal, the time taken to resolve these proceedings has provided the opportunity for the offender to demonstrate her capacity for compliance with bail conditions as well as her commitment to rehabilitation.

Facts of the offending

4. On 5 August 2023, a white Subaru XV station wagon (‘the Subaru’) was stolen from an address in Ngunnawal, ACT.

Background: 17 – 21 September 2023

5. At about 5:15pm on 17 September 2023, the Subaru was in the carpark of Bunnings Warehouse, Belconnen. The offender exited the store, got into and out of the rear passenger seat of the Subaru and then returned to the store.

6. Police attended the carpark and saw Mr B in the driver’s seat of the Subaru. Police directed Mr B to exit the vehicle. Instead, Mr B fled the carpark in the Subaru. In the process, he collided with parked cars and scattered items across the carpark.

7. The offender exited Bunnings and spoke to police about the Subaru.

8. At about 1:30pm on 21 September 2023, police attended an address in Higgins, ACT and arrested Mr B. Meanwhile, the offender approached the police cordon at the address and spoke to police and other occupants of the residence.

Arson: 21 September 2023

9. At about 5pm on 21 September 2023, police published a media release seeking the assistance of the public in locating the Subaru. Photos were attached of the Subaru bearing a yellow space-saver tyre and NSW registration plates.

10. NSW Police were intercepting telecommunications relating to Mr B, including content from the offender’s phone number.

11. At 7:37pm that same day, the offender called Ms P. They discussed Mr B’s arrest and the police media release, as well as having the following exchange: Ms P: And do you by any chance know where the car is because I know someone who wants to get rid of it. The offender: Um I’m going to, I’m going to. Ms P: You are? Perfect that’s great. The offender: Yeah it’s going to be done like very very soon cause I’m doing it to make sure it’s done. Ms P: Ok great. The offender: Because all of our prints and shit are in there. Ms P: Yep yep. The offender: And I can’t afford that so it’s gone very soon. Ms P: Yep yep ok thank god.

12. On 21 September 2023, the Subaru was parked on Boobialla Street, O’Connor, ACT, in view of a closed-circuit television (CCTV) camera.

13. At 9:04pm that day, Call Associated Data placed the offender’s mobile phone in O’Connor.

14. At about 9:45pm, the offender rode down Boobialla Street on a bicycle, stopped at the Subaru, and then rode out of view of the camera.

15. At about 9:49pm, the offender made two bright sparks at the rear passenger door of the Subaru. Seconds later, a large explosion erupted from the Subaru and flames formed which reached approximately twice the height of the car. The offender then ran from the area.

16. At 9:55pm, shortly after the Subaru had conflagrated, the offender called Ms B, Mr B’s mother. In the intercepted phone call the offender sounded out of breath and sirens could be heard in the background. The offender said, “I’m in Church Street, quick hurry I can’t believe youse made me do that like youse are fucked, fucked man I hate (sic)”. The O’Connor Uniting Church is about one kilometre away from Boobialla Street.

17. At 9:59pm, the offender called Ms B and said she was at Karri Street (which is one block from the O’Connor Uniting Church) and to hurry.

18. At 10:02pm, Ms B called the offender. Ms B told the offender to get on her bicycle and come to meet her. The offender said that she didn’t have the bicycle.

19. At 10:10pm, Ms B called the offender. The offender said she was at the Lyneham shops. Ms C was with Ms B at the time of the phone call and the following exchange was recorded: Ms C: They’re going to think it’s me [redacted]… Both of us are going to go down for it we went into the stupid street. Ms B: No we got proof that it’s not you cause we were at the servo and you’re on camera going to the toilet babe.

20. At 10:18pm, the offender called Ms B and said, “I have no face left you know, do you know that I caught fire you dumb cunts and you’re leaving me out here I’ll never forgive you [redacted], ever”.

21. At about 10:22pm, the offender was captured in CCTV footage walking on Foa Street, Lyneham, approximately 1.4 kilometres away from Boobialla Street. She was wearing a black singlet with white edging and a large white motif on the front depicting a silhouetted person slam-dunking a basketball.

Arrest: 22 September 2023

22. On 22 September 2023 at 5:38pm, Ms P called the offender. Ms P: I was just seeing how you went last night… is it gone? The offender: Done and dusted… so fucking hell nah probably [redacted] and that think it’s the best job they’ve ever seen but at the same time it was silly. I’ll explain it when I see you in person because you’ll be like what the fuck… It’s fucked up, absolutely fucked up I never never ever ever don’t do nothing if I say I’m gonna.

23. At about 6:15pm on 22 September 2023, police executed a search warrant at the offender’s residence.

24. The offender was present. She had a fresh red blistering injury on her cheek. While speaking to police, the offender applied foundation makeup to her face. Police did not observe the offender to have that injury when she spoke to police on 21 September 2023.

25. Police located the following items at the offender’s residence during the execution of the search warrant: (a) A damp black and white ‘Nike Air’ singlet with a silhouette of a person slam-dunking a basketball, located in the washing machine. (b) Medical supplies, including ‘Soov Burn’ spray-on cream for minor burns, opened swab packaging, a used gauze swab, opened Bepanthen antiseptic cream, a bottle of aloe vera cream and a small bag for medical items. These items were located on the bed in the offender’s bedroom. (c) A yellow ‘Ultra Gas’ disposable blow torch was located on a dresser in the offender’s bedroom. (d) A black and gold ‘Zico’ lighter was located in the offender’s bed. (e) A piece of paper with “4 Boobialla Street Lyneham” written in green and underlined. This was found on a table in a tent at the end of the driveway.

26. Police arrested the offender following the search on 22 September 2023.

Forensic evidence

27. The offender was extremely likely to be a contributor to a mixed DNA profile obtained from the handheld lighter found at the residence.

Medical evidence

28. The offender was examined by a forensic medical officer. The offender did not consent to an examination, however, the forensic medical officer was able to observe singeing to her eyelashes and eyebrows which was considered to be as a result of the application of thermal force.

Nature and circumstances of the offending

29. A consideration, as is required, of the nature and circumstances of the offence requires an assessment of the objective seriousness of the conduct. Consistent with observations made in this jurisdiction about the utility of references to “low”, “mid” or “high” range offending, I do not intend to plot the objective seriousness of the offending “as a point on a hypothetical range”: see DPP v Moala (No 3) [2023] ACTSC 306 at [22]. I will identify the features of the offending that inform the objective seriousness of the conduct.

30. The maximum penalty for this offence, being 1500 penalty units, imprisonment for 15 years, or both, as a “yardstick” is reflective of the seriousness of the offence. As observed in R v Booth [2004] ACTCA 21 at [26], citing Small (1980) 2 Cr App R (S) 25 at [26], R v James (1981) 27 SASR 348 at [351] and Dowell (1982) 6 A Crim R 113 at [116], “[a]rson is a very serious crime and the need for deterrence must generally be given substantial weight when an offender is sentenced”.

31. In R v Wrigley [2015] ACTSC 114 at [34], Refshauge J outlined the factors relevant to an assessment of the seriousness of the offence. They can be summarised as follows: (i) how the fire was lit (for example, whether an accelerant was used); (ii) whether the offending was intentional and the degree of premeditation or planning; (iii) the reason why the arson was committed; (iv) the degree of potential injury to life or harm to others; and (v) the extent of damage caused by the fire.

32. Whilst the way in which the vehicle was set on fire is not specifically identified in the statement of facts, the items seized from the offender’s residence strongly suggest that a disposable blow torch and/or lighter was used. Further, the offender referenced a “jerrican” when speaking about the offence with psychologist, Ms Vanessa Edwige. The CCTV footage depicted that within seconds of the offender making “two bright sparks at the rear passenger door” of the Subaru, a “large explosion erupted” and flames formed which were approximately twice the height of the vehicle. The speed with which the fire was generated and the rapid escalation of it observed in the footage, supports the offender’s reference to the use of an accelerant.

33. The content of the intercepted telephone communications leaves little room for doubt as to the intentional and premeditated nature of the offending. The offender advised Ms Edwige that she was coerced into the offending conduct by Ms B, claiming to have been “bullied and set up”. Similarly, immediately following the commission of the offence, the offender stated to Ms B, “I can’t believe youse (sic) made me do that”. Pressure from the offender’s associates may well have influenced her decision to commit the offence, however it is clear that she was herself motivated to destroy evidence, as was ultimately conceded by counsel on her behalf.

34. The offence was committed for the purpose of destroying evidence that might connect the offender and her associates to criminal activity. This is an aggravating factor.

35. The vehicle was unoccupied and whilst the offence did not immediately pose a threat to safety once ablaze the fire was entirely out of the offender’s control. The offender immediately left the area after setting the vehicle alight. The vehicle was parked in a residential street and the offence occurred at night. Fire is unpredictable and once lit, is not always capable of containment. Whilst the fire did not spread beyond the vehicle, this was a matter of good luck as opposed to good management. I am not satisfied the offending posed “no risk” as was submitted by counsel for the offender. As demonstrated by the CCTV footage, there were numerous people in their homes which were proximate to the vehicle. Residents could be observed moving out of their homes to watch the fire.

36. Whilst any potential harm to residents and their property did not eventuate, the circumstances of the fire as identified, do not permit a finding that the conduct posed no risk: see Porter v R [2008] NSWCCA 145 at [80] citing R v Baker [2000] NSWCCA 85 at [16]. The only individual harmed by the fire was the offender, who suffered burns to her face. The offender’s injury further demonstrates the unpredictable nature of engaging in this offence. The potential risk of injury to fire officers who attended the scene must also be recognised: R v Longmore [2018] ACTSC 298 at [41] and R v Chatfield [2021] ACTSC 352 at [44].

37. The extent of the damage caused by the offending is limited to that which was occasioned to the vehicle. There is no specific information before the Court about the condition of the vehicle after the fire, however after viewing the CCTV footage which depicted a significant blaze, I am satisfied that the vehicle suffered significant damage. The owner of the vehicle told police that it had been recently valued at around $30,000.

38. Whilst the offender was not charged with the theft of the vehicle, as a result of this offence the owner of the vehicle suffered the inconvenience of being deprived of the use of it. The victim informed police that they relied on the vehicle to travel to work and visit family interstate.

Subjective circumstances

39. The material before the Court included an Intensive Correction Order Assessment Report (ICOAR) dated 1 May 2025, a Psychological Report prepared by Ms Edwige dated 4 October 2024, a letter confirming the offender’s previous attendance at the Ngunnawal Bush Healing Farm dated 17 October 2024, a Court Duty Report dated 28 May 2024 and letters of support some of which were more recently provided. The Court also has correspondence from ACT Corrective Services, dated 11 October 2024 and 26 February 2025, advising of their inability to complete a Pre-Sentence Report and an ICOAR due to the difficulties faced with contacting the offender and her failure to attend scheduled appointments.

40. Of significance is that the offender’s 20-year-old daughter was killed in car accident in NSW on 20 April 2025. Her funeral was held on 6 May 2025.

41. The information which outlined the offender’s background and personal history was consistent across the various reports. That information is comprehensively recorded by Ms Edwige. The material allows the following matters about the offender to be observed.

42. The offender is a 41-year-old Wiradjuri woman born in Cowra, NSW. She reported an unstable childhood, marred by exposure to domestic violence and excessive alcohol consumption. One of her three siblings committed suicide 11 years ago. She reported maintaining close and supportive relationships with her remaining siblings and her parents.

43. When the offender was four years old, her family relocated to Queanbeyan, NSW before moving to the ACT approximately a year later. The offender reported that her father was an alcoholic who consumed alcohol every day. She also recalled that he smoked marijuana when she was a child. The offender stated to Ms Edwige: Dad was extremely violent towards my mum. The number of times I had to jump out of the window to get help. The violence was all the time. He was cruel to my mum. Mum went to hospital a few times for her injuries. Mum would escape to refuges for a couple of days and we would stay there too. The police would always come to our house. Dad was arrested. Dad did gaol. Last time was when I was five or six when he went. It was horrible.

44. The offender informed Ms Edwige that her father “would belt [his children] all the time”, as well as subjecting them to verbal abuse. The offender detailed a specific incident where her father threatened to kill her following an argument between her parents. She stated that he chased her with a knife before grabbing her by the hair and dragging her across a road. She also recalled a home invasion arising from her father fighting with people in the area. She was assaulted during the home invasion which led to a broken collar bone.

45. The offender recalled that she tried to avoid being at home and instead began associating with other young people who were engaged in anti-social activities. She reported being sent to live with her grandmother for a short period by the Department of Child Services “after being flogged by mum”. She left school at the end of Year 10 to commence a hairdressing apprenticeship.

46. When the offender was 16 years old, she went to live with her 19-year-old boyfriend with whom she stayed for approximately 18 months. She later went to live with a friend on the Erambie Mission, she said at this time she was “drinking all the time and smoking pot”. She then met another partner and they lived together in Batemans Bay at which time she fell pregnant with her first child. She reported that the father of her first child was physically abusive and she was fearful of him. On two separate occasions she moved to a new town with her young daughter in an attempt to escape him however he followed on both occasions and they eventually recommenced their relationship. They went on to have another two children.

47. The offender’s brother committed suicide when she was 28 years old. She reported this event to be extremely difficult for her.

48. While the offender, her partner and their three children were living in Canberra, she reported that her partner began dealing crystal methamphetamine. She stated: Then our whole life changed. The beatings got severe. He took all of our savings and I had to go on the dole. Didn’t have a criminal record until I was 31. I didn’t get the right supports after he left. Started hanging around the wrong crowd. I was crying all the time… the ice stopped me from crying.

49. Soon after, the offender spent nine months incarcerated in NSW. After her release, she connected with a trauma counsellor, Ms Tanya Keed, who encouraged her to become a part of the Culture Talks program. [Redacted]. In January 2024, a former client with whom she had become close friends, physically and sexually assaulted her. The alleged offender is currently in custody in the ACT awaiting trial and the offender intends to leave Canberra when he is released.

50. The offender has been in an “on and off” relationship for the past four years. She described this relationship as “toxic”.

51. The offender has some employment history. She intermittently worked as a hairdresser between 1999 and 2006. She was later employed at a hotel for three years and completed a Certificate II and III in business and a Certificate IV in training and assessment. As stated above, [redacted] from 2019 until 2022 and has completed her Certificate III in community services. She has recently commenced her Certificate IV in drugs and alcohol. She is currently working one day per week with a program aimed at supporting women that have experienced sexual assault and domestic violence.

52. The offender began smoking marijuana and drinking alcohol at 14 years of age. She reported having not used marijuana for 11 years but that she continues to drink alcohol every second day. She experienced withdrawals when she does not drink. She began using methamphetamine at 31 years of age and stopped using it when she was 36 years of age. She has previously engaged in drug and alcohol counselling through Winnunga Nimmityjah Aboriginal Health Service, the Ngunnawal Bush Healing Farm and the Court Alcohol and Drug Assessment Service (CADAS).

53. The offender was injured in an accident on 29 August 2024 which led her to be hospitalised for several weeks. She suffered broken ribs, a collapsed lung and damage to her spleen. She has previously been diagnosed with depression and advised that she continues to engage in counselling with Ms Keed. She has experienced suicidality and identified that some of her previous driving offences resulted from a failed suicide attempt.

54. The most recent ICOAR recorded the offender’s response to supervision as “varied”. The offender is currently being supervised by ACT Corrective Services on a NSW Conditional Release Order dated 25 March 2025. The report confirmed that the offender’s eldest daughter died in a car accident in April 2025. The report recorded this event to have taken a “significant emotional toll on Ms [Nicholls] and her family”.

55. To the author of the ICOAR, the offender expressed concern as to her capacity to comply with such an order. She also reiterated her fear of the alleged perpetrator of her sexual assault being released from custody and her intention to leave Canberra if this occurs. Drug testing performed in February and March 2025 returned negative results. The offender tendered a report which recorded a negative result for illicit substances from a urinalysis performed on 29 April 2025.

56. The ICOAR detailed that for the past 12 months the offender has [redacted]. The offender set out her plans to commence study to attain a diploma in counselling focussed on supporting victims of domestic and sexual violence. [Redacted]. Ms Keed also expressed to the author of the report the enhanced stability she had observed in the offender’s life over the past 12 months.

57. Ms Keed’s support for and belief in the offender’s capacity for reform was confirmed in a letter she authored in October 2024. The letter attested to the efforts in which the offender has engaged towards addressing her drug and alcohol use as well as her academic achievements including the award of a certificate of excellence in the attainment of a Certificate III in Community Services. Ms Keed expressed the view that the offender was firmly focused on providing a positive parenting environment for her children and positioning herself to be meaningfully employed. In a further letter provided by Ms Keed on 8 May 2025 she confirmed that which she stated in her October 2024 letter, as well as outlined several more recent initiatives the offender has been involved in including [redacted].

58. The ICOAR detailed several programs that the offender has successfully completed since 2022 to address her drug and alcohol use. Ms Keed confirmed that she did not have any current concerns in relation to drug or alcohol use by the offender. The ICOAR recorded a positive urinalysis result in 2024 for methamphetamine use which the offender initially attributed to a weight loss drug, though later admitted was methamphetamine use after the alleged sexual assault against her.

59. The ICOAR assessed the offender to be at “medium” risk of reoffending and suitable for a “medium” level of supervision. The factors which presented risk were listed as “the absence of conventional employment, anti-social companions, mental health and attitude toward her offending behaviours”. The ICOAR also recorded the significant protective factors in the offender’s life which included her strong connection to her culture and cultural supports, stable accommodation and her pro-social activities.

60. Ultimately, the offender did not consent to an intensive correction order (ICO) being imposed upon her because of her concerns as to the constraint it would have on her ability to leave Canberra if she considered it necessary to preserve her safety and her ongoing capacity to comply with stringent supervision conditions. Through her counsel the offender expressed concern as to her ability to engage in the strict regime of support required under an ICO in light of recent events in her life, though reiterated her willingness to engage in supervision more generally especially through the support provided to her through First Nations community organisations.

61. The more recent material tendered by the offender recorded the significant effect upon her of her daughter’s death including that it has strengthened her resolve to address the challenges in her life. The material attested to the positive contribution that she has made to the Aboriginal community both in the ACT and in western NSW. The material confirmed that the offender has deferred study set to commence in May 2025 to attain a Diploma of Counselling so that she can concentrate her attention on her family, especially her other children who remain in her care, as they all deal with the aftermath of her daughter’s death. The more recent material reiterated the offender’s commitment to supporting her children by maintaining a positive lifestyle and continuing her efforts to address negative influences.

Remorse

62. Though the offender maintained her view that her conduct was driven in part by the influence of her associates and their desire to “set her up”, the offender did not seek to otherwise justify her conduct or minimise the seriousness of it. She conceded that she did not properly consider the consequences of her actions and that she should have removed herself from the circumstances that saw the entire situation escalate. Perhaps unsurprisingly, the offender expressed a sense of injustice that others involved in the planning and execution of the offending had yet to see any consequence for their involvement.

63. The offender told Ms Edwige that she is “sorry and ashamed for what happened” and that she was “disgusted” with herself for the offending conduct. The offender entered a plea of guilty on a very early occasion, a reflection of the contrition she has expressed.

64. I am satisfied that the offender has demonstrated genuine remorse. A remorseful offender is more likely to have insight into their offending and the factors influencing their resort to criminal conduct. This in turn, effects an assessment of an offender’s prospects of rehabilitation. Degree of responsibility for the offending

Bugmy considerations

65. The offender had a childhood marred by early exposure to domestic violence and excessive use of alcohol. This experience must be given “full weight”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571. Ms Edwige recorded the “well established” connection between adverse developmental outcomes and parents who abuse substances observing “these adverse childhood experiences significantly impact upon a person’s social and emotional wellbeing… and increase the likelihood that children will themselves develop substance abuse problems making it more probable that they will come into contact with the criminal justice system”. The offender’s adult life can be understood through the prism of her childhood experience, as it informs the difficulty she has had both with achieving ongoing stability in her own life and her resort to the use of drugs and alcohol as a coping mechanism for some of the tragic life events that she has experienced. This is starkly revealed in the offender’s more recent criminal history.

66. Ms Edwige concluded that the offender has a significant trauma history having been exposed to multiple adverse childhood experiences which had affected her ability to self-regulate from a young age. Ms Edwige observed that the offender has continued to experience traumatic events in her adult life including the suicide of her brother, persistent domestic violence and a recent sexual assault. Ms Edwige’s report was prepared prior to the death of the offender’s daughter.

67. Ms Edwige diagnosed the offender with complex post-traumatic stress disorder (CPTSD), borderline personality disorder and substance use disorder. Ms Edwige considered the offender’s traumatic background has left the offender to present with impulsivity, poor emotional regulation, poor interpersonal boundaries, appeasing behaviours, constant hyper-vigilance, poor self-esteem and impaired decision-making ability. Ms Edwige concluded that these features negatively affect the offender’s capacity to exercise sound judgment and were operating at the time of the offence. The offending conduct, in part explained by pressure the offender felt from anti-social associates, is consistent with the features of her presentation that Ms Edwige identified.

68. The offender’s background of disadvantage properly reduces her moral culpability which diminishes the weight attached to general deterrence, denunciation and punishment. At the same time, that history makes specific deterrence and protection of the community compelling considerations. Rehabilitation

69. The picture for rehabilitation presented by the offender is not straightforward. Her criminal history demonstrates her preparedness to engage is criminal conduct and her varied results with respect to supervision are cause for concern.

70. The prosecution accurately highlighted two breaches of bail which were initiated during the bail period since October 2023. The basis of which were missed appointments with Corrective Services. I am not satisfied that this was conduct which revealed a substantive attitude of non-compliance and I am supported in that view by the absence of serious reoffending, the period of abstinence the offender has achieved and the effort she has made to engage with support services.

71. Some of the difficulty the offender experienced with bail appointments can be attributed to the general disorganisation which appears to have at times attended to her personal circumstances, as well as the demands upon her from numerous engagements with support services and criminal justice agencies. The offender has not engaged in offending behaviour in the ACT for some time and has returned negative results to urinalysis for a consistent period, confirmed by the results of testing performed on 29 April 2025.

72. The offender is proactively and consistently engaged with community supports that reflect the strength of her cultural connectivity. The offender has identified purpose through the pursuit of qualifications which will enhance her capacity for meaningful work and through the now long-term voluntary role she has had with [redacted]. The offender remains committed to the care and wellbeing of her children and despite the recent devasting loss of her eldest daughter has remained steady in her compliance with supervision and bail.

73. The offender has demonstrated insight into the challenges that have influenced her poor judgment and has made significant efforts in particular with respect to addressing her use of illicit substances and alcohol having completed several programs and courses targeting that use.

74. The offender’s ability to identify pathways that will lead her away from engagement with the criminal justice system through further study and meaningful employment is an encouraging feature, so too her overall compliance with bail conditions for a protracted period. Sensibly the offender intends to postpone in an immediate sense commencing any study in the wake of her daughter’s death but has not entirely abandoned the pursuit of vocational goals. The offender’s approach to the making of an ICO has also been influenced by her daughter’s death. Counsel for the offender submitted that the immediate effects of her grief will make compliance with the strict regime of supervision that accompanies an ICO challenging as she deals with the immediate effect of her loss and grief.

75. Attending to the devastation of her daughter’s death will understandably be the focus of the offender’s attention in the short-term, the long-term effect of course will stay with her for life. It will be important for the offender to lean heavily on the supports she has built in the community in order that this tragic event not entirely derail the overall good progress that I am satisfied she has made while she has been on bail since it was granted in October 2023.

76. I am cautiously optimistic that the offender has good prospects of rehabilitation. Those prospects would almost certainly improve to excellent if she was to continue to engage with appropriate service providers and action the aspiration for future goals that she has identified. Key to the offender’s capacity for reform will be long-term abstinence from the use of illicit substances, in particular. This is a matter she has demonstrated capacity to address with some success as confirmed by the provision of negative urinalysis results which showed that the offender has remained abstinent now for a significant period. Of course, an outcome for this matter which promotes the offender’s prospects of rehabilitation operates to protect the community. As French CJ observed in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536–7 [32], “rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”.

Criminal history

77. The offender’s criminal history does not operate as an aggravating feature but does limit the leniency that can be afforded. The offender has a lengthy criminal history that for the most part has been accrued over the last nine years. Prior to 2015, the offender had a single charge of using offensive language. Since the age of 32, she has been convicted of an array of offences in both the ACT and NSW consisting of driving offences, dishonesty offences and some less serious violent offences. The current offence is the most serious offence the offender has committed.

Time in custody

78. The offender has spent 27 days in custody solely attributable to this offence. This time served in pre-sentence custody will be taken into account in the sentence to be imposed. Plea of guilty

79. The offender entered a plea of guilty in the Magistrates Court on 14 March 2024. The plea was entered at an early opportunity and has had significant utilitarian value for the court and the community. A reduction of 25 per cent in the sentence imposed appropriately reflects that value.

Parity

80. Two alleged co-offenders were initially charged with being knowingly concerned in the commission of the arson. The Director filed a notice declining to proceed in November 2024. A third alleged co-offender has not ever been charged in relation to the offence. A fourth co-offender was not charged in relation to the arson though was sentenced in relation to the theft of the vehicle.

Conditional liberty

81. By virtue of this offence, the offender is in breach of three GBOs imposed in the ACT Magistrates Court. On 16 December 2022, the offender was sentenced as follows: (a) CC2022/6738 – fail to stop motor vehicle for police, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), for which she was sentenced to a GBO for a period of 18 months. (b) CC2022/6739 – drive motor vehicle with alcohol in blood or breath, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), for which she was sentenced to a GBO for a period of 18 months. (c) CC2022/6740 – drive while disqualified, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), for which she was sentenced to a GBO for a period of 18 months.

Facts of the breach offences

82. The three offences arose from a singular incident. At 11:20pm on 12 July 2022, police observed a vehicle drive over multiple traffic islands in Hawker, ACT, which prompted them to pursue the vehicle and activate their emergency lights and siren. The vehicle continued to travel at a low speed and police observed there to be a single occupant in the vehicle. Police terminated the pursuit. Police continued to patrol the area and shortly thereafter observed the same vehicle to have failed to negotiate a roundabout. The vehicle had crashed into the rear fence of a residence. Police observed the offender to be outside the vehicle and then attempt to climb the fence into the yard of the residence. Police pulled the offender down from the fence and placed her under arrest.

83. Police observed the offender to be unsteady on her feet and could smell alcohol on her breath. Police conducted checks using the Roads and Traffic Authority Database which showed that the offender’s driver’s license had expired on 3 July 2018. Further checks showed that the offender’s driver’s licence had been disqualified in the ACT Magistrates Court on 4 August 2020 for 26 months making her a disqualified driver. The offender was required to undergo an alcohol screening test which returned a positive result. The offender was conveyed to the ACT Warch House. At 12:20am on 13 July 2022, the offender provided a breath sample which indicated a result of 0.210 grams of alcohol per 210 litres of breath.

Consideration regarding breach

84. The offender committed the offence while subject to an obligation to be of good behaviour. This is an aggravating circumstance; an offender having betrayed the opportunity to be in the community and pursue rehabilitation: R v Tran [1999] NSWCCA 109 at [15]. This factor is relevant to a determination of the appropriate punishment for an offence but does not influence the assessment of objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. I bear in mind that I must approach this feature of the offending with care to avoid double punishment: Kelly v Ashby [2015] ACTSC 346 at [61].

85. This offence was committed when the offender was halfway through the obligation to be of good behaviour for 18 months. The obligation was breached by dissimilar though more serious offending and this is a factor that weights in favour of action in relation to the breach. That said, the offender has now been on bail for a substantial period and has not demonstrated a general attitude of non-compliance or an intention to entirely disregard an obligation to be of good behaviour. The offence occurred almost 20 months ago and the good behaviour orders have now expired.

86. Additionally, since the imposition of the good behaviour orders in December 2022 the offender has successfully completed one further good behaviour order imposed upon her in the ACT Magistrates Court in May 2024 with another to expire shortly without incident. She has made a significant effort to engage in services designed to target her use of illicit substances and alcohol and has returned negative results for urinalysis for some time.

Current sentencing practise

87. I was referred to a number of sentencing outcomes from this court which included DPP v KS (a pseudonym) (No 2) [2023] ACTSC 298, R v Rosewarne [2021] ACTSC 217, R v Ledger [2021] ACTSC 103, R v Sidaros (No 4) [2020] ACTSC 87, R v Inder [2019] ACTSC 208, R v Hodge [2019] ACTSC 15, R v Jackson [2018] ACTSC 40, R v Wright [2018] ACTSC 58, R v Longmore [2018] ACTSC 298 and R v Stott [2017] ACTSC 248. I have also had regard to the additional outcomes for this offence referred to in R v Chatfield [2021] ACTSC 352 at [76]-[90] as well as the outcome in Chatfield.

Determination

88. The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). Arson is a serious offence “which usually calls for a substantial period of imprisonment” and which covers a wide range of circumstances: Chatfield at [2]-[3]. The sentencing outcomes to which I have referred demonstrate the range of circumstances the offence can cover. Many of the outcomes involved examples of the offence where the damage caused was substantially larger than that occasioned by the offender in this instance. The range of outcomes also revealed that whilst periods of imprisonment are typically imposed for the offence, an offender has not always been required to serve that period full-time. This reflects the need for the sentencing task to give effect to justice that is individual.

89. A reduction of this offender’s moral culpability reduces the weight of general deterrence, denunciation and punishment, though does not extinguish entirely the need for the sentence to reflect those considerations. The sentence must deter the offender, protect the community and recognise the harm occasioned by her conduct.

90. The offender’s conduct cannot be condoned. It was deliberate, dangerous and motivated by an intention to thwart the investigation of criminal conduct. It is conduct which reflected the offender’s capacity for poor judgment, a consistent feature in particular of the past decade of her adult life. The seriousness of the offending is such that only a period of imprisonment will properly capture it and no submission was advanced to the contrary.

91. The starting point for the offence is 24 months of imprisonment.

92. The prosecutor submitted that a term of imprisonment suspended after the period the offender has already spent in custody in relation to the offence would be unduly lenient. The prosecutor was not opposed to the imposition of an ICO, submitting that the prosecution would be “more comfortable” with an ICO. In advancing that submission the prosecutor highlighted the punitive effect of the supervisory regime of an ICO and suggested this was the appropriate way to achieve denunciation. A consideration I have found to be diminished by the reduction in moral culpability, though not entirely extinguished.

93. Punishment and denunciation are not the only considerations. On the material before me I am satisfied that rehabilitation remains a compelling consideration. A regime of supervision is undoubtedly necessary. The recent significant loss suffered by the offender offers her the opportunity to reflect on the purpose and trajectory of her own life and steel her resolve to move beyond the conduct which has seen her appear before the courts. I am satisfied that she can do so if she remains supported and motivated to be drug free and to contribute to her community through purposeful employment.

94. I am not satisfied that the offender’s prospects of rehabilitation would be enhanced and realised under an ICO because that outcome would not necessarily replicate the substantial, culturally appropriate support which has seen the offender make good progress. It is an outcome which would require the offender to engage with Corrective Services and the supports they deem to be appropriate. It is a regime which would require regular attendance upon and engagement with Corrective Services staff. There is no guarantee or requirement that the offender have any rapport or relationship with those with whom she would be required to engage under the terms of an ICO, nor any requirement or guarantee that those staff would possess any expertise in dealing with First Nations women with histories of trauma that include family violence and sexual assault. Of course, that is precisely the kind of expertise that Ms Keed in particular does possess.

95. More recent events in the offender’s life only underscore the need for the supervision regime imposed upon her to accommodate her specific needs. The death of the offender’s daughter only weeks ago is a loss the magnitude of which is difficult to truly comprehend. No parent should outlive their child. This loss comes against the background of other significantly traumatic events. In addition, the offender is a complainant is a sexual assault which is proceeding to trial. It is unsurprising, at least to me, that it is the offender’s desire to continue to engage with cultural supports with whom she has established relationships and with whom she feels comfortable and safe and from whom she draws strength. Ms Edwige recorded that which is known to First Nations people and that is that cultural connectivity is inextricably bound to our sense of identity and belonging, which in turn “promotes resilience and is critical to healing”.

96. It is those supports that I am satisfied will best promote her prospects of rehabilitation and those are supports that can be accommodated under the terms of a suspended sentence order.

97. There is a compelling consideration which favours the imposition of an outcome which does not require the offender to spend any further time in full-time imprisonment. The offender’s daughters, who are 14 and 16 years of age, are in her full-time, permanent care. The offender’s late daughter assisted her with the care of her younger sisters and that is no longer possible. The imposition of a sentence of imprisonment to be served full-time would see the offender’s daughters experience significant hardship at a time when they too are experiencing loss and grief.

98. I accept that the making of an ICO for the reasons I have outlined would likely see the offender quite quickly in breach of the sentencing order. In addition, I also accept that the offender’s concern as to her safety because of the alleged sexual assault perpetrated against her is reasonable and genuine. That offence is alleged to have occurred in the offender’s home with a person known to her. The accused is currently on remand awaiting trial. It is unsurprising that the offender would be concerned about her safety in those circumstances.

99. The offending, representing as it does the offender’s most serious engagement with the criminal justice system, could see the offender draw a line in the sand and walk determinedly away from aspects of her lifestyle that have plagued her for the past decade. The offender has demonstrated real progress in the period since the offending which strengthens the view that the desire she has expressed to reform is authentic. Her present circumstances are not without challenge and they dictate the necessity for her to remain vigilant in meeting those challenges without resorting to past problematic behavioural patterns.

100. This is a matter where I consider the just and appropriate outcome is one which supports and motivates the offender to continue with the progress she has made in the community whilst on bail and which does not require her to spend any further period in full-time custody. A return to full-time custody would likely entirely undo the progress the offender has made to date with respect to rehabilitation, there being no guarantee that abstinence from illicit substances will be guaranteed by the custodial environment. To which can be added, the removal of access to the support services with whom she has established connections at a time when the offender is particularly vulnerable because of the loss she has only recently suffered.

101. A suspended sentence order can provide the accountability and support necessary to fulfill the purposes of sentencing. It is an outcome which can see the supervisory aspect of the sentence operate to swiftly bring the offender to the attention of the Court should she engage in any conduct in breach of the order. Indeed, where there is a breach, it is only the Court who can hold the offender accountable unlike an ICO where the Sentence Administration Board is charged with a supervisory role.

102. In circumstances where I impose such a sentence and where the GBOs breached by the offence have now expired, I do not consider it necessary to take any further action with respect to those breaches. The capacity for the Court to deal with any breach of the suspended period of imprisonment by imposing it, in my view will provide adequate motivation for the offender to remain compliant in the community. The offender can be in no doubt that any breach by way of similar serious offending would favour a result that would see her return to full-time imprisonment.

103. As I have already recorded the offender would benefit considerably from continuing to engage with those First Nations support services who have effectively and consistently supported the offender while she has been in the community. The effectiveness of the supervision component of the sentence I impose will be considerably enhanced if the offender is supported to maintain her relationship with those services and to pursue her rehabilitative goals under their care.

104. The report of Ms Edwige makes carefully considered recommendations in relation to supervision and they will be incorporated into the order for supervision I make, noting the effect of s 13(4)(g) of the Crimes (Sentencing) Act.

Orders

105. For those reasons, the following orders are made: (1) On the charge of arson (CAN2023/9368), the offender is convicted (2) I note the breach on CC2022/6738 and take no further action. (3) I note the breach on CC2022/6739 and take no further action. (4) I note the breach on CC2022/6640 and take no further action. (5) On the charge of arson (CAN2023/9368) the offender is sentenced to a period of imprisonment of 18 months (reduced from 24 months). The sentence is to be suspended today after the offender has served 27 days in custody, upon her entering an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months. (6) In addition to the core conditions, for the 18 months she is required to comply with her good behaviour obligations, she is to accept the supervision of the Director- General and comply with all reasonable directions for that period or such lesser period deemed appropriate by the Director-General. (7) I direct that supervision directions should include and incorporate the offender’s current engagement with ACT First Nations service providers including: (a) Yurwang Bullarn Strong Women’s Group; and (b) Ms Tanya Keed. (8) I direct that supervision directions should also: (a) Refer the offender to a Dialectical Behaviour Therapy group. (b) Refer the offender to a culturally responsive trauma informed psychologist to address her complex PTSD and for her to develop skills to manage trauma behaviours. (c) Refer the offender to a culturally responsive drug and alcohol counsellor to reduce alcohol intake.

I certify that the preceding one hundred and five [105] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: O Ferguson Date: 12 May 2025