DPP v Ownsworth [2025] ACTSC 453

1. Kenneth Ownsworth has pleaded guilty to a single contravention of s 27(3)(a) of the Crimes Act 1900 (ACT). That provision makes it an offence to intentionally and unlawfully choke, suffocate or strangle another person so as to render that person insensible or unconscious or, by any other means, render another person insensible or unconscious. The offending involved family violence and therefore the maximum penalty is 13 years’ imprisonment.

Facts

2. The facts are agreed and are set out in a statement of agreed facts. I find the facts in accordance with the statement of agreed facts. In summary, they are as follows.

3. The offender and the female complainant were in an “on-and-off relationship” for approximately two and a half years prior to the incident on 25 September 2022. They were living together. The relationship was tumultuous. The offender and victim accused each other of engaging in verbal abuse and physical violence.

4. On the evening of 24 September 2022, the offender and the victim were at a party at someone else’s house. They slept there overnight and left at about 11:30am the next day.

5. There was an argument in the car on the way home. The offender pushed the victim’s head so that she hit the left side of her head on a car panel. She asked to get out and he let her out, leaving her to walk the approximately 5km home. When the victim arrived home, the offender was not home. There was some communication between the offender and the victim’s mother, which the victim saw on an iPad in the house. When the offender came into the house, there was an altercation which gives rise to the offence.

6. The offender ran at the victim, grabbed her and pushed her. He called her names. He pressed his forehead against hers, which caused her to fall. He then hit her head on the ground. She passed out as a result of this action. When she attempted to get up, the offender came from behind and grabbed her neck with his two hands and squeezed her throat until she lost consciousness. When she regained consciousness, the offender kicked and punched her while she was on the ground and, at some point, bit her on the thumb. At some point, the victim moved into the family room. The offender approached her, grabbed her by the neck with both hands, and looked into her eyes as she dropped to her knees and again lost consciousness.

7. When she regained consciousness, she was lying in the entry area of the house but had no recollection as to how she got there. She stood up and attempted to leave. The offender knocked her to the ground, telling her to get out of the house. The offender grabbed her by the feet and dragged her to the front porch. While she was still on the ground, he kicked her again. It is the two occasions of strangulation that constitute the offence, the balance of the actions constituting the context in which that offence occurred.

8. The victim of the offending subsequently obtained medical attention, including being assessed by a doctor, who identified 51 injuries in his report, largely constituted by bruising and abrasions.

Victim impact

9. The victim impact statement prepared by the victim of the offending refers to the loss of trust and self-worth that she suffers and the need to move away from Canberra because she no longer feels safe here. The statement describes social anxiety and the impact of the deferral of trials. In that regard, she says: the last three years dealing with our legal system have been almost as damaging as the physical assault itself. There have been many mentions, two last-minute deferred trials, and finally an eleventh-hour admission of guilt. Each time, I have prepared myself mentally and emotionally; I’ve psyched myself up to face my attacker and a potentially hostile cross-examination.

10. The victim impact statement of the victim’s parents describes that the victim has not been able to enjoy a completely independent life since the attack and that she remains deeply fearful of the offender when visiting Canberra. It refers to the longer term impact of the offending on her mental health and her need to receive psychological treatment on an ongoing basis. So far as delays are concerned, it includes the following: We can only say the repeated delays in holding a trial as being absolutely cruel to [the victim] and to us, too. We have had to help [the victim] manage the utter disbelief and disappointment she has experienced with each delayed Court event. These trigger a return to deep depression and anxiety for [the victim] and it can take days, if not weeks, to help her overcome this and find her equilibrium again. The trauma each delay has caused to [the victim] has certainly prolonged her suffering, as it has our own. We have all been living in limbo – which is a form of hell for us all.

11. These expressions of concern at the delay in having the matter determined are entirely justified. The matter was committed for trial in the Supreme Court on 14 April 2023. Trials listed to commence on 12 March 2024 and 16 September 2024 were both vacated for different reasons. It was only shortly prior to the trial listed to commence on 19 May 2025 that the offender pleaded guilty. I accept that the impact of an impending trial being vacated in circumstances that are out of the control of the victim of the offending has been serious and adverse. It is not clear why the evidence of the victim was not taken in advance of the trial so as to allow her to be free of the case and to get on with her life.

Objective seriousness

12. The offence is a wrapped-up charge involving two occasions of strangling to unconsciousness. It occurred in the victim’s home in the context of a volatile relationship. It was not premeditated. However, it occurred in the context of other family violence not the subject of the charge. It is mid range offending.

Subjective circumstances

13. The subjective circumstances of the offender are outlined in a pre-sentence report and an intensive correction order assessment report (both dated 1 October 2025), as well as a variety of reference letters which were tendered on behalf of the offender.

14. The offender is 48 years old. He was born in NSW and came to the ACT at the age of 10. He had significant adversity at home in his early years because his father was a heavy user of alcohol and was physically and verbally abusive. His parents divorced when he was 12 years old. He maintains a relationship with his mother and three sisters but not with his father.

15. He has four children from two different relationships. The children are aged 27, 22, 19 and 16. He described having been in the relationship with the victim of the offending for about two years. He described her as a heavy alcohol user. The relationship ended three years ago.

16. He completed Year 10 at school. He did an apprenticeship as a butcher and subsequently became a machine operator. His current role involves excavating and restoring water mains. He alternates between day and night shifts on a fortnightly basis.

17. The cost of legal representation has imposed a significant financial burden upon him. He has limited social interaction and describes his contacts as prosocial. He has no issues with alcohol or illicit drug use. He has no current physical health concerns. He has been affected by stress associated with the current legal proceedings.

18. While he is recorded by the author of the pre-sentence report as having felt pressured to plead guilty, maintaining that he did not commit the current offending, in a letter to the court he expressly disavowed any pressure in making the choice to plead guilty. His counsel made abundantly clear that he accepted the agreed statement of facts as the basis for that plea.

19. The author of the pre-sentence report identified stable accommodation, employment and family connections as protective factors. The offender was assessed as not suitable for a community service work condition because of his shift work, but was assessed as suitable for an intensive correction order.

20. His current partner, who has known him for a long time but has only been in an intimate relationship with him for the last six weeks, gave oral evidence that she had not experienced any violence in her relationship with him and had no other such concern. She described him as a humble person who cares for others.

21. His ex-wife, who has known him for at least 22 years, indicated that he “was always and still is a family man who spent every spare moment with the kids”. She said she had “never seen nor experienced anything other than a man who [would not] hurt a fly”, that he was “never violent, aggressive or hotheaded” and that, since their separation, he has maintained a healthy co-parent relationship in relation to their daughters.

22. Another reference from a long-term friend also attests to his good character. The reference from his current employer indicates that he is a “reliable, punctual and conscientious employee”. A letter from his sister who lives in Queensland describes him as “a kind and respectful person who values doing the right thing”.

Criminal history

23. The offender has no criminal history.

Plea of guilty

24. The offender pleaded guilty in the Supreme Court following a criminal case conference in the week prior to the trial. He is entitled to a reduction in sentence of approximately 10 percent on account of the utilitarian value of the plea of guilty.

Time in custody

25. The offender spent two days in custody prior to being released on bail. I have taken that period into account in determining the appropriate sentence.

Consideration

26. Offences of choking, suffocating or strangling another person so as to render them insensible have been recognised by the legislature as very serious, not only because of the potential to cause death but also the use of this form of violence by men against women in a family violence context. The sentence imposed must be adequate to denounce the conduct, recognise the harm done to the victim and the community, and deter others from such offending.

27. In this case, the victim continues to suffer the consequences of the offending and has been required to move away from Canberra and her public service employment. She requires support from her parents. As indicated earlier, it is completely unsatisfactory that the proceedings have taken so long to resolve, and this delay has imposed further burdens upon the victim of the offending.

28. The prosecution provided a table of comparable cases which indicated sentences reflecting starting points of 18 months to four years and six months. Some of those sentences were based upon the non-aggravated maximum penalty of 10 years’ imprisonment and some upon the aggravated maximum penalty of 13 years’ imprisonment applicable where the offending involved family violence.

29. While the wrapped-up count involves serious offending, it is significant that, at the age of 48, the offender has no other criminal history. Further, he has significant protective factors. His prospects of avoiding offending in future are good.

30. Having regard to the nature of the offending, the maximum penalty and the comparable cases, in my view, only a sentence of imprisonment would be appropriate. The starting point is a sentence of imprisonment of 20 months, reduced to 18 months on account of the plea of guilty.

31. The substantial issue is how this sentence should be served. In my view, the purposes of sentencing will be met if the sentence is served by intensive correction in the community, so long as there is a component of community service. The offender was assessed as unsuitable for community service “due to potential impracticability of regular reporting due to employment commitments”. This reason picks up one of the indicators of unsuitability referred to in s 80D(4)(d) of the Crimes (Sentencing) Act 2005 (ACT). The assessment of unsuitability was stated to be because the “fortnightly rotation of night shifts … may present logistical challenges that compromise his ability to comply with the requirements of a community service condition”. It is not clear why that would be the case unless it was a mandatory requirement of community service work that it be performed every week. There was no evidence about that, but it seems unlikely to be the case. In any event, counsel for the offender made it very clear that the offender would abide by the conditions of an intensive correction order because he recognised that the alternative was a period of full-time detention.

32. Notwithstanding the terms of the pre-sentence report and intensive correction order assessment report, it is open to impose a community service condition so long as reasons are given: s 80D(6). In my view, it is appropriate to impose a community service condition because I am not satisfied that a requirement to work night shifts in two week periods will preclude the performance of community service work on a regular basis in those periods when the offender is not working night shifts and, in any event, the offender has indicated a preparedness to do whatever is necessary in order to accommodate the order of the court.

33. Recognising the seriousness of the offending and the need to denounce the conduct, it is appropriate that the offender perform 200 hours of community service as a condition of his intensive correction order.

Order

34. The order of the Court is: (1) On charge CAN 2792/2023, the offender is convicted and sentenced to imprisonment for 18 months, which sentence is to be served by intensive correction in the community with the additional condition that he perform 200 hours of community service work within the period of the order.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: