DPP v Robertson

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: DPP v Robertson (No 2) Citation: [2025] ACTSC 448 Hearing Date: 30 September 2025 Decision Date: 1 October 2025 Before: Mossop J Decision: See [76] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – common assault – assault occasioning actual bodily harm – offending in a domestic violence context with a power imbalance – offences at low end of mid range of objective seriousness – objections to victim impact statement – late plea of guilty – no offending for 11 years – prospects that ageing and efforts at education will reduce risk of violence in future – fine and good behaviour orders with community service requirements imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – appropriate to resentence due to passage of time and limited offending in intervening period – good behaviour order with community service requirement imposed Legislation Cited: Crimes Act 1900 (ACT), ss 24, 26 Crimes (Sentence Administration) Act 2005 (ACT), s 110 Crimes (Sentencing) Act 2005 (ACT), s 10 Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19(1) Cases Cited: Kader v Director of Public Prosecutions [2024] ACTCA 31 Parties: Director of Public Prosecutions Joseph Donald Robertson (Offender) Representation: Counsel M Dyason (DPP) B Morrisroe (Offender) Solicitors ACT Director of Public Prosecutions Tim Sharman Solicitors (Offender) File Numbers: SCC 231 of 2023 SCC 232 of 2023 MOSSOP J: Introduction

1. On the first day of his trial, the offender, Joseph Robertson, pleaded guilty to the following offences: (a) common assault committed on 19 July 2008 (CAN 4018/2022); (b) assault occasioning actual bodily harm committed on 17 March 2012 (SC CAN 402/2023); (c) assault occasioning actual bodily harm committed on 14 December 2012 (SC CAN 403/2023); and (d) common assault committed on 11 March 2014 (CAN 4032/2022).

2. The maximum penalty for the offence of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) is imprisonment for five years.

3. The maximum penalty for the offence of common assault contrary to s 26 of the Crimes Act is imprisonment for two years.

4. The offending on 11 March 2014 put the offender in breach of a two-year good behaviour order imposed on 23 October 2013 in relation to the suspension of a three-month sentence of imprisonment for level 4 drink-driving.

Facts

5. The offender and the victim were in an “on and off” relationship from about 2004 to June 2017. When they commenced their relationship, the offender was 29 years of age and the victim was 18. There is an 11-year age gap between them.

6. In the course of that relationship, there were periods of time when they lived together and periods of time when they were separated. The relationship was volatile. They share a child, born in August 2015.

7. At times during their relationship, the victim felt that the offender was controlling. He made disparaging comments about the way she dressed, how she looked, her weight, where she worked and who she spoke to.

Common assault on 19 July 2008

8. On 18 July 2008, the victim’s employer was having a Christmas in July function. The offender and the victim attended and consumed alcohol. They went with a number of the victim’s colleagues to the Canberra Casino.

9. In the early hours of the morning, the two had an argument and ultimately left in a taxi. While in the taxi, the victim physically lashed out at the offender. The taxi driver pulled over and ordered them out of the taxi.

10. They exited the taxi. The offender then held the victim against a wall by her shoulders. The victim went to the ground. The victim had hold of the offender’s phone.

11. He bent down, took the phone from her and struck her in the head at the same time, before walking away.

12. This was witnessed by a security guard and a bystander who separately called police. Police attended. The victim was conveyed back to the Canberra Casino. The offender had taken himself home.

13. Police later attended the offender’s home, and the offender denied assaulting the victim. While police were present, the victim returned home. She told police that she was intoxicated and had attacked the offender, and that she did not want to provide a statement.

14. After the incident, the offender told the victim never to speak with police. He also told her what to say and what not to do when it came to police.

15. The offender was almost 33 years old at the time of this offence.

Assault occasioning actual bodily harm on 17 March 2012

16. On 17 March 2012, the offender and the victim were living together in a home on Zorzi Street, Forde.

17. On this occasion, they had been out drinking with friends, come home and the offender had gone to sleep. While he was asleep, the victim looked through the offender’s mobile phone, where she found messages exchanged with other women. The victim became angry and woke the offender up.

18. The two argued, shouted at one another and both threw items around the house. The offender tried to get his phone back and there was a struggle over the phone. In the course of the argument, the offender said words to the effect of “l could kill you”. At the time, the victim believed that the offender could get access to guns and was concerned there was a gun in the house

19. The victim released the phone and went outside. The offender came outside to give the victim her phone. They continued their argument. The victim then took the offender’s phone. The offender pushed the victim, and she fell to the ground. He bent down to get his phone, and he struck her in the head while she was on the ground. He retrieved his phone and went back inside the house.

20. At about 1:40am, police were called by three neighbours who had heard a male and female arguing and the female screaming and crying. Police attended shortly thereafter.

21. Police spoke with the victim’s sister, who stated that the offender had called her and asked her to help calm down the victim, and that the victim had run off towards the shops and was heavily intoxicated. Police spoke with the victim and arranged to convey her to a relative who met her in the city.

22. At 3:53am, the victim attended Calvary Hospital, where an examination revealed she had “bilateral haematoma behind the ears, occipital haematoma, bruising and swelling to her lower lip”.

Assault occasioning actual bodily harm on 14 December 2012

23. On 14 December 2012, the victim and the offender were living together at a home on Ada Ball Circuit, Forde.

24. At about 9:45am, the offender and the victim had an argument because the victim had again found messages on the offender’s phone suggesting that he was being unfaithful.

25. The offender asked her to give him back his phone and she refused. The offender needed to work but could not do so without his phone because he used it to operate his business. The two were yelling and arguing with each other in the kitchen area of the home. They then wrestled over the phone. The offender punched the victim, causing her to fall over. He said words to the effect of “bitch I could kill you”. The victim was concerned that there were knives in the kitchen.

26. The victim left the house and ran down the street to a home that had an open garage where a female neighbour was putting her children into the car. When the victim arrived at the garage, she said “help help” whilst continuing to look behind her. The neighbour closed the garage door as a precaution. The neighbour invited the victim inside her house where she observed the victim to have red marks on her arms and upper body area. The neighbour picked up the phone to call 000. At this point, the victim said “I’m sorry” and ran away.

27. The victim returned to her house when police attended. The offender told her to remain in the house. She cleaned her face and put on sunglasses to cover her injuries.

28. Police initially spoke to the offender, who refused to let police inside the house. Police observed the offender to be aggressive but compliant. The victim appeared and stood approximately 4-5 m away from the offender. She was wearing large sunglasses which she refused to remove. She told police that she was not injured and refused to speak further to police.

29. The following day, the victim developed a black eye and swollen lip from the assault.

Common assault on 11 March 2014

30. On 11 March 2014, the victim and the offender were still living at Ada Ball Circuit, Forde.

31. On this occasion, they had an argument because the victim had received a call from another woman claiming to be in a relationship with the offender. There was shouting, pushing and shoving between the two. The offender struck the victim to the face before leaving the house.

32. A neighbour contacted police after he heard the victim out the front of her address yelling “come on hit me again”. Upon police arriving, the victim refused to let police inside and told them to go away. The offender was on conditional liberty at the time, being subject to a good behaviour order imposed on 23 October 2023 which is described later in these reasons.

Victim impact

33. An undated victim impact statement was sought to be tendered and read. Unfortunately, this drew a series of detailed objections. The manner in which victim impact statements that stray beyond areas that may be taken into account by the sentencing judge should be treated was addressed in Kader v Director of Public Prosecutions [2024] ACTCA 31 at [74]-[75]. That decision emphasised that, where irrelevant or inadmissible material is included in such a statement, “it will usually be preferable for counsel to make a submission concerning the weight to be given to the irrelevant material, rather than to make a formal application for that material to be excluded”. In this case, the victim impact statement went beyond what was relevant to the sentencing exercise, having regard to the scope of the agreed statement of facts. However, notwithstanding what was said in Kader, formal objections were made. Given the detail that was necessary as part of the articulation of the objections, which dissected the statement into admissible and inadmissible portions, the exercise had the potential to derail what would otherwise have been a relatively straightforward sentencing exercise. More significantly for the offender, addressing the matter by way of formal objections tended to emphasise an adversarial approach to the evidence of the victim, as distinct from any remorse for the offending which was admitted.

34. Immediately before the giving of these reasons, I indicated my ruling on the admissibility of various portions of the victim impact statement. The admissible portions were admitted and read out.

35. The victim impact statement emphasised the age difference between victim and offender, explained the reasons why, in the context of the relationship with the offender, the victim had made no complaint to police at the time of the various offences despite the opportunity to do so. The victim also described the psychological impact of domestic violence over the years and the ongoing effects on her mental health, trust in others, and sense of freedom.

36. The circumstances and consequences of the domestic violence offending described in the victim impact statement are, unfortunately, consistent with what is often experienced by victims of domestic violence.

Objective seriousness

37. Each of the offences occurred in a domestic violence context.

38. The 2008 offence involved the offender striking the victim in the head while she was on the ground in a public place. It is at the low end of the mid range of objective seriousness for a common assault.

39. In the March 2012 offence, the offender pushed the victim to the ground, bent down to get his phone, and struck her on the head while she was on the ground. This caused bruising to her head and bruising and swelling to her lower lip. It is at the low end of the mid range of objective seriousness for an assault occasioning actual bodily harm.

40. The December 2012 offending occurred during a wrestle over a mobile phone in which the offender punched the victim, causing her to fall over, and said “bitch I could kill you”. It resulted in a black eye and swollen lip. Once again, it is at the low end of the mid range of objective seriousness for an assault occasioning actual bodily harm.

41. The March 2014 offending involved an altercation where there was pushing and shoving, during which the offender struck the victim in the face. It is at the low end of the mid range of objective seriousness for a common assault.

Subjective circumstances

42. Evidence of the offender’s subjective circumstances is contained in the intensive correction order assessment report, two reference letters relating to the offender and a letter from an employee of EveryMan Australia Ltd.

43. The offender was born in Young, NSW, and was one of two siblings to his parents’ union. He had a positive upbringing. He has positive relationships and frequent contact with both parents who are still married and currently reside in the ACT. He also reported a positive relationship with his sister who resides interstate. He moved to the ACT in his mid-twenties to pursue better employment opportunities.

44. He reported three prior significant intimate relationships which resulted in the births of his four children. He claimed to have a civil relationship with the mother of his two eldest daughters who both reside interstate and described close relationships with those daughters. His subsequent relationship resulted in the birth of his eldest son, whose mother is the victim of the present offending. He described the relationship as being characterised by arguments, some violence perpetrated by the victim, and in some cases, he admitted to retaliating by pushing her away during physical altercations. He is involved in family court proceedings relating to their separation and the custody of their son, who is currently in the full-time care of the victim of the offending. [Redacted].

45. He also has a two-year-old son with his most recent ex-partner. The child primarily resides with his mother at her grandparents’ home and has frequent visits with the offender.

46. The offender completed Year 10 at high school. He was then employed in a floor covering business. He subsequently established a floor covering business of his own approximately 20 years ago, and a home building business approximately 12 years ago. Both companies still operate, although at a reduced capacity due to his court proceedings. The offender no longer owns the floor covering business but is still involved in its management.

47. The offender advised he is solely dependent on the income earned from his businesses. The evidence as to his income was not clear, although he appears to have adequate income to support substantial weekly outgoings.

48. He has a few close friends. He also has some antisocial associates, some of whom are involved in drug use. He first consumed alcohol as a teenager and admitted to periods of time when he considered his alcohol consumption to be problematic. He has some previous alcohol related driving offences on his criminal record. He reported completing the Reversed program through Karralika and another alcohol related program through Canberra Health Services in 2013. He denied any excessive alcohol use in the past 12 months.

49. He acknowledged a history of illicit substance use commencing as a teenager. He reported first trying cannabis at the age of 17, amphetamines at the age of 18, MDMA in his early twenties, and cocaine from the age of 30. He reported using each of these substances for approximately two years after his first use, aside from cocaine, which he continued to use infrequently at social events. He also acknowledged some use of methamphetamine in 2024. He denied any illicit substance use over the past 12 months.

Criminal history

55. In NSW, the offender has convictions for driving in a dangerous manner (1994), assault and malicious damage (1994), assault (1994), attempted stealing (1996), being an unlicensed driver in an unregistered and uninsured vehicle (1996), and use of offensive language or offensive behaviour (1997, 1998 and 1999). He was given a suspended sentence of imprisonment for common assault and convicted of negligent driving in 2003. He also had another offensive behaviour conviction in 2003. In 2004, he committed an assault occasioning actual bodily harm in company for which he was given a suspended sentence of imprisonment. When that offence occurred, he was 28 years old. In 2024, he was dealt with for drug driving, but no conviction was recorded.

56. In November 2012, he committed the offence of assault occasioning actual bodily harm in Queensland and was given a fine and ordered to pay compensation in March 2014.

57. His offending in the ACT commenced in 2001 with an assault occasioning actual bodily harm for which he was given a suspended sentence of imprisonment. In 2002 and 2005, he committed the offence of drink-driving. In 2006, he drove while disqualified. In 2013, he committed two level 4 drink-driving offences on the same day, one of those offences giving rise to a good behaviour order, which is referred to in a moment. He is not recorded as having offended since May 2013.

Pleas of guilty

58. On 19 March 2021, the victim made a statement to police about the matters.

59. On 8 June 2022, a summons was sworn.

60. On 19 July 2022, the matter was first before the Magistrates Court.

61. On 13 September 2023, the proceedings were committed for trial.

62. On 12 February 2025, the pleas of guilty were entered. This was the day the trial was listed to commence.

63. The plea of guilty was a late one. However, it avoided the need for a trial, including the need for the victim to give evidence. The plea would warrant a reduction in sentence of up to 10 percent and is a matter relevant to take into account in determining the appropriate form of sentence.

Breach of good behaviour order

64. The offending on 11 March 2014 put the offender in breach of a good behaviour order arising from a conviction for drink-driving (CAN 3969/2013), which was committed on 10 May 2013 when the offender was 37 years old.

65. On 23 October 2013, a magistrate imposed a sentence of imprisonment of three months which was suspended upon entry into a good behaviour order for a period of two years. The offending involved drink-driving after having been earlier apprehended for drink-driving, for which he was given an immediate suspension notice. The offending involved an unusual indifference to the laws relating to drink-driving, the offender having drawn his own behaviour to the attention of police by telephoning them and saying, “I’ve been drinking all day, driving all day, drinking all day, I don’t care”. The good behaviour order ran from that date until 22 October 2015 and hence was breached by the offending on 11 March 2014.

Time in custody

66. The offender has not spent any time in custody attributable to the current offending. Consideration

67. The offending occurred during the course of a volatile relationship where there was a significant age difference and difference in physical strength. It was therefore a context in which the use of violence contributed to the power imbalance between the two persons involved. That power imbalance and the domestic violence context makes it unsurprising that there was no contemporaneous complaint.

68. The offending is quite dated, having occurred between 2008 and 2014. The offender is now 50 years old. He was between 33 and 38 when the offending occurred. The offender has no convictions for offending since the drink-driving incident in 2013. The offender has a pattern of having children with women with whom he is unable to sustain an ongoing relationship. His use of illicit drugs has been a criminogenic risk and has continued up to as recently as 2024.

69. Apart from that, the offender has stable employment and accommodation and has engaged in counselling directed to his capacity to remain non-violent. There are some prospects that ageing and these efforts at education will reduce his risk of violence in the future.

70. Each of the purposes of sentencing are relevant. Denunciation of the conduct and recognition of harm to the victim are significant. Rehabilitation and the deterrence of similar conduct in the future are also significant. While specific deterrence still has some role to play, it is less significant in the present context where the most recent offending occurred 11 years ago and there has been no other offending during that 11-year period.

71. In my view, the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) has not been crossed. That is because of the nature of the offending, the fact that it is now so many years since it occurred and the fact that there has been no other offending since 2013.

72. In my view, the appropriate dispositions are as follows: (a) common assault on 19 July 2008: conviction and fine of $2,000; (b) assault occasioning actual bodily harm on 17 March 2012: conviction and good behaviour order for two years, with a requirement to perform 40 hours of community service; (c) assault occasioning actual bodily harm on 14 December 2012: conviction and good behaviour order for three years, with a requirement to perform 60 hours of community service; and (d) common assault on 11 March 2014: conviction and good behaviour order for two years, with a requirement to perform 60 hours of community service.

73. The periods of supervision associated with these good behaviour orders will allow the Director-General to make any directions required in relation to detecting illicit drug use and continuing with behavioural change programs such as that which he is currently undertaking and has expressed a willingness to continue.

Orders

76. The orders of the Court are: (1) On the common assault committed on 19 July 2008 (CAN 4018/2022), the offender is convicted and fined $2,000 and allowed three months to pay. (2) On the assault occasioning actual bodily harm committed on 17 March 2012 (SC CAN 402/2023), the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a condition that he be subject to supervision on probation by the director-general and obey all reasonable directions of that person and a condition that he perform 40 hours of community service within 12 months. (3) On the assault occasioning actual bodily harm committed on 14 December 2012 (SC CAN 403/2023), the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years with a condition that he be subject to supervision on probation by the director-general and obey all reasonable directions of that person and a condition that he perform 60 hours of community service within 12 months. (4) On the common assault committed on 11 March 2014 (CAN 4032/2022), the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a condition that he be subject to supervision on probation by the director-general and obey all reasonable directions of that person and a condition that he perform 60 hours of community service within 12 months. (5) On the charge under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (CAN 3969/2013), pursuant to s 110 of the Crimes (Sentence Administration) Act 2005, the good behaviour order imposed on 23 October 2013 is cancelled and the offender is resentenced as follows: the conviction entered on 23 October 2013 and the period of disqualification from holding or applying for a drivers licence for a period of two years from 23 October 2013 are confirmed and the offender is required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a condition that he be subject to supervision on probation by the director-general and obey all reasonable directions of that person and a condition that he perform 80 hours of community service within that period.

I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: