DPP v Scott

Facts

3. The factual background to the offending is set out in an agreed statement of facts. What follows is a summary of those facts.

4. The offender and the victim were in an intimate relationship for about three years, from early 2022 to 2025. They lived together in an apartment in Braddon, in the Australian Capital Territory (ACT).

5. Both the offender and the victim have a documented history of mental health conditions, which will be detailed below. It is presently relevant to note that the offender was diagnosed after the offences were committed as suffering from autism spectrum disorder. The offender was 20 years old at the time of the offending, but expert psychiatric evidence tendered on his behalf on sentence suggested that he was a young man whose emotional and social maturity lagged well behind his chronological age.

6. On the evening of 11 February 2025, the offender and victim were preparing to go to bed. They began to argue, which caused the offender to run from their unit and down the stairwell of their apartment complex to get away from the victim. The victim followed him and tried to hug him in the stairwell to console him and to prevent him from leaving.

7. A physical altercation followed, with the offender flinging his arms around to prevent the victim from hugging him and to separate himself from her. In order to extricate himself from her grasp, the offender punched and kicked her, resulting in abrasions and bruises on her arm, back and legs. This is the aggravated assault occasioning actual bodily harm to be taken into account on sentence (CC2025/1942).

8. The offender then attempted to grab the victim around the throat. He pushed her against the wall, eventually wrapping his arm around her neck from behind in a chokehold. The victim felt panicked and thought that she might become unconscious. This is the first act endangering health for which the offender is to be sentenced (SCCAN454/2025). The offender released the victim and ran further down the stairs. Eventually, the victim was able to convince the offender to return to their residence for the night.

9. The following morning, on 12 February 2025, the offender and victim awoke at about 9:00am. Again, they began to argue. The offender said words to the effect of “No, I want to die. I don’t actually forgive you for last night, I was lying.”

10. At some point, the offender picked up a fishing knife and directed it towards his own wrist, in an apparent threat to harm himself. The victim said “no you promised me you wouldn’t do that...” and removed the knife from the offender by grabbing onto the blade.

11. The offender once again placed his hands around the victim’s neck and applied pressure, and said words to the effect of “I hope we die” or “I hope you die” or “I hope I die.” This is the second act endangering health (CC2025/1941) for which the offender is to be sentenced. I note that the prosecution accepted that while the offender had made a comment indicating a desire for someone to die, it could not be established beyond reasonable doubt that this was an expression of a desire for the victim to die.

12. After releasing the victim, the offender took a bread knife from a kitchen drawer and inflicted a deep laceration into his own arm. The victim tried to prevent him from harming himself further and called an ambulance. ACT Ambulance Service conveyed the offender to hospital. The victim was also treated at the hospital for injuries including bruising to her arms and neck and a swollen ankle.

13. The offender was arrested at the hospital on 12 February 2025. The offender underwent surgery on 13 February 2025 for the self-inflicted injury to his arm.

14. A series of photographs of the victim’s injuries taken on 12 February 2025 were tendered on sentence. They show significant injuries referable to the offending, including: a) bruising and abrasions to the neck; b) bruising swelling and abrasions to the right upper arm; and c) bruising and abrasions to the back.

Victim impact

15. No victim impact statement of the victim was tendered on sentence. However, it can readily be accepted that the victim was subjected to a terrifying ordeal over the two days of the offending. It is a particularly concerning aspect of the offending that it took place inside the victim’s own home where she was entitled to feel safe.

Objective seriousness

16. As the Court of Appeal noted in Laipato v The Queen [2020] ACTCA 35 at [156], any attempt to place an offence on a spectrum of seriousness “invites a simplistic approach to sentencing that is generally unhelpful”. Instead, it is preferable to identify and articulate the factors that inform the character of the objective seriousness of the offence.

17. The courts now realise how serious the offence of choking is, particularly in a family violence context. The Revised Explanatory Statement to the Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015 (ACT), which created the separate choking offence, referred to various research stating (at p 8): Non-fatal strangulation by a partner is one of the most important predictive risk factors for intimate partner homicide.

18. It is very much the experience of this court that offences of this type often form part of a suite of offences of serious family violence, characterised by domineering, controlling and coercive behaviour.

19. In DPP v Padreny [2024] ACTCA 4 at [131], the Court of Appeal considered the factors which go to the objective seriousness of this offence: To understand the spectrum of conduct by which a Court assesses the objective seriousness of an offence, it is helpful to explain some of the features of conduct that may be of relevance in assessing the objective seriousness of the offence. For this offence, without being exhaustive, the following have been referred to: (1) the length of time during which the “choking” persisted; (2) the amount of force used; (3) whether the victim’s breathing was restricted; (4) whether verbal threats were made at the time of the choking; (5) whether the victim sustained any injuries; (6) whether any aides like rope or cable were used; (7) the vulnerabilities of the victim; (8) whether the conduct was deliberate and sustained, designed to threaten and inflict harm; and (9) whether the conduct occurred in a family violence context: see for example, R v Bonfield [2021] ACTSC 362 (Bonfield) at [68]-[69]; DPP v Linsley [2023] ACTSC 255 at [12]; and DPP v Rohrlach [2023] ACTSC 166 (Rohrlach). These features are not to be treated as a checklist. As explained by McCallum CJ in DPP v Moala (No 3) [2023] ACTSC 306 at [24], having referred to both Bonfield and Rohrlach in the context of an offence contrary to s 28(2)(a) of the Crimes Act: …Such lists can be useful provided their limits are understood. A list of factors drawn from decided cases can never serve as a proxy for the central judicial function of making an evaluative assessment of the overall objective seriousness of an offence having regard to the circumstances of the case at hand. The offender’s submissions treated Refshauge AJ’s discussion of the authorities [in Bonfield] as a checklist of factors in the absence of which an offence would sit at the bottom of the range of objective seriousness. That is plainly not what his Honour intended. It is trite that the absence of an aggravating factor does not mitigate an offence; it simply means the offence is not aggravated by that factor.

20. On behalf of the offender, it is submitted that in considering these factors, each episode was brief and neither involved a sustained application of pressure. Further, it is submitted that the injuries sustained fall at the lower end of the range of harm contemplated by the offence.

21. It is also submitted on behalf of the offender that the victim was not rendered insensible or unconscious. In relation to that submission, the prosecution points out that a loss of consciousness would substantiate a more serious offence pursuant to s27 of the Crimes Act, and accordingly the absence of a loss of consciousness cannot be seen as a factor which renders the offence less serious.

22. I do not accept that the factors referred to on behalf of the offender render this offending anything other than a serious example of offending of this type. The offences were committed in a family violence context in the victim’s own home and constituted a breach of trust.

23. However, I do except the offender’s submission that neither offence involved conduct of domination or punishment by the offender. Indeed, each occurred in the course of the offender attempting to leave and then being physically prevented from doing so. That does not excuse his response, but it does bear directly on the degree of his responsibility and distinguishes this case from the paradigm of coercively controlling family violence. This was not a case, such as the court unfortunately sees all too often, where there is a long history of a dysfunctional relationship or indeed a series of dysfunctional relationships which form the background to serious offending.

Plea of guilty

24. The offender pleaded guilty following a negotiation on 9 June 2026, 10 months after the matter was first in the Supreme Court but before a criminal case conference had occurred. There was particular utility in the plea because the victim had not wanted the offender to be charged and would have been required to give evidence if the matter had proceeded to trial. A discount of 20% to reflect the plea of guilty is appropriate.

Subjective circumstances

25. The pre-sentence report records that the offender had a stable childhood, although there were periods of living overseas. The offender left school after completing year 12 and is currently in his second year of tertiary study in the field of civil engineering. He is employed part-time in gardening and landscaping and he has been with his current employer for 18 months. I interpolate that also before the Court is a reference from the offender’s employer who speaks of the offender as a genuinely valued member of the team who has never missed a shift and whose consistency and reliability are qualities the business depends upon.

26. To the author of the presentence report, the offender reported alcohol use from the age of 14 and regular use of benzodiazepines from the age of 17 with some use of other drugs. However, he has denied any substance use since his release from custody.

27. As to the offender’s attitude to the offences, the pre-sentence report notes that the offender took responsibility for his behaviour and acknowledged that he had acted inappropriately. He verbalised empathy towards the victim and the impacts of his behaviour while identifying poor mental health as contributing to his offending. He indicated a willingness to participate in a domestic violence treatment program if required. He has been assessed as suitable for a low level of supervision with ACT Corrective Services.

28. On behalf of the offender, a comprehensive report of Dr Richard Furst, a forensic psychiatrist, dated 22 September 2026 was tendered. This report was of considerable assistance to the Court. It sets out in detail the offender’s psychiatric history. In particular, the report records that the offender struggled academically, socially and emotionally in his childhood, being anxious, obsessive and rigid, with deficits in social and communication skills. The offender would get overstimulated and would struggle to deal with things and did not understand social cues or the subtext of communication.

29. Unsurprisingly, the offender has now been diagnosed with autism spectrum disorder, although this diagnosis did not happen until after the offending.

30. Dr Furst concludes that the offender meets the criteria for the diagnosis of the following mental health and cognitive disorders: a) autism spectrum disorder; b) attention deficit hyperactivity disorder; c) obsessive compulsive disorder; and d) substance use disorder.

31. Dr Furst opines that the first three disorders had their origin in his early childhood: “Those disorders tend to be persistent, suggesting he will continue to struggle with associated functional deficits and symptoms throughout his adult life.”

32. As to the impact of the offender’s mental health on the offending, Dr Furst opines that the offender’s ability to exercise appropriate judgement was impaired: The cognitive and emotional deficits associated with his autism spectrum disorder in particular made it difficult for him to negotiate the challenges of his relationship with [the victim] at the time in question, particularly in relation to problem-solving, communication and nuances of interpersonal relationships, especially intimate relationships.

33. Dr Furst further opines that the offender’s cognitive and emotional deficits impaired his ability to make calm and rational choices in the moment of the offending. However, the offender’s ability to appreciate the wrongfulness of his conduct was not impaired. In other words, he was aware that his conduct was wrong.

34. Dr Furst’s report lays out a comprehensive treatment plan for the offender, a plan he is already following. It includes treatment with his general practitioner and a clinical psychologist.

35. Letters in support of the offender were also tendered to the Court. These included a letter from the offender’s mother attesting to the dedication with which the offender has approached his rehabilitation since his release from custody, including his engagement with mental health professionals and his pursuit of employment and study.

36. Another letter from a professional builder, who was a friend of the offender’s father but who has now come to know the offender, also speaks highly of the offender’s approach to employment and study.

Remorse

37. I have already referred to what the pre-sentence report has to say about this aspect. In addition, a letter from the offender himself was tendered to the Court. In that, the offender expresses his sorrow for his offending and for the harm that it caused the victim, stating that he takes the blame for what he did without exception. The offender details his relationship with the victim noting his own psychiatric issues and drug issues, but also what he says were psychiatric issues and drug issues of the victim. The offender outlines various difficult and indeed traumatic events to which he and the victim were subject and which I will not detail. The relationship spiralled out of control and the couple were arguing constantly. The offender gives an account of the two instances that led to the charges before the court, noting that he was trying to take himself out of the situation, calm down and come back when he was less agitated. However, on the night of 11 February 2025, the victim “caught up with me and I lost control”.

38. The offender states that he takes full responsibility for his appalling behaviour. He then outlines the steps he has taken, particularly since his release from incarceration. In referring to his autism diagnosis, the offender states that he does not raise it as an excuse, but to note that what it has done is to allow his psychologist and him to “understand why I react the way I do when I am overwhelmed, and work on it directly instead of guessing.”

Time in custody

39. The offender was arrested at hospital and charged on 12 February 2025. He appeared before the Magistrates Court on 14 February 2025 and was remanded in custody. He was subsequently released on bail on 11 March 2025. He thus served 28 days of pre-sentence custody.

Comparative sentences

40. I have been provided by the prosecutor with a table of cases setting out sentences in matters involving aggravated acts endangering health. I have had careful regard to these cases, in particular the principles they espouse as being relevant to sentencing for this offence. However, none of the matters was particularly apposite to the present case. Many of the matters involve serious prolonged and persistent family violence, which is not this case. Some of them, for example DPP v Howarth [2024] ACTSC 322 deal with offences which are part of a course of conduct in which the offender sought to punish and control his domestic partner through violence and degradation. One of the matters, DPP v Linsley [2023] ACTSC 255, involved a young offender, but the offending was more violent and prolonged than the current case. That offender received a completely suspended sentence.

Disposition

41. As the offender’s counsel points out, in sentencing the offender I am required to take into account the offender’s mental condition and cognitive impairment: s 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The offender’s counsel submits (and the prosecution is not heard against this) that the principles in R v Verdins [2007] VSCA 102 at [32] are very much engaged.

42. It is submitted that the offender’s moral culpability is reduced because of his autistic deficits in communication, problem-solving and negotiation of intimate relationships, his rigidity and his overwhelming need to remove himself from escalating conflict. Together with the impulsivity of his ADHD, this explains (so it is submitted) how a young man with no history of violence came to behave the way he did.

43. It is further submitted that given that the offender’s mental condition has materially contributed to the offending, the offender is not an appropriate vehicle for general deterrence. As well, the weight to be given specific deterrence in this case is slight, because the causes of the offending have been identified, diagnosed and treated in the 18 months since the offending and because the relationship in which the offending occurred as ended.

44. Further, it is submitted that the existence of the offender’s conditions means that custody will weigh more heavily upon him than it would on a person of average health. That proposition is specifically supported by the report of Dr Furst.

45. I accept each of these submissions. I accept the offender’s moral culpability is reduced, I accept that he is not an appropriate vehicle for an expression of general deterrence and that given his progress of rehabilitation, the need for specific deterrence is not great. I also accept that custody would weigh more heavily upon the offender than on a person without his deficits.

46. I also find much force in the submission made on behalf of the offender that while general deterrence is of course an important factor in cases of family violence, in the present case this is moderated by the fact that the conduct was the product of the offender’s condition rather than of attitudes to women and to relationships, factors that typically make family violence offending so resistant to reform.

47. I accept that the offender has taken substantial steps in his rehabilitation since his release from custody. He has been abstinent from the use of drugs, he is engaged with his mental health professionals, he has gained entry to Macquarie University and is in the second year of an engineering degree, and he works hard as a landscape gardener. There is much force in the submission made on his behalf that where an offender has of his own motion and over a sustained period done everything that could be asked of him, the protection the community is best served by a sentence that preserves that progress rather than one that interrupts it.

48. The prosecution does not dispute that the offender has taken significant steps in his rehabilitation. Nor does the prosecution dispute that this case is atypical in terms of family violence offending. Nevertheless, the prosecution submits that the objective seriousness of the offences warrant that terms of imprisonment be imposed, albeit the prosecution accepts that it would be appropriate to suspend any further period of imprisonment.

49. The prosecution also specifically submits that the circumstances of the current offending are not such as to justify the sentences being fully concurrent. The prosecution refers to well-known authority on the issue of concurrency: see in particular R v White [2023] ACTCA 36 at [40] et seq.

50. I appreciate the need to recognise discrete acts of harm towards the victim in the structure of the sentence. Nevertheless, I accept the submission made on behalf of the offender that in effect these offences were part of one episode and can be appropriately dealt with concurrently.

51. The real contest between the parties on sentence was the ultimate form of the sentencing order. On behalf of the offender, it is submitted that I would not be satisfied, having regard to possible alternatives, that no other penalty than imprisonment is appropriate: see s 10(2) of the Sentencing Act.

52. I accept that submission. I bear in mind that the offender has in fact spent 28 days in custody in relation to this matter. As was remarked in McMillan v R [2024] NSWCCA 83 at [94] per McNaughton J: if an offender has been held in custody in relation to any offence and a court is considering an appropriate penalty, including a non-custodial option, the sentencing court must take into account any pre-sentence custody. (Emphasis in original.)

53. Further, I am satisfied that following his release from custody he has with single-minded determination pursued his rehabilitation. I am satisfied that he has developed self-awareness about his condition, and that he appreciates the harm that he has caused to the victim. I also take into account the relatively early plea of guilty and the fact that, as I have found, the offender’s moral culpability was reduced.

54. I take into account that the offender was young and his social and emotional maturity lagged behind his chronological age. He has no prior history of offending.

55. Although the issue of general deterrence quite properly looms large in relation to family violence matters, I am satisfied that this incident, while recognising its traumatic effect on the victim, was a one-off event and the conduct was the product of the offender’s condition and the particular circumstances of his relationship, rather than of a general attitude towards women and relationships. As the prosecution accepts, this was an atypical example of offending of this type.

56. In sentencing on SCCAN454/2025, I take into account the scheduled offence CC2025/1942.

57. In all the circumstances I am satisfied that a penalty other than imprisonment is appropriate and I will convict the offender and require him to enter into an undertaking to be of good behaviour. As the offender now resides outside of the ACT, I will not make it a condition that he accept the supervision of ACT Corrective Services. However, to ensure his rehabilitation is kept on track, I will make a condition that he not consume illicit substances, and that he comply with the directions of his treating medical practitioners.

Orders

58. The orders of the Court are: (1) On the act endangering health SCCAN454/2025, 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 the following additional conditions: (a) The offender comply with all reasonable directions of his treating doctors, psychologists or psychiatrists in respect of counselling and medication; (b) The offender is not to consume drugs, as defined by s 132 of the Corrections Management Act 2007 (ACT). (2) On the act endangering health CC2025/1941, 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 the following additional conditions: (a) The offender comply with all reasonable directions of his treating doctors, psychologists or psychiatrists in respect of counselling and medication; (b) The offender is not to consume drugs, as defined by s 132 of the Corrections Management Act 2007 (ACT).

I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice White. Associate: L James Date: 12 October 2026