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1. Xiantao Shang (the offender) is before the court for sentence having been found guilty, following a trial by judge alone, of the following offences: (a) one count of aggravated burglary by joint commission, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code) (CAN 6522/2023); and (b) two counts of assault occasioning actual bodily harm, also by joint commission, contrary to s 24(1) of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 6521/2023 and CAN 6523/2023).

2. The maximum penalty for aggravated burglary is a fine of $300,000, a term of imprisonment for 20 years, or both.

3. The maximum penalty for assault occasioning actual bodily harm is a term of imprisonment for 5 years.

Facts

4. The facts have been discussed in detail DPP v Shang [2025] ACTSC 277 (Shang). The incident that founded all three offences occurred around 7:00pm on 25 June 2023. The offender and a co-offender attended an apartment in Belconnen for the purpose of seeking to recover money owed to them by a debtor. The offenders believed that their debtor was inside and intended to surprise her and compel her to enter into a payment arrangement.

5. When they arrived, it was in fact the offender and co-offender who were surprised, as the debtor they sought was not there. Instead, there was a couple who denied any knowledge of the whereabouts of the debtor.

6. The interaction between the offenders and the couple escalated into an oral argument, which in turn became a physical altercation. The offender punched the male occupant. He also punched or pushed the female occupant and kicked her. The co-offender beat the male occupant with his fists and then kicked him once he was no longer standing. The co-offender also punched and kicked the female occupant multiple times.

7. Both occupants suffered injuries in the form of serious bruising to their heads and other parts of their bodies, with the male occupant’s injuries being more severe: Shang at [103], [114], [223]. The court’s task on sentence

8. The court’s task is to sentence the offender in accordance with the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which include (in summary form) making the offender accountable and denouncing and adequately punishing his conduct, deterring the offender and other people from committing the same or similar offences, recognising the harm done to the victims of the crimes and the community and promoting an offender’s rehabilitation. Those considerations have been taken into account in the reasoning that follows.

9. The mandatory relevant considerations set out in s 33 of the Sentencing Act have also been considered below insofar as they relate to the offender’s circumstances, and in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

10. A consideration of the nature and circumstances of the offences includes an assessment of the objective seriousness of the offence. I referred recently to the principles guiding that assessment in DPP v Brymer [2025] ACTSC 430 (Brymer) at [25]-[26]. The court takes an objective approach, with the maximum penalty for the offence acting as a yardstick. The assessment then informs the ultimate sentence, which must be proportionate to the gravity of the offending.

11. It is preferable to articulate the factors that inform the character of an offence’s objective seriousness: R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [22]; and Laipato v The Queen [2020] ACTCA 35 at [156]. Thus, for the aggravated burglary, applying DPP v Clissold [2023] ACTSC 250 at [33] and the cases there-cited, I have taken into account: (a) The nature of the premises where the burglary occurred (here, residential, in the occupants’ home where they were entitled to feel safe); (b) Whether damage, not separately charged, was caused to the premises (no damage here); (c) Whether the occupants of the premises were present at the time the burglary was committed (the occupants were present); (d) The motivation for the burglary (personal recovery of a debt); and (e) Whether the burglary was pre-meditated, planned or organised and the level of sophistication (the attendance at the premises was planned but on the findings in Shang at [202]-[206], the formation of the intent to threaten harm occurred spontaneously upon the discovery that the debtor was not present in the apartment).

12. I have also taken into account the circumstances of aggravation, being that the offender was in company.

13. For each offence of assault occasioning actual bodily harm, the objective seriousness of the offence must be judged by reference to both the nature of the behaviour in which the offender has engaged, as well as the nature and extent of the actual bodily harm suffered by the victim: R v Newman; R v Reid [2016] ACTSC 102 at [14]. The harm suffered here included injuries to the head of each victim. That is a vulnerable part of the body and can have serious consequences. The harm that was inflicted was also a product of multiple blows on each victim.

14. Further, where an offence is committed by joint commission, one of the features for consideration will include the offender’s role in the offending. In R v Hagen [2022] ACTSC 362; 374 FLR 260 Baker J stated at [27]: The offender is liable for the assault occasioning actual bodily harm by joint commission. Although the offender is liable for the actions of the other participants, when sentencing the offender it is necessary to draw distinctions between the roles and culpability of each of the individual offenders: KR v R [2012] NSWCCA 32 per Latham J (Whealey JA and Harrison J agreeing) at [19] - [22]; Burrows v R [2017] NSWCCA 45 at [37].

15. Contrary to the offender’s submission with regard to the aggravated burglary, I was not satisfied that there was any difference in the roles and culpability of the offender and the co-offender. They each made different contributions to the threat of harm that resulted, but I do not accept that the offender’s role was lesser.

16. The position is different with regard to the assault offences. I do accept that the offender’s role with respect to the female victim was markedly different and that his commensurate degree of responsibility (s 33(1)(i) of the Sentencing Act) was less. For the harm inflicted on the male victim, the extent of the harm was greatly exacerbated by the conduct of the co-offender, which is relevant to the overall seriousness of the conduct vis-à-vis the co-offender.

Injury, loss or damage from offending (s 33(1)(e) of the Sentencing Act)

17. There were injuries suffered from the offending. However, as the fact of harm was an element of two of the offences and has already been considered as part of the nature of the offence, this consideration does not carry separate or additional weight. Victim impact statements (s 33(1)(f) of the Sentencing Act)

18. While there were no formal victim impact statements before the court, the court did have the benefit of the evidence given by each victim in the trial and the impact upon them was part of the evidence that was accepted. I have taken it into account.

Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

19. The offender is 38 years old. He was born in China and had a positive upbringing. He was educated in China, moved to Australia in 2016 and is now a permanent resident. He has been self-employed in the construction industry since 2021. His financial circumstances are stable (s 33(1)(n) of the Sentencing Act). He is married. His spouse does not work. The offender is fortunate that he does not have issues with drugs or alcohol. He has reasonable physical and mental health.

20. The offender has no prior criminal history. The character references provided on behalf of the offender demonstrate that apart from this one incident, he is known to be a kind and gentle individual. He is entitled to leniency, and I am satisfied that what occurred was an isolated event in the offender’s life.

Probable effect of any sentence/order of the offender’s family/dependants (s 33(1)(o) of the Sentencing Act)

21. The offender has a wife and young family. A full-time custodial sentence would weigh heavily on his dependants. While certain consequences may be inevitable, this consideration does impliedly invite the court to craft a sentence in a manner that limits the ripple effect of criminal conduct on a person’s family.

Remorse (s 33(1)(w) of the Sentencing Act)

22. The offender pleaded not guilty. Any belated remorse following the findings of guilt has very little weight here.

Pre-sentence custody

23. The offender has spent 2 days in custody referrable to the offences. This will be taken into account by way of backdating.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

24. The prosecution helpfully provided a table of cases said to be comparable. The offender also drew attention to the cases that were provided to Christensen AJ when the co-offender was sentenced: DPP v XA [2024] ACTSC 292 at [47] (XA). I have taken these cases into account to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].

25. Of the various authorities reviewed, many involve conduct of significantly greater objective serious. Specifically, I considered R v Hanrahan [2020] ACTSC 10 as being more serious than the conduct here in terms of the aggravated burglary.

Parity

26. One of the matters that I consider to have been more influential on sentence than the numerous cases cited was the sentence imposed on the co-offender: XA at [62]. In that regard, the sentences imposed were as follows: (a) For the aggravated burglary, a sentence of imprisonment of 12 months was imposed, reduced from 15 months on account of the co-offender’s plea of guilty; (b) For the assault occasioning actual bodily harm in respect of the female victim, a sentence of 8 months’ imprisonment was imposed, reduced from 10 months on account of the co-offender’s plea of guilty; and (c) For the second assault occasioning actual bodily harm in respect of the male victim, a sentence of 10 months’ imprisonment was imposed, reduced from 12 months on account of the plea of guilty.

27. The sentence was structured with a significant degree of concurrency, with a total effective sentence of imprisonment for 1 year and 10 months imposed, which was suspended immediately on the condition of a good behaviour order with 100 hours of community service to be performed.

28. The applicable principle on parity is that subject to any relevant differences, like cases should be treated alike and neither offender should be left with a justifiable sense of grievance from the sentences imposed on each other: Le Clair v The Queen; Achanfuo- Yeboah v The Queen [2017] ACTCA 19 at [48]; Rubino v The Queen [2015] ACTCA 22 at [26]-[27].

29. The difficulty here is that although the co-offender has been sentenced in respect of the same offences with the same victims, the facts upon which he was sentenced were substantially different from those that transpired following a contested trial. The role of each offender was clarified through that evidence.

30. Importantly, I have found that the role of the offender here was reduced with regard to harm to the female victim. That will be reflected in the overall sentence.

Totality

31. The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited). Here, there were two separate victims, but the three offences were effectively simultaneous and that permits for a significant degree of concurrency. I consider the assault against the male victim to have overlapping criminality with the threat of harm element in the burglary offence in that the threat of harm materialised into actual harm in close proximity. I also consider that the criminality of the assault against one victim can substantially comprehend the criminality of the conduct involving the other victim, but some accumulation is required to recognise the separate victims.

Disposition

32. Acknowledging that the imposition of a term of imprisonment is a sentence of last resort (s 10 of the Sentencing Act), there was no dispute that it was appropriate in respect of each of the offences here. The length of the sentences has been largely influenced by my assessment of the different roles between the offender and co-offender and takes account of the fact that this offender did not plead guilty and so does not have the benefit of any discount. Otherwise, the offender was found suitable for an intensive correction order but given my finding that this was an isolated event that will not be repeated and was not the product of any ongoing criminogenic risk factor, I will not make an intensive correction order (that is, I am not persuaded there is any matter specifically requiring correction).

33. The whole process and expense of undergoing a criminal trial coupled with the two days in custody has, in my view, served as sufficient immediate punishment and personal deterrence for this offender.

34. The fact of imprisonment and the length of the sentences to be imposed give effect to denunciation, general deterrence and recognition of harm to the two victims. Of course, the punishment includes the offender’s daily knowledge that he is at risk of further full-time custody if he breaches any of the conditions of a sentence that will be suspended.

35. Remaining in the community is the clear and obvious choice for a sole income earner responsible for the welfare of three people, two of whom are his children. It supports rehabilitation. I have not considered it appropriate to impose any community service condition in further deference to the different role this offender played in what occurred. Orders

36. The orders of the Court are: (1) For the offence of aggravated burglary by joint commission, contrary to s 312 and 45A of the Criminal Code 2002 (ACT) (Criminal Code) (CAN 6522/2023) the offender is convicted and sentenced to a term of imprisonment for 15 months, backdated to commence on 28 October 2025 and conclude on 27 January 2027. (2) For the offence of assault occasioning actual bodily harm, by joint commission, contrary to s 24(1) of the Crimes Act and by virtue of s 45A of the Criminal Code (CAN 6523/2023), the offender is convicted and sentenced to a term of imprisonment of 10 months to commence on 1 July 2026 and conclude on 30 April 2027. (3) For the offence of assault occasioning actual bodily harm, by joint commission, contrary to s 24(1) of the Crimes Act 1900 (ACT) (Crimes Act) and by virtue of s 45A of the Criminal Code (CAN 6521/2023), the offender is convicted and sentenced to a term of imprisonment of 6 months to commence on 1 February 2027 and conclude on 31 July 2027. (4) The total effective sentence of 1 year, 9 months and 4 days is suspended from today, 30 October 2025 until the conclusion of the sentence (31 July 2027) on the condition that the offender undertake to comply with the core conditions of a good behaviour order pursuant to ss 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT) for the period of the remainder of the sentence (30 October 2025 to 31 July 2027).

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: