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[2026] ACTSC 324
Supreme Court of the ACT
2026-08-31
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Terry Barajas (a pseudonym) Citation: [2026] ACTSC 324 Hearing Date: 15 July 2026 Decision Date: 31 August 2026 Before: Muller J Decision: See [49] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young person – aggravated burglary – joint commission assault occasioning actual bodily harm – offences taken into account – parity – plea of guilty – strong prosecution case – seriousness – circumstances of the offender – young offender considerations – current practice – suspended term of imprisonment Legislation Cited: Crimes Act 1900 (ACT), s 24 Crimes (Sentencing) Act 2005 (ACT), ss 7, 13, 57, 133C, Ch 8A Crimes (Sentencing Administration) Act 2005 (ACT), s 85, 86 Criminal Code 2002 (ACT), ss 45A, 308, 312 Cases Cited: Cranfield v The Queen [2018] ACTCA 3 DPP v Eneliko [2025] ACTSC 306 R v Barton [2001] NSWCCA 63; 121 A Crim R 185 R v Campbell [2010] ACTCA 20 R v Elphick [2021] ACTSC 9 Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191 Parties: Director of Public Prosecutions Terry Barajas (a pseudonym) (Offender) Representation: Counsel E Priestly (DPP) A Kernaghan (Offender) Solicitors ACT Director of Public Prosecutions Good Legal Lawyers (Offender) File Number: SCC 277 of 2025 MULLER J:
Terry Barajas (a pseudonym) comes before me to be sentenced.
On 16 June 2025, Mr Barajas and three co-offenders attended an apartment in Turner where they violently assaulted and robbed the occupant who was known to them. The group arrived at the apartment complex together. Entry was gained via deceiving another resident to open a door. Mr Barajas rang the intercom to the building and spoke to a resident, asserting his mother had left her bag in the apartment and access was required to retrieve it. The resident admitted Mr Barajas to the building via the intercom and waited for him at the level 1 elevator. When no one emerged, the resident returned to his apartment but shortly thereafter he heard muffled voices in the hallway and a loud knocking on another apartment door. He looked out the door and saw a male standing at the door to unit 6 wearing a black head covering, white hooded jumper and holding a Japanese style sword.
The resident did not see anyone else but heard another voice. He rang 000. The victim, hearing the knocking, opened the door to unit 6 at which time all of the offenders, who were by then in the hallway, entered the apartment.
The offenders pushed the victim to the ground and hit him on the head with a pole. The victim was kicked and hit with other poles, before being dragged through the apartment to his bedroom. The offenders then ransacked the victim’s bedroom where they packed several pairs of shoes into a fitted bed sheet. They also demanded money, but the victim denied having any.
The police attended the building in response to the 000 call, arriving as the offenders were leaving. The offenders fled and dropped items stolen from the victim’s home as well as the weapons used. Mr Barajas was found underneath a parked car in a carpark nearby. Police noted what seemed to be blood on his hands; he was wearing a dark coloured beanie, dark puffer vest, a black long sleeve hooded jumper and dark coloured tracksuit pants.
Once in police custody, Mr Barajas said he freaked out and began running, not knowing what to do; he said, “I did not know we were going to do that”, (presumably with reference to the burglary and assault).
Mr Barajas was 17 years old at the time of the offending and is therefore a young offender for the purposes of Ch 8A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act).
His charges are as follows: Aggravated Burglary Contrary to s 312 of the Criminal Code Plea of Guilty 2002 (ACT) entered on 20 CH 2025/1016 March 2026 Maximum Penalty: 20 years imprisonment, $320,000 fine or both Joint Commission Assault Contrary to s 24 of the Crimes Act 1900 Plea of Guilty Occasioning Actual Bodily (ACT) by virtue of s 45A of the Criminal entered on 20 Harm Code 2002 (ACT) March 2026 SCCAN 2026/60 Maximum Penalty: 5 years imprisonment
I am asked by Mr Barajas to take into account, as part of this sentencing exercise, additional offending. That power is enlivened by s 57 of the Sentencing Act. The offending to be taken into account is:
Joint Commission Theft Contrary to s 308 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT) Maximum Penalty: $160,000 fine, 10 years SCCAN 2025/507 imprisonment or both.
For the purpose of taking that offending into account, Mr Barajas has not entered a formal plea, but rather pursuant to the relevant sentencing provisions makes an admission of guilt as to the offending
I have taken the additional offending into account and am guided by the approach taken by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]-[50] noting in particular: (a) the offender is not to be sentenced on any additional offences; (b) although the additional offences, once taken into account, may have the effect of altering or increasing the sentence that would otherwise be imposed on the principal charges, whatever sentence is imposed cannot exceed the maximum penalty for that offence; (c) I am not obliged, nor is it necessary for me to indicate precisely what effect is given to taking into account additional offending on sentence; (d) any consideration occurs in the same way that one would take other matters into account for the sentencing exercise; (e) relevant sentencing principles apply and may constrain the consideration of additional offending – particularly as to totality; and (f) in taking the additional offending into account greater weight is given to the need for personal deterrence as well as the community’s entitlement to exact retribution in the circumstance where there is no punishment imposed for particular offences: R v Barton [2001] NSWCCA 63; 121 A Crim R 185.
Mr Barajas has spent a period of 22 days in custody attributable to the two charges on which he is to be sentenced; from 16 June 2025 when his bail was refused, until 7 July 2025. He has no relevant breach matters to be dealt with currently.
The victim has elected not to provide an impact statement. Plea of guilty
A plea of guilty was entered at the criminal case conference. Accepting some utilitarian value in the plea the prosecution contends any discount should be modest, reflecting both the timing of the plea and the overwhelmingly strong prosecution case.
Mr Barajas does not disagree significantly with the strength of the prosecution case, but points to the real utilitarian value arising from the resolution of a multi-accused matter otherwise destined for trial, with civilian witnesses required to give evidence including the victim, and the analysis of closed-circuit television and forensic evidence. On the strength of the case, he points to some uncertainty of outcome arising inevitably in a multi-accused matter. He submits the plea should be viewed as reflecting some insight into Mr Barajas’ acceptance of responsibility and remorse, resulting in a meaningful discount being given.
I accept the prosecution’s submission to the effect that the case against Mr Barajas was strong, with particular regard to the admissions he made shortly after the offending. The Court of Appeal observed in Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]: The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47]: The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10–15%. A common sense approach to “utilitarian value”, the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge. The context and terms of s 35 (2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a ‘normal’ discount may be inappropriate having regard to the other considerations in s 35 (2) or other circumstances, including those identified by Howie J in Borkowski. Nature and circumstances of the offence
The parties in advance of sentencing provided me with an agreed statement of facts from which the summary set out above is drawn. Whilst the maximum penalty for the offence will provide my assessment of sentencing with a yardstick, the sentence imposed must be proportional to the point at which Mr Barajas’ offending falls upon the spectrum of objective seriousness.
The following factors are of particular relevance in assessing the objective seriousness of the offending: (a) both elements of aggravation are present. Mr Barajas was in company with three other people and had an offensive weapon with him; (b) the events occurred in residential premises and involved breaching security access to those premises; (c) there was clearly some degree of planning involved; (d) the offending included multiple blows to the body, including the head, and significant injuries requiring medical treatment that included stapling of a substantial scalp wound; and (e) notwithstanding the absence of a victim impact statement the injuries were significant and the assault involving multiple assailants entering private accommodation and attacking the victim’s head and body with a range of weapons must have engendered intense fear in the victim compounding his undoubted symptoms of pain. It is reasonable to infer the psychological impacts of such an assault are likely to be ongoing.
The combination of factors I have identified leads me to conclude this constitutes a serious example of this type of offending. Mr Barajas’ voluntary use of illicit drugs prior to the offending, although evidently impactful upon him, does not alter the seriousness of the offence, although it does bear upon his moral culpability. Parity principle
There are four co-offenders, and Mr Barajas is the only one who meets the definition of a young offender for the purposes of the Sentencing Act, although I note one of the four is yet to be identified. Of the two adult co-offenders one has entered a plea of guilty and is yet to be sentenced and the other has pleaded not guilty and is at this stage going to trial. Issues of parity must therefore be considered without the benefit of any sentencing guidance arising from the co-offending matters.
As the Court of Appeal observed in Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191 at [56]: The “parity principle” is a manifestation of the fundamental principle of equality before the law. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609 (Lowe): “[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”. As his Honour observed, however, other things are not always equal. There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them. The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.
It is reasonable to infer with regard to the composition of the offending group, Mr Barajas’ relative immaturity, and his ingestion of a particular illicit substance for the first time shortly prior to the offending that, to use the words of the prosecutor, “he may have been somewhat led down the garden path”. As the prosecution concedes, the foundation for that inference is strengthened by Mr Barajas’ lack of any prior history of criminal offending or significant antisocial behaviour.
I accept the application of the parity principle in this case leads to the conclusion Mr Barajas’ offending sits below that of the principal offenders.
Circumstances of the offender
I have the benefit of a pre-sentence report prepared by Youth Justice and Adolescent Services (YJAS) on behalf of Mr Barajas.
Mr Barajas is the youngest child born to his mother and father. He has two brothers; half-siblings who are a few years older. He described his childhood in positive terms, “everything was fine. I got along with my parents”. He said he had positive childhood memories of cruising holidays and regular trips to the coast.
Mr Barajas first came into contact with Children, Youth and Families (CYF) in 2008, aged approximately 12 months. There have been nine Child Concern Reports and one intervention since 2008. The intervention arose when his mother tripped whilst carrying him, hitting his head on a door. Later reports from 2022 onwards all related to Mr Barajas’ poor school attendance.
Mr Barajas’ father articulated “normal” rules implemented within the home, including a non-strict curfew, respectful behaviour and letting his parents know where he was. Mr Barajas described a positive relationship with his mother and father. In relation to his father he said, “[h]e helps me with anything I need. If I am stuck on the side of the road he would come get me. He will do anything for me”.
He described a good relationship with one brother, but a poor relationship with his eldest brother who moved out of home in 2021 and with whom he has no contact. Mr Barajas said his elder brother treated his family badly and stole money from his mother.
Mr Barajas left school in year nine. He says he enjoyed school overall, although his attendance record in later years indicates a low level of motivation to participate in schooling. He expresses some reservation now about not pursuing education at least to year 10 level. Since leaving school he has obtained qualifications in the form of “white card, asbestos, and silica”. Mr Barajas attended Murrumbidgee Education whilst in custody and no concerns were raised regarding his respect and engagement with that program.
With respect to his education and activity prior to the offending the authors of the pre-sentence report observe: Whilst it is clear from discussions with [Mr Barajas] and [his father], prior to the current offence there were ongoing concerns around [Mr Barajas] not attending or engaging in education, him being unemployed and not seeking employment, him associating with anti-social peers who would encourage him to engage in substance misuse and was not engaged in any organised activities and could have made better use of his time.
Upon his release from Bimberi Youth Justice Centre, and with assistance from his father, Mr Barajas quickly secured full-time employment with Baxter Engineering. He is still employed there. He works generally from 6am to 4:30pm Monday to Friday. His work involves building and testing pipes. He enjoys the work but finds it repetitive. Since obtaining full-time employment Mr Barajas is no longer financially dependent on his parents. Currently, he earns $1,200 after tax per week. He pays board to his parents of $150 per week. He pays for his own car, insurance, fuel, food and other amenities. He says he has no outstanding bills or debt.
Mr Barajas has no concerns with his physical health and maintains positive health through attending the gym when he has time, given work commitments. Mr Barajas has no past or current mental health concerns.
Mr Barajas has a drug and alcohol history. He tried alcohol in a social setting when he was 13 years old. He commenced engaging in drug use when he was 16 years old and would consume MDMA once a month on the weekend. He said although he has tried other drugs, he ceased using them a long time ago; he qualified that statement in that he had tried methamphetamines and Valium.
Mr Barajas believes his offending is related explicitly to his drug use. He believes if he had not engaged in any drug use prior to the offence, he would not have committed the offence. The offending was the first time he had taken “Nazixnans” and because of this he could not remember much of the offence itself (“Nazixnans” allegedly being some form of swastika branded Xanax street drug). As a part of his bail, Mr Barajas has been subject to conditions including not consuming drugs and alcohol. Urinalysis conducted on two occasions returned a negative result and there is no indication of ongoing illicit drug or alcohol use at this time.
Since being released from custody, Mr Barajas has ceased contact with some of his previous anti-social peers and has had no contact with the co-offenders. He has pro-social connections with whom he is in regular contact, including work colleagues. In terms of peer associations, it is a strongly positive factor that Mr Barajas’ girlfriend and his best friend appear to be pro-social influences with no criminal history. That factor combined with the strongly positive experience full-time employment has presented for Mr Barajas are matters to which I have attributed significant weight in the sentencing exercise.
Mr Barajas has, as a part of his bail conditions, been subject to supervision on a weekly basis. Where he has been unable to attend supervision for various reasons because of illness for example, he contacted YJAS and confirmed an alternative time. Observations of Mr Barajas whilst supervised are that he was polite, respectful and engaged. No concerns were raised whilst he was remanded nor whilst he was on bail. Whilst in custody specifically, Mr Barajas was noted as polite and respectful, attended all classes, completed relevant chores and encouraged others to engage in positive behaviour.
I accept there has been some expression of remorse by Mr Barajas. Notwithstanding the evident self-interest in the proffering of expressions of regret following a plea of guilty to a serious criminal charge, I am satisfied this was a situation that from the perspective of Mr Barajas may have got out of hand. Having said that, he was in possession of a weapon indicating some intent to cause harm. I have not given significant weight to his expressions of remorse in all the circumstances. However, I am satisfied as a consequence of the life changes he has implemented since his release he is significantly motivated to improve his situation and avoid future criminal offending. Special considerations – sentencing young offenders
Chapter 8A of the Sentencing Act sets out particular provisions applying to the sentencing of young offenders. The promotion of rehabilitation in any sentencing exercise involving a young offender must be considered and may be given primacy over other considerations. Questions of maturity, state of development and family circumstances must be taken into account and must be addressed in the pre-sentence report.
Any sentence of imprisonment imposed must be a last resort and for the shortest appropriate term. As part of the sentencing exercise the court must consider the option of a combination sentence, consisting of a sentence of imprisonment in combination with a good behaviour order and supervision condition.
I am satisfied the pre-sentence report traverses the relevant areas and I have taken the factors set out above into consideration in the sentencing exercise.
I have had particular regard to s 133C of the Sentencing Act in respect of both individualised justice and promoting the rehabilitation of Mr Barajas; in addition to the general purposes of sentencing set out in s 7.
Current sentencing practice
Each of the parties provided some comparable cases for my assistance. I recognise the limitations on comparable decisions in the sentencing exercise, the essence of which is a discretionary determination after synthesising a number of variables with due regard to broader sentencing guidelines.
I was referred by the prosecution to the decision of R v Elphick [2021] ACTSC 9 where Murrell CJ in addressing sentencing statistics (after conceding their limitations) observed at [154(a)]: … sentencing statistics show that, in relation to sentences imposed by the Supreme Court, when the penalty that is imposed is imprisonment: (a) the offence of aggravated burglary usually results in a sentence of between 18 months’ and three years and six months’ imprisonment;
Of the other decisions to which I was referred, the prosecution identified the matter of DPP v Eneliko [2025] ACTSC 306 as perhaps the most helpful. As in this case, the elements of aggravation were being in company and possessing a weapon. The offender was a young person sentenced for offences of aggravated burglary and assault occasioning actual bodily harm. He was approximately 17 years old at the time of the offending. The offender was sentenced on the aggravated burglary charge to 1 year and 7 months and on the assault occasioning actual bodily harm 1 year and 2 months with the sentences fully suspended.
Mr Barajas submits the appropriate sentence is a conviction with a term of imprisonment on each count wholly suspended upon his entry into a good behaviour order for such period as the court considers suitable.
Sentences
For the offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT), carrying a maximum penalty of 20 years imprisonment, I consider an appropriate starting point to be a sentence of two years. For the offence of joint commission assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT), by virtue of s 45A of the Criminal Code 2002 (ACT), carrying a maximum penalty of five years, I consider a sentence of 14 months to be appropriate. I have taken into account as part of the sentencing exercise the additional offending of joint commission theft, contrary to s 308 of the Criminal Code 2002 (ACT), by virtue of s 45A of the Criminal Code 2002 (ACT). In taking into account the additional offending Mr Barajas is not to be separately sentenced for that conduct but there is a need to give greater weight to personal deterrence and to the community’s entitlement to appropriate retribution for serious offending.
In considering totality, I note the offences occurred in the course of a single episode, and they are properly to be viewed as part of a course of conduct with a consequent degree of concurrency. I am conscious of the need to structure the sentence so as not to provide a discount for multiple offending. After allowing for concurrency, the total sentence I propose for the offending is two years and four months. After applying a discount of approximately 15% for the plea of guilty, I reach a head sentence of two years. I have backdated the commencement date to allow for 22 days served such that the sentence will commence on 9 August 2026 and end on 8 August 2028. That sentence is suspended immediately upon the offender entering into a good behaviour order today 31 August 2026 for a period of two years until 30 August 2028.
Under s 13(2) of the Sentencing Act, Mr Barajas is required to sign an undertaking to comply with the good behaviour obligations under s 85 of the Crimes (Sentencing Administration) Act 2005 (ACT) including the core conditions set out in s 86 of that act and that he accepts such supervision for the period deemed necessary by ACT Corrective Services. Orders
Terry Barajas please stand: (1) Terry Barajas, I convict you in relation to the offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (CH 2025/1016), and sentence you to a total effective sentence of imprisonment of 1 year, 8 months and 11 days, commencing 9 August 2026 and ending 19 April 2028. (2) Terry Barajas, I convict you in relation to the offence of joint commission assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT) (SCCAN 2026/60), and sentence you to a total effective sentence of imprisonment of 11 months and 27 days, commencing 13 August 2027 and ending 8 August 2028. (3) The overall head sentence is for a period of 2 years. That sentence is suspended immediately upon you entering into a good behaviour order for a term of 2 years commencing today 31 August 2026 and ending 30 August 2028. You are subject, as a part of the good behaviour order, to the core conditions and you are to accept such supervision for a period deemed necessary by ACT Corrective Services. (4) As a part of this sentencing exercise, I have taken into account the offence of joint commission theft contrary to s 308 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT) (SCCAN 2025/507).
I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Muller. Associate: MG Malouf Date: 31 August 2026
DPP
Terry Barajas (a pseudonym)