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CAN 3368/2025 Aggravated assault occasioning actual Imprisonment for bodily harm, contrary to s 24(1) of the seven years. Crimes Act.

CAN 4373/2025 Aggravated common assault, contrary to s Imprisonment for 26(1) of the Crimes Act. three years.

2. He is to be sentenced having regard to his particular circumstances and other mandatory statutory considerations, in a manner that makes him accountable and denounces and adequately punishes his conduct. The purposes in sentencing the offender are to deter him and other people from committing the same or similar offences and to recognise the harm done to the victims of the crimes and to the community, but also to promote the offender’s rehabilitation so as to protect the community in the longer term: s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

3. In the present case, it was accepted that terms of imprisonment as a last resort were nevertheless appropriate here and the key considerations were directed more to determining the length of the term and the manner in which any further sentence should be served.

The nature and circumstances of the offences (s 33(1)(a) of the Sentencing Act)

4. The circumstances of the offending were contained in an agreed statement of facts that was before the court. Drawing from those facts, on 25 March 2025, the offender’s daughter, “FL”, and her boyfriend or romantic partner, “BM”, visited the offender at his residence. FL was not in the offender’s care and was 14 years old at the time. BM was 15 years old.

5. The offender was substantially intoxicated when FL and BM arrived. He consumed alcohol while FL and BM played music through a speaker in the living room.

6. Without any apparent reason, the offender became angry and started yelling abuse at BM. He then tried to hug FL, but she pushed him away. The offender made several more attempts to touch FL, all of which she rejected.

7. The offender, lying on his side, then tried to grab FL on her arms and legs. FL told him to stop, but he continued attempting to grab her. FL left the room. When she returned, FL sat next to BM on the living room floor and asked to hold his hand. This made the offender angry. He lay on FL’s legs. He grabbed BM’s right knee with his hand and squeezed it.

8. A short time later, FL moved to sit on one of the lounges while the offender and BM remained on the living room floor. When BM stood up to join FL on the lounge, the offender grabbed his shin and squeezed with a medium grip strength.

9. FL started dancing around the room to music playing from a speaker she held in her hand. The offender started to chase her around the room to try and take the speaker from her. He eventually caught FL by grabbing her jumper. He fell over while still holding her. This caused FL to fall backwards and land on top of the offender.

10. FL rolled onto her right side. The offender wrapped his arm around her neck, placing her in a headlock. She told him, “Get the fuck off me” and to “Stop”. She tried to kick the offender and called out to BM for help numerous times. Her voice became fainter as she did so. She felt scared and confused.

11. BM approached and saw that FL was pale in the face and had shallow breathing. He tried to remove the offender’s arm from around FL’s neck but was unsuccessful, because the offender stiffened his muscles to lock his arm in place. FL then lost consciousness for about ten seconds. Her eyes were closed and she was not speaking. While unconscious, she lost control of her bladder.

12. BM eventually succeeded in moving the offender’s arm into the air. BM tapped FL on the leg and she slowly regained consciousness. BM was able to keep the offender’s arm in the air long enough for FL to move underneath it and stand up. She started to cry and told BM that she wanted to leave and that they had to run.

13. The offender then became aggressive and spoke abusively to BM, calling him a “fuckwit” and saying, “Don’t hurt my daughter or I’ll fuck you up”. He tried to hug FL again, then turned to BM and said, “If you come one step closer, I will fuck you up”. The offender walked towards BM, grabbing the front of BM’s jumper with both hands. He threw BM into the wooden kitchen bench and BM struck the top of the bench on the left side of his ribs, before falling to the floor due to the force of the impact.

14. The offender then turned back to FL. He grabbed her by the front of her jumper and pinned her against the wall between the kitchen and bathroom. FL kicked the offender off her with such force that she fell to the floor. FL and BM then left the residence.

15. After they left, BM was forced to stop walking due to a sharp pain in his left ribs. He was also having difficulty breathing. An ambulance was called and police also attended. Police observed red coloured markings around FL’s neck and petechial haemorrhaging on her tongue. They also observed an injury on BM’s left ribs.

16. The court must evaluate where that conduct sits on the hypothetical spectrum of conduct here with regard to the maximum penalties set out above as a yardstick. While the maximum penalty takes into account the circumstances of both the offence and the criminal, at this stage of the court’s consideration, the assessment is concerned only with the objective gravity of the conduct, with matters personal to the offender considered separately.

Family violence offending

17. In terms of the features informing the character of each offence here, all of the offending was aggravated because it involved family violence. These are serious offences, with the choke rendering insensible a most grave offence. The court must have regard to the factors set out in s 34B of the Sentencing Act, some of which I will return to at the conclusion of these reasons. For the present consideration, the fact that the offending occurred at the home of the offender against children are features that inform the seriousness of the offending.

Aggravated choke to render insensible

18. Other features informing the character of this offence were set out in DPP v Padreny [2024] ACTCA 4; 313 A Crim R 250 at [131]. Here, the victim was unable to breathe for approximately 10 seconds, and the force used was sufficient to obstruct FL’s airway such that she lost consciousness, urinated herself, and suffered injuries, being petechial haemorrhaging on her tongue and red-coloured marking around her neck.

19. However, it must be remembered that the aggravating feature of the victim losing consciousness is itself an element of the offence charged.

20. No verbal threats or aids were used in the choking of FL, but FL was patently vulnerable. She was a child. She was much smaller and weaker than the offender. She was also lying on the ground when the offending occurred.

21. The conduct was deliberate and sustained, as evidenced by the duration of the choking and the fact that the offender stiffened his arm muscles to prevent BM removing his arm from around FL’s neck.

22. I consider the conduct to be a serious example of what is itself a most serious offence.

Aggravated common assault

23. This offence again involved FL, with the same features of family violence and FL’s vulnerability arising from her being 14 years old and her small size in comparison to the offender.

24. In R v Kirkwood [2022] ACTSC 148, Kennett J stated in relation to common assault at [65]: Common assault can reflect a wide range of circumstances and encompasses both actual violence and threatened violence that causes the complainant to fear immediate harm. Where the offence is constituted by a threat of violence, the Court should consider the nature of the conduct that caused the [complainant] to fear immediate harm.

25. This was a rolled-up charge, thereby encompassing a higher degree of criminality: R v Hancock [2021] ACTSC 52 at [28]. The offender’s conduct towards FL involved: (a) the offender trying to grab FL’s arms and legs; (b) the offender grabbing FL’s jumper and pulling her down with him as he fell; and (c) the offender grabbing FL by the front of her jumper and pinning her against the wall.

26. Although the first two acts involved relatively little violence, significant force would have been used by the offender to pin FL against the wall. The nature of this conduct was serious. It involved a breach of trust because the offender is FL’s father.

27. FL did not sustain any injuries from this aspect of the offending, and the offending does not appear to have been premeditated.

Aggravated assault occasioning actual bodily harm

28. Again, the circumstances of statutory aggravation were that they involved family violence. Though not biologically related to the offender, BM was a family member under s 9 of the Family Violence Act 2016 (ACT) and the offending constituted a breach of trust in that context.

29. Otherwise, the legal principles and features of assault occasioning actual bodily harm were considered in R v Pearson [2020] ACTSC 375 at [24]-[29] and in R v Redmond (No 2) [2022] ACTSC 295 at [12] (and the authority there-cited).

30. Actual bodily harm means “any hurt or injury calculated to interfere with the health or comfort” of the victim. Such hurt or injury need not be permanent but must be “more than merely transient and trifling”: R v Donovan [1934] 2 KB 498 at 509. Bruising may constitute actual bodily harm: R v Ball [2013] NSWCCA 126 at [67], although the bruising must be of some significance.

31. Drawing from those cases, relevant features include: (a) the degree of violence used or ferocity of the attack; (b) the circumstances surrounding the offending; and (c) the nature of the injury caused by the offender.

32. This was a rolled-up charge and thus encompassed a higher degree of criminality: Hancock at [28]. The offender throwing BM into the kitchen bench was the most serious of those acts, involving significant force. As reported by a Forensic Medical Officer who saw BM on the night of the offending, BM suffered bruises and abrasions to his back. Though these fall at the lower end of injuries that can constitute actual bodily harm, BM still required hospitalisation and experienced sharp pain and difficulty breathing.

33. The circumstances also included the offender grabbing BM’s knee and shin at different times and squeezing those body parts, and making verbal threats to BM.

34. BM was also a child, 15 years old, and vulnerable not only due to his youth but due to his size relative to the offender. The offending does not appear to have been premeditated but overall, the conduct was relatively serious.

Victim impact statements (s 33(1)(f) of the Sentencing Act)

35. No victim impact statements were before the court. That does not mean there was no victim impact. Indeed, the victims’ fear is apparent in the facts and from what they were saying to each other during the incident. It was plainly a highly disturbing experience for each of them.

Pleas of guilty (ss 33(1)(j) and 35 of the Sentencing Act)

36. The offender entered pleas of guilty and is thus entitled to the court applying a discretionary discount on the sentence it would otherwise have imposed if the offender had not pleaded guilty to the offences: s 35(3) of the Sentencing Act. The prosecution was not heard against a 25% discount. The pleas were entered at a relatively early stage, although a brief of evidence had been prepared and negotiations had taken place between the parties.

37. In other circumstances I would have considered that a lesser discount was appropriate due to the negotiations and the preparation of the brief. However, given the attitude taken by the prosecution and the nature of these charges, I have determined to adopt the discount sought, primarily because: (a) any benefit obtained in rolling up some of the conduct was in relation to the two charges that were of significantly less gravity and the objective seriousness of the conduct that was rolled up was itself low; and (b) the victims were children and given that the strictly indictable charge would have required the matter to proceed to trial, there was high utility in the offender’s pleas.

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

38. The offender’s background was before the court through two reports as well as additional information provided by him in a letter to the court. The offender is 41 years old. His childhood was relatively stable. He has a large family, with his mother being his main support, and four children.

39. He did not complete his high school education but has been employed in various jobs since that time, including one role that he held for approximately six years.

40. Significant alcohol consumption was normalised at home, and the offender now has a serious problem with alcohol. I accept that the Bugmy v The Queen [2013] HCA 37; 249 CLR 571 factors of social disadvantage apply in the form of the Henry principles (as to which see R v Henry [1999] NSWCCA 111; 46 NSWLR 346), seen most clearly through the offender suffering from alcohol poisoning at the age of 10 and being allowed to drink at home from the age of 14. At the peak of his addiction, he drank up to six litres of wine per day. The offender has had previous periods of sobriety, and it is encouraging to see that he has utilised his time in custody to engage in programs promoting abstinence. However, he lost his father last year which was a trigger for a descent into alcoholism again.

41. His mental health appears to fluctuate. This is possibly reflected somewhat in the offender’s significant criminal history, which disentitles him from leniency. Part of that history includes a prior conviction for a serious family violence offence, which must also be given weight in terms of specific deterrence.

42. The offender was also subject to conditional liberty at the time of the offending, as he was subject to a two-year Community Correction Order imposed in New South Wales on 30 October 2024. This is an aggravating factor: see KQE v DPP [2024] ACTCA 7 at [40].

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

43. The offender’s remorse was communicated to the authors of his Intensive Correction Order Assessment Report and psychological report. He also expressed his remorse in his letter to the court, although it was not under oath and the weight to be given to such sentiments is reduced accordingly. Nevertheless, I accept that the offender feels genuine remorse for his actions. He is disgusted and appalled by his own behaviour, and he takes full responsibility for his actions.

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

44. Comparable cases helpfully provided by the prosecution included DPP v Brown [2025] ACTSC 428; DPP v Adams [2025] ACTSC 167; DPP v Robin (a pseudonym) [2024] ACTSC 322; Robin (a pseudonym) v DPP [2025] ACTCA 40; and R v Palmer [2020] ACTSC 13.

45. I have taken those cases into account, noting that to the extent that there was a discernible practice, it includes terms of imprisonment to be served by way of full-time custody for choking offences.

Pre-sentence custody

46. The offender has spent 453 days in pre-sentence custody referable to this offending. This time will be taken into account by way of backdating his sentence.

Totality

47. Applying the established approach to principles of concurrency and accumulation set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the authorities there-cited), this offending is properly characterised as a course of conduct (s 33(1)(c) of the Sentencing Act), with the result that it would be appropriate for largely concurrent sentences to be imposed for each of the three offences. Usually, I would have endeavoured to sentence the most serious offence first. However, as the prosecution submitted, there is still a degree of accumulation required in order to recognise the different victims and different offences. An adjustment to the structure of the sentence in terms of the order of the terms of imprisonment imposed will achieve that recognition. Disposition

48. In terms of the ultimate disposition, the offender submitted that an Intensive Correction Order (ICO) would be appropriate in the circumstances. In the alternative, he advocated for a sentence of imprisonment to be suspended upon delivery of his sentence.

49. The prosecution submitted that an ICO would not adequately recognise the severity of this offending. It was submitted that a sentence of full-time imprisonment, with a non-parole period to be imposed that required the offender to serve further time before he becomes eligible for parole, was required.

50. I acknowledge that the offender was found suitable for an ICO and that targeting sobriety and mental health challenges in a custodial environment is very different to ensuring stability in the community. However, having considered the offender’s subjective case, a considerable term of imprisonment remains the appropriate outcome here. I have accepted the prosecution’s submission because the court must give effect to the sentencing principle that the sentence be proportionate to the objective seriousness of the offending: R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

51. The preamble to the Family Violence Act speaks of family violence being unacceptable in any form, and the justice system’s role in protecting the human right to freedom from such violence. Further, children exposed to family violence are particularly vulnerable and the exposure may have a serious impact on their physical and psychological development.

52. The Court of Appeal has recently given consideration to choke offences in a family violence context, and the importance of denouncing the conduct, in Robin (a Pseudonym) v DPP at [55]-[58], referring to domestic violence as being a scourge that afflicts modern Australia and the need for deterrence (both general and specific) and denunciation being high. Specifically, the Court referred to the increase in the maximum penalties for aggravated family violence offences as guiding the courts and the ACT community about the seriousness of family violence offences compared to other offences.

53. The proper application of those laws means that the offender still has some months to serve in full-time custody before the minimum time necessary to achieve proportionality and the sentencing purposes explained at the outset of these reasons has been served. I have set a two-year non-parole period, which means that the offender will be eligible for parole on 30 March 2027. That is designed to promote his rehabilitation because it will still give him sufficient time to re-integrate into the community under a supervised environment.

Orders

54. The orders of the Court are: (1) For CAN 4373/2025, aggravated common assault, the offender is convicted and sentenced to a term of imprisonment for six months, reduced to four months and 15 days on account of his guilty plea, backdated to commence on 30 March 2025 and conclude on 13 August 2025. (2) For CAN 3367/2025, aggravated choke/strangle/suffocate, the offender is convicted and sentenced to a term of imprisonment for four years and four months, reduced to three years and three months on account of his guilty plea, backdated to commence on 1 May 2025 and conclude on 31 July 2028. (3) For CAN 3368/2025, aggravated assault occasioning actual bodily harm, the offender is convicted and sentenced to a term of imprisonment for one year, reduced to nine months on account of his guilty plea, to commence on 30 December 2027 and conclude on 29 September 2028. (4) The overall sentence imposed is a term of imprisonment for three years and six months from 30 March 2025 to 29 September 2028. (5) A non-parole period of two years is set, to commence on 30 March 2025 and conclude on 29 March 2027.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam.

Associate: Date: