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[2025] ACTSC 111
Supreme Court of the ACT
2025-03-25
Christensen AJ
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 Whitall Citation: [2025] ACTSC 111 Hearing Date: 17 February and 21 March 2025 Decision Date: 25 March 2025 Before: Christensen AJ Decision: See [113] Catchwords: CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – forcible confinement – aggravated choke/suffocate/strangle – aggravated assault occasioning actual bodily harm – aggravated property damage – aggravated threat to kill – family violence offending – rolled up charges – offending one single protracted incident – difficult to identify precise acts that occurred and injuries caused – De Simoni – desirability of new offence provision – recidivist family violence offender – sentencing purposes of community protection, deterrence and denunciation have prominence in sentencing exercise – constellation of Bugmy, Henry and Verdins principles – some remorse and insight into offending – whether drug and alcohol treatment order appropriate and suitable – substance abuse substantially contributed to offending – where offender requires rehabilitation beyond substance abuse issues – intensive rehabilitation most effective way to ensure protection of community – offender’s commitment to rehabilitation warrants opportunity for treatment order – treatment order imposed – offender to complete men’s behavioural change program while on treatment order Legislation Cited: Crimes Act 1900 (ACT) ss 24, 28, 30, 34, 116 Crimes Act 1900 (NSW) Pt 3, Div 6A Crimes (Sentencing) Act 2005 (ACT) ss 12A, 34B, 80S, 80T Family Violence Act 2016 (ACT) Cases Cited: Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Day v R [2023] ACTCA 39 DPP v Hogan [2024] ACTSC 245 DPP v Howarth [2024] ACTSC 322 DPP v Padreny [2024] ACTCA 4 Elyard v R [2006] NSWCCA 43 R v De Simoni (1981) 147 CLR 383 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v KN [2018] ACTSC 111 R v Linsley [2023] ACTSC 255 R v Verdins [2007] VSCA 102; 16 VR 269 R v Watson [2014] ACTSC 395 Texts Cited: Explanatory Statement, Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015 (ACT) Explanatory Statement, Family Violence Legislation Amendment Bill 2022 (ACT) Parties: Director of Public Prosecutions Shane Whitall (Offender) Representation: Counsel C Daly (DPP) E Wallis (Offender) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Offender) File Numbers: SCC 79, 80 of 2024 CHRISTENSEN AJ: Introduction
Shane Whitall is to be sentenced in relation to five offences of family violence committed in September 2023. The offending involves the following charges: - Forcible confinement, contrary to s 34 of the Crimes Act 1900 (ACT) (Crimes Act), carrying a maximum penalty of 10 years imprisonment (CAN 2023/9231 (forcible confinement)); - Aggravated choke/suffocate/strangle, contrary to s 28(2)(a) of the Crimes Act, carrying a maximum penalty of 7 years imprisonment (CAN 2023/9228 (choke)); - Aggravated assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act, carrying a maximum penalty of 7 years imprisonment (CAN 2023/9230 (AOABH)); - Aggravated property damage, contrary to s 116(3) of the Crimes Act, carrying a maximum penalty of 3 years imprisonment, 60 penalty units, or both (CAN 2023/10076 (property damage)); and - Aggravated threat to kill, contrary to s 30 of the Crimes Act, carrying a maximum penalty of 13 years imprisonment (CAN 2023/9233 (threat to kill)).
Mr Whitall seeks that a drug and alcohol treatment order (treatment order) be imposed. Both ACT Corrective Services and ACT Health Services have found Mr Whitall suitable for a treatment order.
The prosecution opposes a treatment order, submitting that the sentences to be imposed are such that Mr Whitall is ineligible for such an order. The prosecution caution that in any event, substance use may not have substantially contributed to the offending, and that Mr Whitall’s history of non-compliance with court orders is such that a treatment order is neither appropriate nor suitable.
On behalf of Mr Whitall it is submitted that it is not inevitable that the terms to be imposed are such that he is ineligible for a treatment order. It is submitted that Mr Whitall demonstrates a genuine commitment to rehabilitation and has made progress with respect to his insight into his offending behaviour.
The sentencing exercise in this matter involves a challenging balance between reflecting the seriousness of the offending, and the promotion of community protection. As will become apparent, I am satisfied that this can be achieved through the imposition of stern sentences, which will have regard to the period already served in presentence custody, and with an order that ultimately promotes community protection. A treatment order will be imposed for the following reasons.
The offending
The facts of the offending are set out in detail in an agreed statement of facts. What follows is an overview of the facts.
In the evening of 20 September 2023, Mr Whitall began arguing with his then partner, who is the victim of the offending, accusing her of being unfaithful. This was denied by the victim, but Mr Whitall continued in his accusations throughout the evening and into the following morning.
Throughout this time, Mr Whitall threatened to kill the victim twice, he choked her, assaulted her a number of times, and caused damage to items of her property. Throughout the duration of the evening and the next morning, the victim felt that she was unable to leave the residence.
As to the accusations of the victim being unfaithful, the offender went through the victim’s phone, claiming that there was evidence on it. He also told the victim that he had spoken to a psychic who had told him that the victim had cheated on him.
At around 9pm, the victim had removed herself from the situation and was in one of the bedrooms. Mr Whitall entered the bedroom and said words to the effect of “you were cheating, dog”. He grabbed the victim by the throat and squeezed, causing the victim to feel dizzy and have difficulty breathing (choke).
The victim was then punched twice to the left side of her head (AOABH). The victim kicked Mr Whitall to get him away from her. He then punched her between two and four times and four times to the nose, causing her nose to bleed on the pillow (AOABH continued). The facts provide that the victim later developed significant swelling on the left side of her face as a result of the two punches to the side of her head.
As this was occurring, the victim fought back against her partner, kicking and punching him. In response, he held the victim by her arms and bit her on the hands numerous times, causing small red markings (AOABH continued). He said words to the effect of “you whore slut” and ripped the victim’s black leggings off her, ripping them apart in the process (property damage).
The victim is described as retaliating by pushing Mr Whitall away, placing her hands around his neck and applying pressure, eventually causing him to say words to the effect of “I give up, I give up. I’m sorry. I’m not gonna touch it. I’m not gonna touch you [sic]”.
The victim then attempted to use her mobile phone to call 000, but Mr Whitall took her phone from her and ended the call. He removed the protective case from the victim’s phone and threw it at the door to the bedroom. This caused the glass on the back of the phone to smash (property damage continued).
At about 11pm, Mr Whitall and the victim were sitting together on the veranda of the residence. At some point the victim went back inside the house to the rear bedroom. Mr Whitall followed her and continued to make accusations of cheating.
Effect on the victim
As already observed, the photographs tendered on sentence show visibly the significance of the physical injuries caused. It can clearly be recognised that significant physical pain and discomfort occurred.
In addition to this, the victim impact statement sets out the emotional and psychological pain caused by the offending. The victim describes that the offending occurred in her family home, where she had grown up. Her memories from her childhood home have now been destroyed.
The victim expresses her fear every morning when she wakes up and that she needs to remind herself that she cannot be hurt again by the offender. She has had financial implications from the effect of the offending on her ability to work, and describes that she has been mentally destroyed. Pieces of her life have been broken and cannot be repaired. She experiences nightmares, and describes that she is forced to live in a “prison” that she cannot escape.
The victim also expresses how the effects of the offending have been felt by her parents. They have experienced the emotional suffering of the abuse their daughter was subjected to in their own home.
There can be no doubt that what the victim experienced was extremely frightening and distressing. This is evident from the agreed facts as to what was experienced during the offending and the help that the victim sought throughout the incident. It has caused physical impacts, but significantly, also ongoing psychological and emotional effects that the Court acknowledges will take much longer to heal from than the term of any sentence imposed on the offender.
Assessment of the offending
The offending was very serious. It was prolonged conduct that occurred in the context of a protracted verbal argument and aggression directed at the victim, which likely exacerbated the harm caused to her. She was subjected to relentless and persistent family violence, by an offender who displayed concerning conduct with features of control, coercion, and intimidation.
The assessment of the other features that inform the objective seriousness in this offending warrants a number of preliminary observations.
Firstly, all of the offences except the forcible confinement are statutorily aggravated by their commission in a family violence context. As the Explanatory Statement to the Family Violence Legislation Amendment Bill 2022 (ACT) observed, “[s]etting higher maximum penalties for aggravated offences provides guidance to the courts and the ACT community about the seriousness of family violence offences compared to other offences.”
It also follows that the features that might typically aggravate offending done in a family violence context, for the offences other than the forcible confinement, are not to otherwise be regarded, or ‘double counted’, as an aggravating feature of the offending: Elyard v R [2006] NSWCCA 43 at [44]. The offending which is statutorily aggravated inherently involves offending that involved a significant breach of trust. It is conduct that the community abhors, and which warrants denunciation and accountability.
Secondly, s 34B of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is of application in the sentencing exercise. Here, that involves that it must be considered that the offending occurred at the home of the victim, and that the offender has multiple prior convictions for serious family violence offences. The matters mentioned in the preamble to the Family Violence Act 2016 (ACT) are also to be considered. This includes that family violence is unacceptable in any form, that freedom from family violence is a human right, and that family violence is best addressed by a coordinated response of assistance to victims and the prevention of violence by promoting the accountability of perpetrators, and by appropriate intervention by police and the courts.
Thirdly, all of the charges reflect ‘rolled up’ offending, thus there is a greater degree of criminality involved with respect to each of the offences.
Fourthly, it is plain that the seriousness of each of the offences are such that no penalty other than imprisonment is warranted. No submission was made contrary to such a conclusion.
It is also appropriate to observe at this stage that it is convenient in this matter to consider the role of current sentencing practice when considering the objective seriousness of each of the offences. The parties assisted with a number of authorities, while acknowledging the limitations that these authorities provide. Preliminary observations as to these authorities can be made as follows: (a) DPP v Padreny [2024] ACTCA 4 (DPP v Padreny) involved, overall, significantly more serious offending with several attacks committed on the victim over a number of dates. The offences were not though statutorily aggravated with increased maximum penalties. A total sentence of over eight years imprisonment was imposed; (b) DPP v Howarth [2024] ACTSC 322 involved a relatively sustained attack on the victim over the course of one evening, in the presence of a child, and while subject to a family violence order. A total effective sentence of 5 years and 3 months imprisonment was imposed. I was informed at the sentence hearing that this matter is the subject of a pending appeal against the sentence; (c) DPP v Hogan [2024] ACTSC 245 (DPP v Hogan) involved a young offender with compelling subjective circumstances and reasonable prospects of rehabilitation. The physically violent offending was followed by serious contravention of a family violence order by way of phone calls from custody. A total head sentence of 3 years imprisonment was imposed; (d) Day v R [2023] ACTCA 39 (Day v R) involved an appeal against sentence that was dismissed. The offending has some similarity in conduct to what occurred here, with it involving multiple acts committed during the course of one incident. The offending was committed in contravention of a family violence order. The offender had a significant criminal history including offences of family violence. He had pleaded not guilty. The applicable maximum penalties were not statutorily aggravated. A total sentence of 4 years and 6 months was observed to be “stern” (at [71]), but it was not manifestly excessive; (e) R v Linsley [2023] ACTSC 255 was concerned with an offence of act endangering life, carrying a maximum penalty of 10 years imprisonment. There was a focus on rehabilitation, despite the serious nature of the offending (at [3]); and (f) The authorities of R v Watson [2014] ACTSC 395 and R v KN [2018] ACTSC 111 involve offences contrary to s 27 of the Crimes Act, with different applicable maximum penalties.
Forcible confinement
The features that inform the assessment of the objective seriousness of this offence were considered in Padreny at [136].
A factual dispute arises as to the duration of the forcible confinement. The agreed facts provide that for the duration of the evening and the next morning, the victim felt that she was unable to leave the residence, with it otherwise not specified precisely the period relied upon for this charge. The prosecution submit that it extends to the period after they returned to the house and upon the arrival of the police. On behalf of Mr Whitall, it was submitted that this offending concluded once Mr Whitall left the victim in the car and went inside of their friend’s home.
I do not accept the contention on behalf of Mr Whitall. The agreed facts are clear that it was Mr Whitall’s conduct, and his threats of conduct, that secured the victim’s compliance in the confinement. The impact of this was not ameliorated by his departure from the car for a short period. This is particularly evident, and establishes the aggravating feature relied upon by the prosecution beyond reasonable doubt, in circumstances where the victim did not use that opportunity to flee or seek assistance. In any event, on any view of the duration that this offence occurred, it was for a relatively lengthy and sustained period.
While there is no evidence of premeditation, the purpose of the confinement reflects concerning features of family violence offending, being those already identified above at [38]. It is not though seemingly an example of this offence that was deliberately directed at securing confinement of the victim, but rather, reflects conduct that was a consequence – undoubtedly a serious one – of the other offences and family violence conduct. There was not, for example, behaviour involving doors being locked for the purposes of confinement. It did involve significantly aggravating features in the way in which the confinement was effected and the conditions of confinement, however, these are separately charged.
The forcible confinement offence itself does involve the feature of the victim attempting to seek assistance or to leave the residence on a number of occasions, with Mr Whitall physically preventing her from doing so. His conduct in doing so, from the best that I can ascertain from the particulars as they were provided in the agreed facts, involved acts of choking that were not otherwise explained, or separately charged, and which caused pain, and injuries to the feet. I must though, as was submitted on behalf of Mr Whitall, be cautious to not offend the principle expressed by Gibbs CJ in R v De Simoni (1981) 147 CLR 383 (R v De Simoni) at 389, that “no one should be punished for an offence of which he has not been convicted”. On behalf of Mr Whitall, it was submitted that the forcible confinement is constituted by the victim being prevented from leaving the residence on six occasions.
In Padreny, the only authority provided for the purposes of current sentencing practice in which an offence of forcible confinement was included, involved a sentence of 8 months imprisonment, before the reduction for a plea of guilty was imposed. The offending there also involved features of the confinement that were otherwise separately charged, and it was of shorter duration.
Property damage
An aspect of the conduct that is inextricably linked to the forcible confinement, but is separately charged, relates to a part of the property damage offence. This involved the offender taking the phone from the victim when she attempted to call 000, removing the protective cover, and throwing it at the door to the bedroom, causing it to smash. The context in which this property damage was caused is of concern. The causing of damage to a valuable item such as a phone is also of concern, although I infer that it was not rendered entirely inoperable given the victim subsequently used the phone to make calls. Nonetheless, it will have been of significant inconvenience, and likely financial implications, for the victim in having the phone damaged.
The conduct with respect to this charge also includes Mr Whitall having ripped the victim’s leggings off of her, damaging them in the process. As he did so, he expressed degrading and offensive words. It was offending that also caused a violation of the victim’s privacy, and some financial implications given that the clothing likely became unwearable.
Aggravated choke/suffocate/strangle
There is an inherent seriousness to offences of this type, noting what said in the Explanatory Statement to the Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015 (ACT) that “[n]on-fatal strangulation by a partner is one of the most important predictive risk factors for intimate partner homicide” and that “strangulation is a tactic often used in family violence to threaten, intimidate and control a victim”. The non-exhaustive features that inform the assessment of this offence were set out in Padreny at [131].
Here, there are two occasions of this serious type of conduct. The first involved the victim’s throat being squeezed and led to the victim feeling dizzy and having difficulty breathing. The second involved again force to the throat, and the victim felt that she was going to pass out. All of this conduct occurred in a context of other physically violent acts, with one of the chokes being the commencement of the physically violent conduct, and in a context of Mr Whitall wrongly accusing the victim of infidelity. The victim was in a particularly vulnerable position at the time of the second choke, being in her bedroom in a towel following a shower.
The duration of the acts of choking was not, relatively, lengthy, but sufficient force was applied to result in immediate physical effects on the victim. This extended to observable physical injuries being caused. There were no aides used, but there was repeated conduct of this type, that was done deliberately.
A number of the authorities relied upon for the purposes of current sentencing practice involve offending of this type. A number of them are more serious examples (DPP v Howarth; DPP v Linsley; R v KN; R v Watson). The other authorities provide more similar examples to what occurred here, albeit with distinctions in applicable maximum penalties. The sentences imposed prior to the application of any plea of guilty reduction, were sentences of 1 year and 9 months (DPP v Padreny) to 2 years and 6 months (Day v R).
Aggravated threat to kill
This offending involves, again, multiple occasions of similar serious offending. The applicable maximum penalty is the highest that applies in this sentencing exercise. The offending was a serious example of this type of offence. The features that inform the assessment of this offence are, again, helpfully set out in R v Padreny (see at [134]).
The two threats establishing the ‘rolled up’ charge were done in person, and were both of a serious, specific, and graphic nature. While little premeditation was seemingly involved, the threats being spontaneous utterances made during the course of the offending, that will have been little consolation to the victim. An understandably significant fear was engendered by the threats. One of the threats made was particularly concerning, with a knife being held to the victim’s throat while the verbal threat was made, being a threat that was capable of immediate realisation. Another of the threats involved a threat of future conduct that will inevitably continue to cause fear for the victim.
The authorities relied upon for the purposes of current sentencing practice suggest that the threats here were of a nature which is, unfortunately, far too common in the family violence context. That is not to suggest that they are anything less than serious, and the feature that the offending here involved the use of a knife is not necessarily typical. The authorities suggest a range of sentences, before the plea of guilty reduction, from 3 years, 6 months imprisonment (R v Day), to 24 months imprisonment (DPP v Hogan). Aggravated AOABH
The final conduct the subject of the offending again raises, as submitted on Mr Whitall’s behalf, consideration of the application of the principle from R v De Simoni.
The facts provide that this was serious ongoing conduct involving multiple applications of force, including to a vulnerable part of the body. The victim was punched repeatedly, and she was bitten. During one of the acts of assault, she was held by her arms. The assaults occurred in a context of the other ongoing family violence conduct, and with threats and degrading words directed at the victim.
The victim, in accordance with the facts, experienced swelling to the side of her face, her nose bled, small red marks were caused to her hands, and bruising was caused across the bridge of the nose. The agreed facts also set out that there were at least 54 individually discernible bruise and abrasion injuries across multiple planes. The photographs tendered on sentence show the extent of these. Nonetheless, I must be cautious in attributing all of the injuries identified to this assault, beyond those set out in the agreed facts.
This is not to say that the assault, and the physical injury caused, was anything less than serious. It was sustained conduct that is a serious example of this type of offence.
Observations as to assessment
The challenge in the assessment of the objective seriousness of the individual and overall, seriousness of the offending here has been exacerbated by the limitations of the charges involved, and the inextricable link between the different offending.
I do not accept the prosecution’s submission that, while all of the offences are serious, the forcible confinement and threat to kill are the only of those offences of particular seriousness in the offending here. They were undoubtedly serious, but the offence of choking appears to me to have elevated seriousness, within the lower applicable maximum penalty that applies. On behalf of Mr Whitall, it was acknowledged that all of the conduct was serious, with particular seriousness in the acts of threat to kill, forcible confinement, and aggravated assault occasioning bodily harm. Again, while not finding that the other offences were lesser in seriousness, I regard the choking offending as of particular seriousness. This is so, even in circumstances where it lacks distinct aggravating features as have occurred in other cases, such as with the use of aides or more significant physical impacts caused.
It ultimately seems to me that the parties and the Court agree that all of the offending was serious. However, where the particular seriousness, and aggravation in the offending, falls within a particular offence is difficult to delineate given the duration and extent of the offending conduct.
For the purposes of my assessment, it was not made plain to me the extent to which other, more serious acts of apparent physical conduct, were to form part of, for example, the forcible confinement offence, or, for example, the extent to which all of the 54 identifiable injuries were to be reflected in the individual offences as charged.
I accept that it is difficult to reflect with precision all of the offending in what was a protracted single incident of repeated acts of family violence that included differing forms of conduct. I have attempted to do so with reference to the offences as charged and particularised, the applicable maximum penalties, and other applicable sentencing considerations, including the application of the totality principle.
However, if it is sought to sentence offenders for the full gravity of offending of this type, in circumstances where the sentencing exercise must not offend the principle in R v De Simoni, there would be benefit in the legislature considering the introduction of an offence directed at family violence that is of a nature similar to Pt 3, Div 6A of the Crimes Act 1900 (NSW). Any such reform should contemplate the scenario as occurred here, with the offending occurring during the course of one extended incident. An offence provision that can incorporate the varied nature and degree of family violence conduct that unfortunately occurs in such an incident, without expecting victims to be capable of identifying with precision the acts that occurred, and the injuries caused, would seemingly be of benefit.
Subjective circumstances
Mr Whitall is 33 years of age and was aged 32 years at the time of the offending. He was born and raised in New South Wales (NSW). He met his birth mother only three times, and she has since died. His father has also passed away. Both of his parents were impacted by drug addiction. He was raised by his grandmother since he was six weeks of age, and he refers to her as his mother. He reports a positive childhood with her, and maintains a close relationship with his mother and a sister. He has one adolescent daughter.
His mother describes her grandson as having lacked the influence of a strong male role model, and the negative influences from his parents. She describes the periods that he has been a prosocial member of the community and, from her almost daily conversations with him, his regret of his past actions and his motivation to return to employment and being a prosocial community member.
When in the community, Mr Whitall has engaged with employment. A reference letter by an employer who has previously provided him with casual employment describes him as an honest and reliable person who demonstrates responsibility and accountability. The reference letter, by a Director who is aware of the offending Mr Whitall is charged with, expresses that Mr Whitall would benefit from abstinence from substance use and disassociating from negative associates, and that he would benefit from time at a rehabilitation facility. In addition, while in custody Mr Whitall has engaged in multiple employment roles. He is described as displaying a positive work ethic, and that he has encouraged others to display pro-social behaviours within the centre. A report dated 7 February 2025 as to his employment engagement describes him to be “a valuable working member of the AMC”.
Mr Whitall did complete his year 10 certificate, but experienced challenges as an adolescent, including experiences of a traumatic nature that have had ongoing impacts. This includes with respect to mental health challenges and substance use. The assessments report that he has previously been diagnosed with borderline personality disorder and schizophrenia and is participating in further psychiatric reviews. Health Services confirm that Mr Whitall is medicated to treat attention deficit hyperactivity disorder (ADHD), anxiety and depression. Mr Whitall described, at the time of assessment, his mental health as being stable.
A forensic psychological assessment was undertaken on his behalf and a report by Ms Kris North dated 20 January 2025 was tendered on sentence. Ms North finds Mr Whitall to have experienced a dysfunctional childhood with experiences of trauma. She opines that this predisposed Mr Whitall to an early onset of behaviour issues, with difficulties in regulating his emotions and behaviours. He is said to meet the criteria for diagnoses of ADHD, Conduct Disorder, Post traumatic Stress Disorder, Other Specified Personality Disorder (Mixed Personality Features) and Substance Use Disorder. These underlying mental health and substance use issues have both contributed to his offending behaviour. The psychological opinion was objected to, and Ms North gave evidence at the sentence hearing (see below at [92]).
Remorse and insight
Mr Whitall presented with, at least initially, a concerning lack of remorse and insight for the offending. This conclusion is drawn from the following.
Firstly, with reference to an interview conducted with Mr Whitall on 22 November 2024, Ms North describes him as having accepted responsibility and expressed regret for his offences. He is described as displaying insight into his need to address his underlying mental health and substance use issues. In cross examination, this was clarified as being that Mr Whitall regretted the way he overreacted to the incident and expressed that he did not agree fully with the facts. Ms North accepted in cross examination that it would be more accurate to describe Mr Whitall as partially accepting responsibility, and she maintained her opinion that there is a need for family violence treatment.
Secondly, in the assessment dated 25 November 2024 by Corrective Services, Mr Whitall is described as agreeing with the description of his actions in the police statement of facts, but that he heavily disputed the factors which contributed to the offending. He alleged that he acted in self-defence, he minimised his offending, and he used derogatory and victim blaming language as to his offending history and the offences the subject of sentence.
However, in a second assessment report by Corrective Services, dated 3 February 2025, Mr Whitall expressed that he disagreed with the information in the initial report as to his attitudes regarding the offences. He expressed that he had felt offended during the interview by what he perceived to be an implication that he was a serial offender. He maintained in the second report that he was acting in self defence as his partner attacked him after he discovered his partner had cheated on him and he showed her proof. He did state that he “felt terrible for what happened”. I draw from this that Mr Whitall did continue to lack insight into the seriousness of his family violence offending at that stage.
In this report, ACT Corrective Services describe that Mr Whitall initially displayed reluctance to engage in a family and domestic violence intervention as he indicated that he felt his actions in relationships are not problematic. Following further discussions with ACT Corrective Services, he is reported to have advised he would be open to this. Corrective Services raise concern as to what they describe as a minimisation and deflection of responsibility for the offences, this being indicative of a lack of awareness of the impact of his offending behaviour. Nonetheless, in a subsequent report dated 7 March 2025, Corrective Services observe that while the previous opinions remain current, the assessment that Mr Whitall is suitable for a treatment order is maintained.
In this most recent assessment from Corrective Services dated 7 March 2025, Mr Whitall is described as having displayed a change in attitude regarding his offending behaviour. Mr Whitall advised that he has been working with a counsellor while in custody who has challenged his thinking. He has been engaging with the Supports and Intervention Unit. He is described as identifying that his behaviour towards the victim was inappropriate and that he should have walked away rather than antagonising the victim. He expressed that he is “more than happy” to do a domestic and family violence program or other interventions to give him more insight into relationships, and he is described as verbalising an intention to improve his behaviour.
Pleas of guilty
Time in custody
Consideration
Mr Whitall presents a challenging sentencing exercise. He has committed very serious family violence offences, in the context of being, as the prosecution submitted, a serial family violence offender. The sentencing purpose of the promotion of community protection plainly has significance and warrants lengthy fulltime imprisonment. Lengthy fulltime imprisonment will also give effect to the important sentencing principles of recognising the harm to the victim, as well as deterrence, denunciation, and accountability. These features have prominence in the sentencing exercise particularly given the need for Mr Whitall to progress his insight into his role in family violence offending.
Lengthy periods of imprisonment will be imposed. However, Mr Whitall has served a period of time in presentence custody that, with the imposition of appropriate terms of imprisonment (s 12A Sentencing Act), and after an appropriate application of the totality principle given the inextricable link between the offences, results in the individual and total period of imprisonment to be imposed being such that he is eligible for a treatment order.
The primary issue in this matter then becomes whether a treatment order is an appropriate and suitable one for Mr Whitall, and indeed the community. The prosecution, understandably, submit that it cannot be. I have given careful consideration as to whether Mr Whitall serving the sentence by way of a treatment order can continue to promote the significance of community protection in the sentence order. I am satisfied that it can. This is because, ultimately, no matter what sentence is imposed, there will come a time when Mr Whitall will be released from custody. The Court can either facilitate that occurring now, at a time when Mr Whitall is committed to rehabilitation and will be closely monitored to support him in achieving that, or, he can be released at a future date without such supports for rehabilitation, and, likely with continued substance abuse and offending.
Ms North finds that there was insufficient information to complete a comprehensive risk assessment for reoffending, but finds Mr Whitall to be motivated towards engaging in treatment to reduce his risk of reoffending and to assist him in leading a more prosocial life. The psychologist observes that the intensive treatment necessary for Mr Whitall is unlikely to be available within the custodial setting and recommends that future treatment for Mr Whitall be multi-modal in nature and include domestic violence offence specific treatment. In addition, Ms North recommends that Mr Whitall would benefit from referral to a psychiatrist for further assessment for medication to assist him in managing his ADHD symptoms.
Both Corrective Services and Health Services find Mr Whitall suitable for a treatment order.
While the assessments and recommendations of Corrective Services and Health Services are not to be given such weight that other important sentencing purposes are displaced, the conclusions made by these agencies are informative as to the prospects of rehabilitation, and as to what it is envisaged can be achieved in that regard by a treatment order. They have undertaken comprehensive assessments, and while Corrective Services appropriately raises a concern as to Mr Whitall being a recidivist family violence offender, both agencies recognise in Mr Whitall a commitment to rehabilitation that warrants an opportunity for a treatment order. If there is to ever be any prospect of Mr Whitall being rehabilitated, and not being a threat to intimate partners, and by extension, the community, a sentence to a treatment order is necessary.
Orders
I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 15 July 2025
DPP
Whitall [2025] ACTSC 111
(1981) 147 CLR 383
At about 2am on 21 September 2023, Mr Whitall and the victim were in the rear bedroom of the residence. The victim said words to the effect of “[l]et me go, I have not cheated on you, and I’m done”. Mr Whitall responded with words to the effect of “I’ve got the proof you stupid cunt, there is no way you are getting out of this, just admit you did it”. In an attempt to end the conversation, having formed the view that Mr Whitall would not take no for an answer, the victim agreed that she had been unfaithful. Mr Whitall responded with words to the effect of “I may as well kill myself, so I will be free of you. If I can’t have you, no one else can, we will kill ourselves together”. He went to the kitchen and came back to the bedroom holding a knife. Photographs tendered on sentence show this to be a type of knife with the appearance of a weapon with a substantial, albeit not lengthy, blade.
Upon seeing this, the victim feared for her life and attempted to run out of the room. Mr Whitall grabbed her by the throat and slammed her against the wall near the doorway. He put the knife to her throat and said words to the effect of “[i]f it were up to me, I would put you in the back of your car and no one will know you are dead and I can make sure no one knows where you are”. The victim could feel the blade of the knife on her throat and thought that Mr Whitall was going to slit her throat at any moment. The victim was shaking and thought she was going to die (threat to kill).
At 4:29am, the victim called a friend, who is the wife of the man that she was accused by Mr Whitall of being unfaithful with. The victim intended that the couple could tell Mr Whitall that there had been no infidelity. The victim’s friend did not answer the call as her phone was on silent. The victim called her again at 5:35am and left a voicemail asking to be called back. The tone of the victim during the call is described as being soft, and the victim sounded frightened.
At 5:46am, the friend returned the victim’s call, and they had a brief conversation. The victim said words to the effect of “[e]verything is okay, we have just been fighting, we’re just talking at the moment, I will call you back”. The victim’s friend perceived the victim to sound unusually emotionless and monotone during this conversation.
At 6:21am the victim called her friend and disclosed that Mr Whitall had been fighting with her all night, and she had not slept because Mr Whitall thought the victim had cheated on him with her friend’s husband. Mr Whitall then became involved in the conversation, stating that he was adamant that the victim had cheated and that a psychic had told him so. During the conversation, the victim told her friend that Mr Whitall had gone into another room and that she did not feel safe. Her friend perceived the victim to sound frightened and not like her normal self.
The facts provided that at some point during the morning, Mr Whitall entered the shower holding a knife. After getting out of the shower, the victim lay on her bed wrapped in a towel. Mr Whitall came to stand astride the victim with one foot to her left on the bed and one foot to her right on the bedside table. He said words to the effect of “lying is going to get you killed. With the people I know you’re going to get killed. It’s not me that’s gonna be doing it to you”.
Mr Whitall told the victim that he would put her in the boot of his car, drive out to the middle of nowhere, make sure she wasn’t found and would let her have one last call to her parents to say goodbye. He told the victim that when he got out of jail he would come back and finish off what he started (threat to kill continued).
The victim began denying that she had cheated on him. Mr Whitall grabbed her by the throat again and punched her in the nose twice. When grabbing the victim by the throat, he applied enough force to cause her to feel like she was going to pass out (choke continued). The blow to the victim’s nose caused bruising across the bridge of her nose (AOABH continued). Mr Whitall then rolled over and lay on the bed, pretending nothing had happened.
The facts provide that throughout the duration of the evening and morning, the victim felt that she was trapped in her own home and could not get out of the situation or call police. Mr Whitall did not let the victim out of his sight throughout the night. The victim attempted to leave the house on approximately six occasions throughout the evening. On one of these occasions, Mr Whitall grabbed her and threw her to the floor whilst swearing and shouting at her. On the remainder of the occasions, Mr Whitall stopped the victim from leaving, choking her and placing his hand over her mouth to prevent her from making noise or stamping on her feet to prevent her from walking. This caused immense pain to the top of the victim’s foot and toes, causing her difficulty when walking and leaving red marks on her feet (forcible confinement).
Shortly before 11:30am, Mr Whitall took the victim with him to his friend’s house to acquire some marijuana. The victim remained in her car whilst Mr Whitall was inside. On returning to their residence around 11:30am, Mr Whitall was going to start cleaning and began washing the sheets. He told the victim that they would smoke some ‘weed’ then lie down and cuddle together.
The victim went into the toilet and called triple zero before ending the call. She received a return call marked ‘No caller ID’ and went into the garage to take the call. It was from triple zero and the victim told the operator that she needed police assistance at her address due to domestic violence.
At 11:42am, police arrived at the residence. The victim approached the officers in the front yard of the residence and disclosed that her partner was “accusing [her] of cheating on him”, he had “‘beat the shit out of [her] last night and this morning’ and that he had threatened to kill her [sic]”.
Police entered the residence and approached Mr Whitall who was in the kitchen. He was initially non-compliant, before being arrested and taken to the Watch House.
During the afternoon of 21 September 2023, forensic examinations were conducted at the residence. The facts provide that investigators noted red staining in various areas in two bedrooms, including on the pillowcase, a mattress, and pillows. Red staining was also observed on the toilet door frame and adjacent wall. Investigators also located three black pieces of material, one piece of which had a ‘Supre’ label on it on the bed in one of the bedrooms. A number of latent fingerprints were developed in the red stains on the toilet door frame and on the adjacent wall. Subsequent identification found right palm impressions and right little finger impression of Mr Whitall’s on the toilet door frame.
The victim was conveyed by ambulance to The Canberra Hospital. She was examined by a doctor from 2:50pm on that day. The examination revealed that the victim had sustained at least 54 individually discernible bruise and abrasion injuries across multiple planes. The statement of facts detail these, with an overview being – (a) Petechial bruising to areas on the face, scalp, and ears; (b) Bruising and swelling to the face, nasal bridge, scalp, and ears; (c) Abrasions to the ears, face, scalp; (d) Bruising, including petechial bruising, abrasions, and red marks to the neck; (e) Bruising and abrasions to areas on the right upper limb; (f) Bruising to areas on the left upper limb, including two abrasions on the base of the left thumb that were reported to be a bite mark; and (g) Bruising and swelling to areas of the right lower limb.
The forensic medical report describes that the victim experienced neck pain, neck swelling, sore throat, voice changes and headache after the conduct.
Photographs tendered on the sentence show very visibly the significance of these injuries.
Mr Whitall reported to Corrective Services that he found the engagement with the psychologist for the purposes of the assessment beneficial, and he expressed an intention to engage in counselling and treatment in relation to his mental health concerns and trauma. In a letter that he has provided to the Court, albeit one that is unsworn, such that the weight to be applied to it is limited, Mr Whitall expresses that the support he has received while in custody has provided him with great insight.
As to his substance use, Mr Whitall reports commencing use of substances from 10 to 11 years of age with engagement in petrol sniffing, and cannabis use from 12 to 13 years of age. Other than when he has been in custody, he has typically consumed substances regularly, with cannabis and methamphetamine being his primary drugs of choice. Mr Whitall describes that his use of substances was done to avoid thinking about the past, seeking to avoid “unwanted emotions related to trauma”. Ms North describes Mr Whitall’s description of his substance use as indicating a maladaptive means of managing unwanted thoughts and emotions relating to past trauma, consistent with avoidant behaviours commonly associated with PTSD.
On Mr Whitall’s behalf, it was submitted that the principles from Bugmy, Henry, and Verdins are enlivened (Bugmy v The Queen [2013] HCA 37; 249 CLR 571; R v Henry [1999] NSWCCA 111; 46 NSWLR 346; R v Verdins [2007] VSCA 102; 16 VR 269). It was submitted that there is a clear causal relationship between Mr Whitall’s adverse childhood experiences, his ADHD diagnosis, the development of his multi-substance dependence and his offending behaviour. It was submitted that his moral culpability was reduced, as well as specific and general deterrence moderated. Further, it was submitted that a sentence of fulltime imprisonment would weigh more heavily on Mr Whitall given his trauma experiences and the therapeutic treatment available in the custodial environment.
The prosecution did not submit against such a conclusion, but raised concerns as to community protection from Mr Whitall and his unsuitably for a community based order. I accept that the principles raised are enlivened, and that, in the absence of any intentions to engage with rehabilitation, these principles, whether considered in isolation to the extent they can be, or as a constellation as it appears to be more likely here, raise for consideration concerns as to community protection.
Corrective Services assess, overall, that Mr Whitall is of a medium-high risk of general reoffending, with primary risk factors including his substance use history, mental health concerns, antisocial companions, and a lack of prosocial supports in the community.
As to his prospects of rehabilitation, Mr Whitall reports having previously achieved a period of abstinence for 18 months, and testing in the custodial setting supports his claim of abstinence during his current remand in custody. He has only tested positive for prescribed pharmacotherapy medication when tested in May, August and September 2024 and in February 2025.
Mr Whitall did return a confirmed positive result for amphetamine in testing conducted in December 2024. This is, as the prosecution submitted, of concern. However, this Court is far too familiar with the concerning ready access to substances in the Alexander Maconochie Centre (AMC) and the challenge this poses to offenders engaging in the non-linear journey that is substance abuse recovery.
It is the responsibility of the custodial authorities to ensure a safe and supportive environment for vulnerable members of our community, which includes those suffering and recovering from substance dependency. In such circumstances, it is difficult to find an isolated positive test result as being entirely reflective of undermined prospects of rehabilitation from substance dependency for an individual striving to be abstinent. The conduct of an offender in the custodial setting – where substances should not be as readily available in the AMC as the experience of the Drug and Alcohol Sentencing List suggests they are – says little as to how an offender intent on recovery will behave once in the community. The custodial authorities need to do better before I am prepared to conclude that an isolated occasion of use in custody is to be regarded as indicia of a determination to use substances at all costs, and one that should reflect entirely negatively on the prospects of rehabilitation of an incarcerated individual in this jurisdiction.
In addition, I note the opinion of Ms North during her evidence, in which she said “[t]he fact that he is motivated towards achieving and maintaining abstinence doesn’t negate the fact that he might have lapses in the meantime and I think that speaks to the importance of him engaging in intensive treatment”.
Mr Whitall has previously accessed rehabilitation programs, but describes not having been motivated to change when he previously sought treatment. During the assessments for a treatment order, he indicated a preference for residential treatment, indicative of having insight into his recovery needs. He expressed an excitement to put what he has learnt through counselling while in custody into action, and expressed that he is confident he can succeed as he can now see where he has gone wrong in the past.
During the assessments, Mr Whitall also expressed a strong motivation for rehabilitation as being the opportunity to re-establish a relationship with his daughter. He also expressed in the letter he wrote, that he has goals to support his daughter, as well as his elderly mother. Mr Whitall expresses that the period he has spent in custody on this occasion has given him a “tremendous amount of time to appreciate the gift of freedom” and that he desires to put in place his plan to fix his triggers and substance abuse issues. To Health Services, Mr Whitall expresses goals that include to maintain abstinence from substance use, to obtain his driver’s licence, and to regain contact with his daughter. Health Services recommend Mr Whitall be placed with a residential rehabilitation facility. Criminal history
Mr Whitall has an extensive criminal history in NSW. It is one that plainly disentitles him to leniency. He has been the subject of community supervision and imprisonment in NSW. This includes that he has been the subject of eight apprehended violence orders in NSW with twelve individuals listed as protected persons. He has breached these orders on multiple occasions. He did, however, successfully complete a NSW parole order in 2021.
At the time of the offending the subject of this sentence, Mr Whitall was subject to a conditional release order imposed without conviction in NSW in 2023 for driving with a suspended license. While this means that the offending here occurred while he was on conditional liberty, which is aggravating on sentence, it was not for offending of a similar type to that which occurred on this occasion.
The assertion by the offender, as explained by his mother, that he would not have behaved in the manner he did without having been drug affected, is difficult to reconcile with his criminal history. It is not clear whether he contends that all of his previous acts of family violence were committed in a context of substance use. Having regard to the information as to his substance use disorder, it appears that it has had a significant role. The constellation of mitigating factors that have been identified above at [78] must also not be forgotten.
This constellation emphasises the need for rehabilitation to be achieved if Mr Whitall is to not be a risk to future intimate partners. He needs to gain insight and understanding into to his own behaviour, and not attribute it to being the responsibility of others, or to substances. Corrective Services inform that Mr Whitall has not previously engaged in any family violence specific treatment in NSW or the ACT. Mr Whitall’s criminal history reflects the limitations that custodial terms of imprisonment have provided with respect to rehabilitation and deterrence from such offending, suggesting that a different form of sentence order is necessary if such sentencing purposes are to be achieved.
Overall, the progress towards remorse and insight suggests Mr Whitall has a capability to be open to behavioural change with respect to his family violence offending. It is clear that Mr Whitall is not otherwise a danger to the community. This is not to suggest that being a danger to individual members of the community, by way of being a recidivist family violence offender, is anything other than of the utmost seriousness. It is simply to observe that a sentence order that can target his primary criminogenic risks, being his substance use, and attitudinal and situational factors, is seemingly capable of otherwise securing community protection.
Corrective Services assess that Mr Whitall’s history suggests that his criminogenic risks may be lowered by completion of a family violence specific/men’s behavioural change program. It is recommended that the intake process should commence while he is in a residential rehabilitation program to ensure there are no delays once he is in the community. This is a recommendation I endorse, and the treatment team will be asked to give effect to this.
As to the other factors of prominence in the issue of suitability and appropriateness in a treatment order, I observe the following.
Firstly, the issue of victim safety, a consideration per s 12A(2)(b)(ii) of the Sentencing Act, has given me pause. The victim expresses in her victim impact statement her fear for her, and her family and friends’ lives if Mr Whitall is released from custody. I acknowledge those fears and appreciate that the circumstances of the offending give cause to them. However, while the prosecution did note the concerns raised by the victim, and Corrective Services report from their contact with the victim that she holds ongoing concerns regarding her need for protection from Mr Whitall, neither the prosecution, nor Corrective Services, identified any direct concerns in this regard. And, as already observed, Corrective Services found Mr Whitall suitable for a treatment order. Further, as already noted, a treatment order provides a level of oversight that is otherwise unavailable for any offender upon release from custody and this, along with a condition of no contact in the order that I will make, leaves an acceptable level of satisfaction that the victim’s safety or welfare can be appropriately addressed if a treatment order is imposed.
Secondly, the issue as to whether the offender’s dependency substantially contributed to the offences, a requirement per s 12A(2)(a)(ii) of the Sentencing Act, is also of concern. While Mr Whitall was plainly using substances at the time of the offending, his criminal history may suggest that his offending behaviour does not solely reflect a substance dependency issue. The subsection does not require that dependency is the sole contributor. The report of Ms North includes that Mr Whitall described having been using cannabis and methamphetamine leading up to the offences, and that he had not slept for up to five days prior as a result. It is plain that Mr Whitall does have a substance use disorder, and that substances had, along with other factors, substantially contributed to the offences. I otherwise observe that a treatment order is also not necessarily limited to addressing substance use. The objects of such an order reflect rehabilitation of an offender as a whole, and, in the case of Mr Whitall, the order is capable of also targeting his family violence offending. Corrective Services recognise this and recommend programs during the treatment and supervision order to give effect to this.
Finally, a further consideration is that Mr Whitall has intentions to ultimately return to reside in NSW, which is where his mother is located. He has though expressed a commitment to remaining in the ACT for the duration of the order, and he has intentions to secure accommodation through the Justice Housing Program.
As at February 2025, Corrective Services advised that Mr Whitall has been assessed as suitable for the Justice Housing Program and he is on a waitlist for housing. Corrective Services find the proposed accommodation with Justice Housing to be suitable.
It follows from all of this, and having considered the other matters in ss 12A, 80S and 80T of the Sentencing Act, that I am satisfied a treatment order is an appropriate and suitable one. A treatment order, releasing Mr Whitall from custody and directly to residential rehabilitation, will be made.