DPP v Whitall (No 2)

1. On 21 April 2026, Shane Whitall (the offender) pleaded guilty to eight offences committed against a single victim across three occasions, for which he is now to be sentenced. The offences and their maximum penalties are: Between 16 July 2023 and 19 July 2023 (a) Count 1: aggravated common assault (CC2025/308), contrary to s 26(1) Crimes Act 1900 (ACT) and punishable by imprisonment for 3 years; (b) Count 2: aggravated act endangering health (SCCAN 91/2026), contrary to s 28(2)(a) Crimes Act and punishable by imprisonment for 7 years; (c) Count 3: aggravated act of indecency without consent (CC2025/311), contrary to s 60(1) Crimes Act and punishable by imprisonment for 9 years; On 23 August 2023 (d) Count 4: aggravated act endangering health (CC2025/9241), contrary to s 28(2)(a) Crimes Act; (e) Count 5: cause grievous bodily harm (CC2025/9243), contrary to s 25 Crimes Act and punishable by imprisonment for 5 years; On 8 September 2023 (f) Count 6: aggravated property damage (SCCAN 92/2026), contrary to s 116(3) Crimes Act and punishable by a fine of $9,600, imprisonment for 3 years or both; (g) Count 7: aggravated common assault (CC2025/316), contrary to s 26(1) Crimes Act; and (h) Count 8: aggravated act endangering health (CC2025/318), contrary to s 28(2)(a) Crimes Act.

2. The offender and the victim were in an intimate relationship, with the result that the above offending is aggravated by family violence.

Facts

3. The factual background to the offending is set out in an agreed statement of facts dated 21 April 2026. That document reveals, as the prosecution has submitted, a pattern of coercive and violent behaviour by the offender against the victim, as well as a substantial breach of trust.

Offending between 16 July 2023 and 19 July 2023

4. By July 2023, when counts 1 to 3 occurred, the offender and the victim had been in a relationship for approximately 7 months. When the offending occurred, the offender lived in Ulladulla, on the New South Wales south coast, while the victim lived in a property which she rented from her parents in Palmerston, in the ACT. The offender would reside at that residence when he visited the victim in the ACT.

5. On 17 July 2023 at approximately 9:00pm, the offender arrived at the victim’s residence in Palmerston. At that time, the victim was in the bedroom with her pet dog. The offender entered the bedroom and took the victim’s mobile phone. He accused the victim of being unfaithful to him and began to search through her phone. A heated argument ensued.

6. At 9:45pm, the victim attempted to follow her dog outside via a door that connected the master bedroom to the veranda. As she stepped onto the veranda, the offender grabbed her by the hair and yanked her backwards, causing her to fall back onto the ground (count 1). The offender dragged the victim backwards into the bedroom by the hood of her jumper.

7. As the victim lay prone on the floor, the offender grabbed her around the throat with both hands and began to choke her. He continued to choke her for 1-1.5 minutes (count 2). The victim felt as through she was nearing unconsciousness and became incontinent. When he stopped choking her, she felt light-headed and weak. The offender then threw the victim onto the bedroom floor (count 1 continued). The victim’s dog began to bark, at which the offender kicked it in the stomach, causing it to whimper and cry. The victim pushed the dog out of the room to prevent it from being harmed further.

8. The offender walked to the bedroom door and locked it from the inside. The victim, fearing a further assault, attempted unsuccessfully to smash the bedroom window to escape. However, the offender forced her onto the bed before she was able to do so. Sometime during the incident, the victim said words to the effect “it’s my life, why is who I talk to or socialise with any of your business?” The offender responded “because you’re mine.”

9. The offender took the victim’s keys away from her and threatened to have his sister attend the residence and “bash” the victim. The argument continued throughout the incident, and the victim asked to be allowed to leave the house several times.

10. Later that evening, the offender became sexually aroused and attempted to initiate sexual intercourse with the victim. She refused, saying words to the effect of “no way in hell, you touch me I will kill you.” The offender told the victim “[if you] won’t give me that, then you have to suck my dick.” The offender exposed his erect penis to the victim and repeated “come on, just a little suck.” The victim told the offender to fuck off and leave her alone. The offender then grabbed the victim by the hair and pushed the back of her head towards himself (count 3). The victim pushed the offender away, asking him “do you really want to be a rapist too?” and telling him to “go fuck [himself].” The offender spat in her face, with spittle landing in her eye (count 1 continued). When the offender let go of her, the victim noticed that he had strands of her hair in his hands.

11. The victim went into the bathroom and retrieved a spare key to the door from the bedroom out onto the veranda. She was able to leave the bedroom and step out onto the veranda.

12. For the rest of that night, the offender kept the victim awake. Each time she attempted to leave the bedroom, he would shove her back onto the bed or pull her by her clothing, screaming at her while doing so. Eventually, at around 7am on 18 July, he stopped. The offender and the victim showered together, and the victim noticed that she had bruising and scratch marks on her chest, both sides of her neck and below her chin.

13. The victim had planned to meet the offender’s sister that day. The offender told the victim to cover her injuries “because if you see my sister and she sees what I’ve done to you, she’s going to beat the living fuck out of me.” The victim covered her injuries with make-up and a scarf. It was only then that the offender returned the victim’s mobile phone to her. They travelled together to meet the offender’s sister. During the meeting, the offender acted cheery and normal. The victim did not disclose what had happened to anyone and did not seek treatment for her injuries. That night, she slept in the spare bedroom of her home in fear that the offender would repeat his conduct from the night before.

Offending on 23 August 2023

14. The second series of offending occurred a few weeks later on 23 August 2023. On that date, the victim finished work shortly after 3pm. The offender had been out during the day with his sister, and came to the victim’s workplace so that she could drive him home. Their plan was to drive to the south coast of New South Wales that afternoon to visit the offender’s mother. It should be noted that the person referred to as the offender’s mother is actually his biological grandmother, who raised him from a very early age and whom he has regarded as his mother. She provided a reference on behalf of the offender in this matter. She is now elderly and not in good health.

15. The offender and the victim arrived home at about 3:30pm. The offender again took the victim’s phone and attempted to change the settings so that he could track her location. The victim told the offender that this was “psychotic” and an argument ensued. The victim tried to take her phone back from the offender. In response, he grabbed her by the throat with his right hand (count 4). The victim found it difficult to breathe. The offender then threw her across the bedroom, causing her to fall to the ground.

16. The victim stood up and went into the ensuite bathroom. She again asked the offender to return her phone. He yelled at her and called her names. The victim told the offender that if he didn’t return her phone she would call the police. As she was standing in the doorway of the ensuite bathroom, the offender slammed the bedroom door. He grabbed the victim by the throat and threw her towards the bed. She landed on the edge of the bed, hitting her knee on the corner of the bedframe. This caused her to start screaming in pain (count 5).

17. The victim could not walk or stand as a result of the injury to her knee. The offender told her that he did not believe her, that she was “fucking bullshitting” and that he could not have hurt her “that bad.” The offender attempted to conciliate by packing the victim’s car with their belongings for the trip to the coast.

18. The victim then drove the offender and herself to the offender’s mother’s house in Ulladulla. During the drive, they had an argument about the type of petrol which the offender had put into the victim’s car, and the offender slapped her twice.

19. The victim and the offender arrived at the offender’s mother’s house that afternoon, where they had dinner. The victim told the offender’s mother that the offender had pushed her over. His mother told the victim that she thought the victim needed to go to the hospital, but the offender insisted that the victim did not need to go. When the victim insisted on seeking medical treatment, the offender said that she was “going to open [her] mouth.”

20. The victim drove herself to the Shoalhaven District Hospital, accompanied by the offender. She told staff that she had slipped and fallen while moving from the bathroom to the bed; she felt that she could not tell the truth while the offender was with her.

21. That evening, at the offender’s mother’s residence, the offender verbally abused and berated the victim and hid her shoes and keys to prevent her from leaving. The victim attempted to end her relationship with the offender.

22. The next day, the victim called her employer and told him that she would not be able to work due to her knee injury. She and the offender drove back to Canberra, during which the offender again accused her of cheating and being deceitful and verbally abused her. Over the next week at her residence in Canberra, the offender demanded that the victim cook, clean, and engage in sexual activity with him despite the ongoing pain from her knee injury. An MRI later confirmed a complete anterior cruciate ligament (ACL) tear.

Offending on 8 September 2023

23. The final sequence of offending occurred on 8 September 2023. That day, the victim had planned to attend a muster event with her family. Despite being repeatedly told that he was not welcome at the event with the victim, the offender continued to insist on attending. On the morning of the event, the offender became angry that he had not been invited. He ripped the victim’s necklace from her throat, breaking it (count 6) and punched the victim in the head twice (count 7).

24. The offender then grabbed the victim by the throat and threw her onto the bed. He choked her almost to the point of unconsciousness (count 8). The offender then punched through a door in the residence (count 6 continued).

History of the investigation

25. As will be seen, a key issue in this sentence will be the issue of totality. It is necessary to set out somewhat of the history of this matter to explain the background to that issue.

26. The offender was arrested on 21 September 2023 in relation to a separate incident involving the victim, which incident postdated the matters now before the court. The offender was ultimately sentenced for those matters by Christensen AJ: DPP v Whitall [2025] ACTSC 111 and DPP v Whitall (No 2) [2025] ACTSC 330.

27. Very briefly, those offences were committed on 20 and 21 September 2023. They commenced in the evening of 20 September 2023 when the offender began arguing with the victim and accusing her of being unfaithful. There followed a series of offences throughout the evening and into the following morning. Throughout this time, the offender threatened to kill the victim twice, he choked her, assaulted her a number of times causing actual bodily harm and caused damage to items of her property. He also forcibly confined her. Eventually the victim was able to call 000 and police attended, arresting the offender and charging him with the offences committed on 20 and 21 September 2023.

28. In other words, the offender’s conduct on 20 and 21 September 2023 was a continuation of the abuse to which he was subjecting the victim, and for the earlier episodes of which he must now be sentenced by me.

29. The offender was sentenced by Christensen AJ on 25 March 2025, being on that occasion given the benefit of a drug and alcohol treatment order (DATO) and, following his failure to comply with the treatment order, on 30 July 2025 when he was sentenced to imprisonment.

30. I was advised during the sentence hearing that the victim had attended a police station and engaged in an evidence-in-chief interview on 21 November 2023 in which the circumstances of the matters now before the court, and the offences of 20 and 21 September 2023 were outlined. However for reasons which are unexplained, the matters now before the court were not commenced until early 2025.

31. In sentencing the offender on 30 July 2025, Christensen AJ referred to the charges involving the same victim which predated the offences for which her Honour was then sentencing the offender, noting that this was information that was not known to the court at the time the decision for a treatment order was made: see DPP v Whitall (No 2) [2025] ACTSC 330 at [10].

32. It is a matter of considerable regret that the charges have become separated in their progress through the system. This has led to an issue of totality which must be addressed in thesentence. The delay in sentencing the offender for all offences has also had adverse consequences for both the offender and the victim.

Time in custody in relation to the matters sentenced by Christensen AJ

33. The offender was sentenced by Christensen AJ in relation to the offences committed on 20-21 September 2023. The offender had been taken into custody on 21 September 2023 in relation to those matters, and the sentences imposed by Christensen AJ were backdated to that date. The offender is currently serving a sentence of 2 years, 10 months and 9 days’ imprisonment, from 21 May 2025 until 29 March 2028 with a non-parole period to commence on 21 May 2025 and ending on 17 December 2026.

34. The offender has accordingly spent the following periods in custody in relation to the matters for which he was sentenced by Christensen AJ: (a) from 21 September 2023 to 25 March 2025, he spent 551 days in custody prior to sentence; (b) from 3 April 2025 to 21 May 2025, he spent 49 days in custody after exiting from the residential program under the DATO and before resentencing; and (c) since 22 May 2025, he has spent 1 year, 4 months and 21 days (to the present day) as a sentenced prisoner.

35. That to give context to the backdating of the present sentence.

Victim impact

36. The victim provided a victim impact statement which was read in court by the prosecutor. In her statement, the victim speaks about the great pain and distress which the offender’s actions caused her. She lives with what she describes as “constant physical pain,” in addition to the ever-present emotional and psychological consequences of the offending. The toll is exhausting for her, to the point that she has spoken about having thoughts of taking her own life. The victim speaks about such thoughts frightening her and says that she never imagined reaching a point where the pain of her experiences could make her question whether she wanted to keep living.

37. There are parts of the victim’s life which may never be the same. In her statement, she mentions the loss of her sense of safety, her peace and her confidence. This is particularly salient in circumstances where, as will be discussed below, the victim was entitled to feel safe in her own home. The impact has been such that she now fears that her safety can never be guaranteed and that she will always have to look over her shoulder. The victim also speaks about the impact of the offending upon her family, including their fear for her safety and the struggle of helping her to rebuild her life.

38. There is no doubt that the offending had, and continues to have, a severe impact upon the victim. I have taken that impact into account in fashioning the sentence.

39. It is reassuring that the victim speaks about working to rebuild herself, to protect her family and to find a future beyond the fear and pain of this offending. I hope that the process of providing a victim impact statement and knowing that it was read to the offender in court has had a positive effect.

Objective seriousness

40. Fulfilling the sentencing objectives in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) involves consideration of the matters set out at s 33 of that Act insofar as they relate to the offender’s circumstances and in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

41. Considering the nature and circumstances of the offence (s 33(a)) includes an assessment of the objective seriousness of the conduct. The statutory maximum penalty provides a “yardstick” against which to assess the objective seriousness of the offending: Markarian v R [2005] HCA 25; 228 CLR 357 at [31]. In this jurisdiction, it has been observed that attempts to place offending conduct on a spectrum of low, medium, or high range objective seriousness are generally unhelpful. Instead, it is preferable to identify the factors that inform the character of the objective seriousness of the conduct: R v Tumour [2017] ACTCA 9; 12 ACTLR 103 at [24] and Laipato v The Queen [2020] ACTCA 35 at [156].

42. Each of the present offences are aggravated by the fact that they involved family violence. As already mentioned, I accept the prosecution’s submission that these offences demonstrate a pattern of coercive and violent behaviour against the victim by the offender. 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”: p 6. The community plainly abhors such offending and, as a result, denunciation and accountability are elevated in the sentencing exercise.

43. I have also had regard to the principles for sentencing on family violence offences as set out in s 34B of the Sentencing Act. It is worth reiterating that all of the offences were committed against the victim in her own home, where she was entitled to feel safe. The offending is to be viewed as commensurately more serious.

44. At the time of the commission of the offences, the offender was subject to conditional liberty in the form of a Conditional Release Order imposed in New South Wales, which had commenced on 4 May 2023 for a period of 12 months. This offending occurred less than three months after the commencement of that order. I regard this as a factor which further heightens the objective seriousness of the offending generally.

45. The first series of offending encompassed the offences of aggravated common assault, aggravated act endangering health and aggravated act of indecency without consent. The offending occurred at a time when the offender was paranoid about the victim’s fidelity to him in their relationship, during which he displayed controlling, possessive and coercive behaviour.

46. Count 1, being the offence of aggravated common assault, encompasses a number of acts throughout the evening of 17 July 2023; including pulling the victim’s hair, throwing her to the floor, and pulling her across the room by her clothing. This offence also included spitting in the victim’s face. I accept the prosecution’s submission that this latter act was designed to deliberately degrade, belittle and humiliate the victim. The physical injury suffered by the victim due to this offending was not particularly serious.

47. Count 2, the aggravated act endangering health, relates to the offender choking the victim. Objective seriousness is to be assessed by reference to the factors identified by Refshauge J in R v Bonfield [2021] ACTSC 362 at [68]-[69]; see also DPP v Padreny [2024] ACTCA 4 at [131]. As the prosecutor emphasised, the choking persisted for a considerable period of time. The victim’s breathing was restricted to the point that she sensed impending unconsciousness and lost control of her bodily functions. It was in the context of family violence. The victim suffered physical injuries including bruising and scratches to her neck and chest. This is a serious example of the offending of this type.

48. Count 3, the aggravated act of indecency without consent, relates to the offender attempting to force the victim to perform oral sex on him. This charge is capable of encompassing a wide variety of conduct: R v Ardron [2021] ACTSC 91 at [37]. In this case, the act was characterised by a degree of violence, in that the offender grabbed the victim’s hair and physically forced her head towards himself. It was also temporally concurrent with other violent assaults against the victim. There can be no doubt that the offender knew that the victim did not wish to engage in sexual activity with him, her having emphatically rejected his earlier advances.

49. The second series of offending included counts 4 and 5, being the aggravated act endangering health and causing grievous bodily harm respectively. The former relates to the offender grabbing the victim around the throat before throwing her across the room. This time, the choking was shorter in duration and does not seem to have been as severe, although the victim still found it difficult to breathe. It again occurred immediately concurrent with other violence which no doubt heightened the sense of fear and loss of control experienced by the victim.

50. As to the grievous bodily harm, this is: principally a “result offence” which significantly depends for the assessment of objective seriousness on the seriousness of the injury inflicted, even though the manner of the infliction, the reason for it and the circumstances surrounding it remain relevant. See Millard v The Queen [2020] ACTCA 20 at [19].

51. The injuries sustained by the victim were fairly serious: they required significant medical intervention and have resulted in ongoing physical pain some three years later. After the injury, the offender accused the victim of lying about her pain levels and then discouraged her from receiving medical attention. His presence with her at the hospital also meant that she felt unable to disclose the true circumstances of her injury to medical practitioners. Injuries to the lower limbs can restrict the mobility and independence of a person, thus limiting their freedom to move through the world. That being said, the victim’s injuries were certainly not the most serious example of grievous bodily harm; a term that describes a range of very serious physical injuries: Laundon v Menegazzo [2014] ACTSC 232 at [17].

52. The final sequence of offending encompassed counts 6 to 9. I accept the prosecution’s submission that the victim was in a particularly vulnerable position relative to the offender throughout this sequence, owing to the leg injury which he had inflicted on her about two weeks previously. Count 6, the aggravated property damage, is constituted of two separate actions which caused damage to two distinct items. These are the offender pulling the victim’s necklace from her throat and punching a door in her residence. As to the first of those, there is no evidence before me of the value (whether financial or sentimental) of the necklace.

53. Count 7, aggravated common assault, involved the offender punching the victim in the head twice. The head, as the prosecution has indicated, is a particularly vulnerable part of the body. The risk of serious injury to the victim was high. In my assessment, this is a fairly serious example of this offence type.

54. Count 8 relates to another instance of the offender choking the victim, this time once again almost to the point of unconsciousness. Like count 2, this is a serious example of offending of this type.

55. The offender’s counsel accepts that the offences are objectively very serious. Counsel cautions against the possibility of “double counting” matters of aggravation on sentence where the offender falls to be sentenced on the aggravated form of the offences with applicable increased maximum penalties. Counsel submits that the offender’s actions lacked certain features of aggravation that are often seen in cases that come before this court, and submits that these are sadly fairly typical examples of offending but far from the worst. The features of aggravation said to be lacking include: (a) the offending appears to have been spontaneous rather than premeditated; (b) the offending did not involve the use of weapons; and (c) the offending did not take place in front of witnesses or children.

56. While I accept that those factors are relevant in determining objective seriousness, I do not accept submissions that there were at times some degree of verbal provocation by the victim towards the offender, or that the offender snapped during mutual arguments. I do not accept that those factors, if indeed they were present in any way, ameliorate the offender’s conduct.

Pleas of guilty

57. The offender pleaded guilty on 21 April 2026 at the criminal case conference stage. The prosecution submits that the pleas were entered on terms substantially similar to terms offered by the prosecution in July 2025, before the matter was committed to the Supreme Court. Be that as it may, the utilitarian value of the pleas remains significant and I am satisfied that the offender is entitled to a 20% discount on the head sentence in accordance with s 35(3) of the Sentencing Act. I also find it relevant that there was a delay in prosecuting these matters which has had an adverse effect on the offender.

Subjective circumstances

58. The offender’s background and antecedents are relayed in a pre-sentence report of 24 September 2026. I have also had the advantage of a number of expert reports which were tendered on the offender’s behalf, being as follows: (a) a report of Kris North, a forensic psychologist, dated 20 January 2025, prepared for the sentencing exercise of Christensen AJ; (b) a report of Kris North dated 3 September 2026 (the North report); and (c) a report of Dr Truls Bratten dated 15 October 2024 prepared on the offender’s behalf for unrelated civil proceedings.

59. I have also had regard to the decisions of Christensen AJ in DPP v Whitall [2025] ACTSC 111 and DPP v Whitall (No 2) [2025] ACTSC 330, wherein her Honour dealt with the offender’s subjective circumstances.

60. The offender is now 35 years old. He was 32 at the time of this offending. He was born in Nowra, New South Wales. He was removed from his parents’ care at six weeks old due to them experiencing issues with addiction. Thereafter, he was raised by his grandmother, whom he now refers to as his mother. The offender appears to have experienced a relatively positive upbringing early in life, but lapsed into substance abuse and landed in juvenile detention. It was during this time that he experienced various traumatic events.

61. The offender has a 16-year-old daughter from a previous relationship although he has not had regular contact since she was aged four. He has indicated to the author of the pre-sentence report that he has been attempting to resume contact with his daughter to act as a positive role-model for her. He otherwise maintains a positive relationship with his mother and sister.

62. When in the community, the offender has generally resided with his mother in Ulladulla, New South Wales. He has confirmed his intention to return there in the future; an arrangement which his mother has indicated would be mutually beneficial due to her health issues.

63. The offender has also maintained a fairly steady work history, primarily in traffic control. He has indicated optimism about his work prospects on his release from custody. In this regard the offender’s previous employer has provided a letter of support and indication of prospective employment to the court. The letter makes it clear that his employer would be happy to consider him for re-employment in traffic management once he is released from custody. The letter makes it clear that the offer is based on the writer’s direct experience with the offender as his former employer.

64. The North report outlines a sorry history of substance abuse including petrol sniffing from age 10, cannabis from age 12, and methamphetamines from age 18. The offender reported that his use of these substances was motivated by desire to suppress unwanted thoughts and emotions relating to past trauma. The offender had been on buprenorphine treatment since early 2024 and was admitted to Canberra Recovery Services when he received his DATO. He was expelled from the treatment program after a positive drug test and expressed regret to the author of the report over having wasted this opportunity for treatment. Since returning to custody he has reported that he completed the Solaris Therapeutic Program and is on Buvidal to suppress his desire for drugs whilst incarcerated.

65. The North report also outlines the offender’s trauma history. He was separated from his parents as a baby and the report author is of the opinion that abandonment and attachment issues during his childhood which have been exacerbated by trauma during his adolescence are of relevance to his subsequent conduct. He reported experiencing trauma when in juvenile custody from the age of 14 and [redacted]. These matters are further dealt with in the report of Dr Bratten, and have led to a civil claim being lodged by the offender.

66. The offender’s unfortunate mental health history has also been outlined in the North report. The offender was diagnosed with ADHD as a child which has predisposed him to an increased risk of substance use. [Redacted]. He has also had a history of self-harming behaviours and suicide attempts. The North report records that his self-harming and suicidal behaviours “were related to poor impulse control and difficulties in regulating his emotions.”

67. The North report concludes that the offender’s difficulties in regulating his emotions and impulse control had contributed to his offending behaviour and that those issues had been adversely impacted by his substance abuse. Underlying issues relating to fears of abandonment and his history of rejection were also identified as having contributed to his trust issues and jealousy within his relationships. It is noted that the offender has completed a domestic violence program in custody and has stated that he was motivated to engage in further and more intensive treatment to address and reduce his risk of reoffending. The North report records that the offender has realistic plans for his future including residing with his grandmother and providing care for her and returning to employment in traffic control while engaging in treatment related to his mental health, substance abuse and offending behaviours. The North report does record that it is unlikely that he will have access to appropriate intensive treatment for his complex mental health issues in custody.

68. As noted in the pre-sentence report, the offender’s behaviour in custody appears to have been mostly positive.

69. The offender’s counsel submitted that the principles from Bugmy, Henry, and Verdins were 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 [redacted], his ADHD diagnosis, the development of his multi-substance dependence and his offending behaviour. It was submitted that his moral culpability was reduced, and the need for specific and general deterrence moderated. Further, it was submitted that a sentence of full-time imprisonment would weigh more heavily on the offender given [redacted] and the limitations to the therapeutic treatment available in the custodial environment.

70. The prosecution did not seek to be heard against those submissions, but did emphasise the issue of community protection. On behalf of the offender it was accepted that community protection was a relevant factor but that it should not be determinative in the sentencing exercise given the steps that the offender has taken towards rehabilitation, and the degree of remorse and insight now displayed by him. The prosecution, for its part, although expressing concern at the apparent blasé attitude towards the offences recorded in the pre-sentence report, very fairly conceded that the offender had engaged in the relevant family and domestic violence program in custody and that this had been consistent with a change in attitude.

71. I accept that the principles raised on the offender’s behalf are enlivened, and that further the offender has demonstrated an intention to engage with rehabilitation. I am fortified in that conclusion by the pre-sentence report which notes that the offender has completed the family violence program in custody and was able to articulate attitudinal changes as a result of engaging with the program. The offender has expressed sadness and regret for his behaviour and a desire to cease offending.

Criminal history

72. The offender has an extensive criminal history which commenced as a juvenile and has continued into his adulthood, including in both New South Wales and the ACT. The offender’s history is such that it plainly disentitles him to leniency, a fact accepted by his counsel. Notably, he has been subject to a number of apprehended violence orders in New South Wales. The offender has served both custodial and community-based orders. Most recently, he was released from custody on 25 March 2025 to a DATO but was exited from the treatment program and returned to custody on 3 April 2025.

73. This criminal history includes offences of violence from 2006 onwards; including, troublingly, a number of crimes of domestic and sexual violence. The remaining offences relate mostly to driving, property, and contravening protection orders. The present offending was committed whilst the offender was subject to a Conditional Release Order imposed in New South Wales meaning that the offending occurred while he was on conditional liberty.

Attitude to the offending

74. The pre-sentence report records that the offender indicated he had a general awareness of the offences for sentencing and declined to have the exact charges read to him. He reported limited memory of the offending, and stated he had not slept for five days leading up to the offences due to heavy methamphetamine use. The offender attributed his offending to illicit substance use, stating it would not have happened if he had been sober.

75. The prosecutor understandably submitted that this demonstrated a somewhat blasé attitude of the offender towards the offences.

76. However, the offender did identify that the victim would have been “terrified” by his behaviour, and stated he felt particularly sickened by the act of indecency charge. He stated he was sad that the victim had to endure his behaviour, and he wished he could apologise, while acknowledging she would be traumatised.

77. On a more positive note, a letter the offender had written to the court was tendered on sentence. In the letter the offender expressed his remorse and accepted responsibility for his actions. He mentioned that while in custody he has completed a course on domestic violence but added “as well, I’ve realised the impact of domestic violence as my sister recently went through a horrific domestic violence situation so it really opened my eyes with the impacts on the victim immediate and long lasting effects going through a violent experience has on someone”. The offender expresses looking forward to being released to help his mother, see his daughter, work in the traffic control job and pursue a new romantic relationship which has been formed since he has been in custody. The offender refers to settling a civil claim in which he was the plaintiff [redacted].

78. I do note that Christensen AJ noted a change in attitude regarding the offending behaviour when she sentenced him in March 2025: see DPP v Whitall [2025] ACTSC 111 at [96]. It is also encouraging that he has engaged in the EQUIPS program for family and domestic violence whilst in custody.

79. I accept the submission made on behalf the offender that he now shows a degree of remorse and insight into his offending. He has voluntarily accessed rehabilitative programs for both substance abuse and family violence offending whilst in custody. He also has, as the North report recorded, realistic plans for his future and will have access to support in the community from his mother and away from his victim in Canberra. He also has an offer of employment and a new relationship to provide stability.

Time in custody

80. The offender was arrested on 21 September 2023 in relation to other offences committed against the same victim and has since been sentenced to a separate term of imprisonment. His current non-parole period expires on 17 December 2026. None of his time in custody to date is referable to the present offending.

Comparative cases

81. I have been provided by the prosecution with a helpful table of comparative cases. Unfortunately, there is a growing body of such cases, particularly those which deal with offences of choking in a domestic violence (as distinct from sexual offending) context. I have found DPP v Clifford [2025] ACTSC 307; DPP v Howarth [2024] ACTSC 322; DPP v Hartas [2024] ACTSC 21; and DPP v Gale [2023] ACTSC 297 particularly helpful. I have carefully considered these sentences as I am required to do by s 33(1)(za) of the Sentencing Act, bearing in mind the oft-repeated warnings of the High Court about the limitations of comparative cases given that an individual sentence is not in itself a precedent.

Disposition

82. As set out above, I have taken into account the fact that all of the offences occurred in the victim’s home, where she was entitled to feel safe. I will ensure that this matter is not double-counted.

83. Of substantial concern is that the present offending is merely another instance of a pattern which the offender has displayed in relation to intimate partners.

Totality

84. As set out above, it is most unfortunate that the offender is now to be sentenced for offences which predate the offences for which he is currently serving a sentence. This is a situation which is apt to lead to unfairness to an offender. In R v Todd [1982] 2 NSWLR 517 the offender had been sentenced for offences in Queensland relating to an armed robbery committed in January 1974, and after he had served his Queensland sentence was sentenced in New South Wales for a separate armed robbery in that State also committed in January 1974. In remarks subsequently endorsed by the High Court in Mill v The Queen [1988] HCA 70; 166 CLR 59, Street CJ (with whose reasons the other members of the Court agreed) said (at 519-520): [I]t would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. […] […] Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

85. Of course, the delay in the present case is nowhere near as great as it was in Todd. However the same principles apply. In the present case, consideration will need to be given to the backdating of at least some of the sentences imposed, and also to how the non-parole period is fashioned. I note that I am not to impose the sentence as if sentencing the offender when he was sentenced by Christensen AJ: cf R v Knott [2007] SASC 74; 169 A Crim R 291 at [35]. Rather as indicated by Street CJ, I am to take into account events which have taken place since the offending, including the progress towards rehabilitation; understandably referred to by the offender’s counsel as “green shoots”. In this regard, the offender’s counsel urges me to avoid imposing a sentence which is crushing.

86. On the other hand, as the prosecution points out, while accepting the need to avoid a crushing sentence the court must recognise that serious offences were committed on multiple occasions, each of which involved the infliction of harm on the victim. Those occasions must be individually recognised.

87. In arriving at the sentence, I have taken into account the matters highlighted by Street CJ in Todd. I consider this to be a case where a degree of leniency should be extended to the offender given the passage of time between the offence and sentence, particularly where there has been a delay in prosecution which has not been explained, and in circumstances where the offender is now progressing his rehabilitation.

88. As set out above, there were three episodes of offending, and it is appropriate to allow a measure of concurrency in relation to the offences within each episode.

Non-parole period

89. In the light of the offender’s demonstrated commitment to his rehabilitation, the offender’s counsel urged me to provide a significant period when parole would be available. I accept this submission. It will be for the offender to convince the executive that his rehabilitation has progressed to such a stage that he is entitled to parole. In the circumstances the non-parole period will be 50% of the overall term.

90. I propose to backdate the first of the sentences to 21 August 2025 to reflect that the current offences were part of the same suite of offences for which Christensen AJ sentenced the offender, and to reflect the element of leniency referred to by Street CJ in Todd.

91. As the offender is currently serving a term of imprisonment, the imposition of a further custodial sentence will cancel the existing non-parole period. Any non-parole period set thereafter must not make the offender eligible for parole earlier than 17 December 2026: Sentencing Act s 66.

The individual sentences to be imposed

92. The individual sentences to be imposed will be as follows: (a) Count 1: aggravated common assault (CC2025/308) – 1 year’s imprisonment, discounted by 20% to 9 months and 18 days; (b) Count 2: aggravated act endangering health (SCCAN 91/2026) – 3 years’ imprisonment, discounted by 20% to 2 years, 4 months and 24 days; (c) Count 3: aggravated act of indecency without consent (CC2025/311) – 18 months’ imprisonment, discounted by 20% to 1 year, 2 months and 12 days’ imprisonment; (d) Count 4: aggravated act endangering health (CC2025/9241) – 2 years’ imprisonment, discounted by 20% to 1 year, 7 months and 6 days; (e) Count 5: cause grievous bodily harm (CC2025/9243) – 18 months’ imprisonment, discounted by 20% to 1 year, 2 months and 12 days; (f) Count 6: aggravated property damage (SCCAN 92/2026) – 6 months’ imprisonment, discounted by 20% to 4 months and 24 days; (g) Count 7: aggravated common assault (CC2025/316) – 1 year’s imprisonment, discounted by 20% to 9 months and 18 days; and (h) Count 8: aggravated act endangering health (CC2025/318) – 3 years’ imprisonment, discounted by 20% to 2 years, 4 months and 24 days.

93. For those reasons, the following orders are made.

Orders

94. The orders of the Court are: (1) Count 1: aggravated common assault (CC2025/308) – the offender is convicted and sentenced to 9 months and 18 days’ imprisonment, commencing on 21 November 2025 and expiring on 7 September 2026; (2) Count 2: aggravated act endangering health (SCCAN 91/2026) – the offender is convicted and sentenced to 2 years, 4 months and 24 days’ imprisonment, commencing on 21 November 2025 and expiring on 13 April 2028; (3) Count 3: aggravated act of indecency without consent (CC2025/311) – the offender is convicted and sentenced to 1 year, 2 months and 12 days’ imprisonment, commencing on 21 November 2025 and expiring on 1 February 2027; (4) Count 4: aggravated act endangering health (CC2025/9241) – the offender is convicted and sentenced to 1 year, 7 months and 6 days’ imprisonment, commencing on 21 August 2025 and expiring on 26 March 2027; (5) Count 5: cause grievous bodily harm (CC2025/9243) – the offender is convicted and sentenced to 1 year, 2 months and 12 days’ imprisonment, commencing on 21 August 2025 and expiring on 1 November 2026; (6) Count 6: aggravated property damage (SCCAN 92/2026) – the offender is convicted and sentenced to 4 months and 24 days’ imprisonment, commencing on 21 February 2026 and expiring on 14 July 2026; (7) Count 7: aggravated common assault (CC2025/316) – the offender is convicted and sentenced to 9 months and 18 days’ imprisonment, commencing on 21 February 2026 and expiring on 8 December 2026; and (8) Count 8: aggravated act endangering health (CC2025/318) – the offender is convicted and sentenced to 2 years, 4 months and 24 days’ imprisonment, commencing on 21 February 2026 and expiring on 14 July 2028. (9) A non-parole period of 1 year, 5 months and 12 days is imposed, commencing on 21 August 2025 and expiring on 1 February 2027.

I certify that the preceding ninety-four [94] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice White. Associate: Date: