DPP v Wickes [2025] ACTSC 443

1. Benjamin John Wickes is before the court for sentence, having pleaded guilty to two series of offences, both committed while in custody:

Series 1 – 25 June 2023: (a) One charge of causing grievous bodily harm, contrary to s 25 of the Crimes Act 1900 (ACT) (Crimes Act); (b) One charge of choke, suffocate or strangle, contrary to s 28 of the Crimes Act;

1․ Attaching to the choke offence, an additional charge of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act, which the offender has elected to have taken into account under s 57 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

Series 2 – between 13 and 24 September 2024: (c) One charge of use carriage service to menace, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth).

2. The maximum penalty for each of these offences and the additional offence is a term of imprisonment for five years.

Facts

3. The conduct constituting the offences has been taken from a statement of facts agreed between the parties. In respect of the offending on 25 June 2023, there was also CCTV footage tendered at the hearing.

Offending on 25 June 2023

4. At the time of this offending, the offender was a detainee at the Alexander Maconochie Centre (AMC).

5. On 25 June 2023, the offender was playing volleyball with several other AMC detainees, including Victim 1. He was playing on the other side of the net to Victim 1. When the game ended, the offender and Victim 1 exchanged words. The offender then went under the net and approached Victim 1 as Victim 1 walked backwards.

6. By this point, the offender and Victim 1 were both in a fighting stance. The offender tried to punch Victim 1, but Victim 1 was able to block those attempts. Victim 1 then punched the offender.

7. The offender tackled Victim 1 and they both fell to the ground, with the offender on top of Victim 1. Victim 1 tried to get the offender off him.

8. The offender was behind Victim 1 and had his head next to Victim 1’s right ear. The offender bit down on Victim 1’s ear with sufficient force to bite off a chunk of it. The offender then spat out the part of Victim 1’s ear that he had bitten off. This conduct gives rise to the charge of cause grievous bodily harm.

9. The offender remained on top of Victim 1, repeatedly hitting him with open and closed fists. He gouged Victim 1’s eyes with his fingers.

10. Victim 1 tried to get up again, but the offender was behind him. The offender put his right arm under Victim 1’s arm and chin and placed him in a chokehold such that he could not breathe. This conduct gives rise to the charge of choke, suffocate or strangle.

11. Throughout the offending, the offender punched Victim 1 on several occasions. This conduct gives rise to the charge of assault occasioning actual bodily harm.

Offending between 13 and 24 September 2024

12. At the time of this offending, the offender was intimate partners with Victim 2. He was again in the custody of the AMC.

13. Whilst remanded in custody, the offender submitted a form requesting contact with Victim 2 via email and phone. He supplied her email address and phone number.

14. Between 13 and 24 September 2024, the offender sent 154 emails to Victim 2. Victim 2 responded to 32 of those emails.

15. In his emails, the offender suggested that he would kill Victim 2. He also threatened self-harm, implying that any such harm would be Victim 2’s fault, and made vague threats such as “expect payback”. In addition, the emails contained insulting language including “junki hoe”, “ungrateful bitch”, “ugly slut” and “lying scum”.

16. This conduct gives rise to the charge of using a carriage service to menace.

The court’s task

17. The offender is to be sentenced in accordance with the sentencing purposes set out in s 7 of the Sentencing Act, and the mandatory relevant considerations set out in s 33 of the Sentencing Act, insofar as they are relevant, as well as s 16A of the Crimes Act 1914 (Cth) (Crimes Act (Cth)) in respect of the Commonwealth offence. The principle of individualised justice also applies, as to which see: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56]. Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

18. A consideration of the nature and circumstances of the offences includes assessing the objective seriousness of each offence. A number of general principles guide that assessment. They are as follows: (a) There is a theoretical spectrum from the least serious instance of the offence to the most serious. That spectrum takes into account both the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [18]-[19]. (b) An assessment of the nature of the crime is objective: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The personal or subjective circumstances of the criminal are considered separately. (c) The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. (d) The sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

19. It is also preferable to articulate the factors that inform the character of an offence’s objective seriousness: Miller at [22]; and Laipato v The Queen [2020] ACTCA 35 at [156] (discussed next).

Causing Grievous Bodily Harm offence

20. It is important to distinguish between this offence of causing grievous bodily harm and the more serious offences to the person under the Crimes Act, such as recklessly inflicting grievous bodily harm (which carries a maximum penalty of imprisonment for 13 years under s 20 of the Crimes Act). The causing of the harm is itself an element of the offence. To a very significant degree, the seriousness of the offence will depend upon the degree of harm caused to the victim, and the offender’s conduct: R v SO [2014] ACTSC 316 at [17].

21. The features I have taken into account are that the conduct carried a degree of pre-meditation, although the fact that it occurred during a team sporting game indicates it was somewhat opportunistic, and I take the offender’s point that there is insufficient evidence to suggest that the precise form of the assault was what was planned. There was a high degree of violence, and the consequence was severe in terms of a loss of a body part. It was accepted that the offending fell at the mid to upper range of objective seriousness.

Choke offence

22. In relation to the choke offence, which was separately charged, I have taken into account the features discussed in R v Bonfield [2021] ACTSC 362 at [68]-[69]. There is a scheduled offence to be taken into account here, namely assault occasioning actual bodily harm. The approach to the objective seriousness of a scheduled offence has been discussed in R v Campbell [2010] ACTCA 20 and applies to the scheduled offence here. Taking into account the scheduled offence, it was again accepted that the choke falls towards the higher range of objective seriousness.

Carriage service offence

23. In relation to the carriage service offence and the equivalent consideration under s 16A(2)(a) of the Crimes Act (Cth), the offending was not an isolated incident. It constitutes a rolled-up charge involving a number of harassing emails, containing threats, suggestions that the offender was conducting surveillance of the victim, extreme emotional manipulation, psychological abuse and degradation. Again, I agree with the parties that this conduct falls towards the mid to high range of objective seriousness.

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

24. There were no victim impact statements before the court.

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

25. The court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offences: s 35(3) of the Sentencing Act. If it does so, the penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act. Similar considerations apply under s 16A(g) of the Crimes Act (Cth) for the carriage service offence.

26. The applicable discount for a guilty plea is a matter of discretion: Cranfield v The Queen [2018] ACTCA 3 at [37]-[38], with utilitarian value being a primary consideration: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]; and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49].

27. It is necessary to consider the particular circumstances in which the plea was entered, being the statutory matters set out in s 35(2) of the Sentencing Act. Some of those matters are addressed separately elsewhere in these reasons, such as the seriousness of the offences. Here, the plea for the use of the carriage service occurred at a very early stage of the proceeding and a 25% discount is appropriate.

28. For the offences committed while in custody, the plea was negotiated, and the offender received the benefit of a substituted charge. The principles discussed in Director of Public Prosecutions v Padreny [2024] ACTCA 4 at [69]-[84] apply. Further, the plea was entered approximately one week prior to a jury trial. I consider that in those circumstances a discount of 15% is appropriate.

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

29. The offender is 33 years old. He had a severely disadvantaged upbringing, which was canvassed in the pre-sentence report dated 20 January 2025, the intensive corrections order assessment report dated 21 August 2025 and the report of Dr Jayarajah, psychiatrist, dated 1 May 2025. It is unnecessary to set out the offender’s history in these reasons. He is himself a victim of trauma. It has undoubtedly impacted upon his ability to regulate and respond and adhere to community standards of behaviour. He is a person who deserves as much care and support as the system can provide, in order to overcome his challenges.

30. I accept that each of the Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and the R v Verdins [2007] VSCA 102; 16 VR 269 principles apply here, albeit to a lesser extent, as well as the R v Henry [1999] NSWCCA 111; 46 NSWLR 346 principles.

31. The offender is not an appropriate vehicle for general deterrence. His moral culpability is reduced but his risk in the community is heightened as a result. The tension between the different consequences of disadvantage is discussed in other cases (see The Queen v Ruwhiu [2023] ACTCA 18).

32. The offender’s criminal history disentitles him to leniency. Not only is it significant, it contains numerous violence offences as well as family violence offences. The offending also occurred in custody, which is an aggravating feature: R v QH; R v CR [2020] ACTSC 178 at [57].

33. The offender has taken steps towards rehabilitation. He has undertaken rehabilitative programs during his remand at the AMC. I also take into account the fact that the offender was punished while at the AMC as a result of the conduct on the volleyball court.

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

34. The offender did not express any (genuine) remorse. From the comments made after the offending occurred, the offender’s view of what he did to Victim 1 was the opposite of compassion or any feelings of regret. Current sentencing practice (s 33(1)(za) of the Sentencing Act)

35. I have taken cases such as R v Alaragi [2020] ACTSC 77 and DPP v Akoi [2023] ACTSC 388 into account to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48]. Neither of those cases occurred in a custodial setting and the subjective features for the offenders favoured less severe sentences than the circumstances under consideration here.

Pre-sentence custody

36. As at the date of sentence, the offender has spent 252 days in custody solely referable to this offending. I consider it appropriate to take the full extent of that time into account in the manner provided for by s 63(1) of the Sentencing Act (applying to the carriage service offence by virtue of s 16E of the Crimes Act (Cth)).

Totality

37. The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited).

38. The offender emphasised that this conduct can be viewed as a course of conduct (s 33(1)(c) of the Sentencing Act) and careful attention will need to be paid to not double punish the offender. I agree with that submission and the sentence for the choke and the grievous bodily harm offences will be substantially concurrent.

39. The carriage service offence is different in criminality and the conduct was against a different victim. Accordingly, there will be a substantial degree of accumulation in respect of that offence.

Disposition

40. The imposition of a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act. However, it was accepted here that the threshold was crossed in relation to all three offences.

41. The offender was found unsuitable for a Drug and Alcohol Treatment Order for reasons explained in the reports and which I accept. An Intensive Correction Order (ICO) was sought. However, the conduct here was of a level of objective seriousness that means an ICO is simply not appropriate, in my view. The same may be said for a partially suspended sentence. Even with the reduced moral culpability and paying due regard to the subjective features discussed above, the only form of sentence that remains appropriate is one of full-time custody, with a non-parole period that is of sufficient length to permit supported reintegration into the community under supervision.

42. I will accede to the offender’s submission that the sentence should be structured so that the carriage service offence is served first, as there is no scope for a single non-parole period to be set in respect of Commonwealth and Territory offences: s 19AJ of the Crimes Act (Cth). I also recommend that any order for parole include referrals for such targeted rehabilitation programs as are considered appropriate, to provide extra support for the offender upon his release.

43. If it is necessary, I further direct that pursuant to s 72 of the Sentencing Act, the sentences to be imposed are to be made partially concurrent with any existing term of imprisonment. Such direction is appropriate having regard to the time that the offender has already spent in custody, in order to give effect to principles of totality.

44. In relation to the non-parole period, I have adjusted that, again for totality and fairness considerations given the interaction between the Commonwealth and Territory offences here. The longer period of supervision is designed to give the offender the time to complete any targeted program considered appropriate, if he is granted parole with such a condition. I have endeavoured to ensure that the partially concurrent structure and the non-parole period still give effect to proportionality between the sentence to be imposed and the seriousness of the offending. Orders

45. The orders of the Court are: (1) For the offence of using a carriage service to menace, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth), the offender is convicted and sentenced to a term of imprisonment of six months, reduced from eight months on account of his guilty plea, to commence on 20 January 2025 and conclude 19 July 2025. (2) For the offence of causing grievous bodily harm, contrary to s 25 of the Crimes Act, the offender is convicted and sentenced to a term of imprisonment of one year, reduced to ten months and six days on account of his guilty plea, to commence on 1 May 2025 and conclude on 6 March 2026. (3) For the offence of choke, suffocate or strangle, contrary to s 28 of the Crimes Act, the offender is convicted and sentenced to a term of imprisonment of one year and four months, reduced from one year, one month and 17 days on account of his guilty plea, to commence on 8 May 2025 and conclude on 24 June 2026. (4) The total effective sentence for all offences is one year, five months and five days. (5) The total effective sentence for the ACT offences is one year, one month and 25 days. (6) A non-parole period of six months and 19 days is set, to commence on 1 May 2025 and conclude on 19 November 2025.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: