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Reference Offence Maximum penalty number

Series One: February 2024 offending

CAN 5824/2024 Aggravated furious, reckless or dangerous Five years’ driving, contrary to s 7(1)(b) of the Road imprisonment, a fine of Transport (Safety and Traffic Management) Act $80,000, or both. 1999 (ACT). Automatic licence disqualification for 12 months.

CAN 5985/2024 Take motor vehicle without consent, contrary to Five years’ s 318(1) of the Criminal Code 2002 (ACT) imprisonment, a fine of (Code). $80,000, or both.

CAN 5987/2024 Damage property, contrary to s 403(1) of the Ten years’ imprisonment, Code. a fine of $160,000, or both.

CAN 5986/2024 Minor theft, contrary to s 321 of the Code Six months’ imprisonment, a fine of (transfer charge) $8,000, or both.

Series Two: July 2024 offending

CAN 7694/2024 Robbery, contrary to s 309 of the Code. 14 years’ imprisonment, a fine of $224,000, or both.

2. The sentence to be imposed for the above offending is a term of imprisonment to be suspended upon the offender entering into a good behaviour order. Accepting that full-time custody is a sentence of last resort, the reasons below explain why that is the only appropriate option.

The court’s task on sentence

3. The offender is to be sentenced according to the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) as well as any relevant mandatory relevant considerations set out in s 33 of the Sentencing Act. The court applies a principle of individualised justice, meaning that the sentence imposed takes account of the particular circumstances of the individual: 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)

4. The nature and circumstances of the conduct involved have been drawn from a statement of agreed facts before the court.

February 2024 offending

5. At about 5:52am on 18 February 2024, an employee of Three Mills Bakery left a white Toyota HiAce van (the van) parked at the Gungahlin bus interchange with the key in the ignition while delivering baked goods.

6. The offender, who was walking through the interchange, entered the van and drove off. Inside the van was $517.21 worth of baked goods.

7. A week later on 25 February 2024, the offender drove the van along a road in Bonner at about 7:25pm. Police noted that the attached registration plates did not match the vehicle’s registration and that the plates were reported stolen.

8. Police followed the van to Gungahlin before activating their lights and sirens. The offender accelerated the van away from police, driving onto the footpath and greenbelt. Police then lost sight of the van. CCTV footage shows that the van went on to travel along the footpath on a different road and scrape a concrete retaining wall.

9. By 7:35pm, the van had crashed in Harrison. It was damaged and leaking fluid, and the offender had run from the location.

July 2024 offending

10. At about 3:30pm on 28 July 2024, the offender entered Priceline Pharmacy in Amaroo. He walked behind the dispensary counter. The pharmacist behind the counter stood in front of the offender, put his arms out and said “stop”.

11. The offender shoved the pharmacist in the chest, causing the pharmacist to stumble backwards. He took five containers of medication and placed them in his bag. The offender then struck the pharmacist in the face multiple times with his fist, causing him to bleed from the nose, and shoved him again.

12. The pharmacist picked up a stepping-stool and hit the offender in the head with it, then tried to push him away using the stool.

13. The offender pushed the pharmacist away and left the pharmacy without paying. He was apprehended by police shortly afterwards wearing a black face mask.

Evaluating the objective seriousness of the conduct

14. Part of giving consideration to the nature and circumstances of the conduct involves the court evaluating its objective seriousness, directing attention to where the offending falls on the theoretical spectrum from the least serious instance of the offence to the most serious. While the maximum penalties of the various offences operate as a yardstick (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]), it must be borne in mind that the spectrum involves not just the nature of the crime, but the subjective circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. Here, the focus is upon the objective nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].

Take motor vehicle without consent

15. Relevant features aiding the evaluation of the conduct were outlined in R v Massey (No 3) [2021] ACTSC 156 at [29]. Here, the taking and driving of the bakery van was brazen and opportunistic, but with little sophistication given that the keys were in the ignition of the van. The period of driving is unknown. The vehicle was ultimately returned.

16. I have excluded from consideration the fact that the vehicle was used in the commission of another offence, being dangerous driving, because this has been separately charged, as has the damage to the vehicle.

Minor theft

17. Applying R v Rosewarne [2021] ACTSC 217 at [120] and other authorities cited in DPP v Kristiansen [2025] ACTSC 536 at [143], the following considerations inform the objective seriousness of these offences: (a) the motive for the thefts; (b) the extent and value of the property taken; (c) where the thefts occurred; (d) whether the stolen items were of sentimental value or utilitarian value, such that they would be difficult or inconvenient to replace; and (e) the degree of planning or premeditation.

18. Here, $517.21 worth of baked goods were in the van at the time it was taken. Although many might covet the orange and raisin loaf and other quality items produced by Three Mills Bakery, it is a reasonable inference from the circumstances here that the offender was not motivated necessarily to take the goods but instead sought the vehicle, which was itself a spontaneous and opportunistic offence. The low value is reflected in the offence charged being minor theft.

Dangerous driving offence

19. Features relevant to this offence have been discussed in Rosewarne at [122] and more recently by Taylor J in DPP v Clarke (No 2) [2023] ACTSC 261 at [38]. They are as follows: (a) the extent to which the public and other road users were put at risk, the number of people affected and their vulnerability (such as being children, elderly, frail or disabled); (b) the nature of the location where the driving occurred (for example: residential, busy commercial, shared user zone) and the time of day or night of the driving; (c) whether there were any passengers in the vehicle who were put at risk, especially if there were young children; (d) the variety and duration of aspects of the driving that were dangerous and the extent to which it was a multifaceted and/or a lengthy course of conduct, especially factors such as driving into oncoming traffic, onto footpaths or other places where pedestrians are, through stops signs, red lights or give way signs; (e) the distance driven and the period of the driving; (f) the speed of the vehicle and regard for the conditions; (g) whether the vehicle is engaged in a pursuit from police or fails to stop when directed to do so by police; (h) whether the offender was intoxicated by alcohol or drugs and the degree of intoxication; (i) whether there was competitive driving or street racing on a public road or showing off; (j) any damage occasioned to other vehicles, objects, houses or people; and (k) the extent to which police were put at risk when trying to terminate the driving.

20. Here, the dangerous driving involved the vehicle being engaged in a police pursuit in a residential neighbourhood in the evening. The van also spent part of the time traversing the greenbelt, along a path reserved for pedestrians, although there was no one put at risk at the time. The duration of the pursuit lasted about a minute. Although the offence itself is serious, the conduct falls at the low end.

Damage property

21. Considerations relevant to the objective seriousness of the offence were discussed by in Rosewarne at [120]. They include: (a) the motive for the damage, for example, whether the damage was malicious or occurred to facilitate a burglary; and (b) the extent or value of the damage.

22. The offender here scraped the vehicle along a retaining wall and ultimately crashed it. The damage occasioned was considerable, resulting in $31,952.97 worth of repairs. This was an offence approaching medium objective seriousness.

Robbery

23. As with cases such as DPP v Tate [2025] ACTSC 327 at [24], I have considered features such as whether there was actual or threatened violence, the nature of the victim, the degree of planning and the value of the items taken. I accept the prosecution’s submissions that the conduct here was deliberate and sustained. Actual violence was perpetrated against the victim, including strikes to the head – a vulnerable part of the body. I accept that shopkeepers are inherently vulnerable to offences of this kind (Tate at [32]). However, the property stolen was ultimately recovered by the police. Because of the violence, this is a fairly serious example of the conduct constituting the offence simpliciter.

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

24. A victim impact statement on behalf of Three Mills Bakery, the owner of the van, was before the court. The statement explained the importance of the van to the company’s business operations and how the offending had not only affected the reputation of the business but left many employees feeling unsafe in carrying out the daily deliveries between the hours of 4:00am and 8:00am. The statement also referred to the financial impact of the offending, which left the business with $35,000 worth of damage that had to be paid for without recourse to insurance. The owner’s words communicate the impact better than any summary by the court: This offence was not a victimless crime. It caused very real harm to our business, disrupted the lives of our employees, and created long-term financial consequences that we are still managing today. Plea of guilty (ss 33(1)(j) and 35 of the Sentencing Act)

25. Having regard to the considerations set out in s 35(2) of the Sentencing Act, some of which have already been detailed above, I have determined that the offender is entitled to a 20% discount for the pleas of guilty, because there was utilitarian value (no hearing date was ever set) in the pleas. I note that such value was somewhat lessened by the fact that the offender initially pleaded not guilty, briefs of evidence were prepared, and some negotiations did take place.

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

26. The offender’s background was detailed in several reports as well as a number of letters written by the offender’s mother. He is a First Nations man from Wiradjuri country. He is 41 years old, single and with no dependants. He has previously reported a history of a disadvantaged upbringing although this was contested by family members. He did not finish Year 12, although he has reported various sporadic employment. Fortunately, he has access to stable accommodation in the form of public housing.

27. The offender has various mental health diagnoses, and his family is supporting him to attend to these. It suffices to record here that there are currently complex needs, in part deriving from a head injury sustained while in custody in early 2025.

28. In terms of criminal antecedents (s 33(1)(m) of the Sentencing Act), the offender’s criminal history is lengthy and disentitles him to leniency.

29. As far as I can discern, he has little to no ability to pay a fine, with his main source of income being the disability support pension. That has been taken into account in the ultimate disposition.

30. There is a history of drug use, and the offender has attempted to engage in drug rehabilitation several times. While he does have some dependency on drugs, he has been advised of the need to manage his mental health needs in the first instance and was found unsuitable for a drug and alcohol treatment order.

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

31. I could not see any clear demonstration of remorse in the material before the court. While that might have been a mitigating factor, the lack of it is not an aggravating factor. Given that there is a particular overlay of cognitive issues that I accept make it difficult for the offender to express himself, this matter is not of particular significance in the circumstances of this case.

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

32. The prosecution has again assisted the court with cases comparable to the offending here. Those I considered to be of most assistance were: (a) R v Lovelock (No 2) [2020] ACTSC 376 in respect of the opportunistic taking of a motor vehicle, where the offender received a sentence of imprisonment for 14 months reduced to 12 months for his plea of guilty, which was then to be served by way of a treatment order. (b) Tate in respect of the robbery, where the offender was in breach of a suspended sentence order, with a lengthy criminal history, a background of social disadvantage and poor mental health. He received a sentence of imprisonment for 16 months reduced to 12 months for his plea of guilty, again, to be served by way of a treatment order.

Pre-sentence custody

33. The offender was in custody prior to being granted bail on 28 January 2025. He was arrested on 22 November 2025 and granted bail again on 24 November 2025. He was arrested again on 24 April 2026 and granted bail again on 25 April 2026. Referable to the offending, the offender has spent 75 days in pre-sentence custody which will be taken into account by way of backdating.

Totality

34. Totality considerations apply here (as to which, see Dawson v The Queen [2019] ACTCA 9 at [37] and the cases there-cited), because the Series One offences were all carried out simultaneously. They are properly to be viewed as the one course of conduct of offending (s 33(1)(c) of the Sentencing Act).

Disposition

Consequences of breach of conditional liberty – the suspended sentence should be resentenced

35. I will deal first with the breach of the suspended sentence, even though logically, it should be dealt with second because it is only triggered once convictions are entered in respect of the fresh offending. The offender had previously been sentenced for the offence of affray (CC2020/13703), and that sentence was suspended at the time of the offending. The fact that the offender was on conditional liberty at the time of the offending is a significant aggravating factor.

36. However, the offender has also committed other offences since that sentence was imposed, which triggered the breach provision (s 110 of the Crimes (Sentence Administration) Act 2005 (ACT)) (CSA Act). At the time those offences were dealt with by the Magistrates Court on 6 November 2023, the suspended sentence imposed for the affray was called up and the offender was resentenced to a term of imprisonment for six months from 20 September 2023 to 19 March 2024, with the offender to be released after serving two months and the remaining four months being suspended upon the offender entering into a 12-month good behaviour order. The suspended sentence was called up again on 14 March 2025, and the offender was resentenced to a term of imprisonment for six months from 29 July 2024 to 28 January 2025.

37. In those circumstances, if there was an option to take no action on the breach, that would be the appropriate course. The requirements of s 110 of the CSA Act are that the court must either resentence the offender or impose the suspended sentence. The simplest course is to resentence the offender in the same terms as those that were imposed by the Magistrates Court.

A partially suspended sentence is the appropriate outcome

38. Although the imposition of a term of imprisonment is a sentence of last resort (s 10 of the Sentencing Act), it is the only appropriate sentence here to recognise the gravity of the offending. I consider that some portion of the sentence must be served by way of full-time custody in order to properly recognise the impact to the victims, and also to mark the court’s disapproval of the conduct by way of denunciation and punishment. 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 at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

39. This offender’s subjective features (including mental health considerations and his current issues concerned with a brain trauma) mean that general deterrence carries less emphasis in this sentence.

40. The offender was found unsuitable for an intensive correction order, largely due to his drug use. However, he was found unsuitable for a treatment order largely due to his mental health difficulties. Although I accept those assessments, that makes it difficult to target correction by way of rehabilitation. The question becomes whether to return the offender to custody to serve further time with a non-parole period, or whether to impose a partially suspended sentence.

41. The prosecution submitted that the time previously spent in custody was inadequate to fulfil all the sentencing purposes. There is considerable force in that submission, but I am not convinced that a further period of full-time custody is necessary because: (a) General deterrence has less prominence due to the operation of the Bugmy factors (as to which see Bugmy v The Queen [2013] HCA 37; 249 CLR 571). (b) As a result of the offender’s subjective features (including his neurological issues which are still being investigated), a further period of full-time custody, particularly where he has been on bail for some time now without major incident, would weigh more heavily on this offender, without achieving any further sentencing purpose. (c) The offender has actually served a significant amount of time in custody, but through steps taken in the Magistrates Court in respect of other offending, that pre-sentence custody has been allocated in a different way.

42. That is not intended to be a criticism of what occurred in the Magistrates Court. It is simply to observe that had all the offending been dealt with at the same time in the one court, it may have been that the sentences were imposed so that a greater component of the pre-sentence custody was attributed to the more serious offending that triggered the breach here. It explains why, notwithstanding the force of the prosecution’s submission, I have ultimately not acceded to it. Accordingly, a partially suspended sentence without further time in custody becomes the most appropriate outcome. While I accept the outcome as a bare statistic might be viewed as lenient, in my view it is adequate and the appropriate course to deal with the particular circumstances of this case.

Orders

43. The orders of the Court are: (1) For the breach of the suspended sentence imposed on 17 June 2021 for affray (CC2020/13703), the Court: (a) Confirms that the sentence has already been cancelled and the offender resentenced on 14 March 2025 in the Magistrates Court to a term of imprisonment for six months, backdated to commence on 29 July 2024; and (b) To the extent required to comply with the requirements of s 110 of the CSA Act, remakes that order in the same terms. (2) For CAN 5986/2024, minor theft, contrary to s 321 of the Code, the offender is convicted and sentenced to a term of imprisonment for two months, reduced to one month and 18 days on account of his guilty plea, to commence on 8 March 2026 and conclude on 25 April 2026. (3) For CAN 5824/2024, furious, reckless or dangerous driving, contrary to s 7(1)(b) of the Road Transport (Safety and Traffic Management) Act, the offender is convicted and sentenced to a term of imprisonment for one year, reduced to nine months and 18 days on account of his guilty plea, backdated to commence on 15 March 2026 and conclude on 1 January 2027. (4) For CAN 5985/2024, take motor vehicle without consent, contrary to s 318(1) of the Code, the offender is convicted and sentenced to a term of imprisonment for one year, reduced to nine months and 16 days on account of his guilty plea, backdated to commence on 22 May 2026 and conclude on 9 March 2027. (5) For CAN 5987/2024, damage property, contrary to s 403(1) of the Code, the offender is convicted and sentenced to a term of imprisonment for eight months, reduced to six months and 12 days on account of his guilty plea, to commence on 22 September 2026 and conclude on 2 April 2027. (6) For CAN 7694/2024, robbery, contrary to s 309 of the Code, the offender is convicted and sentenced to a term of imprisonment for 14 months, reduced to 11 months and six days on account of his guilty plea, to commence on 1 April 2027 and conclude on 6 March 2028. (7) Pursuant to s 63(1)(f) of the Road Transport (General) Act 1999 (ACT), the offender’s driver’s licence is automatically disqualified for a period of 12 months, from 22 May 2026 to 21 May 2027. (8) The total effective sentence (excluding the suspended sentence for which the offender has been resentenced) is one year, 11 months and 28 days, commencing on 8 March 2026 and concluding on 6 March 2028. (9) The sentence is suspended after two months and 14 days (from 22 May 2026), upon the offender undertaking to comply with the requirements of a good behaviour order for the remainder of the order (22 May 2026 until 6 March 2028) in accordance with the conditions set out in Schedule A. Schedule A (a) The core conditions specified in ss 85 and 86 of the CSA Act. (b) Pursuant to ss 12 and 13(4)(d) of the Sentencing Act and s 95 of the CSA Act, a probation condition that the offender submit to the supervision of the Director-General responsible for administering the sentence or their delegate for as long as deemed necessary, including to comply with any directions targeted at supporting the offender’s rehabilitation, including abstention from controlled substances, such as urinalysis or any educative program considered appropriate.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: