//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] ACTCA 47
respondent. The appeal was dismissed. The sentences imposed by the Supreme Court of the ACT, including the aggregate head sentence of three years and three months’ imprisonment and the two-year non-parole...
The Court of Appeal left Herbert’s sentences in place. It found that the sentence was not shown to be plainly excessive, given the seriousness of the sword attack and the relevant circumstances. The charge had always been aggravated assault involving family violence, and Herbert had pleaded guilty to that charge on agreed facts. Because those facts said the sword caused the injury, the judge could take the sword into account even though a separate weapon charge was discontinued.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,352 words · generated 06/10/2026
In Herbert v DPP [2025] ACTCA 47, the ACT Court of Appeal dismissed Graeme Leslie Herbert’s appeal against sentence. The appeal concerned sentences imposed after guilty pleas to aggravated assault occasioning actual bodily harm and contravening a family violence order. The assault sentence was three years and three months’ imprisonment. The order-breach sentence was one month, wholly concurrent. The aggregate head sentence was three years and three months, with a two-year non-parole period ([1], [29]).
2 cited instruments linked from this judgment.
The incident occurred in the context of an existing family violence order. Served on 11 April 2024, it prohibited Herbert from being within 100 metres of the victim and from engaging in family violence towards her ([5]). On 17 July 2024, the victim attended Herbert’s home while he was subject to bail conditions that also restricted his contact with her. An argument followed. Herbert told the victim that he still had a sword, then obtained one with a 60 cm blade and swung it at her face ([6]–[8]).
The blade struck the victim’s chin. She suffered two incised wounds and an abrasion. One wound required stitches under local anaesthetic, and the wounds were expected to leave permanent scars. The sentencing material also described possible continuing pain and psychological consequences ([9]). Police arrived while the victim was pleading for her life ([8]).
The prosecution accepted pleas to the two offences in full satisfaction of the indictment and indicated that it would discontinue charges of unlawful confinement and possessing an offensive weapon with intent ([3]). Herbert’s appeal raised two main arguments: that the sentences were manifestly excessive, and that he thought he had pleaded guilty to ordinary assault occasioning actual bodily harm, not the aggravated offence ([4]). He also argued that the sword could not be considered because the separate weapon charge was discontinued ([39]).
The Court rejected those arguments. Its reasons address three connected points: the limits of appellate sentence review, how the family-violence aggravation applied to the offence pleaded, and the importance of the agreed factual basis when a charge is discontinued.
The Court began with the principles governing appeal from a discretionary sentence. Under House v The King (1936) 55 CLR 499, an appellate court looks for error in the exercise of discretion. Error may arise if the sentencing judge acted on a wrong principle, relied on an irrelevant consideration, misunderstood the facts, or omitted a material consideration ([30]). Manifest excess is a related route to intervention: even without an identified error, the sentence may be so plainly wrong that error must be inferred ([31]).
The Court stressed that an appellate court’s different view about the appropriate sentence is not sufficient. The appellant must show that the sentence itself supports an inference of misapplication of principle. Nor do comparable cases impose a numerical ceiling or floor. Sentencing consistency does not require numerical equivalence, and comparisons must be treated cautiously ([32]).
Applying that approach, the Court considered the four-year starting point against the maximum seven-year penalty. It accepted that the primary judge could characterise the attack as “extremely serious”. The injury was serious within the range covered by the offence, and the sword was used near the victim’s face or neck, creating the potential for much graver consequences ([33]). The Court also identified the appellant’s offending while on conditional liberty, significant criminal history, poor compliance with community-based orders, and lack of persuasive evidence of remorse, contrition or rehabilitation ([34]). In that setting, the starting point did not compel an inference of error ([35]).
The two-year non-parole period was about 61 per cent of the head sentence. The Court observed that this fell within the stated usual range of 50 to 75 per cent. It considered the period consistent with a balance between substantial full-time detention and a meaningful period of supervision in the community if the appellant were released on parole ([36]). It found no error in either the head sentence or non-parole period ([37]).
The aggravated-offence argument failed on the charge and plea record. The Court explained that s 24 of the Crimes Act 1900 (ACT) provides a five-year maximum for assault occasioning actual bodily harm, but a seven-year maximum for an aggravated offence. It described s 48C as identifying an offence under s 24 as aggravated where it involves family violence. The meaning of family violence is linked to s 8 of the Family Violence Act 2016 (ACT), and includes violence directed towards a domestic or intimate partner ([38]). The relationship and conduct made the family-violence character of the offence uncontroversial at the sentencing hearing ([38]).
The Court then traced the charge through the proceedings. It was charged as aggravated assault occasioning actual bodily harm in the Magistrates Court and on the Supreme Court indictment, with family violence expressly identified. Herbert pleaded guilty to that offence when arraigned, and the signed agreed statement of facts recorded the aggravated charge and seven-year maximum ([42]–[45]). The underlying facts also involved violence against an intimate partner, so the statutory aggravation applied on the Court’s analysis ([46]). It concluded that there had been no upgrade at sentence and no miscarriage of justice in using the seven-year maximum ([47]).
Finally, the Court rejected the argument that the sword had to be ignored because a distinct weapon charge was to be discontinued. The agreed facts for the assault expressly said that Herbert swung the sword at the victim’s face and caused the chin injury ([48]). The sword was also mentioned in the victim impact statement read in court ([49]). The Court held that discontinuing a separate charge did not change the agreed facts for the offence that remained. The sentencing judge was obliged to sentence on those facts, and the use of the sword as the means of inflicting injury did not cause a miscarriage of justice ([50]).
The judgment does not purport to create a new general test for sentence appeals. It applies established appellate principles, chiefly the House v The King framework and the ACT Court of Appeal authorities summarised in paragraph 32: Tracey v The Queen [2020] ACTCA 51, Zdravkovic v The Queen [2016] ACTCA 53, and R v Omari [2022] ACTCA 4. The practical emphasis is on the restraint required when reviewing sentencing discretion. A sentence is not appealable simply because another court might have selected a different figure.
The decision also illustrates the statutory distinction the Court applied between the ordinary and aggravated forms of the offence. On the judgment’s account, the family-violence character of an assault against a domestic or intimate partner brings the aggravated-offence maximum under s 24(2) into play, with s 48C and the Family Violence Act definition relevant to that classification ([38]). The judgment does not set out a broader account of every possible way an offence might be aggravated.
For guilty pleas, the Court relied on White v R [2022] NSWCCA 241 for the proposition that an appellant seeking to go behind a guilty plea for the first time after conviction and sentence must demonstrate that a miscarriage of justice actually occurred ([41]). It then applied that principle to the record before it: the charge, arraignment and agreed facts all identified the aggravated offence ([42]–[47]).
As to discontinued charges, the judgment’s contribution is an application of the agreed-facts principle to this particular sentencing record. It refers to R v De Simoni (1981) 147 CLR 383, noting that the discontinued charge was not a more serious offence than the one remaining ([50]). The Court did not treat discontinuance as erasing facts that were expressly agreed as relevant to the assault charge.
The decision therefore applies and clarifies the consequences of the particular charge and plea documents before it. It does not announce that every fact associated with a discontinued charge may always be relied on at sentence. The scope of any sentencing facts remains tied, in this judgment, to what was agreed for the offence being sentenced.
At paragraph 31, the Court describes manifest excess as a case where a sentence is so plainly wrong that an error in the sentencing discretion must be inferred, even though no specific legal or factual error is identified. In plain English: the appeal court may intervene where the result itself strongly indicates something went wrong, but the appellant must establish more than disagreement.
At paragraph 32, the Court says appellate intervention is not justified simply because the appeal court may have a different view of the most appropriate sentence. That is a reminder that an appeal is not a fresh sentencing exercise. The court reviews for error under the applicable principles.
At paragraph 33, the Court accepted that the sentencing judge could regard the offending as extremely serious, in light of both the injuries and the possibility of more serious harm from a sword attack near the face or neck. The passage explains why the offence was assessed by reference not only to the injury that occurred, but also to the potential consequences of the conduct.
At paragraph 35, the Court concluded that the four-year starting point was not so high that it indicated error. This is an application of the manifest-excess test, rather than a general statement that four years is an appropriate starting point for similar offences.
At paragraph 45, the Court relied on the lawyer’s statement in the sentencing hearing that Herbert had read and accepted the statement of facts, together with his presence in court and the document he signed. The importance of the passage is its connection between the plea and the factual basis on which the sentence was imposed.
At paragraph 50, the Court stated that the primary judge was obliged to sentence on the agreed facts. In context, those facts included the sword’s use to inflict the injury. Discontinuance of another charge did not remove that agreed fact from the sentencing basis.
The decision is most directly relevant where a criminal appellant challenges a sentence as manifestly excessive but cannot point to a specific error. The Court’s analysis requires attention to the sentencing reasons and the total context, including the offence’s seriousness, maximum penalty, circumstances of the offender and the asserted comparison cases ([30]–[37]). The judgment cautions that comparable cases are not numerical caps and that an appellate court’s different preference is insufficient ([32]).
It is also relevant where an appellant says that a guilty plea was to a lesser offence than the one for which sentence was imposed. In Herbert, the charge, indictment, arraignment and agreed facts consistently described aggravated assault occasioning actual bodily harm involving family violence ([42]–[45]). The decision underscores the importance of checking the formal charge and plea record when assessing such a contention.
A further relevant situation is where a prosecution discontinues a separate charge, but the conduct underlying that charge is also stated in the agreed facts for an offence that remains. Herbert holds that discontinuance did not, on the record before the Court, change the factual basis of the assault sentence ([48]–[50]). The case does not establish that any unproven allegation or fact linked to a discontinued charge may be treated as agreed. The fact was expressly included in the agreed statement for the offence being sentenced.
The statutory family-violence issue is relevant to pleas and sentencing where the charge alleges assault occasioning actual bodily harm against a domestic or intimate partner. The judgment explains the provisions it applied and the consequence for the maximum penalty ([38]). A lawyer assessing another matter would need to check the precise charge, the statutory provisions applicable at the relevant time, the facts supporting the alleged aggravating feature, and the plea record. The decision itself does not resolve situations where those matters are disputed or differently documented.
The supplied judgment contains no information about later judicial treatment of Herbert v DPP. It was delivered on 14 November 2025, and the text provided records no subsequent cases applying, distinguishing, or criticising it. No conclusion about its later treatment can be drawn from this judgment alone.
The judgment itself relies on earlier authority. It applies the established sentence-review framework in House v The King and summarises principles from Tracey, Zdravkovic and Omari ([30]–[32]). It applies White v R to the need to show an actual miscarriage of justice when seeking to go behind a guilty plea for the first time on appeal ([41]). It also refers to De Simoni in addressing the relationship between the discontinued charge and the offence being sentenced ([50]). These are authorities considered by the Court in Herbert, not later treatment of Herbert by other courts.
The judgment does not decide how the result might differ if the charge documents, plea transcript and agreed facts were inconsistent, or if the accused disputed the facts said to form the basis of sentence. Here, the documents and the sentencing record aligned: the charge was aggravated, the plea was to that charge, and the agreed facts included the sword ([42]–[45], [48]).
Nor does the judgment determine the limits of relying on facts associated with a discontinued charge when those facts do not appear in the agreed basis for the remaining offence. Its reasoning is specific: the sword was expressly included in the agreed facts for the assault, and the separate charge’s discontinuance did not alter those facts ([48]–[50]).
The decision also does not prescribe a sentencing range for sword assaults or family-violence offences. It records that the primary judge considered comparable cases of limited assistance because the circumstances were unique ([28]). The Court’s conclusion that this particular starting point and non-parole period disclosed no error should not be converted into a general tariff.
Finally, the supplied text does not establish how subsequent courts have applied the decision or whether any later statutory amendments affect its analysis. Those questions require sources beyond the judgment supplied here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
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 COURT OF APPEAL
Case Title: Herbert v DPP Citation: [2025] ACTCA 47 Hearing Date: 11 November 2025 Decision Date: 14 November 2025 Before: Mossop, Baker and Taylor JJ Decision: (1) The appeal is dismissed. Catchwords: APPEAL – CRIMINAL LAW – Appeal against sentence – where appellant sentenced to three years and three months’ imprisonment for aggravated assault occasioning actual bodily harm – where appellant had swung sword at victim’s face, causing wounds to her chin requiring stitches – extremely serious offending – no persuasive evidence of remorse, contrition or capacity for rehabilitation – significant criminal history – no manifest excess demonstrated APPEAL – CRIMINAL LAW – Appeal against sentence – aggravated offences – where appellant pleaded guilty to aggravated assault occasioning actual bodily harm – where charge involving offensive use of a weapon was consequently discontinued – where appellant instructed counsel at sentencing that he accepted statement of facts (which referred to the offence being aggravated and involving the use of a sword) – charge was not “upgraded” at sentence – no error in primary judge sentencing on the basis of agreed facts Legislation Cited: Crimes (Sentencing) Act 2005 (ACT), ss 10(2), 34B Crimes Act 1900 (ACT), ss 24, 40C, Dictionary Family Violence Act 2016 (ACT), ss 8, 43(2) Cases Cited: DPP v Martin (a pseudonym) (No 2) [2025] ACTSC 181 House v The King (1936) 55 CLR 499 R v De Simoni (1981) 147 CLR 383 R v Omari [2022] ACTCA 4 Tracey v The Queen [2020] ACTCA 51 White v R [2022] NSWCCA 241; 110 NSWLR 163 Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 Parties: Graeme Leslie Herbert (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel Self-represented (Appellant) K McCann (Respondent) Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 19 of 2025 Decision Under Appeal: Court: ACT Supreme Court Before: McCallum CJ Date of Decision: 6 May 2025 Case Title: DPP v Martin (a pseudonym) (No 2) Citation: [2025] ACTSC 181 Court File Numbers: SCC 334 of 2024 SCC 335 of 2024 THE COURT: Introduction
The appellant pleaded guilty to one offence of aggravated assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT) and one offence of contravening a family violence order contrary to s 43(2) of the Family Violence Act 2016 (ACT). He was sentenced by the primary judge to three years and three months’ imprisonment for the aggravated assault occasioning actual bodily harm and one month’s imprisonment for the contravention of the family violence order: DPP v Martin (a pseudonym) (No 2) [2025] ACTSC 181. The sentence for the contravention of the family violence order was wholly concurrent with the sentence for the aggravated assault occasioning actual bodily harm, giving an aggregate sentence of three years and three months’ imprisonment. The non-parole period was two years.
The maximum penalty of imprisonment for the offence of aggravated assault occasioning actual bodily harm is seven years. The maximum penalty of imprisonment for contravening a family violence order is five years.
The sentencing of the appellant occurred in a context in which the prosecution had accepted pleas of guilty to the counts of contravening a family violence order and aggravated assault occasioning actual bodily harm in full satisfaction of the indictment. This meant that the prosecution indicated it would discontinue a charge of unlawful confinement (which carried a maximum penalty of 10 years’ imprisonment) and a transfer charge of possessing an offensive weapon with intent (which carried a maximum penalty of one year’s imprisonment).
By his amended notice of appeal filed 8 July 2025, the appellant appeals from both sentences imposed. The grounds of appeal are: (a) “the sentences imposed were manifestly excessive”; and (b) “I thought plea deal was Actual Bodily harm not Aggravated Assault Actual Bodily harm”.
Objective circumstances
The appellant and the victim were in a romantic relationship. On 11 April 2024, the appellant was served with a family violence order which prohibited him from being within 100 m of the victim or engaging in family violence towards her.
At about 7pm on the evening of 17 July 2024, the appellant was at home, as required by the bail conditions that he was then subject to as a result of unrelated allegations against him. The victim attended his home, putting him in breach of those bail conditions, as those conditions included a condition that he not approach within 100 m of the victim. This, along with the appellant’s subsequent violent conduct, also put him in breach of the family violence order.
Later in the evening, an argument developed between the appellant and the victim. The appellant became angry and told the victim that, although police had confiscated his gun, he still had a sword. The victim messaged her son, asking him to come and help her. Police also received an anonymous report of a domestic dispute. The appellant threw his phone at the television, breaking both devices. He then got a sword with a 60 cm blade from the bedroom.
The appellant held up the sword and swung it at the victim’s face, hitting her on the chin. Unsurprisingly, she felt immediate pain and began bleeding. As she was attempting to stem the bleeding, her son rang. She screamed for him to come and help her because she had been stabbed by the appellant. Police arrived at around the same time. When they approached the front door, they heard the victim pleading for her life. The victim later told police that, if they had not arrived when they did, she would be dead.
The victim suffered two incised wounds and a linear abrasion on her chin. The incised wounds were 23 mm and 8 mm in length, and one of them required stitches under local anaesthetic. The incised wounds will leave permanent scars. A medical report tendered by the respondent indicated that the victim may also suffer permanent or long-lasting consequences, being ongoing pain and discomfort in her chin and psychological symptoms resulting from the traumatic nature of the offence.
Subjective circumstances
The appellant was 48 years old at the time of sentencing. He had a positive upbringing. He was educated to Year 9 and engaged in steady employment until suffering injuries in a motorcycle accident in 2010. He has ongoing issues with his legs, hips, back and neck. At the time of sentencing, he was on a disability pension. He continues to enjoy the support of his parents.
He became a father at the age of 14 but was separated from that child six months after the child was born. The appellant subsequently had seven more children with his ex-partner (not the victim of the present offending), with whom he was in a relationship for 23 years.
The appellant has a long history of abuse of illicit drugs including amphetamines, ecstasy, heroin, cannabis and alcohol from a young age. The primary judge did not accept the appellant’s claim that he had ceased all drug use by the age of 30. Her Honour noted that, in 2024, he had two involuntary admissions to a psychiatric ward due to suicidal ideation in the context of psychosocial stressors and substance misuse: at [13].
The appellant had a number of prior convictions for offences going back at least to 1996, including thefts, assaults and driving related offences. Although he had convictions for breaches of family violence orders, he did not have any convictions for serious family violence offences. There were significant periods during which he had no convictions. The pre-sentence report indicated that his compliance with community-based orders was unsatisfactory.
He was on conditional liberty at the time of the offending in relation to other indictable offences.
As at the sentencing hearing, the appellant had spent 268 days in custody on remand. His conduct on remand had been positive. He had completed a course involving cognitive behavioural therapy, was classified as a minimum security prisoner and held the position of sweeper and cleaner in the jail.
The pre-sentence report indicated that the appellant disagreed with the statement of facts and denied being under the influence of any substances at the time of the offending or struggling with his mental health. It recorded that he placed responsibility for the offending upon the victim, but was willing to engage in domestic violence treatment if the court ordered. The author of the pre-sentence report was not required for cross-examination. The primary judge was not satisfied that the offender had any remorse for the offences, relying upon the terms of the pre-sentence report and not being prepared to act upon unsubstantiated statements which the offender made to his lawyer: at [16]-[18].
Although the offender denied that he was under the influence of any substances at the time of the offending, the primary judge observed that this was inconsistent with the observations of police officers who attended the incident and contrary to what the appellant told the officers at the AMC upon his admission.
The decision below
After setting out the facts giving rise to the offending, the primary judge made it clear that the physical injury inflicted by the sword was an element of the offence and could not be regarded as an aggravating factor.
The primary judge referred to the terms of the victim impact statement, which indicated that the victim stated that she had post-traumatic stress disorder as a result of the offending, causing her to have panic attacks and feel paranoid and mentally exhausted. The victim also said that she had lost her employment and was at risk of losing her children because of the seriousness of the offence. The primary judge noted that she had disregarded a statement in the victim impact statement that was inconsistent with the discontinuance of the charge of unlawfully detaining the victim.
The primary judge characterised the offending as an “extremely serious instance of the offence of assault occasioning actual bodily harm”, approaching “the most serious end of the range for that offence”: at [10]. It involved the use of a highly dangerous weapon deliberately wielded against the victim and causing significant harm to one of the most vulnerable parts of the body. The primary judge said that the evidence established that the psychological impact for the victim was grave.
In relation to the subjective circumstances, the primary judge found the facts as described earlier. Her Honour did not accept that the offender had proved that he was remorseful and did not accept that the circumstances surrounding his arrest amounted to extra-curial punishment.
The primary judge was satisfied that no penalty other than a penalty of imprisonment would be appropriate. She recorded that the appellant accepted that the threshold for imprisonment in s 10(2) of the Crimes (Sentencing) Act 2005 (ACT) had been met: at [21].
The primary judge rejected the appellant’s submission that the sentence could be served by intensive correction in the community. She noted that the appellant’s history of violence and non-compliance with community-based orders indicated that he posed a risk to women in the community. Her Honour said it was apparent from the appellant’s recent psychiatric admissions and current medication that he had unresolved substance abuse and mental health issues that must have been in play on the evening of the offending.
The primary judge had specific regard to the matters referred to in s 34B of the Crimes (Sentencing) Act. She said that the offending in this case was a serious incident of family violence warranting “stern denunciation” in accordance with the principles referred to in the preamble to the Family Violence Act. She said that, as the offender did not hold himself accountable for attacking the victim with a sword as a means of resolving a verbal argument, condemnation and accountability had to be imposed by the court.
Manifest excess
As the imposition of a sentence involves the exercise of discretion, the principle in House v The King (1936) 55 CLR 499 applies to the review of that decision on appeal (at 505): It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
A claim of manifest excess is one where no specific error of fact or law may be identified but an implicit error is discernible because the sentence is so plainly wrong as to compel the conclusion that there has been an error in the exercise of the sentencing discretion.
The applicable principles have been summarised in numerous decisions of the Court of Appeal, including Tracey v The Queen [2020] ACTCA 51 at [37]-[38]; Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 at [51]-[52] and R v Omari [2022] ACTCA 4 at [45], [57]. These cases make clear that: (a) appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence; (b) an appellant must demonstrate from the sentence itself that it may be inferred that there was a misapplication of principle, even though how that error occurred is not apparent from the judge’s reasons; and (c) cases said to be comparable must be treated with care as consistency in sentencing does not require numerical equivalence and current patterns of sentencing do not cap the upper and lower ranges of a possible sentence.
In the present case, the starting point was four years out of the maximum penalty of seven years. The offence of assault occasioning actual bodily harm covers a wide range of harm which may be suffered. In this case, the injury suffered by the victim was at the more serious end of the spectrum. It was reasonably open to the primary judge to characterise the offending conduct as an “extremely serious instance” of the offence, not only because of the injury inflicted but also because of the potential for much graver consequences to have flowed from an attack with a sword in the vicinity of the victim’s face or neck.
The offending occurred while the offender was on conditional liberty. He had a significant criminal history. He had a poor history of compliance with community-based orders. There was no persuasive evidence of remorse, contrition or a capacity for rehabilitation. He appeared to continue to blame the victim for his offending.
In those circumstances, it cannot be said that the starting point of four years’ imprisonment was so great as to indicate some error in the exercise of the primary judge’s discretion.
So far as a non-parole period is concerned, that reflected approximately 61 percent of the head sentence. That is within the usual range of between 50 and 75 percent of the head sentence. Having regard to the nature of the offending and the subjective circumstances of the offender, the imposition of such a non-parole period does not disclose any error. Rather, it reflects an appropriate balance between the need for a significant period of full-time detention to reflect the purposes of sentencing, and a significant period during which it is open for the offender to serve his sentence in the community subject to a regime of supervision.
Order
I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:
Herbert
DPP [2025] ACTCA 47
(1936) 55 CLR 499
(1981) 147 CLR 383
The appeal was dismissed. The sentences imposed by the Supreme Court of the ACT, including the aggregate head sentence of three years and three months’ imprisonment and the two-year non-parole period, remained undisturbed ([1], [51]).
The primary judge relied upon the statement in the pre-sentence report that the offender “placed responsibility for his offending onto the victim”: at [18].
The primary judge found that the circumstances of the appellant’s arrest, which involved a scuffle with police during which the appellant was injured (suffering a small bleeding head wound and a possible seizure), were as a result of his own conduct, rather than being appropriately characterised as extra-curial punishment.
He was assessed as suitable for an intensive correction order but not suitable for a community service condition due to issues with his physical health.
She noted that the comparable cases identified by the prosecution were of limited assistance because the circumstances of this case were unique.
The primary judge adopted, as a starting point, a term of imprisonment of four years against the maximum penalty of seven years. She applied a discount of almost 20 percent on account of the plea of guilty, which was entered following a successful criminal case conference. This gave a head sentence of imprisonment for three years and three months. A non-parole period of two years was imposed, “to allow for a period of meaningful supervision on parole”. In relation to the breach of the family violence order, her Honour acknowledged the fact that the victim had attended the appellant’s home and the need to avoid double punishment. She imposed what she described as a “nominal sentence” for the breach of the family violence order of one month and made it wholly concurrent with the sentence for aggravated assault occasioning actual bodily harm.
There is nothing in the length of the head sentence imposed or the non-parole period that would indicate any error in the exercise of the sentencing discretion by the primary judge. This ground of appeal is not made out. Plea to aggravated assault occasioning actual bodily harm
Section 24(1) of the Crimes Act provides that the maximum penalty for an assault occasioning actual bodily harm is imprisonment for five years. However, s 24(2) provides that, for “an aggravated offence against this section”, the maximum penalty is imprisonment for seven years. Section 48C of the Crimes Act identifies that an offence against s 24 is an aggravated offence if the offence involves “family violence”. The Dictionary to the Crimes Act provides that “family violence” has the same meaning as in s 8 of the Family Violence Act. That definition is very broad and includes violence directed to a domestic partner or intimate partner of a person. Because of the relationship between the victim and the appellant and the nature of the offending, it was uncontroversial at the hearing before the primary judge that the assault occasioning actual bodily harm involved “family violence”.
At the hearing of the appeal, the appellant submitted that the assault charge had been improperly “upgraded” to aggravated assault occasioning actual bodily harm rather than assault occasioning actual bodily harm. He also submitted that, in circumstances where the transfer charge of possessing an offensive weapon with intent was to be discontinued, it was not open, when sentencing the appellant, to make reference to or rely upon the presence or use of the sword.
Neither of these arguments can be accepted.
The first contention is, in substance, an application by the appellant to withdraw his guilty plea to the offence of aggravated assault occasioning actual bodily harm. Where an appellant seeks to go behind a guilty plea for the first time on appeal (following conviction and sentence), it is necessary for the appellant to demonstrate that a miscarriage of justice has actually occurred: White v R [2022] NSWCCA 241; 110 NSWLR 163 at [58] and [62]-[63].
The submission that the charge against the appellant was “upgraded” to aggravated assault occasioning actual bodily harm is not correct. The appellant was charged in the Magistrates Court with aggravated assault occasioning actual bodily harm. That is the charge which appeared on the information that was before the Magistrates Court. The charge on the information made specific reference to the offence involving “family violence”. As pointed out earlier, it is the fact that the offence involved “family violence” which gives rise to the increased penalty pursuant to s 24(2). The reference to “family violence” in the charge made it clear that the offence was an “aggravated offence” for the purposes of s 48C and hence enlivened the increased maximum penalty in s 24(2).
The same was the case with the charge on the indictment that was filed in the Supreme Court, which made specific reference to the offence involving “family violence”.
The appellant was arraigned in the Supreme Court on the count of aggravated assault occasioning actual bodily harm on 31 January 2025 and was legally represented on that occasion. The terms of the charge as they appear on the indictment were read out to the appellant and he pleaded guilty to that offence, necessarily accepting that the offence involved “family violence”.
The agreed statement of facts which formed the agreed basis for the plea was signed by the appellant, and it was tendered at the sentencing hearing on 10 April 2025. On that occasion the appellant’s lawyer told the primary judge: “He instructs that he has read the statement of facts and accepts full responsibility and it is on that basis that he signed the statement of facts that I tendered to your Honour today”. The appellant was physically present in court when this was said. The agreed statement of facts makes it clear that the charge was aggravated assault occasioning actual bodily harm and that the maximum penalty was seven years’ imprisonment.
Further, on any view of the underlying facts, the offence involved “family violence” and hence was subject to the increased penalty for an “aggravated offence” referred to in s 24(2). That is because, as pointed out above, the victim was the domestic partner or intimate partner of the appellant and an assault occasioning actual bodily harm necessarily involves “violence”.
Therefore, contrary to the submission made by the appellant, the charge was not “upgraded” and no miscarriage of justice occurred by sentencing him on the basis of a seven-year maximum penalty.
The submission that it was not open to the primary judge to sentence the appellant by reference to the presence or use of the sword is also not correct. The prosecution’s agreement to discontinue the transfer charge of possessing an offensive weapon with intent did not alter the factual basis upon which the appellant was to be sentenced for the count of aggravated assault occasioning actual bodily harm. The agreed facts made it clear that the actual bodily harm was inflicted by the swinging of the sword at the victim’s face: About this time, the [appellant] held up the sword and swung it at the [victim’s] face. The blade of the sword hit the [victim’s] face around her chin area – this resulted in a laceration and bleeding to the [victim’s] chin.
The use of the sword as the means of the infliction of the actual bodily harm was also referred to in the victim impact statement which was read out at the sentencing hearing at which the offender was present.
The primary judge was obliged to sentence on the basis of the facts which were agreed. That another charge with different elements was to be discontinued was irrelevant where the discontinued charge was not a more serious offence than that which remained; cf R v De Simoni (1981) 147 CLR 383 at 389. The primary judge sentencing the appellant on the basis that the actual bodily harm was caused by the sword did not involve any miscarriage of justice.