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[2026] ACTCA 21
respondent. The appeal was dismissed. The sentences, aggregate term of five years’ imprisonment and non-parole period of three years remained undisturbed: [56]-[58].
Powell challenged prison sentences for two aggravated burglaries, arguing that they were too severe. The Court of Appeal rejected the appeal. It considered the first burglary serious because a firearm was stolen and never recovered. The second involved a violent entry into a home, where the victim and her young child were injured. The Court accepted that Powell’s childhood trauma and early drug exposure reduced his moral culpability, but said that this did not automatically mean a lower sentence. The Court also considered the offences’ separate victims and timing, the partial overlap between sentences and Powell’s criminal history. It concluded that neither the individual sentences nor the total term and non-parole period were shown to be manifestly excessive.
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Powell v DPP [2026] ACTCA 21 was an appeal against sentence, decided by Baker J, Berman AJ and Slattery AJ on 20 July 2026. Powell appeared without legal representation. The appeal concerned two aggravated burglaries, committed in 2014 and 2024, and the overall sentence imposed for them. Powell’s single pleaded ground was that the sentences were manifestly excessive: [43].
The 2014 offending took place at a semi-rural property where the victim and family members were asleep. Powell and a co-offender entered an outside bar area and the garage. They took alcohol, a vehicle, a shotgun, a gun bag and ammunition. The agreed facts did not establish which of the offenders drove away in the utility. It was later found in Kingston, but the shotgun remained unrecovered: [10]-[15]. The sentencing judge treated the theft of the firearm and vehicle as significant features, while also noting that the entry was to outside areas and caused no property damage: [23].
The 2024 offending followed a dispute about the belongings of Powell’s co-offender, Ms Brown. Powell and Brown went to the victim’s home. After Brown repeatedly kicked the front door, they went to the rear of the property. Powell used a small axe to break a hole in the back door, enabling entry. Brown assaulted the victim, who was holding her 18-month-old son. The child also sustained marks and bruises. The victim and child eventually took refuge in a locked bathroom. Powell and Brown left, with Powell carrying a bag containing the victim’s wallet, identification and about $150: [16]-[22].
The sentencing judge imposed 2 years and 8 months’ imprisonment for the 2014 aggravated burglary, after a plea reduction, and 3 years for the 2024 aggravated burglary, also after a plea reduction. The sentences were partly concurrent, producing a total of five years’ imprisonment. The non-parole period was three years. Additional offences were taken into account with the respective aggravated burglaries: [6]. The total term exceeded four years, so Powell was not eligible for the Drug and Alcohol Treatment Order he said he expected: [7], [48].
The governing test was whether the sentence was manifestly excessive, not whether the appellate judges would themselves have selected a different sentence. The Court quoted the principle that appellate intervention is not justified merely because a sentence differs from sentences in other cases. The appellant must show a sentence from which a misapplication of principle may be inferred. That assessment takes account of the maximum penalty, customary sentencing standards, the objective seriousness of the offence and the offender’s personal circumstances: [43].
The Court dealt first with Powell’s oral complaints. Powell said the prosecution had misled the sentencing court by referring to the stolen firearm’s alleged later use in a Sydney robbery. The appeal court found that the sentencing judge had not relied on that alleged later use. The judge’s stated basis was that the firearm remained unrecovered: [45]. Powell also complained that his sexual abuse at school had not been considered. The Court noted that this history had been raised in sentencing submissions and that the sentencing judge had expressly recognised a childhood “marked by traumatic experiences”: [46].
Powell said he had been told he would receive a DATO and had not read the agreed facts because of that understanding. The Court observed that a DATO was unavailable because the total sentence exceeded four years. Powell had not adduced evidence that he was given incorrect advice. The Court added that, even if incorrect advice had been given, that would be irrelevant to deciding whether the sentence imposed was too high: [48]. This conclusion was confined to the sentence appeal the Court was deciding.
Powell also challenged the way his co-offender’s role had been characterised in the co-offender’s sentencing. The Court explained that even if the co-offender had received a sentence on unduly favourable facts, that would not establish that Powell’s own sentence was too severe. Powell did not allege errors in the agreed facts used in his own sentencing: [49]-[50].
On the pleaded ground, the Court considered the two offences individually and together. It described the 2014 offending as serious despite the absence of entry into the home itself. The theft of a firearm that remained unrecovered was an important feature, as were the taking of the victim’s property and the vehicle: [52]. The 2024 offending was “particularly grave” because the victim was assaulted in her home while holding her young child, and both the victim and child were physically harmed. The offending involved persistent attempts to enter, property damage and a verbal and physical altercation: [53].
The Court accepted that Powell’s early exposure to illicit drugs, traumatic childhood and exposure to domestic violence engaged the principles in Bugmy v The Queen [2013] HCA 37. Those matters had reduced his moral culpability: [54]. But the Court emphasised that reduced culpability does not necessarily produce a reduced sentence. It may reduce the weight of general deterrence, denunciation or punishment, while community protection may assume greater weight. The harm caused by the offending remains relevant, particularly in relation to the 2024 victim: [54].
Finally, the Court accepted that the sentences were partly concurrent, with eight months’ overlap. It held that this approach was open to the sentencing judge. The offences involved different victims and were separated by almost a decade, circumstances in which less concurrency could also have been open. The Court also considered the non-parole period open in light of Powell’s criminal history: [55]. Applying those assessments, it found no manifest excess in either individual sentence, the five-year total or the three-year non-parole period: [56].
The judgment does not purport to announce a new sentencing test. It applies the established manifest-excess framework stated at [43], citing Tracey v The Queen [2020] ACTCA 51. The framework requires contextual assessment and appellate restraint. A sentence does not become manifestly excessive simply because another sentence might have been selected, or because sentences in other cases differ.
The judgment’s contribution is its application of that framework to the combined circumstances before it. It confirms, in this case, that the significance of the 2014 firearm theft could be assessed without relying on an allegation that the firearm was later used in another offence: the sentencing judge relied on its non-recovery: [45], [52]. It also illustrates that the sentencing court’s acceptance of reduced moral culpability does not, by itself, resolve the sentence. The assessment still considers harm, community protection and the offender’s history: [54]-[55].
The Court referred to Bugmy for the relationship between reduced moral culpability and sentencing purposes. It stated that a reduction in culpability may affect the weight given to general deterrence, denunciation or punishment, but may be offset by increased weight given to community protection: [54]. This should be read as the Court’s explanation of the sentencing considerations in Powell’s case, not as a rule that community protection invariably outweighs personal mitigation.
The judgment also shows the role of concurrency in assessing an aggregate sentence. Here, the Court considered the distinct victims and the nearly ten-year gap between offences in concluding that eight months’ overlap was within the sentencing judge’s available approach: [55]. It did not establish a fixed method or numerical rule for concurrency in other cases.
The judgment records that the maximum penalty for aggravated burglary was 20 years’ imprisonment: [5]. The Court used that maximum as part of the contextual assessment, rather than treating it as a standalone measure of the appropriate sentence: [43], [56]. Nothing in the reasons states that a particular percentage of the maximum should apply to these facts.
At [43], the Court said that appellate intervention is not justified simply because the appeal court “may have a different view” about the most appropriate sentence. In plain English, an appeal is not a fresh sentencing exercise. The issue is whether the sentence reveals an error of the kind described by the manifest-excess test.
At [52], the Court noted that the 2014 offending involved entry into outside areas but still caused distress and inconvenience, and involved the theft of a firearm that was not recovered. The practical significance is that limited physical intrusion did not make the offence minor in the Court’s assessment. The property taken and the missing firearm remained material.
At [53], the Court characterised the 2024 incident as particularly grave. The victim was assaulted at home while holding her 18-month-old child, and both were physically harmed. The passage explains why the Court treated this offence as materially serious beyond the fact of unlawful entry.
At [54], the Court stated that reduced moral culpability does not necessarily mean a reduced sentence. In plain English, the background factors were relevant and accepted, but did not determine the result by themselves. The Court also considered the consequences for the victims and the community-protection purpose.
At [55], the Court said that the eight-month overlap was “well open” to the sentencing judge. This means the appeal court considered that the chosen partial concurrency was within the permissible sentencing approach on these facts. It also observed that the separate victims and lengthy gap between the offences could have supported less concurrency.
The case is most directly relevant to appeals where the sole or central complaint is that a sentence is manifestly excessive. Its central test applies across sentence appeals, but the result here is fact-specific. Relevant features included two aggravated burglaries, two different victims, a substantial period between offences, one offence involving an unrecovered firearm, and the other involving an assault during a home invasion: [52]-[56].
The reasoning may be pertinent where an appellant relies on hardship, trauma or substance dependence as reducing culpability. The Court accepted Powell’s background circumstances as relevant, but explained that such mitigation does not automatically result in a lower sentence. The balance with community protection and the harm caused remains part of the assessment: [54].
The case also addresses challenges based on an asserted expectation of a particular sentencing order. Powell’s claim about expecting a DATO did not establish manifest excess. The reasons note the statutory eligibility issue and the absence of evidence that he had been incorrectly advised, then state that even incorrect advice would not determine whether the sentence was too high: [48]. That reasoning should be understood in the procedural context of this severity appeal.
The decision is not a tariff judgment. The sentencing judge considered other aggravated-burglary cases, but the Court of Appeal’s reasons do not establish a numerical sentencing range from those cases. The Court’s stated approach was to assess the actual offending and offender circumstances against the applicable manifest-excess framework.
The supplied judgment contains no decisions made after Powell v DPP and therefore does not show how later courts have treated it. It was decided on 20 July 2026, and the text provided does not identify subsequent citing, application, distinction or appeal history. It would not be grounded in the supplied material to claim that later courts have followed or limited it.
The judgment itself drew on earlier authority. It cited Tracey v The Queen for the manifest-excess test at [43]. It applied Bugmy in considering reduced moral culpability and the possible weight of community protection at [54]. It also referred to Mill v the Queen in describing the sentencing judge’s treatment of the delay between the 2014 offending and sentence: [26]. The latter discussion appears in the account of the sentencing judge’s reasons, rather than as a new appellate rule about delay.
The sentencing judge had considered comparative aggravated-burglary authorities, including Saipani, Minnis, Catanzariti, Simonds and Djerke: [37]. The appeal judgment reports that discussion but does not conduct a detailed comparative-case analysis of its own. Its decision therefore should not be described as adopting a particular outcome or sentencing range from those cases.
The reasons resolve the appeal on the facts presented, but do not set out a general formula for how much weight should be given to childhood trauma, substance dependence or community protection in future cases. The Court’s point is narrower: accepted reductions in moral culpability do not automatically dictate the sentence, and the relevant purposes and harm must still be assessed: [54].
The judgment also does not determine how an alleged assurance about a DATO might be addressed in a different kind of proceeding. It holds that such an assurance, even if given, would be irrelevant to whether the sentence in this severity appeal was too high, and notes the lack of evidence of incorrect advice: [48]. It does not decide any separate question about the validity of a plea or another procedural remedy.
Nor does the judgment establish how much concurrency should ordinarily be allowed between offences separated by many years. Its conclusion rests on the two offences, their different victims, and the sentencing judge’s particular approach: [55]. The Court observed that less concurrency was open, while holding that the concurrency actually imposed was also open.
Finally, the material provided does not establish any later judicial treatment of Powell or a subsequent change in the relevant law. The decision’s continuing significance beyond its stated reasoning cannot be assessed from this judgment alone.
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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: Powell v DPP Citation: [2026] ACTCA 21 Hearing Date: 27 March 2026 Decision Date: 20 July 2026 Before: Baker J, Berman and Slattery AJJ Decision: (1) The appeal is dismissed. Catchwords: APPEAL – CRIMINAL LAW – Appeal against sentence – self-represented appellant – whether sentence manifestly excessive – – sentence including non-parole period not manifestly excessive – appeal dismissed Legislation Cited: Criminal Code 2002 (ACT) ss 308, 311, 312, 318, 321 Crimes (Sentencing) Act 2005 (ACT) Pt 4.4, s 12A Crimes Act 1900 (ACT) ss 26, 116 Cases Cited: Mill v the Queen [1988] HCA 70; 166 CLR 59 at 64 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Henry [1991] NSWCCA 111; 46 NSWLR 346 R v Saipani (No 2) [2020] ACTSC 228 Saipani v R [2021] ACTCA 5 R v Minnis [2014] ACTSC 268 R v Catanzariti [2020] ACTSC 326 Simonds v The Queen [2013] ACTCA 13 DPP v Djerke (No 2) [2023] ACTSC 341 Parties: Timothy Michael Powell (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel Self-represented (Appellant) N Deakes (Respondent) Solicitors Self-represented (Appellant) Director of Public Prosecutions (Respondent) File Number: ACTCA 32 of 2025 Decision Under Appeal: Court: ACT Supreme Court Before: Christensen AJ Date of Decision: 7 July 2025 Case Title: DPP v Powell Citation: [2025] ACTSC 282 Court File Numbers: SCC 310 of 2024 SCC 311 of 2024 SCC 395 of 2024 SCC 396 of 2024 SCC 23 of 2025 THE COURT: Introduction
In November 2024, the appellant pleaded guilty in the Magistrates Court to the offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (CC 2014/11304; the 2014 offending). The matter was then committed to the ACT Supreme Court for sentence.
The appellant also sought that the following additional offences be taken into account in the sentence pursuant to Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT): (a) Take motor vehicle without authority by joint commission, contrary to s 318(1) of the Criminal Code and carrying a maximum penalty of 5 years imprisonment, 500 penalty units, or both (CAN 2024/11370); and (b) Theft by joint commission, contrary to s 308 of the Criminal Code and carrying a maximum penalty of 10 years imprisonment, 1000 penalty units, or both (CAN 2024/11371).
In December 2024, the appellant pleaded guilty in the ACT Supreme Court to the offence of joint commission aggravated burglary contrary to s 312 of the Criminal Code (CC 2024/3960; the 2024 offending).
The appellant also sought that the following additional offences be taken into account in the sentence pursuant to Pt 4.4 of the Sentencing Act: (a) Two offences of common assault by joint commission contrary to s 26(1) of the Crimes Act 1900 (ACT) and carrying a maximum penalty of two years imprisonment (CAN 2025/1187; CAN 2025/1188); (b) One offence of damage property contrary to s 116(3) of the Crimes Act 1900 (ACT) and carrying a maximum penalty of 6 months imprisonment, 50 penalty units, or both (CAN 2024/3961); and (c) One offence of minor theft contrary to s 321 of the Criminal Code and carrying a maximum penalty of 6 months imprisonment, 50 penalty units, or both (CAN 2024/6795).
The maximum penalty for aggravated burglary is 20 years’ imprisonment, 2,000 penalty units, or both: s 312 of the Criminal Code.
On 7 July 2025 the appellant was sentenced by Christensen AJ (the primary judge) as follows: 1. On the charge of aggravated burglary (CAN 2014/11304) the offender is convicted and sentenced to 2 years, 8 months’ imprisonment, reduced from 3 years and 4 months imprisonment on account of the plea of guilty, to commence on 30 April 2024 and end on 29 December 2026. 2. On the charge of aggravated burglary (CAN 2024/3960) the offender is convicted and sentenced to 3 years imprisonment, reduced from 3 years and 9 months imprisonment, on account of the plea of guilty, to commence on 30 April 2026 and end on 29 April 2029. 3. The total period of imprisonment is 5 years, to commence on 30 April 2024 and end on 29 April 2029. 4. A non-parole period is imposed to commence on 30 April 2024 and end on 29 April 2027. 5. The offences of common assault (CAN 2025/1187, CAN 2025/1188), damage property (CAN 2024/3961) and minor theft (CAN 2024/6795) are taken into account with the offence of aggravated burglary (CAN 2024/3960). 6. The offences of take motor vehicle without consent (CAN 2024/11370) and theft (CAN 2024/11371) are taken into account with the offence of aggravated burglary (CAN 2014/11304). DPP v Powell [2025] ACTSC 282 (primary judgment) at [85].
The appellant had sought to serve his sentence by way of a Drug and Alcohol Treatment Order (DATO) pursuant to s 12A of the Sentencing Act. As the total period of imprisonment imposed exceeded four years, the appellant was not eligible for that order.
The appellant appeals the severity of each sentence imposed.
For the reasons outlined below, the appellant has not demonstrated error in either of the sentences imposed, the overall period of imprisonment, or the non-parole period. Accordingly, the appeal must be dismissed.
Background
The offending The 2014 offending (CC2014/11304)
The 2014 offending occurred at a semi-rural block where the victim resided with his family. On the evening of Sunday 26 October 2014, the victim, his wife and adult son were all home and asleep, as was the victim’s sister, who lived in a separate residence on the same block.
Between 2am and 6:30am that night, the accused and Mr Barrett, a co-offender, approached the side of the house and entered an outside bar area there that was enclosed under a pergola. Acting jointly, either the appellant, Mr Barrett or both took a bottle dispenser holding four bottles of spirits from the bar. Mr Barrett picked up a Leatherman utility tool and the appellant moved a box of wine from under the bar.
The appellant and Mr Barrett then entered the unlocked garage. A .410 single barrel shotgun wrapped in a blanket was removed from the top shelf of a cupboard. A green gun bag containing a few shells for the shotgun was also removed from inside the cupboard. The shotgun and shells belonged to the victim.
The victim’s car, a 1995 white Nissan Navara dual cab utility (the Utility) was parked next to the house, unlocked and with the keys inside. The agreed facts record that “either, both or one of the offenders drove away in the utility, taking with them the four bottles of spirits, the shotgun, gun bag and shells”. The Leatherman tool was located near where the Utility had been parked.
The Utility was eventually located on Wednesday 3 December 2014 in a driveway in Kingston. The Utility had been captured by speed cameras in New South Wales (NSW) and the ACT on at least four occasions. At the time of sentencing, the location of the shotgun remained unknown.
The appellant’s first appearance in court relating to this first charge of aggravated burglary was in June 2015. Soon afterwards, he was taken into custody in NSW. He next appeared in this jurisdiction following his release from NSW custody in April 2024.
The 2024 offending (CAN 2024/3960)
The victim of the 2024 offending had allowed Ms Brown, the co-offender for this offending, to stay with her.
After a number of days of having Ms Brown stay with her, the victim told Ms Brown that she was no longer welcome. After Ms Brown left, her belongings remained at the victim’s property. Ms Brown subsequently became aware that the victim had started selling some of her belongings and that the victim had placed other items at the front of the house for her to collect.
On 1 April 2024, Ms Brown attended the victim’s residence to collect her belongings. She caused property damage to Ms Brown’s home when she had not been able to find them. As a result, police were contacted.
The following day, the victim and her 18-month-old son were home when the appellant and Ms Brown arrived at the house. The appellant and Ms Brown approached the front door. Ms Brown shouted words to the effect of “I want my shit” and “you’re a dead slut”. The victim yelled back, telling Ms Brown to “fuck off”. The victim also told Ms Brown that her son was at the residence. Ms Brown then repeatedly kicked the front door of the residence.
The victim contacted triple zero and told police that Ms Brown was attempting to kick down her front door. A short time later, the appellant and Ms Brown went through a side gate to the rear of the residence. The appellant picked up a small axe that was near an old refrigerator. Ms Brown kicked the back door and the appellant used the axe to break a hole in the door in order to get in. Ms Brown continued to yell and swear at the victim whilst this was occurring.
Ms Brown and the appellant entered the house. Ms Brown tried to take the victim’s son by pulling him away from the victim, telling the victim that she would hold him while the appellant “bashed her”. Ms Brown swung her arms towards the victim, connecting twice with her face, resulting in the victim’s lip being split. The victim’s son sustained a number of red marks and bruises on his back, chest and legs. The victim’s son was crying during the incident.
The victim eventually moved herself and her son to the bathroom and locked the door. Ms Brown kicked on the door until the bottom right corner broke. CCTV footage shows the appellant and Ms Brown leaving the house and the appellant carrying a black bag which contained the victim’s wallet, identification cards, Medicare card and around $150 in cash.
The decision below 2014 offending
The primary judge took into account the following matters in assessing the objective seriousness of the 2014 offending: (a) The statutory aggravation involved committing the offence with only one other person; (b) There was only entry to the outside areas of the property and no damage was caused; (c) The victims were home but they were not disturbed by the entry, although the offending will have caused alarm and inconvenience; (d) The theft of a firearm, which remained unrecovered, elevates the seriousness beyond a typical aggravated burglary of a residential premises and stern deterrence is warranted; (e) The victim’s car was taken, an item of significant financial value; (f) Ammunition and alcohol were also taken, the property taken totalled about $500; (g) The appellant’s role was equal to his co-offender and they both played a substantive role; and (h) It was not clear whether there was any planning or premeditation but entry to a rural property and theft of the firearm tends towards a degree of planning or premeditation. See primary judgment at [15]-[18].
The primary judge noted that the co-offender for the 2014 offending, Mr Barrett, was charged with the lesser offence of being knowingly concerned in a burglary contrary to s 311 of the Criminal Code and there were no additional offences to be taken into account: primary judgment at [19]-[20].
Mr Barrett was sentenced on the basis that his role was “significantly less” than that of the appellant’s as he “merely kept a lookout”: primary judgment at [19]. However, on the agreed facts tendered in the appellant’s case, her Honour assessed their roles as “equal”: primary judgment at [18]. Mr Barrett’s subjective circumstances were considered by the primary judge to be “not that dissimilar” to that of the appellant: primary judgment at [19]-[20]. Her Honour noted that the co-offender was sentenced to 3 years imprisonment, reduced to 31 months taking into account his early plea of guilty.
The primary judge also noted that the appellant’s arrest for the 2014 offending had been delayed as a result of the appellant serving a period of imprisonment in NSW for unrelated offending: primary judgment at [22]. Her Honour noted that this delay was a result of the offender’s conduct and that he had not demonstrated progress with rehabilitation in the intervening period: primary judgment at [23]. Nonetheless, the primary judge recognised that a sentence imposed after a long delay requires “a considerable measure of understanding and flexibility of approach” (citing Mill v the Queen [1988] HCA 70; 166 CLR 59 at 64) and took into account that the offender was much older at the time of sentence than he was when the crime was committed: primary judgment at [23].
The primary judge afforded 20 per cent reduction of the sentence to be imposed in recognition of the offender’s plea of guilty, which was entered in the Magistrates Court, following a plea of not guilty and provision of the brief of evidence: primary judgment at [24]. 2024 offending
Principles
… Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence or where the sentence is markedly different from sentences that have been imposed in other cases. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons. To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.
Determination
As noted at [39] above, the appellant made a number of specific complaints about the sentence imposed by the primary judge in his oral submissions on the appeal. These alleged errors were not particularised in the appellant’s Notice of Appeal. As the appellant appeared unrepresented on the appeal, we consider it appropriate to consider these complaints, notwithstanding that these complaints were not particularised in the Notice of Appeal.
The appellant’s first complaint was that the prosecution had misled the Court by referring to the use of the stolen firearm in a robbery in Sydney. However, as counsel for the respondent noted, the primary judge did not sentence the offender on the basis that the firearm that was stolen in the 2014 offending was subsequently used in NSW. The primary judge simply sentenced the appellant on the basis that the firearm “remains unrecovered”: primary judgment at [17].
The appellant’s second complaint was that the primary judge did not take into account the sexual abuse that he was subjected to whilst at school. However, as counsel for the respondent submitted, the appellant’s history of sexual abuse was raised in the defence submissions in the proceedings on sentence and her Honour expressly took into account that the offender’s childhood was “marked by traumatic experiences”: primary judgment at [46].
The appellant’s third complaint is that he was misled, and had been told that a DATO would be imposed. He asserted that he did not read the agreed facts for the offending, and did not read his co-offenders’ agreed facts because he understood that he would receive a DATO. He explained that he had never been afforded the opportunity to engage in drug treatment or rehabilitation.
However, as the primary judge observed, because the overall sentence imposed by the primary judge exceeded four years’ imprisonment, the appellant was not eligible for a DATO: primary judgment at [57], citing s 12A(1)(b)(ii) of the Sentencing Act. The appellant did not adduce any evidence to demonstrate that he was given incorrect advice about the likelihood that he would receive a DATO. In any event, even if incorrect advice had been given, that would be irrelevant to the Court’s consideration of whether the sentence imposed was too high.
The appellant’s fourth complaint appeared to be that his co-offender had been sentenced on the basis of facts which erroneously depicted him to be the primary offender. Again, even if that were established, the appellant cannot rely on a contention that his co-offender was sentenced on the basis of unduly favourable facts to establish that his own sentence was too severe. The appellant did not allege that there were any errors in the agreed facts which were tendered in his own sentencing proceedings.
In short, the appellant has not established that there was any error in the primary judge’s decision on the basis of any of the matters raised in the appellant’s oral submissions on the appeal.
I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 20 July 2026
Powell
DPP
The appeal was dismissed. The sentences, aggregate term of five years’ imprisonment and non-parole period of three years remained undisturbed: [56]-[58].
The primary judge took into account the following matters in assessing the objective seriousness of the 2024 offending: (a) The offending was a “form of home invasion, with aspects of vigilantism, or retaliation”; (b) The damage to the rear door and internal bathroom door was “not insignificant” and would have caused inconvenience and financial implications to repair; (c) While the property stolen was not significant in value, its replacement would have also caused inconvenience and financial implications; (d) The significant distress to the victim, noting that the incident would have been frightening causing “lasting impacts”; (e) The offending was serious and involved persistent attempts to enter, damage was caused and there was a physical and verbal altercation; (f) The victim was attacked in her own home and her young son was there. Both the victim and her son were physically harmed in the offending; (g) There were two offenders (which accounted for the increased maximum penalty); (h) The appellant’s role was not as serious as Ms Brown’s (in that he had less premeditation and was “not directly responsible for the verbal and physical aspects of the offending”, however “his presence increased the intimidation and the inherent threat involved in the offending”); (i) The appellant was responsible for ultimately achieving access to the residence and used a “concerning implement” to do so (albeit opportunistically); and (j) The appellant was solely responsible for the theft. See primary judgment at [38]-[41].
This offending occurred whilst the offender was in breach of a NSW parole order.
The primary judge assessed the utilitarian value of the guilty plea to the 2024 offending to be “not dissimilar” to the guilty plea to the 2014 offending and afforded a reduction of 20 percent to the sentence to be imposed for the 2024 offending: primary judgment at [43]. Subjective circumstances
At the time of the sentence, the appellant was aged 42 years. He was aged 32 years at the time of the 2014 offending and 41 at the time of the 2024 offending: primary judgment at [45].
The primary judge noted that the appellant is a Wiradjuri man, who lived in Queanbeyan from the age of two. Her Honour accepted that the appellant had a “challenging childhood marked by traumatic experiences”: primary judgment at [46]. He was exposed to domestic violence and parental substance misuse as a child. The appellant first used cannabis himself at 11 or 12 years, heroin at 13 years and methamphetamine from 19 to 20 years. The appellant subsequently misused other substances and became dependant: primary judgment at [46].
It was common ground in the sentencing proceedings that Bugmy principles (Bugmy v The Queen [2013] HCA 37; 249 CLR 571) and the principles as to early exposure to substances from R v Henry [1991] NSWCCA 111; 46 NSWLR 346 each applied to the appellant. The primary judge found that the appellant’s moral culpability was reduced, noting that the offending on both occasions occurred in the context of substance dependency: primary judgment at [47].
The primary judge also noted that the appellant completed his education up to midway through Year 8 and later undertook a chef’s apprenticeship. He has construction certificates and has a sporadic employment history, holding various trade roles: primary judgment at [48].
The appellant had an extensive criminal history dating back to prior to the 2014 offending. He has been convicted of burglary offences, property offences, drug offences, violence offences and driving offences, mostly in NSW. The appellant’s criminal history also records breaches of conditional liberty and non-compliance with court orders. The primary judge held that the appellant’s criminal history “limits leniency and elevates the need for deterrence and community protection”: primary judgment at [49].
The primary judge noted that, whilst in custody prior to the sentence, the appellant was granted day bail to attend a funeral and complied with the terms of the bail: primary judgment at [51]. However, her Honour also observed that Corrective Services had advised that the appellant had repeatedly refused to provide urine samples while in custody and that there had been a positive result for substances in May 2025, around two months before the sentencing hearing: primary judgment at [51]. Comparative cases
The primary judge recorded that the prosecution had provided the Court with various authorities concerning current sentencing practice for aggravated burglaries involving forms of home invasion, including R v Saipani (No 2) [2020] ACTSC 228 (overturned on parity grounds in Saipani v R [2021] ACTCA 5); R v Minnis [2014] ACTSC 268; R v Catanzariti [2020] ACTSC 326; Simonds v The Queen [2013] ACTCA 13; and DPP v Djerke (No 2) [2023] ACTSC 341. Her Honour was of the view that the range of circumstances involved in those cases limited their assistance: primary judgment at [44]. Nonetheless, her Honour noted (at [44]) that: … in R v Catanzariti, where a teenager was present and no physical assaults occurred, a sentence of two years and four months after a reduction for the plea of guilty was imposed on a youthful offender. In R v Minnis and Simonds v The Queen, there where [sic] again adolescents present, but implements were involved. A total sentence of six years imprisonment was imposed for an aggravated burglary and assault occasioning actual bodily harm offences in R v Minnis. In Simonds v The Queen, a total sentence of three years and four months was imposed, after a reduction for the plea of guilty, being in total a sentence of five years and six months imprisonment. The appellant’s submissions on the appeal
The appellant appeared self-represented on the appeal. He did not file any written submissions.
In his oral submissions, the appellant explained that he did not read the agreed facts when he pleaded guilty to the offences. He said that he had understood that he would receive a DATO as a result of a guilty plea. The appellant submitted that the DPP had “misled” the court by saying the stolen shotgun had been used in an armed robbery in Sydney. He further submitted that his co-offender, Mr Barrett, had said that the appellant “was the culprit” and the “person doing all the … things”, which the appellant submitted was not true. The appellant also told the Court he had been sexually abused at school and that was “when [his] life started spiralling out of control”. He explained that he used drugs to cope with his trauma. He also told the Court that he had never been afforded an opportunity to engage in a drug treatment program or rehabilitation program.
Shortly after the commencement of the hearing of the appeal, and following the appellant’s oral submissions, the Court received correspondence from the appellant’s partner indicating that she had found the appellant legal representation and requesting an adjournment. The Court drew this correspondence to the attention of the parties.
The appellant informed the Court that he wished to have legal representation, if possible. With the consent of the respondent, the appeal was stood down for a short period. During the adjournment, the respondent contacted the law firm named by the appellant’s partner in her email to the Court. When Court resumed, the respondent’s counsel indicated that the law firm had confirmed that the appellant’s partner was booked in for an initial consultation at 5pm that day, and advised that they had not instructed the appellant’s partner to seek an adjournment of the appeal.
The Court proceeded with the hearing of the appeal, but granted the appellant leave to file further written submissions within 7 days of the hearing in the event the appellant obtained legal representation. No further written submissions were filed after the hearing of the appeal.
We now turn to the sole ground of appeal that was pleaded in the appellant’s Notice of Appeal, namely, his contention that the sentence imposed, an overall term of imprisonment for five years, with a non-parole period of three years, was too severe.
As the primary judge found, the offending involved two serious examples of aggravated burglary: primary judgment at [81]. The 2014 offending, whilst only involving an entry into the outside areas of the residential premises, nonetheless involved the taking of personal property, causing distress, unease and inconvenience to the victim. Although the offending was not sophisticated, it did involve a measure of planning. Further, as the primary judge observed, that offending involved the theft of a firearm, which was not recovered.
The 2024 offending was particularly grave. The victim was assaulted in her own home, whilst she was holding her 18-month-old son. As the sentencing judge found, the offending was a form of “home invasion”, with elements of vigilantism, or retaliation: primary judgment at [40]. The offending involved persistent attempts to enter the victim’s home, the causing of damage to the victim’s property, and a verbal and physical altercation, causing injury to the victim and her young son.
The primary judge accepted that the appellant’s early exposure to illicit drugs, his difficult childhood marked by exposure to traumatic experiences and his exposure to domestic violence enlivened the principles in Bugmy and hence, that his moral culpability for the offending was reduced. Such a finding may have the effect that the weight to be given to general deterrence, denunciation, or punishment should be reduced. However, it does not follow that there will necessarily be a reduction in the sentence to be imposed. As the High Court observed in Bugmy at [44], it is not infrequently the case that a reduction in an offender’s moral culpability will be offset by an increase of the weight to be given to community protection. Further, regardless of the reduced finding of moral culpability, it remains necessary to recognise the harm that was occasioned by the offending, particularly to the victim of the 2024 offending.
The sentences that were imposed by the primary judge were partially concurrent, with 8 months’ overlap. This approach was well open to her Honour. Indeed, in circumstances where the two sentences imposed related to different offences, against different victims, and were separated by almost a decade, it would have been open to the primary judge to afford less concurrency. The non-parole period set by her Honour was also well open, given the appellant’s criminal history.
Taking into account each of the above matters, as assessed against a maximum penalty of 20 years’ imprisonment for each of the offences of aggravated burglary, the appellant has not demonstrated that the individual sentences imposed were manifestly excessive. Nor has the appellant demonstrated that the overall term imposed (imprisonment for five years), or the non-parole period (imprisonment for three years) was excessive.
It follows that the appeal must be dismissed. Orders
The orders of the Court are: (1) The appeal is dismissed.