R v Barlow [2017] ACTSC 90

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2017] ACTSC 90

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - kidnapping - forcible confinement - assault occasioning actual bodily harm - hinder police - possess prohibited weapon - drive while disqualified - drive an unregistered vehicle - drive an uninsured vehicle - assault during confinement charged separately so not an aggravating factor - offences committed to enforce offender's "rights" through violence and deprivation of liberty - parity of sentences when co-offenders sentenced for different aspects of same incident - whether offences arising out of single incident necessarily justify entirely concurrent sentences - need to ensure total sentence imposed appropriately reflects total criminality of actions - general deterrence important for offences involving considered actions - intensive correction order not available - no requirement for offender to be sentenced or partly sentenced before intensive correction assessment can be ordered.

Crimes (Sentencing) Act 2005 (ACT), ss 11, 29(1)(b), pt 5.4

Crimes Act 1900 (ACT), ss 24, 32(2)(c), 34, 38(b)

Magistrates Court Act 1930 (ACT), s 90B

Prohibited Weapons Act 1996 (ACT), s 5

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)

Road Transport (Third-Party Insurance) Act 2008 (ACT), s 17(1)

Road Transport (Vehicle Registration) Act 1999 (ACT), s 18(1)

Barlow v The Queen [2008] NSWCCA 96; 184 A Crim R 187

Mill v The Queen [1988] HCA 70; 166 CLR 59

R v Eimerl [2015] ACTSC 72

R v Zamagias [2002] NSWCCA 17

The Queen v Hatzis (unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012)

Wronski v Raue [2012] ACTSC 87

Legal Aid ACT (Offender)

SCC 25 of 2016; SCC 37 of 2017; SCC 38 of 2017

1. On 20 October 2016, Nigel Barlow was found guilty by a jury of four offences, as follows:

(a) one count of kidnapping, contrary to s 38(b) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 15 years;

(b) one count of forcible confinement, contrary to s 34 of the Crimes Act and carrying a maximum penalty including imprisonment for 10 years; and

(c) two counts of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act and carrying a maximum penalty including imprisonment for five years.

2. Mr Barlow pleaded not guilty in the Magistrates Court, and his trial finally began in the Supreme Court, on 23 September 2016, after several delays not caused by Mr Barlow; on 20 October 2016, the jury returned its verdicts.

3. In the same trial, the jury acquitted Mr Barlow:

(a) of an aggravated burglary alleged to have been committed, immediately before the other offences, when Mr Barlow entered the victim's house intending to assault him, in company and with a weapon in the possession of at least one of the group; and

(b) of the assault allegedly committed inside.

4. Mr Barlow has pleaded guilty to five offences unrelated to the trial matters, but committed while he was on bail in respect of the trial matters. On 10 October 2016, before a brief of evidence was prepared, he pleaded guilty to the following offences:

(a) one count of possessing a prohibited weapon, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) and carrying a maximum penalty including five years imprisonment;

(b) one count of using an unregistered vehicle, contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT), with a maximum penalty of a fine of $3,000; and

(c) one count of using an uninsured vehicle contrary to s 17(1) of the Road Transport (Third-Party Insurance) Act 2008 (ACT), with a maximum penalty of a fine of $7,500.

5. On 12 December 2016, apparently after a brief of evidence had been prepared, he pleaded guilty to one count of driving while disqualified contrary to s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT), with a maximum penalty of six months imprisonment.

6. Finally, on 19 January 2017, he pleaded guilty to one offence of hindering police with a threat to endanger health, contrary to s 32(2)(c) of the Crimes Act, with a maximum penalty including imprisonment for 10 years.

7. The hindering police and possess prohibited weapons charges have been committed to this court for sentence, and the three summary offences have been transferred to this court under s 90B of the Magistrates Court Act 1930 (ACT) as "related" offences.

8. The charges on which Mr Barlow went to trial arose from an incident that took place on 7 July 2015. The following summary reflects the evidence given at Mr Barlow's trial, in particular but not exclusively by the victim and by Jamie Sanderson, Mr Barlow's co-offender who had previously pleaded guilty to several charges arising out of the incident.

9. During the year before the incident, Mr Barlow came to an arrangement with the victim whereby Mr Barlow was permitted to store some of his belongings in a shed situated in the backyard of the Tuggeranong house where the victim lived with his partner and two young children. In return, Mr Barlow supplied the victim with drugs.

10. Over time, the arrangement became a source of disagreement between Mr Barlow, the victim and the victim's partner, and Mr Barlow was asked to remove his property from the victim's premises, but he did not do so.

11. At some point the victim began giving people other than Mr Barlow access to the shed. He allowed some of those people to remove items from the shed without Mr Barlow's permission, apparently in return for drugs.

12. Around 5 July 2015, Mr Barlow became aware that many of the belongings he had stored in the shed had been removed or damaged. He demanded the victim recover the items that had been removed from the shed.

13. Early on in the morning of 7 July 2015, Mr Barlow drove to the victim's home, with his partner, Janelle Lewis, intending to retrieve some of the items he had stored at the property. Two of Mr Barlow's acquaintances, Jamie Sanderson and Jason Atherton, drove to the victim's home in a separate car, having been asked by Mr Barlow to help him retrieve his property.

14. Upon arriving at the victim's home, Mr Barlow and his companions walked around the side of the property to the backyard, where they saw a man sitting in the driver's seat of a car which belonged to Mr Barlow and was being stored at the property. The group approached the man, who said he had bought the car from the victim. Mr Barlow told the man that he owned the car and that the victim had no right to sell it.

15. Mr Barlow then approached the backdoor of the house and knocking on the window, demanding that the victim come outside, which he did.

16. Mr Barlow and the victim then began to argue about what the victim had been doing with Mr Barlow's belongings. The argument became physical; Mr Barlow claimed that the victim had struck the first blow, and that in the course of the altercation he hit the victim on the head with what might have been an old shovel handle, but I accept the evidence of both the victim and another witness, John Platt, that Mr Barlow began by hitting the victim on his head with something that looked like an axe handle. Mr Sanderson then joined the altercation. He and Mr Barlow, using weapons described by Mr Sanderson as "sticks" that they picked up out of the backyard, began hitting the victim on his arms and head, while abusing him about his dealings with Mr Barlow's property. The altercation continued for one or two minutes. By the time it stopped, the victim was bleeding from his head. This attack on the victim was the first count of assault occasioning actual bodily harm.

17. Mr Barlow and his companions then left the premises in two cars. There was some discussion, involving Mr Sanderson and Ms Lewis, about the possibility of the victim being taken to hospital to have his injuries treated. There was also evidence that Mr Barlow intended that the victim would accompany them to help retrieve Mr Barlow's belongings from a person who was believed to have taken possession of them, and that Mr Barlow told Mr Sanderson to bring the victim with him. The prosecutor noted that Mr Sanderson's evidence was he did not understand the victim was to be taken to hospital.

18. Mr Barlow and Ms Lewis left in one car and Mr Sanderson, Mr Atherton and the victim followed in another car.

19. Within a few minutes, the car driven by Mr Sanderson ran out of petrol. He, Mr Atherton and the victim were then picked up by Mr Barlow.

20. At that point, Mr Barlow decided to drive the victim to Wanniassa, where a friend of Mr Sanderson's lived in a unit. The jury's guilty verdict on the charge of kidnapping indicates they accepted the evidence that Mr Barlow took the victim to this unit against his will, and knowing he did not want to go. At the Wanniassa unit, the victim and Mr Barlow went into the bathroom. Mr Barlow tied the victim to a stool, wound electrical tape around his head, including over his eyes, and left him restrained in the bathroom. This was the offence of forcible confinement.

21. Some time later Mr Barlow returned to the bathroom and kicked the victim to the face. This was the second assault occasioning actual bodily harm.

22. Eventually, after Mr Barlow and Mr Sanderson left the unit, the victim was freed from his restraints by the occupant of the unit. Mr Barlow and Mr Sanderson returned to the unit and drove the victim to a point not far from his home, where they dropped him off. By that stage, his partner had already called police, and they were waiting when the victim arrived home. The confinement was estimated to have lasted two hours.

23. After the victim returned home, he was quickly taken to hospital, where he received treatment for a number of injuries sustained in the incident, including lacerations on his face and the top of his head, bruising on his left wrist and hand, a fractured right collarbone, and symptoms consistent with concussion.

24. On 10 July 2015, Mr Barlow was arrested by police who executed a search warrant at Ms Lewis' home. He was charged in the Magistrates Court the next day with a number of offences arising out of that incident, and remanded in custody. He was subsequently released on bail, before being arrested and remanded in custody again shortly before the trial began.

25. The offences to which Mr Barlow pleaded guilty relate to events on 18 September 2016, while Mr Barlow was serving a 12-month licence disqualification imposed for drug driving in 2015. On that day, a police officer saw Mr Barlow riding a scooter in Chisholm. The police officer approached Mr Barlow and removed him from the scooter. Mr Barlow then ran away, despite repeated directions from the police officer to stop. Mr Barlow kept trying to evade the officer, except at a couple of points in the incident when he approached the officer and was struck with a police baton to keep him at bay. At a later point while Mr Barlow was being chased, he turned to the police officer and, from a distance of about three metres, said "I'm going to kill you". As Mr Barlow approached the police officer, he was sprayed with capsicum spray and again ran away.

26. In due course, back-up police officers arrived and Mr Barlow was arrested. He had a knuckle-duster in his pocket, and the scooter he had been riding was unregistered and uninsured.

27. Mr Barlow was remanded in custody and has remained in custody ever since. There was some uncertainty about Mr Barlow's exact time in custody, but the parties have agreed on a backdating date of 15 August 2016, which reflects a total of 239 days in custody so far in connection with the offences for which I am sentencing.

28. As well as the evidence given at Mr Barlow's trial, the following material is in evidence before me:

(a) a victim impact statement from the victim;

(b) Mr Barlow's criminal history;

(c) a pre-sentence report;

(d) a CADAS report;

(e) the sentencing remarks of Elkaim J in relation to Mr Sanderson, who was sentenced on 19 September 2016;

(f) Mr Sanderson's criminal history;

(g) a letter from the Canberra Hospital about Mr Barlow's skin cancer;

(h) a statement of facts for the new offences to which Mr Barlow has pleaded guilty; and

(i) the statement of facts on which Mr Sanderson was sentenced;

(a) a medical certificate and letter of Professor Kathleen Tymms, a rheumatologist, concerning Mr Barlow's diagnosis of lupus;

(b) a certificate from Campbell Page concerning education and training that Mr Barlow has completed in the Alexander Maconochie Centre (AMC) during his current period in custody; and

(c) a certificate recording Mr Barlow's completion of an anger management program during his current period in custody.

30. Counsel for Mr Barlow also provided some material he had found on the internet about using cannabis to treat lupus symptoms. The prosecutor objected to it being exhibited, but did not object to me seeing it.

31. In considering the objective seriousness of the offences, I have had regard to the following matters.

32. The two assaults were fairly serious examples of the offence, given that the injuries suffered were significant and continued to affect the victim, physically as well as mentally, for some months.

33. The prosecution referred me to two cases, being R v Eimerl [2015] ACTSC 72 and The Queen v Hatzis (unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012), which identified the relevant factors in assessing the seriousness of an unlawful confinement as:

(a) the length of the confinement;

(b) the purpose of the confinement;

(c) the fear instilled in the victim during the confinement; and

(d) any injuries inflicted during the confinement.

34. The unlawful confinement, although serious in the way the victim was restrained (which left no room for doubt whether he was free to leave), lasted only at most around two hours, although it seems the victim was not physically restrained for all that time.

35. The purpose related to Mr Barlow's wish to recover property that the victim had allowed to be removed, but whether it was seen as providing an incentive to the victim to return the property, or a punishment for having let it go, is not clear. I accept that the victim was seriously frightened by his confinement, especially because of the threats (including towards his family) that were made to him and in his hearing during that period.

36. As to the injuries inflicted, however, the prosecutor conceded that since Mr Barlow was being sentenced separately for the assault occasioning the bodily harm that was inflicted during the confinement, I should not also treat that assault as aggravating the confinement.

37. Given the way events appear to have unfolded, including the fact that the removal of the victim from his home was begun using a car that was almost out of petrol, it seems unlikely that the specific offences were premeditated; rather, it seems Mr Barlow was intent on recovering his property, and was not particularly concerned about what that might involve. The pre-sentence report author noted that Mr Barlow accepts he has an anger management problem.

38. Defence counsel submitted, in effect, that I should be sceptical about the victim's claim that he had tried to persuade Mr Barlow to remove his property from the victim's premises before the victim began disposing of the property by other means.

39. However, I cannot see that Mr Barlow's position would be significantly improved by a finding that the victim's actions in selling Mr Barlow's property, or making it available to others, was slightly less justifiable than the victim might have claimed. Either way, Mr Barlow's actions involved taking the law into his own hands and seeking to enforce what he saw as his rights by the use of violence and interference with the victim's liberty. The prosecution cited the New South Wales case, coincidentally, Barlow v The Queen [2008] NSWCCA 96; 184 A Crim R 187 at [2], for the comment that a civilised society cannot condone victims taking the law into their own hands and dealing with alleged offenders, rather than leaving punishment to be meted out by the courts.

40. It is not disputed that Mr Barlow was the initiator and driving force in the commission of the three offences that involved some or all of his companions, and that the whole incident arose out of Mr Barlow's dispute with the victim about Mr Barlow's property.

41. In his victim impact statement, the victim described his injuries and said that he had difficulties with personal care activities, as well as with caring for his young children, for about two months after the incident, and for some further period he had suffered shoulder pain, headaches, and blurred vision. He needed several further visits to doctors and the hospital for x-rays, and infection control for his head wound. Since the incident, he has been hyper-vigilant, over-protective of his family, and reluctant to engage in activities outside his home. He is fearful of repercussions resulting from the incident being reported to police, and has suffered periods of depression and self-loathing.

42. In summary, I regard the two assaults as fairly serious examples of the offence (while noting that Mr Barlow has in general terms accepted responsibility for them), and the other two offences (even though Mr Barlow does not seem to have accepted responsibility for them) as less serious examples of the offences concerned.

43. As to the offences to which Mr Barlow pleaded guilty, I note first they were all aggravated by being committed while Mr Barlow was on bail for the earlier offences. I consider the hindering police offence to be a relatively serious example of that offence, whereas the possession of the knuckleduster is a relatively less serious example of the offence concerned, and I do note that the knuckleduster does not seem to have been produced during Mr Barlow's altercation with the police officer.

44. The three summary offences, relating to Mr Barlow's unlicensed riding of an unregistered and uninsured scooter, are also less serious examples of the offences concerned, if only because a scooter generally poses less of a threat to members of the public than other vehicles, although I do not ignore the disregard of the law shown particularly by Mr Barlow's unlicensed riding.

45. I have also had regard in the sentencing to Mr Barlow's subjective circumstances.

46. Mr Barlow is 38 years old. His criminal history in the ACT consists mainly of driving offences and offences concerning the possession of drugs, ammunition and stolen property. He has previous convictions for property damage and trespass and does not have any prior convictions for offences involving personal violence. Mr Barlow's counsel noted that much of Mr Barlow's criminal history was associated with cannabis use, and referred briefly to the material already mentioned about using cannabis to treat lupus symptoms, but conceded that there were also several references to methamphetamines in Mr Barlow's record.

47. Mr Barlow has not previously served a sentence of full-time imprisonment, although in 2009 he was required to a serve a three-month sentence for possession of stolen property by way of periodic detention.

48. Mr Barlow reported positive relations with his mother, father and stepmother, as well as siblings and other family members. He has a partner and a six-year-old son from a previous relationship; care of the child is shared by Mr Barlow's ex-partner and Mr Barlow's father and stepmother, but Mr Barlow's counsel said that Mr Barlow himself also played a significant role in that care. That claim seems to be supported by the statement that Mr Barlow's son has been taken to visit him in prison each week. Mr Barlow's mother and partner have also been visiting him in custody. Mr Barlow has been living in his mother's home on and off for many years now, and is apparently welcome to return there when he is next released.

49. Mr Barlow finished Year 12, trained as a window-glazer, and was employed for several years before having to give up work due to medical problems. Mr Barlow has been taking some short courses while in custody, and has been assessed by the AMC education and training provider as having literacy and numeracy skills that are above average for AMC detainees, and that equip him to complete higher-level vocational education certificates. In the community, Mr Barlow has relied on a Centrelink Disability Support Pension for over 10 years, and seems to be able to manage his financial commitments.

50. Mr Barlow was diagnosed with systemic lupus erythematosus, which I understand to be an autoimmune disease, in 1997, and has been medicated for this since then. One of the significant effects of his condition is an extreme sensitivity to ultra-violet light, which requires him to stay out of the sun. His health problems mean that he has been assessed as unsuitable for community service.

51. When the sentence hearing began in December 2016, I was told by Mr Barlow's counsel that Mr Barlow had recently been diagnosed with melanoma, although he was at that point unable to provide any further information about the matter. Since then, I have received the letter mentioned earlier to the effect that on 11 January 2017, Mr Barlow saw a doctor at the Canberra Hospital, who confirmed he had been diagnosed with an invasive basal cell carcinoma which needed to be excised. This was to be done in day surgery within three months from early January. I understand the surgery has now taken place, and that Mr Barlow is awaiting results from testing to determine whether all the cancer has been removed. I see no reason to doubt that while Mr Barlow remains in custody, Corrective Services have a duty to facilitate any treatment required for this cancer as soon as it can be offered by a hospital, and that that duty will be fulfilled.

52. Mr Barlow does not use alcohol, but has used cannabis over the last 20 years explaining, as noted, that it helps to relieve the symptoms of his medical condition. However, it seems he has also used Ice in recent years, as well as, apparently, supplying Ice (given that Mr Barlow's dispute with the victim arose over a debt the victim owed to Mr Barlow in relation to Mr Barlow's supply of Ice to the victim). On the other hand, there is no suggestion Mr Barlow was affected by drug use at the time of these offences; the pre-sentence report author concluded that Mr Barlow's actions were driven by anger.

53. Defence counsel has emphasised that Mr Barlow has not before now served any sentence in full-time custody, and also noted his own perception that Mr Barlow seemed to have been motivated to try to comply with requirements made of him since he was remanded in custody in September last year. The pre-sentence report author referred to Mr Barlow's participation in an anger management program in the AMC, but noted that he was not interested in addressing his cannabis use, given what he sees as its therapeutic benefits.

55. Shortly before their joint trial was to begin in September last year, Mr Barlow's co-offender, Mr Sanderson, pleaded guilty to one charge each of assault occasioning actual bodily harm and forcible confinement arising out of his involvement in these matters, and on 19 September he was sentenced by Elkaim J. He received a sentencing discount in relation to his pleas of guilty and his undertaking to give evidence in the trial of Mr Barlow and Ms Lewis, which he subsequently did. For the assault occasioning bodily harm, he was sentenced to nine months imprisonment, and for the forcible confinement, he was sentenced to three years imprisonment concurrent with the assault sentences. I note that in the statement of facts on which Mr Sanderson was sentenced, the forcible confinement offence seems to have covered, as well as the forcible confinement for which Mr Barlow is being sentenced, some or all of the kidnapping aspects of the events for which Mr Barlow is being sentenced. A non-parole period of 18 months was imposed on Mr Sanderson. The two sentences had been reduced by 25% from, respectively, 12 months and 4 years imprisonment, in recognition of Mr Sanderson's guilty pleas and his willingness to give evidence at Mr Barlow's trial.

56. Mr Sanderson had a relatively significant criminal history, including five prior offences for common assault and one of assault occasioning actual bodily harm. For identical offending, this might have justified a higher sentence for Mr Sanderson. It was, however, clear from the agreed facts upon which Mr Sanderson was sentenced, and also from the evidence given at Mr Barlow's trial, that Mr Sanderson had a more peripheral and less culpable role in the current incident than Mr Barlow who, as already noted, was clearly the instigator of the whole incident.

57. In sentencing Mr Sanderson, Elkaim J specified that the two sentences were to run concurrently, having expressed his opinion that "the enterprise in which Mr Sanderson engaged was effectively a single incident which included both offences". That approach may be justified in relation to Mr Sanderson on the basis that at each point he was simply going along with Mr Barlow's wishes, but I am not persuaded that in relation to Mr Barlow it can convincingly be suggested that all four offences, while certainly part of a single course of conduct, constituted a "single incident" justifying entirely concurrent sentences.

58. Although for the purposes of the indictment the kidnapping and confinement charges were identified as occurring at different stages of the incident, the evidence suggested they were very much part of a connected sequence of events. On the other hand, I note that each offence of which Mr Barlow was found guilty involved a new decision by Mr Barlow. The first assault of the victim did not require the victim then to be taken away against his will (although I accept there was some uncertainty in the evidence about what was intended when the victim was initially taken away from his home without his consent). The victim's kidnapping did not necessitate his subsequent confinement using physical restraints, and his confinement did not require, or lead inevitably, or even in any kind of logical progression, to the second assault, which was an entirely gratuitous addition to the confinement which had already been effected by tying the victim to the chair in the bathroom. For these reasons, I consider that the sentence for each of Mr Barlow's offences should extend the total sentence by a short period, which may require a slightly different approach, in relation to Mr Barlow, to the unlawful confinement offence for which both Mr Sanderson and Mr Barlow are sentenced.

59. In structuring a sentence to give effect to that conclusion, I must also bear in mind the need to ensure the total sentence imposed on Mr Barlow appropriately reflects the total criminality of his actions. For this reason too, it seems to me the total sentence ought to be longer than the sentence that would have been required if the only offence being dealt with was the unlawful confinement offence.

60. The question of parity is also complicated by the fact that the particular assault for which Mr Sanderson was sentenced was the assault of which Mr Barlow was found not guilty.

61. Finally in relation to parity, I note when he was sentenced, Mr Sanderson had been in custody in respect of this incident continuously since 9 July 2015, just before Mr Barlow was first arrested in respect of this incident, but that Mr Sanderson had during that period also served a three-month sentence imposed in the Magistrates Court arising from an unrelated matter. That is, Mr Sanderson received the benefit of concurrency not only in respect of the two sentences arising out of this incident, but also in respect of a separate and unrelated sentence.

62. General deterrence is clearly relevant to all of Mr Barlow's offences, but particularly those that involve more considered action such as the unlawful confinement. As to personal deterrence, Mr Barlow has not previously served a term of full-time imprisonment, and one would hope his current predicament will already have persuaded him to think harder before engaging in this kind of conduct again, even if he maintains the belief that, at least in relation to the incident that went to trial, he has been unfairly convicted.

63. Defence counsel conceded that a sentence of imprisonment was inevitable in this case, but said the real question was how that sentence was to be served. Early in the sentencing hearing, defence counsel raised in general terms the availability of an intensive correction order (ICO) in this case, and at the March hearing he pursued the matter more energetically.

64. In the end, there were a number of reasons why I did not order an ICO assessment:

(a) First, having regard to Mr Sanderson's sentence, it seemed unlikely that I would impose a total sentence of less than four years imprisonment.

(b) Secondly, ICO assessments generally are only usefully conducted for offenders who remain in the community, because they require assessment of how the offender is engaging and managing himself while in the community, and his capacity to comply with supervision obligations, whereas Mr Barlow had already been in custody for some months, and would have to be released on bail if he were to be assessed in the community. However, no bail application was made (and I note that if a bail application had been made, it would have run into difficulties because of the commission of the subsequent offences while Mr Barlow was on bail on the first set of charges).

(c) Finally, if Mr Barlow had been released from custody and an ICO were eventually made, the sentence would not be able to be backdated to account for that pre-sentence custody because, in my view, that would amount to making an ICO in combination with a sentence of full-time imprisonment, which seems to be unavailable under s 29(1)(b) of the Crimes (Sentencing) Act 2005 (ACT).

65. The Crown made several submissions against the availability of an ICO.

66. First, the Crown cited the case of R v Zamagias [2002] NSWCCA 17 (Zamagias) at [23] as authority for the proposition that these offences were simply too serious to permit consideration of an ICO. That case does not provide any particular authority in relation to an assessment of the objective gravity of Mr Barlow's offences. What that case does seem to say is, uncontroversially, that once it is determined that no penalty other than imprisonment is appropriate, it is necessary first to determine the term of that imprisonment (by reference among other things to the objective gravity of the offence) and, only then, to determine how that term of imprisonment is to be served.

67. In the particular case, the New South Wales Court of Criminal Appeal determined that the two-year term was of itself inadequate for the offence concerned, and that suspending that sentence made it even more inadequate. It did not determine that any particular category of offences was too serious to allow for suspended sentences or, in this case, for ICOs.

68. For present purposes, Zamagias does not seem to me to add anything to the basic propositions that a sentence should properly reflect the seriousness of the offence and the offender's criminality, and that a term of imprisonment to be served under suspension is more lenient than a term of imprisonment to be served in full-time custody. Certainly it does not say that if an otherwise proper sentence falls within the ACT's four-year maximum for a sentence to be served by an ICO, an ICO may nevertheless be unavailable if the sentence is for an offence within a particular category.

69. I note also that the four-year maximum applicable in the ACT is, I understand, two years longer than the maximum period for suspension applicable in Zamagias, which suggests that ICOs may be available for somewhat more serious offences in the ACT than those for which suspension was, in 2002, available in New South Wales.

70. Defence counsel, on the other hand, submitted that I might be able to bring Mr Barlow's sentence within the four-year limit, by noting that he had already served some seven months in custody but not backdating his sentence, to the effect that he would be liable to spend up to a total of four years and seven months in custody in respect of the current offences but that this would not be reflected in the sentences actually imposed.

71. I maintain the view that I expressed in the case of Wronski v Raue [2012] ACTSC 87 at [11]:

(a) that [s 63(1) of the Crimes (Sentencing) Act] provides a genuine discretionary power to backdate for good reason;

(b) that if there is applicable pre-sentence custody as described in s 63(2), there should be appropriate backdating unless there is good reason not to do so; and

(c) that, at least, explicit reasons should be given for backdating not reflecting pre-sentence custody, and for not backdating in respect of any relevant pre-sentence custody as described in s 63(3) to (5).

72. The last of those propositions would require me to give explicit reasons for not backdating Mr Barlow's sentence to take account of that seven months in custody, and the explicit reason that would have to be given would be that I was trying to keep his sentence down to a maximum of four years imprisonment even though the offences seemed to require a longer sentence.

73. This would amount to a frank acknowledgement of an attempt to subvert the legislative constraint that an ICO is not available to an offender whose offending requires a sentence exceeding four years. As such, I do not regard it as an available option. An inability to backdate to take account of pre-sentence custody may justify the imposition of an otherwise inappropriately short prison term, as in Mill v The Queen [1988] HCA 70; 166 CLR 59, but a refusal to backdate where that is clearly available, in order to retain access to sentencing options intended for less serious offences, is not in my view an appropriate way to exercise the sentencing discretion.

74. The Crown also noted that since Mr Barlow had rejected the possibility of giving up cannabis use, and appeared to be denying any other problematic drug use (despite the evidence that he was an Ice user), there was no particular rehabilitation that Mr Barlow could more effectively pursue by serving his sentence in the community, and certainly no identified rehabilitative purpose that outweighed the significance of the sentencing purposes of punishment, general deterrence and, to some degree, community protection. Nor was there any other basis on which Mr Barlow could claim the leniency inherent in the making of an ICO instead of requiring some of his sentence to be served in full-time custody. That leniency would also have been problematic in relation to parity with Mr Sanderson's sentence.

75. Finally, the prosecutor referred to the approach previously, and possibly still, taken by the Crown that an ICO assessment can only be ordered after sentence has been imposed and stayed. This seems to have been based on an interpretation of s 11 of the Crimes (Sentencing) Act, which begins with the statement that:

(1) This section applies if an adult offender is convicted of an offence and the court imposes a sentence of imprisonment.

76. The provision then goes on to provide for the making of ICOs for sentences of imprisonment of up to two years and, separately, for the making of ICOs for sentences over two years but not more than four years.

77. Clearly, an ICO itself can only be made after a sentence of imprisonment has been pronounced - but there is nothing in s 11 that prevents an ordering of an ICO assessment before sentence is imposed. It would no doubt be an inappropriate waste of everyone's time for a court to order an ICO assessment if there was no prospect of making an ICO when sentence was imposed, but that is a different matter from saying that sentence (or at least one element of the sentence) must be pronounced before the offender can be assessed for a particular sentencing option.

78. Nor is there anything in pt 5.4 of the Crimes (Sentencing) Act, which is where ICO assessments are provided for, which seems to require the offender to be sentenced (or rather, partly sentenced) before an assessment can be ordered.

79. Furthermore, if it is also accepted that ICO assessments would generally be made while the offender is in the community, then the Crown's approach would mean that where an ICO assessment was to be ordered, the prison sentence imposed would need to be immediately stayed so as to enable a grant of bail in order to permit assessment in the community. Staying a sentence once handed down is not unknown in certain circumstances, but it is by no means a usual approach to sentencing and in my view is not an approach that should become a usual or routine approach to sentencing, especially when there does not appear to be any basis for interpreting the legislation concerned in such a way as to justify or require such an unusual approach.

80. Mr Barlow, please stand, if you are okay. I record convictions on one count each of kidnapping and forcible confinement, on two counts of assault occasioning actual bodily harm, and on one count each of hinder police, possess a prohibited weapon, drive while disqualified, drive an unregistered vehicle and drive an uninsured vehicle.

81. Now, what I am going to do is give you the specific terms of imprisonment for each offence. Then I am going to tell you the total that that amounts to, because obviously the sentences are not all completely accumulated, and then I will go through the dates, and I will invite counsel to write down the dates as I give them to you because I do not have a table, unfortunately. So, the sentences, Mr Barlow, are:

(a) for the first assault occasioning actual bodily harm, 9 months imprisonment;

(b) for the kidnapping, 2 years imprisonment;

(c) for the unlawful confinement, 4 years imprisonment;

(d) for the second assault occasioning actual bodily harm, 14 months imprisonment;

(e) for hindering police, 9 months, reduced from 12 months for your plea of guilty;

(f) for possessing a prohibited weapon, 6 months, reduced from 8 months for your plea of guilty;

(g) for driving while disqualified, 6 weeks imprisonment, reduced from 2 months; and

(h) for the offences of driving an unregistered vehicle and driving an uninsured vehicle, I simply record convictions.

82. Those sentences will be served so as to give a total sentence of 52 months, consisting of the four-year sentence for the confinement offence plus an extra month to be added by each of the other sentences of imprisonment that went to trial, that is three months, and an extra month for the hinder police offence.

83. The dates for those I will just give you quickly:

(a) the assault occasioning actual bodily harm starts on 15 August 2016 and finished on 14 May 2017 (so it is nearly done);

(b) for the kidnap, the sentence starts on 15 September 2016 and finishes on 14 September 2018;

(c) for the unlawful confinement, starting on 15 October 2016 and finishing on 14 October 2020;

(d) for the second assault occasioning actual bodily harm, starting on 15 September 2019 and finishing on 14 November 2020;

(e) for the hindering police, starting on 15 March 2020 and finishing on 14 December 2020;

(f) the possess prohibited weapon sentence will run concurrently, and so it will run from 15 June 2020 to 14 December 2020;

(g) the driving while disqualified, the six-week sentence, will also run entirely concurrently with the prohibited weapon offence and so it will run, by my calculations, from 15 June 2020 to 26 July 2020.

84. That sentence, Mr Barlow, as I have noted, will be backdated to 15 August last year, to take account of the pre-sentence custody, so it will run until 14 December 2020.

85. I propose to set a non-parole period of 26 months; this is quite low, and in particular that non-parole period is a lower proportion of the total sentence than was the non-parole period set for Mr Sanderson, but I have taken account in setting it both of your health problems and of the fact that, as I think I have already mentioned, Mr Sanderson in his sentencing had the benefit of full concurrency for a sentence imposed in the Magistrates Court for an entirely unrelated offence.

86. The effect of that backdating and the non-parole period is that you will be eligible for parole, at the earliest, in about 18 months, namely 14 October 2018.

87. If you have any particular questions about those orders you could ask the court officials or perhaps your lawyer.

I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.