R v Bonfield [2021] ACTSC 362

[2021] ACTSC 362

Supreme Court of the ACT|2021-12-22|Before: Refshauge AJ

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Supreme Court of the ACT

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2021-12-22

Before

Refshauge AJ

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Judgment and Punishment – Sentence – Offences Against the Person
– Driving Offences – Property Offences – Act Endangering
Health – Choking, Suffocating or Strangling –

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Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment and Punishment – Sentence – Offences Against the Person– Driving Offences – Property Offences – Act EndangeringHealth – Choking, Suffocating or Strangling –Family Violence– Cancellation of Good Behaviour Order – Drug and Alcohol TreatmentOrder

Judgment

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

Case Title: R v Bonfield

Citation: [2021] ACTSC 362

Hearing Date: 17 December 2021

Decision Date: 22 December 2021

Before: Refshauge AJ 1. Ty Bonfield be convicted of endangering the health of his Decision: then partner by choking, suffocating or strangling her and sentenced to 14 months imprisonment, commencing on 20 December 2021 and expiring on 19 February 2023.

Ty Bonfield be convicted of assault occasioning actual bodily harm and sentenced to six months imprisonment, commencing on 20 November 2022 and expiring on 19 May 2023.
Ty Bonfield be convicted of the second offence of assault occasioning actual bodily harm and sentenced to ten months imprisonment, commencing on 20 December 2022 and expiring on 19 October 2023.
Ty Bonfield be convicted of damaging property and sentenced to six months imprisonment, to commence on 20 June 2023 and end on 19 December 2023.

[1] Family violence is, as has often been pointed out, a particular problem because it often stems from the attitude of an offender to relationships and also to women, which may be harder to eradicate and reform than the matters that cause or contribute to other offences. This is particularly so when an offender is accustomed to the use of violence in interpersonal disputes. [2] As Adam J, with whom Ipp JA and Tully J agreed, said in R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at 195; [47], “the offender [who commits a domestic violence offence] usually believes that, in a real sense, what they do is justified, even that they are the true victim”. Johnson J, with whom Hunt AJA and Latham J agreed, said in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 193; [77]–[78], in the course of insightful and helpful reasons for upholding a Crown appeal against the sentence imposed for nine offences of domestic violence: [77]…An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, ‘Restorative Justice, Domestic Violence and Family Violence, Australian Domestic and Family Violence Clearing House’, Issues Paper 9, 2004, pages 6–7. [78] Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime: J People, Trends and Patterns in Domestic Violence Assaults’, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No 89, October 2005, page 2. Domestic assaults accounted for 35%-40% of the assaults recorded by police each year from 1997 to 2004: J People, above, at page 11.

It is in this context that Mr Bonfield must now be sentenced. The offences to which he has pleaded guilty have really been addressed in the evidence and submissions in three series. The first involved an offence of committing an act endangering health, being the choking of the victim; three offences of assaulting occasioning actual bodily harm, two offences of common assault and one offence of damaging property.
The second series was one offence of driving with a prescribed concentration of alcohol in his blood. The third series involved a further offence of driving with a prescribed concentration of alcohol in his blood, an offence of damaging property, an offence of driving contrary to an immediate suspension notice, an offence of using an unregistered motor vehicle and an offence of using an uninsured motor vehicle.
These latter offences are generally dealt with in the Magistrates Court, even though a number are indictable offences and so are within the jurisdiction of that Court if s 375 of the Crimes Act 1900 (ACT) applies.
Mr Bonfield, however, accepts that his offending has been substantially contributed to by his alcohol dependency and seeks assistance to address that issue by the making of a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
Thus, Mr Bonfield did not consent to the summary disposal of the indictable offences (s 375(9) of the Crimes Act), and the Magistrates Court was required to commit the offences to this Court for disposition: s 90A(7) of the Magistrates Court Act 1930 (ACT).
The summary offences were, however, related offences, that is, offences that arose from substantially the same circumstances from which the indictable offences arose: s 68CA of the Supreme Court Act 1933 (ACT). These offences were then transferred under s 90B of the Magistrates Court Act to be dealt with under pt 8 of the Supreme Court Act.
The offence of driving with a prescribed concentration of alcohol, being the second series, was said to be a related offence in that it resulted in the police charging Mr Bonfield with an offence giving him an immediate suspension notice under s 61B of the Road Transport (General) Act 1999 (ACT). It was that notice that he breached, constituting an offence with which he was then charged in the third series of offences.
As the matter, of course, goes to this Court's jurisdiction, it is important that the Court be satisfied that the charge is one that can be heard here. There is some limited learning on what a related offence is: see R v Klobucar (No 4) [2016] ACTSC 348; 316 FLR 1 at 13– 14; [58]–[59]. There, the Court held that weapons, the possession of which constituted the purported transferred charges, were not substantially part of the same circumstances as those of the indictable offence of burglary.
They were therefore unlikely to be related charges which would have otherwise given the Court powers under s 334 of the Crimes Act which would, where they were transferred charges, be available under s 68E(3) of the Supreme Court Act. The weapons were, it appears, not used in the commission of any of the relevant indictable offences, especially the burglary with which Mr Klobucar was charged, even though they were found in his motor vehicle when he was arrested for those charges. It was not sufficient in the circumstances to make them related offences.
In R v Loulanting [2015] ACTSC 172 at [21]–[22], it was held that a breach of bail during proceedings in the Magistrates Court involving the indictable offences, subsequently the subject of Mr Loulanting's committal, was not a related offence. A recommendation for amendment to what appears an unfortunate lacuna (see R v McMahon (No 2) [2017] ACTSC 299 at [24]), does not seem to have yet been rectified.
These decisions are not directly helpful, though they do suggest that there must be a quite direct, not merely contemporaneous, connection with the circumstances of the relevant indictable offence.
In this case, Mr Bonfield, in committing the offences of the third series, did cause damage to the house he had visited when driving away in breach of the notice of immediate suspension of his right to drive. Thus, it does seem that it is sufficiently part of the circumstances of the indictable offence of causing damage, in part by the driving of the car, to mean that the offence of driving with a prescribed concentration of alcohol in his bloodstream is included.
It seems that “circumstances” is an ordinary word with no special meaning and that, accordingly, the dictionary definition is adequate: see Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876; 270 ALR 65 at 76–7; [37]–[40].
The Macquarie Dictionary relevantly defines it as 1. a condition, with respect to time, place, manner, agent, etc., which accompanies, determines, or modifies a fact or event; or […]
an unessential accompaniment of any fact or event; a secondary or accessory matter; a minor detail.
The earlier, series two, offence is, thus, capable of being the subject of a transfer under s 90B of the Magistrates Court Act with the indictable offence of damaging property, which was caused by the driving contrary to the immediate suspension notice given as a result of the first in time offence of driving with a prescribed concentration alcohol in his blood in the second series.

Mr Bonfield had, for 22 years, been in a de facto relationship with a woman, the mother of their four children, aged 19, 17, 15, and 13.
On 28 June 2020, Mr Bonfield returned to the family home at about 7:30am, having crashed his partner's car. He announced that he had done so and then went to bed. His partner and their 17-year-old daughter went to inspect the car and returned inside, his partner saying “Ty, you crashed my car!”'
Mr Bonfield “flew” into a rage, jumped out of bed and grabbed his partner by the throat. He let go and stormed out of the room, hitting the walls of the house as he did so.
He then went into the garage in an absolute rage, smashing glass and threatening to throw a gas bottle at the car and his 15-year-old daughter tried to stop him. His partner approached him and he grabbed her by the upper arms, pushing her against the car and again grabbing her by the throat with his right hand while his daughter yelled out at him to get off her.
Their 19-year-old son entered the garage and also yelled at Mr Bonfield to get off his partner, but Mr Bonfield raised his closed fist and hit his son in the face, causing his head to snap backwards.
Nevertheless, his son tried to restrain him and his son’s girlfriend called the police, who soon arrived. Mr Bonfield's partner encouraged her children and her son's girlfriend not to give statements to the police, a regrettably common feature of family violence offending, but Mr Bonfield's son, very commendably, did make a statement.
Mr Bonfield's partner sustained bruising to her arms and redness around her throat and his son sustained a large bruise next to his left eye.
These were not the first acts of violence that Mr Bonfield is reported to have committed against his family.
These events led to the charges against Mr Bonfield of committing an act endangering health by choking, suffocating, or strangling his partner on both occasions, assaulting her occasioning actual bodily harm on two occasions and assaulting his son, also occasioning actual bodily harm.
Mr Bonfield then returned home, behaving as if nothing had happened and stating that he could not remember anything; also, in my experience, not uncommon in family violence offending.
On 14 October 2020, Mr Bonfield decided to look at his partner's phone. Having done so, he woke her at about 2:00am, screaming and yelling at her. In his anger, he punched holes in the bedroom door. His partner begged him to be quiet so as not to wake the children, but he screamed that he did not care as “none of them cared about him”. He then kicked open the door to the ensuite and punched it. After that, he left the house. His partner later took photographs of the damage. These are the facts that constitute the first charge of damaging property.
The relationship with his partner was said to have ended in November 2020.
On 1 December 2020, his then former partner had a conversation with Mr Bonfield at about 3:30pm, because she was concerned that he had not slept much in the previous days. This seems a bit odd but that is what the evidence shows.
He started asking her what she described as “strange questions” and when she asked him to explain, he became angry and “launched at her”, grabbing her by the singlet and pulling her backwards into the bedroom, causing her to lose her footing. He then shoved her into a large fan, causing her inner thigh and groin to hit the fan and her left elbow to hit a mirror, thus resulting in significant bruising and swelling.
Their 17-year-old daughter walked into the room and Mr Bonfield approached her, pushing her in the chest, telling her to “get out”. He then went to punch his partner. He punched the bedroom wall instead, causing a hole about 10 to 15 centimetres wide. He then walked to the bathroom, punching the wall as he did so.
These facts were the basis for the charge of assault occasioning actual bodily harm, an assault against his partner and daughter and damaging property.
All the above offences constituted the first series of offences.
At about 9:25pm on 22 October 2021, Mr Bonfield was driving a motor vehicle in Canberra when police intercepted him. It was not clear on the evidence what drew him to police attention. Mr Bonfield produced his licence, a probationary licence (see pt 3.8 of the Road Transport (Driver Licensing) Regulation 2000 (ACT)), which limited him, while driving, to a nil concentration of alcohol in his blood (ss 4B and 4C of the Road Transport (Alcohol and Drugs) Act 1977 (ACT)).
Mr Bonfield underwent a breath screening test, which was positive, and was taken into custody and conveyed to Woden Police Station where he underwent breath analysis, which showed that he had a concentration of 0.076 grams of alcohol per 210 litres of breath, a level 2 prescribed concentration (s 4E of the Road Transport (Alcohol and Drugs) Act).
These were the facts that led to Mr Bonfield being charged with driving with a prescribed concentration of alcohol in his blood.
He was served with an immediate suspension notice, as noted above, which suspended his ACT licence for 90 days.
Mr Bonfield had by then partnered with another woman who lived in Downer. At about 2:00am on 23 October 2021, the two began arguing. Mr Bonfield went to the bedroom of his partner and, as appears to be his wont, punched a hole in the exterior side of the bedroom door.
He entered the bedroom and punched the television on the top of the dresser, causing it to fall to the floor. There is no evidence as to whether it was damaged and, if so, what was the value of the damage.
Mr Bonfield then went to the far wall and ripped a shelf off the wall with his hands, so that the shelf and contents fell to the floor. Again, no value was given as to the damage caused by pulling the shelf off the wall or any damage to the contents of it.
He then punched a hole in the wall next to the bed and his partner pushed him out of the house. He got into his motor vehicle and, despite the suspension of his driver licence, reversed into the wooden pillar by the front door, causing it to break apart. Again, no value was given to the damage this caused. He then drove away.
Police were contacted, came to the house and took photographs of the damage, though no photographs were included in the evidence before the Court.
About 20 minutes after he drove away, police approached the vehicle and he denied that he had been driving, obviously conscious that he was not permitted to drive. He was subject to a screening test which proved positive to alcohol and he was taken into custody to City Police Station.
Police observed his bloodied knuckles and his fist and small lacerations on his middle knuckles. He was then subject to breath analysis which showed a concentration of 0.149 grams of alcohol to 210 litres of breath, being a level 3 concentration.

The common law required a court sentencing an offender to have regard to the offence and the offender (Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611–12; [76]). Legislation has codified and extended this, so that s 33(1) of the Sentencing Act sets out a range of matters to which a sentencing court must have regard. Much of this encompasses what was required by the common law but also extends it, for example by giving greater prominence to the harm done to and circumstances of the victim of any offence.
Nevertheless, the offender and the offence remain central to the sentencing exercise. In relation to the offence, s 33(1)(a) of the Sentencing Act requires the Court to consider the nature and circumstances of the offence. This requires, clearly, an understanding of the facts, which were found above (at [25]–[52]).
A very important matter is the maximum penalty prescribed for the offence. The High Court has emphasised this on many occasions, most recently in Park v The Queen [2021] HCA 37; 395 ALR 193 at 198; [19]. First, of critical importance is the fact that it is the legislative standard set for the punishment of the offence. Secondly, it invites a comparison between the offence actually committed and the worst possible case, so as to assess the seriousness. Thirdly, it provides, taken and balanced with all the other relevant factors, a yardstick.
In addition to that, the courts have, over time, identified the particular factors in the many ways in which most offences can be committed or the circumstances of their commission to assist courts to identify factors aggravating and mitigating the seriousness of the actual offence committed. This is part of the current sentencing practice which a court is required to consider under s 33(1)(za) of the Sentencing Act.
To endanger the health of a person by choking, suffocating, or strangling a person is an offence under s 28(2)(a) of the Crimes Act and attracts a maximum penalty of 5 years imprisonment.
That is a relatively serious penalty. The offence requires the breath of the victim to be stopped (R v Green (No 3) [2019] ACTSC 96; 344 FLR 324 at 335; [46]; R v IS [2019] ACTSC 389 at [9]–[11]. Clearly, the breath is not permanently stopped for any appreciable length of time, or else this would be a form of homicide and attract a more serious maximum penalty. The breathing of the victim must at least be made difficult and the interference more than nominal.
While this was not expressed precisely in the Statement of Facts, the plea of guilty accepts that this is what happened, as the plea of guilty constitutes an admission to all the elements of the offence: Meissner v The Queen (1995) 184 CLR 132 at 157.
The offence is a relatively new one, having been inserted into the Crimes Act in 2015. It has, however, attracted some attention to the relevant consideration on sentence. See what was said in R v Van Duren [2017] ACTSC 132; R v Dillon [2018] ATCSC 164; R v Cowling [2019] ACTSC 138; R v Laipato [2019] ACTSC 386; R v Ayuel [2020] ACTSC 213; R v Smith [2020] ACTSC 277; and R v Payne [2021] ACTSC 221, to which this Court will have regard.
From these cases, it seems that the following considerations are important. The length of the choking of the victim is important and a longer period makes the offence more serious. The amount of force used is also relevant. The interruption of the breath is relevant as well. The making of threats is an aggravating factor, as is the injury or harm, including pain, suffered by the victim, such as injuries to her neck. Further, the loss of consciousness by the victim is a factor of aggravation.
The use of aids such as rope, cables or the like will aggravate the offence, as will the circumstances in which the offender releases the victim, such as by being beaten or pulled off the victim. If the victim is particularly vulnerable, like a young child, this will make the offence more serious, as will the fact that it is committed in the context of a family violence offence where there is a breach of trust also. That the offence is a deliberate and sustained course of conduct designed to threaten and inflict harm is also a serious matter.
In this case, there are some aggravating features. Primarily and seriously, this is a family violence offence. This, of course, involves a series of issues, as noted above. It is fair to acknowledge that the offender did not say that he had done nothing wrong and that he was the real victim, as often happens. He went a long way down this route, however, by afterwards returning and behaving as if nothing had happened and telling the family he did not remember anything. This, as explained in R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at 195; [47], may mean that the victim would never really feel safe, especially in her home where the events occurred.
Clearly there was also an abuse of power. Indeed, there was a sense of entitlement displayed by Mr Bonfield in crashing the victim's car and not disclosing any guilt or remorse for doing so. Finally, the offence occurred in the presence of, indeed, over the efforts to prevent it, of children, though not the youngest age; see Talukder v Dunbar at 551; [32]. Further, their son felt it necessary to engage in what their mother saw as the risky behaviour of reporting the matter to police and making a statement, despite her being apparently afraid to do so, also a common occurrence in such circumstances.
The choking did not seem to last very long, though the evidence was unclear. Mr Bonfield released the victim only when his son attempted to effect that, redirecting Mr Bonfield's attention. The victim suffered redness around her throat.
The offence was not deliberate or planned or sustained; it was committed in a rage, which must have added to the fear that the victim clearly felt. It was a serious, but by no means the most serious, version of the offence.
Assault occasioning actual bodily harm is an offence prohibited by s 24 of the Crimes Act, which prescribes a maximum penalty of 5 years imprisonment. It is thus, too, a serious offence.
As explained in R v Pearson [2020] ACTSC 375 at [24]–[27], the seriousness can only be determined from the whole circumstances of the offending.
There were three charges for this offence in the first series. The first offence was the assault against Mr Bonfield's then partner, whom he grabbed by the arms, causing bruising, which is the actual bodily harm. It then led to the choking. It was also a family violence offence.
The second offence in the first series was the assault of his son, whom he punched in his head with a closed fist. As noted in R v Pearson, assaulting the head is more serious as it is a very vulnerable part of the body. It was gratuitous and in the circumstances a family violence offence also.
The assaults were perpetuated when Mr Bonfield was angry, with his anger and aggression fuelled by alcohol, a serious matter for it is more fearful and threatening as it is likely to be impossible to reason with someone in that situation: R v McMahon [2014] ACTSC 280 at [89].
The actual harm done is obviously important. In these cases both involved bruising, including around the eye as experienced by the son, being somewhat more serious.
As to the third assault occasioning actual bodily harm, committed on 1 December 2020, Mr Bonfield caused significant bruising and swelling to his then partner when he caused her to lose her footing and shoved her into a fan. The same rage was evident and the offence was again a family violence offence.
Common assault is made a crime by s 26 of the Crimes Act which legislates a maximum penalty of 2 years imprisonment.
Again, the circumstances are important, as is the harm caused. Both offences were committed on 1 December 2020. They were both family violence offences and so more serious. After shoving his partner into the fan, Mr Bonfield went, as she got up, to punch her, swinging his closed fist towards her face but pausing and hitting the wall instead. While no physical damage was done, there was clearly a threat and nearly a punch and the hitting of the wall would also have caused fear.
The other common assault was on Mr Bonfield's daughter. It involved a shove when she tried to stop him shoving her mother into the fan. His demeanour must have been frightening, especially the rage and the violence to her mother, but there was no evidence of actual harm, apart from the contact.
Damaging property is proscribed by s 403 of the Criminal Code 2002 (ACT) which sets a maximum penalty of 10 years imprisonment or a fine of $160,000, or both.
The essence of the offence is the actual damage caused: Halden (1983) 9 A Crim R 30. In the case of the offence on 14 October 2020, it was holes punched in the door of the bedroom. Unfortunately, no details of the cost to repair or replace the door were provided. Apparently photographs of the hole were taken but they were not in evidence, so there is very little from which to assess the seriousness of the charge from this perspective. The damage was not minimal or trivial, but it is difficult to go much further than to say that there was real damage effected to the house.
As to the damage caused in the third series of offences, committed on 23 October 2021, the situation is not dissimilar. A shelf was pushed off the wall, which probably damaged the wall, but it is unclear how seriously. Again, Mr Bonfield punched holes in the walls and again details, photographs, or costings were not provided to the Court. He also broke the wooden pillars to the door in driving away but, again, there were no details. The damage was cumulative, neither minimal nor trivial, and was significant, but the details are not in evidence.
Driving with a prescribed concentration of alcohol is contrary to section 19 of the Road Transport (Alcohol and Drugs) Act and s 26 of that Act specifies a maximum penalty of a fine of $1,600 for a level 2 concentration and 6 months imprisonment or a fine of $1,600 or both for a level 3 concentration.
In addition, there is a licence disqualification of 12 months, which a court may reduce to not less than 3 months for a level 2 concentration, or of 3 years reduced to no less than 6 months for a level 3 concentration.
This offence is an important part of the protection of the community from what is a very dangerous, indeed lethal, weapon, a motor vehicle, especially when operated by a person who is impaired by either drugs or alcohol.
A relevant matter can be prior offending, to show the disregard that an offence may disclose of the offender for the community's safety. Clearly, the level of intoxication is highly relevant, as is the distance travelled.
It can be relevant, too, whether a collision resulted from the driving (Dhol v Mackenzie [2011] ACTSC 193; 6 ACTLR 74 at 83; [55]), or the number of people actually or likely to have been put at risk, especially other road users or pedestrians or others. Any passenger, especially children, can be a significant aggravating factor: Barnes v Barratt [2018] ACTSC 295 at [30]. Mr Bonfield's licence status, however, appears to be an irrelevant consideration: Krewaz v Jordan [2012] ACTSC 84 at [70]–[73].
The manner of driving can be a relevant factor, including competitive driving or showing off: see Barnes v Barrett at [42].
In this case, the levels were significant. Thus, level 2 is between 0.05 grams to 0.08 grams, and Mr Bonfield's concentration in the first case was 0.076 grams, that is, close to the maximum. Level 3 is 0.08 grams to 0.15 grams and in the second case, his concentration was 0.149 grams, also very close to the maximum.
In the first case, there was no evidence of erratic driving and in neither case were there any passengers. There was no evidence of any other persons put at risk. In the second case, Mr Bonfield did manage to damage the house when reversing the vehicle initially. In neither case was the length of driving clear on the evidence, though in the second case, he left the vehicle sometime before 3:00am and returned about 20 minutes later.
Driving contrary to an immediate suspension notice is prohibited by s 61B(4)(d) of the Road Transport (General) Act, for which a maximum penalty is a fine of $3,200.
The offence is similar to driving whilst disqualified, as to which see Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299. Given the recency and circumstances of the issuing of the notice and the reason for the driving, or lack of it, Mr Bonfield's driving was contumacious.
Using an unregistered motor vehicle is a crime against s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT), which attracts a maximum penalty of a fine of $3,200.
Using an uninsured motor vehicle is prescribed by s 289(1) of the Motor Accident Injuries Act 2019 (ACT), for which a maximum penalty of a fine of $8,000 is prescribed.

Mr Bonfield was born in Sydney about 41 years ago, the only child of his parents. He is an Aboriginal man but has limited cultural connection, experience or knowledge, but wishes to connect with his culture.
His father left his mother at his birth and, for the first seven years of his life, his mother was a single parent, though his grandparents, uncles and aunts appear to have been involved with his upbringing. He has no contact with his father. He saw men come to his house and saw his mother beaten up. His mother then re-partnered when he was about age seven. She was an abuser of alcohol, however, and her new partner used illicit drugs. They had two other children together.
Because of the drug use, Mr Bonfield had a problematic home life. There was family violence, which he experienced, and Mr Bonfield had to do much of the parenting for his half-siblings. He would go home from school before them to ensure his mother was not seen in an alcoholic mess or the needles were taken out of his step-father's arm. He had to steal to put food on the table from time to time.
The family moved to Cowra and then to Canberra in 1994, though he said in one report that it was in 1998. He had good relationships with his maternal grandparents but his siblings became estranged as there was a Personal Protection Order in favour of his half-sister to which he was the respondent. She also gave police a statement alleging that he committed various acts of violence in relation to these proceedings.
Mr Bonfield found school a challenge. He was bullied. To cope, he acted as the “class clown”, but this became interpreted as a “misbehaving student”. His mother and step-father urged and then virtually forced him to leave school in Year 10 without receiving a certificate.
He did not appear to have difficulty in obtaining employment and he held a range of jobs over the years in various trades, including as a security guard with an NV1 clearance, which is an Australian Government system, level NV1 being the second-lowest of four levels, permitting holders to be “provided with temporary access to TOP SECRET classification resources in certain circumstances”. He also had been employed as a manager, a labourer, a mechanic, and a long-haul truck driver.
Recently, he purchased a limousine to establish his own business as an owner/driver. He would likely have continued the business, but the loss of his licence will require him to employ a driver. He is said to have reported that he has secure employment as a mechanic in a private business in Canberra when he returns to the community. Another report was that he would be working as a tow truck driver and contact was made with that organisation which indicated that he would be supported and assisted with any sentencing obligations by the owner of the business. His employer understood that we would have obligations to which he would be subject were a Treatment Order made.
At age 17, Mr Bonfield entered into a relationship that lasted about 22 years. Four children were born of the union, as noted above. It appears to have been at certain times a rather “on again off again” relationship. Issues of infidelity arose when he believed that this then partner was involved with his step-brother. His step-sister supported her brother, leading to the strain and breach of the relationship by Mr Bonfield in about May 2020.
It has also led to Mr Bonfield increasing his use of alcohol. He had started drinking at age 10, or 14 according to another report, initially drinking two beers a week but increasing his daily use by age 18. A breakdown of the relationship led to him drinking very heavily, first drinking 4.2 standard drinks a day to 23 standard drinks a day until he was consuming 92 standard drinks a day.
At that level, he has a severe problem with alcohol. He does wish to get his alcohol consumption under control, but not to become entirely abstinent and only drink moderately and socially. This may be a particular challenge and it may be that he will need, at least initially, to engage in drinking alcohol not at all.
He entered a new relationship while grieving the earlier relationship, but this ended when he was arrested for the third series of offences which involved his then partner.
He has involved himself with charity work, such as Neonatal Intensive Care and raised funds for the charities he supports.
Mr Bonfield has limited drug use. He began smoking tobacco at age 13 and has continued its use. While in custody, he has been using nicotine replacement therapy but is likely to return to smoking cigarettes when he leaves custody.
His step-father's use of drugs led to him trying cannabis when he was eight years old, then being given drugs by his stepfather, though he refused them at first. By Year 9 at school, he was a frequent user of cannabis, but ceased the next year as he was made to pay for the drug himself and he rarely smokes it now.
He has tried methamphetamine and MDMA/Ecstasy a handful of times, but he said that “it's not my thing.”
He did use cocaine for a while prior to 2020, particularly after the breakdown of his first relationship, consuming up to 3.5 grams a day. He has not used since April 2021.
He has had no treatment for alcohol and other drug use though while in custody, he has undertaken some courses described as “self-paced workbooks”, including, “Introduction to Recovery” and “Goal Setting”.
He did try just stopping drinking alcohol, but it led to him experiencing seizures. One was quite a major seizure which led to him biting a piece out of his tongue and losing some teeth.
He has also been involved in a motorcycle accident, resulting in limited mobility in his left elbow from multiple surgeries.
Although Mr Bonfield says he has not been diagnosed with any serious mental illness, he considers that he may be suffering from Attention Deficit Hyperactivity Disorder, commonly known as ADHD, but it has not been diagnosed. He considers that it may need to be explored.
He has experienced depression and has been prescribed antidepressant medication for about three years with good effect and continues to take such medication while in custody.
Mr Bonfield has a criminal record. While it dates back to 1999, with 30 offences on his record, all but 11 are traffic related, the most serious of which was an offence of driving with a prescribed concentration of alcohol, one of the kind of offences he now has to be sentenced for in the current series of offences.
He also has 12 offences of driving without authority (while licence is suspended, whilst disqualified or without a licence), similar to the offence of driving while suspended with an Immediate Suspension Notice. This reinforces the opinion that such a charge in this case was contumelious.
Of the non-traffic offences, the most serious was an offence of assault occasioning actual bodily harm. As he has also two offences of common assault on his record, this is a worrying sense of the risk of him resorting to violence. Further, he has five offences of damaging property on his record, again showing a tendency that is displayed in the current series of offences he is facing.
He has been remanded in custody on seven occasions since 2003 and has been sentenced to Good Behaviour Orders, some associated with suspended sentences. He has been on bail. His compliance has been satisfactory since 2018, though the current matters do breach a Good Behaviour Order, as noted above (at [20]).
His behaviour in custody is described as fair, with no discipline issues recorded. He has also engaged in programs, some mentioned above (at [115]), and also “Conflict Resolution”, “Working Together”, and “Keeping Myself Well”. This shows his motivation for the rehabilitation that he seeks. He is, however, assessed as at a high risk of general reoffending.
Mr Bonfield wishes to move from Canberra, but not until he has completed his sentence, including any Treatment Order. He has accommodation in a caravan located in his cousin's property. His cousin has consented to him residing there, though there may be some regulatory complications.
Mr Bonfield was cooperative, polite and engaged in the process for preparation of the Suitability Assessment. He has taken some steps to progress his rehabilitation, mainly a self-referral to EveryMan with a view to addressing his family violence issues. EveryMan is a support organisation with a 20-year history of providing assistance for men, including ex-prisoners, who have issues such as homelessness, mental health challenges and those who are perpetrators of family violence.

A sentence must be just and adequate. An element of fairness is consistency and that is an important sentencing value. Adequacy also must be assessed by whether the sentence to be imposed is consistent with other sentences for similar offences.
In order to assess this issue, s 33(1)(za) of the Sentencing Act requires a court sentencing an offender to consider current sentencing practice. There are various ways in which this can be done.
In the ACT, we are fortunate to have a Sentencing Database which provides statistical information about sentences imposed for various offences. This can be quite helpful, but the factors captured by the Database are limited; some are very important, including the plea, whether the offender was at conditional liberty, the offender's age and whether the offence was one where there was a prior record. There were other characteristics which are helpful for policy but not for sentencing, such as gender and indigenous status.
What the Database does not show, however, are the factual details of the offence and the characteristics, such as aggravating or mitigating factors or the precise circumstances of the offence. It also does not show the principles on which the sentencing court based its approach to the sentence.
Thus, while the statistics provide relevant information, better information is obtained by considering comparable cases. No case is a precedent and, of course, any individual sentence can be an outlier. Ultimately, while some sentencing remarks are able to be accessed by links in the Database, a regrettably large number of such cases are not so linked.
In relation to the offence of committing an act endangering health by choking a victim, that is a relatively recent legislative offence. The statistics are limited in any case. I have, as noted above, however, considered a number of decisions and these are helpful. A number of cases involved sentences of two years or more, but they had more serious elements such as a rolled-up count (R v Cowling), or a child victim (R v Dillon).
In R v Laipato, Mr Laipato was found guilty by a jury of offences of burglary, unlawful confinement and endangering health by choking. The offence did not involve choking that was transient but involved a deliberate and sustained course of conduct so that the victim's ability to breathe was completely impaired at times, thus the victim thought that she would die. The offence was accompanied by a threat.
Mr Laipato had a childhood marred by instability and education ending at Year 10, and a history of alcohol and drug use since age 12. He was 31 years of age and had an extensive criminal history. He was sentenced to a term of one year and eight months imprisonment. It seems that was somewhat more serious an offence than committed by Mr Bonfield.
In R v Ayuel, Ms Ayuel pleaded guilty to using an electric cable to strangle the victim who thought that he had lost consciousness, though the Court did not accept that. It was part of a deliberate course of conduct. Ms Ayuel was 21 years old at the time of the offence and had a difficult childhood. She completed Year 9 at school but had never been employed.
She used cannabis, but not other drugs or alcohol. She had some limited criminal history. She was sentenced to 11 months and 15 days imprisonment. This is a more serious example of the acts constituting the offence, though not in a family violence context, and Ms Ayuel had more mitigating subjective circumstances than Mr Bonfield.
In R v Smith, Mr Smith pleaded guilty to choking his then partner, a family violence offence. He grabbed her face and squeezed, then squeezed her throat and denied that he was hurting the victim. It lasted a short period of time. He also struck the victim on the side of her face, leaving her with facial injuries. The victim's children were in the house but not present.
Mr Smith was at conditional liberty at the time and suffered drug abuse. It appears that he had a criminal record, but it is not mentioned in the sentencing remarks. Mr Smith was 36 years old at the time. He was sentenced to 19 months imprisonment. The case is not dissimilar to the present case for Mr Bonfield.
In R v Payne, Mr Payne pleaded guilty to choking the victim who had gone to his unit to collect her handbag that she had left there the previous night. Mr Payne detained her when she tried to leave his unit and, at one point, grabbed her by the throat for a short period, then pulled her by the throat. She did not lose consciousness. He later grabbed her by the throat again, making the three occasions a rolled-up plea.
Mr Payne was 53 years old, with a positive upbringing and no use of illicit drugs other than cannabis, though there was a suggestion of some use of cocaine and amphetamine. He had a substantial criminal history, but largely of minor offences. He was sentenced to 12 months and 15 days imprisonment from the offence. It seems a similar offence as that committed by Mr Bonfield, but not aggravated by family violence.
So far as assault occasioning actual bodily harm offences are concerned, sentencing practice was considered in R v Lyons (No 1) [2020] ACTSC 358 at [40]–[44]. Most sentences were of between seven and 18 months with a midpoint of 15 months. In that decision, three cases were considered when the offender had struck the victim in the head in each case. The sentences for these offences ranged from eight months imprisonment to 18 months imprisonment. Regard is also had to R v Winters [2019] ACTSC 245, but that was a much more serious offence.
As to the offence of damaging property, it is difficult to ascertain sentencing practice as the offence can be committed in so many various ways.
The offence of common assault is also considered in R v Lyons at [45]. Reliance is placed on what was there said about the offence. Consideration is also given to the Sentencing Act in relation to the driving and traffic offences mentioned.

As noted above (at [20]–[22]), Mr Bonfield was at conditional liberty at the time of committing the offences. This is an aggravating factor as it shows a betrayal of the privilege that the offender has in being in the community on condition he or she does not offend: see R v Seymour [2021] ACTSC 152 at [81]. This means that the sentence must be more serious as a result, though care must be taken to avoid double punishment: R v Carmody [2016] ACTSC 382 at [152].
In this case, the conditional liberty to which Mr Bonfield was subject, when committing the first series of offences, was a Good Behaviour Order imposed by the Magistrates Court, but not when a sentence of imprisonment was suspended. As explained in R v Mathews [2020] ACTSC 364 at [39], this sentence can and should deal with this breach. To do so, it is necessary to rely on the details of the offence as set out below.
The offence was a common assault. Mr Bonfield and a group of people were walking along the covered walkway on Northbourne Avenue when they encountered another group. A member of Mr Bonfield's group said to the victim, “Don't look at me”,” and Mr Bonfield then grabbed the victim by the throat, saying, “Don't look at my brother!”.
As a result of the assault, the victim was pushed backwards and another member of Mr Bonfield's group then struck the victim in the face. The victim lost balance, fell backward and felt pain and his nose bled freely. The incident was largely captured on CCTV.
This was an unprovoked attack but no physical harm, other than pain, appears to have been suffered by Mr Bonfield's assault. He was then subject to a Good Behaviour Order which the first series of offences breached.
As to the second and third series of offences, Mr Bonfield had been granted bail for these offences on 1 February 2021, and the bail continued except for one day on 19 February 2021, referred to above (at [54]), until after the commission of the second and third series of offences. He was thus on bail at the time of committing these offences. Committing offences while on bail is also a breach of the same trust; bail is a form of conditional liberty.
Apart, however, from requesting a more severe sentence, there is nothing else that the Court can do unless, unlike the present circumstances, it is appropriate to resolve the bail and remand the bailee in custody. That cannot help when the bail has concluded.

When the Court addresses the sentence to be imposed, it must take into account all relevant factors and balance them in an instinctive synthesis. This is directed to reach a just and adequate sentence and, to ensure that, it is necessary to have a conception of the purposes for which the sentence is to be improved.
In this jurisdiction, courts sentencing offenders are fortunate that these purposes are legislated and such courts must have regard to them as set out in s 7 of the Sentencing Act.
Here, as the principal offences are family violence offences, punishment is an important purpose. This is necessary also to make clear how inappropriate this scourge is in a civilised community. Thus, general deterrence is also an important purpose to encourage others not to engage in such conduct. Denunciation of such offending is an important purpose in this context.
Mr Bonfield, who is now committing such offences, though the behaviour clearly predates these offences, needs also to be deterred from such conduct, although his reform and rehabilitation will provide the same result, but more durably, if it can be achieved.
These purposes will also achieve the protection of the community, which is important and a guide to how the purpose of the sentence must be viewed. In addition, it is essential to recognise the harm done to the victims so expressively described and so effectively portrayed in the Victim Impact Statements.
Finally, Mr Bonfield must be held accountable for his actions, which cannot be tolerated, and he must be shown by the sentence that they are unacceptable.
It is clear that he has come to a realisation, perhaps through the destruction of the two relationships in short order, that he has to change. He has started, by taking some limited steps, such as reaching out to EveryMan and consenting to a Treatment Order. He recognises the need to help if he is to change and put such conduct behind him.
His pleas of guilty are taken into account. Those in series one were entered in the Magistrates Court, but shortly before the hearing which became a committal on a plea of guilty. This still entitles him to a discount, especially as it saved the victims being re-traumatised by having to give evidence at trial.
Those offences of the second and third series were subject to early pleas and attract an appropriate discount accordingly.
Mr Bonfield had a difficult early childhood. He was introduced to alcohol and drugs by a man who should have been protecting him, and also at an age that he was too young to give informed consent. This must reduce his moral culpability for what are, nevertheless, quite unacceptable offences.
He is yet to address that fully, however, and he is described as “minimising” his responsibility and even engaging in some victim blaming. While the use of alcohol and drugs may have contributed to the offences, of course he was the consumer and only he can stop consuming.
Nevertheless, he now accepts that drugs and alcohol played out very poorly in his life and he must learn to manage them. His willingness to do so is a step in right direction.
As well as all these matters, the nature and circumstances of the offences as they have been described in these remarks have been taken into account, as have Mr Bonfield's personal circumstances as they have also been described. The offences of the kind Mr Bonfield has committed affect the community and certainly harm the victims, which is also taken into account.
Mr Bonfield was solely responsible for these offences. There is no credible evidence to suggest that he was provoked to any degree or that the victims played any part in the offending.
Accordingly, having regard to all alternatives, no other sentence than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
In this case, there are 13 offences to which a sentence must be imposed. Each offence must be the subject of an appropriate sentence: R v Pearce (1998) 194 CLR 610 at 623– 4; [45].
That there were multiple offences also attracts some additional considerations that complicate the sentencing task. Thus, careful consideration has been given to the length of each sentence to assess that it is just and adequate and that Mr Bonfield is not punished twice, especially where there are common elements in the offences.
It also falls to be considered whether the sentences should be wholly or partly concurrent because the offences are part of a course of conduct. To some extent, that is true here for the altercations involve a serious violent interaction, though mainly perpetrated by Mr Bonfield. Some concurrency is, therefore, appropriate, but it must not be such as to give an impression that multiple offending brings a discount on sentencing or any impunity.
The length of the total sentence has therefore been reviewed, especially so far as the imprisonment is concerned, noting that some of the offences attract a fine or other non-custodial penalty only. Respect for the principle of totality must be ensured and the total sentence must be adequate to reflect the total criminality of the offences, but not more than that, and ensure that the total sentence is not excessive. It should leave open the realistic prospect of reform and hope for Mr Bonfield to achieve his goals when he is released into the community.
This may result in what may be seen as leniency in the extent of accumulation of sentences, but it is important to make the sentence proportional not only to the total culpability of Mr Bonfield, but to the other relevant factors such as his disadvantaged upbringing, his desire for rehabilitation and the level of use of drugs and the early age at which he was introduced to drug and alcohol consumption.
This requires a sentence that is proportionate to the criminality and to the subjective circumstances so as to leave Mr Bonfield with some hope for reform, which he evidently does seek. He has also been sentenced to two days imprisonment which must be taken into account.

Now that he has been sentenced, the Court must consider the question of how the sentence should be served. As noted above, Mr Bonfield has sought that a Treatment Order be made. In order to consider that, the Court must first ensure that he is eligible for a Treatment Order and then determine whether such an order is appropriate.
As to eligibility, it is set out in s 12A(1) and (2)(a) and (c) of the Sentencing Act.
Mr Bonfield has pleaded guilty to the charge of endangering health by choking and he has been sentenced to 14 months imprisonment. That is more than the minimum of 12 months imprisonment which is an eligibility requirement and the total sentence of three years and 10 months is less than the maximum of four years imprisonment eligibility requirement. Further, Mr Bonfield is not serving another sentencing order within the meaning of s 12A of the Sentencing Act.
Although there are some challenges, the Court is satisfied that Mr Bonfield will be resident in the ACT for the whole period of the sentence. He is in a precarious living situation at the moment and he intends to leave the ACT, but the Court is satisfied that he will not do so until he has completed his sentence.
Mr Bonfield is assessed as having a severe substance abuse disorder and he is dependent on alcohol and that he was so at the time of the offending. The Suitability Assessment, supported by the Victim Impact Statement of his ex-partner, and the two offences of drink driving satisfy the Court, on the balance of probabilities, that he is dependent on alcohol and that the dependency substantially contributed to his offending.
The Court was provided with a consent form, signed by Mr Bonfield, which establishes that he has given informed consent to the making of a Treatment Order after an explanation of the Order has been given to him and after he has had an opportunity to ask any questions about the Order and those questions have been answered, which answers he says he understands. Accordingly, the Court is satisfied that he is eligible for a Treatment Order to be made.
The sentence imposed commences on 20 December 2021 and will, if the Treatment Order is made, be suspended from today. For the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111], however, the Court is satisfied that this does not prevent the making of a Treatment Order.
Careful consideration was given to the Suitability Assessments. They are really important documents and, as is the usual situation in the Drug and Alcohol Sentencing List, they have been prepared with great care and professional skill. They are comprehensive and together provide a most helpful view of Mr Bonfield's circumstances and his situation, with insightful comments designed successfully to assist the Court in the important task of assessing Mr Bonfield's eligibility and suitability for a Treatment Order.
The Court has carefully considered the Suitability Assessments and both recommend that he is suitable for a Treatment Order to be made. There is no contrary evidence and both parties supported the making of the Order. The Court has not been made aware of any indication of unsuitability for a Treatment Order as set out in s 46K of the Sentencing Act that would require or make it appropriate that the Court decline to make a Treatment Order.

Mr Bonfield, that is a very long sentence and you will probably be able to read some of it later. You probably heard most of it. You have been around the courts, but not so seriously at this stage. Most of it has been about you and your offending and your circumstances and how you might be dealing with that.
At the end of the day, I have assessed that these offences were serious enough, and they are a wide range of offences serious enough to justify a sentence of three years and 10 months. You have served two days of that and you have got the rest of it yet to be served.
However, I have indicated that in the circumstances, you should have an opportunity to address your alcohol dependence and address that by counselling, case management and by appearing in Court for a period of time to ensure that you are making some progress in that counselling. You will be required to undertake urinalysis to see that your use of drugs and your use of alcohol does not continue. It will allow you into the community and not in a rehabilitation residential program, but it will involve you in a number of programs for both the counselling, should that be required and to address the family violence.
Now, you have put your effort into signing up with EveryMan and that will be good, but you need to manage that and possibly undertake also a program undertaken by or prepared for by the Domestic Violence Crisis Service, because this behaviour is completely unacceptable, and you now know that because two partners that you tried to work with have ended relationships with you because of your family violence activities, which are completely unacceptable and need to be addressed.
So far as the Treatment Order is concerned, you will initially be required to return to Court and show that you are complying with the obligations under that. It gives you an opportunity also to show how things are going and if they are going well, then to be congratulated, and if there are challenges, to see those to be addressed and how they can be arranged.
It is important that you are honest about how you are addressing that and that honesty is both honest to other people but also honest to yourself. If you think carefully about what you have done, then you know that you are the one to blame. It is not your partners, it is not your children, it is you, and you ought to be able to manage that.
Now, that does not mean that there will not be occasions when people say things or do things that you object to, but to be violent and to bash people up is not acceptable. There is no occasion that would justify that, and that is an important matter that you need to understand and start to think yourself about being honest to yourself and not say, “I was justified because of things that they did or said or carried on”. At the end of the day, it is your responsibility.
It will be difficult because, as I have heard, when you just stop drinking you experience seizures. Hopefully that is now in the past.
You say you want to move into social drinking; not at the beginning. In fact, I think at the end of the day, you might be better not to resume drinking alcohol because once you become addicted to it, once you become dependent on it you are always dependent and it is very difficult to come out of that, but that is down the track. If, in the next year or so, you can manage to stay off alcohol, then that will be very good.
If, later on, you want to try it and have controlled drinking, then the Treatment Order will allow you to try that and do so, but I think you need to talk through with your counsellors and your case managers how this will be done.
So, from today, you will have obligations. You will have to meet those, and the people that you will meet will want to try and help you to achieve this and to lead a life which is not drug dependent and which is crime free.
These are major offences and there are not many of them in your past, but you ought to be able to live a crime free life and have a redemption, which will be very hard to make a connection with your family, your current family, but if there is a future family for you, then that can be done.
So briefly, comply with the obligations that you had. If you fail to do that there is a risk that you will be sentenced to a term of imprisonment, and I can sentence you to up to 14 days for not doing the right thing, being aggressive and insulting to the people that will counsel you, failing to attend at counselling or appointments that you made, failing to attend urinalysis, all of those can lead to some punishments. Not always imprisonment, but sometimes.
If you just do not put the effort into it, then I can cancel it and then you will have to go back into custody for all of or most of the three years and 10 months.
So there is a lot at stake. You have got a privilege in not having to undertake that imprisonment, but as long as you put the effort into making the attempts to manage your dependency, your drug use and your family violence issue.
So you will see me on Friday at 11 o'clock, and then you will see me frequently until you move through phase one and that depends on the way in which you undertake the counselling and how much you manage to develop into the work that you do.
If you are able to get a job that is going to be important, and that is useful because that will help you integrate back into the community, but the Treatment Order is the priority. If the work interferes, then you have got to put the work second so that the Treatment Order is first. Your employer said that he was mindful of that and so that should be allowed, but if there are problems you need to come and talk to me about it and we will work out how that can work, but a priority is the Treatment Order. Counselling, case management, contact with corrective services, urinalysis.
So hopefully, this will be a turning point. This will be an occasion for you to put alcohol dependency, drug use and family violence behind you and move forward in working, creating a family, repairing the damage of connections with family, but you will not do that quickly, that will take a long time, and ultimately being a useful member of the community and avoiding other people from experiencing the harm that your offending has caused.
Good luck. I hope you work at it, and I hope it works.
You may be seated.

R v Bonfield [2021] ACTSC 362

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