[2017] ACTSC 60

1. The conviction entered on 16 December 2016 for the offence of recklessly inflicting grievous bodily harm on the victim on 11 June 2015 be confirmed.

2. Jakson Mark Carmody be sentenced to two years and five months imprisonment to commence today.

3. The conviction entered on 16 December 2016 for damaging property on 11 June 2015 be confirmed.

4. Jakson Mark Carmody be sentenced to three months imprisonment to commence on 27 May 2019.

5. That sentence of two years and six months imprisonment be suspended from 27 February 2017 for a period of three years.

6. Jakson Mark Carmody be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under Crimes (Sentencing) Act 2005 (ACT) for a period of three years with the following conditions:

(a) a probation condition that he be under the supervision of the Director-General or her delegate for a period of two years or such term period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him;

(b) that he undertake treatment or counselling as agreed with the person supervising him for anger management and the use of illicit drugs;

(c) that he admit himself to the Detoxification Unit at The Canberra Hospital on 27 February 2017 and remain there for the period of the Program and that, if he is not admitted or is discharged before the completion of the Program, he report to the Registrar of the Supreme Court of the ACT within one working day for a review of this Good Behaviour Order;

(d) that he refrain from the consumption of illicit drugs;

(e) a community service condition that he complete 100 hours of community service work within 12 months; and

(f) that he report to ACT Corrective Services, 1st Floor, 249 London Circuit, Canberra City after he has completed the Detoxification Program at The Canberra Hospital and, in any event, no later than the close of business on 7 March 2017, to arrange supervision and performance of the community service work.

7. Jakson Mark Carmody be ordered to pay compensation in the sum of $250 to the Registrar of the Supreme Court of the ACT within three months to be paid out to Lynda Southwell at an address to be supplied to the Registrar of the Supreme Court of the ACT by the ACT Director of Public Prosecutions within one month.

8. It be recommended that ACT Corrective Services take such steps as may be reasonably practical to enable the community service condition to be performed without jeopardising the employment of Jakson Mark Carmody in Sydney.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - recklessly inflicting grievous bodily harm - damaging property - assessment finding accused not suitable for a Intensive Corrections Order - not subject to a Good Behaviour Order at the time the offences were committed - protection of the community - substantial efforts made towards rehabilitation - suspended sentence - Good behaviour Order imposed

Crimes (Sentencing) Act 2005 (ACT)

Beniamini v Craig [2017] ACTSC 30

Davey [1980] FCA 134; (1980) 2 A Crim R 254

Fusimalohi v The Queen [2012] ACTCA 49

Hogan v Hinch [2011] HCA 4; 243 CLR 506

Pantazis v The Queen [2012] VSCA 160

Rees v The Queen [2012] ACTCA 6

R v Beniamini (No 2) [2017] ACTSC 32

R v Carmody (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 27 July 2012)

R v Carmody [2016] ACTSC 382

R v Carmody (No 2) [2017] ACTSC 25

R v McConkey (No 2) [2004] VSCA 26

R v Ngerengere (No 3) [2016] ACTSC 299

R v Olbrich [1999] HCA 54; 199 CLR 270

R v Pogson [2012] NSWCCA 225; 82 NSWLR 60

Ryan v The Queen [2001] HCA 21; 206 CLR 267

Vartzokas v Zanker [1989] SASC 1591; (1989) 51 SASR 277

Veen v The Queen (No 2) [1988] HCA 14; (1980) 164 CLR 465

WC v The Queen [2016] NSWCCA 173

Webb v O'Sullivan [1952] SASR 65

Richard S Frase, Just Sentencing, Principles and Procedures for a Workable System (Oxford University Press, 2013)

Julian Roberts and David P Cole, Making Sense of Sentencing (University of Toronto Press, 1999)

Marc Mauer "The Hidden Problem of Time Served in Prison" (2007) 74 Social Research 701

Justice François Kunc, "Who are the Recidivists" (2016) 90 Australian Law Journal 847

Legal Aid ACT (Defendant)

1. On 16 December 2016, I convicted Jakson Mark Carmody of recklessly inflicting grievous bodily harm on the victim of his offence on 11 June 2015. I also convicted him of damaging property on 11 June 2015.

2. Those convictions were said to breach a Good Behaviour Order made on 27 July 2012 by Penfold J.

3. I considered that the period of 12 months that had been suspended when her Honour made the Good Behaviour Order should be imposed and that, for the other offences, there should be a sentence of imprisonment of two years and six months. With some appropriate concurrency to comply with the principle of totality, the total sentence was to be one of three years and two months. See R v Carmody [2016] ACTSC 382 at [158].

4. I was asked by Mr Carmody's counsel to consider making an Intensive Correction Order and I adjourned the proceedings to 24 February 2017 to permit Mr Carmody to be on bail in the meantime for the purpose of an assessment for suitability for such an order: R v Carmody at [165].

5. Since that time, two significant matters have occurred. In the first place, it came to light that Mr Carmody was not subject to a Good Behaviour Order at the time he committed the offences for which I must sentence him. As a result, I varied the sealed order of the Court so that it accurately recorded the sentence imposed by Penfold J on 27 July 2012 and noted that Mr Carmody could no longer be found to be in breach of the Good Behaviour Order that had in fact been imposed by her Honour: R v Carmody (No 2) [2017] ACTSC 25.

6. I have also received the Intensive Correction Order Assessment Report which assesses Mr Carmody as not suitable for an Intensive Correction Order because of his on-going cannabis use, his current employment, and personal circumstances.

7. As a result, I have had to reconsider how to sentence Mr Carmody.

8. As I explained in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]- [18], the Intensive Correction Order as a sentencing order replaced the sentence by which a term of imprisonment was to be served by periodic detention. It is a punitive sentence while incorporating elements of rehabilitation. It aims to combine supervision and strict conditions with an opportunity for an offender to change his or her behaviour, thus promoting simultaneously the best interests of the community and the best interests of the offender, as well as those who are dependent upon him or her.

9. As I explained also in R v Ngerengere (No 3) at [20]-[21], the similar sentence in New South Wales has been described as having a "principal focus" on "rehabilitation" but being "a substantial punishment", though with a significant degree of leniency. Victoria has also accepted that it is "a significantly punitive disposition".

Given the similarity between the Intensive Correction Order to the equivalent sentence in NSW, the approach to making such orders as set out in Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154, may be appropriate as a guide, namely:

• the Court must first be satisfied that, having considered all other relevant alternatives, no penalty other than a sentence of imprisonment is appropriate: at 165; [70];

• then the Court should determine the period of imprisonment without regard to the manner in which it will be served: at 165-6; [71];

• finally, the Court must consider whether the service of the sentence other than by way of full-time imprisonment, such as by a suspended sentence or an Intensive Correction Order, would result in a sentence that reflects the objective seriousness of the offence and fulfils the statutory purposes of punishment: at 166; [72].

11. As noted above, I concluded that, in the circumstances, a period of imprisonment was inevitable although I did not then decide how it should be served. It was in that context that I made the order for an Intensive Correction Order Assessment.

12. I have now received the Report of that Assessment which, as noted above (at [6]), assesses Mr Carmody as not suitable.

13. That requires me to consider how to proceed with sentencing having regard to these two matters.

14. I described the facts of the offence in R v Carmody at [7]-[30], including the injuries suffered by the victim at [31]-[34]. I assessed the seriousness of the offences in that decision at [51]-[71]. Of course, any aggravating features of an offence must be proved beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270 at 281; [27].

15. So far as the offence of recklessly inflicting grievous bodily harm was concerned, I concluded at [68]:

While a serious offence, with some aggravating features, including the level of harm actually done, there were also some explanations which moderated the seriousness of the offence.

16. Because of the Crown submissions, I consider it necessary to set out in a little more detail the circumstances of the incident.

17. The victim was well-known to Mr Carmody. The victim had caused trouble to him before by harassing him, but particularly his partner and children while Mr Carmody was at work. That harassment had required police to be called in the past and led Mr Carmody to seek assistance to move his residence so as not to be further disturbed by the victim.

18. The incident itself arose out of the victim finding that someone had broken eggs on the window of a car parked in the driveway of Mr Carmody's next door neighbour's house. It was not the victim's car per se but that of his mother, which he had driven on this occasion to the residence of Mr Carmody's neighbour.

19. The victim came onto Mr Carmody's property, shouting about the eggs on the car window and kicking Mr Carmody's letter box, though not apparently enough to cause noticeable damage.

20. I accept that Mr Carmody was fearful for his partner's safety and he was also concerned that the victim, who was accompanied by the next door neighbour and her partner, would respond aggressively if he did not act decisively. He told the victim in blunt terms to leave, but he did not do so.

21. Mr Carmody then got a baseball bat and hit the victim. He did not run at him and, while he conceded that he was in a rage and out of control, he hit the victim once only and then turned the bat on the car windows, instead of further hitting the victim, as might be expected were he to be acting out of revenge or mania.

22. It was a deliberate blow to the victim, delivered with some obvious force, causing serious injuries. Mr Carmody said that he had never acted violently before and other evidence confirms that, though he has two prior convictions for offences of violence but of a less serious kind and of some age.

23. Mr Carmody frankly admitted that he escalated the situation to violence. That frank admission is to some extent to his credit. There must have been some frustration in his actions for he had tried to resolve the situation before, as I have noted above (at [17]), and in R v Carmody at [8]-[12].

24. It is important to note that the victim suffered serious injuries which required two occasions of surgical intervention and has left him with some permanent scarring, though it was difficult to see any scarring on the photographs tendered by the Crown. It may be that the scars were the result of the surgery itself and subsequently made. It was clear in the photographs that the bones of the victim's arm were broken but the photographs did not disclose a serious injury, though the fractures that were medically addressed were clearly serious.

25. Dr Vanita Parekh described other sequelae, namely ongoing pain, reduced mobility, an increased risk of arthritis, and psychological dysfunction, which she said the victim may experience. That evidence was that he "may experience" these consequences but, despite the passage of some 20 months since he was assaulted, I had no further information on his medical condition and whether any of these had eventuated.

26. For example, there was no Victim Impact Statement tendered in which I might ordinarily have discovered those matters.

27. The relevant issue for the seriousness of the offence is the harm actually done and not that potentially done, though that may form part of the circumstances of the whole of the offending to which a court must have regard depending on the likelihood, while being careful not to have excessive regard to potential, unrealised harm, as I explained in Beniamini v Craig [2017] ACTSC 30 at [137]- [138].

28. Finally, Mr Carmody expressly denied breaking the eggs on the car windows and was not challenged on that evidence. I am satisfied that neither he nor his partner did so.

29. So far as the seriousness of the damaging property offence was concerned, I concluded at [71]:

Nevertheless, this is not a particularly serious version of the offence and I did not understand the Crown to contend otherwise.

30. I set out Mr Carmody's subjective circumstances in R v Carmody at [73]-[116]. I rely on what I there said.

31. The Intensive Correction Order Assessment Report was a detailed and helpful document. It was the result of six interviews with Mr Carmody and interviews with his partner, his mother, his sister, and his employer. It also involved the administration of a number of relevant psycho-social and similar tests, and a review of ACT Corrective Services files and records. It was a comprehensive assessment. It added to the evidence about Mr Carmody's subjective circumstances I am obliged to take into account.

32. The principal difficulty noted was that Mr Carmody is currently living in Sydney with his partner and children. He has a stable job there, which he enjoys, and in which it appears he has the confidence of his employer.

33. I noted in R v Carmody at [163] that a significant reason for Mr Carmody's move to Sydney was to escape the negative influences of his anti-social peers in Canberra and to avoid the drug scene.

34. That move seems to have effected a substantial reform in Mr Carmody's behaviour, creating stability which has also been good for his mental health. It is a significant contribution to his rehabilitation and to establish himself as an honourable member of the community.

35. I referred in R v Carmody at [105], to the references I had from his employer and fellow workmates which were uniformly supportive. That assessment is supported by the Intensive Correction Order Assessment Report which stated:

Mr Carmody spoke positively of his current employment and stated he felt his mental health had improved significantly since he had relocated to Sydney and commenced ongoing employment.

...

In particular, it appears that Mr Carmody's ongoing employment in Sydney has positively impacted on his financial situation, allowed him to avoid negative associates and assisted in stabilising his mental health prior to the assessment period commencing.

36. Indeed, the assessment by his employer is confirmed by the fact that he had negotiated a leave arrangement with his current employer should he be sentenced to an Intensive Correction Order, and his employer confirmed to ACT Corrective Services that he would grant Mr Carmody six months leave without pay to allow him to relocate for that period to the ACT.

37. One matter of concern was that Mr Carmody continues to use cannabis. He has been subject to five occasions of urinalysis, which show continuing cannabis use at an alarmingly high level on 3 February 2017, but which has since reduced. This use during the assessment period was one of the specified reasons for finding him unsuitable for an Intensive Correction Order. I find that odd, for if drug use is a contributor to an offender's criminal behaviour, the supervision under the order would address this, but it would not be expected to be achieved instantaneously.

38. He is motivated to address his illicit substance use and plans to enter a detoxification program to assist him in ceasing cannabis use. He has been engaged with Directions and completed an Alcohol Drug Awareness Prevention Training Program which had motivated him to continue that engagement. He has, however, secured admission to The Canberra Hospital Detoxification Facility today in an effort to manage his use of cannabis.

39. The Report also notes that during Mr Carmody's most recent period of community supervision, after serving a custodial sentence, his compliance improved significantly over time and, indeed, the supervision component of the most recent Good Behaviour Order was terminated early due to ongoing compliance.

40. The Intensive Correction Order Assessment Report also noted:

Although Mr Carmody accepted responsibility for the current offences and offered no justification for his actions, his acknowledgement of the impact of his actions for the victim was minimal.

Mr Carmody's attitude towards the current offences was predominantly focussed on the impact the offences and the subsequent ICO Assessment process, has had on his life.

41. There are two comments that need to be made in this context. The unchallenged evidence was that he had told his father that his actions on the day of the offence "wasn't the right way to go about it." He said to him, "If I had a difficulty with someone, physical violence is not the way to do it". He has some insight.

42. Secondly, given the history of the interactions between the victim and Mr Carmody and his family, it is unsurprising that he would find it difficult to express clear empathy for the victim, but, of course, that denies him the mitigation that a more generous recognition of the harm he inflicted on the victim would otherwise have been available to him.

43. It would be unrealistic to accept that Mr Carmody would find it easy to empathise with a victim whom, I was satisfied, he thought posed a safety risk to his partner and children and whose ongoing disruption to his life, despite requests by Mr Carmody for police intervention, resulted in him, at some financial loss, having to move from his then accommodation, without assistance from ACT Housing, and ultimately to relocate to Sydney, although the latter has proved substantially beneficial.

44. Victim empathy is not an essential element of remorse, as explained in Fusimalohi v The Queen [2012] ACTCA 49 at [31]- [33], though it can be an element of it.

45. Mr Carmody has made no reparation to the victim, though I am not aware that any has been sought or quantified.

46. On the other hand, compensation is sought from the owner of the car and I will address that in the sentence I impose.

47. As required by the Crimes (Sentencing) Act 2005 (ACT), I am required to have regard to sentencing practice.

48. The Crown gave me a table of six sentences for the same offence. They were all, for one reason or another, for offences more serious than this offence, principally by virtue of the injuries suffered.

49. I considered sentencing practice carefully in R v Carmody at [121]-[130]. I do not need to repeat or summarise what I there said but take it into account.

50. I do note, also, that the prosecution submissions included a copy of the statistical table from the ACT Sentencing Database setting out the sentences imposed for 22 offences of recklessly inflicting grievous bodily harm. I note that although 13 (60 per cent) of the sentences were of full-time imprisonment, five (23 per cent) sentences were fully suspended, and three (14 per cent) were partially suspended.

51. While, of course, such statistics are helpful to establish, to a certain degree, the sentences imposed and thus the practice of sentencing judges in the jurisdiction, further analysis of the sentencing remarks and the circumstances of the offences and of the offenders would be required for any detailed comparison. Nevertheless, I take those matters into account.

52. The fact that Mr Carmody was not subject to a Good Behaviour Order at the time of the offending, which did feature in some of the cross-examination of him by the Crown prosecutor, removes a significant aggravating factor in this matter. That was, in fact, likely to have been the more serious an aggravating factor because he had previously breached the predecessor Good Behaviour Order.

53. Indeed, that he complied with the order to such an extent that supervision was terminated early, is, contrary to the aggravating nature of a breach, a positive factor.

54. Further, the final comment in the Intensive Correction Order Assessment Report, before the recommendation in it, was:

As per the recommendations in the Pre Sentence Report dated 23 November 2016, Mr Carmody remains suitable for a Good Behaviour Order which may be more suitable due to his current living and employment situation. A Good Behaviour Order may also be transferred to NSW for supervision.

55. The Crown prosecutor contended for a sentence of imprisonment to be served in

full-time custody. This appears to have been based on an assessment of the seriousness of the offence some of which appears to be influenced by circumstances put in cross-examination which Mr Carmody denied and which I have rejected.

56. I also found it difficult to understand how, if at all, the Crown prosecutor's assessment of an appropriate sentence took into account the subjective circumstances which, of course, constitute an important part of the factors comprising the basis for the instinctive synthesis which is a sentence. See Ryan v The Queen [2001] HCA 21; 206 CLR 267 at 299-300; [110].

57. I am satisfied that the offence was serious but that the circumstances surrounding its commission somewhat reduced to a degree Mr Carmody's culpability for it. That should not be confused with victim blaming, though the Crimes (Sentencing) Act does require a sentencing court to have regard to whether the offence was the result of provocation and the reasons why the offence was committed. None provided a justification for his actions but provided an explanation, which means that I find it was not a wanton, malicious, vengeful act as implied by the Crown prosecutor's cross-examination of Mr Carmody. Nevertheless, it was deserving of punishment which the sentence I impose will include.

58. The Crown prosecutor submitted that any sentence less than a full-time custodial sentence would be to allow the rehabilitation purpose of sentencing to overbear the other purposes, particularly general deterrence, denunciation and recognising the harm done to the victim. It must also include, it is to be remembered, just and adequate punishment.

59. In Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32], French CJ pointed out:

Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

60. In Vartzokas v Zanker [1989] SASC 1591; (1989) 51 SASR 277 at 279, King CJ said:

Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of the his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person.

61. It is to be noted that a five member bench of the New South Wales Court of Criminal Appeal approved of that statement in R v Pogson [2012] NSWCCA 225; 82 NSWLR 60 at 85-6; [115].

62. See also the approval of that approach expressed by the Victorian Court of Appeal in Pantazis v The Queen [2012] VSCA 160 at [236]- [237].

63. While R v Pogson was a case of white collar crime, there is nothing to suggest that these comments do not apply more widely. Indeed, as the Crown prosecutor carefully and appropriately pointed out, Mr Carmody does not come from a disadvantaged background. His most recent compliance with the Court's Good Behaviour Order and his relocation to Sydney where he has, it would appear, become an "honourable

law-abiding citizen", seems to suggest that the remarks of King CJ may well apply.

64. Indeed, Mr Carmody, having been sentenced to further custody by Penfold J in 2012, then served the Good Behaviour Order her Honour made when her Honour suspended part of the re-imposed sentences that had been suspended (R v Carmody (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 27 July 2012)) and served it without breach and, indeed, with sufficient compliance that supervision was terminated early.

65. He was, then, apparently law abiding for nearly another 18 months after the end of that Good Behaviour Order, during which he showed that he could take steps other than violence, including calling the police and seeking a residential transfer through ACT Housing, before this offence significantly blotted that law abiding period.

66. Since then, he has moved to Sydney, maintained a good relationship with his partner, her child towards whom he regards himself as having a parental responsibility, and their own child, obtained employment where he is a valued employee, and

re-established a significant connection with his family from whom he had been estranged. These are important elements of a rehabilitated life and their maintenance seem to me to meet the obligation expressed by King CJ to "reclaim" Mr Carmody if it can be done consistently with the protection of the community.

67. The Crown prosecutor further submitted that there was not a causal link between the offending and rehabilitation that Mr Carmody has achieved and the further requirements, such as cessation of cannabis use.

68. That, however, misunderstands the nature of rehabilitation in sentencing theory. The NSW Court of Criminal Appeal in WC v The Queen [2016] NSWCCA 173 addressed this. Campbell J, with whom Hoeben CJ at CL and Natalie Adams J agreed, said at [59]:

It is trite that the object of sentencing in an individual case is to fix the sentence for the offence and the offender. As an object of sentencing generally, rehabilitation is directed principally to the offender rather than the offence. This is consistent with the ordinary meaning of the word rehabilitation which according to the Macquarie Dictionary is "restoration to former health".

69. Finally, the Crown prosecutor submitted that to impose a sentence less than imprisonment to be served by full-time custody would "send entirely the wrong message for someone to back into their home, to bring out a baseball bat and to swing it at someone else just because they're having a disagreement with them".

70. The notion of sentencing "sending a message" is a phrase that has been used many times by sentencing courts, but has no clear denotation. It has been addressed by much criminological research.

71. For example, Richard S Frase, Just Sentencing, Principles and Procedures for a Workable System (Oxford University Press, 2013) at 56, points out that the imposition of a sentence of imprisonment, even if then suspended is, in itself, the sending of an important message of how serious the crime was.

72. That must be so if the consequence of a serious offence results in the imposition of a sentence of significance on the offender, with obligations and restrictions, a significant penalty. It is when the offender can, without consequence, avoid any penalty that the message is that the offence can be committed with impunity. Where there are consequences, obligations and behavioural requirements, the suggested impunity ceases to have the effect for which the Crown prosecutor contended.

73. Indeed, a cogent basis has been made in criminological research for the limited value of so-called "messages" sent by sentencing. See, for example, Julian Roberts and David P Cole "Introduction to Sentencing and Parole" in the book they edited, Making Sense of Sentencing (University of Toronto Press, 1999) at 6-7; Marc Mauer "The Hidden Problem of Time Served in Prison" (2007) 74 Social Research 701 at 704.

74. This research shows that, while obviously in appropriate cases a term of actual full-time custody can be important and inevitable, the most important message is sent by the arrest of an offender and the imposition of a sentence of imprisonment itself however served.

75. It is important to note that, as the courts have made clear, even a suspended sentence of imprisonment is, while obviously more lenient than a sentence of full-time custody, still a sentence of imprisonment. See Davey [1980] FCA 134; (1980) 2 A Crim R 254 at 262. See also R v McConkey (No 2) [2004] VSCA 26 at [32], where Eames JA with whom Buchanan JA and Smith AJA agreed, pointed that a suspended sentence is a very significant punishment, which can serve the function of general deterrence, and which may be imposed because a judge considers that it offers the greatest prospect of reformation and, in turn, the protection of society. It is also worth noting what Muirhead J said in Davey at 261.

76. I refer, too, to the short article by Justice François Kunc, "Who are the Recidivists" (2016) 90 Australian Law Journal 847 at 849 where his Honour quotes a Report of the NSW Bureau of Crime Statistics and Research which states:

Justice may demand the imposition of substantial prison terms on those who commit or repeat serious violent offending but the main focus of prevention efforts should be on addressing the underlying causes of violence in our community. Restricting the availability of alcohol, for example, would seem to be a far more effective way of reducing rates of violent crime than the imposition of long prison sentences on those who commit violent offences.

77. See, further R v Beniamini (No 2) [2017] ACTSC 32 at [68]- [69] for more details of this Report.

78. The Crown prosecutor submitted that Mr Carmody's "appalling record, his poor attitude in the ICO assessment" denied him leniency.

79. There is no doubt that Mr Carmody has an appalling record. That said, his most recent offences, apart from these offences for which I must now sentence him, were committed in September and November 2011, over five years ago. Such a gap was recognised by the Court of Appeal in Rees v The Queen [2012] ACTCA 6 at [2] as being relevant when considering such a record. I further note that the central authority on this issue is, of course, Veen v The Queen (No 2) [1988] HCA 14; (1980) 164 CLR 465 at 477 where the High Court made a number of points, including that the prior record cannot permit a sentence to be imposed that is disproportionate to the gravity of the offence and that it is important to be determined whether the offending shows "a continuing attitude of disobedience to the law". In my view, the gap and circumstances of these offences do not show such a continuing disobedience.

80. As to the attitude to which the Crown prosecutor referred, I find it difficult to understand the reference. The only issue of attitude in the Intensive Correction Order Assessment Report was his attitude to the impact of the offences on the victim. I have addressed that earlier.

81. Otherwise, Mr Carmody co-operated well with the assessment and there was no reference to a poor attitude to it or to an Intensive Correction Order in the Assessment Report. Indeed, apart from his continued use of cannabis, no methylamphetamine use was detected on urinalysis. He went out of his way to negotiate arrangements with his employer, find accommodation in Canberra, attempt to obtain other employment in Canberra were he required to relocate, and did not try to minimise his behaviour in committing the offences. His attitude was not a reason for the assessment that he was unsuitable. I do not consider that he displayed an attitude that could properly be described as a poor attitude in the assessment.

82. An important issue is whether an Intensive Correction Order would, in the special and particular circumstances of Mr Carmody, risk the rehabilitation he has achieved and then put the community at further risk. This would, of course, be consistent with the protection of the community, which is the purpose of the criminal law. See Channon v The Queen (1978) 33 FLR 433 at 437.

83. In this regard, I note the following comments in the Assessment Report:

Mr Carmody's relocation from the ACT to Sydney appears to have had a positive impact on several elements of his life. In particular it appears that Mr Carmody's ongoing employment in Sydney has positively impacted on his financial situation, allowed him to avoid negative associates, and assisted in stabilising his mental health prior to the assessment period commencing.

As an ICO is not transferrable to another State or Territory, an ICO would require Mr Carmody to relocate to the ACT for the length of the order to comply with the conditions of this sentence. This may negatively impact the positive changes Mr Carmody has made to his life, specifically, impact on his relationship with his partner and children, current employment and his mental health. It is assessed that Mr Carmody's current employment and personal circumstances, indicates potential impracticability of compliance with an ICO.

84. Thus, it is acknowledged that his relocation to Sydney has been very positive and that his return to Canberra, where he is also vulnerable to anti-social influences, especially without his immediate family and with the additional financial pressures, would likely risk further offending.

85. To impose an Intensive Correction Order is likely to set him up to fail and to put the community at risk. Were the offence such that there was no other option, then that may be the consequence. It is not so clear to me that it is inevitable. In this context, I note that Napier CJ said in Webb v O'Sullivan [1952] SASR 65 at 66:

Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.

86. Having given this matter anxious thought, and while confirming that a sentence of imprisonment is inevitable in this case, the seriousness of the principal offence clearly warrants it and punishment is required, as well as recognising the harm to the victim, it seems to me that Mr Carmody's situation justifies me in fully suspending the sentence. These are such circumstances that justify this option. It seems to me that Mr Carmody's efforts during and since he ended his Good Behaviour Order have, save for this incident, shown that his substantial efforts towards rehabilitation have been successful and directed towards him becoming a good citizen and a good father. If, to use the words of King CJ, he can be reclaimed, then that will be a most significant contribution to the protection of the community.

87. As there are two offences for which he must be sentenced, I must carefully consider the length of each sentence to ensure that when there are overlapping common elements between any offences, Mr Carmody is not punished twice. This does not apply here.

88. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. In this case, it does seem to me that the offences are part of the same course of conduct and a substantial concurrency is appropriate. I heard no submissions to the contrary.

89. I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed but not more than that, that the total sentence is not crushing and leaves open the realistic prospect of reform for Mr Carmody and the achievement of his goals in the community. That also requires me to consider the issue of the concurrency of the sentences.

1. I confirm the conviction I entered on 16 December 2016 for the offence of recklessly inflicting grievous bodily harm on the victim on 11 June 2015.

2. I sentence you to two years and five months imprisonment to commence today. Had you not pleaded guilty, I would have sentenced you to two years and nine months imprisonment.

3. I confirm the conviction I entered on 16 December 2016 for damaging property on 11 June 2015.

4. I sentence you to three months imprisonment to commence on 27 May 2019, that is to be cumulative as to one month on the sentence for recklessly inflicting grievous bodily harm. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.

5. I suspend that sentence of two years and six months imprisonment today for a period of three years.

6. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under Crimes (Sentencing) Act 2005 (ACT) for a period of three years with the following conditions:

(a) a probation condition that you be under the supervision of the

Director-General or her delegate for a period of two years or such term period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising you;

(b) that you undertake treatment or counselling as agreed with the person supervising you for anger management and the use of illicit drugs;

(c) that you admit yourself to the Detoxification Unit at The Canberra Hospital on 27 February 2017 and remain there for the period of the Program and that, if you are not admitted or are discharged before the completion of the Program, you report to the Registrar of the Supreme Court of the ACT within one working day for a review of this Good Behaviour Order;

(d) that you refrain from the consumption of illicit drugs;

(e) a community service condition that you complete 100 hours of community service work within 12 months; and

(f) that you report to ACT Corrective Services, 1st Floor, 249 London Circuit, Canberra City after you have completed the Detoxification Program at The Canberra Hospital and, in any event, no later than the close of business on 7 March 2017, to arrange supervision and performance of the community service work.

7. I order you to pay compensation in the sum of $250 to the Registrar of the Supreme Court of the ACT within three months to be paid out to Lynda Southwell at an address to be supplied to the Registrar of the Supreme Court by the Director of Public Prosecutions within one month.

8. I recommend that ACT Corrective Services take such steps as may be reasonably practical to enable the community service condition to be performed without jeopardising his employment in Sydney.

91. Mr Carmody, you have been around the traps, so you probably understand the legal terms of what I have said, but what I did say was on this occasion this was a very serious offence and worth two years and five months imprisonment.

92. The rehabilitation that you have shown and the opportunity that you have taken to get your life together shows that the protection of the community, in my view, is best served by enabling you to continue that, but under supervision. That supervision is through a Good Behaviour Order which requires you to do a number of things; one of those is not to commit any further offences punishable by imprisonment. If you do that, you can be brought back to the Court and, given your history and the fact that history is a predictor of future activity, further offences will almost inevitably result in you being sentenced to imprisonment.

93. I will not be supervising that order because I retire in May, and hopefully there will not be any breach before May, but thereafter, some other judge will deal with that and they will not have the background information necessarily that I do, so it is really important that you understand - no further offending that is punishable by imprisonment at all.

94. Secondly, you need to obey any directions given, and specifically directions in relation to anger management and getting off the drugs. Cannabis, I know, is regarded less seriously in the community; the legislation recognises that, but it is an illicit drug nonetheless and it does lead to other offending and to circumstances where that can happen. You must learn to manage that; you are an addict and you will remain an addict. You have managed your addiction to methylamphetamine thus far, so you need to manage your addiction to cannabis or you will be quickly back in trouble. But also do it for your family; your children need a role model, a strong fatherly figure, one who is not using drugs.

95. I am supporting your entry to the Detoxification Program; take that seriously, get rid of your craving if you can, and learn the skills that you need to manage relapse prevention and then get on with your life and look after your family, who, as I said, need you. Get on with your job, which obviously gives you some satisfaction and which, in this day of infrastructure building, we need only too well.

96. Thirdly, the people who will supervise you are there to support you, but also to control you. They are part of the criminal justice system and they will tell you to do things that you might not be enthusiastic about. You are obliged to obey their directions - they are there for a reason, to protect the community. That is part of the punishment and you are obliged to obey their directions.

97. Nevertheless, they are also there to support you, and they are there as independent people who have knowledge of resources, so that if life gets tough, and it does for everyone, including myself, there is someone who may be able to provide a resource where you can overcome that without descending back into criminality or your mental health giving way.

98. The next thing is that you need to undertake any courses that are necessary. You admitted quite frankly to me, and that was to your credit, that you were in a rage about Mr Southwell, and that you lost control. Anger management is important in our community. The violence that you perpetrated, which you told your father, was quite unacceptable, is clearly unacceptable. However much he was disturbing you, however much he was threatening your family, violence against the victim is not condoned in our society and you need to understand that. Even though he is someone with whom you will have probably never any empathy, he has still been damaged seriously. You caused that and you had no justification for doing that.

99. You had justification for stopping him from preying on your partner and your children, from kicking your letterbox and shouting obscenities and the rest of it, but you had no right to strike him as you did; you must be punished and that is what I have done.

100. Finally, there is the community service condition. You need to pay back to the community in order to expiate the crime that you have committed; 100 hours is not a large amount, and it may be that in discussions with Corrective Services, you might be able to do that in a couple of weeks or so, before you go back to Sydney, if you have arranged that with your employer because the community service will have to be done in the ACT.

101. I have no doubt, that if you put your mind to it, as you have to date, you will not be back in the criminal courts. I am sometimes disappointed, but I hope in this case I will not be disappointed as the surroundings that you have built up now, with your employer, with the reconnection with your family - your father, your mother and your siblings, and with your partner and your children, are very strong and important supports for you to become, as I have described it, and as the courts have described it, an "honourable law abiding citizen."

102. I hope this opportunity, which is probably your last given where you have been, including this most recent offence, is one that you will take and make the most of it.

I certify that the preceding one hundred and two [102] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.