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Parties: The Queen (Crown) Jack Elson (Offender)

Representation: Counsel M Lucero and C Muthurajah (Crown) D Perkins (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender)

File Numbers: SCC 79 and 80 of 2020

LOUKAS-KARLSSON J:

Introduction

1. On 23 June 2020, Jack Elson (the offender) pleaded guilty to the following offences:

(a) One count of aggravated burglary, contrary to s 312(a) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 20 years’ imprisonment, 2,000 penalty units, or both.

(b) One count of contravening a family violence order, contrary to s 43 of the Family Violence Act 2016 (ACT). The maximum penalty for this offence is 5 years’ imprisonment, 500 penalty units, or both.

2. The offences were committed on 4 February 2020.

Agreed Facts

3. The agreed facts are set out in the Statement of Facts, which form part of the Crown Tender Bundle. The agreed facts may be summarised as follows.

4. A Family Violence Order (FVO) naming the offender as the respondent was granted in the ACT Magistrates Court on 13 November 2019. The offender was in Court when the Order was granted. The offender’s ex-partner and her one-year-old son are named as the protected persons on the Order. This one-year-old child is also the son of the offender. The Order was granted for a period of two years.

5. On 4 February 2020, the offender attended the home of his ex-partner in contravention of the FVO. At the time, both protected persons were in the loungeroom of the residence watching TV. The offender entered the backyard and went to the rear door, where he yelled at his ex-partner to open the door. The offender was yelling and being verbally abusive. The offender was refused entry and was told to leave.

6. The offender became angry and lifted the rear screen door off its roller bearings, removing it from the doorframe. After removing the screen door, the offender struck the rear glass door in an attempt to gain entry. The offender similarly tried to gain entry through the side laundry door and the front door, striking both doors several times. During this time, the offender continued to verbally abuse his ex-partner.

7. The offender made his way to the kitchen window and entered the house through the open kitchen window. His ex-partner, still in the loungeroom, saw the offender pick up a knife from the kitchen bench. She got off the couch and picked up her son. The offender approached his ex-partner with the knife in his hand and was again asked to leave.

8. The offender stated: “I’m going to kill you and I’m going to kill myself”. The offender was standing near the lounge. He used the kitchen knife to stab the couch cushion where the ex-partner had been seated whilst swearing at her. The knife cut through the cushion fabric leaving a hole. At this time, the ex-partner called her sister for assistance, and her sister was able to view the events over Facetime.

9. The offender went back into the kitchen. He threw the knife onto the floor and exited the house through the rear sliding door. The ex-partner picked the knife up off the floor to stop her son from touching it and then locked the rear sliding door. The offender returned to the door and struck the door while asking to be let inside.

10. The ex-partner contacted police to report that the offender had attended the home and was trying to break in. The offender was arrested later that day.

Victim Impact

11. While there is no Victim Impact Statement before the Court, the Court acknowledges that the commission of these offences would have been very frightening for the victim and her child. The prosecution submitted that the Court may take judicial notice that family violence offending has a long-lasting and detrimental impact on children, even if witnessed at a young age. Such trauma has the potential to have long-term impacts on a child: R v Schrattenholz [2017] ACTSC 247 at [32]. This includes psychological damage and the risk of creating offenders out of children who witness violence: Talukder v Dunbar [2009] ACTSC 42 at [32]. This is particularly pertinent in the present case, as the offender reported to the pre-sentence report author that he witnessed significant domestic violence as a child himself.

12. The Court recognises the serious and long-lasting effects of such crimes on victims and acknowledges the significant impact that the offences would have had on the victim and her young son.

Objective Seriousness

13. The prosecution submitted that the contravention of the FVO was a “very serious example of offending of this type … [falling] between the mid- to upper range of objective seriousness”: Written Submissions at [5]. The prosecution submitted that the aggravated burglary was similarly a serious example of offending of this type, falling above the mid-range of objective seriousness.

14. Counsel for the offender agreed the offences were serious.

15. The following features of the offending are relevant to the offences. I also note that double counting is to be avoided: (a) The contravention of the FVO was deliberate, serious and in flagrant disregard of the Court order.

(b) FVOs are designed to provide protection to victims.

(c) The offender made several attempts to enter the house and damaged a number of doors, before gaining entry via an open window.

(d) There is a degree of premeditation in deciding to attend the victim’s house.

(e) The offender’s presence at the house was protracted, abusive and aggressive, and he was verbally abusing the victim throughout the incident.

(f) The victim was in her own home at the time of the offender’s arrival, and was home alone, except for the presence of her young child.

(g) The presence of the infant at the home is an aggravating feature.

(h) An infant is a vulnerable victim.

(i) The fact the offender picked up a knife would have heightened the victim’s fear for her and her child’s safety.

(j) The offender stabbed the place where the victim had previously been sitting, showing a willingness to use the weapon.

(k) The offender stated an intention to kill both himself and the victim, while holding the knife.

16. As stated by Refshauge J in Elson v Ayton [2010] ACTSC 70 at [68]-[70], assaults in the presence of children are rightly regarded as serious:

… The courts see, time and time again, that those who appear before them as offenders have often been witness to domestic violence committed against their mother. It is unsurprising then that criminological studies show that family conflict is a very relevant risk factor precipitating youth violence … It is clear that the courts have a duty to express the community’s particular interest in denouncing family violence especially by appropriately severe sentences where it is aggravated by being committed in the presence of children. Where this occurs, it not only increases the humiliation and sense of powerlessness of the victim, but it is also likely to cause real psychological damage to the children and risks creating offenders of the children themselves. The courts must show that this is unacceptable and to be condemned as such.

17. This statement was recently reinforced by Mossop J in R v NX (No 2) [2019] ACTSC 131 at [14], where it was noted that the offending “occurred in circumstances where the victim was particularly vulnerable by reason of the need to care for and protect her small child”.

18. I find both offences to be serious and above mid-range.

19. Nevertheless, it must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24].I have set out the identifying features above. Subjective Circumstances

20. In evidence before me is a pre-sentence report (PSR) prepared for the offender which includes the following in relation to the offender’s subjective circumstances.

21. The offender was born in Canberra and has lived here for most of his life. He is 20 years of age and was 19 years of age at the time of the offences. He had a difficult childhood, witnessing domestic violence in the home and experiencing his parents’ drug and alcohol abuse. His family moved homes several times and at one stage he moved in with his aunt and uncle due to issues his parents were facing. The offender returned to reside with his parents at the age of eight. At this time, his parents had significant substance dependency issues.

22. The offender left his family home at the age of 13 due to ongoing problems at home and resided with a close friend. When the offender was 14 years of age, his father passed away from an alcohol-related illness. The offender noted that he has not had contact with his mother since 2013; however, his mother has indicated recently via his sister that she is willing to reconnect once the offender is out of the Alexander Maconochie Centre (AMC). The offender has three older siblings and five younger siblings. He stated that two of his older sisters continue to use illicit substances and he intends to stay away from them upon being released from custody. The offender has no contact with his younger siblings and is unsure where some of them currently reside. He has an uncle and aunt who reside in Canberra and who have previously been supportive of him. His uncle has been in contact with him during the custodial period and has offered post-custodial support in relation to housing and employment.

23. The offender stated that he had been in a relationship with his ex-partner and mother of his young child for approximately three years before the relationship broke down and his ex-partner applied for an FVO. The offender indicated to the PSR author that he intends to abide by the conditions of the FVO upon his release from custody and he intends to pursue Family Court options in the future to allow legal access to his son.

24. In 2018, the offender was living at his uncle’s house with his ex-partner. He engaged with Barnardos Australia and received support to move to a Barnardos Friendly Landlord property with his partner in September 2018. In August 2019, the offender’s relationship broke down and his partner asked him to leave the house. He stated that he remained homeless for several months and spent time with various friends on their couches. The offender acknowledged that most of these people were anti-social and had a negative influence on him.

25. Barnardos Australia located another property for the offender; however, he was arrested only a few weeks after moving into the new property. Information provided by Barnardos Australia indicates that this property remains available for the offender and he intends to move back there upon his release from custody. The offender indicated that, should he be unable to return to that property for any reason, his uncle has offered him accommodation. The offender’s caseworker at Barnardos indicated that the service has been heavily engaged with the offender and will continue to support him post-release.

26. In relation to education and employment, the offender indicated that he had a difficult time at school, distracted by events at home and struggling to concentrate and learn. He was suspended on a number of occasions for poor behaviour. The offender left school during Year 9 and later completed Year 10 via a specialised education pathway. The offender worked for two separate restaurants in a service/cleaning capacity for approximately six months throughout 2019. He stated he has not worked since late 2019 and noted his inability to continue working while experiencing ongoing issues with his ex-partner.

27. The offender indicated that he would like to pursue employment in the labouring industry upon his return to the community. His uncle works at a tyre repair workshop and stated that there may be work available for the offender when he is released. The offender has mostly been reliant on Centrelink throughout his adult life and has a small debt in relation to unpaid traffic fines.

28. The offender reported having both pro-social and anti-social peers but acknowledged that, prior to his arrest, he was only spending time with people using illicit substances or who were otherwise involved in the criminal justice system. The offender indicated a willingness to reconnect with friends he saw as positive role models, while avoiding people he views as negative influences.

29. In relation to drug and alcohol use, the offender reported that his use of alcohol has previously been problematic. He stated that in the past he would resort to alcohol when he felt angry or upset. The offender stated he has reduced his level of alcohol consumption and indicated a willingness to engage in counselling and other programs. He noted his father’s alcoholism and subsequent death as motivation.

30. The offender began smoking cannabis irregularly at the age of 13, increasing to daily use following the death of his father at the age of 14 years. He reported a three-month period without cannabis at the age of 18 following the birth of his son; however, he returned to smoking regularly following that period. The offender’s use of alcohol and cannabis escalated dramatically following his separation with his partner and he stated that he believes his increased use of cannabis negatively affected his thought processes leading up to the offences.

31. The offender reported that he has remained abstinent from all drugs and alcohol during his period in custody. He indicated that he wants to cease using cannabis completely once in the community and he believes that drug and alcohol counselling would be beneficial as he has never attempted to engage with these services before.

32. The offender has suffered with mental health issues since he was a child; however, he has never significantly engaged with mental health practitioners or followed through with counselling referrals. He reported that he suspects he has a number of mental health issues and described symptoms consistent with attention deficit issues and bipolar disorder. He further reported that he has experienced auditory hallucinations while under the influence of cannabis and suspects he suffers from schizophrenia or something similar. The offender has never been officially diagnosed with a mental illness and has never been prescribed medication to assist with his mental health. The offender indicated a willingness to engage with medical professionals upon his release from custody to begin examining and treating his mental health issues.

33. The offender acknowledged that he has struggled with managing his emotions, especially anger, and reacts to bad news by self-harming. He reported to the PSR author that he believes his emotional responses to stressful situations have improved while in custody, stating that other detainees have tried to provoke him, and he has not responded to these provocations erratically. He stated that he has often felt anxious and uncomfortable and hasn’t known where to turn for help in this area. The PSR indicates that the offender would benefit from engagement with an offence-specific intervention, such as the programs offered by Everyman Australia in relation to emotional regulation and other coping strategies.

34. The PSR indicates that the offender’s attitude to the offences was mixed. The offender indicated that he was aware that the FVO was in place but that his ex-partner had messaged him inviting him to the home to assist in caring for their child. The offender stated he knew he shouldn’t attend the house; however, he was missing his son and decided to attend anyway. The offender disagreed with some of the information contained in the police statement of facts, stating that his ex-partner’s family influenced her to embellish the events that actually took place. He acknowledged, however, that his behaviour upon arrival at the home was unacceptable and that he was heavily under the influence of cannabis at the time. Counsel for the offender submitted the following in relation to these comments (T 6.10-16):

All I can remark in relation to those comments is that my client has always instructed me that he knew he shouldn’t have gone to his ex-girlfriend’s premises; he shouldn’t have been taking illicit substances at the time; he shouldn’t have picked up that knife. All I can put it down to your Honour, is that my client is not the most sophisticated person, he just needs … extra time to work through certain issues.

35. The offender stated to the PSR author hat he felt ashamed and embarrassed about his actions. He reported that, during his time at the AMC, he has thought about his behaviour a lot and would like to make positive changes to his life, including exploring drug and alcohol counselling, seeking assistance from mental health professionals, obtaining employment, and becoming a positive role model for his son.

36. The offender has been in custody at the AMC since early February 2020. Counsel for the offender submitted that, during his time in custody, the offender has been staying at the cottages, which is a “privileged type of arrangement”. The offender has been in employment preparing food at the bakery and delivering it to persons across the AMC. He hasn’t had any behavioural issues while at the AMC.

Intensive Correction Order Assessment Report

37. When this matter originally came before me on 10 August 2020, I determined that I should give serious consideration to the sentence being served by way of Intensive Correction Order (ICO). To that end, I referred the offender for assessment.

38. The ICO assessment dated 21 September 2020 concludes that the offender has been assessed as suitable for an ICO.

39. The report states that it appears the offender has remained abstinent from alcohol and illicit substances throughout the remand period and has engaged productively in programs to address substance use. I note in this regard that, at the sentencing hearing, three certificates were tendered indicating the offender’s completion of a conflict resolution course, an introduction to recovery course, and a goal-setting course. He expressed to the report writer a desire to remain completely free from illicit substances when he returns to the community and he is willing to engage in ongoing counselling in this area.

40. In line with the PSR, the report notes that the offender wishes to address his mental health and that obtaining a diagnosis and subsequent treatment will be more accessible in the community. Given the offender’s willingness to engage in support in this area, the report states that, if sentenced to an ICO, Corrective Services will assist in monitoring his engagement with appropriate service providers.

41. The report notes that, although the offender has not been previously supervised by Corrective Services, he successfully completed a community-based order supervised by ACT Youth Justice Services. While the offender has limited education and employment history, he expressed an interest in obtaining work if sentenced to a community-based order. He stated to the report author that, although he understands he needs to address his other needs first (in relation to drugs, alcohol and mental health), he would eventually like to begin an apprenticeship in mechanical work, as he has an uncle that works in that area.

42. The ICO assessment states that, throughout the assessment process, the offender was polite, engaged and appeared to be focused on making positive changes to his life. He has suitable post-release accommodation and will be supported by Barnardos in this accommodation. If sentenced to an ICO, the report stated that the offender would be supported to target alcohol and illicit substance use, mental health issues, and unemployment. He was not assessed as suitable for a community service work condition due to unaddressed issues with substance use and mental health.

43. Counsel for the offender submitted that the ICO report demonstrates that the offender has the ability to engage positively with support services and is willing to do so.

44. The prosecution accepted that the ICO report was “very positive” in respect of the offender and his prospects of rehabilitation.

Letter of Support

45. In oral submissions, counsel for the offender referred me to a letter tendered in the Magistrates Court on behalf of the offender. The letter is from Mr Michael Marriot, a Youth Worker at Barnardos, and dated 23 February 2020. The letter states that Mr Marriott has known the offender since July 2018 and contains the following:

Jack has had some contact with the Domestic Violence Crisis Service (DVCS) for men; Room4change. Jack has stated on a number of occasions that he needs to focus on finding work so he can be a positive role-model for [his son]. Jack would also like to pursue how he may be able to continue to have a relationship with his son, but the process involved – making an application through the Family Court – he finds confusing and bewildering. Jack clearly understands his responsibilities in [regard] to his behaviour concerning [his ex-partner] and [his son]. Jack now clearly understands the implications or repercussions of not following the conditions of the Family Violence Order (FVO) he is the recipient of. … Barnardos will continue to support Jack to reiterate the importance of keeping to the conditions of his FVO; treating [his ex-partner] and all women with respect; finding employment or training; living independently; and being a positive role model for himself and his son.

Criminal History

46. The offender has a limited criminal history confined to Children’s Court matters. In 2017, the offender was sentenced as a young person for robbery, minor theft, damage property, possessing liquor in a public place, joint commission minor theft, and possessing a knife. Pleas of Guilty

47 . The offender entered pleas of guilty to an amended indictment following negotiations between the parties. The pleas were indicated during a criminal case conference, following committal to the Supreme Court for trial. The pleas were formally entered on 23 June 2020.

48. The prosecution accepted that some discount would be appropriate for the pleas. In Blundell v The Queen [2019] ACTCA 34, the ACT Court of Appeal stated that the utilitarian value of pleas indicated at criminal case conferencing is such that “a discount in excess of 10%, and almost always within the range of 15 to 20%, is required”: at [12].

49. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. Pursuant to section 35(2)(c) of the Sentencing Act, it should be noted that the pleas were the subject of negotiations between the parties.

50. I allow a discount of approximately 20% for the pleas of guilty.

Time in Custody

51. The offender has spent 242 days in custody solely referable to these offences. He was arrested on 4 February 2020 and has been bail refused since that date.

52. An ICO cannot be backdated and, on one view, the offender receives no credit for the time spent in custody. In setting the length of the ICO, however, I can take into account the fact that the offender has spent time in custody in relation to this offence, and I do so: see R v McDowall [2020] ACTSC 184 at [17] and R v Jabal [2020] ACTSC 230 at [52].

Comparable Cases

53. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:

[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

54. There are a number of decisions of this court relating to offenders who committed similar offences; these cases provide a “yardstick”, as referred to by the High Court, in relation to this sentencing exercise: Hili at [53]-[54]. The prosecution referred the Court to the following comparable cases:

(a) Laipato v The Queen [2020] ACTCA 35 (Murrell CJ, Robinson and Berman AJJ): The offender was found guilty of burglary, unlawful confinement and choking following a jury trial. The victim was the offender’s partner. She was in her bed when the offender broke into her home, dragged her from her bed, choked her, and confined her to the house. The offender had a lengthy history of violence, including convictions against the same victim. He was found to have “guarded” prospects of rehabilitation and demonstrated no remorse. The offender was sentenced to 3 years and 6 months’ imprisonment for the burglary, with a total sentence of 5 years and 5 months’ imprisonment. On appeal, the offender was re-sentenced to 3 years and 6 months’ imprisonment on all offences, including 2 years and 6 months’ imprisonment in relation to the burglary. There was a non-parole period of 27 months.

(b) R v Palmer [2020] ACTSC 13: The offender pleaded guilty to burglary, assault occasioning actual bodily harm, and choking to render insensible. The victim was the offender’s ex-partner. The victim was asleep in her bed when the offender entered the house. The offender was subject to conditional liberty at the time in relation to offences involving the same victim. The offender was 37 years of age with a lengthy criminal history. He was found unsuitable for an ICO. The offender was given a 15% discount for his plea of guilty. He was sentenced by Elkaim J to 10 months’ imprisonment in relation to the burglary, with a total sentence of 30 months and a non-parole period of 18 months.

(c) R v Schrattenholtz [2017] ACTSC 416: The offender pleaded guilty to aggravated burglary in company and a scheduled count of assault occasioning actual bodily harm. The offender was in company with her sister at the time of the burglary. They forced entry into the co-offender’s ex-partner’s house and assaulted an occupant in the presence of two children. The offender was found to have good prospects of rehabilitation, no history of drug use or antisocial behaviour, and no criminal history. The offender was sentenced by Mossop J to 14 months and 15 days of imprisonment, wholly suspended upon entering a good behaviour order for 2 years.

(d) R v Thompson [2016] ACTSC 69: The offender was found guilty of aggravated burglary and unlawful confinement following a jury trial. The offender broke into his ex-girlfriend’s apartment and hid in her bedroom. He jumped out at her holding a gun while she was in her underwear. There was no evidence that the gun was loaded. The victim was confined to her home for three hours. The offender was 28 years of age, with no history of drug or alcohol use, and no criminal history; he suffered from depression. The offender was sentenced by Robinson AJ to 1 year and 9 months’ imprisonment for the aggravated burglary, and 12 months’ imprisonment for the unlawful confinement. He received a total aggregate sentence of 2 years imprisonment, suspended after serving 10 months and upon entering a good behaviour order for a period of 2 years.

(e) Anderson v The Queen [2014] VSCA 255 (Weinberg and Santamaria JJA): The offender pleaded guilty to aggravated burglary, recklessly causing injury, and two counts of property damage. The offender broke into his ex-partner’s house armed with a cattle prod, confronting his sleeping ex-wife and her new partner, in breach of an undertaking given nine days earlier. The offender was 27 years of age and had led a relatively pro-social life. He was sentenced to 3 years imprisonment’ for the aggravated burglary and received a total effective sentence of 3 years and 4 months’ imprisonment. The offender was granted a non-parole period of 1 year and 10 months. The sentence was upheld on appeal.

55. Counsel for the offender submitted that the cases referred to by the prosecution, while for the same charges, involve “actual violence”, whereas the agreed statement of facts in the current matter involves no physical violence (T 19.40-44).

56. I take these comparable cases into account as “yardsticks”: Hili at [53]-[54].

Statutory Considerations

57. There are a number of relevant considerations under s 33 of the Sentencing Act, including:

(a) The violence being committed in the presence of the child constitutes a breach of trust, as the offender is the child’s parent and therefore holds a position of trust and authority over the child: s 33(1)(u).

(b) The relationship between the offender and victim was one of ex-partners and co-parents, making the offences family violence offences: s 33(1)(a).

(c) The degree of moral culpability of the offender is high: s 33(1)(i).

(d) The offender knew that the victim lived alone with their son and that she had an FVO naming him as the respondent: s 33(1)(d).

(e) The Court can reasonably infer that this incident would have been terrifying for the victim: s 33(1)(f).

(f) The offender has been actively engaged with Barnardos Australia and appears willing to accept support in relation to drug and alcohol counselling and mental health: s 33(1)(t).

(g) The offender described feeling ashamed and embarrassed when interviewed by the PSR author; however, he also stated that he believed the victim had embellished facts: s 33(1)(w).

(h) No record of interview was offered with the offender due to his belligerent behaviour at the time of arrest: s 33(1)(k) and (l).

(i) The offender acknowledged that he was heavily under the influence of cannabis at the time of offending: s 33(1)(p).

(j) The offender is a recipient of Centrelink benefits and has debts for unpaid traffic infringements: s 33(1)(n).

58. The prosecution noted that, in relation to s 33(1)(v), the reasons for the offending are unknown. The prosecution did not accept the offender’s assertion that the victim invited him to her home, as this is inconsistent with the agreed facts. The agreed facts indicate that the offender was demanding, abusive, and violent almost immediately after arriving at the house. The prosecution further submitted that the Court should place little weight on the offender’s assertion that he came over because he was missing his son as a mitigating factor, as his behaviour at the property “suggests a display of power and control and did not appear [to be] aimed at spending time with or caring for his son”: Written Submissions at [36].

59. I accept these submissions. Other Relevant Considerations

60. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.

61. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations.

62. The prosecution submitted the following in relation to the s 7 sentencing purposes:

The court should fashion a sentence that appropriately considers adequate punishment, making the offender accountable for his actions, denouncing the conduct and recognising the harm done to the victim. Factors of rehabilitation, while important, can be undertaken from a custodial setting and/or in the community if a portion of the total period of imprisonment is suspended, or once the offender is eligible for parole.

63. Rehabilitation is an important consideration having regard to the offender’s youth. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:

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

64. The prosecution accepted that the offender “has an open attitude towards rehabilitation, and … his youth and his attitude and his willingness to engage and to accept support for his areas of risk work in his favour” (T 7.12-15).

65. Counsel for the offender submitted that the offender is motivated to remove alcohol and illicit substances from his life. Counsel submitted that the offender is further motivated to rehabilitate himself so that he can have legal contact with his son. In relation to rehabilitation, counsel for the offender submitted the following:

I’ve talked with my client about working with Corrective Services, a probation and parole officer, and he was quite enthusiastic about that idea. Given his time spent with the writer of the pre-sentence report he feels that someone like that could really help him in terms of a number of different areas.

66. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO. The prosecution submitted that the seriousness of the offending requires the imposition of a sentence of full-time imprisonment. It was initially submitted by the prosecution that a term of imprisonment served wholly in the community, such as an ICO, would not adequately address the sentencing principles. Following the provision of the ICO report, however, the prosecution accepted that an ICO would be appropriate, noting that this would not be a usual outcome for charges of this kind, but in this case it was appropriate due to the subjective factors (T 25.1-5 and T 26.17-24).

67. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

68. I note that the offender had a difficult childhood, which is a circumstance to be taken into account on sentence. The relevance of childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].

69. The offender has clearly struggled with use of alcohol and illicit drugs. While drug addiction is a relevant circumstance for the Court to consider, it is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]-[30].

70. I note the comments in R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41] in relation to the seriousness of offences committed in a family violence setting.

71. In relation to family violence offences, I also note the observations of Refshauge ACJ in R v Stanley [2015] ACTSC 322 at [62]-[63], referring to the observations of Johnson J in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 193 as to family violence being a serious problem in the community:

[D]omestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship … 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.

72. As I underlined in R v EP (No 3) [2019] ACTSC 242 at [88], “the Courts have made it clear that women must not be treated by men as property”.

73. I take these principles into account on sentence.

Totality

74. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].

75. The prosecution submitted that matters of concurrency and totality will be relevant as the two offences occurred in “one global event”: Written Submissions at [47]. The prosecution submitted that there is some degree of overlap or mutuality between the conduct comprising each of the offences, and this should be appropriately reflected in the structure of the sentences imposed. As I have noted earlier, double counting is to be avoided.

76. I note that the offences occurred in the context of a singular incident and take this into account in structuring the sentence.

Sentence

77. It must be recognised by the Court that the offences committed against the victims have had, and will have, a serious and significant impact upon them both. The short and long-term consequences of being the victim of these offences must be acknowledged. It must be recognised that no sentence that the Court imposes can now rectify the consequences of what has occurred to the victims in the commission of the offences by the offender. This sort of violence against women must be deterred and must be punished. General deterrence and specific deterrence are both important in this case.

78. Both the prosecution and counsel for the offender accept the offender must receive a sentence of imprisonment. The issue is the length of sentence and whether it is essential that it be served by way of further fulltime imprisonment or whether it can be served by way of ICO, as stated above. The prosecution accepted that an ICO, while not the usual course in this type of offending, is appropriate in the circumstances of this case. The offender’s pleas of guilty, his suitability for an ICO, and his significant prospects of rehabilitation point in a direction other than a term of imprisonment served by way of fulltime custody.

79. In Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions. The following paragraph is often quoted because it usefully summarises the nature of the sentencing discretion:

The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. 80 . Also referred to in the context of the nature of the sentencing discretion is the following statement by Mahoney ACJ in R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J and Adams AJ, 12 December 1996) emphasising individual justice in every case:

There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it … But there are other interests to which the sentencing process must have regard; these are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case. 81 . Sentencing must always deliver individualised justice. An approach that would dictate gaol to be served by way of fulltime custody in every case of family violence is anathema to individualised justice. There will be exceptions to the necessity for fulltime custody where individual justice demands it. The offender has been in custody for these matters, bail refused, for 242 days, approximately 8 months. Continuing full-time custody for the offender is not mandated in this case to ensure the protection of the community.

82 . General deterrence is important in this case, as for all cases of family violence. As stated by Murrell CJ in R v Hill [2016] ACTSC 310 where a person has good prospects of rehabilitation, the court, by supporting those prospects in the sentence imposed, thereby also addresses likely future harm and protection of the community.

83 . Section 11(2) of the Sentencing Act states that an ICO may be ordered where the term of imprisonment is for not more than two years. Under s 11(3), an ICO may be ordered where imprisonment is for more than two years, but not more than four years, if the Court considers it appropriate, having regard to the level of harm to the victim and the community caused by the offence; whether the offender poses a risk to people in the community; and the offender’s culpability in all the circumstances. I have had regard to these matters in detail, as set out above.

84. In coming to a sentence by way of instinctive synthesis, I have taken into account all of the relevant matters, including the objective seriousness of the offences, subjective matters, and the prospects of rehabilitation discussed above.

85. In my view, the recommendation in the ICO assessment report should be taken up. An ICO ought to be imposed. It must be remembered that, although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be “a significant punishment, coming second only to a term of full-time imprisonment”: R v Srna [2018] ACTSC 337 at [13]. Its content will require strict adherence and if this is not followed could result in a period of full-time custody.

86. The appropriate sentence for the offence of aggravated burglary is 2 years and 3 months’ imprisonment, reduced to 21 months on account of the plea of guilty.

87. The appropriate sentence for the offence of contravening an FVO is 12 months’ imprisonment, reduced to 10 months on account of the plea of guilty.

88. The sentences will be partially concurrent, and the offender will serve a total sentence of two years and two months’ imprisonment. The terms of imprisonment will be served by way of ICO.

Orders

89. I make the following orders.

90. In relation to charge CC 2020/1829, aggravated burglary:

(a) I record a conviction.

(b) The offender is sentenced to a term of 21 months’ imprisonment, commencing on 2 October 2020 and concluding on 1 July 2022.

91. In relation to charge CC 2020/1831, contravene an FVO:

(a) I record a conviction.

(b) The offender is sentenced to a term of 10 months’ imprisonment, commencing on 2 February 2022 and concluding on 1 December 2022. The imprisonment is to be served by way of an Intensive Correction Order pursuant to 92. s 11 of the Sentencing Act. The offender is to abide by the core conditions under s 42 of the Crimes (Sentence Administration) Act 2005 (ACT). The offender is to comply with the following additional conditions:

(a) Supply samples of blood, breath, saliva for alcohol and drug testing as directed;

(b) Undertake any medical treatment and supervision as directed; and

(c) Engage with educational, vocational, psychological, psychiatric or other programs or counselling as directed, particularly in respect of drugs and alcohol, mental health, and employment.

I certify that the preceding [92] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.

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