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(a) Aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty is imprisonment for 20 years, a fine of $320,000, or both.

(b) Assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty is imprisonment for 5 years. Facts

2. The facts are agreed. I have set them out in some detail in my decision in R v Robb [2021] ACTSC 164 (Robb) at [4] – [23]:

On the evening of Thursday 9 July 2020, the offender was at Lighthouse Bar in Canberra with Letitia Humphries and Dylan Crick. They arrived at approximately 7:30pm and the offender and Ms Humphries were intoxicated by about 8:45pm. At some time after 8:45pm, the group went to Wanderlust adult club in Mitchell. At approximately 10pm, they were joined by Morgan Facer and Jordan Knight. Each member of the group knew each other as friends and had gone to Wanderlust club to have a few drinks and play some pool. Marco Marzotto was also at the club and spoke to the group at some point, although he was not previously known to some members of the group. While at the club, the members of the group were talking about an incident that had involved the offender and somebody who I will refer to as HG. The offender became upset, alleging that HG had raped her. She started to cry and threw a glass. During this conversation, there was also some suggestion that HG had been circulating video footage of Mr Crick and Ms Humphries engaged in sexual activities. At some point, Mr Marzotto said, “Let’s go talk to him”. At some point, Ms Facer heard Mr Crick or Mr Knight say words to the effect of, “Let’s go for a drive”. Mr Crick asked Ms Facer to drive. The group left the Wanderlust club at approximately 1:46am, and Ms Facer drove them all to a house in Spence. During the car trip, the offender spoke on the phone to someone asking if she could get “him” to come out the front. At another point during the trip, the offender was speaking to other people on the phone, asking if they had “his” number. The group arrived at the house in Spence at approximately 2am. Everyone got out of the car. Ms Facer remained on the driveway while the others all went to the front door and yelled for HG to come out. Mr Crick knocked on the door and Mr Marzotto tried to kick it, before going to a large front window. Either Mr Marzotto or Mr Knight threw something at the window and punched it until it broke. The group then entered the house through the broken window. Ms Facer got back in the car, where she stayed with the windows down. HG heard noises from outside and went into his mother, OG’s, bedroom to ask her if she had heard anything. OG left the bedroom to investigate and saw five people in the loungeroom. She walked towards the loungeroom. Her daughter, IG, joined her soon after. Mr Marzotto pushed OG back up the hallway towards the bedroom and said, “if you don’t shut up, I’ll knock you out”. OG heard members of the group shouting that they wanted to kill HG. Mr Marzotto also pushed IG into OG’s bedroom. He applied force to her upper body and did not stop pushing nor lessen the force when IG told him she was pregnant. IG’s yelling that she was pregnant could be heard by Ms Facer outside the house. Mr Marzotto entered OG’s bedroom, where HG was. The rest of the group followed behind him, except for the offender. HG recognised Mr Crick and Mr Knight, who he had known for approximately eight or nine years. He also recognised Ms Humphries, who he had known for 12 months. HG did not know or recognise Mr Marzotto. Mr Marzotto swung out at HG and missed, instead causing HG to fall backwards onto the bed. While HG was lying on the bed, Mr Knight held HG down while holding his hands behind his back. Mr Crick used a closed fist to punch HG twice in the head, once in the left eye and once in the head area. Mr Knight then let go of HG’s arms and punched him several times in the ribs and in the back of the head from behind. Mr Marzotto found a decorative glass plate nearby and smashed it over HG’s head. HG felt pain instantly and suffered a small laceration. Ms Humphries was present in the bedroom during these events. The offender had entered the premises and went through to the lounge room. She was with OG and IG in the loungeroom while the assault on HG was taking place in the bedroom. The offender did not participate in the assault but remained in the lounge room standing next to OG and IG. She apologised a number of times. Mr Crick grabbed HG’s mobile phone, another mobile phone and an iPod. Then, Mr Crick, Mr Knight, Mr Marzotto, Ms Humphries and the offender ran out the front door of the house and back to Ms Facer’s car. Mr Knight got into the front passenger seat, while the others sat in the back. Ms Facer observed that all members of the group had some blood on them. Ms Facer observed that the offender had blood on her face. Ms Facer drove the group back to the Wanderlust club and the group re-entered the club at about 2:21am. Mr Marzotto destroyed the two mobile phones at the club. Around the same time that the group left the house, OG called “000” to report the incident. Police arrived at the house at approximately 2:11am and 2:15am respectively and immediately took steps to preserve the scene and evidential material, including the blood drops. HG told police officers that he recognised the offender, Mr Knight, Mr Crick and Ms Humphries. He provided the officers with a description of Mr Marzotto. ACT Ambulance service attended the scene. HG declined to be transported to hospital or receive treatment. IG was transported to hospital for observations because of her pregnancy and high blood pressure reading.

3. The only additional matter worth noting is that on Monday, 13 July 2020, Ms Facer and Mr Knight attended City Police Station after they had seen social media posts regarding the incident. Mr Knight participated in a forensic procedure and a record of interview. In that interview, he made substantial admissions about his own involvement in the incident.

Objective seriousness

4. The offender was a central participant in the burglary. The agreed facts do not permit a finding beyond reasonable doubt that Mr Knight broke the window. The entry into the premises was with the intent to cause harm or threaten to cause harm. He in fact did cause harm. Like the offending of Mr Crick, it is below the mid-range of objective seriousness for the offence of aggravated burglary.

5. So far as the assault occasioning actual bodily harm is concerned, after Mr Crick had punched him, the offender punched HG in the ribs and the back of head. This is admitted to have caused actual bodily harm. The assault occasioning actual bodily harm is in the low to mid-range of objective seriousness for this offence.

Subjective circumstances

6. The offender’s subjective circumstances are described in a pre-sentence report and in an intensive correction order suitability assessment, both dated 16 July 2021.

7. The offender is 23 years old.

8. The offender was born and raised in Canberra and is the only child from his parents’ union. The offender has never met his father and was raised by his mother and grandparents. His mother commenced a de-facto relationship with his stepfather when the offender was 10 years old.

9. The offender described a positive upbringing but disclosed that he experienced difficulty accepting authority from his mother, stepfather and teachers throughout his adolescence. The offender has a distant relationship with his three younger half-brothers, his mother and his stepfather. However, he reported that for the past 10 months, he has been in regular contact with his mother and siblings and regularly visits and contacts his grandparents.

10. For the past approximately two years, the offender has been in an on-again, off-again relationship with his current partner. They have been in a full-time relationship for the past 10 months. This is a positive and supportive relationship. The offender currently lives with a friend in a private rental, but reported his intention to move in with his partner.

11. The offender did not obtain his year 10 schooling certificate. He reported that his interaction with his peers was relatively positive and he was not concerned by his academic performance. However, his grandmother indicated that his academic performance was affected because he was bullied and changed schools. He required tutoring as a result.

12. The offender has worked as a concreter for the past four and a half years, maintaining regular employment sub-contracting as a concreter. He is currently in the process of starting a full-time plumbing apprenticeship.

13. The offender is not currently participating in any organised leisure activity. He was involved in boxing between the ages of 18 to 20 years old and has intentions to go back into this, as he felt that he was at his calmest at this time in his life.

14. The offender reported that he has outstanding debts, including court fines in excess of $1,600. However, he claims that he has no difficulties meeting his financial commitments.

15. The offender reported that he experienced problematic gambling issues between the ages of 18 and 21 years old. At times, he would spend all his weekly income on poker machines. The offender claims that he now has better control over his gambling issues, spending $100 – $200 every few months on social gambling.

16. The offender also reported historical problematic alcohol consumption and illicit substance use, consuming alcohol on the weekends from the age of 16. Although, he reported that he has not consumed alcohol since entering his bail undertaking in July 2020, and that was a claim supported by his partner.

17. The offender reported that he commenced using cannabis and amphetamines at the age of 16 years old but claims that this did not last long. At the age of 18, the offender commenced using cocaine. He claims to not have consumed any illicit substances since entering his bail undertaking but has on occasions consumed a “joint” of cannabis to help with sleeping.

18. Since the offence, the offender reports that he is no longer associating with anti-social companions nor involving himself in anti-social behaviours.

19. The offender reported that he does not have any health concerns. He reported historical mental health concerns relating to anger management during adolescence. The offender’s grandmother raised her concern that the offender may have underlying mental health concerns, and also indicated that there is a family history of diagnosed bi-polar disorder.

20. The offender agreed with the case statement and during the interview with the pre-sentence report author, he acknowledged his offending behaviour and took responsibility for his actions. He attempted to justify his actions by claiming that in the lead-up to the offence, he was provided with misleading information. The offender stated that if he had known accurate details, he would have reconsidered his behaviour.

21. The offender expressed remorse and regret, particularly in relation to HG’s pregnant sister, IG, and her unborn child. He also acknowledged that his offences may have a negative impact on his partner or family members.

22. He was assessed as suitable for a good behaviour order, suitable for a community service work condition and suitable for an intensive correction order (ICO).

Criminal history

23. The offender has a prior criminal history involving five convictions relating to traffic offences and drug and alcohol related offences. Each involved a fine and one involved a period of disqualification from holding a driver’s licence.

Plea of guilty

24. The offender pleaded guilty to the offences on the indictment in the Supreme Court on 19 May 2021. However, before committal he had in the Magistrates Court entered pleas to the charge of aggravated burglary and a charge of common assault on 26 February 2021. The assault occasioning actual bodily harm charge on the indictment was pleaded to at the first opportunity. In those circumstances, he is entitled to a discount of 25 per cent on any custodial sentence.

Time in custody

25. The offender spent one day in custody for the offences after his arrest. He was released on bail on 14 July 2020 following an appearance in the Magistrates Court.

Co-offenders’ sentences

26. I have described the sentences imposed upon his co-offenders in my decision in Robb at [46] – [48] and I adopt what I said there.

Consideration

27. The Crown submission was that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) had been passed. The submission on behalf of the offender did not contest that but submitted that the just and appropriate sentence is an ICO, having regard to parity with Mr Crick, the objective seriousness of the offences and the offender’s subjective circumstances, including his limited criminal history and his early plea of guilty.

28. I do consider that the s 10 threshold has been passed. The starting point for Mr Crick’s sentence on the aggravated burglary charge was a sentence of 15 months’ imprisonment: see R v Crick [2021] ACTSC 106 at [29] That was then subject to a discount of approximately 20 per cent. While I consider that the sentence imposed upon Mr Crick was a very lenient one, I was not informed of any Crown appeal in relation to that sentence and it does have the effect that parity amongst co-offenders is a significant issue. In light of the sentence imposed upon Mr Crick, I consider that the appropriate starting point in the case of Mr Knight is a sentence of 15 months’ imprisonment which is reduced to 11 months and seven days on account of the plea of guilty. However, given the offender’s personal circumstances, his good prospects of rehabilitation and the fact that he is suitable for an ICO, I consider that it is appropriate that he serve that sentence by way of intensive correction. Gambling, drug use and possibly his mental health may be issues which would benefit from being addressed during his period of supervision. The sentence will be backdated by one day to take into account the period already spent in custody.

29. On the charge of assault occasioning actual bodily harm, that may be properly disposed of by a combination sentence involving a fine, a good behaviour order and a requirement to perform community service.

Orders

30. The orders of the Court are:

31. On the charge of aggravated burglary: the offender is convicted and sentenced to imprisonment for a period of 11 months and seven days to be served by intensive correction commencing on 21 July 2021 and ending on 27 June 2022.

32. On the charge of assault occasioning actual bodily harm: the offender is convicted, fined $800 with three months to pay, required to enter into a good behaviour order for a period of 12 months with a probation condition for a period of 12 months or such shorter period as determined by the Director-General and required to perform 50 hours of community service.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 23 August 2021