Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33

Crimes Act 1900 (ACT) s 24

1. Following a trial, a jury found the offender guilty of three counts:

(a) One count of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (maximum available penalty 20 years' imprisonment); and

(b) Two counts of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (maximum available penalty five years' imprisonment).

2. The offences occurred in the early hours of 12 December 2013. The offender has been in custody since that date. Subsequently, he was sentenced in the Magistrates Court for an offence that occurred prior to the present offences. He received a sentence of six months, suspended after serving three months. Consequently, of the period that he has spent in custody since 12 December 2013, three months should be attributed to the Magistrates Court sentence. I will commence the subject sentences on 12 March 2014 to recognise the sentence imposed by the Magistrates Court.

3. The offender was well known to both victims. He was a neighbour and frequent visitor to the premises at which the offences were committed. The premises were occupied by Ms Fort. At one stage, the offender had stayed at Ms Fort's home. At the time of the offences, Ms Fort was living at her home with her partner, Mr Hancock, and with her 17-year-old son. On the day prior to the offences, there was a falling out between the offender and Mr Hancock concerning a pair of shoes.

4. On the evening of 11 December 2013, Ms Fort, Mr Hancock and Ms Fort's 17-year-old son watched television. They fell asleep in front of the television. The front door was closed but unlocked.

5. At about 4 am, the offender and an unknown male entered the premises. Ms Fort awoke to chaos. There was screaming. Ms Fort observed the offender in possession of what appeared to be a baseball bat or something similar. Either the offender or the co-offender must have struck Ms Fort before she realised it, because she later found that pain in her leg was due to a huge area of bruising occasioned by a striking. Ms Fort also suffered a very large dark bruise on the inner thigh of her right leg measuring 23 by 11 centimetres and swelling of the left wrist.

6. It seems that the main target of the home invasion was Mr Hancock. He was struck by the offender several times, to both the body and the head. He bled profusely, adding to the terror experienced by the occupants. He sustained a 10-centimetre laceration to the left side and top of his head. There was a linear left frontal skull fracture extending to the skull base. Bruising and haematoma was present in the area of the left eye, as well as bruising on the left and right legs and a lump on the left forearm.

7. The aggravated burglary was objectively very serious. It was a violent home invasion. It was pre-planned. The offender was armed. The aggravating feature relied upon to sustain the offence is that the offender was armed. However, in relation to objective seriousness the prosecution is entitled to rely upon the additional feature that the offence was committed in company. A series of criminal acts followed the entry into the premises. The reason for the entire incident, as far as one can gather, was a falling out over a pair of shoes. The timing of the incident is significant. It was at about 4 am. The offender must have gone to the premises to seek out Mr Hancock, knowing that it was highly likely that he would be at home and asleep. Had he thought about it, the offender would have realised that at 4 am the premises would also be occupied by Ms Fort and possibly by others, all of whom may well have been asleep. The timing and the location of the burglary (residential premises) contribute to the objective seriousness of the offence. The presence of a 17-year-old boy adds to the seriousness, regardless of whether the offender knew that he would be present.

8. At the time of the offences, the offender was on conditional liberty. In August 2013, he had received a 24-month good behaviour order in relation to the unlawful possession of stolen property.

9. Each offence of assault occasioning actual bodily harm is objectively serious, particularly the offence involving Mr Hancock. The injuries that were sustained were very serious, within the spectrum of what might constitute actual bodily harm, and they resulted not from one strike but from a number of strikes.

10. In these circumstances, general deterrence is a very important sentencing objective.

11. The circumstances in which the assaults were committed were such as would inspire terror in any victim. The Court received victim impact statements indicating that the victims suffer very serious and ongoing problems as a result of the home invasion. This is entirely to be expected.

12. In the case of Mr Hancock, he has difficulty sleeping, suffers nightmares and flashbacks, and he attributes the incident to the breakup of his relationship.

13. Ms Fort suffers extreme anxiety and she is still bruised (in a physical sense) from the severe blow inflicted upon her leg. She has become so concerned about her appearance that she has left her employment, causing considerable financial stress. In addition, she feels guilty about the impact of the criminal justice process upon the children of the offender because, in the past, she was close to both the offender and his children.

14. The offender is now 29 years of age. He is the third of seven children. In the past he had a poor relationship with his parents and for five years had no contact with them. However, since his arrest on these matters, he has resumed contact with his father.

15. The offender has three children, who are aged between two and 16 years. He maintains good contact with the youngest child, with whose mother he continues to have a good relationship. Although they are no longer partners, she has supported him through the proceedings, and she has taken the child to visit him in custody. The offender has been trying to re-establish contact with his two older children, who currently reside with their maternal grandmother.

16. The offender has used drugs since he was about 16 years old. He has engaged with drug and alcohol treatment while in custody, although treatment has been disrupted by the fact that the offender has moved to an area of protection within the custodial setting.

17. In the past, the offender has worked as a brickie or brickies labourer. Unfortunately, he has lost part of his right finger and right thumb and that injury precludes him from working as a brickie. However, he can work as a brickies labourer.

18. At the time of the offences, the offender was at a very low point in his life. He was, in effect, homeless. He was on a disability support pension. He had debts of about $10,000. About $3,000 of those debts related to traffic fines.

19. The offender has a criminal history involving relatively minor matters. There has been no matter involving violence, other than an assault in 2003, which must have been minor because it resulted in a 12-month good behaviour order. The current period in custody is the offender's first period in custody.

20. In sentencing the offender, the Court must have regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). A number of those purposes are relevant to the current sentencing exercise. General deterrence is of considerable importance. Home invasions are abhorred by the community and it is important to send a strong message in relation to the unacceptability of such conduct, particularly when committed in the circumstances of the subject offences. Punishment, denunciation and accountability are all important sentencing purposes. I also have regard to the sentencing purpose of rehabilitation. The offender is 29 years of age, so he is a relatively mature person. His prior criminal history is relatively minor and it is not characterised by violence. In those circumstances, and having regard to the fact that the offender may receive drug and alcohol treatment in custody, there is reason to hope that he can rehabilitate and avoid committing serious criminal breaches in the future.

21. The Court must consider the relevant sentencing purposes in s 33 of the Sentencing Act insofar as they are relevant and known to the Court, and anything else that may be relevant. I have referred to the relevant matters.

22. As the matter proceeded to trial, there is no discount for a plea of guilty.

23. Counsel for the offender submitted that, rather than setting a sentence and imposing a non-parole period, as this is the offender's first period in custody, and having regard to the prospects of rehabilitation, it may be more useful to impose a combination sentence including a periodic detention order. I consider that approach to be appropriate. A period of periodic detention will allow a relatively early return to the community and offer the prospect of the offender re-engaging with the community and undertaking employment.

24. Nevertheless, the seriousness of these offences, particularly the offence of aggravated burglary, calls for significant sentences of imprisonment involving a significant element of punishment.

25. The offender is convicted of each matter and I impose the following sentences:

(a) For the offence of assault occasioning actual bodily harm in relation to Ms Fort, the offender is sentenced to two years' imprisonment from 12 March 2014 to 11 March 2016.

(b) For the offence of assault occasioning actual bodily harm in relation to Mr Hancock, the offender is sentenced to two and a half years' imprisonment from 12 September 2014 to 11 March 2017.

(c) For the offence of aggravated burglary, the offender is sentenced to imprisonment for a period of five years from 12 March 2015 to 11 March 2020.

That is a total period of imprisonment of six years.

26. The offender is directed to serve the first two years and three months by way of full-time imprisonment, i.e. the period from 12 March 2014 to 11 June 2016. The period of 15 months from 12 June 2016 to 11 September 2017 is to be served by way of periodic detention. The remainder of the sentence for aggravated burglary (the only sentence that will not have expired by 12 September 2017) will be suspended from 12 September 2017 upon the offender entering into a good behaviour order. In relation to that sentence, pursuant to s 12 of the Sentencing Act, I make a suspended sentence order to operate from 12 September 2017 and I make a good behaviour order for a period of two and a half years from 12 September 2017. The good behaviour order is subject to the conditions that, within seven days of the commencement of the order, the offender is to report to the Director-General of Corrective Services at Eclipse House, and he is to submit to the supervision of Corrective Services for as long as Corrective Services considers it necessary (but for no longer than the term of the order).

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.