//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2019] ACTSC 275
defendant. Convictions recorded. Count 1: Good behaviour order under s 13 for 12 months (3 Oct 2019 to 2 Oct 2020). Count 2: Good behaviour order under s 13 for 2 years (3 Oct 2019 to 2 Oct 2021) with...
NQ committed two break-ins at the same flat, including entering or forcing the front door while occupants, including young children, were present. He pleaded guilty to one count and was convicted of the other after trial. Although the offences involved property damage and frightening conduct, the court found they were in the lower range of seriousness. Given NQ's age, stable employment, remorse, lack of relevant record, and strong prospects of rehabilitation (as assessed in an ICO report), the court considered rehabilitation to be determinative. The judge applied agreed discounts for plea and assistance (about 15% each) and sentenced NQ to two good behaviour orders (12 months and 24 months), recording convictions and imposing counselling and supervision conditions for the longer order (paras 59-64).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,664 words · generated 18/07/2026
2 cited instruments linked from this judgment.
NQ (aged 24) committed two episodes of offending directed at a flat occupied by a complainant, his father and two younger brothers on 28 and 30 July 2018. On 28 July the offender kicked in the front door, was confronted by the complainant's father, noticed small children were present and left (para 5). Shortly after midnight on 30 July he returned, removed the metal screen door insert, kicked the front door, engaged in pushing and shouting for several minutes, made threats while occupants (including two young children) called police, and then left; he had been drinking that day (para 6). The charges were burglary (s 311, Count 1) and aggravated burglary (s 312, Count 2). On the first day of the trial (28 May 2019) NQ pleaded guilty to Count 1; on 31 May 2019 a jury acquitted him of aggravated burglary but convicted him of burglary as a statutory alternative for Count 2 (paras 1-2, 33).
At sentencing the court received a Victim Impact Statement from the complainant's father describing fear, trauma to the children, and the family's loss of safety (para 7-8). An Intensive Corrections Order Assessment Report (ICOAR) was prepared. The ICOAR assessed NQ as suitable for an ICO but observed he might benefit from a less intensive supervisory option; it noted his full-time stable employment, supportive family, remorse and low risk of general reoffending, but recorded recent risky alcohol use and a single positive urinalysis for cocaine disclosed by NQ (paras 20-27). The parties agreed on approximate plea/assistance discounts (about 15% for each count), and the prosecution accepted leniency was appropriate given the offender's subjective circumstances (paras 34-36, 48).
After consideration of objective and subjective factors, statutory objectives and authorities, Loukas-Karlsson J concluded rehabilitation was the determinative consideration and that a non-custodial sentence was appropriate. The court recorded convictions and imposed a good behaviour order (GBO) of 12 months for Count 1 and a GBO of 2 years (reduced to 24 months after discount) for Count 2, with the longer order subject to counselling for alcohol and substances and supervision by the Director-General (paras 59-64).
The decision turned on three principal strands of reasoning.
Constraints on sentencing after a jury verdict. The judge began by applying the High Court’s exposition in Cheung (endorsing Isaacs) on the sentencing court’s role after a jury conviction (para 3). That framework permits the judge to determine facts relevant to sentence, but requires that the judge's view be consistent with the jury’s verdict and that adverse findings be made beyond reasonable doubt. The judge used that framework to make factual findings about the two incidents (paras 3-6).
Assessment of objective and subjective seriousness, discounts, and statutory purposes. The court identified the features that informed objective seriousness (repeat conduct, property damage, offences likely committed while premises occupied, trauma to victims, threatened violence, presence of young children) and placed the offences in the lower range (paras 9-12). Subjective factors strongly favoured the offender: no relevant criminal history, stable long-term employment and role as a team leader, pro-social family support, remorse, and low risk of general reoffending; the ICOAR recommended suitability for an ICO but also noted a less intensive option might be beneficial (paras 13-31, 26). The court applied established sentencing principles (including s 33 of the Sentencing Act and cases such as Pham, Hili, Dalgliesh, Markarian and Mill) and allowed approximately 15% discounts for plea and assistance consistent with ACT practice (paras 33-40, 52-53).
Rehabilitation as determinative of sentencing. Importantly, the court emphasised that where an offender has very good prospects of rehabilitation, supporting those prospects by selecting a non-custodial sentence can better protect the community than immediate imprisonment: rehabilitation may be the most durable guarantor of community protection (paras 56-59). On the facts, the ICOAR, employment, family support and demonstrated remorse, the judge found rehabilitation prospects sufficiently strong to justify GBOs with conditions rather than imprisonment or an ICO (paras 26, 48, 59-64).
Before this decision: ACT courts routinely applied the principles in Cheung and Isaacs about sentencing after jury convictions, and ACT sentencing practice required courts to consider objective/subjective factors, plea discounts, totality and alternatives to imprisonment (paras 3, 33-54). The judgment situates itself within a suite of ACT authorities and High Court guidance (Pham, Hili, Dalgliesh, Markarian, Mill) emphasising flexible sentencing, the limited utility of mere statistics, and the importance of rehabilitation where prospects are present (paras 40, 52-59).
After this decision: R v NQ does not alter legal principle. It applies existing precedents to a fact pattern of repeated low-range burglaries affecting a household with young children and demonstrates that, notwithstanding those aggravating features, a GBO with supervision and counselling may be just and appropriate where the offender has no relevant record and demonstrably good prospects of rehabilitation. Practitioners should see this as an example of the court’s readiness to make rehabilitation determinative in appropriate cases, consistent with previous ACT authority (paras 56-59).
Cheung/Isaacs constraints (para 3): "The view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury." Plain English: The judge can consider and make findings about facts for sentencing, but those factual conclusions cannot contradict what the jury found; where the judge makes adverse factual findings they must meet the criminal standard (beyond reasonable doubt).
On objective seriousness and features (para 9-12): The court refused to rely on crude 'range' labels and instead identified aggravating features, damage to property, repetition, likely occupancy and presence of children, trauma and threats. Plain English: Sentencing should be driven by the specific aggravating and mitigating facts of a case instead of mechanical labels like 'low' or 'mid' range.
Rehabilitation can be determinative (para 56): "Where a person has very good prospects of rehabilitation ... the Court also addresses likely future harm to the community." Plain English: If an offender is highly likely to reform, giving a sentence that promotes rehabilitation can better keep the community safe than putting them in jail immediately.
Sentences imposed (paras 62-64): The court details the GBO lengths and conditions. Plain English: The judge recorded convictions and ordered two supervised good behaviour orders, one year for Count 1, two years for Count 2 (with counselling and supervision required for the two-year order).
This decision is most relevant where:
The judgment itself situates the decision among prior ACT and higher court authorities (see the cases cited at paras 3, 9, 40, 52-59). The reasons rely on established High Court and ACT case law rather than creating new doctrine. The judgment does not discuss any subsequent appellate treatment of R v NQ (it is a first-instance sentencing decision). Accordingly, R v NQ should be treated as an application of prevailing sentencing principles in the ACT, useful as a local 'yardstick' for sentencing low-range burglaries where rehabilitative prospects are strong, but practitioners should look for appellate authority for any elevation of its precedential weight.
Degree of deference to ICOAR recommendations: The court accepted an ICOAR that both recommended suitability for an ICO and suggested a less intensive option might be equally beneficial (paras 20, 26, 50-51). How sentencing judges should balance a documentary assessment recommending an ICO against a report suggesting a less intensive option remains fact-sensitive and not precisely delineated.
Quantifying 'very good prospects' of rehabilitation: The judge regarded rehabilitation as determinative given the offender's circumstances (paras 56-59). There is no bright-line test for when rehabilitation will outweigh other sentencing objectives; courts will continue to exercise discretion case-by-case.
Use of GBOs vs ICOs where supervision and intervention are required: The court imposed GBOs with supervision and counselling conditions, notwithstanding the ICOAR’s view that an ICO was suitable (paras 26, 63-64). How broad or intrusive conditions attached to a GBO may be before they approximate the supervisory intensity of an ICO, and whether that impacts proportionality or practical enforceability, are questions for future cases.
Interaction of plea/assistance discounts with post-trial findings: The decision applied roughly 15% discounts for both plea and assistance (paras 33-38). How courts should calibrate discounts when one count is pleaded and another is the product of trial but involves agreed or conceded issues remains a live practical matter in negotiation and sentencing.
Victim impact and presence of children: The court treated the presence of young children as a significant aggravating feature (para 12) but nonetheless imposed non-custodial orders. Future appellate guidance may further delineate when the presence of vulnerable victims should push the balance towards imprisonment even with strong rehabilitative prospects.
In practice, R v NQ is instructive for defence practitioners seeking non-custodial outcomes where the offender has strong personal and rehabilitative indicators and for prosecutors and judges assessing when community-based orders sufficiently protect the public while acknowledging victim harm. The decision illustrates application of Cheung/Isaacs constraints, careful feature-based assessment of objective seriousness, and a principled preference for rehabilitation as a means of durable community protection where justified by the facts (paras 3-4, 9-12, 56-59).
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - jury trial - guilty verdict - burglary - where earlier pleas rejected - where no relevant criminal history - where assessed as suitable for an intensive corrections order - whether a good behaviour order is nevertheless appropriate
Cheung v The Queen [2001] HCA 67; 209 CLR 1
Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428
DPP v Jovicic [2001] VSCA 43; 121 A Crim R 497
Hili v the Queen [2010] HCA 45; 242 CLR 520
Hogan v Hinch [2011] HCA 4; 243 CLR 506
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; 166 CLR 59
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
R v Aleksovski [2017] ACTSC 163
R v Booth [2016] ACTSC 365
R v CA [2016] ACTSC 378
R v Catania [2017] ACTSC 264
R v Clarkson [2017] ACTSC 9
R v Coogan [2017] ACTSC 238
R v Crawford (No 3) [2017] ACTSC 99
R v Dugdale [2017] ACTSC 203
R v Eluga [2017] ACTSC 140
R v Forrest (No 3) [2017] ACTSC 168; 12 ACTLR 155
R v Fusimalohi [2015] ACTSC 220
R v Hill [2016] ACTSC 310
R v Hopkins [2004] NSWCCA 105
R v Howsan [2016] ACTSC 357
R v Isaacs (1997) 41 NSWLR 374
R v John (No 2) [2017] ACTSC 186
R v Johnson [2017] ACTSC 125
R v Lockwood [2018] ACTSC 288
R v McCarthy (No 2) [2016] ACTSC 375
R v McMahon (No 2) [2017] ACTSC 299
R v Meyboom [2012] ACTCA 48
R v NX [2017] ACTSC 72
R v Pham [2015] HCA 39; 256 CLR 550
R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327
R v TI [2017] ACTSC 129
R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103
R v Williams [2017] ACTSC 298
Sampson v De Haan [2016] ACTSC 327
Zdravkovic v The Queen [2016] ACTCA 53
1. On 28 May 2019, the first day of trial, NQ (the offender) pleaded guilty before the jury to an offence of burglary contrary to s 311 of the Criminal Code 2002 (Criminal Code) (CC2018/9610) (Count 1). The maximum penalty for burglary is 1,400 penalty units, 14 years' imprisonment, or both.
2. On that date, the offender pleaded not guilty to a second offence of aggravated burglary contrary to s 312 of the Criminal Code (CC2018/9611). On 31 May 2019, the offender was found not guilty of that offence, but guilty of burglary as the statutory alternative, pursuant to s 369B of the Criminal Code (Count 2). The maximum penalty for burglary is 1,400 penalty units, 14 years' imprisonment, or both.
3. The High Court in Cheung v The Queen [2001] HCA 67; 209 CLR 1 (Cheung) endorsed the NSW Court of Criminal Appeal's approach in R v Isaacs (1997) 41 NSWLR 374 (Isaacs) in relation to the Court's role in sentencing and interpreting a jury's verdict of guilty following a trial. The Court in Cheung at [14] quoted the summarised principles from Isaacs (at 377-378) as follows:
4. Taking into account these principles, I make the following factual findings.
5. The complainant had been in a relationship with the offender's sister and was known to the offender. On Saturday 28 July 2018, the offender went to the flat where the complainant lived with his father and two younger brothers to confront the complainant, as the offender believed the complainant had upset and assaulted his sister. The offender kicked the front door to the flat in and was confronted by the complainant's father. The offender then became aware that there were small children present and left. This conduct constitutes Count 1.
6. Around 12.45am on Monday 30 July 2018, the offender returned to the flat. He removed the insert of the metal screen door and again kicked the front door open. The complainant's father woke and ran to the door. An altercation ensued including pushing on either side of the front door. The offender was at the flat shouting for a number of minutes. The complainant, who was in the back of the flat with his two younger siblings, called the police. The complainant's father told the offender to leave, as the police were coming. The offender shouted further expletives then left. The offender confirmed in evidence he had been drinking alcohol on the day of this incident (T 225). This conduct constitutes Count 2.
7. In evidence before me was a Victim Impact Statement from the complainant's father, which was tendered by the prosecution. It included the following:
I ... and my three sons ... were shocked to have our door kicked in by [the offender] not once but twice. His threats of violence and his willingness to try forcefully gain access to our property was unwarranted and unfair. His wanton disregard for the small children of the house is troubling. Our home has not felt safe since the incident and it has had a profound [effect] on all of us. I'm not looking for retribution, I just want [the offender] to understand that his actions on that day and following night were extreme and not acceptable. My hope is that he will learn from this and become more measured and thoughtful when faced with [decisions] that may impact persons in the future.
8. The extent of the impact upon the victims was made clear by the Victim Impact Statement. The Court acknowledges the significant impact that the offences have had and continue to have on the victims. In particular, the Court acknowledges that these incidents were very frightening for the young children (T 8).
9. Counsel for the prosecution referred to the decision of R v Fusimalohi [2015] ACTSC 220 which accepted the NSW guideline judgement of R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 as useful in assessing the objective seriousness of the offence of burglary. In that decision, Grove J (with whom Spigelman CJ and Sully J agreed) at [48] outlines a number of relevant factors, including the following which the prosecution submitted were relevant in the present case: the offences were accompanied by damage to property, the offence was repeated and repeated on the same premises, the offences were committed when the premises was likely to be occupied, there was trauma to the victims and there was threatened violence. The prosecution also referred to considerations under s 33(1)(a),(e),(f),(i),(v) and (za) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
10. The prosecution submitted that the offences were at the lower end of the range of objective seriousness, but not the bottom (T 20.24). Specifically, it was submitted:
The bottom of the range would be kicking the door in and no one [is] home and then leaving. These [offences] went on for ... a couple of minutes, five minutes, yelling threats, people there. It's slightly better than the bottom (T 24.14-16).
[The offence] was committed at a time when on the first occasion [the offender] knew the family was home and on the second occasion he must have known they were at home [and] that there were two young boys there. ... So having the children present ... comes within the seriousness of knowing that there are people in the house (T 16.36).
No physical harm, just threats [were made], but in the presence of the children, the family at home, subsequently don't feel safe there anymore. It has to be below the mid-range or at the bottom half (T 19.39).
11. Counsel for the offender submitted that the offences were at the "absolute low end" (T 8.27) of objective seriousness, submitting (T 23.39):
There is only very limited entry, if any entry at all, into the premises ... but because he was on the porch and on the veranda at the time he kicked the door in, it's a technical burglary. So that technical burglary, in my submission, is bottom end of the range.
12. I find the offences to be at the lower range, taking into account the factors identified by both the prosecution and counsel for the offender as set out above. Nevertheless, it must be stated that references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful. As has previously been expressed in this jurisdiction, "it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case" (R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24] (Toumo'ua)). The identifying features are outlined above. In particular, the presence of young children is an aggravating factor of significance in relation to objective seriousness.
13. A number of subjective matters pertaining to the offender are contained in the Intensive Corrections Order Assessment Report (ICOAR) prepared for the offender. The offender is 24 years of age. He was born and raised in the ACT. He stated his parents divorced when he was 20 years of age and he is the middle child of three to his parents' union. The offender reported a safe and stable upbringing. The offender referred to his family in positive terms and claimed supportive relationships with his parents, siblings and grandparents in the ACT.
14. The offender reported two long-term relationships of between 18 and 36 months. He described himself as single at the time of the report due to complexities in his current relationship. He has two young children. The offender cares for his children when able.
15. The offender completed Year 12 and commenced a course at the Canberra Institute of Technology (CIT) in drug and alcohol. He deferred this program to pursue full-time employment in social work with youth programs with Winnunga Nimitijah Health Service (Winnunga AHCS). He remained in this position for 18 months, before moving into the home maintenance section, where he is currently a team leader. The offender has maintained this employment for approximately four years. The offender's employer confirmed this information and reported that the offender is a valued employee.
16. The offender's employment is currently full-time and provides the offender's primary source of income. He has an outstanding personal loan of approximately $14,000. The offender stated he is not experiencing any financial difficulties at this time.
17. The offender reported some associates that are involved in criminal activity. He stated he also has many friends in the community who are pro-social and supportive.
18. The offender is regularly involved in football and the gym, and reports no present physical health concerns. He stated he experienced periods of low mood in the 12-month period following the breakdown of the relationship with the mother of his two young children. He stated this was due to not being able to see his son on a daily basis, and dealing with the loss of the relationship with his partner. The offender has not sought professional assistance, and has turned to family for support. He stated his mental health is currently stable.
There are a lot of factors in his favour: the youth, the pro-social family support network, the employment - particularly the type of employment that he's doing. It speaks to a promising future for him. The only issue is that sort of risky behaviour in and around alcohol and around drugs.
Intensive Corrections Order Assessment Report (ICOAR)
20. Following the jury verdicts on 31 May 2019, I determined that I should give consideration to the sentence being served by way of an Intensive Corrections Order (ICO) (T 348.22). To that end I referred the offender for assessment.
21. The offender reported to the ICOAR author that he commenced a binge drinking pattern lasting approximately eight weeks after the recent breakdown of his relationship, including drinking heavily on weekends. The offender reported he was under the influence of alcohol during the commission of one of the offences currently before the Court. An alcohol screen conducted by ACT Corrections indicated the offender's alcohol consumption reflected a level of risky use that may benefit from a brief intervention.
22. The offender reported he had used cannabis infrequently during college and while studying at CIT. He stated that during that period he experimented with MDMA on social occasions. The offender reported his last use of either substance had been over two years ago. The offender was subject to urinalysis drug testing on 5 August 2019. The result was positive for cocaine. When questioned about the result, the offender disclosed that he tried the substance on one occasion with a friend after a football match and had not used the substance prior. On 12 August 2019, the offender was subject to a further urinalysis drug test and no illicit substances were detected.
23. Counsel for the offender submitted in relation to the positive urinalysis result that the offender does not have a problem, but instead that he (T 10.12):
[T]ried a bit of cocaine, he's regretted it, failed the urinalysis and then made full disclosure to the author...It's behaviour which in my respectful submission is completely out of character for this young man and he's unlikely to go down that path again.
24. The ICOAR author stated that the offender did not dispute the case statement. He identified his wrongdoing and unlawful behaviour and accepted responsibility for his actions. The offender articulated the impact of his offending on the victims, especially the young children present in the home, and the greater community. When asked how he could have acted differently, the offender said he may have helped his sister contact the police and domestic violence assistance service rather than "taking matters into his own hands".
25. The offender indicated he was intoxicated at the time of the second offence and identified that this may have had an impact on his behaviour. The offender stated he was ashamed and embarrassed by his behaviour.
26. The offender was assessed as being at a low risk of general reoffending. His criminogenic risks relate to recent use of alcohol and illicit substances, the reduction of which, the author suggested, may reduce his risk level. The offender was assessed as ready to undertake programs to address recent alcohol and substance abuse and the author recommended he undertake brief alcohol and substance use intervention if an ICO is ordered.
27. The ICOAR concludes that the offender is suitable for an ICO. However, the author also "respectfully recommended that [the offender] may receive as much benefit from a less intensive supervision option than an ICO with ACT Corrections."
28. In the course of the trial the offender gave the following sworn evidence about his remorse for the offences (T 258):
I would apologise for the sort of trauma his sons have gone through, to witness that. What he had to go through. It was all just out of pure anger, and I've learned my lesson since then.
29. I formed the view that the offender was genuine in giving his evidence before me and I therefore accept that the offender is remorseful. I take the offender's clear remorse into account on sentence.
30. In evidence before me were two references in support of the offender, including the following:
(a) A letter from Ms Julie Tongs OAM, Chief Executive Officer of Winnunga AHCS, dated 20 August 2019, which includes the following:
[He] has been employed with Winnunga Nimmityjah Aboriginal Health and Community Services (Winnunga AHCS) since 2015.
[He] secured a fulltime permanent position as the Winnunga AHCS Home Maintenance Program Manager in September 2016, a role he continues to successfully undertake.
I have found [him] to be respectful and professional throughout his employment at Winnunga AHCS, as well as reliable, punctual and thorough with all tasks required by his position. [He] supervises two staff members as part of the team with both reporting they enjoy working with [him].
(b) A letter from the offender's father, dated 22 August 2019, which includes the following:
Growing up and to this day, [he] has always been a thoughtful loving considerate and caring person. [He] has just recently become a father again to his second son and is a loving caring and dedicated father. He understands the role of being a good parent and setting a good example for his children. He is very committed and dedicated to his family and friends.
Through his work at the Aboriginal Medical Centre (Winnunga Nimmityjah) he is seen as a bit of a role model within the Aboriginal community and he totally accepts what he did was wrong and the potential damage this may have caused to his reputation in the community. He is very active in sports and plays rugby league for the local aboriginal team and plays in the local ACT touch football comp travelling interstate occasionally.
These offences are totally out of character for him to have committed. [He] has never been in trouble before and is remorseful and has taken responsibility for his actions. At the time of incident, [he] was experiencing personnel problems with his partner and the fact that his younger sister was involved may have contributed to him committing the offences.
I do believe he will not reoffend again he is very remorseful and taken responsibility for his actions. I am and the family are committed to supporting him to achieve the best outcome for him and his family and future plans.
31. I take these references into account on sentence.
32. The offender has no relevant criminal history. There is only a non-conviction in the Children's Court for minor theft.
33. The offender entered a plea of guilty for Count 1 on the first day of trial, 28 May 2019. It was accepted by the parties that pleas of guilty to burglary for each count were offered on 7 May 2019 (T 4.40 - 5.28).
34. Accordingly, the prosecution accepted that a discount was also appropriate for Count 2, but submitted that the Court deal with Count 2 by way of s 35A of the Sentencing Act, and submitted the following:
The way the offender conducted the trial was consistent with the negotiations at the case conference, that is, the issues were narrow, there was assistance to the administration of justice and ... any discount there can be reflected in that component rather than the plea of guilty component (T 5.36).
...
[T]he discount in relation to the administration of justice would be the same sort of discount that would have been for a plea of guilty (T 6.3).
35. Counsel for the offender submitted a 10-15% discount would be appropriate for Count 1, and a 20% discount would be appropriate for Count 2. The prosecution did not cavil with 15% discounts for each offence (T 14.33).
36. Pursuant to s 33(1)(j) of the 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. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo'ua at [41]-[48].
37. In Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 it was noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo'ua at [50].
38. I therefore allow a discount of approximately 15% for Count 1 for the plea of guilty and a discount of approximately 15% for Count 2 for assistance in the administration of justice.
39. The offender has spent no time in custody referable to this offence.
40. 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). There are a number of decisions of this Court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a "yardstick" as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54]. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428 at [4]:
Considerations 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.
41. The prosecution referred to a number of recent sentencing decisions from this jurisdiction which included the offence of burglary, identifying a range of sentences. These included the following: R v McMahon (No 2) [2017] ACTSC 299 (four counts, each receiving 18 months partially suspended), R v Crawford (No 3) [2017] ACTSC 99 (three counts, each receiving 12 months), R v Coogan [2017] ACTSC 238 (one count, receiving 18 months), R v Dugdale [2017] ACTSC 203 (13 counts, 12 receiving sentences of two years and six months, and one receiving two years), R v Catania [2017] ACTSC 264 (two counts, each receiving nine months), R v John (No 2) [2017] ACTSC 186 (one count, receiving 20 months), R v Eluga [2017] ACTSC 140 (12 counts with sentences ranging from 15 to 22 months), R v Aleksovski [2017] ACTSC 163 (five counts, each receiving nine months), R v Forrest (No 3) [2017] ACTSC 168; 12 ACTLR 155 (eight counts with sentences ranging from four to 18 months), R v TI [2017] ACTSC 129 (two counts, with sentences of nine and 15 months respectively), R v NX [2017] ACTSC 72 (four counts, each receiving 12 months), Toumo'ua (four counts, with three receiving sentences of two years and six months and one receiving one year and eight months), R v Williams [2017] ACTSC 298 (one count, receiving 15 months), (one count receiving six months, suspended), (one count, receiving 18 months and suspended with an 18 month GBO), (one count, receiving nine months), (one count, receiving two years and six months), (one count, receiving two years), (three counts, with sentences from four to seven months).
42. In particular, the prosecution identified the case of R v Johnson [2017] ACTSC 125, not as a comparable case, but rather to identify a case of burglary where harm is involved, rather than theft (T 22.27). In that case, the offender, who was aged 19 at the time of the offending, pleaded guilty to one offence of burglary. Three further offences were taken into account. The offender had entered the home of the victim looking for items belonging to him. In doing so, the offender was abusive and upended a couch, damaging a wall. The offender had a criminal history, substance abuse issues and a troubled childhood. After a discount of 15%, the offender was sentenced to a period of full-time imprisonment.
43. In the context of discussing comparable cases I have regard to what French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in Hili of consistency in sentencing at [18]:
[T]he consistency that is sought is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.
44. 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.
45. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victims are important sentencing considerations.
46. Rehabilitation is also an important consideration having regard to the offender's youth and lack of any relevant criminal record. The prosecution submitted the offender "demonstrates reasonably good prospects of rehabilitation, if he is rehabilitated that will provide the best protection for the community in the future".
47. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison.
48. Counsel for the prosecution submitted that "no other sentence than imprisonment is appropriate" (T 20.37) but that there may be "sufficient leniency to fully suspend the sentence" (T 21.8-9). While the prosecution accepted that the offender "is entitled to leniency" (T 12.45), it was submitted "the subjective circumstances would swamp the sentencing exercise ... if it wasn't a period of imprisonment" (T 13.21).
49. The prosecution further submitted at (T 20.37-43):
I am mindful, though, of that sort of escalation of sentences that can happen if an offender comes back before the court. ... they've got imprisonment one time, it seems that they get no leniency - or less leniency and it's imprisonment again. So if your Honour was considering the leniency for an ICO, that may be a factor that comes into your mind ... he's entitled to more leniency that just a simple ICO.
50. Counsel for the offender submitted the Court use its discretion to record a conviction with a good behaviour order for a period of 12 months with supervision in respect to drugs, alcohol (T 6.43; T 11.35) and counselling (T 12.5). Counsel for the offender submitted that the Court consider the following excerpt from the ICOAR:
In light of this, and in addition to the presence of protective factors such as his stable employment, his participation in pro-social leisure activities and the presence of a supportive, pro-social family, it is respectfully recommended that [the offender] may receive as much benefit from a less intensive supervision option other than an ICO affords.
51. Accordingly, counsel for the offender submitted the following in relation to alternatives to prison:
[T]hat [recommendation] is an acknowledgment by the learned author of this report that ... an ICO may be too intrusive for the punishment ... that fits the crime (T 7.26).
...
[R]ealistically...it's either a wholly suspended sentence - a very low fully suspended sentence - or a reasonably lengthy good behaviour order with the supervision and conditions which are enunciated in that report (T 24.40).
52. 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. It was also underlined in Markarian at [27]:
As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
53. 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] HCA 70; (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
54. In R v Lockwood [2018] ACTSC 288 at [51], I noted the following with regard to the offence of burglary:
There is a "significant range of available sentences" for burglary, though they are "generally within the range of imprisonment for from one year to two years and six months": Fusimalohi v The Queen [2012] ACTCA 49 at [51]; Heard v The Queen [2015] ACTCA 6 at [27]- [32]; Millard v The Queen [2016] ACTCA 14 at [44]- [45].
55. The prosecution also noted the case of DPP v Jovicic [2001] VSCA 43 for the proposition that burglary offences are a serious violation of the sanctity of the home.
56. I note the following observation of Murrell CJ in R v Hill [2016] ACTSC 310 at [48]:
Where a person has very good prospects of rehabilitation, by supporting those prospects in the sentence the Court also addresses likely future harm to the community and protection of the community.
57. I also note the following statement by 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.
58. In this context, the following observation by the NSW Court of Criminal Appeal in R v Hopkins [2004] NSWCCA 105 at [22] is relevant:
Where two highly relevant considerations are so totally incompatible as are the two considerations involved here, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative.
59. Taking into account all of the above, I have come to the view that it is appropriate to impose good behaviour orders for these offences. The offender has very good prospects of rehabilitation and by supporting those prospects in this sentence the Court also protects the community because rehabilitation in this case is the most durable guarantor of community protection.
60. It must be recognised by the Court that the offences committed against the victims have had a serious and significant impact upon them all. Both the short and long-term consequences of being the victim of these offences must be acknowledged.
61. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters of the offender.
62. The appropriate sentence for Count 1, the offence of burglary, is a good behaviour order for a period of 14 months reduced to 12 months on account of the discount for the plea of guilty.
63. The appropriate sentence for Count 2, the offence of burglary, is a good behaviour order for a period of 28 months reduced to 24 months on account of the discount for assistance in the administration of justice.
(a) I record convictions in relation to the offences.
(b) In respect of the offence of burglary (CC2018/9610), pursuant to s 13 of the Sentencing Act, the offender is sentenced to a good behaviour order requiring him to sign an undertaking to comply with good behaviour obligations for a period of 12 months, commencing on 3 October 2019 and ending on 2 October 2020.
(c) In respect of the offence of burglary (CC2018/9611), pursuant to s 13 of the Sentencing Act the offender is sentenced to a good behaviour order requiring him to sign an undertaking to comply with good behaviour obligations for a period of 2 years, commencing on 3 October 2019 and ending on 2 October 2021. The good behaviour order is subject to the additional conditions that:
- (i) The offender attend counselling targeted at addressing alcohol and substance issues as directed by the Director-General; and
- (ii) The offender be subject to the supervision of the Director-General for such a period that the Director-General considers appropriate and obey all reasonable directions of the Director-General.
I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson.
R
NQ [2019] ACTSC 275
(1997) 41 NSWLR 374
(1988) 166 CLR 59
Convictions recorded. Count 1: Good behaviour order under s 13 for 12 months (3 Oct 2019 to 2 Oct 2020). Count 2: Good behaviour order under s 13 for 2 years (3 Oct 2019 to 2 Oct 2021) with conditions to attend counselling for alcohol and substance issues and to be subject to supervision by the Director-General (paras 62-64).