R v Rogers [2014] ACTSC 124

[2014] ACTSC 124

SENTENCE - offences of unlawful confinement and assault occasioning actual bodily harm - offences committed against partner in her home while her five-year-old son in the home - history of domestic violence offences - history of alcohol abuse and use of amphetamines - abuse of prescribed dexamphetamines - dexamphetamine use linked to previous psychotic episode - offender declined help from ACT Health to address amphetamine abuse - offender affected by dexamphetamine at time of offences - mood stabilising drugs prescribed in custody - no re-offending since release on bail - steady employment - relevance of mental health problems to culpability - seriousness of offending - need for further time in custody.

Crimes Act 1900 (ACT)

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

Re Robert John Talbot v R [1992] FCA 5

• for unlawful confinement - 25 months imprisonment reduced from 30 months;
• for the first offence of assault occasioning bodily harm - 18 months imprisonment reduced from 21 months; and
• for the second offence of assault occasioning bodily harm - 20 months imprisonment reduced from 24 months;

2. The first assault occasioning actual bodily harm sentence will be accumulated so as to add three months to the unlawful confinement offence and the second assault occasioning actual bodily harm sentence will be accumulated so as to add 10 months to the total sentence. This gives a total sentence of 38 months.

3. That sentence is backdated to 15 December 2013 to take account of pre-sentence custody.

4. The sentence will be served in full-time custody until 14 December 2014, taking the total time in full-time custody to one year.

5. The next 12 months of the sentence (15 December 2014 until 14 December 2015) will be served as periodic detention, the first period starting on Friday 19 December 2014, and the last period ending on Sunday 13 December 2015.

6. From 15 December 2015, the remaining 14 months of the sentence will be suspended.

7. The offender is ordered to sign a good behaviour undertaking for a period of three years from 14 December 2014, with security in the amount of $2,000. The good behaviour order is subject to the conditions that the offender:

• accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate;

• undertake such counselling, courses, programs or treatments as directed by his supervising officer.

1. Jason Rogers has pleaded guilty to two charges of assault occasioning actual bodily harm and one of unlawful confinement. There are also two offences of damaging property to be taken into account in sentencing for the unlawful confinement offence.

2. These offences arise under ss 24 and 34 of the Crimes Act 1900 (ACT), and carry maximum sentences respectively including imprisonment for 5 and 10 years. The damage property offences arise under s 403(1) of the Criminal Code 2002 (ACT), and carry a maximum penalty including 10 years imprisonment.

3. The incidents from which these charges arose took place in November 2011.

4. They are described in the agreed statement of facts as follows:

Mr Rogers and KN met in Young, New South Wales, in November 2010 and shortly afterwards commenced a sexual relationship. KN had a five year old son from a previous relationship. In June 2011 Mr Rogers moved into KN's house in Flynn in the ACT.

At about 9.00pm on Sunday, 6 November 2011, KN walked into her bedroom after putting her son to bed. Mr Rogers was sitting on the side of the bed with his back to her and playing with a black aerial that had been snapped off her Ford Fiesta sedan. KN sat on the bed and asked Mr Rogers what the matter was.

Mr Rogers said, "I'll show you what's the matter."

Mr Rogers then sat on KN's stomach and held both her arms above her head. He tied both of KN's wrists to the bed using ties from their bathrobes.

KN tried to resist him but Mr Rogers was too strong. KN said, "what are you doing? What have I done to you?"

Mr Rogers said, "you've hurt my feelings. Now you have to pay. I'm going to take you for a drive to the forest and I'm going to kill you."

KN struggled against the ties but could not get free as Mr Rogers was sitting on her the whole time. Mr Rogers was yelling at her and slapped her across the face several times.

Mr Rogers then grabbed a piece of clothing out of the drawers and sat back on top of KN and stuck the piece of clothing into her mouth tying it tightly around the back of her head. KN was gagging and choking. She thought she would suffocate.

At some stage Mr Rogers hit KN's thigh with the car aerial. KN felt a stinging pain to her thigh.

Mr Rogers picked up a packet of matches from the bedside table and said, "have you ever played 'light the match' game?"

Mr Rogers lit a match and held it against KN's face. KN felt the heat from the flame and thought her fringe was going to catch fire.

Mr Rogers dropped the match on the floor and left the room. A short time later he came back with a jug of water and stood next to the bed over KN. He threw the water over KN's face and she began to choke severely. Mr Rogers took the gag out of her mouth and untied her hands. However, KN was so scared she did not move.

About this time KN looked at the clock and saw that it was about 2:00am. KN was left with wrists that were sore and red. Her right wrist had a cut from one of the ties.

Mr Rogers opened the glass door from the bedroom to the front of the house and paced outside for a long time as though he was looking for someone. At the time [he] was holding a small fruit knife (about 10cm long) and a large chef knife (about 25cm long) in his hands.

On Monday, 7 November 2011, Mr Rogers brought KN flowers and apologised for the previous night. [He] stated he was embarrassed about what he had done and asked KN not to tell anyone because he would get in trouble.

KN did not tell police because she was afraid Mr Rogers would hurt her if he found out. That evening they spent time together and over the next few days the relationship returned to normal.

At about 5:00am on Friday, 11 November 2011, KN woke to a stinging feeling on her face. Mr Rogers was leaning over her and slapping her in the face. There was no apparent context for what was occurring.

Shortly afterwards KN's son ... walked into the room. However, Mr Rogers screamed at [him] to go back to his room. [The boy] ran down the hallway screaming. Mr Rogers yelled at him to stay in his bedroom. KN went to follow [her son], however Mr Rogers pointed to her and said, "no, you just stay where you are." KN was scared and intimidated and did not move. Mr Rogers followed [the boy] to his room and then returned to KN. Mr Rogers then screamed at KN. KN ran out of the house and hid in a neighbour's front yard. A short time later she saw Mr Rogers leave the house and drive away so she ran back into the house.

At the time, [her son] was standing at the front of the house crying and saying, "Mummy, Mummy." KN gathered some of [his] belongings and put [her son] into the back of the car and was about to leave when Mr Rogers drove into the driveway. Mr Rogers parked the car behind KN's car. He walked to KN and grabbed her shoulders and pushed her backwards causing her head to hit the side of her car. KN felt instant pain to her head.

KN told [her son] to get out of the car and go to his room.

Mr Rogers grabbed KN by the hair and dragged her into the lounge room where he pushed her onto the floor. He assaulted KN. This included grabbing at her throat and kicking her. At times KN felt like she was suffocating. She yelled out so neighbours would hear. At one point in the assault Mr Rogers grabbed KN and forced her face under a running tap in the kitchen. The event moved to the bedroom where he slapped KN on a number of occasions. He yelled threats as he did so. KN was put in fear by [Mr Rogers'] actions and by the threats he was making. After Mr Rogers got off KN he told her to get changed. Soon he lay down on the bed and went to sleep.

KN drove off to a work commitment but was unable to cope with work.

She was distraught and when contacted by a friend she told her what had happened. The friend persuaded her to go to police. Late that morning she provided the police with a statement detailing what had happened.

KN was taken to the Canberra Hospital to be examined. Bruising and superficial bruising to the lower lip was noted. Her right ear was bruised. The examining doctor recorded generalised jaw tenderness and multiple bruises were seen on the forehead and upper and lower limbs. KN's left eye area was observed to be swollen and bruised. She was observed to be distressed, intermittently teary and hyperventilating.

5. Mr Rogers was charged on 11 November 2011 with a number of offences including unlawful confinement, and was remanded in custody. After he was committed to the Supreme Court for trial, several ex officio charges were added to the indictment, which contained the current offences as well as two threat to kill offences and another damage property offence. He was released on bail on 24 February 2012 after having spent 106 days in custody.

6. Pleas of not guilty were maintained for nearly two years until on 21 October 2013, the date scheduled for Mr Rogers' trial to begin, guilty pleas were entered in the Supreme Court to the three current offences, and the prosecution abandoned the other charges, apart from the scheduled ones. It is apparent that the guilty pleas reflected some kind of agreement with the prosecution about which charges would proceed. There will be a plea of guilty discount applied, although not the highest discount.

7. The offences were all serious examples of the relevant offences. Both assaults were at the higher end of the spectrum of assaults appropriate for a charge of assault occasioning actual bodily harm, especially given the extended period over which the assaults took place and the fear of more serious assaults that seems to have been present throughout. The presence of KN's son, and his fear and distress at the events he witnessed, seriously aggravated the second assault occasioning actual bodily harm. The unlawful confinement offence must have been especially terrifying to the victim. All the offences were further aggravated by the breach of trust that is in my view inherent in most if not all domestic violence offences, especially those that occur in the privacy of a home shared by the victim and the perpetrator, a circumstance which of itself - that is the sharing of the home - seems to me to establish a mutual relationship of trust.

8. Two victim impact statements were tendered, one from the victim, KN, and one from her son who is still only seven or eight years old.

How does one briefly summarise all of the devastating effects it has had on one's life? How do you express in such a limited language how profound and immense the feeling of fear is and staring death in the face. Not knowing if you are going to survive and the constant thought when I'm gone who will love my child.

No words can describe the intensity, which any one person could relate, take your worst most horrifying nightmare, the one that wakes you up in the middle of the night in a sweat and cold panic, the one that wakes you with a crushing fear bearing down on you so hard that you can't scream out that your voice is frozen with fear and your body is a lead weight unable to move under crushing weight of sheer terror. How can any one person describe what fear leaves within your body?

Even more tragic to explain are the effects those acts by Jason Rogers will have on my five year old son. The sound of my son crying and the feeling of helplessness as my son watched the beating and choking of his mother and knowing his mother may not live.

Although the trauma will live with me for every breathing minute of my life and I seldom go for more than a few minutes without some image or feeling of suffocation popping into my mind. Whether it is the image of his face or the sound of my screaming child or the feeling of complete helplessness. I will be forever a prisoner of my own thoughts. I am unable to sleep and, when sleep does come horrifying nightmares often interrupt it.

The stress and strain has been felt also by my child. He has developed behavioural and emotional difficulties after witnessing my abuse. His responses vary from verbal behavioural traits to physical aggression at times biting, kicking and punching. After what my child witnessed, he has been left with a great deal of emotional scars that I feel he will carry with him into adulthood. He is depressed, anxious, has low self-esteem and self-worth, carry a great deal of buried anger, feelings of deep loss, internal deprivation, sadness and emptiness that can't be explained.

I will forever live in constant fear that he will come back and kill my child and me.

10. KN also noted her need for time off work, her lack of trust in others, her frustration with the slow progress of the legal system and the financial impact of her experiences with Mr Rogers. She concluded:

I could go on forever about the impact Jason Rogers' actions have had on the lives of my son and me. He has changed our whole world, he has taken away our notion of security, driven us from a life we loved, left us with emotional scars bigger than you can imagine and has made us both prisoners for life. I will never stop living in the shadow of what he has done. He has forever changed the path for us and will always occupy a corner in my mind. I will never be truly free. He broke my dreams and destroyed the life I wanted for my son and myself. For that forgiveness may never come.

When my mum got hurt, I felt pretty sad, and as a witness, and it was scary when my mum got hurt - it was scary, and I didn't like it. My mum tried to protect me and we tried going away, but he was around at the front gate and he wouldn't let us go. I was only five years old at the time, but now I'm way older.

But now, I'm starting to get better because I'm taking some medication stuff - itt stops my anger problems because I get angry about what happened - I start doing stuff and I don't know what it really is - I kick walls, flip tables, breaking stuff. Sometimes I yell and scream mostly at my teachers when I get angry at school.

There are times when I see the event in my head and it makes me upset and it makes me want to go away from that place that I'm at, and it makes me sad. Sometimes I have bad dreams, but now I haven't had any nightmares because I sleep with a puppy. He makes me feel happy and we have a big dog outside and high fences, and we have bolts on our door.

After it first happened, my mum was very sad and sometimes she still gets sad.

12. Mr Rogers said that he does not remember any of the offences, or indeed the several days between the first and second incidents, and "does not know what happened" or, presumably, why it happened. In oral evidence, Mr Rogers said that he had not yet had a chance to apologise for what he did to KN and for the effect on her son, and that he wished the incidents had never happened at all. In cross-examination by the prosecutor, he conceded that he had not expressed any regret or remorse over the last two years during which he has been on appropriate medication and had not been offending. Mr Rogers did not, however, agree that he was only expressing remorse in the hope of a more lenient sentence. The Pre-Sentence Report author described Mr Rogers as displaying limited insight into his offending and the prosecutor submitted that I should give little weight to the expressions of remorse that were made for the first time at the sentencing hearing.

13. Mr Rogers has a lengthy criminal history in New South Wales. Unfortunately, the New South Wales "bail report" that is these days provided by the AFP in relation to New South Wales offending is very difficult to interpret, and at the sentencing hearing there was initial disagreement between the parties about what information was actually conveyed by the New South Wales report.

14. However, I understand there now to be agreement that Mr Rogers' record shows nine common assaults, one assault occasioning actual bodily harm, two breaches of domestic violence orders, and one offence of stalking.

15. Several of the earlier assaults received non-custodial sentences such as fines and community service orders. Mr Rogers has only served one prison sentence in custody, being the 12-month non-parole period of a 16-month sentence that included concurrent sentences for three of the common assaults, the two breaches of domestic violence orders and the assault occasioning actual bodily harm.

16. Mr Rogers gave evidence in which he conceded that he had committed one assault on a partner, but claimed that another assault conviction reflected a claim of assault by his ex-wife made after he had kept their two children with him for too long.

17. He said that at least one of the convictions for breach of a domestic violence order reflected what he called a "rocky" relationship, during which he and his estranged partner had continued to see each other despite the currency of the domestic violence order - Mr Rogers said that "it takes two to see each other", but without explaining how or why a "consensual" breach of the domestic violence order had come to police attention or had resulted in a 12-month custodial sentence.

18. Pressed by the prosecutor, Mr Rogers said he was not trying to minimise his past record and that he takes full responsibility for his actions.

19. I am satisfied, however, that Mr Rogers' record, even if there is more detail that could be explained, indicates a person with a tendency to resort to violence in a range of circumstances.

20. A Pre-Sentence Report was prepared by New South Wales Corrective Services on behalf of ACT Corrections. It provided the following general information:

Mr Rogers is a 41 year old single man who resides with a friend in private rental accommodation in Young.

The second of four children Mr Rogers was raised in a stable home environment in Sydney. He described a close and supportive relationship with his parents who currently care for his two children and reside in Queensland. Mr Rogers maintains regular contact with his siblings.

Mr Rogers appears to have a history of dysfunctional relationships and has been convicted of previous domestic violence offences. He was married for a period of 5 years however the relationship was volatile and unstable. There are two children from this union who are in the care of his parents. Mr Rogers maintains regular telephone contact with his children and reported that due to the restrictions of bail conditions he has been unable to visit the children.

Mr Rogers left school at the age of 16 years after completing Year 10. He described his secondary education in negative terms and claimed that his life started to deteriorate whilst attending school. Mr Rogers stated that he became involved in a negative peer group and started to abuse illicit substances.

Since leaving school Mr Rogers has a history of employment in labouring positions, truck driving, the hospitality industry and as a farm hand.

Mr Rogers is currently a part owner and operator of a fast food outlet in Cowra.

In 1997 Mr Rogers was diagnosed by a psychiatrist with Attention Deficit Disorder and was medicated. Mr Rogers claimed that the medication assisted him however he did not continue with it.

In 2008 Mr Rogers engaged with mental health services and was diagnosed with depression. He was prescribed anti depressant medication and received counselling.

Mr Rogers claimed that he was medicated on dexamphetamines at the time of the offence due to being diagnosed with bi polar however this was unable to be verified as enquiries indicated that the prescribing Psychiatrist is no longer practising.

During the adjournment period Mr Rogers self referred to mental health services and was assessed by a psychiatrist. He has continued with counselling and medication reviews.

21. Mr Rogers' friend and housemate, Rodney Walsh, gave evidence that he had known Mr Rogers for about six years. Mr Rogers had initially come to live on his father's property which Mr Walsh was leasing, and later worked for Mr Walsh. Earlier in that period Mr Rogers was a drinker; he had committed offences of assault and contravention of domestic violence orders against his then partner. After being released from prison in 2010, Mr Rogers had come to live with Mr Walsh, but there had been no drinking since then. For some time, Mr Walsh and Mr Rogers had operated food services at the Young Bowling Club, but in October 2013, after Mr Walsh had a heart attack, they had left there and bought a fish and chip shop in Cowra, which the two of them have been running.

22. Mr Walsh confirmed that Mr Rogers had told him that he did not remember anything about the current offences.

23. Mr Rogers was diagnosed with bladder cancer in late 2010, for which he underwent surgery to remove a tumour, and a dose of chemotherapy, but mental illness and associated inappropriate drug use seemed to be Mr Rogers' personal circumstances that are most relevant to the current offences. I have already noted the Pre-Sentence Report comments about mental illness. As to drug use, the Pre-Sentence Report author reported:

Community Corrections records indicated that Mr Rogers has a significant history of illicit substance and alcohol abuse. During periods of previous supervision he has engaged in the methadone program and drug and alcohol counselling to address his illicit substance and alcohol abuse.

Mr Rogers reported that alcohol and illicit substance use has not been problematic for him during the past 2 years.

24. The defence led further evidence about Mr Rogers' mental health and his use of amphetamines over time, and particularly in the months leading up to the offences.

25. Mr Rogers gave evidence that he believed he had a mental illness. As a child he had problems with concentration and focus which led to frustration and anger. He had seen various psychologists but apparently to no avail.

26. As an adult, Mr Rogers' anger management issues had caused problems in relationships. It was not clear when he began amphetamine use but Mr Rogers is recorded as telling Dr Kasinathan, in December 2011, that he "was prescribed Dexamphetamine many years ago in Sydney, took more and more tablets", and then turned to use of amphetamine street drugs.

27. Mr Rogers said that after he moved to Canberra he used "street amphetamines" a few times before consulting Dr Robert Tym on a referral from his GP. According to Mr Rogers, Dr Tym, in a 20-minute consultation, did not ask him if he had previously used amphetamines but prescribed him 300 tablets, 5mg, to be taken as needed, in whatever quantity he needed. On three subsequent visits, the last on 19 June 2011, he had been prescribed a further 300 tablets, in consultations lasting no more than a few minutes. By then, he had retained a large proportion of the total 1,200 tablets of dexamphetamine that had been prescribed; Mr Rogers said he was "saving them up".

28. KN had also seen Dr Tym once, and Mr Rogers had acquired the 200 tablets she had been prescribed.

29. Towards June 2011, Mr Rogers' use of dexamphetamines escalated.

30. Hospital notes tendered on behalf of Mr Rogers describe an incident in June 2011 in which Mr Rogers suffered a paranoid psychosis which was provisionally diagnosed as amphetamine-induced (the Canberra Hospital notes indicate that it resolved without anti-psychotic treatment). He had had to be restrained using handcuffs and capsicum spray so he could be transported to the Canberra Hospital for treatment.

31. Mr Rogers said that since seeing Dr Tym he had suffered intermittent paranoid symptoms. Mr Rogers' medical records contained several references to symptoms consistent with bipolar type 2 disorder.

32. After the June 2011 episode, Mr Rogers was encouraged by treating health professionals to trial abstinence from dexamphetamines, but there is no evidence that he did any such thing. Instead, an ACT Health assessment conducted at the AMC in January 2012 noted previous high use of amphetamines but also that Mr Rogers did not believe this was an issue. He did not believe he would need help to stop. It also noted limited insight into mental illness and poor judgment evident throughout the assessment interview.

33. Defence counsel submitted that Mr Rogers' continued use of amphetamines, after being warned about the risk following the June 2011 episode, suggests an addiction; this might in fact be the correct position, but it is inconsistent with Mr Rogers' own views as reported in the January 2012 ACT Health assessment, at which point Mr Rogers had rejected any suggestion that his amphetamine use might be beyond his control.

34. Mr Rogers said that after his remand in custody for the current offences, he had sought out Dr Kasinathan, who is a Consultant Forensic Psychiatrist with ACT Mental Health Services, in the hope of getting help with the problems which caused the same bad things to keep happening in his life. In January 2012 Dr Kasinathan advised that Mr Rogers had been prescribed two mood-stabilising drugs, Lithium and Risperidone. Mr Rogers said that since his release on bail he has abstained from alcohol and from all non-prescription drugs, and has been subject to New South Wales Mental Health supervision in Young. He says that his current prescription medication has had a huge effect on his life; he is no longer short-tempered and jumpy, and can concentrate and complete tasks.

35. Defence counsel referred me to the case of Re Robert John Talbot v R [1992] FCA 5 (Talbot), concerning an offender who had committed an attempted aggravated robbery and an aggravated robbery, both in pharmacies, in pursuit of pethidine to satisfy an addiction that had been medically acquired and then re-stimulated by the medical administration of pethidine, apparently against the offender's wishes, to treat an attack of renal colic only a short time before the offences were committed. As I read that case, the Court of Appeal overturned a prison sentence and instead imposed only a good behaviour order.

36. I am not convinced that the current case is relevantly comparable to the matter of Talbot. In contrast to the evidence available to the court in Talbot, the evidence before me of efforts by Mr Rogers to address any dexamphetamine addiction before these offences is scant. Furthermore, the current offences were not committed in an attempt to satisfy an addiction, but were a consequence of what appears to have been a positive decision to acquire, accumulate and then use a drug which Mr Rogers was already aware put him at risk of dangerous behaviour to himself or those around him. In that context, I note Mr Rogers' evidence that his relationship with KN had always been rocky, and that in the period leading up to November 2011, there had been a lot of arguing and he had been using dexamphetamine. He could remember sitting on the bed playing with the car aerial which he had snapped off during "a bit of an episode" earlier, but couldn't recall any of the assaults on KN and had no idea why he would have acted as he did.

37. General deterrence, and indeed denunciation, are extremely important for domestic violence offences, and having regard to Mr Rogers' criminal history, specific deterrence seems to me also to be still necessary. I accept the prosecutor's submission that having regard to Mr Rogers' age, his repeat offending and his repeated failures to take advantage of rehabilitation opportunities offered by good behaviour orders, Mr Rogers' rehabilitation is not the highest priority in this sentencing, although clearly Mr Rogers has some capacity to modify his behaviour and there is no doubt that his rehabilitation would be in both the community's and his own interest.

38. I accept that Mr Rogers seems to have a mental disorder, with symptoms suggesting bipolar 2 disorder.

39. I accept that he may not have had the most comprehensive or effective support from the mental health system over many years while he offended in various ways and, according to him, sought a solution to what he claims to have recognised as a behavioural problem.

40. However, even accepting that Mr Rogers initially saw Dr Tym in good faith on a referral from his GP, and that Dr Tym's approach to prescribing dexamphetamine raises serious questions about his professional practice, Mr Rogers' own evidence satisfies me that, having consulted Dr Tym, he was taking advantage of Dr Tym's inappropriate behaviour to acquire large quantities of amphetamines as a substitute for the street amphetamines he had previously used.

41. While Mr Rogers now criticises Dr Tym for handing out prescriptions for dexamphetamine on the basis of excessively brief consultations, he does not claim to have looked for another doctor who might have tried to treat his mental and behavioural problems in a professional way; rather, he obtained repeat prescriptions from Dr Tym, hoarded them and then used them in a way that seems to have produced at least one dangerous episode of psychotic behaviour as well as the two incidents giving rise to the current charges, as to which the most favourable inference for Mr Rogers is that they also involved drug-induced psychotic behaviour.

42. I agree it is unfortunate for many reasons that the mental health authorities did not investigate Dr Tym after Mr Rogers' June 2011 episode, but I do not see that those authorities carry any of the blame for Mr Rogers' continued use of dexamphetamines after being warned off them in June 2011.

43. Furthermore, the current incidents happened only five months after the incident diagnosed as involving an amphetamine-induced psychosis, after which Mr Rogers was warned to abstain from dexamphetamine. By his own admission he did not do so, and I am satisfied beyond reasonable doubt that the continued use of dexamphetamine in the period leading up to these offences was the primary cause of the incidents.

44. Counsel mentioned the Victorian Court of Appeal case of R v Verdins [2007] VSCA 102; (2007) 16 VR 269 which identifies, at 276, six ways in which mental illness may be relevant in sentencing. The only relevant submission, however, seems to have been that the effect of Mr Rogers' mental difficulties was to lead him to the use of amphetamines and that that in turn reduces his moral culpability for an offence that seems to be largely attributable to amphetamine abuse.

45. I accept that some concession needs to be made for what appear to be long-standing behavioural and mood difficulties suffered by Mr Rogers, and for the fact that he seems to have begun amphetamine use on medical advice. However, against this must be set the absence of evidence for any genuine addiction to amphetamines as distinct from evidence for an enthusiasm for amphetamine use, and the absence of any attempts by Mr Rogers to address his amphetamine use, or to deal with his addiction if that's what it was, after the June 2011 episode in which he clearly became a danger to himself and those around him. Not only did he not seek out any help at that point, but he rejected the help that was offered to him by the CAT team, and the attempts to lay blame at the feet of the mental health authorities for not checking with Dr Tym about Mr Rogers' access to amphetamines are, as I have indicated, unconvincing.

46. The New South Wales Pre-Sentence Report provided the following assessment of Mr Rogers:

Mr Rogers is medicated for depression and appears to have demonstrated a period of stability. He continues to engage with Mental Health Services for counselling and medication reviews. Enquiries with family members indicate that they recognise significant improvements in Mr Rogers' behaviour during the past 2 years.

Mr Rogers is a 41 year old man with a history of domestic violence offending. It would appear that during the adjournment period Mr Rogers has engaged with mental health services for support to address his longstanding mental health issues. Through medication and counselling Mr Rogers has demonstrated a period of stability and has embarked on a new business venture.

47. I note Mr Rogers' generally pro-social behaviour, and the absence of offending, in the last two years since being released on bail. I note also his role in the business owned with his friend, Mr Walsh. Ideally, Mr Rogers would not need to return to prison. However, I am satisfied that no sentence other than imprisonment would be appropriate in this case and, having regard to the number and gravity of the offences for which I am sentencing Mr Rogers, the effect on the victim, the other matters to which I have already referred, and the fact that he has so far spent only three and a half months in custody, I can see no alternative to further custodial time.

48. A Pre-Sentence Report assessing Mr Rogers as suitable for periodic detention has been provided by the ACT authorities.

49. In relation to Mr Rogers' pleas of guilty, I note that, although coming late, the effect of them was to spare the victim and possibly her young son the need to appear in court and tell their stories, which would have been traumatic for both, and particularly traumatic for the young boy. I also note, however, that that relief only came effectively at the last minute after nearly two years of anticipation, and is therefore of relatively low value.

51. I record convictions on the two charges of assault occasioning actual bodily harm and one of unlawful confinement. I also note the two scheduled offences of damaging property, and I have taken them into account in sentencing for the unlawful confinement offence.

52. I now sentence you to imprisonment as follows:

(a) for the offence of unlawful confinement - 25 months reduced from 30 months for your plea of guilty;

(b) for the first offence of assault occasioning bodily harm - 18 months imprisonment, reduced from 21 months for your plea of guilty; and

(c) for the second offence of assault occasioning actual bodily harm - 20 months imprisonment reduced from 24 months.

(a) the first assault occasioning actual bodily harm sentence will be accumulated so as to add three months to the unlawful confinement offence; and

(b) the second assault occasioning actual bodily harm sentence will be accumulated so as to add 10 months to the total sentence.

54. This gives a total sentence of 38 months, or three years and two months.

55. That sentence will be backdated to 15 December 2013 to take account of pre-sentence custody. The next roughly eight and a half months of the sentence will be served in full-time custody, taking until the 14 December this year, and therefore taking the total time in full-time custody to one year. The next 12 months of the sentence will be served as periodic detention, starting on Friday 19 December 2014, and ending on Sunday 13 December 2015. After that, the remaining 14 months of the sentence will be suspended.

56. I order that you sign an undertaking to comply with your good behaviour obligations for a period of three years from 14 December 2014 (so that is at the end of the full-time custody) and it will run concurrently with the periodic detention, with security in the amount of $2,000. The good behaviour order will be subject to the conditions that:

(a) you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate; and

(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer.

57. I note in this case that a program focusing on family violence would seem to be particularly relevant, and I should also note at this stage that although you will be doing periodic detention in the ACT, the supervision may be able to be transferred to New South Wales if you're planning to remain in Cowra.

58. You will be given a written copy of the good behaviour order. It will be explained by court officials or possibly the AMC officials.

59. In short it means that for three years after you are released from full-time custody, you will need to keep out of trouble, keep in contact with Corrective Services, and comply with your supervisor's directions. If you commit another offence during that time, you may find yourself back before this court to be re-sentenced for the current offences as well as losing your $2,000 security amount, and that could mean further time in full-time custody for these offences.

60. If you have any particular questions about these orders, please ask the court officials or your lawyer.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.