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Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – . aggravated burglary – contravention of a family violence order – assault occasioning actual bodily harm – driving whilst disqualified from obtaining or holding a driver license, as a repeat offender – plea of guilty – family violence offences – deemed suitable by suitability assessment reports – drug and alcohol treatment order made – good behaviour order made

Legislation Cited: Crimes Act 1900 (ACT) s 24 Criminal Code 2002 (ACT) s 312(a) Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 12A(2)(a), 46, 63, 80W, 80Y, 80ZA Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing Procedure) Act 1999 (NSW) Drugs of Dependence Act 1989 (ACT), s 169(1) Family Violence Act 2016 (ACT) ss 8, 9, 35(1)(a), 35(1)(b), 43(2) Magistrates Court Act 1930 (ACT) s 90B Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a) Supreme Court Act 1983 (ACT) pt 8

Cases Cited: Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Goundar v Goddard [2010] ACTSC 56 Hogan v Hinch [2011] HCA 4; 243 CLR 506 KR v The Queen [2012] NSWCCA 32 Lowe v The Queen (1984) 154 CLR 606 Poole v Edwards [2016] ACTSC 159 Roberts v Smorhun [2013] ACTSC 218 R v Bessant [2020] ACTSC 365 R v BG (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 1 December 2010) R v Crawford (No 1) [2020] ACTSC 245 R v Dunn [2004] NSWCCA 41; 144 A CrimR 180 R v Forrest (No 2) [2017] ACTSC 83 R v Gordon (1994) 71 A Crim R 459 R v Hawkins [2015] ACTSC 333 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hodge [2015] ACTSC 214 R v John [2017] ACTSC 144 R v JW [2010] NSWCCA 49 R v Lockwood [2018] ACTSC 288 R v Loulanting [2015] ACTSC 172 R v Schmidt [2013] ACTSC 295 R v Stanley [2015] ACTSC 322 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Stott v The Queen [2012] ACTCA 33 Parties: The Queen (Crown) Ryan Kyle Tonna (Accused)

Representation: Counsel K Reardon (Crown) K McKee (Accused)

Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)

File Number(s): SCC 194 of 2020 SCC 195 of 2020

REFSHAUGE AJ:

Introduction

1. Safety is an important feeling for members of our community to make a peaceful, prosperous and compassionate society. People who feel safe are more positive, productive and participatory. Trespassing into someone's home – perhaps more properly called an invasion – will inevitably make people feel unsafe as will misbehaviour on the road. Of course, actual violence shatters the safety that our citizens are entitled to expect. Where the violence or threatened violence is family violence, it becomes even more serious, as does breaching court orders designed to protect community safety.

2. Ryan Kyle Tonna stands before me for sentence on six charges to which he has pleaded guilty. There are offences of aggravated burglary, assault occasioning actual bodily harm, possessing a drug of dependence, driving whilst disqualified from obtaining or holding a driver licence as a repeat offender and two offences of contravening a Family Violence Order committed on three occasions.

3. I received, on sentencing, the Crown's Tender Bundle which included an agreed Statement of Facts, Mr Tonna's Criminal History, an updated Pre-sentence Report of 2016, comprehensive and helpful Pre-sentence Reports of 2019 and 2020, a Victim Impact Statement, photographs of the actual injuries suffered by the victim and documents relating to the co-offenders to the aggravated burglary. I also received two suitability assessment reports – a Drug and Alcohol Assessment Report of ACT Corrective Services dated 25 December 2020 and a Drug and Alcohol Sentencing List Suitability Assessment Report of the Alcohol and Drug Services of Canberra Health Services dated 25 September 2020 – and a case plan.

4. I received material from Mr Tonna, including two character references, one from his mother who also indicated that she was willing to continue to support him and which noted that he has a large network of family and friends and they are all keen to support him and set him back on his feet, and another reference from a long-term family friend. I also had two letters from drug rehabilitation agencies, one being the Canberra Recovery Services which indicated that he had been accepted into the day program, to commence on 6 October 2020, and one from Hope House in Batemans Bay, which had assessed him and approved his admission there from 19 February 2020. I had, in addition, three certificates which showed he had completed courses in the Alexander Maconochie Centre.

5. Neither party objected to the admission of these documents into evidence, nor challenged any of the assertions in them. I heard no oral evidence. I base my findings on this material, none of which did I find unreliable or not worthy of credit. Both counsel for the parties provided written submissions supplemented by oral submissions. These submissions were thoughtful, and I found them helpful in preparing these remarks. I also appreciated receiving some statistical material from the ACT Sentencing Database. I confess I did some investigation in that database myself.

The Facts

6. Mr Tonna was in an intimate relationship with the victim of the assault for about four years, before it ended in mid-2019. He was thus a family member of the victim under s 9 of the Family Violence Act 2016 (ACT) (the Family Violence Act) and thus, under s8 of that Act, was engaged in family violence, as any physical violence is family violence for the purposes of that Act. As a result, the Act authorised a Magistrate to make a Family Violence Order which could prohibit Mr Tonna from various behaviours.

7. On 7 June 2019, a Family Violence Order was made by the Magistrates Court when Mr Tonna was present, prohibiting him, amongst other things, from being within 100 metres of the victim other than at a Court or Tribunal proceeding, contacting her except at or in connection with such proceedings, or from engaging in behaviour that constituted family violence under that Act. I was not told for how long the Order was made, but under s 35(1)(a) of the Family Violence Act (ACT), it remains in force for two years, unless a shorter period was specified (s 35(1)(b) of the Family Violence Act). I was not told that such a shorter period had been specified in the Family Violence Order.

8. On 23 July 2019, Mr Tonna, in breach of the Family Violence Order, attended at the victim's residence on two occasions early in the morning and banged on her bedroom window while she was sleeping. He returned a short time later and pulled the flyscreen off her bedroom window, waking her in the process. He accused her of having a man in the room. The victim told him not to come in and to leave and a housemate witnessed him running away. He returned again, however, and threw a brick through the window, leaving a hole and smashed glass in her room. I was not told the value of the damage caused but I assume that it was neither insignificant nor substantial. These occasions constituted the first charge of breaching the Family Violence Order.

9. On 25 July 2019, the victim was walking home when she noticed a vehicle parked on the road. As she passed it, Mr Tonna, who was seated in the driver's seat of the vehicle, called out to her in abusive terms. The victim ran across the road knowing that he had no reason to be there. She heard the motor vehicle drive off and felt it hitting her, causing her left ankle to become lodged underneath the bumper of the vehicle, trapping her and dragging her forward until Mr Tonna braked and allowed her to free herself. The victim's screams alerted her housemates and neighbour who rushed to her rescue. Police attended and she was taken to hospital, but she left before her injuries could be properly assessed and treated.

10. As noted above, I had photographs of her injuries and they showed a nasty gash at the back of her left heel, a smaller gash below it and what appeared to be some bruising. As a result of her leaving hospital before receiving any particular treatment, I had no medical evidence as to the nature and effect of the injuries, but in her Victim Impact Statement, which was not challenged, the victim stated that for about three weeks, she experienced a lot of pain, could not walk “for several weeks” and that she walked with “a severe limp for a number of months”. She stated that the injuries had not “properly healed” and that she still has a slight limp while walking. The injuries therefore are relatively serious. Mr Tonna had been disqualified from holding or obtaining a driver licence for 6 months from 7 June 2019.

11. These facts founded the second charge of breaching a Family Violence Order and a charge of assault occasioning actual bodily harm and of driving while disqualified from holding or obtaining a driver licence as a repeat offender.

12. On 27 May 2020, Mr Tonna and two co-offenders entered an underground carpark in a block of units in Garran, ACT by prising open a garage door. They drove a vehicle inside and used an angle grinder to force open a secure storage cage or garage and tried to open a gun safe in it. That the object of their burglary was a gun safe which may or may not have contained a gun – the evidence did not say and presumably they did not know – makes the offence somewhat serious.

13. A resident who heard the noise investigated it and then called police who attended. They called on Mr Tonna and his co-offenders to get on the ground. Mr Tonna and one of the co-offenders did so, but the other attempted to run away but was apprehended by police. None of the offenders had permission to be in the garage. Police searched the car which had been driven into the garage and found some scales and an “ice pipe”. They also searched Mr Tonna and found a clear plastic bag containing 6.663 grams of methylamphetamine which Mr Tonna admitted was the illegal drug “ice”.

14. These events led to the charges of aggravated burglary and possessing a drug of dependence.

The Proceedings

15. Mr Tonna was arrested on 28 July 2019 and charged with the two offences of contravening the Protection Order on 23 and 25 July 2019 and the offence of assault occasioning actual bodily harm and of driving whilst disqualified from obtaining or holding a driver licence as a repeat offender. He appeared in the Magistrates Court the next day. Bail was refused and he was remanded in custody. After a number of adjournments, he entered pleas of guilty to those charges, on 10 September 2019. It is not clear on the material available to me why he was not sentenced then but he remained in custody while the matters were adjourned eight times until 19 March 2020, when a Pre-sentence Report was ordered.

16. On 1 April 2020, he was granted bail but the terms of bail were not available to me. About eight weeks later, he committed the aggravated burglary and was arrested the same day, on 27 May 2020, appearing in the Magistrates Court on that day charged with the aggravated burglary offence. Mr Tonna was again remanded in custody and the proceedings adjourned a number of times during which his lawyers made representations to the Director of Public Prosecutions. The matters were mentioned again on 10 July 2020, when Mr Tonna pleaded guilty and was also charged in Court, on 31 July 2020, for the offence of possessing a drug of dependence, namely methylamphetamine. He also pleaded guilty to that offence.

17. On 27 August 2020, the Magistrates Court committed Mr Tonna for sentence to this Court on the indictable charges and transferred the other charges to the Court under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under Part 8 of the Supreme Court Act 1983 (ACT). In this Court, Mr Tonna was ordered to undergo a Suitability Assessment for a Drug and Alcohol Treatment Order (a Treatment Order) and ultimately adhered to his pleas, and I heard sentencing submissions.

The Offences

18. Contravening a Family Violence Order is an offence contrary to s 43(2) of the Family Violence Act, which attracts a maximum penalty of five years' imprisonment, a fine of $80,000, or both. Assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT), which provides a maximum penalty of five years' imprisonment. Aggravated burglary is prohibited by s 312(a) of the Criminal Code 2002 (ACT), which renders Mr Tonna liable to a maximum penalty of 20 years' imprisonment, a fine of $320,000, or both. Section 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) makes driving whilst disqualified from holding or obtaining a driver licence an offence, and for a repeat offender, legislates a maximum penalty of 12 months' imprisonment, a fine of $16,000, or both. Possessing a drug of dependence is made an offence by s 169(1) of the Drugs of Dependence Act 1989 (ACT) and specifies a maximum penalty of two years' imprisonment, a fine of $8000, or both.

19. Aggravated burglary is a serious offence, as the maximum penalty provided by the legislation clearly shows. This is, however, a slightly difference offence to that usually encountered. As I said in R v Forrest (No 2) [2017] ACTSC 83 at [77]:

Many of the burglaries committed by Mr Forest were in underground car parks associated with apartment blocks. These are neither commercial premises nor strictly residential premises where, for example, the burglar enters living areas likely to cause considerable distress and insecurity for the owners. On the other hand, they are closely associated with residences and occupants may well be accessing the car parks at various times, including late at night.

20. While there were no residents present, at least one resident heard the noise that the offenders were making with the angle grinder. While he went to inspect, obviously ready to find intruders, the element of shock at finding intruders was likely to be less, for example, than had he been awoken or just shocked by the sudden appearance of the burglars.

21. There was no particular evidence of premeditation, although the need for and the acquisition of an angle grinder for the purpose of accessing the gun safe must have taken some preparation and planning. It was neither spur of the moment nor opportunistic. There was little evidence of the damage caused though the agreed Statement of Facts stated that there were “scratches and indents” on the safe “but it had not been opened”. No property was stolen, though the fact that it was a gun safe, as I have mentioned before, makes the object of their intended theft one of some seriousness if, for instance, a gun had come into the community within a drug context.

22. The fact that methylamphetamine was found on Mr Tonna strongly suggests a drug use motive for the offence. The amount of drug found was a reasonably significant amount, though just above the trafficable quantity.

23. As to the offences of breaching the Family Violence Order, these are serious offences. In Roberts v Smorhun [2013] ACTSC 218, at [2], I said, after commenting on the beneficial reform to the protection order regime:

In Nicholas Seddon, Domestic Violence in Australia: The Legal Response (Federation nd Press, 2 ed, 1993), 86-7, the author set out advantages of such orders and continued: These advantages have generally been met with a positive response from those who work with victims of domestic violence and from surveys and the fact that protection orders have been adopted in all jurisdictions in Australia is testimony to their perceived effectiveness. The protection order regime is seen as a necessary complement to (but not as substitute for) the criminal law.

24. I went on at [3]-[4]:

The author points out, however, that the protection order procedure “depends for its effectiveness on the police and magistrates”. In R v B G (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 1 December 2010) at 5, after commenting that the offence of contravening a protection order is a serious one, I said: Compliance with any sort of protection order is essential for the court in protecting members of the community from violence and other unwanted behaviour. Breaches of protection orders risk the success of the regime from achieving that purpose, especially if they encourage people to think that they can breach with impunity. A severe approach is necessary, consistent with fairness to the accused. Thus, the Court cannot punish beyond what is appropriate to the offence.

25. Indeed, as appears to have some resonance in this case, it was said in R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [47]:

Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe … To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind.

26. The reported comment made by Mr Tonna when attacking the victim’s window on 23 July 2019, namely accusing her of having a man in her room, apart from being none of his business, does show he had not accepted the end of the relationship. Difficult though that may be, it is something that he has to confront and acknowledge.

27. It should be noted that the actions on that morning also constituted at least three separate approaches to the victim though relatively close together in time, at 6 am, 7:10 am and 7:30 am. Each could have constituted a separate offence. While not formally described in these proceedings as a rolled-up plea, it is appropriate to treat them in this way. I have described that approach in R v John [2017] ACTSC 144 at [106]-[107] and will follow what I there said.

28. The offence of assault, being a violence offence, is serious too. It was, in the circumstances, in the nature of a family violence offence. It is the duty of courts to denounce such offences. It also shows an exercise by Mr Tonna of power which is, in reality, an abuse of power, an abuse that is often exacerbated by the vulnerability of women. The assault is an example of escalation and the use of the car, which can properly be described in this situation as a weapon, a potentially lethal weapon. Thus, such offending can escalate and lead, as family violence offences often do, to the death of the victim.

29. Further, a victim who, as in this case, is on the ground is in a vulnerable situation (R v Hodge [2015] ACTSC 214 at [15]). The victim must have been terrified as her Victim Impact Statement shows. These are serious offences as explained in decisions such as Roberts v Smorhun at [120]-[127] and Goundar v Goddard [2010] ACTSC 56 at [32]-[36]. In relation to the assaults in the context of family violence, see R v Stanley [2015] ACTSC 322 at [65]-[66].

30. I have considered the offence of driving whilst disqualified from holding or obtaining a driver licence in some detail in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 306-308: [33]-[38]. While the penalties referred to there, especially from other jurisdictions, are not necessarily accepted in this Territory, as I explained in Poole v Edwards [2016] ACTSC 159 at [118], it is a serious offence and amounts to a defiance to the court's order. For this reason, a sentence will be primarily deterrent. I did not have the information about the duration of the driving, but the disqualification was relatively recent, and the driving was associated with and in part used for two of the offences. They are aggravating features. It seems to me that identifying these matters are important and preferable to a trend that I have noticed, of a kind of arithmetical approach to the objective seriousness of an offence. While that is necessary in New South Wales to meet the obligations under s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires a quantification of seriousness, there is no such legislative imperative in this Territory. Indeed, as the Court of Appeal said in R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at 108; [24]:

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.

Subjective Circumstances

31. Mr Tonna was born in Canberra nearly 23 years ago. He is thus a reasonably young man, though he has formally been an adult for nearly five years. He had an enjoyable childhood with no issues relating to alcohol and drugs, though he has reported a history of being hit by his father. He had and has a particularly supportive relationship with his mother, and his parents have remained together. His mother agreed to provide him with accommodation in Canberra if he is willing to engage in treatment to address his substance abuse.

32. He did have some behavioural problems at school and left after completing Year 9. He then took on a tiling apprenticeship which he completed successfully and has been employed continuously since then up until he lost his job in October 2018, in circumstances not explained to me but which appeared to be related to his drug use and the breakdown of his relationship. He is a single man and has no children.

33. He started consuming cannabis in about August 2018 following being assaulted, through which he suffered a broken jaw. He used drugs to self-medicate for pain. He later began consuming methamphetamines. His use increased until he was using methamphetamines daily, and its use may have impaired his employment and relationships.

34. Mr Tonna has said he has Post-traumatic Stress Disorder, but this was never formally diagnosed, which has led unfortunately to incidents of self-harm. He has engaged in some counselling through Canberra Health Services. Mr Tonna has engaged in some very limited drug and alcohol treatment which he has not really pursued or completed. Thus, for example, he had one counselling appointment with an alcohol and drug service counsellor at Headspace but did not attend three other arranged appointments. He has completed an introductory alcohol and drug awareness group while in custody, and his attitude was respectful, and he is reported to have given valuable input during the session. He also attended and successfully completed some courses in the Alexander Maconochie Centre earlier in June and August this year.

35. It is of some concern that he has attempted to minimise his actions towards his former partner. It is also of concern that he has mainly antisocial peer relationships. Mr Tonna has a relatively short criminal history, though it includes some quite worrying offences. He has 15 offences on his record, about half of which are traffic offences. The offences of particular concern are three family violence offences and a common assault. He has a drug possession offence and a trespass offence on his record. Nevertheless, his first offence was committed only on 3 February 2019, and it seems that there may be a real opportunity to arrest a continuation, or worse, an escalation of this behaviour.

36. As noted above, I have letters from Mr Tonna's mother and a family friend. His mother wrote that she believed that he had accepted responsibility for his wrongdoing. While I can generally accept that, I am satisfied that he still is less than fully accepting of his responsibility for the family violence offences. She also wrote that he accepts the need to avoid associations with negative peers and that he is ready to take steps to do this; I accept this. She further wrote that she had “seen a positive young man develop over the past couple of months” and that he had “undertaken to apply to a Drug Rehabilitation facility” and wishes “to get into University to study in Business Administration and IT”.

37. This desire for rehabilitation is supported by the letter from the Hope House manager concerning his application to that facility, which was not possible because he was refused the bail that would have permitted him to attend. It is also supported by the Suitability Assessments, and I accept it.

38. Mr Tonna’s mother further wrote of the supports her family are able to provide, and that he “has taken the wrong path in life and is now ready to change that path”. I accept that he is ready for rehabilitation and reform.

39. The family friend, who has known him all his life, writes that he is “a person of good moral character”, even though that is hard to believe under the circumstances. I accept, as she puts it, that this is true “at the core” of his personality. She also writes that he “is incredibly remorseful” and, with a reservation about his attitude to family violence, I accept this.

Parity

40. An important principle in the criminal justice system is to achieve parity between the criminal justice response to various co-offenders. That is to impose the same sentence for the same offence, in circumstances where the offence has been jointly committed by more than one offender. It is an aspect of the more general principle of consistency which is an important value that contributes to the community's confidence in the administration of criminal justice. The principles relating to parity are set out in Lowe v The Queen (1984) 154 CLR 606 at 609, 616 and 623. Thus, it is desirable that persons who have been parties to the commission of the same offence should, other things being equal, receive the same sentence. There is, however, no rule of law that this should be so even if no distinction can be drawn between them.

41. Nevertheless, matters such as the relative involvement in the jointly committed offence or differences in the personal circumstances of a co-offender such as age, background, previous criminal history and capacity for or likelihood of rehabilitation, may, but not must, indicate that a different sentence for each offender is warranted and will not offend the principle of parity. Thus, it is generally desirable to have all co-offenders sentenced by the same sentencer. If not, to impose a sentence that is the same as that already imposed on a comparable co-offender, but which is considered to be inadequate, is permissible, so long as it does not give the subsequently sentenced offender a justifiable sense of grievance, or an appearance that justice has not been done.

42. While the participation in a joint enterprise of each co-offender may be different, it is relevant that each is “responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed” (KR v The Queen [2012] NSWCCA 32 at [19]). As noted in that case (at [22]), however, culpability is concerned with an offender's moral responsibility for the offence which involves assessing “liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment”. Thus, differentiation between the liability of offenders for the objective seriousness of the offence will be limited (R v JW [2010] NSWCCA 49, cited with approval by the Court of Appeal in Stott v The Queen [2012] ACTCA 33 at [64]).

43. Ms K. McKee, counsel for Mr Tonna, pointed out that while he and one co-offender were found in the enclosed cage trying to open the safe at 3:24 am, Mr Tonna is not seen on CCTV with both the other co-offenders at 12:30 am prying open the front door, though they then shifted the CCTV camera away from the area that they were using. It is therefore of limited value in that regard. While it may be the situation that Mr Tonna did not then enter the garage at the same time, there is no evidence of any other conduct until the entering of the cage and the attempting to open the gun safe.

44. While Mr Tonna may or may not have been with the other offenders when they entered the carpark, he was clearly party to the use of the angle grinder which, it appears from the evidence of the entry on the CCTV, must have been brought in with the vehicle which was next to the cage door and which, it appears, must have been driven in through the forced open door to the carpark and thus was essential to the opening of the safe. The damage to the door of the carpark and the internal garage or cage door were charges separately laid against each of the other offenders though it was not, however, clear to me that they were actually pursued in court. In my view, there was no significant difference, between the co-offenders, in the degree of responsibility for the actual aggravated burglary.

45. As to his personal circumstances, Mr Tonna was younger than the co-offenders, though not substantially. One was approximately four years and seven months older than Mr Tonna and the other, coincidentally, was precisely 12 months older. At this age, that is not an insignificant age differential, though it is not as substantial as if they were all younger. There is no doubt, however, that both co-offenders had considerably longer and more serious criminal histories, including prior burglary or interstate equivalent offences. I was informed, without contradiction, that all three offenders were on conditional liberty at the time of the offending. It was clear from his co-offenders’ criminal records, that one was subject to a Good Behaviour Order at the time. The criminal record of the other showed that he was sentenced on 5 June 2019 for 20 offences, committed between 3 June 2018 and 1 February 2019. He may well have been on bail at the time. Mr Tonna was subject to a Good Behaviour Order made on 7 June 2019.

46. The co-offenders were each sentenced in the Magistrates Court to a term of imprisonment of 12 months. The reasons for sentence were not available to me and I am not aware of their particular personal circumstances that may have contributed to that, other than those that I have mentioned. The sentences appear to be quite a lenient sentence, especially since each of those co-offenders had been sentenced earlier to a sentence of 13 months' imprisonment for an aggravated burglary. In all the circumstances, I consider that it would not be adequate to sentence Mr Tonna to a sentence of less than 12 months' imprisonment for the offence of aggravated burglary.

Sentencing Practice

47. I pointed out in R v Bessant [2020] ACTSC 365 that the range of circumstances in which dishonesty offences such as burglary, including aggravated burglary, are committed is so wide that it is difficult to identify, with any reasonable utility, a singular sentencing practice. Nevertheless, in R v Lockwood [2018] ACTSC 288 at [51], the Court pointed out that the range of sentencing for burglary was generally between one year and two years and six months' imprisonment. To some extent, this is confirmed by the statistics recorded in the ACT Sentencing Database which, for the offence of aggravated burglary, shows the following: approximately 96 per cent of sentences in the Supreme Court for that offence are sentences of imprisonment, though about a quarter of those are partially or fully suspended, and approximately 80 per cent were for 12 months or more.

48. In relation to the offence of driving whilst disqualified from obtaining or holding a driver licence, the ACT Sentencing Database shows that all sentences in the Supreme Court were sentences of imprisonment, though approximately 24 per cent were wholly or partially suspended. In the Magistrates Court, nearly 50 per cent were sentences of imprisonment, and about half of those were partially or fully suspended.

49. As to contravening a Family Violence Order, the ACT Sentencing Database shows that in the Magistrates Court, where those contraventions are largely sentenced, 36.1 per cent were sentenced to a period of imprisonment, though slightly less than half were partially or wholly suspended. The terms ranged generally from 1 month to 4 months, though about 23 per cent attracted a longer sentence.

50. For assault occasioning actual bodily harm offences dealt with in the Supreme Court, the ACT Sentencing Database shows that 86 per cent resulted in sentences of imprisonment (excluding periodic detention), a little over a third being partially or wholly suspended. The terms were generally between 6 and 24 months. The sentences in the Magistrates Court naturally were more diverse and many were shorter. A much smaller percentage were sentences of imprisonment.

Consideration

51. In sentencing in this Territory, s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), sets out the purposes for which sentences may be imposed, and this is generally a codification of the common law. Thus, punishment for breaches of criminal law, which is designed to ensure a peaceable community, and which keeps its members safe by sanctioning breaches of it, is almost always relevant. Here, the nature of the offences makes general deterrence also relevant. Given that Mr Tonna has a relatively short criminal history, some element of specific deterrence is also relevant, though perhaps not as significant as rehabilitation, for three reasons.

52. In the first place, his drug use commenced not long ago and was caused by the pain he suffered from an assault. These factors are important. See, for example, the comment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 398; [273](c) about age (not so relevant here) and the circumstances under which drug use has commenced.

53. Secondly, Mr Tonna's relevant youth. While he is getting beyond the age when he can be described as youthful, and is heading towards the age when it seems as though his brain is fully developed, the immaturity of youth still justifies some preference for rehabilitation, and it may be accepted that this may still be relevant (see R v Gordon (1994) 71 A Crim R 459 at 469; and R v Schmidt [2013] ACTSC 295 at [80]).

54. Finally, his expressed desire to address his drug addiction and which has been commenced, though hesitantly, both in his attempts to enter drug rehabilitation at Hope House and Canberra Recovery Services, as well as his attendance at programs in custody, are relevant and point to the appropriateness of the relevance in this case of giving weight to rehabilitation (see R v Hawkins [2015] ACTSC 333 and R v Loulanting [2015] ACTSC 172 at [38]).

55. The purposes of rehabilitation must, of course, not overwhelm other purposes but will, of course, if achieved, also protect the community (Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]). Acknowledging the harm done to the victim and holding Mr Tonna accountable are particularly relevant here, as it is in all family violence offences. Denouncing the conduct is also relevant, though meeting the purposes of punishment and general deterrence will often achieve this. I note that Mr Tonna has shown remorse and I accept, with some not irrelevant limitation, that this is so and I will also take that into account. I also note that Mr Tonna pleaded guilty at an early stage, in at least one case, at the earliest opportunity. He did not at any stage plead not guilty. This justifies under our sentencing law a significant discount and I will accord that to him.

56. Mr Tonna has spent 293 days in custody. That is relevant to this sentencing exercise and I will take those days into account in the usual way, that is, by backdating the sentence in accordance with s 63 of the Sentencing Act. Because there are multiple offences, I have carefully considered the length of each sentence to ensure that Mr Tonna is not punished twice. I have also considered whether the sentences should be partially or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. This is particularly relevant for the offences committed on 23 July 2019, where the vehicle which caused the assault was, in effect, the weapon used, and which he was driving whilst disqualified from holding or obtaining a licence, and the assaults and his proximity to the victim which constituted the breach of the Family Violence Order.

57. I have then reviewed the length of the term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and hope for Mr Tonna to achieve his goals when he is released into the community.

58. This may result in what is seen as leniency in the accumulation of the offences but it is important to have regard not only to the total culpability of Mr Tonna's offending, but to the other relevant factors such as his relative youth and his limited participation in rehabilitation. These are important and require a sentence that is proportionate to the criminality and the relevance of subjective circumstances, in order to leave Mr Tonna with some hope for the reform which I am satisfied he does seek, though his efforts to this date are somewhat preliminary.

His Honour then spoke to the accused:

59. Mr Tonna, please stand.

60. I convict you of aggravated burglary on 27 May 2020.

61. I sentence you to 12 months' imprisonment, to commence on 19 December 2019 and end on 18 December 2020, to take into account pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to 15 months' imprisonment.

62. I convict you of contravening a Family Violence Order on 23 July 2019.

63. I sentence you to five months' imprisonment, to commence on 19 December 2020 and end on 18 May 2021. That is to be wholly cumulative on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to seven months' imprisonment.

64. I convict you of assault occasioning actual bodily harm on 25 July 2019.

65. I sentence you to eight months' imprisonment, to commence on 19 April 2021 and end on 18 December 2021. That is, to be concurrent as to one month on the sentence for contravening a protection order on 23 July 2019. Had you not pleaded guilty, I would have sentenced you 11 months' imprisonment.

66. I convict you of contravening a family violence order on 25 July 2019.

67. I sentence you to three months' imprisonment, to commence on 19 October 2021 and end on 18 January 2022. That is to be cumulative as to one month on the sentence for assault occasioning actual bodily harm. Had you not pleaded guilty, I would have sentenced you to four months' imprisonment.

68. I convict you of driving whilst disqualified from obtaining or holding a driver licence, as a repeat offender.

69. I sentence you to three months' imprisonment, to commence on 19 October 2021 and end on 18 January 2022. That is to be wholly concurrent on the sentence for contravening a Family Violence Order on 25 July 2019. I note that the Road Transport (Driver Licencing) Act 1999 (ACT) automatically disqualifies you from holding or obtaining a driver licence for 24 months from today.

70. I convict you of possessing a drug of dependence, namely methylamphetamine, on 27 May 2020.

71. I sentence you to six months' imprisonment, to commence on 19 October 2021 and end on 18 April 2022.

72. That is a total sentence of two years and four months' imprisonment.

73. Mr Tonna has been found otherwise eligible for a Treatment Order under s 12A of the Sentencing Act. That is within the term of imprisonment for which such an order is permissible. That the sentence has been backdated thus can only be partially suspended, as it has been partially served in custody is not a disentitling feature on the basis outlined in R v Crawford (No 1) [2020] ACTSC 245.

74. I note that Mr Tonna is not subject to any other sentencing order. Accordingly, Mr Tonna is eligible for a Treatment Order and I must consider whether to make one. I have carefully read and considered in detail the comprehensive pre-sentence reports and suitability assessments to which I have referred above. They have been of considerable assistance in both preparing these remarks and deciding on this issue. I have considered the recommendations made in the Suitability Assessments which are that Mr Tonna is suitable for a Treatment Order.

75. I note that the following additional comments have been made:

76. The Alcohol and Drug Services recommend that a Treatment Order should only be made if Canberra Recovery Services find him suitable for their program.

77. By letter dated 30 September 2020, I was informed by that agency that the agency had completed its assessment and accepted Mr Tonna into the day program from 6 October 2020. Alcohol and Drug Services also recommend that he complete a family violence program to address his underlying beliefs and responses in relation to family violence. I accept that recommendation.

78. ACT Corrective Services recommend that a curfew be imposed from 9.00 pm each day to 7.00 am the following day and I accept that recommendation, but subject to review.

79. I am satisfied on the balance of probabilities, which is the test set out in s 12A(2)(a) of the Sentencing Act, that Mr Tonna is dependent on methamphetamine and cannabis and that his dependency substantially contributed to the commission of the aggravated burglary offence. I am also satisfied that he will live in the ACT.

80. I have not identified any indicators of unsuitability for a Treatment Order as set out in Table 46 of s 46 of the Sentencing Act. Accordingly, I am satisfied that subject to conditions, Mr Tonna is suitable for a Treatment Order.

His Honour then spoke again to the accused:

81. Mr Tonna, please stand.

82. I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for 12 months from today in respect of you, Ryan Kyle Tonna, for the offence of aggravated burglary on 27 May 2020, for which I have convicted and sentenced you, namely, the primary offence.

83. I extend that order to the two offences of contravening a family violence order and the offences of assault occasioning actual bodily harm, driving whilst disqualified from holding or obtaining a driver licence and possessing a dangerous drug, all of which are associated offences.

84. I note that I have recorded convictions and sentenced you for the primary offence and the associated offences, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order.

85. I suspend the sentence for 1 year 6 months and 12 days from today, under s 80W of the Crimes (Sentencing) Act 2005 (ACT).

86. Pursuant to s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), I require you sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT), from 7 October 2021 to 18 April 2022, with a probation condition that you accept the supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person supervising you for the period of 12 months or such lesser period that the person supervising you considers appropriate.

87. For the treatment and supervision part of the Drug and Alcohol Treatment Order, I order you to comply with the core conditions set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order and complete such treatment, including a day program at Canberra Recovery Services, other counselling, case management, urinalysis, medical treatment and attendance at programs of treatment as agreed with the Treatment Order Team from time to time, or as ordered by the Court.

88. I direct until further order that you reside at 51/5 Burnie Street, Lyons and that you remain in your place of residence between 9:00 pm each day until 7:00 am the following day, except in the case of emergency and that you present yourself to an officer of the ACT Police Force if requested by that officer during those hours at the door of that residence.

89. I direct that the Curfew Order be reviewed when you graduate from Phase One to Phase Two of the Drug and Alcohol Treatment Order.

90. I direct that you submit yourself for assessment for admission to the Ready for Change program at the Domestic Violence Crisis Service, and if found suitable, complete that program unless agreed by the Treatment Order Team or the Court that it is inappropriate to do so, and if found not suitable, complete other programs related to family violence that the Treatment Order Team may direct and for which you are found suitable.

91. I order that you comply with the directions of the Court about attendance at Court in person or by electronic means, and about treatment or supervision matters from time to time.

92. I direct that you attend Court on 9 October 2020 at 11:30 am.

93. Mr Tonna, that is a whole lot of legal jargon, much of which I expect you to understand because you have been around the courts a bit, but much of it has probably gone over your head. In summary, I have said that these events are serious. They are serious enough to warrant a little over two years' imprisonment. You have spent much of that time already in custody and I do not require you, at this stage, to serve any further time in custody, but the release is conditional upon a Treatment Order.

94. A Treatment Order is intended, in this case, to address two things: principally your drug addiction and, secondly, to some extent, your family violence situation. I am not satisfied, at this stage, that you fully understand the implications of family violence for males in our community, ,and the relationship between you and women with whom you may have a relationship and the way in which these things should respectfully be dealt with in our community.

95. As to the drug issue, really, I have sympathy for you and the way in which you started that, your broken jaw no doubt led to excruciating pain from time to time and lesser over time, and then of course if you start using drugs, the addiction is pernicious, it grabs hold of you. They say drug addicts will sell their grandmother for a hit. It can be that bad. But it can be managed. People have done that. It takes effort. It is difficult, but it can be done, and it allows you to get on with your life.

96. You have got some aspirations. I encourage you to complete your business degree and contribute to the community and that will make your life in the community different: settling down, having a family, being prosperous, being productive, being peaceful, enjoying it, achieving your results, they will all be all possible and you will contribute to the community and make us all safer and better at the end of the day.

97. It is important that you put effort into that. You have shown the beginnings of that, although there is some effort lacking or lapsing on the way. But put some effort into that. This Court and the Treatment Order Team that have been assembled, will assist you, support you, and help you through. If you backslide, we have to sanction you and that sanction may include sending you back to gaol, but if you commit yourself, we will not necessarily have to send you back for the balance of the whole two years and four months. Hopefully, that can be avoided at the end of the day.

98. It is important that you comply with the terms of the Order. That will be explained to you. No doubt, your counsel will carefully do that. I have every confidence that she will be able to do that, but the Treatment Order Team will help you. Broadly, it means you are now subject to treatment, counselling, attendances, urinalysis, case management and so on, as organised by Alcohol and Drug Services, Corrective Services principally, and also by the court.

99. For a while yet, you are going to have to come to Court every week on Friday at 11:30 am. If you do not attend the appointments that are made for you, including attendances at Canberra or Calvary Services, then you will be sanctioned with a point and that point will lead to, if you get seven of them, seven days in gaol, all right? If you do well, then we can reduce some of those sanctions so that you can, or are more likely to, avoid that risk.

100. I think it is really important to say that if things go wrong, do not just put your head in the sand, all right? It is very easy to do that, because you think, 'I've got to back and face the music,' and no-one likes to do that Face up to what has happened. We cannot help you unless you do that. If things are going wrong, come and talk to us. We have had people who have had problems. We have worked through them. They have not all led to a final return to Alexander Maconochie for two years, or whatever it is; it will be less than that.

101. But whatever it is, it can be worked through, but if it is really bad, well, those are the final options. It will definitely be that bad if you put your head in the sand, do not come back to Court, do not admit what you have done, do not try to do better. So that is important. This is a lot for you to take in. You are now under a regulated regime. It is not as bad as being in custody. You survived that. So far as I could see, there were no offences that came into the court for that, although I did not see your record at that facility.

102. You can do it. You have got your family, and not everyone is as lucky as that. Your family are there, your mother is prepared to take you in as long as you commit yourself to your rehabilitation. Repay her by working hard at this and succeeding if you can. You will see a lot of me. I will say a few more of these kind of things from time to time, but the intention is to encourage you to keep going and to help you through the rough places and to give you accolades and reward when you do well. I hope you do well.

I certify that the preceding one hundred and two [102] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.

Associate: Samuel Xiang

Date: 1 February 2021