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[2025] ACTCA 40
respondent. Appeal dismissed. Neither alleged non-compliance with s 37 nor manifest excess was established [6], [70].
The Court of Appeal held that a sentencing judge does not always have to state a guilty-plea starting sentence as a separate number. In this case, the judge's statement that the sentences were reduced by about 25 per cent made it possible to work out the starting points, so s 37 was satisfied. The Court also found that the sentences were not shown to be too high in the legal sense required for appellate intervention. It considered the serious, repeated violence and controlling behaviour, the higher maximum penalty for the most serious offence, the separate harm from the offences, and the offender's personal circumstances. The appeal was dismissed.
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Robin pleaded guilty to five offences arising from family violence against his wife and a later breach of a family violence order. The four violent offences occurred in one evening, 16 September 2023. The Court records that Robin had objected to his wife attending a function, imposed conditions about when she could return, and later became angry after seeing a text message on her iPad [8]-[10].
2 cited instruments linked from this judgment.
When she returned home, Robin grabbed her by the throat and squeezed until she lost consciousness. After she regained consciousness, he choked her again and threatened to kill her. Later, he pushed her head into a toilet and flushed it twice. He then threw her to the ground and punched her, causing bruising and swelling [11]-[15]. Robin's daughter heard the violence and contacted family members, who called police [16].
A family violence order was made on 18 September 2023. A letter Robin had written in custody, dated 19 September and addressed to his family, was received by the victim. The sentencing judge treated it as a deliberate breach of the order, although he was not satisfied beyond reasonable doubt that it was an attempt to manipulate her or the children [17]-[19], [27].
The sentencing judge imposed a total head sentence of 5 years and 3 months, with a non-parole period of 2 years and 9 months [3]-[4]. The sentences for the violent offences were partly accumulated. Two aggravated choking sentences were concurrent with each other, and the FVO breach resulted in a good behaviour order [32]-[33].
On appeal, Robin argued that the sentencing judge had not complied with s 37 of the Crimes (Sentencing) Act 2005 (ACT), because the judge gave a percentage discount but did not state the pre-discount sentences as figures. He also argued that the sentences were manifestly excessive [5]. The Court of Appeal dismissed both grounds [6], [70].
On s 37, the Court treated the question as whether the sentencing reasons gave enough information to identify the penalty that would otherwise have been imposed. The primary judge said that the sentences would be reduced by approximately 25 per cent for the early guilty pleas [31]. Although he did not separately announce each starting point, the Court concluded the figures could be calculated from the percentage and the sentences imposed [49]-[51].
The Court set out the resulting starting points: 61 months for aggravated choke render insensible, 35 months for each aggravated choke, and 25 months for aggravated assault occasioning actual bodily harm [50]. The Court considered it preferable for a sentencing judge expressly to state both the starting point and the discount, but held that s 37 does not require that form of statement if the starting point can be ascertained [49]. It therefore found no breach [51].
On manifest excess, the Court began from the established appellate approach quoted from Hawker: disagreement with a sentence, or comparison with sentences in other cases, is not enough. The appellant must demonstrate a sentence from which a misapplication of principle can be inferred [52].
The Court emphasised the nature and context of the offending. It described the first choking as carrying an apparent risk to the victim's life, noted the repeated choking after she regained consciousness, and referred to the toilet conduct as degrading and humiliating [53]. It also treated the conduct as occurring within a broader pattern of control, including restrictions on the victim's movements and the appellant's statements about her shame [54]. The Court said that deterrence and denunciation were important considerations [55]-[58].
The Court also considered the offender's personal circumstances. It accepted that Robin had experienced a severely disadvantaged childhood, including violence by his father and early alcohol use. It accepted that these experiences affected moral development and self-control, and that the sentencing judge properly moderated the weight given to general deterrence and punishment [59]-[60]. The Court also noted Robin's employment history, his limited criminal history, treatment and rehabilitation efforts in custody, abstinence from alcohol there, and remorse [61]-[63].
The sentence was assessed as reflecting both seriousness and mitigation. The Court observed that the 2 year and 9 month non-parole period was slightly more than half the head sentence and would leave a period of supervised parole to facilitate rehabilitation [64]. It rejected the comparison with earlier cases, particularly because most concerned offending before the maximum penalty increased [65]-[66]. It also found no error in partial accumulation: the offences involved separate criminality and harm, while two choking sentences had been made fully concurrent [67]-[68].
Before this decision, the ACT Court of Appeal had considered s 37 in cases involving assistance to the administration of justice. In R v UG and R v Urlich, the sentencing judges had not stated the penalty they would otherwise have imposed. The Court treated that failure as a specific error that enlivened the discretion to resentence [38]-[41]. Robin's case addressed a different question: how much detail is enough to comply with s 37 [42].
The decision follows Blundell v The Queen [2019] ACTCA 34. Blundell had rejected the proposition that s 37 invariably requires a numerical starting point. The Robin Court acknowledged that the relevant discussion in Blundell was obiter, because that appeal was resolved on other errors, but held that its approach should be followed [45]-[49]. The rule stated in Robin is that sufficient information to calculate the starting point meets the provision, although spelling out the number is preferable [49].
The judgment also addresses the sentencing significance of the 2022 amendment increasing the maximum penalty for aggravated choke render insensible from 10 to 13 years [2], [57]. The Court said the amendment expressed Parliament's view about the seriousness of family violence offences and should be reflected in sentences imposed under the new regime [57]-[58]. Applying Muldrock, it held that an increase in the maximum penalty indicates that sentences for the offence ought to increase [66]. The decision therefore explains why sentences for earlier offending cannot be treated as unaffected comparisons where the statutory maximum has since changed.
The judgment does not purport to replace the established test for manifest excess. Rather, it applies that test to the facts and rejects the argument based on the comparative sentences and the total sentence in this case [52], [65]-[69].
At [49], the Court said s 37 is met where the sentencing reasons contain “sufficient information” for the starting point to be calculated. In plain English, a judge may satisfy the statutory statement requirement without saying the starting figure aloud, provided the judgment gives enough information to work it out.
At [49], the Court added that an express starting point is “preferable”. This matters because the decision does not say that percentage-only explanations are best practice. It distinguishes what is desirable from what is legally necessary in the circumstances before it.
At [50], the Court demonstrated how the calculation worked. For the most serious offence, it identified a 61-month starting point, reduced by 25 per cent to 45.75 months and rounded to 46 months. The other starting points were calculated in the same way. At [51], it concluded that s 37 had not been contravened.
At [52], the Court restated the demanding appellate threshold for manifest excess. A sentence is not appealably excessive simply because another court might have chosen a different result. There must be a basis to infer some misapplication of sentencing principle.
At [54], the Court described the events as showing “the exercise of coercive control”. That characterisation was grounded in the facts recorded in the judgment: restrictions on the victim's outing, accusations of infidelity, the assaults, and statements controlling her conduct afterwards.
At [66], the Court rejected the argument that the higher maximum penalty should have little effect on the use of earlier cases as comparators. Its reasoning was that the legislative increase itself indicates that sentences under the new regime ought to increase. This was part of the answer to the appellant's comparative-case argument, not a finding that every sentence must rise by a particular amount.
The s 37 reasoning is relevant where a sentencing judge imposes a lesser penalty for a guilty plea under the ACT provision and states a discount, but does not separately state the numerical sentence that would otherwise have been imposed. Robin indicates that the key inquiry is whether the sentencing reasons let the pre-discount penalty be calculated [42]-[51]. The judgment does not decide every possible form of ambiguous or incomplete discount statement. Its conclusion depended on the discount being stated with sufficient clarity and on the figures being tolerably clear [50]-[51].
The manifest-excess analysis concerns a sentence challenged as too high where the offending includes repeated family violence, distinct acts causing separate harm, and a sentencing structure involving partial concurrency and accumulation. The Court's reasoning shows the importance it attached to the whole course of conduct and the totality of the criminal behaviour [53]-[58], [67]-[69].
The comparative-sentence discussion is particularly relevant where proposed comparators pre-date an increase in the statutory maximum penalty. The Court held that the increase from 10 to 13 years could not be treated as having no or little effect on sentencing for this offence [66]. The decision does not provide a numerical method for adjusting older comparators.
The judgment itself contains no information about how courts treated Robin after 19 September 2025. It is therefore not possible, from the supplied judgment, to describe later judicial treatment.
The authorities it discusses are earlier decisions, not later treatments of Robin. Blundell is followed on the s 37 issue, although the Court notes that the relevant passage in Blundell was obiter [45]-[49]. UG and Urlich are explained as cases where s 37 was clearly breached because the judges did not state the otherwise applicable penalties [38]-[41]. Muldrock is applied to the effect of an increased maximum penalty [66]. CX is applied to the discretionary nature of concurrency and accumulation [67].
DPP v Hojlund [2025] ACTSC 211 is discussed in relation to whether family violence can be characterised as an aggravating factor after the statutory amendment [66]. The Court does not adopt the appellant's submission that the increase in the maximum penalty should have no or little effect on sentences. It does not, however, offer a detailed analysis of Hojlund beyond that point.
The judgment leaves open how much detail is sufficient where a sentencing judge states a discount in less precise terms than “approximately 25 per cent”, or where rounding makes the starting point uncertain. Robin involved a percentage from which the Court could calculate identifiable starting points [49]-[51]. The Court says express numerical starting points are preferable, but does not define a general threshold for adequate clarity in every sentencing judgment.
The judgment also does not specify how courts should quantify the effect of an increased maximum penalty on a particular sentence or on the use of pre-amendment comparators. It states the direction of significance, that sentences ought to increase, but does not set out a formula [66].
Nor does the decision establish a general sentencing range for coercive-control offending or for the combination of offences in Robin's case. The Court dealt with the specific sentences and facts before it, including the individual harm, the guilty pleas, the offender's personal circumstances and the sentencing structure [53]-[69].
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Robin (a pseudonym) v DPP Citation: [2025] ACTCA 40 Hearing Date: 7 August 2025 Decision Date: 19 September 2025 Before: Mossop and Baker JJ, Muller AJ Decision: The appeal is dismissed Catchwords: APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – family violence offences – choke, suffocate, strangle – aggravated common assault occasioning actual bodily harm – breach of family violence order – coercive control – whether sentencing judge failed to comply with s 37 of the Crimes (Sentencing) Act 2005 – where sentencing judge indicated discount solely by reference to percentage reduction – whether sentence was manifestly excessive – effect of increased maximum sentence for offence of choke render insensible – appeal dismissed Legislation Cited: Crimes (Sentencing) Act 2005 (ACT), ss 35, 37 Family Violence Legislation Amendment Act 2022 (ACT) Cases Cited: Blundell v The Queen [2019] ACTCA 34 CX v The Queen [2017] ACTCA 37 DPP v Hojlund [2025] ACTSC 211 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Cranfield [2018] ACTCA 3 R v Duffy [2014] ACTCA 53; 297 FLR 359 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 R v Thompson [2025] NSWCCA 133 R v UG [2018] ACTCA 64; 14 ACTLR 70 R v Urlich [2019] ACTCA 30; 14 ACTLR 267 Woodward v The Queen [2017] NSWCCA 44 Texts Cited: ‘Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence’, Bugmy Bar Book (May 2024) ‘Early Exposure to Alcohol and Other Drug Abuse’, Bugmy Bar Book (November 2019) Explanatory Statement, Family Violence Legislation Amendment Act 2022 (ACT) Parties: Julian Robin (a pseudonym) (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel J White SC (Appellant) K McCann (Respondent) Solicitors Legal Aid ACT (Appellant) Director of Public Prosecutions (Respondent) File Number: ACTCA 32 of 2024 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: Burns AJ Date of Decision: 4 October 2024 Case Title: DPP v Robin (a pseudonym) Citation: [2024] ACTSC 322 THE COURT: Introduction
On 5 December 2023, Julian Robin (the appellant) entered pleas of guilty to the following offences: (a) One count of aggravated act endangering life, namely intentionally choke, suffocate or strangle another person so as to render them insensible or unconscious (CC2023/ 9087) (aggravated choke render insensible); (b) Two counts of aggravated act endangering health, namely intentionally and unlawfully choke, suffocate or strangle another person (family violence) (CC2023/ 9088; CC2023/10028) (aggravated choke); (c) One count of aggravated assault occasioning actual bodily harm (family violence) (CC2023/ 9091); and (d) One count of contravene family violence order (CC2023/ 10009).
The maximum penalty for the offence of aggravated choke render insensible is 13 years’ imprisonment. The maximum penalty for the offences of aggravated choke and aggravated assault occasioning actual bodily harm are each 7 years’ imprisonment. The maximum penalty for the offence of contravening a family violence order is 5 years’ imprisonment, 500 penalty units, or both.
On 4 October 2024, the appellant was sentenced by Burns AJ (the primary judge) as follows: (a) Aggravated choke render insensible (CC2023/9087): 3 years and 10 months’ imprisonment, commencing on 16 September 2023 and expiring on 15 July 2027; (b) Aggravated choke (CC2023/9088): 2 years and 4 months’ imprisonment, commencing on 16 March 2026 and expiring on 15 July 2028; (c) Aggravated choke (CC2023/10028): 2 years and 4 months’ imprisonment, commencing on 16 March 2026 and expiring on 15 July 2028; (d) Aggravated assault occasioning actual bodily harm (CC2023/9091): 19 months’ imprisonment, commencing on 16 May 2027 and expiring on 15 December 2028; (e) Contravene FVO (CC2023/ 10009): Good Behaviour Order imposed for 8 months, from 4 October 2024 to 3 June 2025.
The total head sentence was a period of imprisonment of 5 years and 3 months’ imprisonment, commencing on 16 September 2023 and expiring on 15 December 2028. His Honour also imposed a non-parole period of imprisonment for 2 years and 9 months, commencing on 16 September 2023 and expiring on 15 June 2026.
The appellant appeals on the following grounds: (a) The sentencing judge erred in not complying with s 37 of the Crimes (Sentencing) Act 2005; and (b) The sentence is manifestly excessive.
For the reasons outlined below, neither ground of appeal has been established. Accordingly, the appeal must be dismissed.
Background
The offending
The victim of all the offences was the wife of the appellant at the time of the offending. They had been married for about 18 months, but had been in a relationship for approximately 6 years. The appellant and the victim have two young children together. The appellant also has a daughter from a prior relationship, who was residing with the appellant and the victim at the time of the offending. The appellant’s daughter was 10 years old at the time of the offending.
The first four offences occurred on Saturday, 16 September 2023. Earlier that week, the victim requested permission from the appellant to attend a function on the Saturday night with a friend. The appellant told the victim that he did not want her to go out, because the victim was meant to be having a movie night with the appellant’s daughter.
On the evening of 16 September, the victim again raised with the appellant the possibility of attending the function. The appellant eventually gave permission to the victim to attend, on the condition that she either return home by 7:30pm, or contact him to seek permission to stay longer. The victim left home for the function at 5:30pm. At 7:30pm, the victim sent the appellant a text message asking for permission to stay at the function. The appellant agreed.
While the victim was out, a male performer (apparently from the function that the victim was watching) texted the victim and asked whether she was from Canberra. The appellant was at the family home and saw the text appear on the victim’s iPad. He began sending the victim texts accusing her of being unfaithful.
The victim decided to return home. One of her friends walked her to the front door, where she was greeted by the appellant. Once she was inside, the appellant shut the door, and grabbed the victim by the throat. The appellant was angry, and told the victim that his daughter had been crying as they were supposed to have had a movie night together.
The appellant then squeezed the victim’s throat until she lost consciousness. (Aggravated choke render insensible: CC2023/9087). When the victim regained consciousness, she was on the floor and had a sore throat. The appellant said words to the effect of “I hope you had fun” and “don’t you make me go through that again”.
The victim did not respond. She eventually stood up and walked towards the master bedroom. The appellant followed. When they reached the hallway, the appellant grabbed the victim forcefully around the throat and pushed her against the wall. (Aggravated choke: CC2023/9088). The appellant said words to the effect of “if it wasn’t for the kids, I would kill you and slice your throat”. The appellant then released his grip upon the victim.
The victim walked into the master bedroom, where the appellant and the victim’s two children were asleep. She lay on the bed for a short while, before she went to the ensuite bathroom and vomited in the toilet. The appellant entered the bathroom and accused the victim of cheating on him. The appellant pushed the victim’s head into the toilet bowl and flushed the toilet. The appellant continued questioning the victim about the text message. The appellant again pushed the victim’s head into the toilet and flushed it a second time. (Aggravated choke/suffocate/strangle: CC2023/10028). The appellant then threw the victim’s phone into the toilet.
The offender’s subjective case
The appellant was born in 1987. At the time of sentencing, he was 37 years old.
The appellant had a disadvantaged childhood. His father was an alcoholic and was violent towards the appellant, his mother and his siblings. The appellant first started consuming alcohol when he was 8 or 9 years old. By the age of 14, he began drinking “every day or second day”. He was expelled from school at age 14. At the time of the offending, the appellant was still engaging in alcohol abuse. The appellant was consuming 8-12 beers a night on weeknights, and up to a box of beer a night on weekends.
The appellant has a limited criminal history. Prior to the offending that is the subject of these proceedings, the appellant had committed one prior series of offences. On 27 September 2014, when the appellant was 27 years old, the appellant committed offences of stalking and common assault in a domestic violence context. He was sentenced to an 18-month Good Behaviour Order (GBO), which was successfully completed.
In custody, the appellant has been employed within the kitchens at the AMC. The appellant has also engaged with the Supports and Interventions Unit of the AMC with a focus on “substance addition and relationship counselling”. The appellant also participated in the Solaris Therapeutic Community Program for approximately six months, where he made “considerable progress” in his treatment. The appellant has also been attending the “Yeddung Mura yarning circles”, which are weekly meetings for First Nations individuals to discuss alcohol and domestic violence issues. He has also sought the assistance of a pastoral care worker, with whom he has weekly meetings.
The appellant gave evidence in the sentencing proceedings. He recognised that his offending was “horrible”, and said that he was “disgusted” in his actions. He gave evidence that he had not used any alcohol while in custody and said that he found the Solaris Program helpful in remaining abstinent. Although he had to leave the Solaris Program early due to safety concerns, he continues to seek support from his Alcoholics Anonymous sponsor, and intends to continue seeking that support once he is released from the AMC.
The decision below
In his sentencing reasons, the primary judge assessed the seriousness of the offences which occurred on 16 September 2023 by reference to the following matters: (a) The statutory circumstances of aggravation (namely, the family violence context); (b) The offences occurred at the victim’s home, where she was entitled to feel safe; (c) Three children were in the house at the time of the offences, the younger two children of whom were asleep; (d) Each offence was short in duration, but formed a part of a course of conduct which sought to punish and control the victim through violence and degradation; and (e) The physical harm caused to the victim was not great.
The primary judge assessed the first offence of aggravated choke render insensible as in the upper part of the mid-range of such offences. His Honour assessed the two aggravated choke offences as in the lower part of the mid-range of such offences. His Honour assessed the offence of aggravated assault occasioning actual bodily harm as being on the border of the low and mid-ranges.
As to the offence of contravening the FVO, the primary judge stated that he was not satisfied beyond reasonable doubt that the letter written by the appellant was an attempt to manipulate the victim and/or his children. However, his Honour was also not satisfied on the balance of probabilities that the letter was “innocuous”. His Honour proceeded on the basis that the letter constituted a “deliberate breach” of the FVO and assessed this offence as being in the lower range of such offences.
Whilst noting that the appellant did not have a lengthy criminal history, his Honour considered it to be a matter of concern that the only matter on the appellant’s criminal history involved domestic violence offending. His Honour found that the appellant was not entitled to leniency as a first offender, but equally found there was not a need to give predominance to personal deterrence as a sentencing consideration.
The primary judge also considered the appellant’s alcoholism and disadvantaged childhood. While his Honour noted that “[s]ome moderation” of general deterrence and punishment as sentencing considerations was warranted, he found that general deterrence remained an important consideration for offences of this type.
His Honour accepted that the appellant had shown remorse. His Honour noted the appellant’s favourable work history, and his plan to reside with his sisters in New South Wales upon release. His Honour considered that the appellant had “reasonable prospects for rehabilitation” if he maintained his commitment to counselling and alcohol abstinence.
As to the appellant’s early plea of guilty, his Honour held: I accept that your pleas of guilty to the present charges were early pleas, saving the community the cost of a defended trial. I also accept that your pleas indicate a degree of remorse. And of course, you have already expressed remorse in other ways. I will reduce the otherwise appropriate sentences by approximately 25 percent because of your pleas of guilty.
Ground One: Alleged failure to take into account early guilty plea
Where an offender pleads guilty to an offence, or provides assistance to the administration of justice and/ or to law enforcement authorities, the Court may impose a lesser sentence to recognise the utilitarian value of the guilty plea and/ or the assistance provided: ss 35, 35A and 36 of the Crimes (Sentencing) Act.
Where a lesser penalty is applied, s 37 of the Crimes (Sentencing) Act provides as follows: 37 Reduction of sentence—statement by court about penalty (1) This section applies if a court imposes a lesser penalty for an offence under section 35 (Reduction of sentence—guilty plea), section 35A (Reduction of sentence—assistance in administration of justice) or section 36 (Reduction of sentence—assistance to law enforcement authorities). (2) The court must state— (a) the penalty (including any shorter nonparole period) it would otherwise have imposed; and (b) if the lesser penalty is imposed under section 35A or section 36—the reason for the imposition of the lesser penalty.
Section 37 of the Crimes (Sentencing) Act has been considered by this Court in two seminal authorities, both of which concerned the approach to be taken by a sentencing judge where the offender had given assistance in the administration of justice: R v UG [2018] ACTCA 64; 14 ACTLR 70; R v Urlich [2019] ACTCA 30; 14 ACTLR 267.
In UG, the sentencing judge had stated that she had “taken into account the Ellis component as to the disclosure of unknown guilty in undertaking the process of instinctive synthesis”: UG at [36]. The Court held that her Honour had erred in approaching the sentencing task in this manner, noting that under the Sentencing Act, “the sentencing court must … identify a starting point for the sentence before reducing it to take account of assistance”: UG at [44]. The Court held that the sentencing judge had failed to comply with s 37(2) because she “failed to specify the penalty that her Honour would otherwise have imposed for the sexual offence, which was the only offence in relation to which s 36 assistance was relevant”: UG at [45].
At the time that UG was decided, there was a divergence in the authorities as to whether a failure to comply with s 37 was an appellable error, the effect of which was to enliven the Court’s discretion to resentence. The Court resolved this divergence, holding that non-compliance with s 37 is a “specific error” which enlivens the discretion to resentence: UG at [48] – [49]. In so finding, their Honours referred to the benefits to victims, witnesses and court resources which flow from early pleas of guilty, and the need for offenders to be encouraged to plead “by giving them a reasonable expectation that their plea of guilty will result in a sentence reduction that is meaningful and reliable”: UG at [47], citing R v Cranfield [2018] ACTCA 3 at [38]. The Court held that “[g]reater clarity about the extent of sentencing discounts also supports public confidence in the sentencing process”: UG at [48].
Ground Two: Manifest excess
The principles to be applied to a ground of appeal which alleges that a sentence is manifestly excessive are well known. As this Court held in Hawker v The Queen [2020] ACTCA 40 at [14]: Appellate intervention is not justified simply because an appellate court may have a different view as to the appropriate sentence than the sentencing judge, or where the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the appellant, even though when and how is not apparent from the statement of the sentencing judge’s reasons.
Senior counsel for the appellant accepted that the offences were serious. This concession was correctly made. The offender choked the victim until she lost consciousness. The risk to the victim’s life was clear and apparent. When the victim regained consciousness, the appellant was not repentant, but instead engaged in two further acts of choking over the course of the night. The experience would have been terrifying for the victim. The appellant’s conduct in flushing the victim’s head into the toilet was degrading and humiliating.
The context in which these acts occurred is also important. The Agreed Statement of Facts describes an all-too-common picture of the exercise of coercive control. Days before the offending, the appellant was placing requirements about when she would go out and for how long. The offender continued to exert control over the victim on the night of the offending. He became angry after reading the victim’s private text messages and suspecting her of infidelity. The offender’s controlling conduct continued throughout the physical assaults, with the appellant telling the victim that she could not shower, and was required to “go to bed to live in [her] shame”. In other words, the acts of physical violence occurred in a broader environment of emotional manipulation.
The need for deterrence (both general and specific) and denunciation was high. As Bell CJ recently explained in R v Thompson [2025] NSWCCA 133 at [1], [5] – [6]: Domestic violence is a scourge that afflicts modern Australia. Regrettably, this is not a fresh phenomenon. In a decision given almost 20 years ago, Johnson J, sitting as a member of this Court, surveyed cases over the previous decade highlighting the issue: R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [67]-[88]. Thus, for example, in R v Devine (Supreme Court of Tasmania, 5 July 1993, unreported), Underwood J had said: Domestic violence is a profound problem and it is the duty of the courts to denounce offences such as these and attempt to deter its recurrence by you and other men. The relationship of husband and wife, albeit estranged, is an aggravating factor for violence of this kind constitutes a breach of trust. It is also an abuse of power and control on one who, in the circumstances, was in a position of vulnerability. … By 2016, the High Court was able to observe that “current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations”: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [21]. This Court has routinely decried the commission of crimes of domestic violence and advised that it “must be dealt with sternly by the courts, to mark society’s strong disapprobation of such conduct, and to reinforce the right of women to live unmolested by a former partner”: Yaman v R [2020] NSWCCA 239 at [131].
Orders
Associate: Date:
Robin (a pseudonym)
DPP [2025] ACTCA 40
(2016) 259 CLR 256
Appeal dismissed. Neither alleged non-compliance with s 37 nor manifest excess was established [6], [70].
The victim then attempted to shower. When she turned the tap on, the appellant turned the water off, telling the victim “no, you can’t shower” and “you have to go to bed and live in your shame”. The appellant grabbed the victim and threw her to the ground. As she slumped beneath the towel rail, the appellant began punching the victim with closed fists. She curled up and attempted to cover her head with her arms. Several punches landed on the victim’s forearms, causing bruising. One punch connected with her right temple, causing swelling and redness. (Aggravated assault occasioning actual bodily harm: CC2023/9091).
Once the appellant stopped punching the victim, she got up and went to lay in bed. The appellant’s daughter, who was in her own bedroom, heard what had happened. She contacted family members by text and told them that her father was hurting the victim. She said that she was too scared to call the police, and was concerned because the appellant was her father. The family members called the police. Police arrived at the appellant’s home that night and arrested him. The appellant was remanded in custody.
On 18 September 2023, a Special Interim FVO was made which prohibited the appellant from contacting the victim except as permitted by the FVO. The appellant was served with a copy of the FVO on the same date in the Alexander Maconochie Centre (AMC), where he was detained.
On 11 October 2023, the victim attended her brother’s residence to collect some mail. The mail included an envelope addressed to all three of the appellant’s children. The back of envelope noted the appellant as the sender, followed by the address of the AMC.
The victim later opened the envelope and found a handwritten letter dated 19 September 2023 and addressed “To my beautiful family”. The victim noted that the appellant was addressing her directly, although not by name. (Contravene FVO: CC2023/10009). The letter said that the appellant was sorry, that he was suffering mentally, and that he did not “belong here”. The victim contacted police and reported the appellant’s letter.
The primary judge rejected the appellant’s invitation to impose partially suspended sentences, finding that each of the offences that occurred on 16 September 2023 required an immediate term of imprisonment, and that it was appropriate to proceed by way of a non-parole period. His Honour also held that there should be a “degree of concurrency” between the sentences for the offences which occurred on 16 September 2023.
The primary judge then imposed each of the sentences set out at [3] above. As can be seen from the above, the sentence for the first offence of aggravated choke (CC2023/9088) was accumulated on the sentence for the offence of aggravated choke render insensible (CC2023/9087) by 16 months. The sentence for the second offence of aggravated choke was fully concurrent. The sentence for the offence of aggravated assault occasioning actual bodily harm (CC2023/9091) was accumulated by 18 months. The sentence for the offence of contravening a FVO was dealt with by way of a good behaviour order.
At the conclusion of the reasons for sentence, the primary judge asked both parties if they had any issues to raise. Both parties responded in the negative. Determination
Similarly, in Urlich, the sentencing judge had made a finding that the offender had made “significant admissions which greatly shortened the length of the trial and reduced the number of witnesses which the Crown needed to call”: Urlich at [52]. However, the sentencing judge “did not comply with the terms of section 37 and did not state ‘the penalty [he] would otherwise have imposed”: Urlich at [53]. Following the decision in UG, the Court held that this was a “specific error of significance” which enlivened the discretion to resentence: Urlich at [53].
Importantly for present purposes, there was a clear breach of s 37 in both UG and Urlich. The question in UG and Urlich was as to the consequence of that breach. After those decisions, it is now clear that where s 37 is not complied with, the sentencing discretion must be re-exercised.
In contrast, the present case is concerned with the anterior question of when there will be non-compliance with s 37. Specifically, how much detail is required to satisfy the provision? Here, the sentencing judge did not expressly indicate the sentence that he would otherwise have imposed, but did state the discount that was being applied (namely “approximately 25%”), from which the sentence that would otherwise have been imposed could be calculated.
The appellant submitted that the mandate in s 37 requires the judge to go further, and to expressly state the numerical starting point of the sentence before the application of the discount.
In response, counsel for the Director submitted that the compliance with s 37 should be considered as a “matter of substance rather than form”. She submitted that: Whether or not it may have been more desirable in the circumstances for his Honour to have specifically stated the numerical figures for the undiscounted sentence, the failure to do [so] does not constitute error. The requirement in s 37(2) and the policy of transparency behind it can be achieved in different ways, but did not oblige his Honour to state the precise numerical starting point for the sentences he would have otherwise imposed.
As counsel for the Director observed, in Blundell v The Queen [2019] ACTCA 34, this Court rejected the contention that s 37 requires the express specification of a numerical starting point in every case, and is not satisfied by a statement of the discount that is applied, from which the starting point may be discerned.
In Blundell, the sentencing judge had, like the primary judge, stated that the sentences to be imposed would be reduced “by approximately 25%”: Blundell at [6]. Mr Blundell contended (amongst other grounds of appeal) that this statement did not satisfy s 37.
The Court in Blundell observed that “at first sight the wording of s 37 would appear to support the appellant’s contention”. However, the Court then continued (at [25]–[26]): The assumption of error is not necessarily one that this Court adopts. The intent of s 37 is to inform an offender that he has been given a discount for his plea of guilty (or for his assistance to the administration of justice or to law enforcement authorities). It may not matter whether the statement of the discount is expressed as a percentage without the necessary calculation being described to the offender. A person who receives a sentence having been informed that it has been reduced by, say 10%, should have little difficulty in working out the sentence before reduction. It is also important to note that his Honour allowed a reduction of “approximately 10%” which allowed for a degree of rounding off in order to assist in the structure of the overall sentence. In particular, in a case such as the present where there were so many sentences to be imposed, his Honour’s approach was entirely appropriate.
The appellant submitted that the above observations were made in obiter. This submission may be accepted. As the Court found error on other grounds (namely, that the quantum of the discount afforded for the guilty plea was too low and that the non-parole period was excessively high), the Court was required to resentence Mr Blundell.
Although not strictly binding, the approach of this Court in Blundell should be followed. Viewed both textually and purposively, the requirements of s 37 of the Sentencing Act are met where the sentencing judge states sufficient information in the sentencing judgment to enable the starting point of the sentence imposed to be calculated. Accordingly, whilst it is preferable for a sentencing judge to expressly state the starting point as well as the discounts to be applied, s 37 is not contravened where a discount is specified with sufficient clarity to enable the starting point to be ascertained.
In the present case, it is tolerably clear that the starting points for the sentences were as follows: - Aggravated choke render insensible: Starting point of 5 years and 1 month (61 months), reduced by 25% to 45.75 months, rounded up to 3 years and 10 months (46 months); - Aggravated choke: Starting point of 2 years and 11 months (35 months), reduced by 25% to 26.25 months, rounded down to 2 years and 4 months (26 months); - Aggravated choke: Starting point of 2 years and 11 months (35 months), reduced by 25% to 26.25 months, rounded down to 2 years and 4 months (26 months); - Aggravated assault occasioning actual bodily harm: Starting point of 2 years and 1 month (25 months); reduced by 25% to 18.75 months, rounded up to 1 year and 7 months (19 months).
In the present case, the primary judge specified the discount with sufficient clarity to enable the starting points of each sentence to be worked out. Accordingly, s 37 has not been contravened. It follows that this ground of appeal should be dismissed.
These observations apply with equal force in this Territory.
The community rightly expects that Courts will vindicate and protect the lives of victims of domestic violence. So much was made clear by the enactment of the Family Violence Legislation Amendment Act 2022 (ACT) (the 2022 Amending Act), which increased the maximum penalty for offences of choke from 10 years to 13 years’ imprisonment. As the Explanatory Statement for the 2022 Amending act emphasised: Setting higher maximum penalties for aggravated offences provides guidance to the courts and the ACT community about the seriousness of family violence offences compared to other offences. The higher maximum penalties will help to prevent family violence offending by deterring individuals from committing these offences. The penalties will also help to protect the community and victims from the risk of further harm from family violence offenders by allowing longer terms of imprisonment to be imposed and operate as a mechanism to publicly recognise the harm done by family violence offending.
The clear intent of Parliament must be followed. As the NSW Court of Criminal Appeal has held: Where there has been a change in the policy of the legislature to a particular type of criminal conduct, judicial attitudes to that conduct must respect the change of policy and reflect it in the sentences imposed on those who commit offences under the new statutory regime. Woodward v The Queen [2017] NSWCCA 44 at [40] (citing R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [66]).
It may be accepted that the appellant had a strong subjective case, which included matters which both reduced the appellant’s moral culpability for his offending and which weighed in favour of imposing a sentence which facilitated his rehabilitation.
As a child, the appellant was subjected to violence at the hands of his father, and witnessed his father physically abusing his mother and siblings. The appellant started consuming alcohol as a child when he was only 8 or 9 years old, and was drinking every day or every second day by age 14. The effects of this upbringing upon the appellant’s moral development, understanding of relationships, and capacity for self-control are clear: ‘Early Exposure to Alcohol and Other Drug Abuse’, Bugmy Bar Book (November 2019); ‘Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence’, Bugmy Bar Book (May 2024). In these circumstances, the sentencing judge properly accepted that the weight to be given to general deterrence and punishment should be moderated: DPP v Robin (a pseudonym) [2024] ACTSC 322 at [36].
Despite his profoundly disadvantaged childhood, the appellant has maintained consistent employment, and had no criminal history until 2014, when he was then in his late 20s. At that time, the appellant was convicted and sentenced for offences of stalking and common assault in a domestic violence context. He successfully completed an 18 month good behaviour bond for these offences.
Following his arrest for the present offences, the appellant has taken advantage of opportunities for rehabilitation. He has engaged with the Supports and Interventions Unit of the AMC, focussing on “substance addiction” and “relationship counselling”. He has also engaged with the Solaris Therapeutic Program. He has been described as making “considerable progress in understanding his treatment issues and demonstrating behavioural change”. He has not consumed any alcohol in custody.
Although there was some dispute about the matter in the written submissions, we also accept that the appellant was remorseful for his conduct. As senior counsel for the appellant submitted, the appellant did not attempt to justify his actions, nor to minimise his culpability to the author of the Court Duty Report. Significantly, the appellant gave evidence on affirmation in the sentence hearing, in which he said that he felt “disgusted” about his actions, and acknowledged that “no one should ever have to put up with living in fear”.
In his oral submissions, senior counsel for the appellant drew a comparison between a “good painting” and a “good sentence”, noting that each incorporates “both light and shade”. The sentence imposed by the sentencing judge did precisely that. Whilst recognising, particularly in the imposition of the head sentence, the importance of the need to protect the community, to denounce the offending, and the need for general deterrence, the sentence also afforded the appellant a considerable degree of leniency, most particularly in the setting of a non-parole period of two years and nine months. This non-parole period, which was slightly over 50% of the head sentence, will afford the appellant some two and a half years of supervised parole, to facilitate his rehabilitation, and also recognises his reduced moral culpability.
Contrary to the appellant’s submissions, the comparative cases do not demonstrate that the sentences imposed by the sentencing judge are manifestly excessive.
All but one of the comparative sentences for the most serious charge of choke render insensible identified by the appellant involved offences that were committed before the maximum penalty was increased from 10 years to 13 years imprisonment. The appellant submitted that the increase did not “entirely affect the validity of the comparative cases as yardsticks” because a family violence context was previously accepted by the courts as an aggravating factor; whereas after the increase in the maximum penalty, this matter can no longer be so characterised: see DPP v Hojlund [2025] ACTSC 211 at [88]–[89]. If, by this submission, the appellant was contending that the alteration in the maximum penalty should have no, or little, effect on the sentences to be imposed for offences of this nature, that submission must be rejected. As the High Court emphasised in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [31], an increase in the maximum penalty for an offence is an indication that the sentences for that offence ought to be increased.
Nor has the appellant demonstrated that there is any error in the degree of concurrency afforded. It is well-established that “questions of concurrency and accumulation are discretionary matters for a sentencing judge and there may be a variety of means to achieve a total sentence that appropriately reflects the totality of the criminal behaviour”: CX v The Queen [2017] ACTCA 37 at [28].
As counsel for the Director submitted, in the present case, each offence involved separate criminality, which could not be reflected in fully concurrent, or even largely concurrent sentences. They each involved separate harm to the victim. It was appropriate for the cumulation of the violence and harm which the appellant inflicted upon the victim to be reflected in partially cumulated sentences. Further, the sentencing judge did impose fully concurrent sentences for two separate offences of aggravated choking, which was a generous approach in circumstances where each of those offences occurred at separate points in time, and involved a separate risk to the victim.
The appellant has not demonstrated that the sentences imposed were manifestly excessive.