SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Carmody

Citation: [2016] ACTSC 382

Hearing Date: 7 December 2016

Decision Date: 16 December 2016

Before: Refshauge J

Decision: 1. Jakson Mark Carmody be convicted of recklessly inflicting grievous bodily harm on the victim on 11 July 2015.

2. Jakson Mark Carmody be convicted of damaging property on 11 June 2015.

3. The sentencing be adjourned to 9:00am on 24 February 2017.

4. Bail be continued with the following additional conditions:a. that he report to ACT Corrective Services, Level 1,

249 London Circuit, Canberra City, by 4:00pm today to make arrangements for an assessment of his suitability for an Intensive Correction Order; and

b. that he co-operate with ACT Corrective Services in the assessment for an Intensive Correction Order and obey all reasonable requirements made of him for that assessment.

5. The transferred charge of causing damage to property on 11 June 2015 be dismissed.

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflicting grievous bodily harm – damaging property – alleged provocation – fear for concern of safety – victim sustained “really serious injuries” – broken arm caused by a blow by a baseball bat – no relevant premeditation – subjective circumstances – breach of Good Behaviour Order – cancellation of Good Behaviour Order – consideration of circumstances lead to a period of imprisonment – request for assessment for suitability for an Intensive Correction Order – general deterrence

Legislation Cited: Crimes Act 1900 (ACT), ss 19, 20Crime (Sentence Administration) Act 2005 (ACT), s 110Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 40A, 40A(j) and 40A(l), 42(1)(a), 56, 77Evidence Act 2011 (ACT), s 80(a)Magistrates Court Act 1930 (ACT), s 90BSupreme Court Act 1933 (ACT), s 68CA, Pt 8

Criminal Code 2002 (ACT), s 403

Cases Cited: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 Attorney-General (SA) v Tichy (1982) 30 SASR 84 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Carberry v The Queen [2013] ACTCA 20Chan & Lee (1989) 42 A Crim R 160 Channon v The Queen (1978) 33 FLR 433 Davey (1980) 2 A Crim R 254 Guy v Anderson [2013] ACTSC 5 Gyory v The Queen [2012] ACTCA 28Halden (1983) 9 A Crim R 30 Hogan v Hinch (2011) 243 CLR 506 Jones v Dunkel (1959) 101 CLR 298Muldrock v The Queen (2011) 244 CLR 120 Okutgen (1982) 8 A Crim R 262 Poole v Edwards [2016] ACTSC 159, 76 MVR 351 Quesada (2001) 122 A Crim R 218Reberger v The Queen [2011] NSWCCA 132R v AJS [2005] VSCA 288; 12 VR 563 R v Amosa [2015] ACTSC 34 R v Byrne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 3 February 2014)R v Campbell [2010] ACTCA 20 R v Carmody (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 31 July 2009)R v Carmody (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 27 July 2012)R v Charnock (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012)R v Creighton [2011] ACTCA 13 R v Curtis (No 2) [2016] ACTSC 34 R v Davies (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 17 July 2013)R v De Simoni (1981) 147 CLR 383R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105R v Doherty [2003] VSCA 158; 6 VR 393 R v Douglass [2004] VSC 372; 146 A Crim R 590R v EL [2016] ACTSC 241R v Esho [2001] NSWCCA 415 R v. Evans (1975) 24 CCC (2d) 300; 11 NSR (2d) 91R v GK (2001] 53 NSWLR 317 R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v JM [2014] ACTSC 380 R v JS (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 24 July 2013)R v Kristiansen [2015] ACTSC 159R v Laipato (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 16 September 2010) R v. Lauzon (1977) 19 Criminal Law Quarterly 275 R v Lee [2016] ACTCA 69R v Martin [2013] ACTSC 280R v McFarlane (1993) 2 Tas R 201 R v Merritt [2004] NSWCCA 19; 59 NSWLR 557

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R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94R v Neish (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 24 May 2013)R v Ngerengere (No 3) [2016] ACTSC 299R v O'Brien (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 10 June 2008) R v Pumpa [2014] ACTSC 223 R v RC (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 19 October 2012)R v Seretin [2016] ACTSC 45 R v Sharma [2016] ACTSC 180 R v Shevlin [2013] ACTSC 88 R v Thawer [2009] NSWCCA 158 R v Torbert [2015] ACTSC 331R v Tosland (1981) 3 Cr App R (S) 365R v Webb (Unreported, Supreme Court of the Australian Capital Territory, Crispin J, 28 August 2003)R v Williams [2015] ACTSC 406 Saga v Reid [2010] ACTSC 59 Stewart v The Queen [2012] NSWCCA 183 VIM v Western Australia [2005] WASCA 233 Wong v The Queen (2001) 207 CLR 584

Texts Cited: Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009)

Parties: The Queen (Crown)

Jakson Mark Carmody (Defendant)

Representation: CounselMr T Hickey (Crown)

Ms L Taylor (Defendant)

SolicitorsACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Defendant)

File Numbers: SCC 258 of 2015

SCC 259 of 2015

REFSHAUGE J:

1. Physical violence in our community is apt to disrupt the peaceful life of the community and is regarded by courts as serious. The courts must, therefore, do what is appropriate to denounce such violence and, although the courts obviously cannot prevent violence that has already occurred or eradicate its effects, it should make clear to the community and to offenders that such acts are prohibited.

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2. Standing for sentence before me is Jakson Mark Carmody, who has pleaded guilty to recklessly inflicting grievous bodily harm on one victim and damaging property, namely the front and rear passenger windows of a motor vehicle, belonging to another victim.

3. Recklessly inflicting grievous bodily harm is an offence under s 20 of the Crimes Act 1900 (ACT) for which the maximum penalty is imprisonment for 13 years.

4. Damaging property is an offence against s 403 of the Criminal Code 2002 (ACT) for which the maximum penalty is 1000 penalty units (at the time a fine of $150 000) or imprisonment for 10 years or both.

5. Judged by the maximum penalties, this Court is required to regard the offences as serious: Muldrock v The Queen (2011) 244 CLR 120 at 133; [31]. I had helpful submissions from both the Crown and Mr Carmody’s counsel which assisted me in preparing these reasons. I am grateful for that assistance.

The facts

6. I had a Statement of Facts tendered by consent. Mr Carmody gave oral evidence. From this material, I make the following findings.

7. On 11 June 2015, Mr Carmody was living with his partner as public housing tenants of a home in Waramanga.

8. For some time there had been disputes between Mr Carmody and his partner and a regular visitor to the home next door. That visitor, the victim of the offence of personal violence, had from first contact an unfriendly relationship with Mr Carmody and his partner. The disputes seemed mostly with Mr Carmody's partner.

9. Indeed, the disputes had led Mr Carmody and his partner to seek a transfer of their housing tenancy to other premises to escape the ongoing disputes.

10. Mr Carmody told me in evidence that the police had frequently been called by him or his partner to the premises because of those disputes, but they had had either taken no action or been unable to provide any assistance in quelling the dispute. The Crown, who would have had access to the records of the police and who knew of this issue from Mr Carmody's interview with police, did not adduce any evidence to dispute this and I can more confidently rely on this evidence: Jones v Dunkel (1959) 101 CLR 298.

11. In cross-examination, this issue was raised when Mr Carmody was asked what steps he had taken to pursue other avenues to resolve the ongoing dispute. Indeed, it was put to him that he made “zero efforts” to get a Personal Protection Order. He agreed that he personally had not. It may be that he would personally not have had a basis for doing so as it appears that the disputation was directed to his partner.

12. He was asked in re-examination about what he had told the police when they interviewed him, namely that he had sought police help from time to time and that the police would likely have such complaint on record.

13. This was legitimate re-examination, even though there had been no ambiguity about the answer he had earlier given. As Maxwell P, Nettle JA and Redlich AJA said in R v AJS [2005] VSCA 288; 12 VR 563 at 575-6; [48]:

The basic rule is that re-examination is confined to matters arising out of cross-examination. It is not, however, confined to the clearing up of ambiguities that have arisen in the course of cross-examination, but extends to answers given in

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cross-examination which, if left unexplained, may not constitute the whole truth or would leave the tribunal of fact with a distorted or incomplete account, to the disadvantage of the side which called the witness.

14. I note that shortly after the incident which gave rise to the charges against Mr Carmody, his partner was able to have issued at her request a Personal Protection Order against the victim. Why that was not done earlier and, for example, why it had not been recommended by police, is unclear, as it was not addressed in the evidence.

15. Finally, at some cost to them, Mr Carmody and his partner moved into private rental accommodation before, in September 2015, moving to Sydney.

16. The incident out of which the offences arose occurred on 11 June 2015. The victim drove his mother's car to the house of the neighbour of Mr Carmody and his partner. He went inside and “had a beer” and, about 30 minutes later, decided to leave.

17. When he went outside, he noticed egg on the passenger side of his mother's car, which faced Mr Carmody's house. He got out of the car and asked the occupants of the house to come and look; they did so and saw egg on the car.

18. The victim loudly asked who had thrown egg on his car and, shortly after, Mr Carmody's partner came out and denied that she or Mr Carmody had thrown any egg and an argument commenced. The argument appears to have been quite loud and included much swearing.

19. At this time, Mr Carmody said that the victim had been kicking their letterbox. The victim apparently denied that and no damage was observed by police who attended the scene. That, of course, did not prove that the victim did not kick the letterbox, only that it was not damaged. It would appear, therefore, that the kicking of the letterbox was not very severe. Mr Carmody repeated the allegation in oral testimony he gave to me. I make no finding on this issue.

20. The argument continued and Mr Carmody came outside. He said that he had some concern for the safety of his partner. He then returned to the house and collected a metal baseball bat which he held with both hands moving directly towards the victim.

21. The victim and Mr Carmody were yelling at each other and Mr Carmody swung the baseball bat at the victim making contact with his left arm which he had raised to defend himself. There was a cracking sound and the arm bent in a deformed manner. The victim experienced extreme pain.

22. Mr Carmody accepted that this was a disproportionate response to any concern he felt for the safety of his partner. The Crown suggested that the fact that Mr Carmody had come outside but then left to go back inside of his house and return with the bat showed that the asserted concern for his partner's safety was not genuine. He was asked, “Why did you leave [your partner] out there, unprotected, with him, while you go and get the bat, if you were so worried about her?”

23. Mr Carmody replied that the bat was “only eight metres” away. It seems to me that the question assumes that there can be only one level of safety concern – immediate and serious – and that this would be inconsistent with any departure of Mr Carmody from the scene. I do not accept that this is the only level of safety concern that would explain, though not justify, Mr Carmody's action.

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24. In addition, of course, Mr Carmody was aware that, at the time, he and his partner, who had two young children, were facing two males and a female from next door. He said this in his evidence. To have taken action without the support gained from the weapon may have rendered him vulnerable. That does not mean I think Mr Carmody's action is justifiable, just explicable in terms of the reality of human experience.

25. I am satisfied that Mr Carmody's action in going back eight metres into the house, which would, as he said, have taken no more than 10 seconds, was not inconsistent with a fear he had for the safety of his partner.

26. Having hit the victim once, Mr Carmody then used the baseball bat with both hands to smash the rear passenger side window and the front passenger side window. The victim's dog, “Bonnie”, which had been sitting in the back seat of the car, leapt out and ran away.

27. Mr Carmody ran back into his house, carrying the baseball bat with him, and his partner, after remaining outside yelling abuse at the victim for a short time, then also returned to the house.

28. Both Mr Carmody's partner and the next-door neighbour called for police assistance. The neighbour also called for the ambulance service to attend.

29. Despite his seriously broken arm, the victim, very concerned about his dog, went to find her.

30. Police later arrived. Initially, Mr Carmody's partner, stupidly and unhelpfully to him as well as to the police, denied that Mr Carmody was in the house. Finally, however, he emerged from the house and was arrested and transported to Woden Police Station. Mr Carmody was interviewed by police and foolishly maintained that he had not left the house since returning home shortly before the incidents. He said to me in his testimony that they had purchased some take away food and he and the family were having their meal when the victim started abusing them about the egg on the car. He denied that either he or his partner had thrown any eggs at the victim's car.

Injuries

31. The victim was taken by ambulance to the Canberra Hospital where it was found he had the following injuries:

(a) comminuted fractures of the left ulna with a radial displacement of the distal fragment of the ulna by 1 cm;

(b) the comminuted fractures of the left radius and mid to distal shaft of a dorsal displacement of the radial fracture fragment by 1 cm;

(c) soft tissue swelling around the fractures; and

(d) damage to the extensor pollicis longus tendon.

32. A comminuted fracture means that the bone of the victim's left lower arm was shattered into small pieces. A displaced fracture means that the bone has moved from its normal anatomical position and is more likely to require surgical intervention.

33. In fact, the victim did undergo a surgical procedure involving an open reduction and internal fixation of the fractures under general anaesthetic. The procedure involved placement of metal plates and screws.

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34. On 29 June 2015, the victim underwent further surgery under general anaesthetic due to a tendon rupture and lack of movement in his thumb. He has continued to experience persistent displacement of his radius despite the surgical procedure and the application of a plaster cast.

35. A report was, it appears, obtained by the Crown from Associate Professor Venita Parekh. I did not have a copy of the report. Some comments were set out in the Statement of Facts. She noted that the victim will have permanent scarring and may experience ongoing pain, reduced mobility, an increased risk of arthritis and psychological dysfunction. The injuries to the left forearm were in keeping with the defensive injuries.

36. Associate Professor Parekh expressed an opinion that the injuries to the victim's forearm were “really serious injuries”. I have concerns about the expression of such an opinion. The courts have defined grievous bodily harm as harm that is “really serious injury”: R v Shevlin [2013] ACTSC 88 at [30]-[31]. That is to say, in order for injuries to constitute grievous bodily harm, a judge of fact, whether a Magistrate, jury or Judge, must find that it is really serious injury.

37. Thus, the question of whether personal injuries constitute really serious injury is a matter of fact that is within the common understanding of members of the community. It is, of course, part of the “ultimate issue” in the proceedings.

38. While s 80(a) of the Evidence Act 2011 (ACT) permits the expression of an opinion as to the ultimate issue, Mason P pointed out in R v GK (2001] 53 NSWLR 317 at 326-7:

[J]udges should exercise particular scrutiny when experts move close to the ultimate issue, lest they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions.

39. See also Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 83.

40. It is not clear whether Associate Professor Parekh was requested to express that opinion or whether she offered it. It seems to me that the expression of such an opinion risks Associate Professor Parekh being seen as an advocate rather than an expert. The question of whether injuries are really serious or not is not a matter of expertise, but is a matter on which the judge of the fact is able to make a judgement based on the relevant facts. See Quesada (2001) 122 A Crim R 218.

41. In any event, by his plea of guilty, Mr Carmody accepts that the injuries are really serious, as he admitted by his plea that he caused grievous bodily harm.

The Proceedings

42. Mr Carmody was arrested on 11 June 2015. He remained in custody until he appeared in the ACT Magistrates Court the next day on 12 June 2015, when he was granted bail. He has effectively spent one day in custody.

43. On 27 August 2015, he entered a plea of not guilty and, after some further adjournments, including a change of solicitor, he was, on 26 November 2015, committed to this Court for trial.

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44. An indictment containing three counts was filed. The first count alleged that he caused damage to the two windows of the victim's mother's motor vehicle. He was also charged with intentionally inflicting grievous bodily harm on the victim and an alternative count of recklessly inflicting grievous bodily harm on the victim was also preferred.

45. On 23 May 2016, the matter was directed to be listed for trial in the week commencing 29 August 2016 and, on 24 August 2016, Mr Carmody was arraigned. He pleaded guilty to the first count on the indictment of damaging property and the third count, the alternative count, of recklessly inflicting grievous bodily harm.

46. Those pleas were accepted in full satisfaction of the indictment. I note that no notice declining to proceed with the second count on the indictment has been filed as provided for in R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 at 113; [45]. It may be that, in the circumstances, where the plea is entered to an alternative count, the filing of such a notice is not required. I have not heard argument and do not need to decide.

47. The matter was originally listed for sentence before Penfold J on 12 October 2016. That was not inappropriate because her Honour had previously dealt with Mr Carmody in 2009 and 2012. See R v Carmody (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 31 July 2009), and R v Carmody (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 27 July 2012).

48. Indeed, as noted below, the conviction which I shall enter in these proceedings will constitute a breach of the Good Behaviour Order made in the latter proceedings.

49. In any event, for reasons that are not apparent to me, that sentencing hearing was vacated and the matter was listed before me the next day.

50. On that day, I was requested to seek a Pre-Sentence Report and a Court Drug and Alcohol Assessment Service Report (CADAS), and the proceedings were adjourned to 7 December 2016 when the sentencing proceedings were heard.

The Offence

51. As noted above, the maximum penalty for the offence of recklessly inflicting grievous bodily harm requires that it be regarded as a serious offence. Indeed, as I pointed out in R v Martin [2013] ACTSC 280, there is a need to protect the community from violent conduct.

52. In assessing the objective seriousness of the offence, the harm done is important. The Court of Appeal in R v Campbell [2010] ACTCA 20 at [37], adopted what Howie J, with whom Giles JA and Latham J agreed, said in R v Thawer [2009] NSWCCA 158 at [43]:

Although other factors are obviously relevant to an assessment of the seriousness of an offence of inflicting grievous bodily harm, to a very significant degree the seriousness of the offence will depend upon the degree of harm suffered by the victim...

53. In this case, I have set out above (at [31]), the injuries sustained by the victim. Some of the future disabilities were also identified in Associate Professor Parekh's report, though, in the absence of a Victim Impact Statement, it is speculative as to whether any of those have eventuated or, indeed, will eventuate. Nevertheless, the injuries were serious; that is inevitable for the offence. As the Crown properly conceded, however, one blow only was delivered by Mr Carmody, although obviously one of some force, sufficient to break bones and break them seriously. Mr Carmody said in the

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evidence he had never struck anyone before and there was no basis for me to reject that finding. He said that, accordingly, he was unable to assess whether it was a very hard blow or not, although it must have been delivered with significant force for the injuries received to have been sustained.

54. There is no doubt that where there is “a degree of preparation and deliberation involved” in an offence, this is a relevant factor in determining an appropriate sentence for the offence: R v McFarlane (1993) 2 Tas R 201 at 203; Chan & Lee (1989) 42 A Crim R 160 at 164. This factor is sometimes described as premeditation: see Okutgen (1982) 8 A Crim R 262 at 266; R v Tosland (1981) 3 Cr App R (S) 365.

55. It is often contrasted with acts that are impulsive or spontaneous or committed in the heat of the moment or being spur of the moment reactions: see Okutgen; Reberger v The Queen [2011] NSWCCA 132 at [89]; R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at 576; [71].

56. Such premeditation or planning can be an aggravating factor: R v Douglass [2004] VSC 372; 146 A Crim R 590 at 601.

57. Usually, it is necessary to consider the degree of premeditation before finding whether it is an aggravating feature; it will aggravate where there is significant planning, and in some jurisdictions, where it is related to organised crime as in R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 at 373; [69].

58. In this case, the Crown submitted that there was a degree of premeditation. This was because Mr Carmody came out of the house engaged in some yelling with the victim, and then returned to the house to collect the baseball bat with which to hit the victim.

59. It is, perhaps, a metaphysical exercise to make a distinction in such a case between premeditation and spontaneity or impulsiveness. The Crown admitted that it was not “a planned attack” but submitted that it was “quite premeditated or thought out, in that he deliberately left the argument to go back inside his house to get the baseball bat to mete out justice”. That seems to me that there was no more premeditation than was necessary to account for the formation of the relevant intent. Such was held by the Victorian Court of Appeal in R v Doherty [2003] VSCA 158; 6 VR 393 at 405; [17]; 414-5; [36] to be, relevantly, for sentencing, an unpremeditated crime. As the Quebec Court of Appeal decided in R v. Lauzon (1977) 19 Criminal Law Quarterly 275 at 285, the “premeditation was short-lived” and the offence arose out of “a sudden impulse”. See also R v. Evans (1975) 24 CCC (2d) 300; 11 NSR (2d) 91.

60. It does not seem to me that, on the authorities, spontaneity or impulsiveness is inconsistent with the kind of intentionality that is inherent in the Crown's submissions. That must be clear from the facts and the Court description of the acts as “spontaneous and impulsive” in R v Merritt. Clearly an instantaneous reaction is unarguably spontaneous and impulsive. It does not seem to me that what happened here is appropriately to be described as premeditated. As Mr Carmody himself said in evidence:

I didn't sit down and write down my options and read them out and go, “Oh well”. It was just a spur of the moment.

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61. I do not consider that there was any relevant premeditation that aggravated the offence.

62. The Crown submitted that it was “quite nonsense” to suggest that Mr Carmody had any concern for the safety of his partner. That seems based entirely on the fact that he left her yelling at the victim, went inside and obtained a baseball bat. I have generally dealt with that above (at [25]) but, it does not seem to me that those acts are necessarily inconsistent. Indeed, given Mr Carmody's concern that there were two people, including a male, with the victim, it is unsurprising that he may have sought a weapon. That, of course, does not mean that this was not, as identified by the Crown, a vicious attack, which needs to be taken seriously in sentencing.

63. It was, however, to be taken in the context of the ongoing frustration Mr Carmody must have felt about the disputes he was having with his neighbour and their visitor, for which he got no relief from either the police or the housing authorities.

64. It is also relevant that, notwithstanding the apparent anger, which Mr Carmody experienced and which he acknowledged, and the frustration he was feeling, he hit the victim once only. This does not seem to me be consistent with an intention to “mete out justice”. It is also consistent with Mr Carmody's unchallenged assertion that he had not been violent before.

65. The Crown also submitted, apparently relying on R v Esho [2001] NSWCCA 415 at [142], that I should draw the reasonable inference that Mr Carmody swung the baseball bat with the intention of inflicting serious harm on the victim.

66. I have two problems with that submission, which I reject. In the first place the authority, which I have read, does not seem to stand for the asserted proposition; indeed, it seems to stand for the second reason for rejecting the submission.

67. The second reason for rejecting the submission is that to draw the inference as suggested, and to act on it, would mean I was imposing sentence for the more serious offence under s 19 of the Crimes Act. This would, as noted in R v Esho, breach the principles in R v De Simoni (1981) 147 CLR 383. I shall not do so.

68. While a serious offence, with some aggravating features, including the level of harm actually done, there were also some explanations which moderated the seriousness of the offence. I deal with that elsewhere in these reasons.

69. The damaging property, consisting of the breaking of the windows, was also a relatively serious offence, judged by the maximum penalty, though it can be committed in a very wide variety of circumstances. As pointed out in Halden (1983) 9 A Crim R 30 at 36, the circumstances under which the offence was committed and the amount of damage caused are relevant.

70. The circumstances are, of course, the same matters as are relevant to the other charge, and I take them into account. The amount of damage for which compensation was claimed was $250. Whilst that is not a large amount, there is, of course, the inconvenience of having to have the windows repaired, but it was less inconvenient than if the damage had rendered the car unable to be driven at all.

71. Nevertheless, this is not a particularly serious version of the offence and I did not understand the Crown to contend otherwise.

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Subjective circumstances

72. A Pre-Sentence Report and CADAS Report were admitted into evidence. In addition, I had oral evidence from Mr Carmody and his father and I also had a number of character references. From this material and the submissions of counsel, I can make the following findings.

73. Mr Carmody was born in 1986 and is now 30 years old. He was born locally, the fourth of five children to his parents. His parents were loving and supporting, but Mr Carmody clearly suffered from behavioural and possibly mental health issues.

74. This showed itself particularly at school but also at home. I did not have any formal medical or psychological material from which I could be helped to understand the aetiology and nature of these problems. I note that Penfold J in her 2009 decision in R v Carmody at p 4, referred to his mother suggesting the possibility of “some sort of autism spectrum disorder”. Her Honour also had a report from Dr Bruce Stevens, who diagnosed a major depressive disorder, to which I will return below (at [104]).

75. In any event, Mr Carmody had a difficult schooling. In primary school, he was, as described by his father, “disruptive”. He clearly did not fit in and that made school difficult. Indeed, Mr Carmody's father described his attendance at his second school as spending “more time outside the classroom than he did inside the classroom”. He appeared to learn nothing at school, though his parents attempted to teach him the basics, over Mr Carmody's resistance.

76. A change of school made little difference, and it was at this new school that Mr Carmody was introduced to cannabis, at age 14, smoking up to one gram or more a day up to 2012. He left school having completed year 10.

77. The use of drugs clearly addressed some of his problems, so he accelerated into greater use, and by age 15 was using amphetamines, with daily use from age 16.

78. Mr Carmody's drug use was confined to alcohol, cannabis, and amphetamines. He began the use of all three at an early age, cannabis and alcohol when he was 14 and amphetamines when he was 15. The alcohol use has not been problematic.

79. He had no treatment with pharmacotherapy but did participate in a program at the Karralika Therapeutic Community (as to which, see R v Kristiansen [2015] ACTSC 159 at [12]-[14]). He also attended the William Booth Program in Sydney and the Canberra Recovery Services Program (CRS) (as to which see R v Ngerengere (No 3) [2016] ACTSC 299 at [70]).

80. In the meantime, however, home life did not get much better. He would experience what his father described as “incredibly dark moods” but without any violence. Mr Carmody's father stated that, although Mr Carmody made life very difficult for the family, he did not commit acts of violence against persons or property.

81. So far as violence against persons is concerned, this is supported by his criminal record. While he has been found guilty of two offences of common assault and one offence of assault occasioning actual bodily harm, the latter, and one of the common assault offences were committed a long time ago, and of the 33 offences for which Penfold J dealt with Mr Carmody in 2009 and the 23 offences set out in a List of Additional Offences under s 56 of the Crimes (Sentencing) Act 2005 (ACT) taken

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into account by her Honour, none were offences of violence. There were, however, 11 offences of damaging property.

82. I had the Statement of Facts of the offences of damaging property involved and they related to the smashing of car windows from which he stole property.

83. This does not show a propensity for violence against property such as may be wanton or borne of frustration or anger as opposed to being perpetrated for the purpose of facilitating other offences, principally theft.

84. In any event, the descent to drug use, as well as apparently exacerbating the dark moods, had other effects, in that money was not safe in the house and his parents became so challenged by his behaviour that contact became a source of great anxiety, even described as terrifying.

85. This led to a breakdown in the family relationship. The family did support him, but the drug use led to criminal activity. His first offence dealt with by a court was an assault occasioning actual bodily harm, but I had no other information and the offence cannot have been a serious version of the offence for he was given a non-conviction order and a Good Behaviour Order for 12 months with supervision.

86. It was not until more than four years later that he next offended and there followed a number of offences in the next 12 months or so.

87. The relationship with his parents led to Mr Carmody being effectively banned from contact with them. Indeed, his father described the attitude in which he said to Mr Carmody, “You come near me and I will call the police.” It was, he said, like walking on eggshells, because if he was in a dark mood he would become argumentative and disagreeable and start yelling, which was clearly very frightening. It distressed Mr Carmody's mother and was obviously distressing and disruptive for the other children.

88. When Mr Carmody left school, he obtained employment with a car detailer. He turned out to be “incredibly good at buffing cars”.

89. In 2007, he committed dishonesty offences in New South Wales, and then began committing a series of offences in both ACT and New South Wales over the next two years. This led to the first sentencing by Penfold J in the 2009 decision R v Carmody. He spent 282 days in custody when bail was refused, and also spent 155 days in residential rehabilitation.

90. Her Honour was impressed by the progress he made at the residential drug rehabilitation facility, Triple Care Farm. Her Honour said in the 2009 decision R v Carmody at pp 4-5:

After the failure of his CRS rehabilitation attempt and the further offending, Mr Carmody was, in reliance on the support of his family, bailed to attend Triple Care Farm in the New South Wales Southern Highlands. He made some progress there, but was eventually asked to leave as a result of conflict with other residents. Mr Carmody spent a further period in custody after that, but earlier this year he was readmitted to Triple Care Farm and this time he made significant progress in dealing with both his drug abuse and the likely underlying causes, in particular he is medicated for depression. I note at this point the most recent, a very positive report from Triple Care about Mr Carmody's completion of that program.

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Mr Carmody's case coordinator at Triple Care Farm reported:

Jakson has shown a real commitment to the program at Triple Care Farm this year, he is getting involved in every aspect of the program, and is managing other student conflicts very well. Jakson is focussed on achieving his goals and making the most of his time here.

Triple Care Farm staff advised the pre-sentence report author that Mr Carmody was progressing well and has a positive attitude to rehabilitation. Both the pre-sentence report author and the Triple Care Farm staff are optimistic about Mr Carmody's prospects for the future.

91. Penfold J imposed a total sentence of three years and eight months imprisonment immediately suspended with a two and a half year Good Behaviour Order. A major reason for that leniency was the progress he had made in rehabilitating himself.

92. Unfortunately, he breached the Good Behaviour Order by committing offences of theft and breaching a bail undertaking for which he was sentenced in the Magistrates Court to a total of seven months' imprisonment. Penfold J then had to deal with the breach, which was dealt with in 2012. In the 2012 decision R v Carmody, her Honour cancelled the Good Behaviour Order and re-sentenced him. That resulted in a total sentence of three years and six months backdated to 27 January 2011 of which he was to serve 12 months of that sentence with nearly three months concurrent with the Magistrates Court sentences. The sentence was suspended on 26 July 2013, effectively suspending 12 months of the sentence with a Good Behaviour Order. In the 2012 decision, R v Carmody, her Honour stated that it was a Good Behaviour Order for 18 months, but the sealed order of the Court stated that it was for three years. There had been other offences dealt with since her Honour's sentencing, but they related to offences committed before her Honour re-sentenced Mr Carmody.

93. His record is a challenging one for a man of his age. He has 47 offences on his record for which he has been found guilty. The vast majority, 27, are dishonesty offences, mainly burglary (including aggravated burglary), theft, and dishonestly taking and using motor vehicles without the owner’s consent. The next largest group of offences are nine offences of damaging property. He has been found guilty of breaching his bail undertaking on four occasions and twice breached other Court orders. He has appeared in Court for sentence on eight occasions. The occasion before Penfold J in 2009 involved, as noted above (at [81]), 33 of the 47 offences.

94. Apart from those offences, he has not been found guilty of any other offences since August 2012, which involved offences committed in 2011. Thus, apart from these offences for which I must sentence him, and they are, of course, serious, he has not been found guilty of any offences committed in the past five years. Given his prior record, that is not an insignificant factor relevant to sentencing.

95. These offences breach the Good Behaviour Order made by Penfold J in 2012. I shall deal with that below.

96. Mr Carmody's period in prison, however, proved to be something of a turning point. He ceased using drugs in custody and, since his release, has only used cannabis occasionally and no other illicit drugs. He completed the program of the Solaris Therapeutic Community, a program I have described in R v JM [2014] ACTSC 380 at [26]. He was also admitted to the Transitional Release Centre where he was able to be employed in the community.

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97. He obtained employment with an uncle who operated a vehicle repair business. This was beneficial for him as there were no drugs used and he seems to have blossomed. He started to believe in himself and appreciate the opportunity to integrate into the community.

98. He was offered an apprenticeship but declined because his real desire was to work with heavy machinery. When he was released from custody he obtained work with a local construction company, initially as a labourer but later driving machinery, and became a backhoe operator.

99. When he relocated to Sydney, he obtained employment with another firm of civil contractors and land developers. He appears to be doing well and to be content with his work. It is full-time work.

100. Mr Carmody is currently in a relationship which, so far as I can tell, started in earnest when he was released from custody. He then moved to live with his partner in her home, the site of this incident. They now have a son who is, I think, a two-year old; the evidence was a little difficult to understand. Mr Carmody's partner has a daughter by a previous relationship, but Mr Carmody has accepted her as his own and provides parenting for her. His parents have also accepted her as a granddaughter.

101. Mr Carmody's drug use was lengthy and serious. As I noted above (at [76]-[78]), it consisted principally of cannabis and amphetamines, which he started to use at a relatively young age. He also started to drink alcohol when he was 14, but has had no regular use since 2009 and there is no history of problematic use. He confirmed in unchallenged evidence that he no longer drinks alcohol.

102. He has not consumed amphetamines since 2013 but still consumes cannabis. However, his evidence was that he is no longer a regular user. For example, it appears that his last use was in about late October 2016. He was not challenged about this; indeed, no questions were asked about this in cross-examination. I accept that he is now an occasional user. It is nevertheless an illicit drug so I cannot and do not condone its use.

103. Mr Carmody is in good physical health, probably necessary for his employment. His mental health, however, is problematic. I have referred above (at [74]) to his depression, which seemed to be a significant contributor to the dysfunctional relationship with his family. He also has issues with his anger, a fact that he acknowledged in his evidence to me.

104. Apart from the diagnosis by Dr Stevens of a major depressive episode, I had no other formal diagnosis. That is, perhaps, unsurprising as he has never received specialist mental health care. His depression, however, is now being addressed through medication and he has been provided with a mental health plan by his general practitioner. That proposed the use of Psycho-education, Interpersonal Therapy and Cognitive Behavioural Therapy through a psychologist. He is committed to sustaining good mental health in this way. He also receives assistance from the psychologist for his anger management problems which has been a significant problem for him, both at work and at home. These offences are, indeed, a clear demonstration of that.

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105. I had a number of references for Mr Carmody. Three came from work colleagues. His Foreman described him as “a good worker, takes direction well, and has become a mature and valued member of our team.” He described him as “an asset to the company” who “is keen to pass on knowledge to others” and “is always happy to go the extra mile to complete a job on time and to a high standard”. He is described as getting on well with his workmates, an opinion supported by the other references from the construction manager and a workmate.

106. Four personal references were also admitted into evidence from family friends. They all acknowledged an awareness of offences, obviously important as I noted in Poole v Edwards [2016] ACTSC 159, 76 MVR 351 at 364; [100].

107. They described the background to their knowledge of Mr Carmody, including his previous family relationship problems. They noted a significant change in him over the last few years since he left the Alexander Maconochie Centre and the “enormous effort” he has made to reform. They justify a finding that he has turned his life around and made significant progress from the person who was barred from his family and was committing what Penfold J described accurately as “a serious criminal spree”.

108. He is described now as “a mature and responsible young man”, devoted to his partner and children, who takes pride in his job. Confirming my view and his evidence, they attest to the fact that he is not a violent man.

109. The Pre-Sentence Report is a rather slim document. Despite s 42(1)(a) of the Crimes (Sentencing) Act, the Report did not address a significant number of the Pre-Sentence Report matters it was mandated to address under s 40A of the Act. This could have been done directly by reporting on them in the Report submitted to the Court or, as earlier reports must have been prepared, annexing a copy of them, where the information had not changed or which provided relevant background that could be updated. That it did not comply with the legislation much reduced its value and assistance to the Court.

110. The author expressed the opinion that Mr Carmody was at a medium risk of re-offending. It referred to the primary criminogenic risk factor of “his previous criminal history and cognitive distortion regarding offending behavior”. This, especially the latter, was not further explained.

111. Given that, apart from these offences, he has not been charged with any offences committed since late 2011, that assessment seems to me to be too high.

112. I do not understand what “cognitive distortions regarding offending behavior” means and there was no explanation and no material in the Report that seemed to address that. Given the absence of a “the” before “offending behavior”, the reference seemed to me to be to offending behaviour in general. If that omission was inadvertent, the reference was not further explained or apparently connected to any reference in the Report but may be an oblique reference to a statement reported in an earlier Report that Mr Carmody is said to have “minimised his offending behaviour by saying he was protecting his partner”.

113. That statement is very problematic. It often requires the author to form a view of the facts, which may be quite difficult and indeed often inappropriate. To some extent that is inevitable in the context of the requirements of s 40A(j) and (l) of the Crimes (Sentencing) Act. In this case “minimising” seems to have the sense of trying improperly to reduce the seriousness of the offence. See the definition in the

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Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009) at p 1063. It may include, for example, failure of the offender to mention a relevant and aggravating factor as in R v Williams [2015] ACTSC 406 at [16]. It may involve the offender mis-describing a circumstance in a less serious but misleading way.

114. The only matter mentioned here was that Mr Carmody said that he was acting for the safety of his partner. The problem with this approach is that Mr Carmody maintained on oath that the explanation was correct. Despite the Crown’s submissions to the contrary, I have been prepared in this case to accept that that was his actual motivation. If it is true that this was his reason, or even part of his reason for his criminal actions, it does not seem to me to be minimising his part in the offence. In the circumstances, I reject the description given in the Pre-Sentence Report.

115. Thus, an offender, and many do, explain their burglaries and thefts as seeking funds to feed their drug habit. Is this to be accounted “minimising their offending behavior”? That has never been suggested, so far as I can recall. Indeed, it rarely mitigates the offending. See R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 385; [202]. Nevertheless, it is very relevant to many aspects of sentencing and, if it is the truth, it is an important matter on which the sentencing court should be informed.

116. Indeed, Mr Carmody was remarkably open and honest in his evidence before me as to the seriousness of the crime he had committed and while maintaining his explanation for the offence, which for the reasons outlined above (at [22]-[25]), I accept as true, he made no attempt to minimise his criminality in the sense of falsely or unreasonably trying to reduce it to the smallest degree. He agreed that he swung the baseball bat hard intending to hurt the victim and that he was in a rage.

117. These are all serious matters in the circumstances surrounding the offence. In these circumstances, I do not accept the assessment of the risk of re-offending which I would assess as low, especially given the following important factors, ordinarily very relevant to the risk of re-offending, namely the support of his parents, the commitment to his family, his employment, the absence of use of amphetamines for at least three years, and his active participation in a mental health plan. While most of these were mentioned in the Pre-Sentence Report, it was curious that they played no apparent part in the assessment of the risk of re-offending.

Victim Impact Statement

118. I had no Victim Impact Statement. That is, of course, not a required matter in sentencing. The courts do understand in at least general terms the effect of crimes. See, for example, VIM v Western Australia [2005] WASCA 233 at [291]; Stewart v The Queen [2012] NSWCCA 183 at [61].

119. Where, however, there are particular unexpected and more serious consequences, the courts are much benefited by such Statements. In their absence, no special consideration beyond the ordinary consequences or those otherwise disclosed in the evidence can be taken into account. This is the situation here.

Sentencing Practice

120. I have had regard to what I said in R v Martin. Both counsel also referred me to various decisions of this Court. The Crown gave me a helpful table setting out brief details of the Crown's list of six decisions, including three decisions also relied upon by

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Mr Carmody, the sentencing remarks for which were handed up by Ms L Taylor, counsel for Mr Carmody.

121. In each case, the offender had pleaded guilty. There were a range of circumstances of the offender and of the harm done to the victim. Two of the offenders had no prior criminal record; the others had a criminal record of direct significance through to minor, dissimilar offences. The level of harm included one victim requiring emergency brain surgery, a number of victims suffered head injuries, including fractures and, in two cases, bleeding of the brain.

122. Of course, as the High Court has pointed out in Wong v The Queen (2001) 207 CLR 584 at 605; [57], no sentence is a precedent. Other decisions are, however, useful, as the High Court has pointed out in Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 73; [38], and are designed to inform a sentencing judge properly about relevant sentencing principles and comparable sentences which, when combined with the facts found, will provide the judge with “all the information which is necessary to decide what sentence should be passed”.

123. I have read the sentencing remarks of each of the cases to which I was referred and a number of others, sometimes referred to in those decisions. I can distil a number matters from them. As noted above (at [52]), the extent of the harm caused is highly relevant. In the comparable cases, the injuries include life-threatening injuries (R v Seretin [2016] ACTSC 45 at [9]) and, in particular, injuries to the head, a particularly vulnerable part of the body (R v Amosa [2015] ACTSC 34 at [21]; R v Seretin at [9]). This was not a case of such serious injuries. The consequences of such injuries are also relevant considerations (R v Pumpa [2014] ACTSC 223 at [3]). There are serious consequences here.

124. Many cases were of the “one punch type” where, often the injury is compounded by the effect of the victim falling to the ground where damage is done by, for example, by the victim's head hitting concrete or pavement (R v Sharma [2016] ACTSC 180 at [18]). This is different from the use of a weapon, as in this case, though some weapons, such as knives (R v O'Brien (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 10 June 2008) or a machete (R v Torbert [2015] ACTSC 331) are perhaps more serious than the baseball bat used by Mr Carmody.

125. The degree of violence is a relevant factor (R v Torbert) with a more sustained attack often rendering the violence more serious (R v Sharma at [18]; R v RC (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 19 October 2012).

126. Here there was only one blow, but it was a very serious one with very significant consequences for the victim.

127. There is no doubt that there is an obvious need for general deterrence (R v Laipato (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 16 September 2010) at [38] and often for specific deterrence. This means that a term of imprisonment is almost inevitable: R v RC. There is, however, still a place for rehabilitation, which may reduce significantly the non parole period: R v Seretin at [34]. Sentences have been fully suspended (R v Webb (Unreported, Supreme Court of the Australian Capital Territory, Crispin J, 28 August 2003); R v Neish (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 24 May 2013)) or partly suspended (R v Sharma). Sentences have been imposed where the sentence is served partly by periodic detention and then suspended (R v JS (Unreported, Supreme

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Court of the Australian Capital Territory, Nield AJ, 24 July 2013)) or partly served full-time, partly by a period of detention and partly suspended (R v Byrne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 3 February 2014)). Sentences of imprisonment have, in appropriate cases, been served by an Intensive Correction Order (R v EL [2016] ACTSC 241).

128. The circumstances of the assault is also relevant (R v Davies (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 17 July 2013)), especially if the victim is vulnerable (R v Seretin).

129. The sentences of imprisonment imposed have ranged from six years (Carberry v The Queen [2013] ACTCA 20, R v RC, R v Charnock (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012)) to 10 months (R v JS) with some of two years or less but the majority between two and three years imprisonment.

130. It is to be noted when considering these cases that the maximum penalty for the offence was increased in 2011 from 10 years imprisonment to 13 years imprisonment.

Breach of Good Behaviour Order

131. As I have noted above, Mr Carmody has, by being convicted of these of offences, breached a Good Behaviour Order made by Penfold J on 27 July 2012, when her Honour suspended a sentence of imprisonment.

132. Indeed, that Good Behaviour Order was made as a consequence of his breach of the earlier Good Behaviour Order when Mr Carmody was sentenced on 31 July 2009 for “a serious criminal spree” to which I have already referred (at [89]-[91], [107]).

133. The breach of a Good Behaviour Order is serious; it is more serious to breach it by committing further offences. It is even more serious to do so on more than one occasion.

134. Under s 110 of the Crime (Sentence Administration) Act 2005 (ACT), I must be satisfied of the breach of a Good Behaviour Order, cancel that order and either re-impose the sentence that was suspended or re-sentence the offender.

135. I have, in a number of cases, considered the approach that the courts do and should take to the breach of a Good Behaviour Order and how it should be approached by a sentencing court. In Saga v Reid [2010] ACTSC 59 at [99]-[101], I discussed and relied on what had been said in other cases, namely, that the failure of courts to act where there has been a clear breach of the conditions of conditional release order, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by which the offender avoided being sentenced to full-time in prison, is likely to bring such sentences into disrepute.

136. Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]-[87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that has been suspended. See also Gyory v The Queen [2012] ACTCA 28; R v Lee [2016] ACTCA 69 at [29]. Thus, a court may, in an appropriate case, merely sentence the offender to the same sentence, including suspension of the term of imprisonment, as originally imposed. That would have the effect of extending the period during which the offender is subject to a Good Behaviour Order. That may be modified to take account of the period of satisfactory compliance with the earlier order.

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137. Considerations of the nature and seriousness of the offending behaviour which was the breach is important, as is the question of whether there is a marked disparity between the seriousness of the conduct and the length of the sentence to be imposed.

138. In R v Curtis (No 2) [2016] ACTSC 34 at [18], I set out some of the considerations that, over time, have been identified as relevant to the decision of the sentencing court as to the appropriate response to a breach of a Good Behaviour Order. I there said:

These include the proportion of the term of the Good Behaviour Order that had been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and the prospects of the offender's rehabilitation.

139. In this case, Mr Carmody has taken significant steps to address the issues that contributed to his offending behaviour by ceasing the use of amphetamines, reducing his consumption of cannabis, and addressing his mental health issues.

140. He has re-connected with his family, who are now offering significant support, and he has obtained employment where he is a valued employee and seems to gain satisfaction. His offence occurred just over a month before the Good Behaviour Order expired without prior breach. The offences committed are different from those that constituted the offences for which the sentence of imprisonment that was suspended when the Good Behaviour Order was made.

141. Nevertheless, this was a serious offence and is the second breach of the trust of the Court that a Good Behaviour Order expresses, that an offender might be permitted to serve a sentence of imprisonment in the community.

142. It seems to me that there needs to be a significant response and that the service of a term of imprisonment is appropriate, but recognition must be given to the period during which he has successfully served the Good Behaviour Order and the rehabilitation efforts he has made.

143. After all, as French CJ, said in Hogan v Hinch (2011) 243 CLR 506 at 537; [32], “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”. The purpose of the criminal law is, of course, the protection of the community: Channon v The Queen (1978) 33 FLR 433 at 437; Davey (1980) 2 A Crim R 254 at 261.

144. While the failure to recognise the seriousness of continued offending may suggest that further offending can be committed with impunity, the clear and transparent recognition of efforts at rehabilitation does not suggest in any way that a just and appropriate response to a breach of a Good Behaviour Order is a licence to commit further offences.

Consideration

145. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. In this case general deterrence is a significant matter. It is important for the Court to denounce the conduct in which Mr Carmody engaged and to make it clear that there are severe consequences for those who commit such offences.

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146. In this case, I do not consider that there is a significant need for specific deterrence. It is clear to me that the behaviour involved was generally out-of-character. The steps Mr Carmody has taken to address the factors leading to his criminal behaviour also strengthens the view that it is not an important purpose in this particular case.

147. I have already referred to rehabilitation as an important factor, especially when, as here, the prospects are good, and I note that sentencing practice does justify me having regard to that. I also accept that there is a need to recognise the harm done to the victim.

148. I think that, in this case, the motivation for the offence is relevant. I am reminded of what Howie J, with whom Giles JA and Fullerton J agreed, said in R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at 101-2; [31]:

The relevance of motive will vary depending upon the particular factors of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed the less weight can be given to motive as a mitigating factor, even if it might otherwise have had that effect. But as was pointed out in Swan, the existence of motive is relevant to other factors that may impact upon the sentencing discretion.

149. Despite the helpful and careful cross-examination of Mr Carmody by the Crown suggesting otherwise, I am satisfied that Mr Carmody was motivated by a concern for his partner's safety and expressed the frustration that the ongoing problems he had suffered from the victim, despite the proper and sensible efforts that he had made to resolve the problems by other means, such as attempting to move house and calling the police, were behind the offence in this case.

150. This is relevant to the risk of re-offending, the assessment of the efforts Mr Carmody and his partner have made since the offence, such as obtaining a Protection Order and moving, at some expense, to private rental accommodation and, ultimately, to Sydney. It is a pity that this did not happen before the incident.

151. I have regard to the factors to which I am required to under s 33 of the Crimes (Sentencing) Act. To the extent to which I am aware of them, they are set out in these reasons.

152. I have regard to the fact that this offence was committed while Mr Carmody was on conditional liberty. This is an aggravating factor, but it has to be considered carefully. That is to say, there is a risk of double punishment if, while cancelling the Good Behaviour Order, I do not take care to ensure that the sentence I impose does not punish Mr Carmody twice by failing to take into account the fact of this cancellation. That approach does distinguish the situation somewhat from others, such as committing offences while on bail.

153. I take into account the plea of guilty. While it was at a relatively late stage in the proceedings, it was also a plea of guilty that followed negotiations following on the acceptance of a lesser charge to the indictment in full satisfaction.

154. I am also aware that there are two offences for which Mr Carmody must be sentenced.

155. I must carefully consider the length of each of the sentences to ensure that where there are overlapping common elements between any offences, Mr Carmody is not punished twice. That does not seem to apply to any significant degree here.

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156. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. That seems to be the case here that these two offences were part of the same criminal occurrence and the principles in the Attorney-General (SA) v Tichy (1982) 30 SASR 84 do apply; the sentences for the two offences should be concurrent.

157. I must also then review the length of the term of imprisonment arrived at and 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, that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of Mr Carmody's goals. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.

158. My view is that, taking all the circumstances into account, for the two offences for which I am sentencing Mr Carmody, there should be two years and six months imprisonment. I consider that the balance of the sentence that was suspended should be imposed but that, in the circumstances there should be some concurrency so that the total sentence should be one of three years and two months.

159. I note that a summary offence preferred against Mr Carmody of damaging property has been transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT). This seems to me to be a “back-up” charge under s 68CA of the Supreme Court Act to the offence of damaging property on the indictment before me to which he has pleaded guilty. As such, when Mr Carmody is convicted of the offence on the indictment, I should dismiss the charge.

160. I have, however, been asked to consider making an Intensive Correction Order. I have described that order in some detail in R v Ngerengere (No 3) at [17]-[27] and its punitive aspects. Like periodic detention, which the Court of Appeal considered in R v Creighton [2011] ACTCA 13 at [50], it is a deterrent sentence. I consider that it is, though clearly more lenient than immediate full-time custody, still a deterrent sentence.

161. It has the obvious advantage that it can recognise and support achieved and ongoing commitment to rehabilitation whilst still expressing the deterrent aspects of punishment, which is important for serious offences.

162. I cannot impose an Intensive Correction Order without first obtaining an assessment under s 77 of the Crimes (Sentencing) Act. Having, however, determined that a sentence of imprisonment is appropriate and that the sentence is one of more than two years but not more than four years, I have considered that the harm to the victim and the community does not contra-indicate the making of such an order. I consider that Mr Carmody does not pose a risk to anyone or the community in general and I have taken careful consideration of his culpability in all the circumstances.

163. It is a matter of concern that Mr Carmody is likely to have to serve all or, at least most, of such an order in Canberra, whereas living in Sydney, where he has a good job and is away from the negative influences that Canberra may provide, has been helpful. Nevertheless, he has indicated that he is prepared to return to Canberra if he is required to serve a sentence of imprisonment by an Intensive Correction Order.

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164. I note that ACT Corrective Services prefer offenders referred for assessment for an Intensive Correction Order to be assessed while on bail. I understand that the agency needs approximately eight weeks to assess an offender. I am also conscious that the holiday period may extend that.

165. Accordingly, I propose to adjourn the proceedings to 9:00am on 24 February 2017 and permit Mr Carmody to be on bail in the meantime for the purposes of an assessment for suitability for an Intensive Correction Order.

166. Mr Carmody, please stand:

1. I convict you of recklessly inflicting grievous bodily harm on the victim on 11 July 2015.

2. I convict you of damaging property on 11 June 2015.

3. I adjourn the sentencing to 9:00am on 24 February 2017.

4. I continue your bail with the following additional conditions:

(a)  that you report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City, by 4:00pm today to make arrangements for an assessment of your suitability for an Intensive Correction Order; and

(b) that you co-operate with ACT Corrective Services in the assessment for an Intensive Correction Order and obey all reasonable requirements made of you for that assessment.

5. I dismiss the transferred charge of causing damage to property on 11 June 2015.

[His Honour then spoke directly to Mr Carmody]

167. Mr Carmody, no doubt your counsel will carefully explain to you what I have done, but I have convicted you of those two offences, as is required, and I have indicated that a total sentence of three years and two months is appropriate for not only the criminality that you have committed, but also the failure to comply with the Good Behaviour Order by committing a further offence under the Good Behaviour Order made by Penfold J.

168. However, you may serve that by an Intensive Correction Order in the community if you are found suitable, and if I also consider that it is appropriate on 24 February. That will require you to be assessed by Corrective Services and that will require you to relocate to Canberra, which may be a problem for you given your current work and living arrangements in Sydney, but you have indicated that you may be prepared to do that, so that is a decision for you. It is your choice as to whether you do that or not. You are required to go over to ACT Corrective Services, which is a building called 2 Constitution Avenue, but it is actually at 249 London Circuit. I am sure your counsel will help you find where that is, but you need to go over there today to say, “I need an assessment for an Intensive Correction Order”, and they will give you details about what you need to do and how you are going to go about being assessed.

169. If that assessment is satisfactory, or if I otherwise agree on 24 February, I can make that Intensive Correction Order and impose the sentence of imprisonment, and the details of that will be explained to you in the course of the assessment.

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170. This was a very serious offence. I understand the frustration. I am a human being too. But the fact is that those kind of problems, notwithstanding the difficulties that you experienced, simply cannot be justified in our community by being resolved by violence of the severity and with the consequences of that kind.

171. Ordinarily you would be serving a term of imprisonment. The fact that you have made significant progress with rehabilitation and got yourself back into a sensible place within the community, as well as your family, is to your credit. The protection of the community in my assessment is best served by allowing that process to continue, but only if you co-operate, and are also prepared to continue in that way. I will see you on 24 February at 9:00am and we will see where we go from there.

I certify that the preceding one hundred and seventy-one [171] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 11 January 2017

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