ACT Supreme Court

• View as PDF (217.1 KB)
• View as Word document (60.3 KB)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Rohrlach (No 2)
Citation:	[2025] ACTSC 192
Hearing Date:	16 April 2025
Decision Date:	9 May 2025
Before:	McWilliam J
Decision:	Good behaviour order cancelled; offender resentenced to a total effective term of 8 months and 1 day, suspended from 9 May 2025 on the condition that the offender enter into a good behaviour order for the remainder of the sentence.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order while offender serving suspended sentence – where breach was at low end of seriousness and substantial period of time had passed without incident – where offender had taken rehabilitative steps in the meantime – offender resentenced
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 86, 110 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 12A(1)(b), 13(4)(g), 33, 46D, 78 Crimes Act 1900 (ACT) s 28(2)(a) Human Rights Act 2004 (ACT) ss 24, 28, 34 Legislation Act 2001 (ACT) s 126 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C
Cases Cited:	Barron v Laverty [2019] ACTSC 198 Bukulaptji v The Queen [2009] NTCCA 7; 24 NTLR 210 Dawson v The Queen [2019] ACTCA 9 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Director of Public Prosecutions v Padreny [2024] ACTCA 4 Director of Public Prosecutions v Rohrlach [2023] ACTSC 166 DPP v Beroukas (No 2) [2024] ACTSC 294 DPP v Carr [2024] ACTSC 130 DPP v Hagen (No 2) [2023] ACTSC 386 DPP v JJ (No 2) [2024] ACTSC 74 Guy v Anderson [2013] ACTSC 5 Gyory v R [2012] ACTCA 28 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 R v Buckman (1987) 47 SASR 303 R v Cajina (No 2) [2022] ACTSC 383 R v Curtis (No 2) [2016] ACTSC 34 R v JG [2005] VSCA 74 R v Ogilvie (No 2) [2016] ACTSC 265 Saga v Reid [2010] ACTSC 59 Taylor v Bowden [2009] ACTSC 13 Taylor v R [2020] NSWCCA 355 The Queen v PM (No 2) [2015] ACTSC 358 Thorn v Laidlaw [2005] ACTCA 49
Parties:	Director of Public Prosecutions Bradley Wayne Rohrlach ( Offender)
Representation:	Counsel C Daly (ACT DPP) E Chen ( Offender)
	Solicitors ACT Director of Public Prosecutions Legal Aid ( Offender)
File Number:	SCC 275 of 2022

McWILLIAM J:

1․ Bradley Wayne Rohrlach (offender) is before the court again because he is in breach of a good behaviour order (GBO) imposed by the court on 5 July 2023: see Director of Public Prosecutions v Rohrlach [2023] ACTSC 166 (Rohrlach).  For reasons that follow, I have decided to re-sentence the offender, rather than impose the original term of imprisonment.

Primary sentence

2․ The offences that were the subject of the original sentence, and the facts giving rise to them, were discussed in Rohrlach and knowledge of that judgment is assumed in these reasons.  The offender was sentenced upon pleading guilty to two counts of an act of endangering health, by choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act).

3․ The offender was convicted, and a term of imprisonment was imposed in respect of each offence.  The total effective sentence was a period of 8 months and 1 day, to commence on 4 July 2023 and conclude on 4 March 2024.  The sentence was suspended immediately upon its imposition on 5 July 2023, with the offender entering into a GBO for the remainder of the sentence (5 July 2023 to 4 March 2024).  The GBO included a specific condition that the offender attend any rehabilitation or intervention program and be subject to such supervision through Corrective Services that was considered appropriate.

4․ However, one of the core conditions of a GBO is that the offender must not commit an offence against a territory law that is punishable by imprisonment: see s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act).

The further offending constituting the breach

5․ On 17 January 2024, the offender failed to stop a motor vehicle for police, which is an offence created by s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT).  The maximum penalty for the offence (first offender) is 100 penalty units, imprisonment for 12 months, or both.

6․ On 4 November 2024, he was convicted and sentenced for that offence in the Magistrates Court, which resulted in a $600 fine.  However, the conduct breaches the relevant core condition of the offender’s GBO.

The court’s task following a breach of a good behaviour order

7․ The present task for the court is governed by s 110 of the CSA Act, the relevant parts of which are as follows:

Cancellation of good behaviour order with suspended sentence order

(1) This section applies if—

(a) an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender’s conviction for an offence; and

(b) a court is satisfied the offender has breached any of the offender’s good behaviour obligations.

(2) The court must cancel the good behaviour order and either—

(a) impose the suspended sentence imposed for the offence; or

(b) re-sentence the offender for the offence.

...

(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.

…

8․ Applying s 110(2) of the CSA Act, the court must cancel the GBO and decide whether to impose the suspended sentence imposed for the offence, or re-sentence the offender for the offence.

Applicable legal principles

9․ The applicable principles are uncontroversial but are repeated generally here for convenience. In determining the appropriate response to the breach of a GBO in any given case, various factors may arise for consideration. Non-exhaustively, they include the following:

(a) The proportion of the term of the good behaviour order that had been served without breach: R v Curtis (No 2) [2016] ACTSC 34 (Curtis) at [18];

(b) Any rehabilitation attained by the offender prior to the breach: Curtis at [18];

(c) 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: Curtis at [18];

(d) The relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending: Curtis at [18];

(e) The prospects of the offender's rehabilitation: Curtis at [18];

(f) The actual facts of the matter for which the offender was first sentenced: R v Beniamini (No 2) [2017] ACTSC 32 at [53];

(g) Whether the breach indicates an intention to disregard the obligation to be of good behaviour: Bukulaptji v The Queen [2009] NTCCA 7; 24 NTLR 210 at [35], cited in The Queen v PM (No 2) [2015] ACTSC 358 (PM) at [22];

(h) Whether the offender has received any warnings about the consequences of breaches: PM at [22];

(i) The level of understanding of the offender of her obligations under the terms of the order and the consequences of the breach: PM at [22]; and

(j) The nature of judicial and community resources previously devoted to the offender: R v Bennett [2017] ACTSC 104 at [11].

10․ There is no presumption in favour of imposing the original sentence that had been suspended: Guy v Anderson [2013] ACTSC 5 (Anderson) at [83].

11․ However, there are many statements by courts across multiple jurisdictions of the principle that generally a breach of the conditions of a good behaviour order or the like following the suspension of a sentence will result in the offender serving the sentence that was suspended: see, for example, R v Buckman (1987) 47 SASR 303 at 304; Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 (Cooke)at 386; Taylor v Bowden [2009] ACTSC 13 at [36]; Saga v Reid [2010] (Saga)ACTSC 59 at [99]–[101], all of which were cited by Refshauge J in Anderson at [87].  The reason for this is to recognise that the offender avoided serving full-time imprisonment by entering into a GBO: Taylor v R [2020] NSWCCA 355 at [21], citing PM at [19] and Saga at [99]–[101].

12․       In Cooke, Howie JA stated at [23]:

... There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. ... [I]f offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.

13․       It is for this reason that I have previously referred to the importance of the court enforcing the statutory regime.  If that is not done by the imposition of the suspended sentence, the objective may equally be achieved by re-sentencing the offender in a manner that properly reflects the fact of the breach, so that the suspended sentence regime created by the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) does not fall into disrepute: DPP v JJ (No 2) [2024] ACTSC 74 (JJ (No 2)) at [29].  In that regard, where the court exercises the discretion to re-sentence an offender under s 110(2)(b) of the CSA Act, the imposition of a more severe sentence is an alternative that may well be appropriate.  It will promote respect for the law and, in turn, the maintenance of a just and safe society, being one of the objects of sentencing: s 6 of the Sentencing Act.  That is a view that I have previously expressed in cases such as DPP v Beroukas (No 2) [2024] ACTSC 294 at [14] and I continue to adhere to it.

14․       That is not to say that the sentence imposed should increase in every case where re-sentencing occurs as a result of a breach. A minor or technical breach of a GBO that occurs close to the end of the period of the suspended sentence and with a reasonable explanation for the breach is an example where it may not be appropriate to impose the original custodial sentence, nor to impose a more severe sentence.  In some circumstances, it may be appropriate for the court to impose the same sentence that was imposed at first instance: Curtis at [16], cited in DPP v Hagen (No 2) [2023] ACTSC 386 (Hagen (No 2)) at [20].  The legislation expressly does not fetter the court’s discretion on a re-sentence in any particular way.

15․       However, counsel for the offender argued that the court’s discretion upon re-sentence was fettered.  He relied on Barron v Laverty [2019] ACTSC 198 (Barron)to submit that the court could not impose a sentence that was more severe than that originally imposed.  The relevant reasoning in Barron is at [81]-[90] (emphasis added):

81.   In Gyory v The Queen [2012] ACTCA 28 at [11], Rares J said:

it is important in the re-sentencing exercise that proper regard is had to the obligation to apply the principles made applicable by s 110(4). In [Wilkins], Refshauge J considered some of the principles, and I think, correctly, indicated that the second sentencer is free to impose the sentence that appears, on all the material now before the Court, the sentence that was appropriate to be imposed in the first place. That includes, where appropriate, a sentence that is greater than originally imposed ...

[emphasis added.]

82.   However, this view must be doubted. In Wilkins v Hague [2011] ACTSC 189; 258 FLR 355 (Wilkins), the case to which Rares J referred, Refshauge J was hesitant to fully accept such a construction. Inter alia, his Honour noted that:

(a)      Section 110(4) of the Sentencing Act “was clearly indicative of re-sentencing being the opportunity to impose a lesser sentence”: Wilkins at [115(b)-(c)].

(b)      Allowing the sentence to be increased on re-sentencing may conflict with the Human Rights Act 2004 (ACT) (HRA): Wilkins at [115(d)].

83. As to (a), Refshauge J referred to Taylor, where Gray J had commented at [36] that:

It is plain from the example given in s 110(4) of the [Sentencing Administration Act] that more scope is given to a sentencer under the ACT legislation to not impose the suspended sentence in its full rigour.

84.   In [The Queen v Lee [2016] ACTCA 69] at [29], the Court of Appeal discussed the purpose of the suspended sentence regime, stating:

Under s 12 [of the Sentencing Act], a suspended sentence must be “partnered” with a good behaviour order. The purposes of a s 12(3) good behaviour order include providing support for rehabilitation (for example, by the imposition of conditions requiring counselling or treatment for substance abuse), ensuring proper supervision of an offender who is serving the sentence in the community (by imposing a supervision condition) and providing stern consequences for breaching the privilege of serving a sentence in the community (under s 110 of the Sentence Administration Act, a breach will require the good behaviour order to be cancelled and may well result in the suspended portion of the sentence being served full-time). All these purposes are directly related to the suspended portion of the sentence rather than to any full-time or periodic detention component of the sentence. Similarly, the core conditions of any good behaviour order that are prescribed by s 86 of the Sentence Administration Act are obviously designed for persons who are in the community.

85.   The suspended sentence regime is designed to facilitate rehabilitation through the vehicle of a good behaviour order. It has been described as a “Sword of Damocles” that enables and motivates rehabilitation.

86.   In this jurisdiction, there is no presumption in favour of imposing the original sentence. However, any significant breach will usually result in the resentencing court proceeding under s 110(2)(a) and the offender serving the suspended sentence: Guy v Anderson [2013] ACTSC 5 at [87]; R v Carmody [2016] ACTSC 382 at [135]. Often, this is because the resentencing court is loath to sanction disrespect of the opportunity afforded to the offender to remain in the community, and because a significant breach usually indicates that rehabilitation has been unsuccessful.

87.   The imposition of the original sentence is not designed to be a punishment for the breach conduct. If the breach conduct constitutes an offence, then the offence may be charged and punished by a fresh exercise of sentencing discretion.

88.   As to the point referred to at [82(b)] above, I agree that sections 25(2) and 30 of the Human Rights Act may point to an interpretation of s 110(2)(b) of the Sentence Administration Act that would preclude a resentence exceeding the original sentence. If, under s 110(2)(b) a resentencing court could increase the original sentence by reference to a subsequent breach that amounted to a separate offence, the offender could be punished twice for the same conduct. An interpretation allowing such a result would also be contrary to s 24 of the Human Rights Act, which provides:

24 Right not to be tried or punished more than once

No-one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with law.

89.   Such an interpretation would not necessarily be contrary to the ruling in Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638 (Bui), that the “principle” of double jeopardy does not apply on Crown sentence appeals concerning Commonwealth offences: at [18]–[19]. Under s 110(2)(b) the resentence is not a fresh appeal. Further, Bui concerned the operation of s 16A of Crimes Act 1914 (Cth) which provides a statutory context that differs from the Territory context, in part because the HRA has no application.

90.   Consequently, I am inclined to the view that s 110(2)(b) should be interpreted as permitting only a sentence that is more lenient than the original sentence; it should be utilised where, taking into account all relevant considerations relating to the original offending (both objective and subjective), the extent of rehabilitation since the offending, and other circumstances post-dating the original sentence (including, where appropriate, the minor nature of any breach), it is just and appropriate to impose a sentence that is more lenient than the original sentence. However, since I do not have the benefit of submissions concerning the HRA, and it is not necessary to do so in order to dispose of the appeal, I do not express a firm view on the interpretation of s 110(2)(b).

16․       Paragraphs [88]-[90] of that passage were later cited by Refshauge AJ in R v Cajina (No 2) [2022] ACTSC 383 at [48].  His Honour did not refer to his own earlier decision which had previously held to the contrary, namely R v Ogilvie (No 2) [2016] ACTSC 265 (Ogilvie)at [30] (emphasis added):

Regrettably, for a Good Behaviour Order made when a sentence of imprisonment is suspended, there is no provision for the Court to take no action, or take minimal action, when the breach is trivial or excusable. I suggest that this is a matter where reform would be desirable. As noted above, the only two options available to the Court, which has cancelled a Good Behaviour Order, are to impose the sentence that was suspended, or to resentence the offender. The latter involves imposing a sentence for the original offence that will usually be required to be somewhat more severe because the breach of the Good Behaviour Order shows that the trust reposed in an offender, by permitting him or her to be in the community, subject to a Good Behaviour Order, is eroded by the breaches committed.

17․       I have previously followed Ogilvie as being consistent with the policy objectives underlying the suspended sentencing regime: see for example JJ (No 2) at [31] and DPP v Carr [2024] ACTSC 130 at [16].  Those policy objectives were succinctly outlined in Hagen (No 2), where Baker J (also relying on Ogilvie)stated at [20]:

As the prosecution submitted, where there is a breach of a suspended sentence, the court should ordinarily impose a somewhat more severe punishment, to recognise that the breach of a good behaviour order demonstrates that the trust reposed in the offender has been eroded: R v Ogilvie (No 2) [2016] ACTSC 265 at [30]. A resentence upon a breach of a suspended sentence must also take into account the need to deter other persons from breaching suspended sentences. There is also a need to ensure ongoing confidence in the administration of criminal justice, which may be undermined if action is not taken by the Court upon a breach of a suspended sentence: Saga v Reid [2010] ACTSC 59 at [99]–[101]. However, in some circumstances, it may be appropriate for the court to impose the same sentence that was imposed at first instance: R v Curtis (No 2) [2016] ACTSC 34 at [16].

18․       The discussion by Murrell CJ in Barron above was expressly obiter and was made without the benefit of developed (or, it appears, any) argument on the potential application of the Human Rights Act 2004 (ACT)(HR Act).  The reasons in Barron went no further than suggesting a possible interpretation without reaching the point of a concluded view.  There is a difference between a sentence imposed for a second time after a sentence (punishment) has been served and a sentence that occurs afresh due to the failure to comply with a condition of the previous sentence.  That difference may also have a consequence for the operation of s 24 of the HR Act.

19․       Importantly, the reasons in Barron did not refer to any discussion of s 28 of the HR Act or the reasonable limits that may be placed on the right prescribed in s 24 of that Act, nor does the discussion of the interpretation of s 110 disclose that s 34 of the HR Act had been complied with.  That section requires (among other things) that if a question arises in a proceeding in the Supreme Court that involves the application of the HR Act, the Supreme Court must not allow the proceeding to continue unless notice of the proceeding has been given to the Human Rights Commission and the Attorney-General.

20․       Similar circumstances exist in the present proceeding, in that the offender’s argument was made orally at the conclusion of the argument during the hearing, without engaging with the underlying reasoning in Barron for the interpretation of the section for which the accused contended, which was based on the HR Act and without the steps required by s 34 of the HR Act having been taken.  Equally, the prosecution relied on Ogilvie without having had an opportunity to properly consider the intersection between the HR Act and section 110(2)(b) of the CSA Act.  

21․       As will be explained, ultimately, I have dealt with the circumstances of this case in a manner that does not impose a more severe sentence and accordingly, the question of the limits of the discretion under s 110(2)(b) does not strictly arise.  I have therefore decided that the proceeding can continue without it being necessary to adjourn the proceeding to enable the requirements of s 34 of the HR Act to be undertaken.

22․       What follows then are obiter comments, designed to explain to the parties why I adopted a position contrary to the accused’s submission during the hearing (as well as in other cases), with a view to assisting the consideration of the argument if and when an occasion to deal with that issue properly arises.

23․       Section 110(4) of the CSA Act provides that the Sentencing Act applies to the re-sentencing “in the same way that it applies to the sentencing of an offender on conviction for the offence.” That means the court must consider the sentencing objectives as they stand at the time of the resentence (s 7 of the Sentencing Act).  It may therefore be appreciated that any sentencing process afresh would be required to take into account the period of time served of the sentence that had already occurred prior to the sentence being suspended.

24․       To interpret the resentencing discretion in s 110 of the CSA Act as not permitting a more severe sentence than that previously imposed would directly impact upon the court’s obligation to resentence the offender “in the same way” as if the offender were being sentenced upon conviction for the initial offence.  For example, the circumstances of a particular offender that favoured prioritising rehabilitation when initially sentenced may have changed so that such an objective is given less weight, with the need for personal deterrence now taking precedence.

25․       The interpretation of s 110 proposed by the accused would constitute a fetter on the court’s sentencing discretion that, even taking into account considerations under the HR Act, finds no support in the legislation.  The context of the provision is, in my view, to the contrary. First, the words of s 110(4) (just discussed) are an important contextual indicator of the unconstrained exercise of the discretion.  Second, there is an example of a resentence provided in s 110 referring to a resentence where, instead of a fully suspended sentence of imprisonment for 6 months, the court may impose a sentence of imprisonment to be served by intensive correction.  Noting that examples form part of the Act under s 126 of the Legislation Act 2001 (ACT), such a sentence is more severe in the manner in which it is to be served than the initial fully suspended sentence.

26․       The legislative context combined with the policy underlying the statutory regime leads me to respectfully disagree with the suggestion that there is any implied fettering of the court’s discretion to re-sentence under s 110(2)(b) of the CSA Act, in the sense that any sentence to be imposed is limited to one that is less severe than that originally imposed.

Should the court impose the suspended sentence or resentence?

27․       The following considerations have been taken into account in the present case:

(a) More than 6 months of the 8-month GBO period had been incident free when the breach occurred.

(b) The nature of the initial offence was serious, involving choking of two child victims.

(c) The conduct that caused the offender to breach the GBO was not of a similar nature.

(d) The breach appears to have been the product of a poor decision made spontaneously, rather than being indicative of any deliberate intention to disregard the obligations of the GBO or any misunderstanding of the offender’s obligations under the GBO.

(e) The conduct that constituted the breach was a criminal offence.  That fact itself constitutes a serious breach of the grant of conditional liberty.  This was not a trivial breach.

(f) However, the relative seriousness of the conduct constituting the breach was not of a level of objective seriousness that in all the circumstances would justify the imposition of the initial sentence.

28․       The prosecution accepted that imposing the 8-month term of imprisonment here would be disproportionate in the circumstances. In light of all these matters taken together, I will not impose the suspended sentence.

Resentencing considerations

29․       Consistently with what has been described (in Gyory v R [2012] ACTCA 28 at [10]) as the prosecution’s “obligation” in circumstances of resentencing, the prosecution has provided the relevant material to enable the Court to engage in the resentencing task in the same way as if it was sentencing the offender on conviction for the offence, applying s 110(4) of the CSA Act.

30․       The court’s task in giving effect to the sentencing objectives and mandatory relevant considerations set out in ss 7 and 33 of the Sentencing Act were discussed in Rohrlach at [16]-[23] and will not be repeated here.

31․       Similarly, the nature and circumstances of the original offending (the facts of which were set out in Rohrlach at [2]-[14]) have not changed and I adopt my earlier consideration of the objective seriousness of the offence, discussed in Rohrlach at [28]-[35].

32․       The historical features informing the offender’s subjective circumstances (Rohrlach at [39]-[44]) will not be repeated here, nor will his family circumstances and the hardship that a sentence of imprisonment will cause to his family due to his young dependents (Rohrlach at [47]).  The updating evidence confirms that these matters remain of significance to the sentence ultimately to be imposed, particularly the manner in which a sentence of imprisonment is to be served.

33․       The offender’s criminal history now includes the further offending that has brought about the present resentence. What is material for the present consideration is that the drug addiction relating to the offender’s childhood trauma is unresolved. The offender is in the process of seeking treatment voluntarily for his underlying drug addiction.  This is a matter that led to his breach of the previous GBO, although this sentence is not for the breach.  Its relevance here stems from its prominence as a risk factor for reoffending generally.

34․       Evidence as to the nature of the treatment was before the court, following the grant of leave to reopen the sentencing hearing today. The program is a relatively new one conducted by Clean Slate Clinic, based interstate.  It is a medically supervised home-based withdrawal program. While not a residential program, it has clear advantages for this offender in keeping him away from other potential users and the offender (and indeed, his partner who is paying for this private treatment) feel optimistic that this program is one which is best suited to the offender’s circumstances.

35․       The victim’s personal circumstances and victim impact were discussed at [36]-[38] of Rohrlach and I adopt those considerations here.  The fact that the victims were children remains an important consideration in determining that a sentence of imprisonment is the only appropriate outcome in the circumstances of this case.

36․       The offender initially accepted responsibility for the offending (Rohrlach at [45]) and the discount for the negotiated plea of guilty (as to which, see Rohrlach at [24]-[27]) will be maintained. However, I can see from the Court Duty Report dated 9 April 2025 that he has in fact walked back from his conduct. He now says he never laid hands on any of the victims.  His attitude to the offences indicates that there is no demonstrated remorse. There may be more to the information provided to the author, but taking the report at face value, that lack of acceptance and insight means that, sentencing the offender in the circumstances as they exist today, personal deterrence does have a greater role to play.

37․       The sentencing practice of the court does not appear to have changed since the original sentence was imposed.  The jurisprudence now includes further instances where sentences for choking offences have been imposed, Director of Public Prosecutions v Padreny [2024] ACTCA 4 being a notable example. However, as discussed in Rohrlach at [48]-[54], the cases of choking provided to the court for the purposes of sentence comparison were significantly more serious than the conduct under consideration here, with all involving family violence.

Disposition

38․       For reasons explained in Rohrlach at [55]-[56], this remains a matter where a sentence of imprisonment is the only alternative that will give proper effect to the sentencing objectives of punishment and general deterrence.

39․       The totality and concurrency considerations are also unchanged.  The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited).  I remain of the view that, given the offences occurred within a very short space of time and were properly to be viewed as the one course of conduct, it is appropriate that each sentence of imprisonment be structured so that the majority of each term of imprisonment be served concurrently.  However, some portion of each sentence should be accumulative, primarily to reflect the fact that the offending involved separate victims.  The cumulation should be upon the sentence for the most serious offence, applying R v JG [2005] VSCA 74 at [22], cited in this jurisdiction in Saga at [114].

40․       The manner of the sentence is problematic.  I previously included a general condition that the offender continue to attend any rehabilitation or intervention program and be subject to such supervision through Corrective Services that was considered appropriate by those supervising the GBO.  However, that was a product of the offender being currently enrolled in intervention courses.  In the circumstances as they exist at the date of sentence, the offender is yet to embark upon the present course as he only enrolled in it this morning.  The offender’s counsel was reluctant to have a court order referring to continuance of a specific program that may turn out to be unsuitable for whatever reason.  It is preferable then to leave maximum flexibility to those supervising the sentence, to direct the offender in the manner best deemed to support his attempts at rehabilitation.

41․       An intensive correction order is precluded because no intensive correction assessment was sought for the offender (s 78 of the Sentencing Act).  I did consider adjourning the proceedings to enable the statutory assessments for eligibility to be carried out.  Section 46D of the Sentencing Act refers to a degree of dependence on a controlled drug as being a matter relevant to potential unsuitability for an intensive correction order.  I was concerned about delaying a sentence of the court’s own volition (as opposed to any forensic decision to request the assessment made by either party) to engage in a process that may only result in a recommendation of unsuitability.

42․       I am very mindful of the offender’s statements that he is finding it extremely difficult to undertake rehabilitation on his own.  What this man really needs is the assistance of the Drug and Alcohol Sentencing program. The program is targeted to assist not only with drug rehabilitation, but with managing to some extent the underlying causes that led to the person becoming drug addicted in the first place. However, in order to even be eligible for a Drug and Alcohol Treatment Order (DATO), s 12A(1)(b) of the Sentencing Act requires the length of the sentence to be imposed to be for a total period of at least a year.  It need hardly be said that overcoming addiction is generally not something that can be achieved overnight and the minimum eligibility requirement is in part a recognition of that fact.

43․       I canvassed with the parties potentially reducing the degree of concurrency between the two sentences, which were originally 6 months and 4 days (for CC2022/271) and 7 months and 1 day (for CC2022/7408), which would have had the consequence of the offender potentially being eligible for a DATO.  However, the principle in Thorn v Laidlaw [2005] ACTCA 49 at [30] – that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish the relevant sentencing objectives – speaks against such an approach.  The artificiality involved in crafting a total effective sentence might be the best outcome for the offender in terms of his rehabilitation, but it would not be an outcome achieved through the proper application of the principles regarding totality and concurrency.  However well-intended, it would likely cause the sentencing discretion to miscarry.

44․       Taking all these matters into account, I am left with a resentence for serious offences by a man who now has a slightly increased criminal history and, in any event, a somewhat increased requirement for personal deterrence, along with an addiction that requires intervention. However, I have no definite means of assisting the offender with that process through the statutory alternatives available. I accept the view of the author of the Court Duty Report that the offender is making efforts to turn his life around in order to be a positive influence in his children’s lives, and the consequent submission made by the offender that the long-term protection of the community, and the offender’s rehabilitation, would be best served by not interrupting the offender’s progress towards a law-abiding life.

45․       The sentence that I consider to best serve all those objectives within the limits of the available options is one that is very similar to that previously imposed and the intention is really to re-set the position.  Contrary to the submission of counsel for the offender, and unlike the position with regard to an intensive correction order, the completion of a good behaviour component does not mean that the appropriate disposition is to re-sentence the offender to a rising of the court.  That is because the sentence here has been “suspended” on a condition, which was subsequently not fulfilled.  That means no part of the good behaviour order is taken to be part of the serving of the offender’s sentence of imprisonment.  Accordingly, the practical effect will be to extend the period of time that the offender will have ultimately been subject to GBO obligations. In the circumstances of this case, that outcome is sufficient to ensure that the sentencing regime does not fall into disrepute.

46․       Further, the backdating of the sentence by the one day previously served in custody remains appropriate.  The offender relied on a subsequent period spent overnight in custody as a reason why no further action should be taken on the resentence. However, the transcript of the hearing in the Magistrates Court reveals that that time in custody was taken into account on the breach, with the Magistrate saying that such time in custody was “of some significance” which “no doubt would have provided clear and direct messaging to the defendant”.  That the time in custody was taken into account on the breach is further revealed by the sentencing magistrate stating, “I’m satisfied that, in circumstances where he served a short period in custody overnight and that there’s no other aggravating features, it’s appropriate to simply impose a fine”. Accordingly, that additional time spent in custody is not properly referable to this offending.

Orders

47․ For those reasons, the orders of the Court are:

(1) Pursuant to s 110(2) of the CSA Act, the good behaviour order in respect of Bradley Wayne Rohrlach is cancelled and the offender is resentenced in accordance with orders 2 and 3.

(2) For the offence of CC2022/7408, the charge of choking, suffocating or strangling another person, contrary to s 28(2) of the Crimes Act, the offender is convicted and a sentence of imprisonment for 7 months and 1 day is imposed, reduced from 8 months on account of the guilty plea, to commence on 8 May 2025 and conclude on 8 December 2025.

(3) For the offence of CC2022/271, the further charge of choking, suffocating or strangling another person, contrary to s 28(2) of the Crimes Act, the offender is convicted and a sentence of imprisonment for 6 months and 4 days is imposed, reduced from 7 months on account of the guilty plea, to commence on 5 July 2025 and conclude on 8 January 2026.

(4) The total effective sentence of 8 months and 1 day will be suspended from 9 May 2025 on the condition that the offender enter into a good behaviour order for the remainder of the sentence (9 May 2025 to 8 January 2026) including the following conditions:

1. He is to undertake to comply with the core conditions pursuant to ss 85 and 86 of the CSA Act;
2. An additional condition (pursuant to s 13(4)(g) of the Sentencing Act)that the offender is to report to ACT Corrective Services on or before 4pm on  Monday 12 May 2025 and thereafter to submit to the supervision of the Director-General responsible for administering the sentence or their delegate for as long as deemed necessary, including to comply with any directions targeted at supporting the offender’s abstention from controlled substances, such as urinalysis.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: