247․ The next question is how that sentence should be served. In considering this issue, I have had specific regard to the evidence of Mr Borenstein as to the possible consequences of a sentence of imprisonment for Mr McBride's mental health.
248․ If the availability of an intensive correction order is to be assessed by reference to the aggregate sentence imposed then, clearly, one is not available because the aggregate sentence exceeds four years. However, I have previously held that the availability of an intensive correction order is to be assessed in relation to each individual sentence that is imposed, rather than the aggregate sentence: DPP v Vincent (No 2) [2023] ACTSC 379 at [71]–[75]. Each of the sentences which I have imposed is below the four-year threshold. It is therefore necessary to consider the matters in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT) and determine whether the imposition of an intensive correction order is appropriate in the circumstances of the case. In my view, the level of harm done to the community caused by the offending is significant. Further, the offender's culpability for the offending having regard to all the circumstances is high. Given the nature of the offending and the aggregate sentence, I do not consider that it is appropriate that it be served by intensive correction. I consider that an intensive correction order would not adequately reflect the need for general deterrence, specific deterrence and punishment of the offender.
249․ Given that the aggregate sentence exceeds three years, the appropriate means of serving the sentences is by full-time detention with a single non-parole period: Crimes Act, s 19AB. The non-parole period will be a period of 27 months. Although representing a smaller than usual proportion of the head sentence, it nevertheless reflects the minimum period of full-time detention necessary to fulfil the purposes of sentencing. The lengthy period on parole will continue to provide a deterrent for any further offending.
Orders
250․ For those reasons, the orders of the Court are:
- 1. On the charge of contravening s 73A(1) of the Defence Act 1903 (Cth) (CAN 2897/2019), the offender is convicted and sentenced to imprisonment for 34 months, commencing on 14 May 2024 and ending on 13 March 2027.
- 2. On the charge of contravening s 73A(1) of the Defence Act 1903 (Cth) (CAN 2899/2019), the offender is convicted and sentenced to imprisonment for 34 months, commencing on 14 October 2025 and ending on 13 August 2028.
- 3. On the charge of contravening s 131.1(1) of the Criminal Code (Cth) (CAN 41388/2018), and having taken into account the charge of contravening s 70(1) of the Crimes Act on the s 16BA schedule (CAN 2900/2019), the
52
