Aller v Trott
[2022] ACTSC 91
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Aller v Trott |
Citation: | [2022] ACTSC 91 |
Hearing Date(s): | 28 April 2022 |
DecisionDate: | 28 April 2022 |
Before: | Elkaim J |
Decision: | See [43] |
Catchwords: | APPEAL – SUPREME COURT OF APPEAL – Appeal from Magistrates Court – where the appellant appeals from the sentence imposed – whether the Magistrate failed to apply the Verdins principles – whether the Magistrate erred in admitting certain parts of a Victim Impact Statement – whether the Magistrate failed to properly take into account and apply extra-curial punishment – whether the Magistrate failed to impose a lesser penalty for appellant’s pleas of guilty – manifestly excessive – appellant re-sentenced |
Legislation Cited: | Crimes Act 1900 (ACT) s 61B Crimes (Sentencing) Act 2005 (ACT) s 10 |
Cases Cited: | R v Appleby [2021] ACTSC 55 R v NX(No 2) [2019] ACTSC 131 |
Parties: | David Aller ( Appellant) Jonathan Trott ( Respondent) |
Representation: | Counsel K Edwards ( Appellant) T Hickey ( Respondent) |
| Solicitors Hugo Law Group ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 35 of 2021 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Theakston Date of Decision: 27 October 2021 Court File Numbers: CC2021/14375; CC2021/14376 |
Elkaim J:
On 28 July 2021 the appellant pleaded guilty to two offences of intimate observations or capturing visual data contrary to s 61B of the Crimes Act 1900 (ACT).
The maximum penalty for this offence is two years’ imprisonment and/or a fine of $32,000.
The appellant was sentenced by Magistrate Theakston on 27 October 2021. The appellant was sentenced to the same punishment for both offences, namely four months’ imprisonment suspended after two months on condition the appellant enter into a 12 month Good Behaviour Order. The terms of imprisonment were to be served concurrently.
The appellant filed a Notice of Appeal on 28 October 2021, which was followed by an Amended Notice of Appeal, filed on 9 March 2022, and then a Further Amended Notice of Appeal filed (without objection) in Court.
The sentencing took place against the background of an agreed statement of facts. In summary the appellant and Ms Y shared accommodation, initially in Kingston and later in Turner. The appellant placed a small camera in Ms Y’s wardrobe. The camera recorded Ms Y both dressed and undressed and in various states in between. The recordings were in video form and there seem to have been in excess of 100 films. These facts relate to the first charge.
The second charge concerned 185 video files and 440 images. A number of the files were taken with a smart phone. Ms Y was observed in the shower and bath. She was sometimes naked. There are also some images captured of Ms Y, apparently asleep. In other photographs Ms Y is seen to be going about domestic business, apparently unaware that she was being filmed.
The Magistrate had available to him a pre-sentence report dated 19 October 2021. The report recorded the appellant as having been born in 1990 in Western Australia and growing up in supportive family circumstances. He completed Year 12 but had been bullied while at school. He studied at university, including for a period in France. He came to the ACT in 2015 after graduating from university. He obtained employment with the Federal Government. He was dismissed as a result of the offences.
The offender had been a friend of Ms Y. This friendship naturally came to an end. In talking to the authors of the pre-sentence report, the appellant:
did not make attempts to justify or minimise his offending behaviour, and did not apportion blame onto the victim. He appeared to take responsibility for his actions and showed insight into his offending behaviour.
A report from a clinical psychologist was relied upon. The report confirms that the appellant took responsibility for his actions. A Major Depressive Disorder and an Avoidant Personality Disorder were identified and said to have:
impaired (the appellant’s) ability to exercise appropriate judgment or to make calm and rational choices or think clearly at the time of committing the offences. In addition, these disorders would have acted to disinhibit (the appellant) at the time of the offending as well as impaired his ability to appreciate the wrongfulness of his conduct and also these disorders could have impeded his ability to form the intent to commit the offences.
The psychologist said that the appellant had attended a sex offender program during which “he was very motivated to understand his offending and why he did what he did to his victim”.
The learned Magistrate also had before him a reference from the appellant’s mother and a letter from the appellant expressing his “sincere remorse for my abhorrent and morally repugnant behaviour”.
Ms Y provided a Victim Impact Statement. Not surprisingly she described her “humiliation and disgust” about having been filmed without her knowledge and surreptitiously. She said that she had endured “an immense amount of mental suffering” which was continuing.
The appellant did not have any other criminal convictions.
The appellant has four complaints about the sentence that he received:
(a)The Magistrate did not give him sufficient credit for his pleas of guilty.
(b)The Magistrate did not consider an Intensive Correction Order (an ICO) as an alternative to full-time imprisonment.
(c)The Magistrate wrongly allowed a portion of the victim impact statement to be read and, equally wrongly, relied upon that portion.
(d)The sentence was manifestly excessive.
I do not think it necessary to consider the first three complaints. In my view the strength of the final complaint is compelling. A sentence is manifestly excessive when it is plainly unjust.
The Crown correctly submitted that testing for a manifestly excessive sentence involved “a reaction to the sentence against the factual background of the offence”. My reaction is one of overwhelming overreach.
The reasons given by the learned Magistrate were detailed and considered all relevant matters. I will quote some of the matters that the Magistrate said he took into account in order to illustrate why I think the sentence is plainly unjust (starting at transcript page 21):
He made his way through university with some achievement. He completed three degrees, in law, in international studies, I think, as well as in languages, and was working for a Commonwealth Government agency. In fact, he moved to the ACT some five or six years ago after graduating from university to work for an agency.
Unlike a lot of people who come before the court, there is no suggestion of any alcohol issues or drug issues. There were, or have been, and are, issues of mental health vulnerabilities. There has been depression and anxiety from a young age. He was seeing a psychologist five years ago, and since this offending has come to light, he has engaged in a fairly structured and comprehensive form of counselling by his psychologist, and I will go to that in more detail in a moment.
He has been described as being upfront about his offending behaviour, and quite importantly, he has developed a safety plan to minimise his risk of reoffending, which is somewhat unusual. The presentence report is one that is unusual in that way. He is someone who appears to have done everything he possibly can do to address his offending since the offending came to light. He has not attempted to justify or minimise his actions. He has taken responsibility. He has shown insight in relation to his offending and the impact upon the victim. What is of concern is that he appears to have felt compelled to offend, in what has been described as a loop of anxiety that would build up, and it would only be released once he did commit the offence, from time to time.
He indicates that the data was captured, or the images were captured for his own personal use only. There is no suggestion that it was intended to go any further than that.
I will read the opinion of the assessor, because I think it captures somewhat the competing challenges in relation to this defendant:
Then on page 22:
Mr Aller is a 31-year-old man with no prior criminal history. He was assessed as a low risk of general reoffending. A further risk assessment was conducted using the Static-99R and he was assessed as an above risk of sexual reoffending based upon current static factors. Further assessment would be undertaken should Mr Aller be sentenced to a period of custody or community supervision.
Mr Aller appears to enjoy the benefits of a positive familial unit, has a substantial education and employment history and no history of problematic alcohol or illicit substance abuse. It is noteworthy that Mr Aller was victim to consistent bullying throughout his formative years, which appeared to impede his ability to form and maintain relationships throughout his life. It is apparent that Mr Aller experienced social isolation as a result, which in turn seemingly impacted his mental health and sense of self-worth.
It is concerning that Mr Aller engaged in offending behaviour towards the victim over a substantial period of time, despite knowing his actions were wrong, and made attempts to deceive the victim when his behaviour was identified. Conversely, it is positive that Mr Aller appeared to be honest regarding his offending behaviour throughout the preparation of this report and did not make attempts to deny or minimise or justify his behaviour.
Furthermore, Mr Aller demonstrated willingness to engage with sexual offence specific treatment over an approximate five-month period and appears to have gained insight into his offending behaviour through engagement with said treatment. Mr Aller may benefit from engagement in psychological treatment to assess and treat his mental health concerns, which appeared to decline further as a direct result of his offending behaviour.
He has been assessed as suitable for community service work, but not suitable for an intensive correction order due to residing outside of the territory. I note what has been said by Mr Taylor on behalf of the defendant, that he is willing to move to the territory if that would make a difference, if that should be considered.
I just note that the defendant lost his employment with the Australian Signals Directorate as a direct result of this offending, and I have a copy of a letter confirming a decision in that regard as a consequence of a code of conduct investigation. I accept what has been said by Mr Taylor, that this offending and that loss of employment, as well as the revocation of his security clearance, will have an ongoing effect upon this defendant. It is not simply the case that he has lost a job. He has essentially lost his career at this stage. He may be able to make other arrangements for another career, but I accept it is going to be difficult for him to be engaged in the Australian Public Service, certainly in the near to mid-term future.
On page 24:
Just to be clear, I take into account quite directly the extra-curial punishment suffered by the defendant; that is, he has lost his job, he has lost his career.
I take into account the Verdins principles, the reduction in moral culpability, and therefore a reduction somewhat in relation to general deterrence. Specific deterrence still needs to feature. The compulsive nature of the offending is such that there needs to be a clear message sent to the defendant. I also am of the view that general deterrence, while it needs to be reduced, it still needs to feature. There is a need to recognise the harm done to the victim and to denounce this type of behaviour generally.
I take into account the treatment the defendant has undergone and the subsequent amelioration of the risk of reoffending.
In relation to individual justice, I think that issue applies everywhere. It is quite clear that, while there may be tariffs or trends in relation to sentencing, each case needs to be sentenced on its own facts, including the objective circumstances as well as the defendant’s subjective features.
I have quoted all of these passages because they all point to a path of leniency derived from the features that they highlight, including mental health issues (application of the Verdins principles), no criminal record, loss of a job and a career, remorse (including acknowledgement of the seriousness of the offending), and immediate actions (through counselling) to counter the causes of the offending and minimise the possibility of re-offending.
But then his Honour concluded:
Ultimately, I am satisfied the section 10 threshold is crossed, and that is that no sentence other than a period of imprisonment is appropriate (transcript page 25).
It is worth setting out s 10(2) of the Crimes (Sentencing) Act 2005 (ACT):
10Imprisonment
…
(2)The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
His Honour analysed the offending and made this comment:
However, having said that, this occurs in the victim, (victim’s), home. It occurs in her bedroom, in her bathroom, in her walk-in wardrobe. It occurs in a place where she is expecting the most privacy. It involves planning, the purchase of a device, the placement of a device, the managing of images from that device across to a hard drive. It occurs across an extended period of time. It involves the breach of trust to a friend and it involves a range of images that extend from observing (the victim) while she sleeps, through to while she is using the bathroom and shower (transcript page 24).
His Honour referred to the Victim Impact Statement and, I think correctly, gave due weight to the effects on the victim. One of the appellant’s complaints is that he should not have done so. I disagree. I think he was entitled to take into account the consequences to the victim that flowed from the offending.
His Honour specifically referred to deterrence, both specific and general. I have already quoted his comments on this subject above, from page 24 of the transcript. He had already said, at page 23:
I accept that in such circumstances general deterrence – that is, deterrence to others who might think of offending in a similar way – should not feature as highly as it otherwise should.
There is not a single description of the seriousness of the conduct made by his Honour with which I disagree. But what I cannot agree with is his Honour’s leap (said without disrespect) from his descriptions of matters both favourable to the appellant and condemnatory of his conduct to a conclusion that imprisonment was a last resort.
The subjective factors were so compelling that they should have prevented the step from there being options available to the only option being imprisonment. Full-time custody was not a last resort.
I accept that an ICO had limitations because the appellant was not living in the ACT. But that was not the only option. There was the possibility of a fine, a suspended sentence, community service order and a combination of all of these options.
I indicated to the Crown during the hearing today that I thought that the only one of the complaints made by the appellant, at least on an initial basis, that had merit, concerned manifest excess. I invited the Crown to make submissions to deter me from this conclusion.
The Crown emphasised, in the strongest terms, that general deterrence, in particular, demanded that conduct of the nature present here required a period of full-time imprisonment. The Crown emphasised that there had been over 700 images or videos collected involving “a huge breach of trust” and a sustained course of conduct.
The Crown accepted there were subjective features that might generate leniency, but this had been more than adequately catered for in the suspension of two months of the prison term.
The Crown said that other sentences that had been imposed in different cases justified this approach. In particular I was referred to R v Appleby [2021] ACTSC 55 (Appleby) and R v NX(No 2) [2019] ACTSC 131 (NX). It is very rare for precisely the same facts to be found in different cases. Nevertheless guidance can, in fact must, be taken from other sentencing practices. The difficulty with both Appleby and NX is that there are so many points of difference that their educative value is minimal.
For example, in Appleby, there were a total of 15 Territory charges (as well as Commonwealth charges), a number of which involved children as young as nine years of age. The criminal in Appleby was much older than the appellant and there were serious reservations applied to his expressions of remorse.
In NX, the relevant offences were accompanied by charges of rape and assault. There was a history of drug and alcohol abuse.
Despite a valiant effort the Crown did not dispel my initial, and I should say marked, impression of the unjustness of the sentence.
Having reached this conclusion, it is necessary for me to re-sentence the appellant. I adopt the observations made by his Honour. In effect, it is only his ultimate conclusion that I disagree with.
In addition I have been provided with some further documents including an affidavit from the appellant and a letter from his mother. Although the appellant’s ongoing mental health conditions and shoulder problems are relevant, they do not add to the general picture described by the learned Magistrate, but which should not have generated a sentence of imprisonment.
The initial proposal put forward by the appellant was for a reassessment for an ICO. This will necessarily involve the appellant relocating to the ACT. At present he lives with his mother in New South Wales in a small town. Not surprisingly, with his record, he has not been able to find employment. The hope of the family is to move to Adelaide, but without interfering with any order that I might make.
If the offender is required to live in the ACT, as would be necessary for an ICO, his prospects of employment might improve, but also might be equally limited. I think enforcing such a move would be contrary to his mental health interests, especially if he was required to live away from his mother.
The Crown, as I understood its submissions, effectively said that a suspended sentence and an ICO could not be distinguished. They were both too weak to meet the present offending. I took that submission to mean that, from the Crown’s point of view, it made little difference whether the appellant received an ICO or a suspended sentence.
Submissions from the Crown which I do accept are that if a suspended sentence is to be imposed it should be accompanied by community service and be structured so as to include the nine days that the offender has spent in custody following his sentencing last year. These are elements which would enhance the existence of general deterrence.
Of the two offences the second in time is clearly the more serious. I intend to attach a community service order to this charge. Otherwise I think the Magistrate’s approach, other than the two months of full-time imprisonment, was correct.
I make the following orders:
(i)The appeal is allowed.
(ii)The sentences imposed by Magistrate Theakston on 27 October 2021 are set aside.
(iii)For charge 14375 of 2021, the offender is sentenced to a term of imprisonment of four months to commence on 19 April 2022 and end on 18 August 2022.
(iv)For charge 14376 of 2021, the offender is sentenced to a term of imprisonment of four months to commence on 19 April 2022 and end on 18 August 2022.
(v)The above terms of imprisonment are suspended with immediate effect on condition that the offender enter a Good Behaviour Order today on core conditions for a period of 12 months, commencing today.
(vi)It is a further condition of the Good Behaviour Order, in respect of charge 14376 of 2021, that the offender perform 200 hours of community service within 12 months of today.
(vii)The period from 19 April 2022 until today reflects the nine days of imprisonment that have already been served by the appellant.
| I certify that the proceeding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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