Amberger v Stagg
[2019] ACTMC 26
•30 July 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Amberger v Stagg |
Citation: | [2019] ACTMC 26 |
Hearing Date(s): | 26 July 2019 |
DecisionDate: | 30 July 2019 |
Before: | Magistrate Theakston |
Decision: | See [27] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – contravention of family violence order – stalking – common assault – use carriage service to menace and harass |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 35 Family Violence Act 2016 (ACT) s 43(2) |
Cases Cited: | The Queen v BG (Supreme Court of the Australian Capital Territory, SCC 213 of 2009, Refshauge J, 1 December 2010) |
Parties: | Eloise Amberger (Informant) Matthew Stagg (Offender) |
Representation: | Counsel Mr N Deakes (Informant) Ms C Duffy (Offender) |
| Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid ACT (Offender) | |
File Numbers: | CC 3895 of 2019; CC 3894 of 2019; CC 4526 of 2019; CC 12043 of 2018; CC 11080 of 2018; and CC 11081 of 2018 |
MAGISTRATE THEAKSTON:
Background
The offender has pleaded guilty to the following three charges:
(a)CC 3895 of 2019 – on 24 March 2019 assaulted another person contrary to s 26 of the Crimes Act 1900;
(b)CC 3894 of 2019 – on 24 March 2019 contravened a family violence order, contrary to s 43(2) of the Family Violence Act 2016; and
(c)CC 4526 of 2019 – between 3 November 2018 and 31 March 2019 stalked another person with intent to harass that person, contrary to s 35 of the Crimes Act 1900.
The offender pleaded guilty to the first charge and not guilty to the second and third charges at his third appearance. Following the service of the prosecution brief of evidence and at the second pre-hearing mention, the offender changed his pleas for those latter charges to guilty. There was a strong prosecution case against the offender, including CCTV footage of the assault. While the police were put to the task of preparing a brief of evidence, no hearing date had been listed and no witness put on notice to attend court on any specific day. There is information within the Pre-Sentence Report consistent with the offender developing a degree of insight into his offending behaviour, including accepting that he only had himself to blame for the offending. I therefore recognise the utilitarian value of the pleas of guilty and the acceptance of responsibility by the offender. I take that into account and will reduce the sentences, relative to what I would have otherwise imposed, by a factor of 15%.
The maximum penalties for these offences are 2 years, 5 years, and 5 years respectively. The offender consented to me dealing with the second and third charges summarily.
Circumstances of the offences
The offender and the complainant had been in an intimate domestic relationship for the period of nine years between 2009 and 2018. In October 2018 and following their separation, the offender was served with a family violence order that prohibited the offender from approaching, contacting, or engaging in behaviour constituting family violence with respect to the complainant. On 13 November 2018, the offender was sentenced in this Court for using a carriage service that was menacing and two counts of contravening that family violence order. The charges involved the offender sending harassing or threatening text and voice messages to the complainant. The offender had served 21 days in custody before being sentenced. In relation to one of the breach charges, he was sentenced to 3 months imprisonment and released forthwith on a suspended sentence. In relation to the other charges he received good behaviour orders.
Between 4 November 2018 and 28 March 2019, the offender sent the complainant approximately 270 text messages, and at times attached images to those messages. Some of those messages were offensive or harassing. Examples include:
(a)sending the complainant copies of the offender’s court bail and sentence papers;
(b)sending edited images of the complainant, and images of a transsexual with text suggesting the complainant was depicted in those images;
(c)sending a text that read ‘None of you freaks look good as women yet you think you do. Even faked fucking road rage so you could look more girly. So much to be proud of. Fuck i wanna hurt you so bad im hurting waiting for new year. 12 o clock tomorrow is when your family will cry at losing a son xox you deserve it too’ [sic]; and
(d)sending messages showing that pink harassing graffiti had been placed on the complainant’s driveway and later on the complainant’s car.
On 24 February 2019, the offender approached the complainant at Cube nightclub, located in Canberra City. The offender pushed the complainant in the chest with one hand, causing him to spill the drinks he was carrying. Shortly thereafter the offender twice attempted to approach the complainant. However, others, including a security person, intervened to prevent that occurring.
The offender was arrested on 2 April 2019 and has remained in custody since.
The complainant provided a victim impact statement, that describes the ongoing emotional and psychological impact of the offending.
In the Pre-Sentence Report, the author reported the offender’s motivation behind the offending:
Mr Stagg advised he continued to obsess about his partner after the relationship ended, describing the hurt he felt from the demise of the relationship and how he wanted his ex-partner to feel the same pain that he did. … He spoke about the obsessive feelings he held towards his ex-partner including anger and betrayal for cheating on him and ending the relationship. He stated he wanted the victim to feel the same pain that he did from the cessation of their relationship and hoped to make him feel afraid.
The offender admitted to knowing what he was doing was wrong at the time, but felt blinded by anger and resentment.
Offender’s subjective circumstances
In addition to the matters finalised on 13 November 2019, in 2016 the offender was convicted of assault and assault occasioning actual bodily harm, against the same complainant. On both matters he received good behaviour orders with supervision by Corrective Services.
I take into account the contents of the Pre-Sentence Report. In particular I note the following features. The offender is 43 years of age, was born in the United Kingdom and has met his father only once. At the age of 29 years he and his wife and children moved to Australia. His marriage ended and his family moved back to the United Kingdom approximately 10 years ago. He has three children aged 16, 14, and 11 years. He entered a same sex relationship with the complainant shortly after his wife left him. In 2018 and following his disclosure that he was homosexual, his parents and brother ceased all communication with him.
The offender has experienced periods of homelessness following separating from the complainant.
The offender completed schooling in the United Kingdom and has always worked as a butcher. His former employer informed the author of the report that he would not employ the offender again because while the offender was generally a good performer and a reliable worker, the offender frequently attended work under the influence of alcohol, and had been observed smoking cannabis in the car park during shifts.
The offender has a history of alcohol abuse. In the years preceding the offending he drank to intoxication every day, often drinking alcohol first thing in the morning before work and then throughout the day. He sporadically uses cannabis. He commenced using methamphetamine in 2013, and in the year prior to the offences, he used 0.2 – 0.3 grams of the substance daily.
The offender acknowledged the role his substance abuse played in his thinking at the time of the offences. He is reported to have maintained that he only has himself to blame and did not want to make any excuses for his behaviour.
The offender has been positive and polite while in custody and has completed a number of courses in relation to health and drug harm minimisation. Unfortunately, while in custody, the offender has been subject to three separate assaults and has lost three teeth as a result. It was submitted, and I accept, that due to the offender’s sexuality he may find imprisonment more difficult than others.
Consideration
Clearly the offending involves a number of aggravating features. The offending spanned before and after the offender’s sentencing for similar offending. The offending after that sentencing occurred while the offender was on conditional liberty. The offending occurred in the context of the complainant being a previous domestic partner. The offending continued persistently over a prolonged period of time.
I note that the maximum penalty for the stalking charge is increased from 2 years to 5 years imprisonment due to the offence involving a contravention of an order of the court. That aggravation is also reflected in the breach of family violence order offence. I will therefore be cautious not to penalise the offender twice for that aggravation.
I was referred to the observations of Refshauge J in the unreported decision of The Queen v BG (Supreme Court of the Australian Capital Territory, SCC 213 of 2009, Refshauge J, 1 December 2010), and in particular the following passages:
The scheme of domestic violence orders has been established to provide protection … from violence against them that in former times was tolerated, if not accepted. That violence is not limited to what is physical, but includes emotional abuse, which can be equally distressing.
…
The offence is, as I have said, a serious one. Compliance with any sort of protection order is essential for the court to play its part in protecting members of the community from violence and other unwanted behaviour. Breaches of protection orders risk the success of the regime from achieving that purpose, especially if they encourage people to think that they can breach with impunity. A severe approach is necessary, consistent with fairness to the accused.
With respect I adopt those observations. In this case the offender has engaged in a deliberate and systematic terrorisation of the complainant, with the intention to cause discomfort and fear. He was motivated by the most basic of intentions. No doubt his self-induced intoxication was a factor leading to his distorted reasoning and thinking. However, he must still be held accountable for his actions.
Further, it is clear that the indifferent, unremitting and contumacious behaviour of the offender with respect to both the family violence order and the existing suspended term of imprisonment, both provokes and demands condign punishment targeted directly at the offender’s recalcitrance. To respond otherwise would compromise the integrity of both the family violence order and suspended sentence regimes. The offender, along other potential offenders, needs to be on notice that ignoring family violence orders or suspended sentences will place them in peril. There will be real and tangible consequences designed to bite and dissuade them from repeating that error.
I note the need to denounce the conduct of the offender, to make him accountable for his actions and to recognise the harm done to the complainant. I also recognise the utility of rehabilitation. To that end I will provide a period of early release with associated supervision by Corrective Services, in the hope that the same may assist the offender in not re-offending.
The seriousness of the offence of assault is in contrast to those of stalking and breaching the family violence order. The former is at the lower end of objective seriousness, whereas the latter is easily at the midway point and perhaps higher.
The offender is also in breach of the suspended sentence and good behaviour orders imposed on 13 November 2019, by the convictions I will impose today. I am therefore required to deal with those matters as well. For the matter involving the suspended sentence, I am required to either impose the balance of the suspended sentence or re-sentence the offender. When I consider the offending conduct for that matter, along with the offender’s criminal history at that time and his subjective circumstances, I am of the view that a slightly shorter period of imprisonment would have been appropriate. Accordingly, on that matter I will resentence the offender.
I have applied the principle of totality.
Sentence
I make the following orders:
(a)In relation to charge 12043 of 2018 – contravene family violence order, I cancel the good behaviour order and resentence you to imprisonment for the period of 2 months minus the 21 days already served on the previous occasion, which is back dated to commence on 2 April 2019 and has therefore ended on 11 May 2019.
(b)In relation to charges 11080 and 11081 of 2018 – contravene family violence order and use carriage service that was menacing, on each I cancel the good behaviour order and sentence you to the rising of the court.
(c)In relation to charge 3895 of 2019 – common assault, I record a conviction and impose a fine of $300 with no time to pay.
(d)In relation to charge 3894 of 2019 – contravene family violence order, I record a conviction and sentence you to 3 months imprisonment, with 2 months cumulative on the sentence imposed on charge 12043 of 2018, and therefore commenced on 12 April 2019 and ended on 11 July 2019. But for your plea of guilty it would have been 3.5 months imprisonment.
(e)In relation to charge 4526 of 2019 – stalked with intent to harass, I record a conviction and sentence you to 6 months imprisonment, fully concurrent on the sentence imposed for charge 3894 of 2019, and therefore commenced on 12 April 2019. But for your plea of guilty it would have been 7 months imprisonment. You will be released after serving 4 months, upon you entering into a good behaviour order for a period of 12 months, which will commence on 11 August 2019, with a probation condition for 9 months.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Magistrate Theakston. Associate: Priyanka Koci Date: 30 July 2019 |
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