Director of Public Prosecutions v Ashton
[2012] VCC 911
•26 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00452
Indictment No. A10295533.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHARLENE ASHTON |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April, 14 & 25 May 2012 | |
DATE OF SENTENCE: | 26 June 2012 | |
CASE MAY BE CITED AS: | DPP V Ashton | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 911 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R L Harper | Office of Public Prosecutions |
| For the Accused | Mr P V Guggenheimer | Michael Kelly Solicitors |
HER HONOUR:
1 Sharlene Ashton, you are to be sentenced in respect of two charges of stalking (Charges 1 and 2), one charge of attempt to obtain property by deception (Charge 3) and one charge of arson (Charge 4), contrary to ss.21A, 321M and 197(1) and (6) of the Crimes Act 1958. You pleaded guilty when arraigned before me on 16 April 2012. The maximum applicable penalties are:
· stalking – 10 years’ imprisonment;
· attempting to obtain property by deception – five years’ imprisonment; and
· arson – 15 years’ imprisonment.
Circumstances of offending
2 The agreed facts are set out in summary of prosecution opening, Exhibit A. A copy of that document will be attached to these reasons for sentence as Annexure A. Further, some of the evidence given at your trial on Indictment A10295533.3 is relevant to my task in sentencing you today. That evidence was either uncontested at trial, or is otherwise consistent with the jury’s verdict.
3 As the evidence reveals, you had an affair with Kent Hibberd, whom you met through an online dating agency in early 2008. Both you and Hibberd were married. Hibberd and his wife, Rose, had an “open relationship”. They each conducted extra-marital sexual relationships with the knowledge and consent of the other. You were not in an “open relationship”. Your husband was initially unaware of your affair.
4 The dynamics of the Hibberd’s relationship changed when Rose ended her extra marital affair and exerted pressure on her husband to end his sexual relationship with you[1].
[1]This evidence emerged at trial, but is not in dispute
5 I might just interpose here. I have cross-referenced in my reasons for sentence evidence that I have taken from the trial, as opposed to evidence that necessarily has come from here, so I will not refer now to any evidence that has come from the trial from the footnotes, unless you want me to.
6 By this stage, you and Rose had become friends, and she was quite content for the friendship to continue between the three of you. Contrary to his promise to end sexual relations with you, Kent Hibberd secretly continued the sexual side of his affair with you.
Charge 1
7 Using a false name and address, you sent a number of emails to Rose Hibberd in which you adverted to Kent’s infidelity.
Events leading to Charge 2
8 The Hibberd’s marriage was under strain and Kent Hibberd moved out of the matrimonial home in around mid-June. You helped him to establish his new home at rented premises at 15A Derby Street, Pascoe Vale (“the Pascoe Vale premises”)[2].
[2]This evidence emerged at trial, but is not in dispute
9 Rose Hibberd discovered her husband’s deceit. Kent Hibberd determined to reconcile with his wife. He told you that he wanted to end his relationship with you. You wanted the relationship to continue[3].
[3]This evidence emerged at trial, but is not in dispute
10 On the evening of 30 July, at his invitation, you visited Kent Hibberd at the Pascoe Vale premises. It was understood that you would spend the night there, albeit on the couch in the living room. You left the premises after Kent Hibberd went to bed[4].
[4]This evidence emerged at trial, but is not in dispute
11 In the early hours of 31 July 2009, fire destroyed the Pascoe Vale premises. Kent Hibberd was in the premises when the fire started. Police attended the scene, where Kent Hibberd insisted that you were responsible. Later that day, at your workplace, you were arrested on suspicion of setting the fire[5].
[5]This evidence emerged at trial, but is not in dispute
12 You were accused of attempting to murder Kent Hibberd (you were later charged with this offence)[6] and you lost the job you had held for some 32 years.
[6]This evidence emerged at trial, but is not in dispute
Charge 2
13 Following your arrest, on 3 August 2009, Interim Intervention Orders were made in the Magistrates’ Court prohibiting you from contacting Kent and Rose Hibberd. Later that day, you purchased a new mobile phone, which you later set up in Rose Hibberd’s name. You used that phone to send threatening text messages to Kent Hibberd. In one message, you sent a threatening poem: “Roses are red, violets are blue. I would keep a look over your shoulder if I were you”[7]. You also sent a number of taunting emails to Kent Hibberd about the recent fire. You sent those emails using Rose Hibberd’s name.
[7]Depositions page 423, exhibit D at trial
Charge 3
14
You owned a Toyota Camry which was subject to a lease from Macquarie Leasing Company. As at 9 September 2009, you owed $30,081.80 under the terms of the lease. With your mother’s assistance you hid the car. On
21 September 2009, you falsely reported the car as stolen. Three days later, you lodged a claim for insurance. Your claim was denied.
Charge 4
15 On 1 December 2009 you retrieved the car and set fire to it. The fire caused extensive damage to the car.
The trial and history of proceedings:
16 I have referred to your trial on Indictment A10295533.3.[8]
[8]Initially all charges the subject of the trial and of this Indictment were laid in one Indictment – A 10295533.
17 The attempted murder charge was initially to be heard in the Supreme Court, but the prosecution withdrew that charge and instead laid charges of arson and reckless conduct endangering life – see Indictment A10295533[9]. That Indictment also included the charges the subject of the current Indictment.
[9]The Indictment was filed on 15 December 2012
18 On 15 February 2012, at a directions hearing before Her Honour Judge Hannan, you indicated your intention to plead guilty to the current charges[10], and maintained your innocence of the charges arising from the fire at the Pascoe Vale premises. Severance was made by consent[11], and the present charges were separated[12] from the charges arising from the arson at the Pascoe Vale premises[13].
[10]Actually negotiations were underway at committal stage where informal offers to plead were made
[11]See Order Judge Hannan 15 February 2012
[12]The current Indictment A10295533.1
[13]First on Indictment A10295533.2, and then on filed-over Indictment A10295533.3
19 Later that month your trial was listed for hearing before me. After preliminary applications were resolved, on 28 February, a jury of 12 was empanelled to try you on Indictment A10295533.3.
20 At your trial you gave sworn evidence not only about the charges the subject of the trial, but also about the current stalking charges. You made full and frank admissions and explained why you decided to stalk the Hibberds and what you were hoping to achieve. You denied any involvement in the fire at the Pascoe Vale premises.
21 On 16 March the jury acquitted you of all counts on Indictment A10295533.3. Accordingly, you must be given the full benefit of your acquittal. You are presumed innocent of those charges.
22 I have spent some time explaining the background in order to place the current charges into their proper context, and to show that you have already suffered significant penalty because of the charges in respect of which you were acquitted.
23 As to the stalking charge against Rose Hibberd, both you and she were vying for Kent’s affections.
24 As to the stalking charge against Kent Hibberd, you were outraged that he falsely accused you of attempting to murder him by setting fire to the Pascoe Vale premises. As a consequence of his allegations, you were humiliated at your workplace when police arrived to arrest you, you lost your job, and thereby your financial security, your previously unblemished character was called into question, your marriage fell apart and you faced the prospect of a Supreme Court trial. You focused on Kent Hibberd as the source of your misery. You stalked him in response to the injustice you felt he caused.
25 As to the false insurance claim, by now you had lost your job. You were under financial and emotional pressure. You had the stress of the police investigation hanging over you.
26 As to the destruction of the car, you damaged the property in respect of which you had a financial interest. Now you had no job, no income and no car.
Gravity of offending
Stalking
27 The crime of stalking covers a wide variety of conduct. You committed Charge 1 in order to disclose Kent’s infidelity to his wife. Your purpose was to drive a wedge between the Hibberds so as to improve your prospects of maintaining your relationship with Kent. You also intended to taunt Rose. There were other nuisance aspects of this charge, as outlined in Annexure A. I regard Charge 1 at the lower end of the scale of seriousness for this type of offence.
28 Charge 2, however, involves conduct of a more menacing nature. Among the messages were veiled threats of physical harm. An aggravating feature of Charge 2 is that it was committed whilst you were bound by the terms of an Intervention Order. Therefore, I regard Charge 2 as more serious.
Attempt to obtain property by deception
29 This dishonesty offence involved a level of planning and calculation. Attempted insurance fraud is not a victimless crime.
Arson
30 Arson is a very serious crime. Fortunately, no-one was injured. Arson of this type carries with it the risk of explosion with consequent harm, loss and damage.
31 Speaking generally of all the charges you face, principles of general deterrence, denunciation and condemnation, protection of the community and just punishment are important sentencing considerations.
Impact on victims
32 As to the stalking charges, both Kent and Rose Hibberd have each made victim impact statements.[14] These statements refer to the emotional consequences suffered as a result of the fire at the Pascoe Vale premises. Despite your acquittal, Kent Hibberd holds you responsible for this fire. It appears that the fire has caused much anxiety. Because you are presumed innocent of those charges, I have attempted to disentangle the consequences of the house fire from the consequences of the stalking. This has been a difficult exercise because the Hibberds see all matters as intertwined. I am satisfied that your stalking has caused both Kent and Rose Hibberd a level of fear, anxiety and concern.
[14]Kent Hibberd dated 9 August 2012 (Exhibit B) and Rose Hibberd dated 5 August 2012 (Exhibit C)
33 As to the attempt to obtain property by deception, I repeat, insurance fraud is not a victimless crime. Since your claim was denied, the insurance company suffered no loss.
34 As to the arson, you had a financial interest in the car, as did the leasing company. Compensation has been sought. It is not disputed that you have sold your apartment and that the insurance company will be paid in full from the proceeds of that sale.
Factors in mitigation
35 Your counsel, Mr Guggenheimer, referred to a number of matters in mitigation:
Pleaded guilty
36 You indicated your intention to plead guilty to the current charges as early as at the committal stage. You confirmed your guilt of the stalking charges when you gave sworn evidence before the jury in the arson trial, as I said before.
37 I am satisfied, in all the circumstances, that you indicated your intention to plead guilty to these charges at an early stage.
38 In determining the weight to be given to your guilty plea, I take account of the following factors:
(1)The timing of your plea;
(2)You are entitled to a statutory discount because of your plea;
(3)You openly confirmed your guilt in your sworn testimony;
(4)I accept that your plea is indicative of your remorse;
(5)You have avoided the cost of a trial, you have spared witnesses the inconvenience, embarrassment and ordeal of giving evidence. I note that at the arson trial, Rose Hibberd never gave evidence; and
(6)There is social utility involved in your guilty plea.
Factors personal to you
39 You are now aged 51 years. At the time of offending you were aged 48. You have no prior convictions and up to this point had never been in any sort of trouble.
40 You grew up in Bentleigh. Your parents divorced when you were aged about 13 or 14.
41 You were educated at Ormond East Primary School and then attended McKinnon High School where you completed Year 10. You then commenced an apprenticeship as a "handed machine compositor" at Leigh Marden. You completed your apprenticeship in publishing. You remained in constant employment with the same firm in its various reincarnations for some 32 years. The firm later became known as "infomedia”, the place you were working at the time of the offences.
42 From the age of 16 you also attended night school at Cheltenham Secondary College. You completed your HSC.
43 At age 19 you joined the Army reserves and continued there for some four years. During this time you met the father of your first child. At age 22 you gave birth to David. His father had little to do with you after you fell pregnant and once David was born you found yourself as a single mother working full-time. In the reserves your training was as a cook.
44 Throughout the years you saved as best you could and by 1986 you were able to buy a small unit in Carrum.
45 You entered no serious relationships until you met Barry Fisher whom you married in about 1992 or 1993. In March 1994 your son Zachary was born.
46 You and your husband purchased a block of land at Chelsea Heights and built a house on it. In July 1998 your son Liam was born.
47 You are a devoted mother and have always been dedicated to your children's pursuits. You supported them in Cubs, scouts, football and other extra curricular activities.
48 You were also a devoted and practising Catholic. In around 2000, you became involved in your local St Vincent DePaul ultimately becoming the president of the Chelsea conference. Until charged with these offences, you dedicated 4 to 6 hours a week in charitable endeavours.
49 Over the years problems developed in your marriage. It appears that your husband developed a significant alcohol dependency which led to various physical ailments including hypertension and impotency. This in turn affected his capacity for intimacy with you and ultimately your relationship became nonphysical.
Events leading up to the offending and your reason for committing the crimes
50 You met Kent Hibberd online. You did not meet him face to face until January 2008. The relationship evolved from a casual friendship to girlfriend/boyfriend. By the end of 2008 you had met Rose Hibberd with whom you formed a friendship.
51 As I have said Kent and Rose had an open relationship. At first you kept your relationship a secret from your husband but you ultimately revealed the truth and this led to your divorce in June 2009.
52 Your relationship with Kent and Rose was stressful at times given the competing plays made by you and Rose for Kent’s affections.
53 When Kent told you that Rose demanded that you and he cease your sexual relationship, you were deeply affected. This triggered the first stalking charge.
Events following the house fire
54 On 31 July 2009 you were arrested at work. You were interviewed on suspicion of attempted murder and arson. An intervention order was taken out against you on 3 August 2009 by Kent and Rose Hibberd. You were incensed at having been falsely accused of arson and of attempting to murder Kent. You committed Charge 2 immediately after the Intervention Order was made.
55 In early September 2009, because of the various police attendances and the serious nature of the attempted murder and arson charges, you lost your job as a data preparation officer. In order to investigate the attempted murder and arson charges, police had seized various work computers that you had used. You were leading a team of six at work. You had attained a salary of $85,000 doing a job you enjoyed and in which you performed well. At this time you had also been pursuing other studies to become a bail justice. You were almost finished that course when charged with the other and these offences.
56 On termination of your employment you received a payout of about $25,000 for long service leave owed. You used this money to buy another car for the sum of approximately $15,000, after you reported the leased car as stolen.
57 The loss of your job, which as I say you had held for some 32 years, was devastating for you. You lost your financial security and your reputation.
58 From approximately 31 July 2009 you lost control of yourself. You became consumed by anger and were extremely upset about the charges for which you were interviewed.
59 On 3 February 2010 you were charged with attempted murder and arson. These charges as I have said were to be heard in the Supreme Court. The charges were later reduced to arson with intent to endanger life, to be heard here in the County Court. I have already referred to what has happened to those charges. You were acquitted of them.
60
You have had the stress of the charges hanging over your head ever since
31 July 2009, almost 3 years. You were ultimately acquitted of the most serious charges in March this year.
61 This worry of the consequences of the contested charges placed you under enormous stress. You became overwhelmed by your predicament.
62 You concede that you made poor choices and you are very remorseful for your conduct.
63 Upon your arrest you spent approximately 3 weeks in custody. This was a huge shock for you and it was an eye opener.
64 Upon your release on bail you attempted to find employment and you worked occasionally in temporary part-time jobs. You are currently receiving a Centrelink pension.
65 You were bankrupted in May 2011.
66 Your flat has been sold and it is likely there will be sufficient funds to make restitution. A compensation order will be made by consent.
67 You hope to obtain full-time work but appreciate this may be difficult given the inevitable convictions that will be imposed today.
Physical Health
68
You suffer from various medical conditions as outlined in the letter from
Dr Barr tendered as Exhibit 1. You have had thyroid cancer, which was treated by surgery and two rounds of chemotherapy.
Mental health
69 Two reports were tendered - Dr Michael King, Exhibit 3, and Dr Michelle Wauchope, Exhibit 4. Dr Wauchope also gave sworn evidence before me.
70 I am satisfied that at the time of offending you were under enormous psychological stress and pressure and acted out of character. I also accept that you experienced all the symptoms of an emotional trauma as a result of being treated as a suspect for attempted murder, and because of the laying of consequent charges against you. You committed the offences the subject of this indictment whilst in that state. I am satisfied that your moral culpability is somewhat reduced by reason of this factor.
71 You have been receiving treatment from Dr King and I am satisfied that you pose no ongoing threat of re-offending in a like manner.
Prior good character
72 As I have said you have no prior convictions. You have also dedicated much time to charitable pursuits.
73 A bundle of character references and testimonials were tendered as Exhibit 2.
§Cheryl Noble dated, 14/2/12
§John Noare, undated
§Keith Callinan, dated 13/2/12
§Barbara Rowsell, dated 10/2/12
§Colin Nash, undated
§Pauline Landt, undated
§Lawrence Rowsell, dated 10/2/12
§Trudi Callinan, dated 13/2/12
§Catherine Clifford, dated 02/12
§David Smith, dated 22/1/10
§Vivienne Graeme, undated
§Leanne Warner, undated
§Christine Jenkins, undated
§Barrie Fisher, dated 13/2/12
§Paul McCarthy, undated
74 I have read all of these references and I take them very much into account. These documents paint a glowing picture of a kind, generous, caring, loyal and decent woman.
75 One of these referees also gave sworn evidence on your behalf. Ms Noble testified that she has known you for 13 years. She attended court during the arson trial. She had also met Kent Hibberd. She confirmed that after the fire and the problems you experienced with the Hibberds you changed dramatically. Fortunately you have since recovered.
Submissions as to penalty
Prosecutor’s submissions
76 Miss Duncan stressed the importance of general deterrence, denunciation and condemnation, and the protection of the community, given the serious nature of the charges.
77 She also noted on the question of parity, that your mother was also charged with the dishonesty offences and was given a 12 month good behaviour bond.
78 Miss Duncan submitted that the only appropriate disposition is one involving your immediate imprisonment. This submission was confirmed today by Ms Harper who appears for the prosecution. Ms Duncan proposed a total effective sentence of two to two and a half years with a non-parole period of 15 to 18 months as within range.
Defence submissions
79 In summary, your counsel placed great weight on:
· your prior good character
· the charitable work you have done
· your deep remorse
· your prospects for rehabilitation
· your guilty plea
· your psychological state at the time of offending
· the punishment you have already suffered as a result of being falsely accused of serious crimes, including remand for approximately 3 weeks, court proceedings, loss of job, financial security and reputation
· breakdown of your marriage
· your bankruptcy, and
· the unlikelihood of your reoffending.
80 Your counsel conceded the gravity of your offending, and that a term of imprisonment is within range for all but the first charge. He noted the significance of general deterrence in sentencing you.
81 He urged however that any term of imprisonment be wholly suspended.
82 As to charge 1, he submitted that a community corrections order or a fine is within range.
Sentences to be Imposed
83 I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am satisfied it is unlikely you will ever re-offend.
84 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. I also take into account the delay and rehabilitation in the period of delay. I take into account principles of parity, so far as relevant, but note the different roles played by you and your mother in the dishonesty offences.
85 I will return to Charge 1 after imposing the sentences on Charges 2, 3 and 4.
Charges 2, 3 and 4
86 In all the circumstances I have no alternative to the imposition of terms of imprisonment.
87 On Charge 2 - stalking, you are convicted and sentenced to six months imprisonment. On Charge 3 - attempt to obtain property by deception, you are convicted and sentenced to 12 months imprisonment. On Charge 4 - arson, you are convicted and sentenced to 18 months imprisonment.
88 On the question of whether cumulation is required, and if so, how much, I take account of the fact that these three charges are discrete, were committed on separate occasions, and involved offending of such gravity that total concurrency would fail to do justice. I must also pay regard to principles of totality and proportionality and avoid imposing a crushing sentence. Balancing these matters I consider it appropriate to order some period of cumulation.
89 I therefore direct that six months of the sentence imposed in respect of Charge 3, and one month of the sentence imposed in respect of Charge 2 be served cumulatively upon the sentence imposed on Charge 4, the base sentence, and with each other. That results in a total effective sentence of 25 months imprisonment.
90 Your counsel has sought that this term of imprisonment be wholly suspended. In considering whether it is desirable in the circumstances to make such an order, I must in addition to the other matters advanced by the Crown and your counsel, have regard to the matters referred to in s.27(1)(a) of the Sentencing Act 1991.
(a) the need, considering the nature of the offence, its impact on the victim(s) of the offence and any injury, loss or damage resulting from the offence, to ensure that the sentence—
(i)adequately manifests the denunciation by the court of the type of conduct in which you engaged; and
(ii)adequately deters you or others from committing offences of the same or a similar character; and
(iii)reflects the gravity of the offence; and
…
(d)the degree of risk of you committing another offence punishable by imprisonment during the operational period of the sentence, if it were to be suspended.
91 Taking all of these matters into account, I am satisfied that it is desirable in the circumstances to make such an order.
92 I note the fact that you have already undergone significant penalty on the other charges of which you were acquitted, and the fact that you have spent some time on remand is relevant to the sentence I have imposed today, including the fact that I intend to suspend the whole of the term of imprisonment.
93 I therefore direct that the whole of the sentences imposed on Charges 2, 3 and 4 be suspended for three years.
94 Ms Ashton, you must not during the period of suspension commit another offence punishable by imprisonment. If you do, you would be in breach of the terms of the suspended sentence, and should expect to be brought back before the court and be ordered to serve the whole of the sentence that was suspended. I must warn you that there are very few circumstances in which you could avoid having to serve the whole of the sentence that was suspended. You would have to persuade the court that it would be unjust to restore the sentence in view of any exceptional circumstances which have arisen since the order suspending the sentence was made. This is a very hard test to satisfy, so you should act on the assumption that if you breach this order in the way I have described you would be brought back before me and I would order you to serve the whole of the sentence that was suspended. Do you understand?
95 OFFENDER: I do.
Charge 1 - stalking
96 HER HONOUR: I now return to Charge 1, stalking. I have an alternative to the imposition of a term of imprisonment.
97 Your counsel submits that both a fine and a community corrections order are open, but I agree he correctly points out that it would be more appropriate to release you on a community corrections order. I may make such an order only after having received a pre-sentence report and only after paying regard to any recommendations, information or matters identified in the report; and again only if you consent to the order.
98 As you know, I have sought and received a pre-sentence report. The report indicates that you are considered a suitable candidate for a community correction order. The report also contains certain information and a number of recommendations.
99 I propose making such an order. So that you are in a position to make an informed decision about whether you will give your consent, I will tell you something about the course I propose.
100 The length of the order will be[15] one year.
[15] magistrates Court limit two years s38(1)(a); county court - whichever is the greater of the maximum term of imprisonment for the offence or two years s38(1)(b)
101 The order will commence today.[16]
[16] s38(2), sec 44
102 Every community corrections order including the one I propose in this case contains six mandatory conditions. They are[17]:
[17] S45
1. you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
2. you must report to, and receive visits from the Secretary during the period of the order;
3. you must report to the community corrections centre specified in the order, in this case Frankston Community Corrections Centre, 431 Nepean Highway, Frankston, within two clear working days after the order coming into force, namely within two days of today;
4. you must notify the Secretary of any change of address or employment within two clear working days after the change;
5. you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
6. you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
103 I am also required to attach at least one condition in accordance with s.47 of the Sentencing Act 1991. In attaching these conditions I bear in mind[18] –
A) the principle of proportionality;
B) the purpose for a sentence may be imposed as set out in s.5 of the Sentencing Act 1991; andC)the purpose of a community corrections order as set out in s.36 of the Act – namely: to provide a community based sentence for a wide range of offending behaviours while having regard to and addressing your circumstances.
[18] 48A
104 These are the proposed additional conditions:
1. The court requires you to undergo treatment and rehabilitation which I shall soon specify and as directed by the Secretary unless otherwise directed by the court[19]. In attaching this treatment and rehabilitation condition I have regard to
a. the need to address the underlying causes of your offending; and
b. the recommendations, information and matters identified in the pre-sentence report concerning your treatment and rehabilitation
[19] 48D
105 The treatment and rehabilitation specified by the court is as follows:
omental health assessment and treatment that may include psychological, neuropsychological, psychiatric treatment, but not treatment in a hospital or residential facility;
oany program that addresses factors related to your offending behaviour;
oany other treatment and rehabilitation directed to improving your employment prospects, educational, and personal develop programs that are consistent with the purpose of the treatment and rehabilitation condition.
2. My proposal then is to record a conviction and make a community corrections order containing all of the conditions that I have just mentioned[20].
[20] Q whether non-conviction is an option in Federal sentencing – previously only conviction CBOs could be given – see sec 20AB(1) Crimes Act Cwth
3. Ms Ashton, you must understand that if you breach any of the conditions of this order you may be charged with the offence of contravening a CCO[21]. That offence carries a maximum penalty of 3 months’ imprisonment. There may be other consequences. If you are found guilty of the breach, in addition to the penalty imposed for that offence, the court might vary or cancel the order or re-sentence you in respect of the offence before me today. That might mean you will be sent to prison as a result.[22] Do you understand that?
OFFENDER: I do Your Honour.
4. HER HONOUR: Do you consent to the order in the terms that I have just outlined, in the full knowledge of the consequences of breaching such an order?
OFFENDER: I do Your Honour
5. HER HONOUR: Very well, the order may be prepared in the terms I have indicated. Given the dispositions will involve immediate imprisonment is there any reason why Ms Ashton cannot now step out of the dock and sit behind Mr Guggenheimer?
[21] 83AD
[22] 83AS
106 MR GUGGENHEIMER: No Your Honour.
107 HER HONOUR: Ms Ashton please come and sit behind Mr Guggenheimer. You will need to sign the community corrections order.
108 Ms Ashton, you have now signed a copy of the community corrections order. Please give Ms Ashton a copy. Do you acknowledge receipt of a copy of the order?
109 OFFENDER: I do Your Honour.
Section 6.AAA statement
110 HER HONOUR: But for your guilty pleas the sentences I would have imposed are as follows. Charge 1, convicted and sentenced to one month imprisonment. Charge 2, convicted and sentenced to nine months imprisonment. Charge 3, convicted and sentenced to 18 months imprisonment. Charge 4, convicted and sentenced to 27 months imprisonment.
111 After orders for cumulation I would have imposed a total effective sentence of 39 months imprisonment. A suspended sentence would not be open. I would have directed that you serve a minimum of 26 months before becoming eligible for parole. I direct that the sentences I would have imposed but for the guilty pleas be noted in the records of the court.
112 I now turn to the ancillary orders.
113 MS HARPER: There's a disposal order.
114 MR GUGGENHEIMER: That's consented to Your Honour.
115 MS HARPER: Forensic sample retention order.
116 HER HONOUR: Have you given - - -
117 MS HARPER: I believe Your Honour has drafts of all of those.
118 HER HONOUR: Just one moment. There's the disposal order, the 464.
119 MR GUGGENHEIMER: That's consented to also Your Honour.
120 HER HONOUR: Retention.
121 MS HARPER: And the compensation order.
122 HER HONOUR: And the compensation.
123 MR GUGGENHEIMER: All consented to Your Honour.
124 HER HONOUR: Thank you. It's a forfeiture order not a disposal order, is that right?
125 MR GUGGENHEIMER: It says forfeiture.
126 MS HARPER: It says forfeiture Your Honour, I believe that's the correct heading for the contents (indistinct).
127 HER HONOUR: Well, the proposed order says at the end of it "that the property referred to in the schedule be forfeited to the minister."
128 MS HARPER: Yes, it's mobile phones and a laptop computer which can be on sold I understand (indistinct) distinction Your Honour, whereas clothing that's often disposed of is destroyed, Those items can be sold at auction.
129 HER HONOUR: All right. Well I propose to make the disposal forfeiture order in the terms submitted for my signature, does anyone want me to read the order into the transcript?
130 MS HARPER: No Your Honour.
131 MR GUGGENHEIMER: No Your Honour.
132 HER HONOUR: I now turn to the 464ZF order. The court orders pursuant to s.464ZF(b)(1) of the Crimes Act 1958 the forensic sample, and any related material and information obtained pursuant to the informed consent given by the respondent on 2 June 2010 be retained for placement on the database by consent.
133 Having considered the seriousness of the circumstances of the offence I am satisfied in all the circumstances the making of the order is justified for the following reasons. The seriousness of the circumstances of the offending warrant the order, the order is by consent, and the granting of the order is in the public interest. It is made by consent I order that Sharlene Ashton pay to Macquarie Leasing Pty Ltd compensation in the sum of $30,081.81.
134 MR GUGGENHEIMER: As Your Honour pleases.
135 MS HARPER: As Your Honour pleases.
136 HER HONOUR: Are there any other matters?
137 MS HARPER: No Your Honour.
138 MR GUGGENHEIMER: I don't believe so Your Honour.
139 HER HONOUR: Thank you for your assistance.
140 MR GUGGENHEIMER: Thank you Your Honour.
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ANNEXURE A
SUMMARY OF PROSECUTION OPENING
The Director of Public Prosecutions alleges that:
Background
1.The Accused and Kent HIBBERD, met through an on line dating agency in early 2008 and soon commenced a sexual relationship. Both were married to other people at the time this relationship began.
2.Kent HIBBERD’s wife, Rose HIBBERD, with whom he lived, was aware of this relationship.
3.The Accused's husband, Barrie FISHER, was unaware of the Accused's relationship with Kent HIBBERD.
4.While the Accused divorced her husband in 2009, Kent HIBBERD had made it clear to the Accused that he would not leave his wife.
5.In January 2009 the Accused and Rose HIBBERD (whom she had not yet met), became acquainted through emails and telephone calls.
6.A friendship of sorts soon developed between the Accused and Rose HIBBERD and they confided in each other about problems in their relationships. Rose trusted the Accused to keep these matters confidential.
7.In April 2009 Rose HIBBERD asked Kent HIBBERD to terminate his sexual relationship with the Accused, although she was content for the Accused and Kent HIBBERD to continue as friends.
8.Also in April, Kent told the Accused about his commitment to his wife and she was unhappy.
9.However, Kent HIBBERD continued the sexual relationship with the Accused without his wife's knowledge.
Charge 1
10.Commencing on 23 April 2009, under the guise of a pseudonym, SHANE FRAWLEY and using the address [email protected], the Accused stalked Rose HIBBERD via emails. [Emails 428]
11.Initially the Accused revealed that Kent HIBBERD was still in a sexual relationship. When Rose HIBBERD replied the Accused then suggested that Kent HIBBERD had participated in affairs at an earlier time.
12.The emails continued intermittently untill14 july 2009. They had become increasingly nasty and taunting of Rose HIBBERD.
13.After 14 July 2009, Rose HIBBERD blocked that email address. The Accused adopted another pseudonym of “Eight inches” and using a new email address, [email protected], sent a further taunting email on 28 July 2009.
14.As Rose HIBBERD had believed she could trust the Accused, she forwarded these emails to the Accused seeking advice. At no stage did the Accused reveal that it was she who was sending the emails.
15.The Accused also made a number of hang-up calls to Rose HIBBERD during that period: 27/7/09 at 5.16am, 28/7/09 At 4.09am, 29/7/07 At 1.33am. She also made a hang up call to Kent HIBBERD on 29/7/09 at 1.34am. [517]
Charge 2
16.On 31/7/09 The Accused was arrested as a suspect for the house fire at Kent HIBBERD’S unit, 15A Derby St, Pascoe Vale. She was released the same night. On 3 August 2009 an Interim Intervention Oder was granted prohibiting the Accused from contacting Kent or Rose HIBBERD. Later that same day the Accused purchased a new mobile phone.
17.On 4th and 5th August 2009 the Accused set up the new phone and a new email account, [email protected], in the name of Rose HIBBERD.
18.Between 5th and 14th August 2009 the Accused sent five emails to Kent HIBBERD purporting to be Rose HIBBERD. Most of these emails were taunting Kent HIBBERD about the recent fire. [408-416]
19.On 7 August 2009 at 5.02am the Accused sent Kent HIBBERD a threatening text, “Roses are red, violets are blue. I would keep a look over your shoulder if I were you.”
20.On 9 August 2009 at 3.24pm the Accused sent Kent HIBBERD another threatening text, “Stop! Look! Listen! Be very careful.”
21.On 18 August 2009 at approximately 3am the Accused rang Kent HIBBERD’S mobile. He did not answer the call. On the 19th August 2009 the Accused was arrested. She was again released. [418-425]
Charge 3
22.The Accused owned vehicle WPR710, a 2008 Toyota Camry, which was leased by her from Macquarie Leasing Co (MLC). The lease amount outstanding as at 9 September 2009 was $30,081.81. [324] The vehicle was insured by Novated Lease Co (NLC also known as VIU Pty Ltd) under policy 0027394. [330 Swaysland]
23.In early September 2010, the accused made enquiries about the money owed under her car lease. [324]
24.At 8.35pm on 21 September 2010, the Accused reported to the Chelsea Police station that her Toyota WPR710 was stolen. [465] The Accused hid the vehicle at 2 Bath Walk, Narre Warren South.
25.On 22 September 2010 the Accused requested lease termination forms and insurance company details for WPR710.
26.On 24 September 2010 the Accused notified Claims Services Australia (CSA) that WPR710 had been stolen and lodged a claim for insurance. [325]
27.On 30 September 2010 the accused advised CSA that NLC have sent a latter of demand and that she cannot pay due to unemployment.
28.Following investigations into the credibility of the insurance claim, on 12 November 2010 CSA informed the Accused that her insurance claim was refused. [328]
29.On 30 November 2009 the Accused's mother arranged for the leased vehicle to be left in the driveway of another premises so that it could be collected by the Accused. These premises belong to the Accused's uncle who had agreed to have the vehicle stored there, unaware of the dishonest reason for doing so.
Charge 4
30.In the early hours of 1 December 2009 the Accused retrieved the leased vehicle and at the intersection of Pound Road and Amberley Park Drive in Narre Warren South, she set fire to WPR710. The fire extensively damaged the vehicle.
31.Later that day the Accused contacted CSA and advised them of the car fire. [329]
32.The Accused had not paid any of the $30,081.81 owing to Macquarie Leasing Co.
33.The Accused was interviewed on 9 December 2009 and maintained that the Toyota had been stolen.
Trial Prosecutor
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