Director of Public Prosecutions v Austin

[2022] VCC 1571

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-00632

DIRECTOR OF PUBLIC PROSECUTIONS

v

FIONA LEE AUSTIN

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March, 14 September 2022
DATE OF SENTENCE:	14 September 2022
CASE MAY BE CITED AS:	DPP v AUSTIN
MEDIUM NEUTRAL CITATION:	[2022] VCC 1571

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence after guilty verdict; Stalking; Use of a carriage service to harass; Prolonged offending; Two victims; Victim impact significant; Lack of remorse; Conduct during trial; Specific deterrence; Denunciation; Protection of the community.

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Cheung v The Queen (20010 209 CLR 1; R v Issacs (1997) 41 NSWLR 374

Sentence:                  Total effective sentence of 18 months’ imprisonment, 12-month non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R. Barry	Office of Public Prosecutions
For the Accused	Self-represented

HIS HONOUR:

1To protect the identity of the complainants in this matter I will refer to them by initials.

2Fiona Lee Austin, on 7 February 2022 you were arraigned on Indictment No. G13348766, comprising four charges of stalking and four alternative charges of using a carriage service to harass a person. You pleaded not guilty to each charge.

3After a 16-day trial during which you chose to represent yourself, the jury returned the following unanimous verdicts:

(a)   Charge 1 – that between 19 October 2014–8 December 2014 you stalked OD – not guilty;

(b)   Charge 2 – that between 19 October 2014–8 December 2014 you used a carriage service to transmit series of communications to OD in such a way that reasonable persons would regard as being, in all the circumstances, harassing – guilty

(c)   Charge 3 – that between 8 January 2015–28 April 2015 you stalked OD – guilty;

(d)   Charge 5 - that between 20 January 2015–26 December 2015 you stalked CC – guilty;

(e)   Charge 7 – that between 1 February 2016–17 October 2016 you stalked OD – guilty.

4No verdicts were required with respect to the alternative charges forming the balance of the indictment, being Charges 4, 6 and 8.

5It is my task now to sentence you for that offending.

6The maximum penalty for the offence of using a carriage service to harass is three years’ imprisonment.

7The maximum penalty for the offence of stalking is 10 years’ imprisonment.

Background

8In 2014 OD was 17 years of age, turning 18 in March of that year. He was studying Year 11 at Melbourne Senior Secondary College which was located in the CBD. You were one of his teachers at that school. You taught him economics and accounting. You were 45 years of age at the time.

9OD gave evidence at trial over a period of five days. He explained that he thought you were a good teacher but that during his Year 11 your attitude towards him changed. He said that in one class there was a discussion of the film the Wolf of Wall Street. You had not seen the film and OD lent his computer hard drive to you so that you could watch it. Also on the hard drive was a journal which described his feelings and personal thoughts.

10According to OD, you told him that one night you were unable to sleep and wondered what else was on the hard drive. You told him that you read through the journal and said, “You don’t hate me do you?” He said you also told him that he was one of the best writers that you had ever read.

11After that episode, OD explained that you appeared to focus more on him than other students and that over time the attention you paid to him escalated.

12In your sworn evidence before the jury, you denied reading OD’s private journal. You said there was no truth at all in the events he described concerning the hard drive and the journal.

13For the purposes of imposing sentence,[1] I am well satisfied that the jury accepted OD’s account about you reading his private journal and that this event marked the point at which your attitude towards OD started to became more personal, if not emotional.

[1] See Cheung v The Queen (2001) 209 CLR 1 at 13 [14] per Gleeson CJ, Gummow and Hayne JJ, affirming R v Issacs (1997) 41 NSWLR 374.

14Sadly, OD’s father had taken his own life a couple of years before these events and OD himself periodically suffered from depressive bouts. You were aware of this and as OD explained in his evidence, you told him that if he ever needed a place to get away from everyone he could take the key to your apartment and go there and have some time to himself.

15OD said he felt that comments of this kind went beyond the ordinary teacher-student relationship. You also started keeping OD back after class where you would discuss with him his academic performance, however these discussions developed what he described as “a you-and-me theme”, which made him feel uncomfortable. Indeed, one teacher, Jianfeng Wang, gave evidence of having witnessed such a discussion some time after class, where he saw you standing, as he put it, “too close” to OD as you spoke to him.

16OD explained that your behaviour towards him became more and more intense which caused him to try and withdraw more and more.[2]

[2] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 8 February 2022),118.

17Throughout this time you also became critical of certain friendships OD maintained, particularly with a female student, LM.

18On the final day of term three, according to OD, you berated him in front of other students for not trying hard enough in an exam. He described you as being “incredibly angry”.[3] When OD tried to walk away, you followed him and grabbed him, saying that you just wanted to talk to him. OD said this was a persistent theme of your dealings with him in that you would want to “just talk”.

[3] Ibid 119.

19In your evidence before the jury, you gave a different version of events in which you claimed that you were disciplining OD and told him to go home.

20In my view, the jury must have accepted OD’s evidence about this incident and indeed more generally about your efforts to engage with OD as he described.

21During the term holidays, you phoned OD and spoke to him over 2 calls for a total of 3 hours and 50 minutes. During the calls OD said you claimed you wanted to “make things right”[4] because a lot of people had seen you arguing, and that needed to be resolved before you returned from holidays.

[4] Ibid 120.

22In your evidence, you accepted that those calls were made, indeed the phone records referred to in evidence confirmed the fact they had taken place on 6 October 2014. You explained the length of the call by claiming you had simply left the phone line open whilst he worked on his assignment and asked questions from time to time. Again, I am satisfied the jury must have accepted OD’s version of these events.

23On 10 October, as a result of this unwanted attention OD decided to write a letter to the school setting out his concerns as to your behaviour towards him. In part, that letter stated:

”The way in which Ms Austin relates to me is causing me stress and I feel very uneasy about attending school. My future is not her responsibility though she relates to it as if it is. Likewise what she feels from certain conclusions she draws relating to me are not my responsibility to have to experience or amend.”

24He referred to you

“…incessantly taking up my time outside of class to speak to me about how we can repair ‘what we were’, only furthers my inclination to stay away from her.

I do not want to continue to have one-on-one conversations with her not relating to schoolwork in which I feel trapped and that when I ask to leave she prevents me from going by blocking the door or grabbing me.”

25He asked the school to stop you from

“…being so personal and emotional in regards to me because I think most of what affects me stems from this tendency”.

26Importantly, OD indicated that he did not want his concerns to disadvantage you. He stated:

“I do not want my problem with her to cause anything harmful to her place in the school or among the other students, as I know she is a very valuable asset to the Year 12’s and school, particularly during this time.”

27On 13 October 2014, you were spoken to by Jianfeng Wang and the Head Teacher at the College, Frank Fay. You were given a letter of reprimand and it was made clear to you that you were not to associate with OD outside allocated class times.

28On the letter of reprimand you wrote “I do not agree with OD’s interpretation of events. There was one incident involving my disciplining him in a follow-up meeting at which I offered to have Frank Fay present. OD said he did not want this”.

29The following morning, Frank Fay received information to the effect that you were not complying with the conditions of the warning you had been given not to contact OD. The decision was then made to summarily dismiss you from your employment and you were formally advised of that decision on 15 October 2014 and required to leave that day.

30Clearly enough, this incident had a traumatic effect on you and appears to have led to the behaviour which marked your offending.

Charges 1 and 2

31On 4 November 2014 you phoned OD’s mother, CC, in Western Australia on her work number. You had never met or spoken with CC before. You told her that Frank Fay had said that she had insisted that you be dismissed and you proceeded to blame her for your dismissal. In fact, CC had not spoken to the school at all.

32CC told you there was no need to be concerned about OD any longer and to take your concerns up with the school. She believed that she had told you not to contact either her or OD again and hung up.

33You rang her again that day saying that this has to resolved. CC did not engage with you further but instead wrote a letter to the school outlining your contact with her. In that letter she stated: “Fiona appears to have an over-inflated view of her importance in [OD’s] life and no reasonable sense of the appropriate boundaries in the teacher-student relationship”.

34In your evidence before the jury you stated that you had been told that CC had demanded that you be sacked. It was put to you in cross-examination that on 4 November, CC told you not to contact her. You responded as follows:

“Yes, and that just goes back to the isolation and, um, and keeping me silenced. The – this was a serious issue. It's not something you can just say, 'Oh no, I don't want to be involved in that messy stuff.' This was my entire life, my – my future, my past, my reputation, my lifestyle, absolutely everything was – was tied up in this dispute. It's not something that you can just say, 'Oh yeah, I started it, I don't care about the results.' So she was a prime – a key player in these events and I had no one else. I couldn't go to the school. School's closed. They were very – made it very clear that they weren't going to do anything to resolve this, so the other two key players, OD and CC, there was no one else. Just them. That was all I had.”[5]

[5] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 24 February 2022),1314–1315.

35On 12 and 13 November you emailed OD demanding that he call you, telling him that “this isn’t something that goes away” and “I know a lot about you, [OD]. You aren’t leaving me with any choice. We need to talk today”.[6]

[6] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 8 February 2022),135–136.

36On 19 November 2014 you approached OD, who was sitting on the steps of the GPO which was close to the school premises. You told him that “we need to talk”. When OD walked away towards the school you followed him, grabbing at his bag to stop him from walking. You followed him into the school and into the lift, continuing to say, “We just need to talk”.

37OD explained in his evidence that he then managed to get back onto Bourke St but that you had taken possession of his bag and refused to return it. Eventually, OD sought the assistance of two police officers in a nearby McDonald’s. The police spoke to you, the bag was returned and you were required to wait while OD left.

38You claimed in your evidence that you were on the way to Victoria Market to buy food and happened to see OD on the GPO steps and went to say hello. You agreed that OD complained to police about you following him but denied taking his bag. You further claimed, “I was actually being set up [by OD] because at that time of day, no student should have been in the Mall”.[7]

[7] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 24 February 2022),1330.

39It was alleged with respect to Charge 1, stalking, that in the period 19 October 2014 to 8 December 2014 you sent a total of 499 communications to OD, mainly comprising telephone calls and some text messages. You were acquitted of that charge but found guilty of the alternative charge that during the same period you used a carriage service in such a way that reasonable persons would regard as being, in all the circumstances harassing (Charge 2).

40It should be noted that the jury were directed with respect to each of the four charges of stalking that even if they were satisfied that you had stalked the complainants, it was open to you to prove on the balance of probabilities that you acted without malice for the purpose of your employment/industrial dispute with the school.[8]

[8] See Crimes Act 1958 (Vic) s 21A(4A)(b).

41In my view, the jury must have accepted that defence in respect of the first allegation of stalking, they were nevertheless satisfied beyond reasonable doubt that the communications you sent during this period were such that reasonable persons would regard them as harassing.

Charge 3

42Charge 3 alleged that you stalked OD during the period 8 January 2015 to 28 April 2015.

43It is, I think, important to make the point that OD did not see you after 19 November 2014, nor did he communicate with you in any way throughout the whole time frame of the indictment, i.e. 19 October 2014–14 November 2016.

44In Term 1 of 2015, a friend of OD drew his attention to a document titled “[OD] a warning” which had been posted to the internet and could be readily accessed by placing OD’s name in a search engine. The document comprised a diatribe that labelled OD “a compulsive liar”. The following extracts provides some flavour:

“Most of his lies are ‘white’ lies that he uses to avoid conversations and situations and to gain the attention he craves so desperately. Some, however, are so vicious and nasty, they lead to lives being destroyed.

[OD]’s approach to problem solving is to avoid it and to place all blame on someone else. He spreads vicious, nasty lies about people, shuts them out and does his best to make sure they wish he had just killed them at the beginning. He then runs off to his next location where he hides from all the consequences of his abuse …

I have experienced [OD]’s benevolence and I have experienced his malevolence. His Jekyll and Hyde treatment of others causes him great torment, especially when it results in enormous pain and suffering being inflicted on and the total destruction of someone he cares about.

[OD] does not have the ability to resolve these conflicts in behaviour nor to stop the life ending behaviour once he starts it. His response is to run and hide. To shut out all his sick, sadistic behaviour and the people who have suffered from it. He reverts to the role he feels happiest and most comfortable with, the victim, and creates the lies needed to validate it.”[9]

[9] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 8 February 2022), 141–143.

45OD explained that part of his distress was caused by the knowledge that if anyone, such as a prospective employer, googled his name, this post would be the first thing to come up. He said it was not easy to explain to everyone why this had been published on the internet.[10]

[10] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 9 February 2022), 170.

46You also published videos on the internet. A screenshot from one of the videos reads in part as follows:

“CC is one of the key players in the destruction of both O’s life and mine. O had a great future, he was a good, positive contributor to society and the lives of people he came into contact with. All that is gone now. O has been led down a path that has turned him into the worst of humankind. A sick, sadistic, inhumane monster. Incapable of empathy or any kind of understanding of, or concern about, the damage he is doing to the lives of those he comes into contact with….His (O’s) behaviour has put him into a class of people, whose behaviour is so bad and so unforgivable, their entitlement, their right to happiness and success no longer exists.”[11]

[11] Ibid 173–174.

47In March 2015 you sent a birthday card to OD’s home in which you said you hoped he would find “a way back to the truly wonderful person that you are”.

48The prosecution alleged that you had made or sent something in the order of 2,671 phone and text messages to OD during the time frame of Charge 3. The jury found you guilty of this charge.

Charge 5

49Charge 5 alleged that you stalked CC between 20 January 2015 and 26 December 2015.

50On 21 January 2015 at 1.51pm, CC sent an email to you, stating:

“Ms Austin, please never contact me or O again. You must speak to the school about your concerns. C”[12]

[12] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 15 February 2022), 670.

51On the same day one hour and two minutes later you responded with an email to CC in which you stated:

“C, you have participated in the truly vicious and cruel treatment of another human being. OD has destroyed another person’s life. I am the victim of that mistreatment. It is not something you can demand I forget or “get over”. OD’s actions have connected us permanently. His treatment of me will torment him for the rest of his life – his conscience will not let him forget it. … after everything I explained to you that you, that you could suggest I “speak with the school” says you are not prepared to accept you or OD have behaved badly … You need to accept it and make amends for your involvement in the destruction of another person’s life.”[13]

[13] Ibid 670–671.

52CC again informed you in an email sent at 3.05pm that day “not to contact [OD] or I again”.[14]

[14] Ibid 672.

53You continued to contact CC saying similar things. For example, on 10 May 2015 you wrote:

“You have ensured I am part of [OD]’s life forever. As you should know, you cannot abuse and destroy another person’s life without there being serious consequences.”

54On 28 April 2015 you attempted to contact CC’s mobile phone. You left four voicemail messages during which you stated that both of you need to remember that

“…I am the victim in this, not OD. He is the perpetrator you are portraying me as the one who is at fault here. That’s not okay. That is not okay.” [15]

[15] Ibid 679; Exhibit N.

55After those messages, CC contacted Telstra, who in turn sent you a letter asking you to stop making unwelcome communications. You refused.

56Between 13–24 of May you sent a series of text messages to CC. Like much of the material you transmitted, the content was disturbing, for example, one message stated:

“another day closer to the end. Another day closer to [OD] finding out what you have been doing to me.”[16]

[16] Ibid 691.

57Another stated:

“Stupid nasty games – I have come to expect that kind of behaviour from you... [you] are deluding yourself if you think otherwise.”[17]

[17] Ibid.

58Another stated in part:

“…resolution, justice, revenge. You choose.” [18]

[18] Ibid.

59One message was sent in the middle of the night. Chillingly, it stated:

“Check on [OD].”[19]

[19] Ibid 692.

60In her evidence CC described receiving these messages as terrifying. She took them as veiled threats and the experience of getting a text message in the middle of the night telling her to check on her son when he was on the other side of the country was, she said, horrifying.

61You continued to send emails to CC with similar content.

62On 3 November 2015 you posted a YouTube video titled “[CC]” in an account name of CC.[20] CC did not have such an account. The video ran for over 12 minutes and consisted of a PowerPoint presentation that contained assertions such as the following:

“CC is a seriously sick and depraved person. So determined to see me isolated and silenced forever…”

“Social work is really, really not a suitable career choice for her. It brings her into contact with too many vulnerable people - too many potential victims.”

“CC is a dangerous person, she has turned OD into a dangerous person. Neither of them are safe to be around. Neither of them have so much as even the tiniest bit of humanity in them.”

“A normal sane person would have sought to make this situation right', to mend the lives destroyed by a vicious, nasty, hate campaign/to apologise and show remorse when they found out the truth about that school. Not CC. She is a truly sick, depraved, dangerous sadist.”

[20] Ibid 706–707; Exhibit R.

63On the same day you posted a blog on the Internet with nearly identical content.

64On 25 December 2015 you sent a Christmas card to OD at his mother’s address. It was titled “To a Wonderful Teacher”. Amongst other things, you wrote of OD:

“You have left me with less than nothing. Stop being such a self-centred depraved monster. Stop being a weak spineless coward. Your abuse of me has left deep, weeping scars on our souls…”

65Clearly, the receipt of this material, although addressed to CC’s son, was just as distressing to his mother.

66What I have recounted represents only a portion of the content of the communications you sent to CC. In the period 31 March 2015 to 26 December 2015, you called, emailed or sent SMS messages to CC on approximately 958 occasions.

67The jury found you guilty of Charge 5.

Charge 7

68Charge 7 alleged that you had stalked OD between 1 February 2016 and 14 November 2016. During that period you called, emailed and sent text messages to OD or made Facebook posts in relation to him, a total of approximately 1148 times.

69On or around 1 February 2016 you posted on YouTube a PowerPoint presentation titled “[OD] perpetrator” (Exhibit F).[21] The video runs for about four and half minutes and starts with the words:

“[OD] has been behaving in a sick and depraved manner for over a year now – behaviour encouraged by CC.”

[21] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 9 February 2022), 180.

70It goes on to allege in various ways that OD is a dangerous person who must

“…face the consequences of his actions”.

71In that same month you posted another Power Point presentation on YouTube titled “[OD] Help” which runs for approximately 40 minutes (Exhibit G).[22] The themes in the power point slides oscillate from blaming OD for causing the destruction of your life as you put it, to wanting to see him and be with him.

[22] Ibid 184.

72You placed similar material in other forms on the internet in that month also.

73On 21 March 2016 you sent another birthday card to OD in which you said amongst other things:

“Another birthday. I hope you feel the same, extreme isolation, pain, loss, and misery, as you made me feel on my birthday. I want good outcomes to this, for both of us. That can’t happen while you are not here.”

74The text goes on at some length and concludes:

“Remember [O]. Look me in the eyes and see what you were doing to me. I wish you were here. I wish for all the good that will come from you being here. Come here and make this right. give us back the good, happy, successful lives we once had . Please.”[23]

[23] Ibid 189.

75The prosecution also tendered 147 pages of emails you sent to OD that span the period February to May 2016 (Exhibits A1.1 and A3).

76Reliance was also placed on an archive of Facebook messages comprising 114 pages in an account you set up in a false name (Exhibit J). It contains similar content, for example:

“…I have only ever wanted a good outcome to this. You won’t let that happen. You are the reason we are in this situation. You are a monster. You let those people take control of your mind and turn you into a sadistic psychopath… LOOK AT WHAT YOU HAVE DONE TO ME – all because you are too much of a weak, spineless coward to face me. Talk to me [OD]. Make this right. Please. I need you to understand the magnitude of the consequences of your abuse of me. I need you to be here. I need your help. Please…”[24]

[24] Ibid 209.

77You wrote a further series of Facebook messages, contained in an archive of 13 pages, under the false account name “Fionamissmylife” (Exhibit K).

78Those messages covered the period May through to November 2016 and together with the emails consisted of extensive writings directed at OD of a disturbing nature. Some of the emails reference suicide, which was particularly distressing for OD. Two examples suffice. On 8 April 2016 you wrote the following email:

“A weird day. I feel like a weight has been lifted from me. One more week to go. No more pain. Peace. Won’t have to worry about unpaid rent and bills. I won’t feel the pain you are inflicting on me. I do wish you were here. I would love to see your eyes light up when you see me. I would love to see you smile at me again. I would love to feel your presence again. I wish you were here. I wish you could remember. I wish our lives didn’t have to end this way.”

79On 17 October 2016 you wrote the following Facebook message:

“You are a compulsive liar your words are worthless. You need to be SEEN to be doing the right thing-you need to be SEEN to have made things right with me-you need to be SEEN by EVERYONE who has heard your vicious, nasty lies – they need to SEE you making things right – they need to SEE you making our lives good again.”

80On 26 August 2016 OD applied to the Magistrates’ Court for a Personal Safety Intervention Order, which was granted. The order prohibited you from stalking OD, contacting him in any way or publishing any material about him on the Internet by email or other electronic means. After that order was served personally, you continued to contact OD via Facebook.

81You were arrested and interviewed in respect of these allegations on 18 October 2016. During that interview you accused the police of being on OD’s side and asserted that he should be arrested and charged.

82During your evidence you accused the informant of being corrupt, perverting the course of justice, destroying evidence and committing perjury. All of those allegations were baseless. It was plain in my view that the informant had conducted the investigation professionally and appropriately.

83The jury convicted you of Charge 7.

Conduct at trial

84There are two points that might be made with respect to the conduct of your trial.

85The first relates to your cross-examination of the complainants.

86Division 3 of Part 8.2 of the Criminal Procedure Act 2009 provides a procedure that enables a court to declare a witness to be a protected witness, the effect of which is to prohibit the accused from personally cross-examining that witness.

87In my view it is, to say the least, unfortunate that that procedure did not apply to the circumstances of this case.

88Currently, that procedure applies to a criminal proceeding that relates wholly or partly to a charge for a sexual offence or for an offence that would constitute family violence. The stalking of the kind found proven in this case is not covered by the legislation. In my view, what happened in this case demonstrates that it should be.

89You adamantly opposed the prosecution application to have both complainants give evidence via video link from a remote location. It became evident that you were quite content to cause as much distress and harm as you could to your victims. That was so in part at least because you irrationally saw them as being responsible for your own misery.

90OD was personally cross-examined by you for 3½ days or about 10 hours and 15 minutes, occupying about 335 pages of transcript.

91CC was personally cross-examined by you for about 1½ days or 4 hours and 40 minutes, occupying about 160 pages of transcript.

92Enduring that cross-examination was obviously difficult for the complainants and risked re-traumatising them.

93One example will suffice to demonstrate that risk. In cross-examination of CC, you put the dedication page of her PhD thesis on the video screen in court. The thesis was completed in 2016. The page displayed referenced the death of her husband, O’s father. Other evidence indicated he had suicided. The question put was, “Do you agree that you have had significant losses in the five years prior to completing this thesis?”[25]

[25] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 16 February 2022), 849.

94Your stated purpose in putting this question was to suggest to the witness that she was not as stressed and upset by receipt of your communications as she had made out. In fact, the reference to the death of her husband was gratuitous, hurtful and immediately distressing to the witness. That incident exemplified the fraught nature of the process.

95Whilst an accused person has every right to test the evidence, that should not be done in such a way that enables the accused to cause further harm. Just as that risk has been reduced for complainants in sexual or family violence offending, it should also be reduced for complainants in stalking offending of this kind.

96The second point to make relates to your utter lack of remorse for causing the harm that you have. Section 5(2C) of the Sentencing Act 1991 stipulates that a Court may have regard to the conduct of an offender on or in connection with the trial as an indication of a lack of remorse.

97In your evidence before the jury you displayed a complete disregard for the impact your actions may have had on the victims. You showed no empathy, you showed no insight. You even claimed that you engaged in this conduct to “trigger some kind of humane response” from the victims.

98You were evidently completely consumed by your own plight. The prosecutor asked you in cross-examination:

Q: You didn’t like it, you didn’t like it I suggest that OD is simply not responding to you in any way did you?

A: I didn’t like it that neither of them were responding to me in any way. I didn’t like it that no one was willing to look at what had occurred as a result of those actions and say actually, this is, this is really bad, we need to fix this. That’s what I was annoyed about.[26]

[26] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 24 February 2022), 1316.

99The victim impact statements detail the profound impact this offending has had on both victims. The offending, the subsequent hearings and the trial have dominated much of their lives over the last eight years or so. It has been, as CC puts, it a “persistent and intrusive presence” in their lives. The emotional damage has been constant and unrelenting. The practical effect such as preventing an online presence when such a presence is expected for employment purposes, has been extremely frustrating. It is abundantly clear that they have suffered enormously from your harassment and stalking behaviour.

100At the plea hearing conducted on 4 March 2022 you described the complainants’ victim impact statements as “creative writing exercises”. You said they were more “fantasies and lies”, that there was not an ounce of truth in any of it and that there was no evidence to support “their claims of misery and suffering”.[27] You said that OD was delusional and that “they have come up with all kinds of fantastic stories about how they were suffering terribly. They have not suffered at all, they have both benefited from this.”[28]

[27] Transcript of proceedings, DPP v Austin (County Court of Victoria, CR-19-00632, Judge O’Connell, 4 March 2022), 8–10.

[28] Ibid 11.

101You are not to be punished for pleading not guilty. You are not to be punished for testing the prosecution case. However, I am firmly of the view that you are not in the least sorry for having caused the harm that you have. That finding does not aggravate the penalty that will be imposed. Nevertheless, your contempt for the victims and the legal process generally, elevates your moral culpability and diminishes, in my view, your prospects for rehabilitation.

Prosecution submissions

102At the plea hearing Mr Barry, who appeared to the Victorian Director of Public Prosecutions, submitted that each of these matters were serious in themselves and escalated over a period of time to incorporate various forms of communication containing spiteful and malicious invective, causing tangible damage.

103This offending involved two victims who were subject to serious examples of the offence of stalking. In respect of OD, he was the victim of multiple counts of stalking which escalated over time such that Charge 7 involved the breach of not only a Personal Safety Intervention Order but also a breach of bail conditions. Those features of the offending, together with the lack of insight displayed by you, highlighted the need for emphasis on specific deterrence.

104Ultimately, the prosecution position was that a term of imprisonment should be imposed and a non-parole period should be fixed. It was noted that you have already served 350 days by way of presentence detention in relation to these offences.

105Today that position changed and a non-parole period was no longer sought, leaving open the option of time served constituting sufficient a sentence.

Personal circumstances

106As I understand it, you were born in February 1969 and are now 53 years of age. You would have been 45–47 years of age during the time he committed these offences.

107Importantly, you have no prior convictions. The evidence at trial suggested that you were in fact very good dedicated teacher. Indeed, OD made that point in his original letter to the school. I infer that you had been teaching for a long time before these incidents and there is nothing to suggest you have had any difficulties of this kind in the past.

108To my observation, there was an element of unfairness in the way you were treated at the time your employment was terminated. Certainly since that time you appear to have suffered a great deal. You lost your job. You could not teach again. According to the evidence you were evicted from your home and you were forced to return to live with your parents in rural Victoria. You held an administrative job for a short time however that was also terminated in the wake of publicity about this case. You have therefore had little or no income. You appear to have experienced a good deal of embarrassment, if not humiliation as a result of being charged with this offending

109I also bear in mind that during the course of the trial you described your experience of jail as being quite traumatic for you.

110It is important to note that you have not reoffended since your release from custody and that does suggest that your prospects of rehabilitation are at least reasonable. However, as I have noted, it is difficult to be confident in that respect having regard to your lack of remorse and insight.

Psychological assessment

111Although the Crown position as at March 2022 was that you should be sentenced to a term of imprisonment with a non-parole period it was suggested that that position could change if a presentence psychological or psychiatric report were sought.

112In light of that submission this matter was adjourned pending the provision of a presentence report pursuant to s 8A of the Sentencing Act 1991.

113For that purpose, an appointment was made for you to be psychiatrically assessed by Forensicare on 9 May 2022 at 10am. You were informed of that appointment. You did not attend.

114A further appointment was made for you to be psychiatrically assessed on 25 July 2022 at 10am.

115On Thursday, 28 July 2022 you sent an email to my associates indicating that you would not be attending an appointment with Forensicare. That email stated in part:

“Forensicare is responsible for the care of prisoners at DPFC. I lived for 350 days with people who experienced the damaging and deadly “care” provided by Forensicare to those people.

Psychiatrists work in a profession that advocates for the allegations made by accusers to be believed without question. I work (worked) in a profession that bans people based on nothing but allegations. The two professions are not compatible in any way … Forensicare have thousands of pages of emails, transcripts and submissions to read through – they wouldn’t be getting anything new from me”.

116Accordingly, although I think it likely that you are afflicted by some kind of psychological or psychiatric condition, in the absence of any evidence I cannot make any sensible assessment as to how your condition might bear on sentence.

Consideration

117I accept the prosecutor’s submissions as to the nature and gravity of your offending. Your harassing and stalking behaviour was protracted and unrelenting. It has caused immense damage to your victims, for which you bear a high degree of moral culpability. True it is that your offending did not involve some of the more aggravating features present in some instances of stalking, but it was nonetheless very damaging.

118I also accept that, despite the fact you have no previous convictions, it is nevertheless appropriate to give some emphasis to specific deterrence. It will be further necessary to denounce what you did and to make it clear to others who might be minded to engage in such conduct that it will be met with stern punishment.

119That said, in formulating sentence I will take into account in your favour your previous good character and what I see as the considerable extra-curial punishment you have suffered since you were charged with the these offences.

120It is no small matter to send a person in your circumstances back into custody. The prosecution position is that is open for you to remain in the community. However, you have indicated that you would not be prepared to undertake a Community Correction Order with supervision and mental health assessment and treatment. I take the view that to achieve the sentencing objectives of general deterrence, specific deterrence, denunciation and protection of the community there is no alternative but to impose a term of imprisonment and fix a non-parole period such that you will be eligible for release in the near future. It will be for the parole board as to whether you will be released when you are eligible, if you choose to apply.

Sentence

121Taking all relevant matters into account you will be sentenced as follows:

122On Charge 2, use a carriage service to harass, you will be convicted and sentenced to pay a fine of $2,500.

123On Charge 3, stalking, you will be convicted and sentenced to a term of imprisonment of 12 months.

124On Charge 5, stalking, you will be convicted and sentenced to a term of imprisonment of 12 months.

125On Charge 7, stalking, you will be convicted and sentenced to a term of imprisonment of 12 months.

126I will further order that 3 months of the sentence imposed on Charge 3 and 3 months of the sentence imposed on Charge 5 be served cumulatively upon the sentence imposed on Charge 7. All other sentences, or part sentences, are to be served concurrently.

127That renders a total effective sentence of 18 months’ imprisonment. I will fix a non-parole period of 12 months.

128I will further declare pursuant to s 18 of the Sentencing Act 1991 that you have served 350 days by way of presentence detention in respect of that sentence, and I will cause that declaration to be noted in the records of the Court.

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