Director of Public Prosecutions v Backer
[2024] VCC 1718
•29 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01804
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY BACKER |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2024 | |
DATE OF SENTENCE: | 29 October 2024 | |
CASE MAY BE CITED AS: | DPP v Backer | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1718 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Koori Court; home invasion.
Legislation Cited: Crimes Act 1958 (Vic) ss 77A, 77A(3); Sentencing Act 1991 (Vic) ss 3(1), 5(2H), 5(2H)(a), 44(1), 5(2AB), 6AAA.
Cases Cited:R v Newman & Turnbull [1997] 1 VR 146; Elsayed v The Queen [2019] VSCA 113; R v Verdins (2007) 16 VR 269; Bugmy v The Queen [2013] HCA 37; R v Su [1997] 1 VR 1.
Sentence: Convicted and sentenced to one year and ten months’ imprisonment; 24 month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mx C. Rattray | Office of Public Prosecutions |
| For the Accused | Mr A. Morse | Victorian Aboriginal Legal Service. |
HER HONOUR:
Charges and maximum penalties
1Ashley Backer, you have pleaded guilty to one charge of home invasion,[1] which carries a maximum penalty of 25 years’ imprisonment.[2]
[1]Crimes Act 1958 (Vic) s 77A.
[2]Ibid s 77A(3).
Factual basis
2On your plea, the prosecutor tendered an opening dated 22 November 2023; it forms the factual basis of this sentence, and I briefly summarise some of its contents here.
3At about 5:00 am on 12 April 2023, you visited Haley Fowler’s[3] bungalow in the rear yard of a house on Browning Street in Kangaroo Flat. You had been in an on-and-off relationship with Ms Fowler for about five years. You went there with an unknown man, who Ms Fowler later identified as ‘Les’. You made noise outside the bungalow.
[3]A pseudonym.
4Ms Jodie Lee Clarke was inside the bungalow with Ms Fowler; she opened the door to find out who was making the noise before attempting to close it again when she saw you. You and ‘Les’ went to the bungalow door, you shoved it open with some force and walked in. As you entered, you held a Makita 18v electric chainsaw. At the time of your entry to the bungalow, the chainsaw you held was on and running. (These events give rise to the charge of Home Invasion)
5I pause here to note that the chainsaw was on only during the brief period of your entry, and was not on during what happened inside the bungalow after your entry.[4]
[4]These facts were the subject of final submissions on 11 October 2024, having been not included in the original prosecution Opening. A different position was put on the day of the sentencing conversation, later amended orally by Mx Rattray, counsel for the Director. I note that at [7] of the supplementary submissions, the prosecution says “The prosecution does not allege that the chainsaw was running – that is, the chain was not engaged and moving – when Mr Backer entered as a trespasser and held the chainsaw up to the victim’s throat.”. This was qualified in oral submissions at the final hearing: the chainsaw was on at entry, but not thereafter.
6Ms Fowler was sitting on her bed inside the bungalow; once inside you walked directly over to her and held the chainsaw (not running by this stage), approximately 20cm from her throat. You said: “today is the day”.
7While you were holding the chainsaw to Ms Fowler’s throat, ‘Les’ looked through the bedside table. Ms Fowler told you that she had nothing; you said, “well I’ll be taking something”. You handed the chainsaw to ‘Les’ to hold and grabbed Ms Fowler’s handbag; you and Ms Fowler had a short wrestle over the handbag until she kicked you and you let go of it.
8You and Les then left the bungalow and, on your way, out you had a short argument with Adele Fowler,[5] who was in the house at the front of the property. You and Les left the property in a yellow Toyota.
[5]A pseudonym.
Arrest and interview
9Ms Fowler made statements to the police on 20 and 23 April 2023.
10On 3 May 2023 you were arrested and interviewed; you told police that the Chainsaw used in the incident was in the rear footwell of the Toyota, and that you ‘vaguely’ remembered going to the victim’s bungalow with a chainsaw, that you had no intention of harming anyone but that you had used the chainsaw to intimidate. You said you went to Ms Fowler’s bungalow because you had been trying to contact her about money she owed you.
11You also told police that you said it was ‘Duck’ (your nickname) before you entered the bungalow, so Ms Fowler knew it was you; that you do not remember who the male with you was, and that you remember Adele Fowler yelling at you when you were leaving.
12You were charged and remanded and granted bail on 4 May 2023. You failed to appear at a committal mention and a warrant was issued. This was executed on 28 September 2023, and you were remanded into custody; your case resolved to a plea at the next committal mention by 18 October 2023. You have stayed in custody ever since.
Personal circumstances
13You are now 39 years old; at the time of the offending, you were 38.
14You were born in Logan in Queensland. Your mother, Josephine Hines, is an Aboriginal woman, your father is not Aboriginal. You are an accepted member of the Wangkumara[6] people whose country lies in what is also known as Western Queensland.
[6]Reference to Barkindji was incorrect – this was clarified with Mr Backer’s mother during the sentencing conversation.
15Your mother Josephine was born in Bourke in New South Wales. In 1960, as a newborn baby, she was stolen from her Aboriginal mother at Bourke District hospital.
16Josephine’s life has been shaped by this fact, and the trauma and rupture of family and culture that flowed, and this has been passed on to you.
17Your mother’s adoptive parents (the Backers) were emigrees from the Netherlands in the context of WWII. Perhaps they were well intentioned in their desire to care for your mother and the other Aboriginal children they adopted, but the fundamental damage of her removal was done. A newspaper article about your mother’s family at the time contains the following quote from your mother’s adoptive mother:
“I love them. If I have the opportunity, I will adopt another. The more the better. They are not aboriginal children – they are MY children’. [7]
[7]Aboriginal Community Justice Report authored by Djallarna Hamilton [2].
18Josephine spent time in the Netherlands and Queensland with her adopted parents. She was marginalised, struggled to form her own identity and was starved of her connection to country and to her Aboriginal family. She left home at the age of 20; she struggled with alcoholism and depression.
19Your mother went on to have five children with five fathers; you are the second eldest. Your eldest brother Julian, and your younger brother Benjamin were fostered by your mother’s adoptive parents, against her wishes. Your youngest brother, Bryce, lived with his father from the time he was born. You were the only son who remained with your mother, and from an early age you shouldered the responsibility of looking after her. You maintain that sense of responsibility for her to this day.
20When you were three years old, your mother formed a relationship with Kenneth Butler, an Aboriginal man from Bunjalung country, south of Brisbane. You developed a strong relationship with Kenneth and called him ‘Dad.’ You have described your relationship as ‘loving yet dysfunctional’; you note that the use of alcohol and cannabis as a coping mechanism was normalised, and that you were subjected to mental and physical abuse as a child as a result. You began smoking cannabis at the age of 13, and using methamphetamines in your late teenage years.
21You attended Beenleigh State School, however you struggled to stay engaged. You were teased by your peers; you got in trouble for fighting. In Year 10, you decided to do an apprenticeship in Building and Construction. It was around this time, at the age of 15, that you started a relationship with Shellee McCarthy.
22You left your apprenticeship at the age of 16 when Shellee was expecting your first child, Gypsy (now aged 22). You got employment as a truss builder and then worked for Shellee’s father to support your family; you and Shellee had two more children together, Jessie (now aged 20) and an 11-year-old daughter. You describe your relationship with Shellee as being ‘very on and off.’
23During a period of separation from Shellee in 2011 you went to Victoria to visit your mother and step-father. You fathered a son, now 15, with Samantha. You returned to Queensland and have not had contact with your son since he was very young.
24In 2015, your relationship with Shellee ended; you had to move out of your family home, and you were dismissed from her father’s business. You effectively lost, at this time, the whole architecture of your life. This was an extremely difficult time for you; you were hospitalised for psychiatric treatment in Queensland, and on release, came to Victoria to live with your mother. You did not receive any follow up treatment.
25There followed a period of further significant personal loss. Your younger brother, Bryce took his own life. In that context your substance use and offending, escalated. You began, for the first time, to abuse heavy drugs; you also entered a relationship with Haley Fowler. You committed more serious crimes, resulting in your first period of imprisonment. This was in the 12 months after Bryce’s passing.
26It was during your first period of incarceration that your stepfather, Kenneth, was killed in a car accident at the fault of another driver. Your mother became homeless after Kenneth’s passing, and your grief was compounded by worry for your mother’s wellbeing, and your inability to care for her.
27I have read the sentencing remarks of His Honour Judge Grant in relation to your offending committed in 2017.
28Upon your release, you resumed caring responsibilities for your mother, and began a relationship with Rebecca Hanson. You continued the abuse of substances, and further offending flowed. I note that you and Rebecca are no longer in a relationship, however your mother continues to reside on Rebecca’s mother’s property in Heathcote.
Nature and gravity
29The offence of home invasion carries a maximum penalty of 25 years' imprisonment[8] – and this indicates how seriously this offence is to be regarded.
[8]Crimes Act (n 1) s 77A(3).
30The charge is put on the basis that your intent at the time of your entry was to assault.
31You entered at 5 am, by kicking the door in, while carrying a chainsaw, which was running at that point.
32Your intention on entry, as stated by you, was to scare your victim and find a way to satisfy a drug debt. Your victim was your former partner - and it was her space you intruded on so malevolently, however I also accept your offending’s primary purpose was directed at satisfying a drug related debt – rather than a family violence offence of the kind where the punishment and control of a female partner was central. Nevertheless, your actions do earn the title of ‘family violence’ just on the basis of your former partner being the victim, in her home.
33During the plea, I raised with the parties the issue of what meaning the events after your completion of the home invasion should have in the assessment of the gravity of your offending. You have not been convicted of any further offence committed after the completion of the home invasion, and, therefore cannot be punished for any crimes with which you have not been charged.[9] However, it was properly conceded by your counsel that your acts after entry (threatening your victim with a chainsaw, albeit one that was not running, wrestling over her handbag) were connected with the offending on Charge 1 in that those events provided a further factual basis to establish your intent upon entry. Once the facts of these events were clarified, it became clear that the events inside after entry fall into the band of offending that was of a lesser seriousness than the home invasion offence and can therefore form part of my assessment of your offending’s gravity.[10] Again, I am conscious of the need not to punish you for conduct that is uncharged.
[9]R v Newman & Turnbull [1997] 1 VR 146.
[10]Elsayed v The Queen [2019] VSCA 113 [56]-[62].
34Your offending conduct from entry to departure appears to have been mercifully brief but this was an alarming, terrifying thing to do, in the early hours of the morning to a woman who was entitled to feel safe in her home. However desperate you had become for drugs and money, this was a completely unacceptable way to resolve your problems. This is a serious example of the offence of home invasion, the use of a chainsaw on entry is particularly menacing and frightening.
Criminal history
35You have now accrued a serious criminal history, the relevant parts unfolding in Victoria after 2016. It shows multiple breaches of Community Corrections orders, one of which contained a condition to undergo rehabilitation treatment at Wulgunggo Ngalu (but you never made it there). You have a history of offending on the roads or in relation to cars, including a 45-month sentence imposed in this Court for aggravated carjacking. You now have a seven-year history of what appears to be impulsive offending in the context of serious drug use, in which you demonstrate a disregard for the safety of others.
Victim impact
36I am obliged to take into account the effect of what you did on your victim. You offended against a female victim, your former partner, in her home where she ought to have been safe and in privacy. No victim impact statement was provided to me, but I infer, safely I think, that your victim experienced what you did as very frightening, and deeply disturbing of her sense of self and security. No doubt her friend was also frightened.
Mitigation
Plea of guilty
37Turning now to matters in mitigation of your sentence. Your plea of guilty was made early. This is a very significant matter in mitigation of your sentence. Your plea has prevented your victim having to be involved in the Court process, and that has particularly valuable force in the reduction of your sentence. It has spared the community the cost and inconvenience of a trial and these matters weigh strongly in your favour in this sentence.
Participation in ‘sentencing conversation’ in County Koori Court
38You elected to have your case heard in the County Koori Court jurisdiction. You sat at the sentencing table and listened to Aunty Peta Hudson as she held you to account for what you did, and I observed that sentencing conversation.
39The conversation was both personal and confronting. Your mother Aunty Josephine sat beside you, in a process which was described as ‘a shameful’ one. Aunty Josephine’s participation is acknowledged here; her presence brought a part of living history to the Court, and her story gave your difficulties in life depth and context.
40Your participation, Mr Backer, was open and sincere. You expressed optimism for your future, a desire to impress your children with your recovery, and the worry that you have for Josephine’s well-being while you are incarcerated. I take into account your participation in the County Koori Court process in arriving at your sentence.
Psychological and neuropsychological evidence
41On your plea, reliance was placed on a report of a psychologist, Ms Carla Lechner, and upon a neuropsychological report authored by Ms Laura Scott.
42These reports outline your diagnostic and treatment history. You were hospitalised for psychiatric treatment in Queensland after your relationship with your former partner broke down in approximately 2016. Just before your admission for treatment, you poured petrol over yourself and stood in front of a fire drum. You were treated in Logan hospital and discharged into your brother’s care and then left to live in Victoria – there appears to have been little or no follow up treatment after that episode.
43Your history includes a diagnosis of Persistent Depressive Disorder and Generalised Anxiety Disorder in 2018. Ms Lechner concluded that you showed ‘symptoms of’ Stimulant, Alcohol & Opioid Use Disorder as well as complex PTSD and ADHD.
44Ms Scott’s opinion, arrived at after extensive neurological testing, diverges from Ms Lechner’s in some significant respects. She finds you have levels of clinically elevated psychological distress,[11] but that the evidence does not support a diagnosis of ADHD,[12] nor is there evidence of an acquired brain injury.[13] Ms Scott’s conclusion is that you present with ‘cognitive and behavioural impairments due to the cumulative effects of developmental trauma, Post-Traumatic Stress Disorder and long-standing substance use issues’.[14]
[11]Neuropsychological Report authored by Laura Scott (29 July 2024) 12.
[12]Ibid 13.
[13]Ibid.
[14]Ibid.
45Ms Scott also concluded:
Mr Backer’s cognitive and behavioural impairments [are] due to the cumulative effects of developmental trauma, PTSD and long-standing substance use issues and cause him to have reduced ability to regulate himself. This undermines his ability to make sound decisions, particularly when under pressure. He is highly impulsive and would likely act without thinking through the consequences.[15]
[15]Ibid 14.
46She also said:
All of Mr Backer’s cognitive and behavioural impairments would have been exacerbated by the effects of acute intoxication at the time of the offending.[16]
[16]Ibid.
47On the plea, the prosecution challenged the applicability of Verdins[17] limbs 1-4, arguing that there was no sufficient causal link between your condition and your offending.
[17]R v Verdins (2007) 16 VR 269 (‘Verdins’).
48While I accept that there is relevant opinion, particularly that of Ms Scott, that provides context for your vulnerability to substance abuse, and your vulnerability to impulsive behaviour while experiencing distress, I do not find the underlying mental illness described in the reports gathers the force required to engage the formal mitigation that attaches to the principles in Verdins.
49That said, those features of your history and current diagnosis do not fall away from my consideration. They are perhaps better understood, and applied in mitigation, from a cultural perspective, the best source of information about that is the Aboriginal Community Justice report compiled by Ms Hamilton, and it is to that report that I now turn.
Bugmy
50In the case of Bugmy v The Queen,[18] the High Court said that sentencing an Aboriginal offender does not authorise the taking into account of the offender’s aboriginality per se, but rather should focus on the particular deprivations, (which may or may not be derived from specific cultural circumstances), of the individual.[19]
[18][2013] HCA 37.
[19]Ibid [37].
51In this case, I was particularly grateful to receive an ‘Aboriginal Community Justice Report’ authored by Ms Djallarna Hamilton, a Wamba Wamba/Dja Dja Wurrung woman; it was created as part of a pilot program whereby reports, modelled on the Canadian Gladue reports are commissioned and included in the sentencing process.
52I note that the report was the result of 13 conferences with Mr Backer, including an in-person conference, and was also informed by a number of consultations with Mr Backer’s family members.
53The report provides a rich and culturally informed perspective on your history. The report’s contents take the contents of the psychological opinion into account,[20] but, crucially, place those perspectives in a historical and cultural context.
[20]Though Ms Hamilton did not have the benefit, it seems, of Ms Laura Scott’s neuropsychological report.
54The report places your history in the setting of the intergenerational trauma derived from your mother Josephine’s trauma as part of the Stolen Generation, and in the related systemic deprivations affecting Aboriginal people.
55Your life has unfolded in the shadow of the disruption of your family’s removal from country and culture, particularly from the theft of your mother from her mother as an infant. You have both received, and borne witness to, your mother’s suffering as the result of that dislocation.
56You were also a witness to your mother’s endurance of violent and criminal offending against her of the most personal and serious kind. You still nurse sorrow and guilt at not being able to prevent this crime from happening while in her presence, even though you were only a small child at the time. You have both managed and suffered from her addictions to alcohol and depression. Ms Hamilton reports:
Extensive documentation indicates that individuals who were forcibly removed as part of the stolen generations have frequently encountered heightened risks of substance abuse and mental health challenges. These experiences have had profound intergenerational implications, significantly impacting their children as well.[21]
[21]Aboriginal Community Justice Report (n 5) [8].
57You, Mr Backer, participated in the process of the creation of the Aboriginal Community Justice Report which in itself was a lengthy and personal experience.
58The report gives me a strong evidentiary basis to accept that intergenerational trauma is relevant to your sentence, and I take it into account in moderating my assessment of your moral culpability for your offending, by applying the ‘general’ principle as articulated in the case of Bugmy v The Queen.[22]
[22](n 16).
59I have a much better informed appreciation of the matters personal to you and I also have evidence of the profound and structural disadvantages you have endured and which inform your responses to the world around you. These matters have left you vulnerable and I give these matters full weight in my sentencing decision.
Burden of imprisonment
60I accept that while in custody you experience an acute fear for your mother’s safety and wellbeing, and intense frustration at being unable to care for her and that this increases the burden of your imprisonment, and I mitigate your sentence accordingly.
Sentencing structures
61In terms of the sentencing structures with which I must grapple, home invasion is a Category 2 Offence pursuant to s 3(1) of the Sentencing Act1991[23] in circumstances where the offender has committed the offence while in the company of one or more other people, as in your case.
[23](Vic) (‘Sentencing Act’).
62This provision requires and obliges me to impose a custodial order (and not a custodial order in combination with a Corrections Order) for that offence unless an exception applies pursuant to s 5(2H) of the Act.[24]
[24]Ibid.
63Originally, Counsel for Mr Backer argued that a ‘substantial and compelling circumstance, exceptional and rare’ made an exemption from the operation of this provision. Ultimately it was unnecessary to analyse that submission in this sentence, as a subsequent event, specifically the revelation of the fact you have assisted authorities in an unrelated proceeding, meant that an exception was clearly established pursuant to s 5(2H)(a).[25] A combination sentence was made technically open to me as a result. The question then remained as to whether such a sentence was, in all the circumstances, warranted.
[25]Ibid.
Assistance to authorities
64At a late stage in your plea, it was brought to my attention that you are a central witness in an unrelated prosecution case. You have made a statement which has been disclosed in the prosecution of a person charged with aggravated carjacking and intentionally causing serious injury. I was provided with the prosecution statement of facts in that case, a copy of your statement which is now on the police brief, and an affidavit from the informant in that case, who described how you came to make the statement and its status in the prosecution.
65You gave an undertaking to give evidence, if called upon, in the prosecution of that person. You gave evidence that you understood the consequences of not giving evidence consistent with that statement.
66It is clear that your statement converts a circumstantial case into one supported by both circumstantial and direct evidence. I will assume that you may be cross-examined in Court on that statement at least once, and maybe more. You are now in protection in prison; you were moved from Fulham to another site after having had threats made against you.
67The informant has described your contribution to that prosecution as ‘integral’ in one context and ‘significant’ in another. I have enough information to make my own assessment of your evidence’s role in the case, and I concur with the views of the informant. Your statement makes it more likely an offender will be brought to justice for serious crimes involving the injury of a member of the community.
68There is a long history of Courts rewarding ‘dishonour among thieves’,[26] as it is sometimes called, as there is a strong community interest in the Courts doing so. I find you gave a full and complete account of what you knew. You may have been partly motivated by self-interest, but this does not erode the importance of your having taken this step. I find that you are likely to suffer some risk of retribution in custody, you have already been moved as a result. There is no evidence of a specific threat before me, but I can safely infer that any person who assists police while in custody will at least fear reprisal.
[26]R v Su [1997] 1 VR 1 77.
69Although you are not a ‘true informer’ in the classical, proactive and ongoing sense, your statement is a valuable piece of the prosecution case.
70Your assistance has two distinct roles to play in your sentence.
71First, it engages, as I have said, s 5(2H)(a) and as a result releases the obligation to only sentence to a ‘straight’ term of imprisonment. A combination sentence is open. That does not mean a sentence involving a ‘combination’ of imprisonment and a CCO is necessarily the right sentence.
72Second, it mitigates your sentence more generally, as Courts should meaningfully reward, and be seen to reward, co-operation with authorities.
73I will not quantify the reduction in your sentence for co-operation. It informs other strands of the instinctive synthesis, in particular the hardship of imprisonment, and remorse. It earns its own independent discount too. It is a very valuable feature in your favour on this sentence.
Current sentencing practices
74In arriving at your sentence, I have had regard to current sentencing practices for this offence. I was provided with some statistics for sentencing between 2017 and 2022, and those statistics are helpful, to a degree, in discerning that practice. No case or statistic is definitive of your case, but I sentence you in that landscape.
Sentencing purposes
75Turning now to the purposes of this sentence; the need for general deterrence is central to this sentence. You have a relevant and serious prior criminal history, and this sentence needs to deter you personally from ever offending again. Imprisonment, and a lot of it, awaits you if you continue to offend in these ways. Your offending is denounced: it is unacceptable that anyone has to endure what you did to your victims, in their home. You must be punished for what you did.
Rehabilitative prospects
76The prosecutor submitted that my assessment of your prospects for rehabilitation should be ‘guarded’ and that is not unreasonable, but I also see that you have had long periods in your life when you have prospered, you have held regular work, you raised a family. Your desire for your mother’s wellbeing can be a source of resolve for you. Much depends on how you approach your substance use issues.
77You have participated in a range of cultural activities in custody. You have taken care of your health and used your time well in education.
78With some caution, I have decided to impose a term of imprisonment that is combined with a Community Corrections Order, though this disposition will not secure your immediate release. Justice requires some further time to serve on account of the roles for just punishment and general deterrence, but you will have the certainty of a release date, and a goal to work towards if you decide to make yourself ready for a programme such as the one at Wulgunggo Ngalu.
Consideration
79Turning finally to my consideration, the fundamental tension in this sentence lies between the seriousness of what you did, with consideration of your background of deprivation, and all that flows from that. I am careful to give the roles for general deterrence and just punishment full expression, and not allow family and historical tragedy to overwhelm the sentencing process. I have attempted to reward your co-operation, while still providing for the purposes of punishment and general deterrence.
Disposition
80Ashley Backer, on the charge of home invasion, you are convicted and sentenced to a period of imprisonment of 1 year and 10 months; in combination with a Community Corrections Order of 24 months’ duration. I need to explain to you the Community Corrections Order and your obligations on it.
81Make no mistake, it will be onerous and demanding in an enduring way. That is the point. Further imprisonment may await you if you breach the order by non-compliance or by reoffending during the terms of its operation.
82I note that you have already served 400 days by way of presentence detention, and I direct that the Community Corrections Order commence upon your release from your imprisonment.
83I note that pursuant to s 44(1) of the Sentencing Act,[27] the sum of the remaining term that you must serve is less than 12 months once presentence detention is deducted.
[27](n 21).
84The conditions on the community corrections order will be these:
·that you attend for assessment and treatment for rehabilitation from drug use;
·assessment and treatment for rehabilitation from alcohol use;
·assessment and treatment and rehabilitation in relation to your mental health;
·that you complete programs to reduce reoffending;
·that you submit to supervision; and
·that you attend upon the Court at reasonable periods for Judicial Monitoring. The first date will be an estimated three months after your release from custody and that will be on 31 October 2025 at 9:30 am.
Record of reduction of assistance on the grounds of co-operation - s5(2AB)
85
I formally note, pursuant to s 5(2AB),[28] that I have imposed a less severe sentence than that which I would have imposed on account of your undertaking to assist the authorities by giving of evidence consistent with your statement dated
27 September 2023 and marked as Exhibit E on your plea hearing.
[28]Ibid.
Section 6 AAA
86Pursuant to s 6AAA of the Sentencing Act,[29] had you not pleaded, but been found guilty after trial, I would have imposed a sentence of imprisonment of 5 ½ years with a non-parole period of 3 ½ years.
[29]Ibid.
PSD
87I declare that you have already served, pursuant to this sentence, up to, but not including today, 400 days' presentence detention.
Forfeiture
88I make the order for forfeiture of the chainsaw as sought.
89Counsel, I am going to give you a moment to speak to Mr Backer and make sure that he understands the conditions of his Community Corrections Order. That he has to attend within two days of his release from his sentence and once you've had that opportunity, I'll just give you, you know, really just a few moments to do that. I'll be asking Mr Backer directly whether he consents to that community corrections order and that'll be recorded. Does either barrister wish to be heard on the question of media that I raised at the start of the hearing?
90
MR MORSE: If I may just briefly, Your Honour, I have taken instructions from
Mr Backer in relation to potential media application. His instructions were that he would wish to contest the release of any information. I do appreciate that there is an emphasis upon disclosure being made. Mr Backer's biggest concern that he's described to me is the impact it'll have on his prospects of rehabilitation upon release - - -
91HER HONOUR: Right.
92MR MORSE: - - - but I do understand that's not a criteria that's expressed under the Open Courts Act, Your Honour, but I thought I'd assist the court and flag that those are Mr Backer's instructions.
93HER HONOUR: Thank you for that. The Open Courts Act requires me to act consistently with open justice and in the absence of a basis for suppression, while I take Mr Backer's views into account, I will release the two documents that I noted at the beginning of the hearing. I'm going to stand down briefly, so that you can give some advice to Mr Backer. I'm sorry, sir, I don't know your name. It's not recorded on my sheet.
94MR MORSE: Mr Morse.
95HER HONOUR: Morse.
96MR MORSE: Yes.
97HER HONOUR: So that you, Mr Morse, can speak to Mr Backer just briefly and make sure that he understands the terms of his community corrections order and then when I come back, I'll accept his verbal undertaking to do the order. Thank you. We'll stand down briefly.
98Yes, Mr Morse have you had an opportunity to explain the obligations of the community corrections order to Mr Backer?
99MR MORSE: Yes, I've been through that with Mr Backer, Your Honour.
100HER HONOUR: All right, thank you for doing that. Mr Backer, now is when I ask you for your consent to undertaking the order. It's something that I take very seriously, the answer that you give, because if you - if you don't do the order, then I have the power to send you back to do more time in gaol. So I need it to be a very considered decision by you to undertake to do the order and I make a note of this moment and I'll remember it for the future, if we - if we ever need to come back - - -
101OFFENDER: Yes, Your Honour.
102HER HONOUR: - - - and the other thing about this order is that you have to see me about, well, three months after you get out and for as long as it takes for me to make sure that you're doing well.
103OFFENDER: That's okay.
104HER HONOUR: So that should - that should keep you on your toes.
105OFFENDER: Yep.
106HER HONOUR: All right, Mr Backer, do you consent to the making of the order and do you undertake to do what's required of you, pursuant to the order?
107OFFENDER: Yes I do, Your Honour.
108HER HONOUR: Good, all right.
109OFFENDER: Yes I do.
110HER HONOUR: Thank you for saying that.
111OFFENDER: That's okay.
112HER HONOUR: That completes this matter. Can I thank counsel for their assistance. Thank you, Mx Rattray and Mr Morse. Thank you.
113MR MORSE: Thank you, Your Honour. If I may just raise one further thing with Your Honour? Just in relation to the media application that Your Honour's granted, Mr Backer has raised that he wanted for me to clarify whether the media application would involve, or relate to him assisting with the prosecution in the - in the unrelated matter, whether the undertaking would form part of the materials.
114HER HONOUR: Look, I treat those matters very seriously, of course, but the fact is, Mr Backer's statement has been - has been released to the accused in this case. This is not one of the cases where someone's giving information in the background where we protect their identity, et cetera. This is a case where Mr Backer's assistance in that prosecution is already known to the very person who it potentially hurts the most. There's no application for suppression in front of me. If there were, I would consider it. At the moment, all I can do is to politely ask the media not to report that part of this sentence, because it may affect Mr Backer's safety, but without an application, without evidence before me, I can't suppress that fact, yes, but I appreciate why you're raising it and if there - if there are concerns, then they needed to be made into a formal application to put before the court, yes.
115MR MORSE: As Your Honour pleases.
116HER HONOUR: Thank you. We'll rise.
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