Director of Public Prosecutions v Crabtree
[2024] VCC 1492
•26 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-02150
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY CRABTREE |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2024 | |
DATE OF SENTENCE: | 26 September 2024 | |
CASE MAY BE CITED AS: | DPP v Crabtree | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1492 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty plea – Stalking – Persistently contravene FVIO – Burglary – Intentionally Damage Property – Assault emergency worker – Resist emergency worker – Trespass – Install, use and maintain tracking device – Family violence – Prior convictions for stalking – Mental health – Verdins principles
Legislation Cited: Crimes Act 1958 (Vic); Family Violence Protection Act 2008 (Vic); Interpretation of Legislation Act 1984 (Vic); Surveillance Devices Act 1999; Sentencing Act 1991 (Vic)
Cases Cited:Gale v R [2014] VSCA 168; Smith v The Queen [2013] VSCA 219; Wilson v The Queen [2012] VSCA 40; Gale v The Queen [2014] VSCA 168
Sentence: 3 years 11 months’ imprisonment with a non-parole period of 2 years 8 months – 6AAA declaration – 5 years 6 months’ imprisonment with a non-parole period of 3 years 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Cashmore | Office of Public Prosecutions |
| For the Accused | Mr J Barrera | Stary Norton Halphen |
HIS HONOUR:
1Ashlee Crabtree, you have pleaded guilty to:
(a) Two charges of stalking, each of which carries a maximum sentence of 10 years’ imprisonment;[1]
(b) One charge of persistent contravention of a family violence intervention order, which carries a maximum sentence of 5 years’ imprisonment;[2]
(c) One charge of burglary, which carries a maximum sentence of 10 years’ imprisonment;[3]
(d) One charge of intentionally damage property, which carries a maximum sentence of 10 years’ imprisonment;[4]
(e) One charge of assault emergency worker on duty, which carries a maximum sentence of 5 years’ imprisonment;[5]
(f) Two charges of resist emergency worker on duty, each of which carries a maximum sentence of 5 years’ imprisonment;[6]
(g) One charge of trespass, which carries a maximum sentence of 6 months’ imprisonment;[7] and
(h) One charge of install/use/maintain tracking device, which carries a maximum sentence of 2 years’ imprisonment.[8]
[1] Crimes Act 1958 (Vic) s21A (1) (‘Crimes Act’).
[2] Family Violence Protection Act 2008 (Vic) s 125A.
[3] Crimes Act (n 1) s 76 (1).
[4] Ibid, s 197 (1).
[5] Ibid s 31 (1) (b).
[6] Ibid.
[7] Ibid s 9(1) (e).
[8] Surveillance Devices Act 1999 s 8 (1).
Factual Circumstances
2The factual circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 15 May 2024 which is an agreed document.[9]
[9] Exhibit P1.
Background
3The first victim in this matter is Georgia McKinnon,[10] who at the time of the offending was 25 years of age. Ms McKinnon and you had been in an on-again-off-again intimate relationship between approximately May 2021 and January 2022.
[10] A pseudonym.
4The second victim is Liam Bartlett,[11] who at the time of the offending was 30 years of age. Ms McKinnon and Mr Bartlett had commenced an intimate relationship around July 2022. Mr Bartlett was living in Brisbane at the time, and moved to Melbourne on 15 August 2022.
[11] A pseudonym.
5The third, fourth and fifth victims in this matter are all police officers from the Prahran Family Violence Investigation Unit: Detective Acting Sergeant James Maddock, Senior Constable Jaye Todd, and Senior Constable Ashlee Vitiritti.
6On 6th December 2022, a Final Family Violence Intervention Order[12] was served on you at the Melbourne Magistrate’s Court. The order listed you as the respondent, and Ms McKinnon as the protected person. The order was to expire on 5 December 2029.
[12] Case number N11429794.
7The order contained conditions that you must not:
(a) Commit family violence against the protected person;
(b) Intentionally damage any property of the protected person or threaten to do so;
(c) Attempt to locate, follow the protected person or keep them under surveillance;
(d) Publish on the internet, by email or other electronic communication any material about them;
(e) Contact or communicate with the protected person by any means;
(f) Approach or remain within 5 metres of the protected person;
(g) Go to or remain within 200 metres of any place where the protected person lives or works; and
(h) Get another person to do anything that the respondent must not do under this order.
Offending - Mr Bartlett
8On 10 July 2022, Mr Bartlett received a Facebook message from you. He was living in Brisbane at the time, and had commenced his relationship with Ms McKinnon. The message stated: ‘If I find out you’ve seen [Georgia] again your [sic] fucked! I know where your parents live and I’ll find out where the fuck you live in Brisbane. I’m going to ruin you’.[13] This is part of Charge 1 – Stalking.
[13] Exhibit P1, [9].
9Mr Bartlett reported the Facebook message to Police in Brisbane.
10On the same date you were arrested in relation to earlier stalking of Ms Bartlett between 16 June 2022 and 10 July 2022, and taken into custody.
11On 15 August 2022, Mr Bartlett moved from Brisbane to an address in Glen Iris, and in July 2023 he moved from Glen Iris to an address in St Kilda.
12You were released from custody on 6 December 2022. The Magistrates’ Court sentenced you to 144 days in custody (all of which was reckoned as time served) together with a 12-month Community Correction Order.
13You were sentenced on 20 March 2023 for contravention of that CCO by further offending including stalking.
14On 25 July 2023, you attended Bunnings in Port Melbourne with your friend Anthony Hess. You purchased a black liquid paint marker and a screwdriver.
15Overnight between 25 and 26 July 2023, you attended Mr Bartlett’s property in St Kilda East. The property is a secure apartment complex with fob access to a communal foyer. You entered the foyer of the apartment building, passing the security door by unknown means.
16You then wrote a message on the corridor wall directly outside Mr Bartlett’s apartment using a black liquid paint marker. This conduct is part of Charges 1 and 2 – Stalking, as well as Charge 4 – Burglary, and Charge 5 – Intentionally Damage Property.
17The graffiti message stated:[14]
‘I ToLd U I would FIND U NICE 560K LOAN
LETT THE GAMES BEGIN’
[14] Exhibit P1, [16].
18You spelt the word ‘let’ the same way that Mr Bartlett’s surname is spelt with a double T. You also referenced a $560,000 loan which closely reflects the amount that Mr Bartlett had been loaned for the purchase of the property at St Kilda East. The contents of the message are part of Charge 1 – Stalking.
19Ms McKinnon and Mr Bartlett were in the apartment whilst this occurred. At approximately 5:00am on 26 July 2023, they left the apartment and noticed the message on the wall. Both Ms McKinnon and Mr Bartlett were fearful after seeing the message.
20Ms McKinnon took a photo of the message and contacted the Prahran Police Station to report the incident.
21Police attended and obtained statements from Ms McKinnon and Mr Bartlett. Police applied for a Personal Safety Intervention Order against you to protect Mr Bartlett following the incident.
Offending – Ms McKinnon
22On a date between 6 and 28 July 2023, you attached a geographical tracking device, being a Samsung SmartTag, to Ms McKinnon’s vehicle. You attached it to the rear underside of the vehicle with a zip-tie. Summary Charge 27 – Install, use, and maintain a tracking device.
23Ms McKinnon’s vehicle was a red Ford Focus with registration ending 73. You used the Samsung SmartThings application on your phone to track the location of Ms McKinnon’s vehicle. Part of Charge 2 – Stalking, and part of Charge 3 – Persistent contravention of family violence intervention order.
24On 10 July 2023, at approximately 10:15am, Ms McKinnon was driving home to her property in South Yarra from Mr Bartlett’s residence in St Kilda East. Ms McKinnon drove into the driveway of her building and into the underground carpark, and parked in her allocated car spot.
25As she parked, you opened the passenger side door of her vehicle and got inside her car. You were wearing a motorcycle helmet. Ms McKinnon said: ‘You cannot be here’. You said: ‘Don’t worry I won’t hurt you, I just want to apologise’.
26You then read out a letter you had written apologising for how the relationship ended. Ms McKinnon responded ‘that’s fine, but we cannot see each other after this, you need to move on’.
27You said you wanted to know a few things, and asked if Ms McKinnon was happy. She replied, ‘I am, I just don’t want to see you again’.
28You asked if Ms McKinnon and you could keep this between yourselves, and told her not to go to the police. Ms McKinnon replied that she would not go to the police, as long as she did not see you again.
29Ms McKinnon then drove out of the carpark, dropped you off on the street and kept driving. This conduct is part of Charge 2 – Stalking, and part of Charge 3 – Persistent contravention of family violence intervention order.
30On 12 July 2023 at approximately 5:45pm Ms McKinnon got into her car, which was parked at Auburn Station. As she was driving off, she noticed a person getting into a white car nearby.
31At the time, Ms McKinnon did not know the identity of this person, however it was later revealed to be you. You followed her as she drove home. As she turned into her street, you drove off. This conduct is part of Charge 2 – Stalking, and part of Charge 3 – Persistent contravention of family violence intervention order.
32On 13 July 2023, at approximately 3:45pm, Ms McKinnon was driving to Mr Bartlett’s property in St Kilda East after finishing work. Upon arriving at Mr Bartlett’s property in St Kilda East, Ms McKinnon noticed you slowly drive past her vehicle in a small white car and park ahead of her.
33Ms McKinnon got out of her vehicle and approached the white car to see if it was you, and you opened the door to Ms McKinnon. This conduct is part of Charge 2 – Stalking, and part of Charge 3 – Persistent contravention of family violence intervention order.
34Ms McKinnon told you that she was going to go to the police, and you begged her not to. You pleaded with Ms McKinnon, and asked her to get inside the car. Ms McKinnon told you repeatedly that she didn’t want to talk.
35Eventually, she got in the vehicle, and you asked if this was where Mr Bartlett lived. Ms McKinnon asked if you were following her to find out where Mr Bartlett lived. This is part of Charge 1 – Stalking.
36You responded asking, ‘how do you know that I was following you last night?’ and Ms McKinnon told you she saw you. You said that you didn’t follow her all the way as you realised that she was just going home.
37You then told Ms McKinnon that you knew her work shifts as you had obtained her work schedule from somebody with whom she worked. You continued to plead with her not to go to the police, saying that you loved her and could not understand why you could not be together.
38Ms McKinnon told you that you needed to leave, exited your vehicle and walked towards her car. You asked Ms McKinnon again not to go to the police again, and said, ‘I swear I’ll never see you again, if you call the police I will throw myself in front of a train’. This is part of Charge 3 – Persistent contravention of family violence intervention order.
39Ms McKinnon attended at Prahran Police Station on 14 July 2023, and provided a statement regarding these interactions.
Arrest
40On 28 July 2023 at approximately 8:12am, Detective Acting Sergeant Maddock, Senior Constable Todd, and Senior Constable Vitiritti, attended 52 Park Street South Melbourne along with Senior Constable Chris Stone and Senior Constable Angela Campbell, with the intention of arresting you. Your unit was on the 13th floor of the building. S/C Stone and S/C Campbell remained on the ground floor to prevent you from leaving if you attempted to escape, and the other police officers attended Unit 1302 and knocked on the door.
41Anthony Hess opened the door, and the police officers entered the unit to search for you. As police knocked, you opened the back door of Hess’ unit and walked onto the balcony. You then crossed over the balcony of the unit next door, being 1303, and then onto the balcony of unit 1304, and entered the unit via the balcony door.
42The resident of unit 1304, was present at the time, and you said to him, ‘I need to hide, I need to hide’, before entering his bedroom and trying to hide under his bed. This relates to Summary Charge 23 – Trespass.
43Police spoke to the resident of unit 1303, who advised that she thought you went next door into unit 1304. D/A/S Maddock knocked on the door of unit 1304, the resident answered the door and told police that he didn’t know where you were. He allowed D/A/S Maddock to enter the apartment.
44D/A/S Maddock located you hiding under the bed in the bedroom. D/A/S Maddock identified himself, and asked you to come out as you were under arrest for stalking.
45After you didn’t move, D/A/S Maddock pulled you from under the bed. You resisted as he attempted to flip you onto your stomach, so that you could be placed in handcuffs. S/C Vitritti entered the room, and took one your arms to assist in the arrest.
46You continued to resist, and stood up. D/A/S Maddock grabbed you around the torso to try to take you to the ground. You placed your arms around his head in a headlock, and tried to punch him in the face with your right hand, but missed. This conduct relates to Charge 6 – Assault emergency worker.
47D/A/S Maddock then punched you in the face, causing blood to pour from your nose. You continued to violently resist and assault D/A/S Maddock as he tried to arrest you. The two of you moved down the hallway into the main living area of the unit.
48You then broke free and ran onto the balcony, saying ‘Let me go’. You placed your right leg over the balcony and tried to throw yourself off the balcony.
49D/A/S Maddock and S/C Vitiritti held on to you by the torso and leg to stop you from jumping off the balcony. S/C Todd arrived to assist in stopping you from jumping off the balcony. You actively resisted the three police members. This conduct relates to Charges 7 and 8 – Resist emergency worker on duty.
50S/C Vitiritti used her radio to call for assistance, and D/S/C Stone and S/C Campbell entered the unit to assist in pulling you back from the balcony, while you continued to resist.
51You were pulled back over the balcony and taken into the lounge room where you were handcuffed and placed under arrest.
52You were then taken to the Alfred Hospital by ambulance. You remained under hospital guard until 1 August 2023, when you were discharged and taken to the Prahran Police Station.
Investigation
53On 28 July 2023, Anthony Hess approached S/C Campbell and D/S/C Stone and discussed you and your movements over the preceding days. Mr Hess told police:
(a) He was aware that you were obsessed with Ms McKinnon and would constantly talk about her;
(b) You had told him that you had been having conversations with Ms McKinnon;
(c) He had taken you to Bunnings Port Melbourne on 25 July 2023, and that same night had driven you to an address in St Kilda East; and
(d) That you had not told him who you were seeing in St Kilda East, but that you had told him that you were there to collect money that was owed to you.
54On 28 July 2023, Senior Constable Rachael Parry attended 1304/52 Park Street to photograph the crime scene. The resident of 1303 located a black Samsung mobile phone in the bedroom, belonging to you, and handed it to police. The phone was conveyed to the Victoria Police Cybercrime Squad on 11 August 2023 for a phone download.
Phone Analysis
55On 11 September 2023, Senior Constable Dominic Favilla collected the phone and the download from Cybercrime. S/C Favilla reviewed the phone, and located a screenshot from the location history of a Samsung tracking device named ‘keys’. The device was located at Victoria Street, near Auburn Station on 12 July 2023 at 4:41pm. This location is where Ms McKinnon’s vehicle was parked on 12 July 2023, as described earlier.
56Two screenshots of a location history of a Samsung tracking device named ‘Jay Todd’ from 6 and 8 of July 2023 were located. The addresses were in the vicinity of Mr Bartlett’s previous address in Glen Iris, and the address of Ms McKinnon’s sister in Hawthorn East.
57The phone included screenshots of the vendor statement for an apartment in Ms McKinnon’s apartment complex in South Yarra, and included 7 photographs of level 6, and the kitchen and bathroom of a unit from level 6. On 9 October 2023, Ms McKinnon reviewed these images and identified the apartment as her own.
58In the ‘Samsung Notes’ application on the phone, there were the following two notes.
59The first, entitled ‘Address’, was created at 7:00pm on 6 July 2023:
‘[Leila] [Omitted], Glen Iris [Monica] [Omitted] Hawthorn east [Georgia] [Omitted] South yarra [Dianna] [Omitted] Mannibadar [Liam] [Omitted] St Kilda East [McKinnon] PJ & JE’.
60This note contains the addresses of Ms McKinnon, her sister, her mother, her parents’ business, and Mr Bartlett’s addresses in both Glen Iris and St Kilda.
61The second note, entitled ‘Target’, was created at 7:55pm 27 June 2023:
‘[Liam]work [Omitted] Truganina VIC 3029’
62This note contains the work address for Mr Bartlett’s workplace at Target.
63The examination of your phone revealed internet searches including:
(a) On 27 June 2023 you searched registration ending ‘73’, being Ms McKinnon’s registration plate, six times, and registration ending ‘73 ford focus rego’ six times;
(b) On 6 July 2023, you twice searched ‘does Samsung tag notify other phones’;
(c) Between 8 July 2023 and 27 July 2023 you made a total of 442 internet searches including the word ‘jenkins’[15], being Mr Bartlett’s street name;
(d) Between 3 June 2023 and 27 July 2023, you made a total of 89 searches including Ms McKinnon’s Duncan[16] street address;
(e) On 27 July 2023 you searched Mr Bartlett’s full street address;
(f) Also on this date, you made a total of 81 searches involving ‘jenkins’, and 14 searches involving ‘Duncan’; and
(g) Between 27 June 2023 and 27 July 2023 you searched the name ‘Liam Bartlett’ 86 times.
[15] Location de-identified.
[16] Location de-identified.
64Your mobile phone had 69 devices connected to it, including a Bluetooth device called ‘Ford Focus’.
65Victoria Police arranged for Tristan Wilson from Protective Group to conduct a Technology Safety Audit of Ms McKinnon’s vehicle. During the assessment, a Bluetooth device was detected in the vicinity of the vehicle, being an Android SmartTag device. D/S/C Stone searched the underneath of the vehicle and located a black Samsung SmartTag underneath the rear right underside of the vehicle attached by a cable tie.
Interview
66You were assessed by Dr Gabriele O’Connor from the Victorian Institute of Forensic Medicine via video call on 1 August 2023. Dr O’Connor determined you were fit to be interviewed if an independent third person (ITP) was present.
67You were interviewed by S/C Favilla and Detective Senior Constable Miranda Lord in the presence of ITP Campbell Evans.
68You predominantly made a no-comment interview relating to the stalking charges and burglary charge.
69In relation to the offending surrounding your arrest, you stated you woke up from a deep sleep and heard loud crashing. You stated that it was a ‘fight or flight’ reaction, to try to escape via the balcony, and that you ran because you are not a fighter.
70You stated that the balcony of 1304 was locked, and that the occupant let you in his unit. You admitted that you hid under the mattress inside the apartment, and stated that D/A/S Maddock lifted up the mattress and ‘king-hit’ you twice, causing you to ‘black-out’, and that everything further that happened was a blur and you did not recall anything else that happened, stating the next thing you remembered was waking up in the hospital.
Victim Impact
71Victim Impact Statements completed by Ms McKinnon[17] and Mr Bartlett[18] were read to the court.
[17] Victim Impact Statement of Georgia McKinnon dated 25 May 2024 (‘Exhibit P3’).
[18] Victim Impact Statement of Liam Bartlett dated 5 August 2024 (‘Exhibit P2’).
72Ms McKinnon describes your ongoing harassment of her as a ‘two year nightmare’. She details the ongoing fear and anxiety you have caused her. Ms McKinnon states that she has lost confidence in her judgment of people and has ‘lost all sense of control of [her] life’. She worries that she will never be free of you and will continue to have to move every few years to be safe.
73Ms McKinnon completes her Statement as follows:
I spend every day exposed to articles and watching the news about women who have been harmed by domestic violence and I’m scared I will become another statistic. I don’t want to have to change everything about my life in an attempt to escape him.
74Mr Bartlett describes the ‘anger, shame and hurt’ you have caused him. He has an ‘unnerving feeling’ that he is being watched. He has sought psychological treatment to deal with the trauma and describes the ‘significant emotional toll’ of your conduct.
Objective Gravity and Moral Culpability
75Yours was serious offending.
Charges 1 and 2 - Stalking
76The gravamen of charges 1 and 2 was your engagement in a course of conduct with the intention of causing physical or mental harm to your victims or of arousing apprehension or fear in your victims for their own safety or that of another person.[19]
[19] Crimes Act 1958 (Vic) s 21A.
77In assessing the seriousness of a given instance of stalking, relevant matters that will be considered by a sentencing court include:
(a) The pre-existing relationship between the parties if any;
(b) Whether the victim was especially vulnerable;
(c) Whether the offender intended his victim to discover that she was being stalked;[20]
(d) The duration of the course of conduct; and
(e) The nature of the conduct.
[20] Gale v R [2014] VSCA 168, [39]
78Taking those matters into account, I note that you stalked Mr Bartlett for over a year. The specific conduct in which you engaged with the intent of causing Mr Bartlett harm was:
(a) Sending him the threatening Facebook message in July 2022; and
(b) Writing the message on the wall outside his apartment on 26 July 2023.
79Your stalking of Ms McKinnon lasted 16 days. Between 10 July 2023 and 26 July 2023, with the intent of causing Ms McKinnon physical or mental harm, you:
(a) Installed the tracking device on Ms McKinnon’s car;
(b) Tracked Ms McKinnon’s location by using that device;
(c) Entered her car at night uninvited and read a letter to her telling her not to report you to the police;
(d) Followed Ms McKinnon’s car at night in your car;
(e) Approached her at night on another occasion telling her you knew her work-shifts and that you could not understand why you could not be together; and
(f) Wrote the message on the wall outside Mr Bartlett’s apartment while Ms McKinnon was present inside.
80It is clear that you engaged in this course of conduct with the intention of causing fear on the part of your victims. The message you scrawled on 26 July 2023 is evidence of this.
81These are mid-level examples of the offence of stalking. Despite your stalking of Mr Bartlett occurring over a longer period than that concerning Ms McKinnon, the intensity of your offending against Ms McKinnon makes it, if anything, more egregious than your offending against Mr Bartlett. Ms McKinnon knew you well having been in a relationship with you. She was a young woman living alone who was entitled to the protection of the Family Violence order that had been imposed on you for her benefit. You had previously been jailed for stalking Ms McKinnon.
Charge 3 – Persistent Contravention of Family Violence Intervention Order
82With the exception of the message you wrote on the wall outside Mr Bartlett’s apartment, the conduct summarised in [22]-[38] above involved contraventions of the Family Violence Intervention Order issued against you on 6 December 2022 designed to protect Ms McKinnon.
83This is also a mid level example of this offence.
Charges 4-8
84Charges 4 and 5 are lower level examples of the offences of burglary and damaging property respectively.
85Charges 6, 7 and 8 are low to mid-range examples of the offences of assaulting and resisting emergency workers.
Summary Offences
86Summary offence number 27 is a serious example of the offence of installing a tracking device to determine the location of an object. You installed and used the device to track Ms McKinnon’s whereabouts as part of a campaign of stalking her and in breach of a Family Violence Notice.
87Summary offence 23 is a low level example of a trespass.
Moral Culpability
88Your moral culpability for your offending is considerable. You were aware that what you were doing was wrong as you had previously been sentenced for stalking behaviour including stalking Ms McKinnon.
Personal circumstances
89You are 30 years of age, and were between 28 and 29 at the time of the offending.
90The circumstances of your upbringing come from a report by psychologist Peter Hanley dated 26 August 2024.[21]
[21] Exhibit D1.
91You were raised in Victoria, and your parents divorced after your mother left the family home in your early adolescence. You have a sister two years your junior, and a 14-year-old half-sister who was born to your mother after she re-partnered.
92Your parents’ marriage involved regular conflict and abuse by your father, aimed at you and your sister as well as your mother.
93Your father used derogatory language against you, calling you ‘retarded’ amongst other things and disparaging your appearance. You also witnessed his violence including throwing a pot plant at your mother, throwing the family dog to the ground, smashing a camera your mother gave you, and hitting and kicking your mother. You felt afraid of your father and described ‘walking on eggshells’.[22]
[22] Ibid, 6.
94In contrast you describe your mother as loving and supportive, and as trying to protect you and your sister from your father’s abuse.
95After your parents’ divorce your mother left the family home and her absence led to a period of neglect of you and your sister. You report that your father failed to provide necessities like lunch, school uniforms and clean clothes. Your interpretation of your father’s parenting, as described to Mr Hanley, was that:[23]
He used [you] and your sister to not give [your mum] as much money in the divorce settlement . . . He was the one caring for the children so that he didn’t have to give money to my mum. When he stopped caring for us he didn’t give a fuck.
[23] Ibid, 7.
96You report social and behavioural problems occurring since kindergarten including struggling with concentration and following rules, and being disruptive in class.
97You attended Rosanna Golf Links Primary School where you struggled academically, particularly with spelling and reading. You were suspended once in grade 5 for swearing, however you say you were not violent and despite some bullying, were able to form good relationships with your peers.
98You attended three different secondary schools between years 7 and 10, reporting regularly skipping school, and enrolling yourself in Greensborough Secondary College in year 10 after becoming dissatisfied with your previous school.
99After year 10 you enrolled in TAFE where you completed a year 12 equivalent qualification, followed by pre-apprenticeship training and an apprenticeship in plumbing. You worked as a plumber for a year, and following further training you worked in the fire safety services industry for another six months.
100Your employment was disrupted by your first period of imprisonment in 2020 and other than occasional self-employment, you have remained unemployed since.
101Your first romantic relationship began at 14 years of age and lasted around six months. You had several other relationships of this length in your teen years and described being in a relationship at that time as amazing. You said you felt a ‘sense of connection that maybe I’ve been longing for [ever since].’[24]
[24] Exhibit D1 (n 17) 8.
102At 17, you began a 5-year relationship with a 25-year-old woman. You described a sense of connection based on ‘shared oddities’ and mutual acceptance, and the circumstances that lead to your break up as ‘one of the biggest regrets of [your] life’.[25]
[25] Ibid.
103Most recently, you were involved in the relationship with Ms McKinnon.
References
104Character references were provided to the court by your grandfather Lawrence Crabtree, your uncle Gavin Crabtree, and Hopkins Correctional Services Officer Chris Whitty.
105In a letter dated 19 May 2024[26] your grandfather states that prior to your arrest you were living with him to provide assistance and security as he lives alone following the passing of your grandmother in 2022. Mr Crabtree says you were devastated by your grandmother’s passing and he saw you expressing anger and an inability to control your emotions following this event.
[26] Exhibit D8.
106Mr Crabtree writes that you regularly discuss the charges you face, and that you have expressed remorse and a genuine willingness to change your behaviour.
107In a letter dated 13 May 2024[27] your uncle also speaks of your distress about the consequences of your actions, and your preparedness to undertake the sentence you are given. He writes of your good character, talent as a plumber, and ability to fix almost anything, and your willingness to often do this at no cost or after hours. Mr Gavin Crabtree goes on to say:
Having said that I am also aware of his prior convictions, which are disappointing and embarrassing. I believe with the support of family members such as myself; not insurmountable.
[27] Exhibit D9.
108Finally, in a letter to the court dated 6 April 2024, Chris Whitty describes you as a responsible and mature member of the community at Hopkins Correctional Centre, who is respected by your fellow prisoners.[28] Mr Whitty says you have been conscientious and reliable in your work in Metalfab and Maintenance, and have furthered yourself by engaging in varied developmental programs.
[28] Exhibit D6.
109A number of certificates provided to the court show your participation while in custody in programs addressing drug and alcohol dependency, and related to respectful relationships.[29]
[29] Exhibit D7.
110You have an extensive and relevant criminal record which dates back to 2012. You have several times been sentenced for contravening Family Violence Safety Notices and you have convictions for stalking and hindering an emergency worker on duty (2022). It is most concerning that you have previously been imprisoned for stalking Ms McKinnon.
111According to psychologist Mr Hanley, you expressed regret for, but also expressed ‘a self-centred approach’ to, your past offending.[30] You told Mr Hanley that you are embarrassed about this offending and you expressed regret for the threatening graffiti message. You are less contrite about your offending against the police claiming that you were defending yourself.[31]
[30] Exhibit D1 (n 17) 12.
[31] Exhibit D1 (n 17) 16-17.
112In your letter dated 26 May 2024 to the court,[32] you explain that time in custody has caused you to reflect on your offending and you wish now to apologise to your ‘many victims’ especially Ms McKinnon and Mr Bartlett. You state that you have come to terms with your offending and ‘will do whatever it takes to make sure there are no further occurrences’.
[32] Letter dated 26 May 2024 from Accused to Court, Exhibit D5.
Mental Health – the Evidence
113The Court received the following historical reports:
(a) Report of Dr John Stevens, treating psychiatrist dated 27 November 2018;[33]
(b) Letter dated 12 July 2022 from Dr Stevens;[34] and
(c) Forensicare report dated 21 October 2022 prepared by Amy Meiklejohn, Senior Social Worker.[35]
[33] Exhibit D3.
[34] Exhibit D4.
[35] Exhibit D2.
114It is clear that you have struggled with your mental health for some years.
115You were assessed by psychologist Peter Hanley, who prepared a detailed report for the court.[36]
[36] Exhibit D1 (n 17).
116Mr Hanley interviewed you on three occasions for a total of 5 hours via videoconference while you were in custody.
117After taking a detailed family, educational, employment, relationship, medical and psychiatric and criminal history, Mr Hanley administered a number of standard psychological tests.
118Mr Hanley notes that you were diagnosed in childhood with Attention Deficit Hyperactivity Disorder (ADHD) but considers that Autism Spectrum Disorder (ASD) may have been a more appropriate diagnosis.[37]
[37] Ibid, 10.
119Mr Hanley diagnoses you with Borderline Personality Disorder (BPD) and considers that, at the time of your offending, you would have met the diagnostic criteria for Adjustment Disorder with mixed disturbance of emotions and conduct.[38]
[38] Ibid, 16.
120Mr Hanley opines that your various conditions ‘interact and contribute to [your] complex presentation and offending behaviour’.[39] The presence of your conditions meant that you ‘likely experienced intense and disproportionate distress during [your] relationship breakdown’ and ‘found it difficult to interpret social cues relating to the termination of the relationship and found it difficult to regulate emotions such as jealousy, rejection and abandonment’.[40]
[39] Ibid.
[40] Ibid, 19.
121Mr Hanley explains by reference to the relevant diagnostic criteria, that BPD has ‘explanatory power regarding the nature of [your] offending behaviour’.[41]
[41] Ibid.
122Your conditions ‘create significant challenges in interpersonal relationships and emotional regulation’.[42]
[42] Ibid, 16.
123Mr Hanley considers that you demonstrate only ‘incipient insight into your offending behaviours and their impact on others’.[43] You have only limited insight into the fear that your stalking behaviours would have instilled. Despite this, you are actively seeking help for your problems.
[43] Ibid, 14.
124Mr Hanley assessed your future risk of stalking behaviour using the Stalking Risk Profile.[44] Although you have displayed changes in attitude and thought since your incarceration, he considers that, based on objective factors, you present a moderate risk of ‘future stalking violence towards the primary victim’ and a high risk of engaging in another distinct stalking episode. You ‘unequivocally’ require treatment for your stalking behaviour.
[44] Ibid, 17-18.
125Mr Hanley opines that you require intense psychological treatment in a structured environment. Forensicare’s Problem Behaviour Program may be appropriate. Noting that you have been approved for NDIS funding, Mr Hanley considers that NDIS case management may provide the structure you need. Left untreated, your BPD ‘would be expected to increase the risk of persistent unwanted communication and contact with victims and increase the risk of a recurrence of stalking behaviour’.[45]
[45] Ibid, 21.
Mental Health – Sentencing Impact
126Your counsel submitted that Verdins limbs 1-4 are enlivened by the evidence of Mr Hanley. The prosecution acknowledged that you have ‘some Verdins considerations that are applicable in reducing moral culpability’.[46]
[46] Outline of Submissions on Sentence dated 27 August 2024, [16].
127I accept that there is a nexus between your combined mental health conditions and your offending. As Mr Hanley explains, owing to the presence of ASD, ADHD and BPD, you found it difficult to regulate emotions such as jealousy, rejection and abandonment.
128This reduces your moral as opposed to your legal responsibility for your offending in accordance with limb 1 of Verdins. It also means that you are less suitable as a vehicle for general deterrence than would be a person without your mental health conditions who engaged in such conduct. This has the effect of mitigating your sentence.
129However, the very same considerations increase the potential for you to re-offend and therefore community protection and specific deterrence are particularly important sentencing considerations.
Prospects of Rehabilitation
130I have noted earlier that you have been assessed as a high risk of future stalking offending in part due to your limited insight into the impact of your behaviour. You have a significant relevant criminal history and have not taken full advantage of previous community-based rehabilitative sentences.
131As against that, you remain supported by your family and you have used your time while on remand productively. You have pleaded guilty which is evidence of your remorse, as is your letter to the court dated 26 May 2024.
132On balance I accept your counsel’s submission that you have ‘some prospects of rehabilitation’.[47]
[47] Outline of Defence submissions on behalf of Ashley Crabtree dated 26 August 2024, [35].
Submissions
133Your counsel submitted that you are remorseful and that you have some prospects of rehabilitation.[48] Ultimately, Mr Barrera accepted that a sentence of imprisonment is required in your case but that its length should reflect the principle of parsimony and the ‘powerful factors in mitigation’.[49]
[48] Outline of Defence submissions on behalf of Ashley Crabtree dated 26 August 2024.
[49] Ibid, [36]-[39].
134Ms Cashmore, counsel for the prosecution submitted that a term of imprisonment with a non-parole period is the only appropriate disposition in light of the objective gravity of your offending and taking into account your record and the matters in mitigation.
Consideration
135In sentencing you it is important to avoid punishing you twice for the same conduct.[50] Much of the conduct that founds charge 2 (stalking) is also relied upon in relation to the breaches of the Family Violence Order (charge 3).
[50] Interpretation of Legislation Act 1984 (Vic.), s 51(1).
136Further, the message you wrote on the wall at Mr Bartlett’s apartment block is the basis for charges 4 and 5 as well as charges 1 and 2.
137I have taken this into account in the orders that I have made for cumulation by reducing the periods I would otherwise have ordered.
138I have taken into account that there are five victims of your offending by ordering some modest cumulation in relation to each.
139I accept the prosecution submissions that the relevant sentencing considerations in your case include specific and general deterrence and just punishment. In addition, community protection is important.
140Your plea of guilty to these charges is of considerable utilitarian value. It saves the anxiety of witnesses giving evidence at your trial. It saves public resources. It is also evidence of your remorse.
141Your criminal history means that specific deterrence is especially important. While you are not to be punished again for your previous offending, that offending is relevant to my assessment of future risk as discussed earlier.
142I have examined some previous stalking sentencing cases in the Court of Appeal.[51] They demonstrate as may be expected that there is a wide variety of stalking cases and it is difficult to extract from the cases any discernible sentencing practice.
[51] Smith v The Queen [2013] VSCA 219; Wilson v The Queen [2012]VSCA 40; Gale v The Queen [2014] VSCA 168.
143There is no doubt that the type of behaviour in which you engaged is viewed dis-favourably in the community. Young people such as Ms McKinnon and Mr Bartlett are entitled to feel safe in their domestic and working lives. They should not live in fear. You must be deterred from repeating this conduct and others must be aware that they will be sternly punished if they engage in similar conduct.
Orders
144On balance, having regard to the objective gravity of your offending, your moral culpability and the matters of mitigation discussed earlier while giving due regard to the maximum penalties for each of the offences and the overlap discussed in [135]-[136], I make the following orders:
(a) On charge 1 stalking of Liam Bartlett, you are convicted and sentenced to 2 years’ imprisonment;
(b) On charge 2 stalking of Georgia McKinnon, you are convicted and sentenced to 2 years and 6 months’ imprisonment;
(c) On charge 3, persistent contravention of a family violence intervention order, you are convicted and sentenced to 12 months’ imprisonment;
(d) On charge 4, burglary, you are convicted and sentenced to 8 months’ imprisonment;
(e) On charge 5, intentionally damage property, you are convicted and sentenced to 6 months’ imprisonment;
(f) On charge 6, assault emergency worker on duty, you are convicted and sentenced to 8 months’ imprisonment;
(g) On charge 7, resist emergency worker on duty, you are convicted and sentenced to 6 months’ imprisonment;
(h) On charge 8, resist emergency worker on duty, you are convicted and sentenced to 6 months’ imprisonment;
(i) On the summary charge of trespass, you are convicted and sentenced to 1 month’s imprisonment; and
(j) On the summary charge of installing a tracking device, you are convicted and sentenced to 8 months’ imprisonment.
145The base sentence is that imposed on charge 2.
146I order that 6 months of the sentence imposed on charge 1, 2 months of the sentence on charge 3, 2 months of the sentence on charge 4, 1 month of the sentence on each of charges 7 and 8, 2 months of the sentence on charge 6 and 3 months of the sentence on summary charge 27 be served cumulatively on the base sentence and on each other. The sentences on charge 5 and summary charge 23 are to be served concurrently with the base sentence.
147The total effective sentence is imprisonment for 3 years 11 months.
148You will be eligible for parole after you have served 2 years and 8 months.
149Pursuant to s 18 of the Sentencing Act 1991, I declare that the period of 426 days you have served is time served in respect of the sentence I have imposed and the records of the court will record the same.
150Pursuant to s 6AAA of the Sentencing Act 1991, if you had pleaded not guilty you would have been sentenced to 5 years and 6 months in custody with a non-parole period of 3 years and 8 months.
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