Director of Public Prosecutions v Harre

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00366

DIRECTOR OF PUBLIC PROSECUTIONS

BRENDON HARRE

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February and 1 March 2023
DATE OF SENTENCE:	10 July 2023
CASE MAY BE CITED AS:	DPP v Harre
MEDIUM NEUTRAL CITATION:	[2023] VCC 1178

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:              Two charges of stalking and one charge of perjury – multiple acts of psychological harm – clandestine behaviour against former intimate partners and that person’s new partner over almost 12 months – pleas of guilty but no real remorse – offender suffered childhood trauma, Borderline Personality Disorder, depression and complex sexual identity issues – Application of Principles 1 and 5 of Verdins – High risk of reoffending – Guarded prospects of rehabilitation.
Legislation Cited:
Cases Cited:Worboyes v The Queen [2021] VSCA 169, Verdins v The Queen [2007] VSCA 62, DPP v O’Neill [2015] VSCA 325
Sentence:                  The total effective sentence is 5½ years’ imprisonment with a non-parole period of 3 ½ years.
s6AAA: TES 7 ½ years and NPP 5 ½.

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APPEARANCES:

Counsel

Solicitors

For the DPP

Mr P Pickering

Solicitor for Public Prosecutions

For the Offender

Mr C Morgan

Ms A Harrold

Stary Norton Halphen

HER HONOUR:

1Brendon Harre, you have pleaded guilty to two charges of stalking, each of which carries a maximum penalty of 10 years’ imprisonment, and one charge of perjury, which carries a maximum penalty of 15 years’ imprisonment. In addition, you have consented to two summary offences being uplifted to be heard in this Court and have pleaded guilty to those offences. Charge 12 is a charge of possessing explosive fireworks without a licence, which carries a maximum penalty of 100 penalty units. Charge 13 is a charge of possessing a prohibited weapon without exemption or approval under the Control of Weapons Act, namely, throwing stars. This offence carries a maximum penalty of 240 penalty units or two years’ imprisonment.
2The circumstances of your offending are detailed in the Summary of Prosecution Opening.[1] Your stalking offending on Charges 1 and 2 extended over a period of almost 12 months between 2 July 2020 and 2 June 2021. The background to this offending is that you had met your victim, Adrian Sinclair[2], over a Facebook site called “Melbourne Gay Pals”. This was in 2016 when your victim was aged 15 years and you were aged 34 years. After some sporadic contact between the two of you via Facebook Messenger, Adrian began to receive messages from multiple Facebook accounts stating that he was a slut, promiscuous, had HIV and was taking drugs. Some of his friends received similar messages. When Adrian told you about these messages, he received a supportive card at his home from you. Adrian then received letters at home, telling him to kill himself. One contained two capsules and told him to overdose, and Adrian took both, trying to commit suicide. You later told Adrian that you knew the person responsible for this behaviour, Nick James, whom you claimed to have met at a gay nightclub and with whom you had had a physical confrontation, causing him to be hospitalised. On 3 September 2016, Adrian’s sister received a Facebook message purporting to be from “Nick James” alleging that Adrian had had a sexual encounter with James’ boyfriend in the family home and that her parents should be aware of this conduct, none of which was true. I make it plain that the matters to which I have just referred were relied upon by the prosecution as context for your offending and do not form the subject of any charge.
[1]Exhibit “A”
[2]        A pseudonym.
3In December 2016, when Adrian had just turned 16 years old, you offered employment to him with your employer, the Asthma Foundation of Victoria (subsequently Asthma Australia Limited), where you worked as a compliance manager. In January 2017, you invited Adrian to move into your home at Point Cook, which you were then sharing with your partner, Brendan Reece. Within three weeks, you had commenced a sexual relationship with Adrian. You were over twice Adrian’s age. The relationship between the two of you continued until 2018, when Adrian informed you that he wished to have other sexual relationships, in addition to the one with you. He would tell you when he was seeing someone and that person would begin to receive anonymous messages which said negative things about Adrian. When Adrian told you about this, you claimed that you, also, were receiving similar messages.
4Towards the end of 2018, Adrian met Nicole Sumner[3], who was one year older than him. He and Nicole later moved into a share house in Mount Waverley and later developed an intimate relationship, but you and he remained close.
[3]        A pseudonym.
5In March 2020, Adrian told you that he no longer wished to have a sexual relationship with you, but wished to remain friends. In that month, he, Nicole Sumner and a friend, Sally Schumann[4], moved into a three-bedroom house in Heidelberg Heights. Adrian ceased using the mobile phone which you had given to him.
[4]        A pseudonym.
6Over a period of almost one year, from 2 July 2020, you used numerous methods to stalk both Adrian and Nicole. I propose to append the Prosecution Opening to these sentencing remarks as it details the many manipulative ways in which you eroded the reputation and security of each of your victims. It included connecting Vodafone mobile phone accounts in your name, and also in Nicole’s name, to send offensive and distressing messages to both of your victims, as well as to their housemate, Sally Schumann, who became so upset that she moved out of the accommodation she shared with them. You also stole the iPhone that you had previously given to Adrian and used it to change Adrian’s social media and email accounts. Using a significant number of email accounts created by you, you impersonated both of your victims by sending messages to try to turn them against each other, and sent false information about them to others, including members of their family. You gave information to police about them allegedly using and dealing in drugs. You sent other messages, purporting to be from Adrian himself, to 39 of his personal contacts, including his sister, denigrating himself. You sent emails from an account you had created, in the name of a person, “Ty”, with whom Adrian had had a sexual encounter, claiming responsibility for the appalling stalking behaviour being perpetrated by yourself. From another email account you created in Nicole’s name, you sent to Adrian an audio recording purporting to be of his sexual encounter with Ty. Also, you altered Adrian’s Tinder account profile to state that he was “HIV positive”, “fucked up” and “mentally unstable”, which Adrian was unable to delete, as you had clandestinely changed his login details.
7You invested considerable time and energy in deviously trying to undermine the relationship between Adrian and Nicole, as well as almost every significant relationship which your victims had with other people, including those with their family, their housemates and even their employer. You also entered their home on a number of occasions and engaged in creepy and disturbing conduct calculated to un-nerve them and cause them serious distress. This included going to their Heidelberg Heights address and taking away Adrian’s two dogs to a veterinary clinic, where you, falsely told staff that the dogs had been dumped by Nicole. You gave them a description of Nicole and also the registration details of her car. Two months later, on 14 November 2020, Adrian and Nicole returned home to find a large kitchen knife lying on Adrian’s bed and another large kitchen knife stabbed through the doona cover and electric blanket and stuck into the mattress of Nicole’s bed. In an email dated 5 February 2021, you, the anonymous stalker, told your victims that the CCTV cameras which had been installed at their home do not work when the power is turned off. You expressed the hope that Nicole would find a brown snake in her room before it found her or some of the animals. This was followed up the next day with an email to both Adrian and Nicole stating that they looked pretty when they were sleeping, thereby suggesting that the stalker was watching them while they slept. On 10 February 2021, you left a white envelope in the mail box which contained a copy of a photo of Nicole’s cousin who had recently committed suicide by hanging. The photo had a noose drawn around her neck with a cross on each eye.
8In August 2020, Victoria Police received information from you which lead to police executing a search warrant at the home of your victims, where a small amount of cannabis and psilocybin mushrooms were seized. Both of your victims were charged with unlawful possession of these. In September 2020, police received an email from an address “[email protected]” alleging that your victims were continuing to use and deal in illicit drugs. In October 2020, you sent an email to a Senior Constable Scalzo from an email address you had created, purporting to be Adrian, admitting to still using illicit drugs and alleging that Nicole was dealing. In November 2020, you sent another email to Senior Constable Scalzo from an email address you had created, purporting to be Nicole, offering to give evidence against Adrian in return for the charges against her being withdrawn. On 4 March 2021, you went to their Heidelberg Heights home and punctured all of the tyres on Nicole’s car which was parked outside, and then sent to her a laughing emoji from Adrian’s Snapchat account.
9On 20 February 2021, you made a false online report to police alleging that Nicole had been harassing you since April 2020 with texts, emails and social media messages. You claimed that she had been telling you to kill yourself and attacking your past relationship with Adrian. Following this, you provided to police, five emails and seven Snapchat messages purporting to be from Adrian to yourself, claiming that, in fact, they had been sent by Nicole. You had sent them to yourself using the iPhone which you had stolen from Adrian. You then created an email address purporting to be that of a police officer, Julia S. Starkey, and composed an email to the effect there was sufficient evidence to proceed with an investigation against Nicole Sumner, who already had two other cases against her for harassment and stalking. You then forwarded this fake message to your victims, adding the words “starting to fall into place”.
10You sent various troubling emails to Nicole’s mother, Adrian’s mother and Adrian’s sister. By 3 April 2021, you added Adrian’s father to the people whom you were texting, claiming that you were a victim, accused of being a paedophile, and attaching a photograph which appeared to show that you had attempted suicide by cutting your wrists in the bath. On 5 April 2021, using Adrian’s account, you sent an email to your own employer, Asthma Australia, stating that you were a paedophile and attaching a photograph of yourself without pants and exposing your genitals. You also telephoned Adrian’s workplace where Adrian, Adrian’s mother and Nicole worked, purporting to be a police officer and, the same day, also called Nicole’s grandmother claiming to be a police officer.
11The leadup to your perjury charge was that, on 3 May 2021, you provided Detective Leading Senior Constable Bennett with 50 pages of documents, including false texts, social media messages and emails, which you claimed showed the nature of your relationship with Adrian and the stalking that you had been suffering from Nicole. On 5 May 2021, you sent an email to Detective Bennett alleging further evidence of stalking with the same attachment, which you had sent to your own employer on 5 April 2021. On 7 May 2021, you made an application for a Personal Safety Intervention Order against Nicole, based on the false documents, and emailed it to Werribee Magistrates’ Court. You then attended the Court and signed a document before a registrar of the Court declaring that the contents of your application claiming that Nicole had been stalking you were true and correct. On 14 May 2021, during a hearing at Werribee Magistrates’ Court, you gave sworn evidence via Webex, that Nicole was stalking you. Based on this false evidence, an interim Intervention Order was granted against Nicole in your favour. You followed this up with another report to police on 22 May 2021 that the gate of your property had been taken off its hinges and a flywire screen removed and that you believed Nicole had done this in breach of the Intervention Order. Subsequently, on 26 May 2021, the informant spoke to Nicole and informed her about the Intervention Order, which was served upon her that afternoon.
12On 2 June 2021, police executed a search warrant at your home in Point Cook. You were arrested and police located the mobile phone used by you to send the fake messages, together with evidence showing the registration by you of various accounts in false names.   While conducting the search, police located four throwing stars, which is the subject of Summary Offence 13, and a nine shot box of “Good Times Fireworks” with another 14 associated fireworks in a drawer in the dining room, which is the subject of Summary Offence 12.
13When interviewed by police, you denied all offending, save for a few emails sent from one email address, and continued to claim that you were being stalked by Nicole.
14Following your arrest on 2 June 2021, you were remanded in custody but granted bail 20 days later on 22 June 2021. Subsequently, various committal mention dates throughout 2021 were adjourned so that resolution discussions could be pursued. On 24 November 2021, you indicated your intention to plead guilty to the three indictable charges. On 28 February 2022, you made an unsuccessful application seeking that these charges be dealt with in the summary jurisdiction. On 20 March 2022, the indictable charges were committed for hearing in the County Court and the matter was listed for plea in August 2022. On 10 August 2022, you were arraigned and pleaded guilty to the indictable charges, but at your request, they were adjourned to 28 February 2023 for a plea hearing. On that date, the hearing was adjourned to 1 March 2023 as you were claiming to be unwell. The plea hearing proceeded on 1 March 2023 and you were remanded in custody. The matter was adjourned for sentence to 28 March 2023. Unfortunately, due to my unavailability, the matter has ended up being adjourned for some months until today.
15You are presently aged 40 years, having been born in November 1982. You come before the Court with some prior criminal history dating back to 2006. Between February 2006 and March 2008, you committed a number of driving offences which are of no relevance to the matters for which I must sentence you. However, on 17 April 2008, you were before the Brisbane Magistrates’ Court on a charge of dishonest application of the property of another. Without conviction, you were placed on probation for a period of 12 months and ordered to pay restitution in the sum of $4,603.10. On 2 May 2008, you were again before the Brisbane Magistrates’ Court. This was in relation to three charges of dishonest application of property of another. Again without conviction, you were placed on probation for a period of 12 months. On 4 April 2011, you appeared before Hobart Supreme Court on 24 counts of computer-related fraud. You were convicted and sentenced to be imprisoned for a period of six months, wholly suspended for an operational period of two years. You were ordered to pay compensation in the sum of $6,123.60.
16In a plea on your behalf by Mr Morgan, the Court was told that you have struggled with your sexuality since early childhood and do not identify as male or female and prefer to use the pronouns they/them. She stated that you are the younger of two children and had instructed your legal representatives that your biological father was a violent alcoholic whom you had witnessed violently rape your mother, as well as strangle your pet dog to death. When you were approximately six years of age, your mother re-partnered, but your stepfather was said, by you, to have been a homophobic bully who would taunt you with terms like “faggot” and would physically beat you. You claim that you were sexually assaulted by a swimming teacher, following which you moved to live with an aunt. You claim that her husband groomed and sexually abused you over a period of four to five years.
17Your counsel’s submissions[5] indicated that you completed secondary school at Claremont High School in Hobart, where you state that you were bullied and subjected to homophobic taunts and felt friendless and isolated. You moved out of home at about age 15, but continued to attend school and also worked at Domino’s Pizza. You had begun to have some relationships with older men and were introduced to cocaine and ecstasy, sometimes in exchange for sex. In 2002, you began working for a local dentist, but claim that you were the subject of an attempted sexual assault, which brought that employment to an end in 2006. You then became engaged to a woman, but after some five years, the relationship broke down. By 2007, you had become a regular user of illicit drugs and were also heavily dependent upon alcohol. You moved between Queensland and Hobart, and, at some point, became close to a woman called Luci, who asked whether you would donate your sperm so that she could have a child. You are the biological father of an 10 year old son and claim to have a good relationship with him and his mother.
[5]“MFI-1”
18In 2010, you moved to Melbourne and began work with the Asthma Foundation and remained in such employment until recently.
19Tendered on your behalf was a report of an assessment conducted of you by Mr Patrick Newton, clinical and forensic psychologist, dated 21 February 2022.[6] He took a history of your violent abusive childhood, unhappy time at school and alleged multiple sexual assaults since you were a child. Mr Newton recorded that you engaged in acts of self harm by cutting yourself from about age 14 and suffered recurrent episodes of depression since 2008, for which you claim to have been prescribed the antidepressant, Zoloft, in 2008, 2014, 2018 and 2019. You told him that you had made a number of suicide attempts by overdosing, cutting your wrists or trying to swim out to sea, the most recent of which was in August 2020. You stated that you were currently prescribed the antidepressant, Effexor, by your psychiatrist. I here interpolate that the court was not provided with any records relating to your alleged prior acts of self-harm or treatment for recurrent episodes of depression. Nor was any report from a treating psychiatrist (other than a very brief, recent one[7]) or records from any hospital or other healthcare service tendered in relation to any suicide attempts by you.
[6]Exhibit “1”
[7]Exhibit “6”, Report of Dr Akinbiyi, dated 26 February 2022.
20You reported to Mr Newton that you had a significant history of alcohol and drug abuse. You stated that you were an alcoholic who would drink a bottle of vodka every day, but regarded yourself as powerless to change your drinking behaviour despite your participation in counselling. You described having used cannabis on a regular basis between the age of 18 and 38, MDMA in the context of clubbing, and GHB in the context of sexual exploits, as well as cocaine in recent years. However, you were adamant that you had ceased all drug use since last year and that you were actively engaged with drug counselling. (This appears to be a reference to 10 sessions of counselling from Odyssey House between August 2021 and February 2022.[8]) I also note that Mr Newton understood that you had no prior criminal history, which is not correct.

[8]Exhibit “4”, Report from Molly Woodford, A+D Clinic, Odyssey House, 17 February 2023.
21It is of some concern that, notwithstanding that this matter proceeded on the basis that the Prosecution Opening contained an agreed statement of facts, you told Mr Newton that “there is a lot of stuff in the police report that I just didn’t do”. You maintained that your offending arose out of the breakdown of your relationship with Adrian and the harassment and stalking that you received from Nicole. In short, you paint yourself as the victim and Nicole as the perpetrator. You told Mr Newton “I tried to separate [Nicole] and [Adrian] to try and save him.”[9] Mr Newton noted that your “reflections on (your) conduct were self-focussed. While (you) expressed some disquiet about the impact of (your) actions, this was confined to Mr [Sinclair]. (You) did not express empathy for the other complainants”. “(You) repeatedly stressed the emotional turmoil you had experienced, the harassment which had ‘provoked’ (your) conduct and the ongoing impacts of this prosecution in your life.”[10]
[9]Exhibit “1” page 8, para 36.
[10]Exhibit “1” page 10, para 42.
22Mr Newton noted that you had a “somewhat hyperbolic presentation”, [11] but thought your current symptoms meet the DSM‑5 criteria for a recurrent Major Depressive Disorder of moderate severity and that it is highly likely that you were experiencing a level of depressive symptoms at the time of your offending conduct, which would have had an adverse effect upon your mental state, including your ability to think clearly, make appropriate decisions and exercise sound judgment. However, he also noted that these effects would have been exacerbated by your personality dysfunction and your consumption of alcohol and other drugs. He noted that you had continued to work throughout the period of the offending and that your offending required a significant degree of planning and effort to avoid detection, and skill to be executed. Given those circumstances, he considered that the effect of your symptoms of depression would have been relatively mild.
[11]Exhibit “1” page 9 para 38.
23He assessed you as suffering from prominent dysfunctional personality traits, which have their origins in your unstable childhood and have been reinforced by recurrent experiences of sexual violence. He assessed your capacity for interpersonal intimacy and attachment to be at an adolescent stage of development, noting that you were deeply insecure, struggled to form secure connections, were in almost a constant state of anxiety about the security of your relationships and feared abandonment. He considered that, although you turn your emotional distress outward, you also turn it upon yourself in the form of recurrent self-harming behaviour. When you turn your emotional distress outwards, you are likely to be at heightened risk of displaying the types of behaviour which have brought you before the Court, which carry distressing and problematic risks for others. When you turn it upon yourself, you are at elevated risk of suicide and self-harm because of the distress and hopelessness your feel. He considered that you suffer a Borderline Personality Disorder which presents with prominent narcissistic features, and that your intense self-focus and distress limits your capacity for empathy towards others and compromises the development of your remorse for this offending. Also, your Borderline Personality Disorder renders your Depressive Disorder more difficult to treat and exacerbates your substance-related problems. He stated that “it also markedly elevates (your) risk for further ‘acting out’ in the context of (your) interpersonal relationships and, hence, for further forensic involvement.” [12] He considered that you needed Dialectical Behaviour Therapy.
[12]Exhibit “1”, page 12, para 51.
24Mr Newton is also of the opinion that you meet the DSM-5 criteria for Alcohol Use Disorder of at least moderate intensity and that this exacerbates your other mental health challenges, and also constitutes a profound criminogenic risk factor. In addition, you have a Substance Use Disorder of at least moderate intensity as defined by DSM‑5, albeit in early remission.
25Mr Newton stated that, applying the screening assessment for stalking and harassment, you fall in the moderate to high concern range. He considered that your behaviour manifested multiple characteristics which are associated with an increased risk of further stalking behaviour and that these are intensified by your unstable mental health and your chronic and continuing abuse of alcohol. Further, the concern he had about your behaviour was magnified by your lack of insight and your persistence in giving an exculpatory narrative that places responsibility for your conduct on the complainants.
26Finally, Mr Newton considered that you would be a relatively vulnerable prisoner because of your diverse sexuality, pre-existing emotional distress and complex mental health needs and personality dysfunction, which would likely attract adverse attention from other prisoners. He also thought it important to ensure that you are protected from impulsive acts of self-harm and, opined that, overall, your experience of imprisonment was likely to be rather more onerous than would be typical for prisoners who did not suffer your challenges and problems.
27The assessment of you by Mr Newton came after an earlier assessment conducted in June 2021 by Ms Gina Cidoni, psychologist, who had provided a report dated 18 June 2021 in support of your bail application.
28She had considered that you suffered from some sort of personality disorder, Alcohol Use Disorder, Major Depression which was recurrent and severe, Post-Traumatic Stress Disorder and Adjustment Disorder. I note that Mr Newton did not diagnosis either Post-Traumatic Stress Disorder or an Adjustment Disorder.
29Ms Cidoni had noted that your personality profile suggested that you were depressive, fearful, socially anxious, self-pitying and pessimistic. She stated that you “may feel vulnerable and depressed if (you) cannot turn to others for support. To ensure the security (you) seek, (you) may place (yourself) in inferior positions and permit others to exploit (you)”.[13] I note that your offending shows the reverse of this. Far from permitting others to exploit you, you exploited your victims, shamefully pretending to be their friend and, in particular, to offer comfort and solace to Adrian for his distress over the very actions that were clandestinely perpetrated by you.
[13]Exhibit “2” page 5, para 49.
30In relation to your Major Depressive Disorder, Ms Cidoni stated that you hesitate to display anger or resentment for fear that it will precipitate rejection which you dread. She stated “Instead (you) have a tendency to turn (your) hostilities inward, thus contributing intropunitively to self-deprecation, thoughts of death, guilt and feelings of unworthiness. Filled with self-pity, feelings of emptiness and apprehension, a sensitivity to humiliation and a pervasive pessimism, (you) see little to brighten (your) chronic depressive mood.”[14] Contrary to Ms Cidoni’s opinion, your offending behaviour demonstrates that, far from turning your hostilities inward, you persistently and deviously perpetrated acts which were part of a sustained campaign by you to try and undermine Adrian and Nicole’s relationship with each other, and their relationship with all those close to them.
[14]Exhibit “2” page 6, para 56.
31Like Mr Newton, Ms Cidoni noted that personality disorders typically involve difficulty in connecting emotionally with others and an inability to appreciate the emotional components of behaviour which can give rise to problems with self-control and personal relationships. She stated that these difficulties form the core of personality disorders and provide a causal connection for your offending. She considered that you required psychotherapy, including Dialectical Behaviour Therapy and Cognitive Therapy, to assist with your emotional regulation and impulsivity. She also thought that you need trauma focused interventions, as well as intensive alcohol and drug treatment to assist with alcohol abuse. However, like Mr Newton, she considered that there is a barrier to treatment, as people with personality disorders have pervasive problems in getting along with others in many contexts, including psychologists and other therapists.
32Ms Cidoni and Mr Newton had each noted that, notwithstanding that you had reported a long history of emotional and behavioural instability and recurrent depression since 2008, you had only sporadically engaged in mental health treatment, having attended general practitioners in 2008, 2014, 2018 and 2019, and had been prescribed Zoloft. Mr Newton also noted that your compliance with medication had been haphazard and you had regularly combined it with alcohol and other drugs, thus limiting its efficacy.[15] No records from any general practitioner detailing a history of mental health problems and prescription of this medication was provided to the court.
[15]Exhibit “1”, page 7, paragraph 31
33As described by both Mr Newton and Ms Cidoni, you have a self-pitying side to your nature which you seem to use to justify your behaviour. A reference tendered on your behalf [16] refers to you having many problems in the lead up to your arrest. including “attempts to bait your animals and terrible graffiti”. These same matters are referred to in Mr Newton’s report. You continue to blame your victim, Nicole, for harassing you. You present with no remorse for what you did to Nicole, and claim it was necessary to get an Intervention Order against her.
[16]Reference from Kym Barlin dated 10 February 2022, part of Exhibit “11”.
34Notwithstanding that your sister stated in her reference that, “since (your) time in remand at Heidelberg Police Station”, you had demonstrated contrition and remorse, I see no reference to any contrition on your behalf in the report of Ms Cidoni, who interviewed and assessed you twice (on 11 and 18 June 2021) shortly after you had been taken into custody. Your Counsel did note that Ms Cidoni’s report had been prepared for your application for bail, whereas Mr Newton’s report was prepared in anticipation of the plea hearing.

35I must say that I have had considerable difficulty in determining the issue of what, if any, of your mental impairments existed at the time of committing the crimes to which you have pleaded guilty and what, if any, connection exists between any mental impairment and your offending behaviour. This difficulty has arisen because the various diagnoses are largely reliant upon your self-report. My view of you, based on all of the material before the Court, is that you are a practised liar and, when not necessarily lying, are prone to give, what Mr Newton somewhat euphemistically describes as, a “hyperbolic narrative of [your] circumstances”.[17] In other words, you are prone to exaggerate. You have narcissistic traits, which make your version of events very self-focused so that they demonstrate little, if any, appreciation of the impact that your conduct has upon others.
[17]Exhibit 1, page 3, paragraph [10]
36The histories given to various health professionals exhibit a great deal of self-justification and self-pity. You are an unreliable historian. For example, Mr Newton stated that your recollections of childhood were overshadowed by repeated acts of abuse which reportedly occurred throughout your early years, as your father had been prone to drink heavily and was violent when drunk. However, you also told him that your parents had separated when you were aged about three and you went to live with your mother’s six sisters and your grandmother. You told Ms Cidoni that your father was in the navy, and an alcoholic, and you typically saw him every two years for one week until age fourteen. You told Mr Newton that, when your mother re-partnered, you were about five and the family relocated to Cairns from 1987 to 1989 and that “[your] stepfather had ‘not been able to cope with’ [your] non-binary identity and had ‘wanted to make a man out of [you]’”. To this end, he reportedly inflicted harsh physical punishments upon you and, on your account “this maltreatment escalated as [you] entered [your] teenage years”. I here interpolate that between 1987 and 1989, you would have been aged between four or five years and seven years, and it would be very surprising, indeed, if you had identified as being “non-binary” at such an early age prior to puberty.
37You stated to Ms Cidoni that, at age six, you were raped on one occasion by your swimming coach.[18] You told Mr Newton, “that it had involved oral and anal penetration”.[19] However, you had instructed your counsel that this involved “forcing oral sex”.[20]
[18]Exhibit 2, page 3, paragraph [30]
[19]Exhibit 1, page 6, paragraph [25]
[20]Outline of Submissions, 23 February 2023, marked for identification – 1, paragraph [9]
38You told Ms Cidoni that you had been molested by your mother’s brother-in-law for two years,[21] but told Mr Newton it was over some four years, between the ages eight and twelve, and it involved various forms of penetrative abuse.[22] Your counsel’s submissions refer to you having been groomed by this uncle and then abused over a period of four to five years.[23] The reference from your sister, Ms Driscoll, dated 5 February 2022, stated that: “It has recently been disclosed by [you] that often during [your] time with Aunty Sue, if left alone with her husband, Ray, [you] would be inappropriately touched under the guise of ‘tickling’ in [your] genital area”.[24]   Your sister did not mention any alleged penetrative offending.
[21]Exhibit 2, page 3, paragraph [31]
[22]Exhibit 1, page 6, paragraph [26]
[23]Marked for identification – 1, paragraph [10]
[24]Part of Exhibit “11”
39Your counsel’s written submissions refer to you having been the subject of an attempted (my emphasis) sexual assault by your employer, a local dentist, in 2006.[25] Ms Cidoni had recorded this as an actual sexual assault, rather than an attempt,[26] as did Mr Newton.[27] Ms Ottaway, in her reference, refers to you being “raped as an adult” and Ms Sun-Ho refers to you being “raped by [your] boss at the age of 23”, both of whom claim this was a contributing factor to your alcohol abuse,[28] but neither of them reveal when they became aware of such alleged rape. Your sister’s reference makes no mention specifically of this alleged offending by your employer. She does state that she is aware of “occasions of sexual abuse by at least three different trusted adults at different ages”. [29]   However, she does not state when she became aware of this information, except for the alleged offending by your step-father which was “recently discovered”. Mr Newton had noted that none of the alleged offending against you had been reported to the police. Although, I interpolate that courts understand this can often be the case. Your counsel’s written submissions state that the alleged abuse by your uncle “had been reported to police with the help of CASA more recently”.[30] It is unclear why such report would have been made to police now if, as you told Ms Cidoni, that this uncle “is recently deceased”[31] as no prosecution could be brought.
[25]Marked for identification – paragraph [15]
[26]Exhibit “2”, pages 2-3, paragraphs [17] and [24]
[27]Exhibit “1”, page 6, page 28
[28]Both references are part of Exhibit “11”
[29]Part of Exhibit “11”
[30]        MFI-1, paragraph “10”.
[31]        Exhibit “2”, page 3 paragraph 31.
40The concerns I have about the reliability of your histories given to the psychologists also apply, in part, to what is revealed in a number of the references tendered on your behalf as Exhibit “11”. One jointly authored by Michele Goldman, the CEO, and Michael Jones, Company Secretary, of Asthma Australia dated 2 February 2022, stated that you had been diagnosed with bowel cancer in recent years, however, there is no evidence of this before the court. The reference states that you had been “forthcoming” with the organisation about your offending. However, astonishingly, it refers to “some slanderous messages” about you which were received by Asthma Australia from persons unknown and which you found to be stressful and embarrassing. The authors do not appear to be aware, as stated in paragraph 64 of the Prosecution Opening, that you sent these self-defamatory messages to yourself at your workplace.
41Another reference is from Kym Barlin, the former General Manager of Asthma Australia, who also speaks of your high standard of work in a very responsible job, and the fact that you were nominated for staff awards during the time that she worked with you as your manager and beyond that time, up until November 2021, when she left Asthma Australia. She states that you were known to be reliable, trustworthy, hardworking, honest and a person of high integrity. She also states that, despite hardships throughout your life, you continue to help and support others, and refers to you adopting a young boy. There is no evidence before the Court that you have ever adopted a child. I note that Ms Barlin also refers to your struggles as “a once married man with a son and your journey to come out as a gay, bisexual man”. There is no evidence that you were ever married. You were presented to the court as someone who had known that you were of non-binary sexuality since you were very young.
42Further, some of the references suggest that your relationship with your “fiancé”, Brendan Reece, came to an end because of this offending. You told Ms Cidoni that you had asked Brendan to move out in November 2019.[32] Also, Mr Newton recorded that you “told (him) that (your) relationship with Mr Reece had ended in the context of complications (caused) by (your) relationship with Mr [Adrian Sinclair].” [33] The agreed facts in the Prosecution Opening are that, within three weeks of you inviting the recently turned 16 year old Adrian to come and live with you, you began a sexual relationship with him. This was whilst you were still in a sexual relationship with Brendan Reece.
[32]Exhibit “2” page 3, para 20.
[33]Exhibit “1” page 5, para 19.
43Your sister and your mother have corroborated violent behaviour to which you were exposed and subjected by your natural father,[34] as well as harsh treatment from your mother’s new partner, albeit that in her reference, your sister stated that you ultimately ended up having a very close relationship with him in adulthood. As mentioned, your sister also corroborated some inappropriate genital touching by an uncle who tickled you, but it is hard to know about the nature and extent of other alleged traumatic occurrences which rely solely upon your self-report. There is no material from your mother or sister to the effect that they were aware of suicide attempts by you at age 14, 20 or, as recently as 2020 as you told Ms Cidoni and Mr Newton. Nor are these factors mentioned in the written submissions of your counsel.
[34]See offender’s mother’s report to Ms Cidoni, Exhibit 2, page 2, paragraph [13]
44The picture is complicated by you having been a serious long-time abuser of alcohol and, at times, illicit drugs. Also, as already mentioned, the Court has not been assisted by being provided with any reports of treatment of your mental health by medical or allied health professionals whom you allegedly saw prior to this offending. I here note that you told your case manager, at the Court Integrated Services Program, (“CISP”) that you had first begun drinking alcohol at the age of 14 and your consumption has been at a high level for much of your life. By your late twenties you would consume up to three quarters of a bottle of spirits daily and this increased during your thirties to up to twelve beers and a bottle of spirits daily.[35] You also reported to your case manager that you self-harm when you are significantly intoxicated.

[35]Report from Court Integrated Services Program dated 24 August 2021, page 3, part of Exhibit “3”.
45I accept that you have suffered childhood trauma, and also bullying at school relating to your sexual identity, and some sexual assault from an uncle during periods of tickling, albeit for an indeterminate period of time. I accept that the rejection by your father and the apparent non-acceptance of you by your stepfather as you were growing up, coupled with the distress which you suffered while endeavouring to sort out your own sexual identity, has probably contributed to the development of a Borderline Personality Disorder and, that such disorder, in accordance with the view of Mr Newton, has resulted in deep insecurity and a struggle to form secure connections and a fear of abandonment, which is linked to your offending behaviour. The law does recognise that exposure to trauma and rejection during the crucial formative years of childhood and adolescence, when the human brain is still developing, can result in long-term harm. However, you have also been a long-term abuser of alcohol and illicit drugs.
46The existence of your Borderline Personality Disorder, which Mr Newton notes has prominent narcissistic features and can be classified as “Rejected Stalking”, should attract some diminution of your moral culpability for this offending. However, this same disorder also causes me to have very real concerns about your prospects of rehabilitation. Mr Newton states that these features of your personality are pervasive and stable and result in severe impairment of your identity, capacity for interpersonal interaction, emotional regulation and psychological function.[36] He states that you lack insight into your behaviour and persist in an exculpatory narrative that places responsibility for your conduct on the complainants.[37] Thus, Mr Newton assessed you as falling in the moderate to high concern range for risk of recidivism associated with stalking behaviour. Indeed, he said the risk was intensified by your otherwise unstable mental health (depression) and your chronic and continuing abuse of alcohol.[38] He assessed your recurrent Major Depressive Disorder as being of moderate level, with relatively-mild effects, but noted that your Alcohol Use Disorder was of at least moderate intensity and exacerbates your other mental health challenges, and you also suffered a Substance Use Disorder of moderate intensity relating to use of illicit drugs, most notably cannabis, but also GHB, cocaine and MDMA.
[36]Exhibit “1”, page 12, paragraph [50]
[37](Ibid) page 13, paragraph [58]
[38](Ibid) page 13, paragraph [57]-[58]
47Although I am not satisfied on the balance of probabilities of Ms Cidoni’s diagnosis that you suffer Post-Traumatic Stress Disorder (which was not endorsed by Mr Newton), she supports, in general terms, that a personality disorder, with its attendant difficulties of connecting emotionally with others can provide a causal connection to your offending because, by their nature, such disorders result in abnormal and maladaptive inner experiences and behaviour. She also notes that these same traits can be a barrier to treatment.[39]
[39] Exhibit “1”, page 8, paragraphs 67 and 69.
48I do not doubt that you have had a sad and troubled upbringing which has caused you enduring distress, and that navigating your way through adolescence trying to come to terms with your non-binary sexual identity must have been very hard, particularly at a time when the community was not as educated about the complexities of sexual identity as now is the case.
49I have accepted that the trauma of your background has led to the development of a Borderline Personality Disorder, and I accept that this has probably been accompanied by depression. However, you have not assisted yourself by seeking any sustained medical or psychological or psychiatric assistance until well after you were charged with this serious offending. Indeed, if your history to Mr Newton is to be accepted, your compliance with anti-depressant medication was haphazard, and you regularly combined it with alcohol and other drugs so that it was not effective. He had recorded that, back in 2020, you had attempted suicide by taking an overdose, but discharged yourself after an overnight admission. Whilst under case management from the CISP you had indicated that you had attended a psychologist four years ago, but were not “treatment ready” and disengaged after one appointment.[40]
[40] CISP report dated 24 August 2021 page 4, Part of Exhibit 3.
50Whilst the existence of a Borderline Personality Disorder which does have a causal connection to your offending should be acknowledged as something which reduces your moral culpability, I have determined that that reduction should not be of significant magnitude. Unlike the offender in DPP v O’Neill,[41] your offending behaviour was premeditated, vindictive, and gratuitous. It did not occur impulsively as a result of an explosive fit of rage in response to humiliating remarks from a victim. The psychological evidence before me is not of comparable weight to the evidence in that case. Your offending against your victims and, indeed, members of their families, was very intricately planned and calculated to deeply disturb and hurt your victims. It was also very persistent, pervasive and protracted, over a period of almost a year. It was deliberately cruel, malicious, defamatory, and of an insidious nature, because your primary victims simply had no idea of the identity of the perpetrator or the reasons for the harmful acts which were being visited upon them in multiple different ways to erode their sense of self, security, relationships with each other and with friends and family and their reputations. There was nothing spontaneous or impulsive about your offending behaviour.
[41][2015] VSCA 325
51All the while, you purported to be their friend and to empathise with the distress they were being caused by this unknown perpetrator. The duplicitousness nature of your behaviour is breathtaking, as is the variety and extent of the many elaborately-planned, Machiavellian and malicious acts committed by you to their detriment. There was virtually no part of the lives of Adrian and Nicole into which you did not intrude. You tried to make them mistrustful of each other. You poisoned the relationship with their housemate so that she moved out. You invaded their home and, in particular, their bedrooms, in a disturbing way so that they felt that they were under constant surveillance and ultimately changed their address. You maligned their character and behaviour on both social media and in messages to their family and friends in a way that was calculated to cause those closest to them to be wary of trusting them.
52Your counsel and referees have urged that you should be given credit for your community minded work concerned with animal welfare, yet you stole the dogs of your victims and took them to a shelter, falsely claiming that they had been abandoned by a person with Nicole’s identification details. While pretending to be a friend to Adrian and Nicole, you were maliciously white-anting their existence from almost every angle, even to the point of telephoning their place of work purporting to be a police officer so as to arouse suspicions about them. You seriously defamed Adrian on his Tinder account, as well as making false reports to police about Nicole harassing you and, even now you refuse to resile from the latter.
53Victim Impact Statements filed with the Court on behalf of Adrian, Nicole, and each of their mothers, paint a graphic picture of the devastating impact of your prolonged, insidious, vindictive behaviour.
54Both Adrian and Nicole speak of the impact of your clandestine stalking as causing them to question their sanity and to feel very afraid and unsafe in their own home, such that they would ensure that weapons were close at hand, because they did not know what this mysterious stalker was capable of. They speak of the involvement of police and their distress at feeling that they were not being believed, and how their mental health deteriorated, and the wedge that you inserted in their relationships with family and friends caused them to become isolated.
55Nicole and Adrian each suffer ongoing detrimental effects to this day, needing assistance to try to deal with the serious adverse impact of your conduct, which Nicole describes as having felt “like a constant overlooking energy, a darkness that was coming from somewhere”, which caused them to feel powerless and not know who to trust.
56Adrian states:
“Brendon knew more than anyone how it was affecting me. Through it all he was pretending to be my support. All these horrible, scary things were happening, and I was believing the stalker was everyone else. He would tell me I could trust him. He saw how distressed I was all the time, how much I ended up not caring about life. I didn’t want vengeance, I just wanted it to stop. But he just kept on. Kept isolating me, trying to break me. I think he wanted me to be entirely dependent on him. He is very controlling, very manipulative.”

Adrian goes on to refer to you hacking and locking him out of his social media accounts, the host of lies and false messages from fake accounts and fake emails, and the fact that your “web was so complicated”, such that he ended up with harmful self-coping strategies just to survive, an eating disorder, and is still struggling.
57Nicole describes her distress after she and Adrian felt compelled to move out of their house and then learning that you had tried to find out where she was by calling her grandmother. She states that she feared that she would forever be controlled or manipulated. She states that you were such a smart person, playing a game, so confident that you would get away with it, that you could do anything and no one would believe it was you, even to the point of succeeding in obtaining an Intervention Order against her. She describes your offending conduct as follows:
“It’s such an abuse of power. Saying you’re a friend, that you’re helping. When we hung out, he was so grounded and level headed. But then [would] switch and do things behind your back. It’s so hard to then think of him behind it all, he was like two completely different people. He knew these things and he did them to scare me... He was fully aware of how it was impacting me, but had no compassion or empathy.”[42]
[42]See Exhibits “C” and “D”

58Adrian’s mother, in her Victim Impact Statement, refers to how she could see Adrian becoming more isolated and struggling mentally, which, in turn, adversely affected her mental health. She describes how, when the acts of stalking became physical, as distinct from being done from behind a computer, she became very frightened for Adrian and Nicole, as well as for the rest of her family. She describes how alarmed she was when the stalker took away the family dogs and then made phone calls where she worked as a manager and had obtained employment for Adrian and Nicole. She describes the erosion of her sense of security and the need to install a security-camera system at her home, the immense emotional and physical impact that this serious offending has had upon her, and how she still requires counselling and assistance because of it.[43]
[43]Exhibit “E”
59Nicole’s mother in her Victim Impact Statement describes her grief at seeing the daughter who was part of their close-knit family become almost lost to them, and her distress at receiving the first anonymous email headed “[Nicole] has been arrested”, and subsequent pernicious pieces of information about Adrian. She states that your clever technological knowledge and capacity to get to her digitally made her paranoid, and she and other members of the family have needed counselling. She states that she still looks twice at any red Mazda SUV, wondering if it is you and what other twisted manipulative games you might try to play. She states that you pretended to be everyone’s friend, and yet tortured her, Nicole, and Adrian, with secret attacks to try to isolate and control Nicole and her so that you could keep Adrian to yourself. She describes the impact as heart-breaking.[44]
[44]Exhibit “F”
60Your stalking behaviour is of a grave nature. It appears that you were obsessed with wanting to be in a relationship with Adrian and simply could not accept that this is not what he wanted. You persisted in your menacing conduct designed to isolate and terrify Adrian and Nicole for almost a year. This culminated in you actually making an application for an Intervention Order against Nicole based on fake messages created by you. You physically attended Werribee Magistrates’ Court and falsely declared that the contents of your application were true and correct. Then, on 14 May 2021, you participated in a court hearing at Werribee Magistrates’ Court via Webex and gave false sworn evidence about Nicole’s behaviour. This resulted in an interim Intervention Order being granted against her in favour of yourself. You even followed it up with a report to the police that Nicole had breached the Intervention Order. This conduct is seriously brazen and shows the extent to which you were prepared to go to try to harm Nicole.
61Committing perjury undermines the system of criminal justice upon which all citizens are entitled to rely to preserve rights in our democratic society. You appear to have been so consumed by your campaign of malicious behaviour that you did not care about the law, coming as this behaviour did on top of you having already impersonated a police officer in the emails which form part of your stalking behaviour.
62In sentencing you there must be denunciation of your conduct, and emphasis upon general deterrence. Through sentencing you, the Court must let others know that this sort of perverse campaign of terror, apparently motivated by jealousy over Nicole having a relationship with Adrian, will not be tolerated. The fact that you engaged in repeated devious acts of stalking and then the acts of perjury means that there must also be emphasis upon specific deterrence. Indeed, your prior offending involved fraudulent behaviour and the most serious offending, in 2011, which attracted a prison sentence (albeit suspended) was for computer-related fraud. You had no qualms, again, in using your IT skills to harm your victims in this case.
63Unhappily, stalking and anti-social offending against former intimate partners is common. Every person has the right to end a relationship, and former partners of that person need to realise that they do not own the person, and offending by way of revenge, or attempts to intimidate or malign the reputation of that person, their new partner, or family members, will be meet with just punishment.
64In sentencing you, I take into account the following matters in your favour:
(a)   Your traumatic background of abuse, depression, and Borderline Personality Disorder, albeit, for reasons that I have stated, the mitigatory effect of these factors upon your moral culpability should be only moderate.
(b)   Your early indication of an intention to plead guilty to the indictable offences. These pleas have utilitarian value in that they have saved you victims having to relive their harrowing experiences by giving evidence at a committal and trial. Given that you indicated your intention to plead guilty at a time when pandemic restrictions made the conduct of criminal trials in the state of Victoria very difficult, your pleas have added utilitarian value by facilitating the course of justice and not adding another trial to the already congested trial list.[45] I have indicated that I do not regard your pleas as remorseful in the light of your continued victim-blaming but, in fairness, note Mr Newton’s comment that your personality type and focus upon your own distress limits your capacity for empathy towards others and compromises the development of remorse for your offending.[46]
[45]Worboyes v The Queen [2021] VSCA 169
[46]Exhibit “1”, page 12, para 49.
(c)   Prior to being granted bail on 22 June 2021, you were assessed as suitable for case management by the CISP and engaged with that program by telephone from shortly after being bailed until 25 February 2022. You cooperated with a number of suggestions and referrals by your CISP case management during that time.
(d)   Between 19 August 2021 and 20 February 2022, you underwent ten counselling sessions for drug and alcohol abuse from Ms Molly Woolford at Odyssey House. These, like the CISP supervision, were by telephone during the restrictions of the pandemic.
(e)   On 15 July 2021, you were assessed for counselling by WestCASA in relation to your alleged childhood and adult sexual abuse. Between 3 November 2021 and 23 February 2023, you attended eighteen counselling sessions for such abuse. A report from WestCASA, dated 27 February 2023, stated that you had completed a full episode of care and successfully achieved your counselling goals with WestCASA.[47]
(f)    In June 2021, you went to your general practitioner to obtain a mental health care plan and were referred to Wallace Avenue Specialist Suites. There, you had a medication review, undertaken by a psychiatrist, Dr Akinsola Akinbiyi, in relation to your conditions of Major Depressive Disorder, Borderline Personality Disorder and Substance Use Disorder. A letter from Dr Akinbiyi, dated 26 February 2022, notes that you were prescribed Effexor XR, 75 milligrams daily, for depression and were to see a psychiatrist every three months. [48] Although it has not been made plain whether this occurred, you did apparently have the support of a specialist mental health care nurse, Mr Godwin, for some time, the nature and length of which is not apparent from the tendered material.
(g)   Under the Medicare Better Access Scheme you attended a psychologist, Prajakta Deshpande, for 10 session of Dialectical Behaviour Therapy from June 2022.[49] You are said to have engaged consistently and reflectively, but the clinician commented that you would benefit from further sessions.
(h)   In August 2022, your solicitor referred you to the Problem Behaviour Program run by Forensicare. This is a program which addresses behaviours, including stalking, for which services may not be available elsewhere. You attended nine treatment sessions there between 4 August 2022 and 2 February 2023. Unfortunately, the brief reports tendered from this program only make it clear that you attended, but do not comment upon your progress in relation to acknowledging, understanding and rehabilitating yourself from stalking behaviour. [50]
(i)    Between 4 August 2022 and 2 March 2023, you attended Thorne Harbour Health, initially for an assessment and, then, to undertake the “ReVisioning” group sessions via Zoom. This program is apparently designed to address the issue of BGTIQ male-identifying people who deny others the right to live their lives freely and safely by having used violent or controlling behaviours towards a partner or family member. You attended the minimum of twenty sessions necessary to complete the program, as well as a further five sessions. Unfortunately, the two brief reports from this organisation do not state what, if any, progress has been made by you. Indeed, the report dated 29 November 2022, acknowledges that the program is a long one and participation is in no way predictive of positive change. It states that, although there is evidence that men can, and do, modify their controlling behaviour, research over the longer term demonstrates that it is exceedingly difficult to predict which men will sustain positive change, or for how long.[51]

(j)    You have a good work history. In particular, you have been employed with the Asthma Foundation/Asthma Australia since 2011 and two references have attested to the high standard of you work and how well you are regarded by colleagues. It is to your credit that you returned to this employment after your release into the community on bail and remained working there until shortly before your plea hearing.
(k)   You have demonstrated loyalty to some friends, like Ms Ottaway and Ms Sun-Ho, who provided references attesting to your kindness and volunteer work, with Wildlife Victoria, caring for sick and injured wildlife. However, I have difficulty in accepting their opinions that you are remorseful for your offending in the light of your persistent narrative that you are a victim and Nicole is a perpetrator.
(l)    You have the ongoing support of your mother and older sister both of whom reside out of Victoria, unfortunately. Within Victoria, you have support from people with whom you used to work at Asthma Australia.
[47]Exhibit “5”
[48]Exhibit “6”
[49]Undated report of Prajakta Deshpande, Exhibit “10”.
[50]Exhibit “7” and Exhibit “8”
[51]Exhibit “9”
65Although you are to be given credit for engaging in a variety of treatment programs after your release from custody, they are all very recent. You told both Ms Cidoni and Mr Newton that you had suffered longstanding depression and alcohol abuse problems, and a number of suicide attempts over the years. Unfortunately, for an apparently intelligent person who functioned well in the workplace, you showed no real insight into your own psychological dysfunction and your problematic abuse of illicit drugs and very heavy abuse of alcohol. The histories which you gave to both Ms Cidoni and Mr Newton reveal a very self-focused person who seemed to have very little ability to perceive the impact of your behaviour upon others. These personality traits and mindset have become seriously entrenched and carry with them their own barriers to effective treatment because you have difficulty establishing a rapport with others, but also because you are an unreliable historian and are not always honest.
66With the encouragement of the CISP program and your own legal advisers, you embarked on several treatment programs after you were released on bail. However nowhere in any of the reports of such treatment is an assessment of your current insight into your offending behaviour which could give the Court some degree of comfortable satisfaction about your prospects of rehabilitation. Perhaps you have gained some knowledge about yourself which will assist you, but I find it hard to believe that 10 sessions of Dialectical Behaviour Therapy since June 2022 conducted by Prajakta Deshpande, could be other than a beginning of this rehabilitative treatment. As mentioned, Mr Newton assessed you as falling in the moderate-high concern range for further stalking noting your long term multiplicity of issues, but particularly that your personality disorder rendered your stalking considerably more severe.[52] You have attended 9 sessions of the Problem Behaviour program, and 25 sessions of a Men’s Behaviour Program, but I simply do not know the current state of your insight into your criminal behaviour and whether you have altered your self exculpatory explanations for it.
[52]Exhibit “1”, pages 15-16, paragraphs 8, 13
67It is to your credit that you engaged with some treatment from Odyssey House. However, again, 10 counselling sessions by telephone in the context of your very long-term and heavy substance abuse issues could only sensibly be regarded as the start of a long journey to address these difficult problems. You apparently have made some personal gains in terms of addressing personal trauma relating to sexual abuse and have also been compliant with anti-depressant medication to stabilise your mood. However, I consider that you have a long way to go in your rehabilitation. At present, you must be regarded as being at risk of further similar offending, particularly if you develop an obsessive attachment to someone whom you perceive as being ungrateful or disloyal. Thus, in sentencing you, I must be mindful of the need to protect the community, as it is difficult to gauge from the relatively brief reports of your attendance at rehabilitative programs what the nature and extent of any progress by you has been. The material leads me to be guarded concerning your prospects of rehabilitation.
68In arriving at the sentence which I intend to impose, I am mindful that you found your earlier time in custody to be very difficult, having never before spent time in custody. I have heeded Mr Newton’s opinion that you are likely to be a vulnerable prisoner because of your non-binary sexual identity, your mental health issues, and your personality dysfunction, which may make you at increased risk of attracting adverse attention from other prisoners. I am mindful that, in the past, you have committed acts of self-harm and been suicidal, and I take into account that all of these factors are likely to make for a more burdensome experience of imprisonment than would be the case for prisoners who do not suffer your complex constellation of problems. I would certainly urge the custody authorities to permit you to engage in further counselling, particularly Dialectical Behaviour Therapy, by videolink, and to closely monitor your mental health and place you in a custodial environment which is as sensitive as possible to your significant psychological and psychiatric needs.
69In sentencing you, I am conscious that, although there are three discrete indictable charges, and there were specific acts of stalking which pertained to either Adrian or Nicole alone, there was also a great deal of your conduct which impacted upon both of them. For this reason, I consider that there should be some concurrency in relation to the sentence imposed on Charge 1 and 2 in order to avoid double punishment. In assigning sentences to those two charges, I have dissected the impact upon Nicole and those close to her of your conduct which comprises Charge 3: perjury. I have taken the distress caused by your false declaration and evidence leading to the Intervention Order into account as part of the circumstances pertaining to Charge 3. However, whilst recognising that it is a discrete offence from stalking, in the interests of totality, I consider that there should be some concurrency allowed in relation to Charge 3 in order to arrive at a just sentence in all the circumstances.
70In relation to the summary charges, whilst it is concerning that anyone should possess explosive fireworks without being licensed, they were stored in a drawer, and there is no evidence of any intention to use them in a dangerous or anti-social way. The other summary charge, possession of throwing stars, I regard as being of minimal seriousness. It is plain that the stars were being used as some sort of decoration on a wall, and there is no evidence that you either had used, or intended to use, them as a weapon.
71On Charge 1, stalking, you are convicted and sentenced to be imprisoned for a period of three years.
72On Charge 2, stalking, you are convicted and sentenced to be imprisoned for a period of three years.
73On Charge 3, perjury, you are convicted and sentenced to be imprisoned for a period of two years.
74The base sentence is that of three years imposed on Charge 1. I direct that 18 months of the sentence imposed on Charge 2, and 12 months of the sentence imposed on Charge 3, be served cumulatively upon the base sentence and upon each other.
75The total effective sentence is thus 5½ years’ imprisonment.
76I direct that you serve a period of 3½ years’ imprisonment before becoming eligible for parole.
77I declare a period of pre-sentence detention of 151 days to be time reckoned as already served under the sentences imposed this day.
78On Summary Charge 12, possession of fireworks, you are convicted and fined $100.
79On Summary Charge 13, possessing a prohibited weapon, you are convicted and discharged.
80Pursuant to s6AAA Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 7 ½ years imprisonment, with a non-parole period of 5 years.
81On the summary charges, I order pursuant to s78(1) of the confiscation Act that the fireworks and throwing stars be forfeited to the state. I direct that they be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date on the conclusion of any appeal proceedings where they may be tested and/or analysed and then destroyed.

[2023] VCC 1178

10 July 2023