Director of Public Prosecutions v Heath (a pseudonym) (No 3)

[2025] ACTSC 426

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Heath (a pseudonym) (No 3)

Citation: 

[2025] ACTSC 426

Hearing Date: 

17 September 2025

Decision Date: 

18 September 2025

Before:

Berman AJ

Decision: 

See [50]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated act of indecency in presence of person under 16 years – aggravated common assault – aggravated choke, suffocate or strangle – aggravated act of indecency without consent – family violence – single instance of offending – jury trial – where acts of indecency not motivated by sexual gratification – offending designed to humiliate and assert dominance over victims – no evidence of remorse – no greater leniency afforded because of intoxication – some accumulation to recognise separate victims – sentence of imprisonment imposed – non-parole period

Legislation Cited:

Family Violence Act 2016 (ACT), ss 11, 32

Parties: 

Director of Public Prosecutions

Greg Heath (a pseudonym) ( Offender)

Representation: 

Counsel

A Hill, E Knaggs ( DPP)

B Harders ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Numbers:

SCC 279 of 2024

SCC 370 of 2024

SCC 371 of 2024

BERMAN AJ:

Introduction

1․On 19 August 2025, after a relatively short trial, a jury found the offender, Greg Heath, guilty of three offences for which I must now sentence him. In addition to the offences found proved by the jury, I am also to sentence him for a transfer charge. The offences all arose out of his behaviour on the evening of 1 April 2024 whilst he was at home with his wife, his stepson, his stepson’s then-partner, and his step-grandson.

2․The offender, a man with no prior convictions, had faced some serious health problems leading up to that night. Most important of these was that a few months earlier, he had suffered a significant heart attack. This left him in a coma for a number of days and in the Intensive Care Unit for a considerable period of time. He was deprived of oxygen for a while. On his release from hospital, he was unable to work. He came to believe that his wife had stolen a considerable amount of money from him and began to drink to excess. He was clearly drunk that evening, which may explain some of his frankly bizarre behaviour that evening.

3․I was able to get a great deal of insight into the way the offender must have behaved when committing the offences for which I must sentence him, because shortly thereafter his behaviour when police arrested him was captured on body-worn camera footage. He was aggressive, abusive, offensive, and obviously intoxicated to a significant degree.

4․He repeatedly told police who arrested him that his wife was stealing his money. This was clearly something of great concern to him and it is likely to have played a significant part in his behaviour earlier that evening. He may well have been right, and thus justifiably concerned about what his wife had been doing with his money. But that does not explain, much less excuse, his offending, which involved two offences committed against his stepson, and two offences committed against his step-grandson.

5․Before I set out the actions of the offender which form the basis of the offences for which I must sentence him, I will note that the offender was found not guilty of an offence of threatening to kill his wife, and its alternative, an offence of threatening to cause her grievous bodily harm. 

6․I have little doubt that the jury’s verdict was an appropriate one in circumstances where the offender’s history of making similar threats, which were not carried out, meant that the prosecution could not prove that the offender had the necessary intention (or recklessness), nor that the threat was made in circumstances in which a reasonable person would fear that the threat would be carried out.  The offender’s history of making empty threats of violence was clearly relevant here. For the purposes of this sentencing exercise I am satisfied that he did threaten harm to his wife, but that he did not intend to carry out the threat.

The facts

Count 1

7․The first offence for which I must sentence the offender is an offence of committing an act of indecency in the presence of a person under the age of 16, in this case his step-grandson, who I will refer to as LL, who was 14 at the time. This was an offence which involved family violence.

8․At one stage during the evening, LL was sitting on a couch in the lounge room. His uncle, the offender’s stepson, who I will refer to as KI, was on another couch. The offender was also sitting down when he pulled down his pants, exposing his penis to LL. The offender shook it and said, “look at this fucking thing”.  It does not appear that this was done by the offender to obtain any sexual gratification; instead, it was apparently done merely for the purpose of humiliating his step-grandson and demonstrating the offender’s power over him.

9․It is important to understand that this is the aggravated form of the offence because, by their verdict, the jury were clearly satisfied that the offender and his step-grandson were in a “family-like” relationship.

Count 2

10․The second offence is an offence of choking, suffocating or strangling the offender’s stepson. Given his health problems, and the comparative youth, size, and mobility of KI, it is surprising that the offender did what he did. It was certainly not a rational thing to do, but as the body-worn camera footage demonstrated, the offender was far from rational that evening.

11․At one stage, the offender told KI he wanted to talk to him in the offender’s bedroom. The offender put KI in a headlock, but KI was able to push the offender off and said, “don’t touch me, that’s a warning”.  In response, after telling KI that he loved him like a son, the offender put both hands around his neck and started squeezing.  The force used was described by KI as an “8 or 9 out of 10” and caused him to need to “get air” and start coughing.  KI was able to knock the offender’s hands away and push him onto the offender’s bed, but not before KI had suffered two scratches to the sides of his neck which were later photographed by police. KI’s then-partner, who I will refer to as FB, saw those scratches and also noted the hoarseness in his voice. She was so concerned for his welfare, that she considered taking him for medical treatment.

12․This was also an offence aggravated by the circumstances, in that it involved family violence.

Count 5

13․The third offence for which I must sentence the offender again involved his step-grandson, LL.  For no apparent reason, the offender slapped LL on his face. The slap was heard by LL’s uncle and his uncle’s then-partner.

14․Not surprisingly, LL was distressed by this. In his evidence-in-chief interview, which took place only a few minutes after he was slapped, LL told police that the slap caused him to cry, and he did in fact cry when telling police what had occurred.

15․Once again, this was the aggravated form of the offence because it involved family violence.

Transfer charge

16․As well as the offences on which the offender was found guilty by a jury, I am to also sentence him for a transfer charge of committing an act of indecency in the presence of his stepson KI. This was also an offence which involved family violence.

17․The offender admitted exposing his penis to his stepson but denied that this amounted to family violence. For the following reasons I am satisfied beyond reasonable doubt that the offence has been proved.

18․The prosecution alleged that the offender exposed his penis to two people, KI and LL. As I have already made clear, the allegation regarding LL was the subject of Count 1 on which the jury found the offender guilty.  That means that the jury were satisfied beyond reasonable doubt that the relationship between LL and the offender was a “family-like” relationship and also that the offender’s act of exposing his penis amounted to “sexual violence, sexual abuse, emotional abuse (which means behaviour which intimidates or is offensive), threatening behaviour, and behaviour that may have caused LL to fear for his safety or wellbeing”.[1]

[1] These words being taken from the elements document which the jury were provided and which the offender’s counsel agreed accurately set out what the prosecution needed to prove.

19․Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the offender’s action in exposing his penis to KI was at least “behaviour” which was “offensive”. Given that KI was the offender’s stepson, and thus the offender was KI’s stepfather (see s 11 of the Family Violence Act 2016 (ACT) (the FV Act)), I am therefore satisfied that what the offender did amounted to “family violence”.

20․It was submitted on the offender’s behalf that:

At most, the conduct could conceivably fall within the definition of section 8(1)(a)(iii) of the FV Act. However, there was no direct evidence adduced from [KI] as to whether he found the behaviour offensive …

21․It is true that no such evidence was given by KI, but given that the test for offensiveness is an objective one, that fact is of little moment. I regard it as clearly offensive for the offender to expose his penis to his stepson as a means of humiliating his step-grandson and demonstrating his power over him.

22․The result is that I convict the offender on the transfer charge and will sentence him accordingly.

Victim Impact Statements

23․The two victims of the offender’s crimes, and the offender’s wife, provided Victim Impact Statements to the court.  Despite some things asserted in the Victim Impact Statements being contrary to the evidence given at trial, what KI and LL say in their Victim Impact Statements are the consequences for them of the offender’s wrongdoing, are entirely to be expected.

24․This was particularly the case for LL. As the evidence in the trial revealed, he was living with his grandmother and the offender because his mother was unable to care for him properly. The home he shared with his grandmother and the offender was thus a place of refuge for him. The offender would have been well aware of the circumstances in which LL came to live with him, which makes his conduct towards LL even more reprehensible.

Subjective features

25․There was little subjective material provided to me for the purposes of this sentencing exercise. This is not meant to be a criticism of the offender’s lawyers. Given the length of time the offender has been remanded in custody, they were justifiably anxious to see that their client was sentenced as soon as possible after the jury’s verdicts. 

26․I was provided with the discharge summary from the Canberra Hospital following the offender’s heart attack. This makes it clear just how close to death he was, and the extent of the treatment he received during his 43 days in hospital.

27․Also tendered were documents from the ACT Civil and Administrative Tribunal. Because of an apparent impairment in decision-making, the offender was made subject to a psychiatric treatment order which was revoked after one month. It appears that the original order was made because of what was then thought to be his delusional belief that his money was being stolen, but that the order was revoked because his belief was later assessed as being based on fact (a circumstance now known as the Martha Mitchell effect).

Consideration

28․It was no part of counsel for the offender, Ms Harders’, submissions that there was a connection between her client’s heart attack and his offending. She does point out however that prior to his heart attack and lengthy stay in hospital, the offender was healthy and employed.

29․She also submits that in circumstances where the relationship between the offender and his wife has clearly broken down, there is little chance that the offender will commit any offences in the future against his wife or any member of her family.

30․Certainly, the evidence in the trial pointed to the relationship being at an end. However, the offender’s frustration at his money being stolen is likely to persist. These offences were committed while the offender was very drunk indeed, and there is no evidence to suggest that the offender will not resume drinking to excess once released from custody.

31․In addition, there is no evidence that the offender is remorseful for what he has done. I am unable to find that he has reflected on what he did and regrets offending against his stepson and step-grandson. There is nothing before me to suggest that if the offender found himself in an angry resentful mood in the future, he would not act in a similar way.

32․For these reasons, any sentence imposed upon the offender must contain an element of personal deterrence, to bring home to him in a very concrete way that, even if drunk and upset at his money being stolen, he must not act in a similar way to the way he behaved on 1 April 2024.

33․General deterrence is important too. Whatever the offender may think about his wife’s behaviour, the victims of the offences for which I will sentence him were his entirely innocent stepson and step-grandson. Each offence involves a form of family violence – something which ordinarily suggests that close attention must be paid to the need to deter others who may be tempted to act in the way the offender did.

34․It is no excuse that the offender was very drunk when he committed these offences. The relationship between drinking to excess and family violence is notorious. Offenders who commit such offences after self-induced intoxication cannot expect leniency simply because they would not have offended if they were sober.

35․As far as Count 1 is concerned, I note that while the offender exposed his penis and told his step grandson to look at it, LL didn’t actually look at the offender’s penis, instead looking away. The period of exposure was brief and there is no suggestion that the penis was erect. The offender’s motivation does not appear to have been to obtain sexual gratification, but instead was designed to humiliate LL, and to demonstrate the power which the offender held over him. It occurred in the victim’s home, and the offender held a significant position of trust over his step-grandson.

36․Count 2 also involved fairly brief conduct, but was sufficient to have caused the offender’s stepson to experience difficulty breathing and to leave obvious scratches on his neck. As I have already mentioned, he was later observed to have a hoarseness in his voice.

37․Count 5 was based on a single slap. But this was much more than a light tap. It was loud enough to be heard by others in the house, caused a red mark which was observable when police later spoke to the victim of this offence, caused him obvious and understandable distress, and was an act of violence inflicted by a grown man on a 14 year old boy, who referred to the perpetrator of this violent act as his “grandpop”.  LL had only come to live with his grandmother and her husband because his own mother was not able to care for him.  As with Count 1, it is important that I recognise that this offence occurred in the victim’s home and the offender was in a significant position of trust.

38․Turning now to the transfer charge, the offender admitted the facts on which the transfer charge was based with the exception of what I will call the family violence element. Whilst what the offender did was clearly offensive, this is one of the least serious criteria of what makes an offence one of family violence. Again, this was not an offence designed to obtain sexual gratification, and it was not KI whom the offender wished to humiliate.

39․Both Count 1 and the transfer charge are based on the same act of the offender.

40․Both the prosecution and the offender assisted me by referring to comparative cases.  They acknowledged that the utility of such cases was limited, due to the unusual facts relating to Count 1 and the fact that offences similar to Count 5 would ordinarily be dealt with in the Magistrates Court.

41․Whilst recognising that sentences of imprisonment are very much sentences of last resort, after considering possible alternatives I am satisfied that for each count on which the jury found the offender guilty, nothing less than a sentence of actual imprisonment is appropriate.

42․I acknowledge that, despite the maximum penalty of 3 years’ imprisonment, sentences of imprisonment for an offence of aggravated common assault are not common. But at the risk of repetition, this was an offence designed to humiliate and hurt a 14-year-old boy who was entitled to look to his “grandpop” to protect him from harm. Nor was this some act of over-enthusiastic chastisement of a misbehaving child - the offender’s actions were entirely gratuitous. Whilst the offender may well have been justifiably upset at the actions of his wife, there was no justification for the offender to take out his frustrations on his step-grandson. I repeat for emphasis that he well-knew that his step-grandson was only living with him and his wife because his own mother could not look after him properly.

43․Similar things can be said about Count 1 too. The absence of a motive involving sexual gratification may make this an unusual case, but not too much should be made of this fact. Many sexual offences are the product of a desire to control and humiliate someone by exercising and demonstrating power over them.

44․As far as Count 2 is concerned, despite the offender’s frailties, he was able to use considerable force when squeezing the throat of his stepson. Once again, what the offender did was the product of the offender’s anger and frustration, which led to him wanting to exercise his dominance over his stepson. Offences such as this are an all-too-common form of domestic violence, capable of causing significant harm.

45․On the other hand, the transfer charge is not of such seriousness that a sentence of imprisonment is required.  Given the sentences I intend to impose for the other offences, and the fact that the same act of the offender has led to both Count 1 and the transfer charge, there is no utility in imposing any further punishment on the offender beyond his conviction for the transfer offence.

46․The offender has been remanded in custody since he was first arrested on 1 April 2024.  It is appropriate that I commence the sentence of imprisonment from that date.

47․Ms Harders asked me to find that the pre-sentence custody was in one respect more onerous than normal because for part of it, the offender was subject to a forensic treatment order. No evidence was adduced as to how the conditions of custody would have been different from those in the general prison population when the offender was subject to that order. There was nothing before me to enable me to find whether the conditions under which a forensic treatment order is served are more or less comfortable than those in the general prison population. Accordingly, I decline to make the finding which Ms Harders asked me to make.

48․There needs to be some measure of accumulation in the prison sentences to recognise that, ignoring the transfer charge, the offender is being sentenced for a number of separate acts against two separate members of his family.

49․Finally, before passing sentence, I will refer to the fact that there is currently in force a Special Interim Family Violence Order relating to the offender’s wife and LL. Although s 32(2)(b) of the FV Act gives me the power to decide any application for a final order, there was no such application before me, and in any case, I would have considered it inappropriate to decide such an application. I will simply notify the Magistrates Court that the final related charge has been decided.

Orders

50․The orders of the Court are:

(1)The offender is convicted of the offence of aggravated act of indecency in the presence of a person under 16 years (CC 2024/3900) and is sentenced to imprisonment for 4 months, commencing from 1 April 2024 and expiring on 31 July 2024.

(2)The offender is convicted of the offence of aggravated common assault (CC 2024/3901) and is sentenced to imprisonment for 4 months, commencing from 1 July 2024 and expiring on 31 October 2024.

(3)The offender is convicted of the offence of aggravated choke, suffocate or strangle (CC 2024/3898) and is sentenced to imprisonment for 18 months, commencing from 1 October 2024 and expiring on 31 March 2026.

(4)The offender is convicted of the offence of aggravated act of indecency without consent (CC 2024/3897) without further punishment.

(5)The overall sentence is thus one of imprisonment for 2 years, commencing from 1 April 2024 and expiring on 31 March 2026.

(6)I set a non-parole period of 18 months, to expire on 30 September 2025.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman.

Associate:

Date: