Director of Public Prosecutions v Kavanagh (a pseudonym)
[2019] VCC 736
•23 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RORY KAVANAGH (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 May 2019 |
| DATE OF SENTENCE: | 23 May 2019 |
| CASE MAY BE CITED AS: | DPP v KAVANAGH (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 736 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – stalking – offender and victim in relationship for approximately 12 months – victim sought an intervention order - serious example of the offence of stalking – prior conviction for stalking – combination sentence.
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic).
Cases Cited:Rodriguez v DPP [2013] VSCA 216 at [36]
Sentence:Imprisonment for a period of 142 days and a Community Correction Order for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms D Caruso | Office of Public Prosecutions |
| For the Accused | Mr J Gullaci | Tony Hargreaves & Partners |
HIS HONOUR:
Introduction
1Rory Kavanagh[1], you have pleaded guilty to one charge of stalking, contrary to s.21A of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment. You have also admitted your criminal record.
[1] Rory Kavanagh is a pseudonym name
Circumstances of the offending
2The prosecution opening was exhibited on the plea and may be summarised as follows:
3You, Rory Kavanagh, and the victim in this matter, Ms Hayley Mailer[2], had been involved in a relationship for approximately twelve months. Towards the end of the relationship, Ms Mailer began to notice controlling and aggressive behaviours by you.
[2] Hayley Mailer is a pseudonym name
4On 8 May 2015, you had an altercation with Ms Mailer's neighbour over a car parking space. This led to an argument between you and Ms Mailer. During the argument, you screamed so loudly that Ms Mailer's youngest daughter awoke and had to be consoled back to sleep. Ms Mailer states that she ended the relationship on that day.
5Throughout May and June of 2015, the relationship moved between being on and off, but by mid-July, the relationship and any continuing friendship was completely over. Ms Mailer states that over June and July, your behaviour was erratic and unpredictable and that you were unable to accept that the relationship was ending. In May of 2015, discussions were had about return of property.
6Between 16 May and 19 August 2015, the between dates of the charge, you engaged in a course of conduct that placed Ms Mailer in fear for both her physical safety and her mental wellbeing. This consisted of a number of separate incidents which will be detailed further below.
7On Friday 12 June 2015, Ms Mailer attended Werribee Magistrates' Court to apply for an intervention order. Due to the number of people at court, Ms Mailer was not able to remain at the court all day in order to complete her application. She was advised to attend on the Monday. You had ceased the extreme conduct over the weekend, so she made a decision not to continue with the application. However, your behaviour continued and Ms Mailer ultimately re-attended at court and was granted an ex parte order on 6 August 2015. This order was not served and effective until 19 August 2015.
8The various incidents that the prosecution alleges make up the course of conduct that amounts to stalking are summarised as follows:
9On 16 May 2015, Ms Mailer attended at your home in Kew. During the evening, you and Ms Mailer discussed whether the relationship should continue. An argument ensued and you became enraged. You grabbed Ms Mailer by her shoulders and threw her against the bedroom wall, resulting in bruising. However, Ms Mailer stayed that night at your residence.
10During May 2015, you and Ms Mailer discussed returning each other's keys. You denied having Ms Mailer's keys, stating you had thrown them away.
Ms Mailer became suspicious that you were attending her home when she was not there. You stated in phone calls to Ms Mailer that you knew when she was not at home and that you were keeping tabs on her.11On 30 July 2015, you sent a text to Ms Mailer, stating “20 cents in your fridge, (top drawer) says you not home! You're a fucking liar as always.”
12Ms Mailer took a photograph of the text message. When she came home, there was a 20 cent coin in the fridge in her garage. She also took a photo of the coin in the fridge. On 5 August 2015 at approximately 4.30 pm,
Ms Mailer noticed a vehicle outside her premises that looked suspicious to her.13She thought that you may have sent a private investigator. Ms Mailer got into her car and followed the vehicle she had earlier observed. She then received a call from a private number. She recognised your voice. You said words to the effect of ‘what are you doing?’ Ms Mailer replied “oh my God, is that you in the car? What the fuck are you doing?” She hung up and called 000. The car had driven into a court and Ms Mailer was able to recognise you as the driver. You yelled out “you are nothing but a fucken whore and where are you going?”
14On 7 August 2015, a friend of Ms Mailer's, Sara Dinar[3], was visiting at her address with her daughter. She left the premises at about 10.30 pm. As she was driving away, she recognised you as she had met you about five times previously. Ms Dinar observed you to be about a hundred metres from the address and she followed you. You pulled over and then followed Ms Dinar until she pulled into Werribee Police Station.
[3] Sara Dinar is a pseudonym name
15On one occasion you recorded a conversation between yourself and
Ms Mailer. The conversation involved you accusing Ms Mailer of using cocaine. Ms Mailer was not aware at the time that she was being recorded. This recording was played during the plea and I accept Ms Mailer's view, that the contents of the recording would have been humiliating. At the time of the offending Ms Mailer worked as a human resources manager at a Telstra business centre.16The managing directors at the time were Jett Coleman[4] and Hamish Mathy[5]. On 5 August 2015, at approximately 6.12 pm, you sent a text to Ms Mailer stating “I will send Telstra and DCP the cocaine voice messages shortly. Jett Coleman, Hamish Mathy, sent”. At 6.55 pm you sent Ms Mailer an email which stated “Hayley, I will send Telstra and DCP the voice calls that outline your cocaine taking problem”.
[4] Jett Coleman is a pseudonym name
[5] Hamish Mathy is a pseudonym name
17The next morning on 6 August 2015 at about 8.30 am, you called Ms Mailer and stated words to the effect that if she did not take your calls, things would get worse. You also again threatened to send the voice message recording. You stated that you would call Ms Mailer's former husband and the Department of Child Protection in order to have her children removed from her. Ms Mailer later received a call from her ex-husband who expressed to her concern about the safety and wellbeing of the children, due to information he had received.
18At about 9.58 am on 6 August 2015, you went an email to approximately 60 of Ms Mailer's work colleagues, including Jett Coleman and Hamish Mathy. The email attached the voice recording and was titled “Hayley Mailer for all your cocaine needs”.
19After the email was sent, Ms Mailer felt humiliated and sent an email requesting that her colleagues not open the email. Ms Mailer contacted you by text and told you that you had put her job in jeopardy and asking if you were sorry. You indicated that you were sorry. Ms Mailer also told you that you were scaring her.
20On 8 August 2015, you sent an email to Ms Mailer which stated “When I call, you will answer, otherwise cocaine is going to DCP. Oh and make sure you're not with Sara Dinar.”
21On 19 August 2015, you sent Ms Mailer text messages attaching the ‘cocaine recording’ in the message: “Cops have your voice chump, keep up the good work. We're loving your calls.”
22During the period specified on the charge, you called Ms Mailer hundreds of times on her mobile, home and work telephone numbers. Specifically, you made a large number of calls to Ms Mailer on 5 August, 6 August, 18 August and 19 August 2015.
23On 6 August 2015, Ms Mailer states that she sent a text to you telling you to leave her alone and not to contact her. She further states that you continued to message her, stating that you are in love with her and that you would get help.
24On 14 August 2015, you sent Ms Mailer a series of text with photographs of other women and comments about them. Between 15 and 19 August 2015, you started a group text message, which include Ms Mailer. During this time, you sent a series of messages making comments about Ms Mailer. On 18 August 2015, within this group chat, you sent two intimate images of Ms Mailer to the group.
25In July and August of 2015, Ms Mailer's Chloe Rendell[6], began to receive calls, texts and emails from you at various times during the day and night. The messages sent to Ms Rendell included a text with a screenshot of messages that Ms Mailer had sent when she first met you. Two intimate images of
Ms Mailer and various messages from about 5 pm on 18 August 2015, alleging that Ms Mailer was a “drug taking slapper from the west, trying to get a restraining order… a thief, a liar, a cocaine addict and a whore.”[6] Chloe Rendell is a pseudonym name
26On 6 August 2015, Ms Mailer obtained an ex parte intervention order with you named as the respondent. The police then attempted to serve you, but were unsuccessful until 19 August, when the order was served by substituted service. At the time of the offending, the application for the intervention order was before the Werribee Magistrates' Court and not yet determined. The next hearing date was listed for 17 September 2015.
27On 18 August 2015, from 5 pm, you started excessively calling Ms Mailer. In these calls you were abusive and stated that you were aware the police were trying to serve you with the intervention order. At 5.21 pm, you sent a text to Ms Mailer's mother stating “the drug taking slapper from the west tried to get a restraining order served at mum's.” On 18 August 2015, you called
Ms Mailer and indicated your anger about the intervention order. Ms Mailer recorded some of the conversation, which was played in court.28At 6.25 pm, Ms Mailer attended at the Wyndham North police station and was speaking to Constable Hoffman. At about 7.12 pm, you called Ms Mailer. She told Constable Hoffman that it was you on the phone and placed the call on loudspeaker. In the hearing of Constable Hoffman and Ms Mailer you said “get rid of it slut”. Ms Mailer said “what?” to which you replied, “the intervention order.”
29At 7.28 pm you called again. Ms Mailer again placed the call on loudspeaker. Constable Hoffman identified himself as a police member. You stated to Constable Hoffman that you were not worried about the police and that you could handle it. Constable Hoffman heard you threaten Ms Mailer that if she did not remove the intervention order, you would have her sacked.
30It is the prosecution case that the conduct outlined above, in combination, establishes a course of conduct and that you committed the acts intentionally. Further, that the conduct did have the effect of causing Ms Mailer mental harm and that she became fearful for her own safety.
31I am satisfied that the way the case is put, does establish an intentional course of conduct that was designed to cause Ms Mailer to feel frightened or apprehensive about her own safety.
32You were arrested and interviewed on 26 October 2015 and answered no comment.
Objective seriousness of the offending
33The crime of stalking is a serious offence, which is reflected by the maximum penalty of 10 years imprisonment. In this instance, the behaviour relied on to establish the charge of stalking is outlined above and consists of a number of different circumstances, which demonstrate conduct that you knew would be likely to cause distress to Ms Mailer.
34It is clear that Ms Mailer did not want any further contact with you after the relationship had broken down. Undeterred, you persisted in your conduct which was designed on occasion to humiliate and embarrass her by either sending information or images to colleagues or family or by threatening to.
35Further, with knowledge that the police were attempting to serve you with an intervention order, you persisted in contacting Ms Mailer, pressuring her to withdraw the order. Ultimately Ms Mailer attended at the police station where she placed you on the loudspeaker, in order for a police officer to hear your threats. You repeated to her in an angry and threatening manner that you wanted her to withdraw the intervention order. The police officer also heard you tell Ms Mailer that if she did not remove the intervention order, you would have her sacked.
36It is clear from listening to some of the calls that were played during the plea, and reading the text that you sent Ms Mailer over this period, that you were very angry. It is self-evident that the tone of your voice and the words you were using would have been extremely frightening to Ms Mailer. To her credit, she remained calm and simply told you to leave her alone. During this period, you were constantly ruminating about Ms Mailer and as discussed during the plea, it is obvious that you have difficulty in controlling your temper.
37Ms Mailer prepared a victim impact statement which was tendered and read on the plea. She concludes that your actions were clearly directed at ruining her. She states that she felt extremely vulnerable and violated by your actions. She encountered embarrassment which has continued to affect her. While the events occurred some four years ago, Ms Mailer states that the strain of the protracted nature of this matter through the courts has continued to affect her. She has also engaged in counselling to assist her in dealing with the stress.
38Ms Mailer also outlines the effect your actions had in relation to her work, which was clearly a target of your behaviour. You attacked her professional reputation and brought her character into disrepute which was your aim. She states as follows:
“I cannot express the embarrassment suffered and the impact this has had when I walked out of a meeting and every single person at work was looking at me, after receiving the degrading email he had sent to work colleagues, including managers. My confidence and self-esteem have been depleted.”
39In his written submissions, your counsel Mr Gullaci, conceded that the offending is serious and protracted. I agree. In all the circumstances, in my view, your behaviour represents a serious example of the offence of stalking.
Personal circumstances
40You are now 51 years of age and the oldest of four siblings. You grew up in a stable and supportive environment and had a normal developmental history. You did, however, suffer a significant trauma which was the suicide of your younger brother. In that context, I note that your younger brother had a severe drug addiction and as such, since that time, you have taken a very dim view of drug use.
41You attended Parade College and reported no significant academic behavioural disciplinary or social problems. You played AFL football at a high level, ultimately playing with the Collingwood Football Club under 19’s team. It is from that sporting circle that you maintain stable long term friendships. You studied engineering after leaving school and have worked exclusively in that field, predominantly in project management. Your work involved the mining industry in Queensland and Western Australia and since 2014, you have diversified your business interest to include a focus on property development.
42You married in 1996, aged 28. There are four children from that marriage which comprises of two sets of twin boys born in 2002 and 2004 respectively. The marriage broke down in 2009 and resulted in a protracted and acrimonious family law dispute. The dispute ultimately resolved in 2013, with a shared care arrangement, however, this broke down in 2017 and you have not seen your children since then.
43You met Ms Mailer in around 2014. You were together for about twelve months before separating in May 2015, prior to these events occurring. You reported to your psychologist, Patrick Newton that conflict between you and Ms Mailer focused on your reaction to her alleged drug use. Further, because you were travelling interstate for work purposes for long periods of time, this placed considerable strain on the relationship. In November 2015, you began another relationship which lasted for about two years. You have been in a new relationship since late 2015, however, expressed to your psychologist that you are uncertain about the long term prospects of that relationship.
44Mr Newton's report was tendered on the plea. He conducted a mental state examination of you, concluding that the most significant abnormality in your mental state is the presence of mild paranoid ideation. He notes that it is most likely that these paranoid beliefs have developed out of your resentment, concerning your prosecution and incarceration. However, they nevertheless point to significant dysfunction in your mental state.
45As to your risk of recidivism, following testing, Mr Newton is of the view that you would be assessed as falling in the moderate concern range. Unsurprisingly, he concludes that you would benefit from specific stalking related programs, in order to address your behaviour.
46Four references were tendered on the plea. Two of those references were from colleagues who have known you for a considerable number of years. The references speak with the united voice in relation to the surprise of the writers, when hearing of the offences to which you have been charged. They speak of you as a hardworking, reliable, trustworthy and respectful person. One long term friend Lionel Trickett[7], who has known you since you were 15, states that you are a loyal friend, who has been a positive presence in his life. He further states that he will continue to support you through this difficult period of your life.
[7] Lionel Trickett is a pseudonym name
Sentencing considerations
47I take into account your plea of guilty. Your plea of guilty is a late plea and you ran a contested committal in relation to these matters. Nonetheless, your plea has saved the community the time and expense of a trial and most importantly, has saved the witnesses from having to give evidence and further relive the events. As such, your plea demonstrates a willingness to facilitate the course of justice. I am not persuaded, however, that you have demonstrated any genuine remorse. In that regard, I refer to the conclusions of Mr Newton as follows.
“In summary, the most significant abnormality in Mr Kavanagh' mental state is the presence of mild paranoid ideation, in connection with his offending. While it is most likely that these paranoid beliefs have developed out of his resentment concerning his prosecution, exacerbated by his incarceration, they nevertheless point to significant dysfunction in his mental state. His resentment and paranoid ideation limit Mr Kavanagh' capacity for insight into his offending conduct, compromising the development of remorse and limiting his empathy for the complainant.”
48I had you assessed for a community corrections order. The writer of that report also noted her concerns in relation to your insight and remorse. She states:
“When prompted about the offences before the honourable court, Mr Kavanagh displayed no insight into his offending, particularly in relation to the impact of family violence on the victim and wider community.”
49It is clear to me that you do not have insight into your offending behaviour, which is of concern, when consideration is given to your prospects of rehabilitation. As such, your prospects of rehabilitation must be approached with a degree of caution.
50Also relevant to your prospects of rehabilitation is consideration of your prior criminal history. You do have a relevant prior matter of stalking. However, it dates back to 2003. What is of more concern is that in 2018, you attended court a number of times in relation to similar offending behaviour, such as using a carriage service to menace and contravening family violence intervention orders.
51One of those matters related to the victim in this case, where it is alleged that you contravened the intervention order during the contested committal proceedings in this matter. In relation to the offending, you were placed on a community corrections order and I am informed you are appealing the conviction of that matter.
52General deterrence is in my view a significant sentencing consideration, in matters of stalking in a family violence context. Your behaviour was a reaction to a breakdown of a relationship which I accept, may evoke strong emotional responses. However, it is a normal life event and does not permit the type of behaviour that you directed towards Ms Mailer. Your lack of insight and appreciation of the seriousness of your conduct is also unfortunately an all too common response. Behaviour such as yours is unacceptable. It is appalling and it is criminal.
53In the circumstances that I have outlined, in relation to your lack of insight and remorse, together with your further offending, specific deterrence must carry some weight in the sentencing equation. With that said, it would seem that the time you have spent in custody, in relation to these matters, has had a significant salutary effect on you. At age 51, as a man with an excellent professional working history and respect in the community, you have found yourself in custody for the first time.
54Mr Gullaci who appeared on your behalf also submitted that delay is of some significance in this matter. The offending occurred between May and August 2015, with the matter only being finalised in May 2019, a four year delay. This matter commenced its life in the Magistrates' Court. Ultimately the Magistrate hearing the matter refused to hear it summarily, and therefore it was transferred to the committal stream and began its life again. I accept that the matter has now been hanging over your head for a significant period of time and the anxiety together with the uncertainty of a prison sentence, during the period of delay, is able to be viewed as a form of punishment itself.[8]
[8]Rodriguez v DPP [2013] VSCA 216 at [36].
55You have been in custody now for some for months. The initial submission by Mr Gullaci was that the court could impose a straight sentence to allow you to resume your interstate work upon your release. However, for the reasons I have outlined in relation to your insight and prospects of rehabilitation, in my view, you require counselling and treatment to address the issues that gave rise to this offending. So much was recommended by Mr Newton in his concluding comments.
56Treatment and counselling in relation to dealing with the issues that you are grappling with is also in my view necessary, in order to effect protection of the community. You may well find yourself again in circumstances, as you did here, where either a relationship breaks down or you are facing other stresses in life where you struggle to manage the emotional impact of those normal life events.
57In my view, a sentence pursuant to s.44 of the Sentencing Act 1991 is the appropriate disposition, which is able to meet all of the relevant sentencing considerations. The prosecution has also submitted that a combined sentence is appropriate, in the circumstances.
58In my view the time you have already spent in custody is sufficient, as the punitive aspect of the sentence pursuant to s.44. The therapeutic component of the community corrections order will involve treatment and rehabilitation conditions, in relation to mental health and in relation to programs to reduce reoffending. It will also contain a supervision condition.
59While I accept that it is in the community's interest for you to be able to engage again in fulltime employment, which may involve interstate travel, it is more important that you engage in the programs that I am going to impose, as part of the community corrections order and as such, you will need to work cooperatively with the Community Corrections officers to allow you to complainant those programs and to continue your employment.
Sentence
60Mr Kavanagh please stand. Rory Kavanagh on Charge 1, stalking, you will be convicted and sentenced pursuant to s.44 of the Sentencing Act 1991 to a combination sentence of imprisonment, together with a community corrections order. The prison component of the sentence will be the time that you have already served. That is, 142 days, not including today.
61In addition to the prison component of the sentence, you will be placed on a community corrections order, with conviction, for a period of two years. You will be required to engage in treatment and rehabilitation programs, in order to reduce the risks of you reoffending. You will also be required to engage in treatment in relation to mental health and you will be subject to supervision. Pursuant to s.18 of the Sentencing Act 1991, I declare that 142 days be reckoned as the period of imprisonment already served under the sentence that I have imposed on Charge 1.
62Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of nine months imprisonment, together with a community corrections order.
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