Director of Public Prosecutions v Kingston
[2025] ACTSC 70
•28 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Kingston |
Citation: | [2025] ACTSC 70 |
Hearing Date: | 28 January 2025 |
Decision Date: | 28 February 2025 |
Before: | Loukas-Karlsson J |
Decision: | See [158] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to menace/harass/offend – distribution of an intimate image of another person without consent – plea of guilty – ACT and Commonwealth sentencing regimes – sentencing for both ACT and Commonwealth offences – intensive corrections order |
Legislation Cited: | Crimes Act 1900 (ACT), s 72C Crimes Act 1914 (Cth), ss 16A, 16A(1), 16A(2), 16A(2)(d), 16A(2)(ea), 19AC(1)(b), 19AB(1) ,19AC(3) 19AJ, 19(3), pt 1B Crimes (Sentencing) Act 2005 (ACT), ss 10, 17, 33, 33(1)(d), 33(1)(f), 33(1)(j), 33(1)(o) 35(2)(c), 35(4), 80D(1) Criminal Code Act 1995 (Cth), s 474.17 |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen (1990) 169 CLR 525; (1990) 92 ALR 552 Cahyadi vThe Queen [2007] NSWCCA 1; 168 A Crim R 41 Deakin v The Queen (1984) 58 ALJR 367; 54 ALR 765 DPP v Matas [2024] ACTSC 234 Edwin v The Queen [2014] ACTCA 47 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Miles v The Queen [2014] ACTCA 41 Mill v The Queen (1988) 166 CLR 59 at 63; 63 ALJR 117 Morrison v Maher (No 2) [2022] ACTSC 63 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O'Brien v The Queen [2015] ACTCA 4; 719 ACTLR 244 Pearce v The Queen (1998) 194 CLR 610; 72 ALJR Postiglione v the Queen (1997) 189 CLR 295; 71 ALJR 875 Power v The Queen (1974) 131 CLR 623; 48 ALJR 297 R v Crivici [2024] ACTSC 156 R v Elson [2020] ACTSC 264 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Hudson [2019] ACTSC 110 R v Kilic [2016] HCA 48; 259 CLR 256 R v Newby [2022] ACTCA 20; 367 FLR 122 R v Snowden [2022] ACTSC 186 R v Srna [2018] ACTSC 337 R v Verdins [2007] VSCA 102; 16 VR 240 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 |
Parties: | Director of Public Prosecutions Anne Kingston ( Offender) |
Representation: | Counsel G Cuthel (28 January 2025), T Whybrow (28 February 2025) ( DPP) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions O’Connor Harris & Co Solicitors ( Offender) | |
File Number: | SCC 126 of 2024 |
LOUKAS-KARLSSON J:
Introduction
1․Ms Kingston (the offender) has pleaded guilty to the following offences:
(a)Count 2: An offence of using a carriage service to menace/harass/offend (CC2023/12586), contrary to Criminal Code Act 1995 (Cth), s 474.17. The maximum penalty for this offence is 5 years imprisonment.
(b)Count 3: An offence of using a carriage service to menace/harass/offend (CC2023/12587), contrary to Criminal Code Act 1995 (Cth), s 474.17. The maximum penalty for this offence is 5 years imprisonment.
(c)Count 4: An offence of distribution of an intimate image of another person without consent (CC2023/12584), contrary to Crimes Act 1900 (ACT) s 72C. The maximum penalty for this offence is 3 years imprisonment, a fine of $48,000.00 (300 penalty units) or both.
2․There are two victims of the offending before the Court: Ms A and her partner, Mr B. Ms A will be referred to as Victim A in this judgment, and Mr B will be referred to as Victim B.
3․The prosecution noted that Count 2 and Count 3 are rolled up charges, encompassing communications spanning from 26 April 2023 – 7 October 2023.
4․Further, Count 1 was rolled up into Count 2, after negotiations between the parties arising out of the criminal case conference in this matter and following that case conference the offender pleaded guilty. It is noted that the offending involving Victim A, being Count 2 on the Indictment, also encompassed threats to distribute an intimate image as part of the conduct alleged in Count 2, as being harassing and menacing.
5․Regrettably counsel for the prosecution and counsel for the offender did not address in their sentencing submissions at the sentencing hearing on 28 January 2025 that this sentencing exercise must perforce encompass both the ACT sentencing regime and the Commonwealth regime. At the sentence hand down on 28 February 2025. I broached this matter with both counsel who appropriately fell on their metaphorical sentencing swords.
Agreed facts
6․The agreed facts are set out in the Statement of Facts, which forms part of the prosecution Tender Bundle. The agreed facts may be summarised as follows.
7․The two complainants have been in a relationship for around 7 years. Both Victim A and Victim B worked with the offender’s boyfriend at a hotel in Canberra (the Hotel). Victim A is the site manager for that location.
8․In February 2023, Victim A and the offender’s boyfriend had sexual intercourse at the Hotel after consuming drugs together. This was filmed on the phone of the offender’s boyfriend and the footage captured Victim A and the offender’s boyfriend having sexual intercourse.
9․At the time of the commission of the offences by the offender, the offender’s boyfriend was no longer employed at the Hotel and was in custody for domestic violence related charges committed against the offender herself.
Offending against Victim A – Count 2: use carriage service to menace/harass/offend
10․On 4 April 2023, the offender initiated contact with Victim A by sending a text message, which identified herself. The offender sent a screenshot of a conversation between the offender’s boyfriend and Victim A, which included discussion about the offender’s boyfriend wanting to “pump” Victim A.
11․Around Anzac Day 2023, the offender began calling and messaging Victim A in relation to videos which the offender had located on the phone of the offender’s boyfriend. Victim A did not have any memory of the video and did not believe that such video existed.
12․Between when the communication with the offender began and when this communication ended, the offender would call Victim A throughout the day on numerous occasions, and send messages to Victim A which were aggressive, but on occasion more friendly. Victim A estimated that she would receive around 15 calls in a day when the offender would contact her in this manner.
13․During these calls, the offender would discuss the video with Victim A and discuss how the offender’s boyfriend had been abusive towards her. The offender made reference to not wanting Victim B to “beat” the offender’s boyfriend up. Victim A asked the offender to leave her alone and told her that she did not want to engage with her, however the offender continued to make contact with Victim A.
14․During one of these calls, the offender told Victim A that she was going to send the video of Victim A and the offender’s boyfriend engaging in sexual intercourse to Victim A’s boss. The offender told Victim A that she had abused her position of authority as the offender’s boyfriend was an employee of Victim A and that Victim A had taken advantage of the offender’s boyfriend.
15․Between 21 April 2023 and 25 April 2023, the offender sent the following messages to Victim A:
Are you and [Victim B] free for coffee with [offender’s boyfriend] and I? Pick the time and place. Thanks [offender].
[Offender’s boyfriend] always wanted me to meet you guys. He said you were nice people and good trusted friends.
Saturday would be good for me.
Hope your [weekend] was ok. Thanks for the chats. Take care [Victim A]
Sorry [Victim A], had to make [Victim B] aware that you fucked [offender’s boyfriend].
16․On 8 May 2023, Victim A sent a text to Victim B indicating that she was going to contact police and stated to Victim B that “she threatened to send a video of me having sex without my [consent] or without my knowledge of the video existing.” During the messages sent to Victim B during this time, Victim A stated that she had been raped and that she believed what the offender was doing was “revenge porn.”
17․On 6 June 2023 at 6:15am, the offender sent the following text message to both Victim A and Victim B:
If you persist with your vendetta I will be forced to expose what [Victim A] did. Invited an employee, who she was a supervisor of, to an apartment paid for by her employer at the apartments, for the purposes of using illicit drugs and having sex with him. The video shows her wearing his Australia jacket, having come out of the shower, asking where do you want me, going over to him on the bed for sex, looking at something on the phone, doing that and holding his phone to continue recording the encounter while saying “fuck me.” None of this indicates she was drugged or raped. It was complicit. This may be hard to hear. But I’m as unhappy as you about this. Multiple other things made me think there was something going on. Not least her 1 ½ page character reference for him at the court case you sat in on. I’m so upset you chose to come to court with your mate to hear that and tell me “suck shit.” I have the cctv of your attendance, statements from court officials about your behaviour and the text [messages] seeking to extort money from [offender’s boyfriend]. I am not intimidated by you or anyone else. I told you the the truth because I thought you deserved to know it. Don’t for a minute think I’m scared or won’t tell the truth to [Victim A’s] employers about all of this. Either tell me what you want or back off. None of what you are doing will help anyone. Least of all you.
(emphasis added)
18․The offender sent an additional message at 6:34am to Victim A stating “What I sent to [Victim B]. Set the record straight [Victim A].”
19․On 7 June 2023 at 4:51pm, Victim A sent the offender the following text message:
[Offender], neither [Victim B] or I have a “vendetta” against either of you. [Victim B] never intended to intimidate you. Sorry if that is how you took it, he didn’t think you would be there at all given the circumstances. I asked him not to go, I didn’t think it would be helpful for anyone. I understand you are upset that [offender’s boyfriend] got locked up and that you are sad. I would advise you take this time to work on yourself with a psychologist or get counselling and start to heal and move on with your life. [Victim B] and I have not communicated with either of you and we certainly haven’t made any threats and don’t intend to. You are the one who has continued to threaten, berate and harass us through unwanted calls and text messages and we have not engaged. If you’re feeling guilty he is there then speak to someone who can help because you shouldn’t feel guilty at all. You said in your message “tell me what you want or back off.” We want you to leave us alone and stop contacting us!!!! Pretty simple! That’s why we don’t answer your calls or respond to your message. I didn’t even want to respond to this but I wanted to make it clear to you that there is no revenge plan or harm coming to anyone. I know I haven’t spoken to you since Anzac Day holiday and I don’t think [Victim B] has said anything to you since the court hearing where again he didn’t even know you would be there. I haven’t spoken to [offender’s boyfriend] since work I think and I know [Victim B] stopped messaging him when you asked him to. You are the one who continued to leave five minute + rambling voicemails and sending bizarre texts where you threaten me again and again despite us not engaging. So leave us alone. Consider this, in writing, both of us asking you to stop contacting us. Stop. Deal with your issues and, leave us alone. Neither of us have any interest in coming after you or [offender’s boyfriend]. There is no “vendetta.” Good luck to you and again, leave us alone. Do not respond to this message. Any response will be taken as continued harassment.
(emphasis added)
20․After Victim A sent the above message, Victim A blocked the offender from contacting her via text message, as well as on any online social media applications.
Offending against Victim B
21․In April 2023 the offender sent a text message to Victim B of a screenshot of a conversation between the offender’s boyfriend and Victim A, asking what the context of the message was.
22․In April 2023, Victim A disclosed to Victim B that the offender had been harassing her in relation to the video which depicted Victim A engaging in sexual intercourse with the offender’s boyfriend.
23․Around 2-3 weeks before the disclosure, Victim B had heard Victim A disclosing over the phone that there was a video that she was being threatened with and there had been threats to send the video to her workplace.
24․As a result of the disclosure, Victim B called the offender and asked her about the video and where it had been obtained. This conversation lasted for approximately 90 minutes. During this call, Victim A was present and the phone was on speaker. The offender told Victim B that she had taken it from the phone of the offender’s boyfriend, from a secure folder.
Count 3 – use carriage service to menace/harass/offend
25․During the call, Victim B sought to be friendly with the offender in order to obtain information about what was happening. After the initial call, the offender called Victim B 6-7 times during that week. After this, Victim B sought to distance himself from the offender and stopped answering her phone calls. When Victim B did answer the calls, he told the offender to stop calling him, that she was harassing him, to stop threatening Victim A and that he would go to the police if the harassment continued.
26․Between 26 April 2023 and 7 October 2023, the offender also spoke to Victim B on the phone and told him during these calls that she was going to send the video of Victim A and the offender’s boyfriend to the workplace of Victim A, as she blamed Victim A for the sexual intercourse with the offender’s boyfriend. During these calls, the offender was aggressive and stated a desire to get Victim A into trouble.
27․On 26 April 2023 at 12:16am the offender sent a text message to Victim B stating, “do you want to see the video of [offender’s boyfriend] fucking [Victim A]?” Later at 2:43am the offender sent another message stating “When I [messaged] you last I wasn’t aware of it. Just the filthy rxt [sic] [message]. Now I’ve seen the video from [9 February].”
28․On 27 April 2023, the offender sent a number of messages to Victim B over the course of the day, which included:
What on earth?? Extorting money from someone, no matter what the circumstance is not ok. I thought we discuss that. Guess you and [Victim A] feel that was a good course of action.
Thought you didn’t want to go back to thug life and not so smart choices. I think this was a silly one.
It’s fine to be angry, upset, betrayed, disappointed. I am too. But this isn’t the right way to go. Is it?
Anyway, hope you both had a productive day. The sunshine was nice.
29․Victim B responded via text message to the offender at 3:59:29pm stating:
I wasn’t extorting him, as I was dropping it, but he sent me a message I’ll show you screenshots, I thought about it further [and] why I expected the money was because the last week [Victim A] got sent home Friday then said she’s going to Doctors, then she was not herself walking around like a zombie throwing up not eating, so I was looking after her cause thought she was sick, then find out reason she was crying Friday cause she’s getting threatened with video, then again on Tuesday night, she didn’t sleep we took Wednesday off cause I said I’ll sort this out, so basically we’re not going short losing money cause we’re not at work cause off what’s happening & when in the text message he said [offender] has told me to give you money I thought yep I’ll take that as compensation I’ll leave it at that & it’s done.
30․After this, the offender and Victim B had the following exchange which was recovered from the cellbrite of the offender:
[Offender:] You spoke of accountability. [Offender’s boyfriend] sure needs to be. But he isn’t the only one involved.
[Victim B:] I don’t have time to talk I’m getting ready for work, & I’m really just over this shit [at the moment]. The only victim is me cause I’m the last to know, & I left her place last night to come home & look after my mum & heal, because my brain is fucked [at the moment] & I need time away to think. I’ll talk to you another day.
[Offender:] I understand and I’m sorry. But you aren’t the only one who didn’t know. Why I told you.
[Victim B:] [Offender’s boyfriend] created this whole situation by being a pushy drug user & taking advantage of women when they’re at they’re weakest.
[Offender:] OK. Please feel better soon. Whole situation is not good for any of our mental or physical health. Take care of yourself please.
[Offender:] Believe me I get how you feel.
[Victim B:] thanks. I’ll try but it’s going to be hard, the worst thing is we were due to go away this weekend to see one off my favourite bands & catch up with a mate I haven’t seen for a long time, it’s been cancelled cause how can I go away & enjoy myself & look at [Victim A] knowing that [offender’s boyfriend] had his hands on her, anyway got to go to work, look after yourself as well.
[Offender:] I know how you feel. [Victim A] told me she was excited to take you. Maybe you could reconsider? Don’t waste your life on anger. It’s not worth it. The bitterness eats you alive, when maybe you can forgive [Victim A] for one poor decision? I know she loves you.
[Offender:] Back off on the money thing [Victim B]. [Offender’s boyfriend] isn’t the only one at fault. And also not the only one with something to lose. All of us have lost something already. Haven’t we?
31․Between 27 April 2023 and 28 April 2023, Victim A and Victim B discussed the video and contact with the offender via text message. During these communications, Victim A detailed her desire to report the matter to police and that she wanted to see what this video the offender had of her was about. The two also discussed that the offender had been made aware by Victim B that she would be “implicated in threatening and holding revenge porn” if she were to send the video to anyone.
32․On 24 May 2023, the offender’s boyfriend was sentenced for domestic violence offending relating to the offender. Victim B attended the sentencing proceedings. Subsequent to this attendance, the offender sent the following messages to Victim B:
You and your mate had no business in court today listening to my personal trauma for whatever intimidation purposes. That was my personal trauma. You also had no right trying to intimidate me. I had nothing to do with what your upset about with [offender’s boyfriend]. [Victim A] did. So thanks for respecting my privacy and grief. I wasn’t protecting [offender’s boyfriend] I wanted to know the outcome. It’s been 7 months of heartache. Now leave it alone.
If you hear a woman crying, don’t walk past and say suck shit. My tears weren’t for [offender’s boyfriend] you asshole.
BTW [Victim A] can suck shit as well. Goes both ways.
Completely complicit in the video I saw. Take up your disappointment with your partner.
See if she knows how to tell you the truth.
33․On 6 June 2023 at 6:15am, the offender sent the following text message to both Victim A and Victim B (I note that the Statement of Facts stated that this text message was sent on 6 May 2023 under this subheading, but that this appears to be a typographical error, as the Statement of Facts previously stated that the text message was sent on 6 June 2023):
If you persist with your vendetta I will be forced to expose what [Victim A] did. Invited an employee, who she was a supervisor of, to an apartment paid for by her employer at the apartments, for the purposes of using illicit drugs and having sex with him. The video shows her wearing his Australia jacket, having come out of the shower, asking where do you want me, going over to him on the bed for sex, looking at something on the phone, doing that and holding his phone to continue recording the encounter while saying “fuck me.” None of this indicates she was drugged or raped. It was complicit. This may be hard to hear. But I’m as unhappy as you about this. Multiple other things made me think there was something going on. Not least her 1 ½ page character reference for him at the court case you sat in on. I’m so upset you chose to come to court with your mate to hear that and tell me “suck shit.” I have the cctv of your attendance, statements from court officials about your behaviour and the text [messages] seeking to extort money from [offender’s boyfriend]. I am not intimidated by you or anyone else. I told you the truth because I thought you deserve to know it. Don’t for a minute think I’m scared or won’t tell the the truth to [Victim A’s] employers about all of this. Either tell me what you want or back off. None of what you are doing will help anyone. Least of all you.
34․On 7 October 2023, the offender called Victim B eleven times from 9:38pm until 10:30pm. During these calls, Victim B asked the offender to stop calling him as she was harassing him. Victim B asked the offender to stop calling on the first two calls that he answered on this occasion, however she continued to call.
35․The continued calls from the offender made Victim B feel harassed and he became aggressive towards the offender on the calls, asking her to “leave me the fuck alone.” After the first few calls, the friend of Victim B began speaking with the offender on the phone, and asked her to leave Victim B alone.
Count 4 – distribute intimate images without consent
36․After Victim B had asked the offender to stop calling him, the offender sent a video depicting Victim A and the offender’s boyfriend engaging in sexual intercourse. The offender sent Victim B a number of messages after she had sent the video, seeking that he provide her with his address.
37․The offender also sent the following text messages to Victim B after she had sent the video.
Revenge porn, no reality check.
She’s not drunk or off her head hey.
Now fuck off. You and your mate.
Address please, happy to come see you all and chat.
C’mon [Victim B]. Let’s rock.
Your mate doesn’t scare me. I didn’t do anything wrong [Victim A] did. And she’s a lying dog. Watch the video. What a joke.
He says anything about me ever again, or you. I’ll sort it out.
[Victim A] has behaved very badly.
Address.
38․Victim B watched around 30-40 seconds of the video, which depicted Victim A and the offender’s boyfriend. During the period that Victim B watched, the offender’s boyfriend and Victim A were observed to engage in acts of a sexual nature, inclusive of Victim A taking off her jacket and the offender’s boyfriend groping her breast.
39․The next day, (which was apparently 8 October 2023) Victim B called the City Police Station and sought advice as to what to do about the video. At this point, he did not want Victim A involved and he wanted to be the person who pressed charges for the sending of the video.
40․On 9 October 2023, Victim B told Victim A that there had been a video, and that the offender had sent it to him.
Police investigation and arrest
41․On 9 October 2023, Constable Elder and Constable Sendi attended the residence of Victim A and Victim B and spoke with them concerning the offences.
42․Victim B told police that he had asked the offender’s boyfriend for money, stating that he believed this was what they were entitled to as victims of crime.
43․On 23 December 2023, police attended the residence of the offender and the offender was arrested.
44․The cellbrite download of the offender’s phone shows that, on 10 October 2023, the offender conducted a Google search for the terms “revenge porn charges,” “revenge porn,” “revenge porn laws Australia”, “extortion charges”, “extortion” and “penalties for perjury.”
Victim Impact Statement
45․Two Victim Impact Statements were tendered, the Victim Impact Statement of Victim A and the Victim Impact Statement of Victim B.
46․The Victim Impact Statement of Victim A included the following:
…3. This violation of my privacy made me feel powerless and exposed…
…5. The harm the offender has caused me is profound and far-reaching. The impact was not just immediate, but continues to affect me in long-term, devastating ways.
6. Initially, the offender’s contact seemed benign. She made me believe she was trying to help. But soon, everything shifted. I became her target, her enemy. Her unpredictable and erratic behaviour made me feel profoundly unsafe….
7. …The immediate stress was unbearable. I withdrew from everything – my apartment became a prison. I isolated myself from friends and family…
8. …The weekend the offender sent the video to my partner was the first time I had left my apartment in months. There had been a few months of silence from the offender before this and I had begun to feel safe again…
9. … The offender made me aware of a video I did not know existed. To this day I have never seen it. The offender used this to threaten, harass, humiliate and shame me. I had no control over the video. The offender used the video to steal my dignity and autonomy, and every person who has seen that video – whether willingly or not- has caused me another violation…
10. …The emotional toll led me to relapse into addiction. I turned into alcohol and benzodiazepines to numb myself…
11. … My career was irreparably impacted…
13. …I am consumed by fear every day. Because I never had a clear sense of what the offender looked like, I am now suspicious of anyone who vaguely fits the description I have in my head. Simple activities like running errands or attending social gatherings have become exercises in paranoia and avoidance. My life has been reduced to a state of constant vigilance.
15. The offender’s actions have robbed my partner and me of crucial time and support…
16. …I am receiving ongoing medical care and counselling as a result of the offending….
…. The harm caused by the offender is profound, far-reaching and life-altering. The violation of my privacy, my dignity and my safety has irreversibly affected my mental and physical health, my career and my relationships.
47․The Victim Impact Statement of Victim B included the following:
…The offender’s actions have felt like a prison for us over the last couple of years. We have been consumed by her behaviour and the emotional aftermath, and it has impacted every aspect of our lives. All of our free time has been taken up with appointments, phone calls, and dealing with the fallout of her actions. My partner has missed a significant amount of work and, as a result, our financial situation has taken a serious hit...
…The effects of this situation continued to overwhelm me, and in October 2024, I was hospitalized because of the stress, spending nearly two weeks in the mental health unit. I was so consumed by stress, anger, guilt and pain that I couldn’t cope.
48․The Court recognises the serious and long-lasting effects of these crimes on Victim A and Victim B. As I stated at the sentencing hearing on 28 January 2025 the Court has heard and acknowledges the Victim Impact Statements.
49․The Court further acknowledges the importance of what Victim A and Victim B have expressed in their statements. The consequences of the crimes on Victim A and Victim B are the somewhat inevitable effects of such crimes encompassing the violation of privacy.
50․The Court must discourage such offences which regrettably appear to proliferate in this age of ever-present communication technology and as such, the appeal to the more base nature of human beings rather than the higher selves of humanity (to paraphrase Abraham Lincoln).
Objective seriousness
51․An assessment of the objective gravity of an offence has always been an essential part of the sentencing process. However, it is not necessary for a judge to indicate where the offence falls in a scale of low, midrange, or high; what is required is for a court to “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. Labels may often obscure more than labels may illuminate concerning categorisation of objective seriousness.
52․Relevant identifying features are as follows.
Use carriage service to menace/harass/offend
53․In R v Hudson [2019] ACTSC 110 Murrell CJ at [43] considered matters relevant generally to objective seriousness of this specific offence including the period of time of the harassment in question, the nature of the communications, and the fear of the victims.
54․The prosecution properly submitted the following in relation to relevant identifying features. I agree with the cataloguing of the relevant identifying features as these features accord with my view of the objective seriousness factors to be identified concerning the specific offending in this case:
(a)The offending occurred over a period of a number of months in relation to both victims.
(b)The offending in both rolled up Counts (Counts 2 and 3) involved comments, threats and discussion regarding a video where Victim A was engaged in sexual intercourse. In relation to Victim A, there was no memory of a video being taken.
(c)The offending was motivated by retribution.
(d)The messages and phone calls involved threats by the offender to send the video to Victim A’s employer, with the intention that Victim A would lose her employment.
(e)The offending included a not insignificant number of text messages and phone calls.
(f)The offender persisted in the offending, despite requests to stop contacting both Victim A and Victim B.
55․These identifying features outlined above in my view contribute to the serious nature of the offending concerning Count 2 and Count 3.
Distribution offence (s72C)
56․In Morrison v Maher (No 2) [2022] ACTSC 63 at [117], Mossop J usefully summarised a number of factors generally relevant to an assessment of the objective seriousness of this category of offending:
(a)The number of images distributed.
(b)The nature of the content.
(c)The mechanism by which the image or images were distributed.
(d)The extent of the distribution.
(e)The knowledge of the offender as to the impact of the distribution on the victim.
(f)The intention of the offender (I note the prosecution submissions referred to “motivation” rather than “intention”. Mossop J at [117] in fact referred to intention).
(g)Whether the offending occurred in a family violence context.
57․The prosecution, correctly in my view, submitted that the present offending involved the distribution of one video, and that the content was of a high level of intimacy and involved sexual acts occurring between Victim A and the offender’s boyfriend. The video was of 2 minutes and 45 seconds duration, and the video captured sexual intercourse occurring between Victim A and the offender’s boyfriend.
58․Further, the prosecution correctly submitted that the video was sent to Victim B with the intention of causing humiliation to Victim A and disharmony to both victims.
59․Counsel for the offender properly underlined at the sentence hearing, in relation to the question of objective seriousness that, apart from the video being sent to Victim B, there was no evidence that the video was distributed to anyone else.
60․The above outlined matters are all relevant identifying features concerning the objective seriousness of Count 4.
Personal circumstances of victim as known to offender (ACT Sentencing Regime and Commonwealth sentencing regime)
61․Section 33(1)(d) of the Sentencing Act states:
33 Sentencing—relevant considerations
(1) In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
….
(d) if the personal circumstances of any victim of the offence were known to the offender when the offence was committed—the circumstances
62․Self-evidently, on the facts the offender was aware of the nature of the relationship between Victim A and Victim B. I note s 16A(2)(d) of the Commonwealth Crimes Act refers to taking into account the personal circumstances of the victim.
Victim impact statements (ACT and Commonwealth sentencing regimes)
63․Section 33(1)(f) states:
33 Sentencing—relevant considerations
(1) In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
….
(f) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;
64․I note both Victim A and Victim B provided victim impact statements to the Court concerning their mental stress arising from the offending. The victims have experienced consequent harm and distress that follows from such offending. I note s 16A(2)(ea) of the Commonwealth Crimes Act also refers to taking into account Victim Impact Statements.
Subjective circumstances
65․In evidence before me, is a pre-sentence report (PSR) from January 2025 and an Intensive Correction Order Assessment Report (ICOAR) also from January 2025.
66․Additionally, a psychologist report dated 8 January 2025, prepared by Mr Bilboe, was tendered on behalf of the offender. I note a short summary of the psychologist report is set out later in this judgment at [82]-[96].
Family/marital background
67․The offender is now 52 years of age and currently single.
68․The PSR noted that the offender was born and raised by her parents in Canberra, ACT. The offender reported to the author of the PSR that she maintains a close and loving relationship with both her parents. The offender reported she had been subject to family and domestic violence with previous partners.
69․The offender has two adult children from a prior relationship, who are now aged 21 and 20 respectively. A previous marriage ended in divorce in 2011.
70․The offender reported her most recent relationship ended in April 2023, after she became aware her then-partner had been unfaithful.
Accommodation
71․The PSR noted that the offender currently resides alone, in a privately owned house in the ACT where she has resided for many years.
Education and employment
72․The offender completed her secondary education to year 12 in the ACT and subsequently attended university for three years, attaining a Bachelor of Arts.
73․The offender’s career was in the Public Service (APS), which commenced in May 1995 and spanned approximately 20 years. The offender also worked in the private sector.
74․The offender has remained unemployed since January 2024 and expressed a desire to re-enter the workforce, however also expressed concern that her criminal history may now prevent her from obtaining employment.
Financial situation
75․The offender reported to the author of the PSR that she is not currently in receipt of any wages, nor is she in receipt of any welfare payments. The offender advised she has been drawing down from her savings since her last employment ended in January 2024.
Alcohol and/or drug use
76․The offender identified her misuse of alcohol as problematic, and identified it as having been a contributing factor in her offending behaviour. Significantly, the offender has indicated her willingness to participate in further programs and counselling to address her problematic use of alcohol.
77․The PSR noted that the offender was subject to drug and alcohol testing via urinalysis on 13 January 2025, which returned a positive result for alcohol, and negative result for all other substances tested.
Medical, emotional and mental health
78․The offender reported long-term counselling with a private psychologist over the last ten years, and has received counselling for trauma arising from domestic violence, and has received relationship counselling and counselling generally. Importantly, the offender has continued counselling with her psychologist.
Attitude to offence
79․The PSR noted that the offender stated she mostly agreed with the Statement of Facts, however claimed the Statement of Facts only contained a partial account of the events. The offender stated she had responded to threats made against her ex-partner.
80․Nevertheless, the offender stated she did not wish to minimise her own actions, and acknowledged she should have let her ex-partner handle the matter himself. The offender expressed regret and sorrow that the victims of the offences had felt harassed, and accepted her actions had been unlawful.
Restorative justice referral
81․The Court notes that the offender is eligible for a referral to Restorative Justice.
Report of Psychologist
82․As noted above, a psychologist report dated 8 January 2025, authored by Mr Bilboe, was tendered by the defence. The psychologist report was broadly consistent with the PSR, there were however some points of distinction that were addressed upon by counsel.
83․The report stated that the offender has had a major depressive episode with associated reactive type behaviours resulting in her being charged with offences.
84․The report further stated that the offender has “a terrible history of trauma associated with domestic violence (physical, verbal, emotional and psychological) and has been a patient on and off since 2014, with therapy being interrupted due to financial constraints and COVID.”
85․The report stated that the offender went through a difficult and “acrimonious” divorce resulting in severe emotional distress and a subsequent breakdown requiring ongoing psychological supports.
86․The report further stated that when discussing the current events before the Court, the offender was able to express “appropriate regret for her actions with evidence of remorse.”
87․The report further stated that the offender reported her relationship deteriorating in October 2022 when her then partner assaulted her. He was charged with domestic violence. The offender stated that, at the court hearing, her partner’s female manager provided a reference supporting her partner.
88․Following the May 2023 hearing, the offender reported to the psychologist a number of events which caused her personal and emotional distress.
89․The offender stated to the psychologist that she spoke with her then partner about what she had seen on his phone and subsequently with the female manager via phone call. The offender admitted to the psychologist that she was emotionally upset and angry because of the betrayal by her then partner.
90․The offender admitted to the psychologist that she became upset and angry resulting in a severe emotional melt down and loss of impulse control. The offender further stated that she immediately regretted sending the video.
91․The offender described to the psychologist threats and demand for monies with menace ($5,000) made by Victim B.
92․The offender further reported that the threats continued while her partner was in custody, including death threats concerning her then-partners life, and that the AFP contacted her then-partner to advise him that they were aware of these threats.
93․The psychologist stated that the offender has a recurrent and significant alcohol abuse issue following a history of significant domestic violence abuse prior to these current events, going back to 2009. The report stated that the offender has long standing evidence of Battered Person Syndrome and being in a coercive control relationship, resulting in the onset of PTSD, anxiety and depression.
94․The psychologist stated that the offender had been a client since 2014 and attended counselling services under her doctor’s referral and as a victim of crime and further stated that a review of his records has shown that the offender makes gains then relapses due to her interpersonal relationships and a “need to be needed.” The psychologist further stated that due to the offender’s current situation the need for ongoing treatment is clearly apparent.
95․The psychologist further noted that the offender advised she is caring for her father (aged 81) and mother (aged 84) who have both been diagnosed with and treated for cancer. They have completed their treatments and are now in post-treatment recovery phases and have some difficulties with their day-to-day routines.
96․Mr Bilboe recommended further psychological counselling treatment with a focus on Interpersonal Psychotherapy (IPT) to address the underlying issues related to the offender’s past traumatic experiences and her subsequent dependency on alcohol as a self-medication in dealing with personal stress and emotional distress, and interpersonal conflict related to her partner and his drug related behaviours.
Submissions on subjective circumstances
97․Counsel for the offender properly submitted that the Court would have regard to the following subjective circumstances of the offender.
98․The Court does have regard to the following relevant subjective sentencing factors.
(a)The offender is aged 52.
(b)The offender has only a limited prior criminal record apparently dealt with 9 years ago.
(c)The offender has already spent 2 days in custody following her arrest.
(d)Discernment of the offenders motive should be carefully confined to her desperation at her boyfriend’s behaviour.
(e)The offender has expressed her regret and remorse to the author of the PSR/ICO reports and to her psychologist.
(f)The offender’s history of trauma and alcohol abuse arising from domestic violence and the behaviour of her partner.
(g)The offender was upset and angry and felt betrayed by her partner resulting in severe emotional meltdown and her loss of impulse control when committing these offences.
(h)The offender has elderly parents who are in post treatment recovery from cancer.
99․In oral submissions, the prosecution submitted that the psychologist did not provide any opinion between the link specifically of the offender’s mental health and depression and the offences, other than to say that in April the offender experienced a series of events that caused her to be emotionally angry and upset, upon discovering the infidelity of her partner and the death of her dog. Further, the prosecution submitted this does not account for the length of the offending and the period over which the offending took place as these offences were not fleeting, spontaneous bursts of anger, but lasted over a period of many months. The prosecution properly submitted that these acts were not a momentary loss of control but appear to be sustained harassment of the victims.
100․In this vein, the prosecution submitted that the offender has previously demonstrated, prior to these offences, her capacity to seek psychological assistance and submitted the offender did not seek treatment in this instance and rather, continued to engage in the conduct without recognising the significant impact that the offending had on her victims.
101․Further, the prosecution submitted it is not clear whether specific and general deterrence are moderated to any extent on the basis of the offender’s mental health, and that there is no clear link between her mental health and the offending behaviour. Additionally, the prosecution submitted that general and specific deterrence could only be moderated to a limited extent. I accept this submission concerning limited weight. On the evidence, I do not accept the prosecution submission of no weight.
102․The prosecution correctly referred to s 33(1)(o) of the Sentencing Act which relates to “the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants” and submitted that evidence of the offender caring for her parents is not reflected in the PSR or ICOAR.
103․As foreshadowed above at [101], in relation to the weight concerning relevant mental illness factors under the well established principles enunciated in R v Verdins [2007] VSCA 102; 16 VR 240 the weight to be attributed will be limited in light of the limited state of the evidence concerning these factors. This limited weight was a matter with which counsel for the offender properly did not cavil at the sentencing hearing.
Remorse
104․The Court notes that a plea of guilty is not of itself indicative of remorse: Miles v The Queen [2014] ACTCA 41 at [40]. Further, pleas of guilty are discussed in further detail below at [118] to [131].
105․The prosecution submitted that the offender’s focus on the conduct of Victim B in particular, as opposed to her own conduct indicates limited insight. In my view the offender on the evidence, has expressed remorse and I attribute weight to that fact. Nevertheless, the offender has also exhibited, on the evidence, somewhat limited insight which detracts to an extent from the expressed remorse.
Intensive Correction Order Assessment Report
106․The ICO assessment report of January 2025 concluded that the offender is suitable for an ICO. In my view, a term of imprisonment to be served by way of ICO is the appropriate sentence for the offender taking into account the following:
Response during ICO Assessment period
107․I note in relation to rehabilitation that importantly the offender was co-operative concerning the preparation of the report.
108․Further, it is noteworthy the offender was subject to drug and alcohol testing via urinalysis on 13 January 2025, which returned a positive result for alcohol, and negative result for all other substances tested. The offender clearly requires counselling concerning alcohol which is a matter an ICO can address.
Risk of reoffending
109․Importantly, concerning the risk of re-offending, the offender has been assessed at a low risk of general reoffending. This augers well for the rehabilitation of the offender and the suitability of an ICO.
Availability of suitable programs
110․The ICOAR noted that drug and alcohol treatment is available in the community through external services such as Karralika Programs. Additionally, the ICOAR noted that ACT Corrective Services can provide the offender with a list of residential rehabilitation programs in the ACT and surrounds. Mental health treatment is available through Canberra Health Services and general practitioners, and financial counselling support is available through Care Financial Counselling. Additionally, the ICOAR noted that the offender is already engaged with a psychologist for trauma counselling arising from previous family and domestic violence, and for relationship counselling. In my view, this offender’s rehabilitation would be greatly assisted by these programs rather than full-time imprisonment.
Community service work
111․As per s 80D(1) Sentencing Act, the offender has been assessed as suitable for a Community Service work condition. In my view, imposing a community service work condition would benefit the offender and benefit the community.
ICOAR assessment
112․The ICOAR noted the offender has a limited criminal history in the ACT dating from 2012, and has not previously been subject to any periods of incarceration, nor has the offender been subject to any prior supervised community based sentences.
113․The ICOAR noted that while the offender accepted the Statement of Facts, the offender maintained this had not reflected the entire story associated with her offending. Nevertheless, significantly this Court notes the offender acknowledged her actions had been unlawful however, and expressed regret and sorrow for the impact of her actions upon the victims. Although, I note the insight is somewhat limited as discussed earlier at [105].
114․The ICOAR opined that the offender would benefit from participation in an intensive Alcohol and Other Drug (AOD) program to address her problematic use of alcohol, to continue her engagement with her treating psychologist to address trauma arising from family and domestic violence, and to receive relationship counselling. The Court agrees that the offender would further benefit from an AOD program, regular psychological counselling, engaging with a financial counselling service, and engagement with a Job Network Provider for training and employment opportunities.
ICOAR recommendation
115․The ICOAR noted that the following factors associated with the offending would be targeted if an ICO were ordered by the Court. In my view such counselling in these areas is clearly called for in relation to this offender, on the evidence before me.
(a)Education/employment;
(b)Financial;
(c)Alcohol/drug problem;
(d)Emotional/personal.
Criminal History
116․As noted earlier above at [98], the offender has a limited criminal history, including:
(a)Two offences of contravening a personal protection order from 2015 and 2016, for which the offender was sentenced to rising of the Court;
(b)Two counts of destroy/damage property from 2015, for which the offender was convicted and sentenced to a good behaviour order.
117․The offences from 2015 and 2016 all relate to the former partner of the offender and were committed within that domestic relationship.
Guilty pleas
118․The offender entered pleas of guilty on 13 November 2024 after committal and after negotiations arising out of a criminal case conference.
119․As previously noted, the offender entered pleas of guilty to Counts 2, 3 and 4. This was accepted in full satisfaction of the indictment.
120․Concerning the ACT offence, pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
121․Pursuant to s 35(2)(c) of the Sentencing Act, I note that the pleas were the subject of negotiations between the parties. In Blundell v The Queen [2019] ACTCA 34 at [12], the ACT Court of Appeal stated that the utilitarian value of pleas indicated at criminal case conferencing is such that “a discount in excess of 10%, and almost always within the range of 15 to 20%, is required”. The negotiations resulted in a reduction of charges with Count 1 to be rolled into Count 2.
122․I further note that s 16A of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act), was amended with effect for any sentence imposed on or after 20 July 2020, the Court is now required to take into account, if an offender has pleaded guilty to a charge, the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g)(iii). Previously, ACT authority in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 prohibited a court from taking into account the utilitarian value of a plea. I will take into account the utilitarian value of the pleas.
123․Concerning Counts 2 and 4, the prosecution submitted that the Court ought not make any significant reduction based on the offender’s plea of guilty, as the prosecution case was overwhelmingly strong and relied on s 35(4) Sentencing Act. Section 35(4) is, of course, relevant to the ACT offence (Count 4) but it is not relevant to the Commonwealth offences. Regrettably, both counsel for the prosecution and counsel for the offender did not broach this important consideration in their submissions.
124․As noted above, the prosecution submitted that in relation to Counts 2 and 4 on the Indictment, s 35(4) Sentencing Act has application. I underline that Count 2 is a Commonwealth offence and as such a different sentencing regime applies, therefore this is an erroneous prosecution submission concerning Count 2. The prosecution referred to the following matters:
(a)The distribution of the video to Victim B was located in communications from the offender’s phone;
(b)The messages recovered from the offender’s phone were the same messages recovered from the phone of the two victims; and
(c)The threats to distribute the video to Victim A’s employers were contained within text messages.
125․Therefore, the prosecution submitted that the case against the offender was overwhelmingly strong, and an acquittal, was realistically unlikely: R v Newby [2022] ACTCA 20 at [31].
126․The prosecution further submitted that in R v Snowden [2022] ACTSC 186 Mossop J at [47]-[48] recognised that a determination of what would be a significant reduction may “vary from case to case” and observed that a discount that reflects the utilitarian value of the plea but is not a “significant reduction” for the purposes of s 35(4), would be in the order of five percent.
127․The prosecution further submitted that the case in relation to Count 3 was not overwhelmingly strong and the utilitarian benefit of the pleas should be acknowledged. Again Count 3 was a Commonwealth offence so the reference to “overwhelmingly strong” and s 35(4) was inapt.
128․Conversely, counsel for the offender submitted that the plea should be afforded a 15% discount and did not address the issue that Counts 2, 3 and 4 involved both Commonwealth and ACT offences. Neither the prosecution nor the counsel for the offender addressed the fact that discounts for pleas of guilty were governed by different regimes.
129․Counsel for the offender conceded the case against the offender, on the established facts in this sentencing exercise, was a strong one, nevertheless the Court should find that this case “does not fall into the very small class of cases that satisfy the overwhelming strong requirement in s 35(4) of the Sentencing Act.”
130․Counsel for the offender (addressing s 35(4) but not addressing the separate sentencing regimes) submitted that the strength of the prosecution case is not an otherwise relevant consideration, and it is not relevant to the utilitarian value of the plea as the benefit of the plea is considerable in the case.
131․Taking into account the relevant matters, in my view, a discount of approximately 10% is appropriate for Count 4 (the ACT offence). As to the Commonwealth offences, in my view a discount of approximately 20% is appropriate for Count 3 and a discount of approximately 10% is appropriate for Count 2.
132․The prosecution submissions concerning s 35(4), part of the ACT sentencing regime, should only be directed to Count 4 (the only ACT offence). Regrettably, this consideration was not understood by either counsel.
Time in custody
133․Significantly, the offender has spent two days in custody referable to this offending. I have taken this time in custody into account in determining that the term of imprisonment should be served by way of ICO.
Comparable cases
134․I was not referred to any comparable sentencing cases by either counsel. This case is, as was conceded by both counsel and I agree, certainly an unusual case.
Statutory and other relevant considerations
135․As I have made clear in this judgment, different statutory regimes apply to the sentencing of the offender, as the offender has pleaded guilty to both Commonwealth offences and ACT offences. I underline that the issue of the distinct sentencing regimes was not addressed by counsel either in oral or written submissions at the sentence hearing on 28 January 2025. This necessitated that I broached the issue with both counsel at the sentence hand down on 28 February 2025.
136․The principles of sentencing for Commonwealth offences are contained in Part 1B of the Commonwealth Crimes Act. Section 16A(1) states that a sentence must be of a “severity appropriate in all the circumstances of the offence”. A non-exhaustive list of factors to be taken into account are contained in s 16A(2).
137․Sentencing for the Territory offences is determined in accordance with the ACT Sentencing Act.
138․In sentencing the offender in relation to the ACT offence, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
139․The court sentences in relation to the ACT offence (Count 4), in the context of the sentencing purposes outlined in s 7 Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are all important sentencing considerations and accord with common law principles of sentencing.
140․As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357. The court does so noting the maximum penalty of 5 years (Commonwealth) and 3 years (ACT). The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO, including community service work as a condition. Properly, the prosecution did not cavil with this submission. I agree that in this case an ICO is appropriate on the evidence as I have discussed earlier at [106] to [115] and [133] and below at [145] and [152].
141․The prosecution correctly submitted a term of imprisonment was warranted, taking into account the following:
(a)The length of time the offending persisted;
(b)The nature of the threats made; and
(c)The number of the communications from the offender.
142․In my view the offending warrants a term of imprisonment. Nevertheless, I would order that the term of imprisonment be served by ICO in light of the matters discussed above. I am not of the view that any term of imprisonment should be served by way of full-time imprisonment.
Totality
143․Further, I note I have taken into account the principles of totality, such that when sentencing for multiple offences, as the court must in this case, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38. In relation to concurrency, I note O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27] in this regard.
144․I have taken these principles into account as a matter of totality in formulating the overall sentence. There will be both concurrency and accumulation in respect of the sentences, taking into account these principles.
Rehabilitation
145․On the evidence, the offender’s prospects for rehabilitation are readily apparent and will be significantly improved by serving the sentence by way of ICO as discussed above at [106] to [115]. Rehabilitation is an important consideration, as stated by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]. Rehabilitation is important in facilitating protection of the community and is for that reason in the public interest:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
Commonwealth and ACT Offences
146․Combining sentences for Commonwealth and ACT offences is not without sentencing complexity. The Court may not impose a single non-parole period or recognizance release order in respect of both Commonwealth and ACT terms of imprisonment: Commonwealth Crimes Act s 19AJ.
147․These structures need not concern the court in this case in circumstances where I have determined that the sentence should be served by way of ICO.
148․In accordance with s 19(3) of the Commonwealth Crimes Act, where an offender is sentenced to a term of imprisonment for Commonwealth and Territory offences, the Court is required to direct when the Commonwealth sentence commences, but so that:
(a)No federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b)If a non-parole period applies in respect of a Territory sentence, the first federal sentence to commence after the end of that non-parole period commences immediately after the end of that period.
149․I note that this matter was not addressed by counsel at the sentencing hearing on 28 January 2025. Nevertheless, I broached s 19(3) with counsel on 28 February 2025 so that the sentencing would be in accordance with s 19(3). See R v Crivici [2024] ACTSC 156, DPP v Matas [2024] ACTSC 234 and Edwin v The Queen [2014] ACTCA 47.
Sentence
150․It must be recognised by the Court that the offence committed against the victims has had a serious and significant impact upon both.
151․As I stated at the sentencing hearing, both the short and long-term consequences of being victims of this offence must be acknowledged.
152․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters concerning the offender.
153․The appropriate sentence for use carriage service to menace/harass/offend (Count 3) (CC2023/12587) is 5 months imprisonment, reduced to 4 months on account of the plea of guilty (discount 20%).
154․The appropriate sentence for use carriage service to menace/harass/offend (Count 2) (CC2023/12586), is 14 months imprisonment, reduced to 1 year 17 days on account of the plea of guilty (discount 10% for the plea of guilty).
155․The appropriate sentence for non-consensual distribution of an intimate image (Count 4) (CC2023/12584) is 14 months imprisonment, reduced to 1 year 18 days on account of the plea of guilty (discount 10%).
156․As I noted in R v Elson [2020] ACTSC 264 at [85], it must be remembered that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be a ‘significant punishment, coming second only to a term of full-time imprisonment’: R v Srna [2018] ACTSC 337 at [13]. The content and conditions of the ICO will require strict adherence on the part of the offender and if this is not done could result in a period of full-time custody.
157․The total aggregate sentence of imprisonment is 2 years 1 month commencing on 28 February 2025 and expiring on 25 March 2027 to be served by way of ICO.
Orders
158․For these reasons the following orders are made:
(a)For the offence of use carriage service to menace/harass/offend (Count 3) (CC2023/12587), contrary to s 474.17 Criminal Code Act 1995 (Cth), the offender is convicted and sentenced to 4 months imprisonment that will commence on 28 February 2025 and expire on 27 June 2025.
(b)For the offence of use carriage service to menace/harass/offend (Count 2) (CC2023/12586), contrary to s 474.17 Criminal Code Act 1995 (Cth), the offender is convicted and sentenced to 1 year 17 days imprisonment that will commence on 27 April 2025 and expire on 13 May 2026.
(c)For the offence of non-consensual distribution of an intimate image (Count 4) (CC2023/12584), contrary to s 72C Crimes Act 1900 (ACT), the offender is convicted and sentenced to 1 year 18 days imprisonment that will commence on 10 March 2026 and expire on 27 March 2027.
(d)The sentence of imprisonment imposed pursuant to orders a, b and c is to be served by way of intensive corrections order subject to the core conditions and a condition that the offender perform 100 hours of community service within 12 months from the commencement of the sentence and continue psychological counselling.
| I certify that the preceding 158 numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: 11 March 2025 |
0
30
4