Director of Public Prosecutions v Murphy (No 2)

[2023] ACTSC 227

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Murphy (No 2)
Citation:	[2023] ACTSC 227
Hearing Date:	15 August 2023
Decision Date:	17 August 2023
Before:	Mossop J
Decision:	See [110].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence –
offender found guilty by jury of offences including recklessly inflicting grievous bodily harm, engage in sexual intercourse
without consent and choke strangle or suffocate – where
offender pleaded guilty to other charges following finding of guilt
– where all offending occurred in family violence context –
offences range from the mid-range of objective seriousness to
the worst category of case – risk of further offending – sentence
of full-time imprisonment imposed
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74 Crimes Act 1900 (ACT), ss 23, 24, 25, 26, 54(1), 116(3) Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(za), 34B
Cases Cited:	R v Wilkinson (No 5) [2009] NSWSC 432
Parties:	Director of Public Prosecutions Shay Kahu Murphy (Offender)
Representation:	Counsel
A Williamson SC (DPP) J Maher (Offender)
Solicitors
Director of Public Prosecutions Paul Edmonds & Associates (Offender)
File Numbers:	SCC 92 of 2022
SCC 93 of 2022
SCC 350 of 2022
MOSSOP J:
Introduction
1․	These proceedings are sentencing proceedings relating to Shay Kahu Murphy.
2․	On 10 February 2023 he was convicted by a jury of nine offences on an indictment dated
7 February 2023. Those offences related to two victims. At the commencement of that
trial (prior to the empanelment of the jury), he pleaded guilty to the transfer charge of
property damage (CC2021/11052), although it was noted at the time that the facts
underpinning that charge were disputed.
3․	Severed from that proceeding were two charges relating to two other victims. These
charges were contained on a second indictment dated 11 April 2023. On 12 April 2023
the offender pleaded guilty to both charges the subject of the severed proceeding.
4․	There remain the outstanding transfer charges pressed by the Director of Public
Prosecutions (DPP) which this court has a discretion to deal with on the evidence
adduced in the trial if it considers that it is in the interests of justice to do so. It is in the
interests of justice that they be determined by this court. The prosecution accepts that
some of those transfer charges should, in light of the jury’s verdicts on associated counts,
be dismissed. Leaving aside the charges in this latter category, the charges to be dealt
with, set out in roughly chronological order, are as follows. For reasons given in a
moment, the victims are identified as Ms A, Ms B, Ms C and Ms D.

Offence Date Victim

1	Negligently causing grievous bodily harm	31 August 2011 –	Ms A
(Count 3: CC2022/1150)	9 December 2011
2	Recklessly inflicting grievous bodily harm	8 December 2011 –	Ms A
(Count 6: SCAN2022/61)	17 December 2011
3	Engage in sexual intercourse without	1 September 2011 –	Ms A
consent (Count 9: CC2022/1153)	1 March 2012
4	Common assault (CC2021/11049)	1 August 2012 –	Ms B
31 August 2012
5	Common assault (CC2021/11050)	1 August 2012 –	Ms B
31 August 2012
6	Property damage (CC2021/11052)	16 October 2012	Ms B
7	Assault occasioning actual bodily harm	1 August 2012 –	Ms B
(Count 10: SCCAN2022/63)	18 December 2012
8	Assault occasioning actual bodily harm	30 November 2012 –	Ms B
(Count 12: CC2021/11054)	1 August 2014
9	Common assault	1 December 2012 –	Ms B
(Count 18: SCAN2023/22)	1 August 2014
10	Common assault	1 December 2012 –	Ms B
(Count 19: SCAN2023/23)	1 August 2014
11	Sexual intercourse without consent	1 December 2012 –	Ms B
(Count 15: CC2021/11057)	1 August 2014
12	Common assault (CC2021/11058)	1 December 2013 –	Ms B
31 December 2013
13	Sexual intercourse without consent	31 July 2014 –	Ms B
(Count 17: SCAN 2022/65)	30 November 2018
14	Choke, strangle or suffocate (Count 1:	1 September 2019	Ms C
SCCAN 2022/66)
15	Damage property (CC2021/11194)	24 February 2020 –	Ms C
8 May 2020
16	Common assault (CC2021/11195)	16 March 2020	Ms C
17	Assault occasioning actual bodily harm	7 November 2021	Ms D
(Count 2: CC2022/310)

5․	The charges that the prosecution submits, in light of the verdicts of the jury on related
offences, should be dismissed, are as follows.

(a) Common assault (CC2022/1148): This was temporally associated with count 1

on the first indictment upon which the offender was found not guilty;

(b) Common assault (CC2022/1146): This was temporally linked to count 2 on the

first indictment upon which the offender was found not guilty; and

(c) Common assault (CC2021/11051): This was a backup charge to count 10 on

the first indictment upon which the offender was found guilty.

6․	Having regard to the prosecution submission with which the offender does not disagree,
each of these charges will be dismissed.

Victims of the offending

7․	At the sentencing hearing, counsel for the prosecution informed the court that each of
the victims of the offending consented to being identified in a publication relating to the
proceedings. This was significant for the purposes of s 74 of the Evidence
(Miscellaneous Provisions) Act 1991 (ACT) which prohibits the publication of the name
of a complainant in sexual offence proceedings, or information from which the
complainant’s identity might be worked out. It is a defence to any charge under that
provision if the complainant has consented to the publication before that publication
happened.
8․	The reason that the complainants consented to being identified was because they
wished to ensure that the offender could be publicly identified and that his name or
identity was not the subject of any suppression order designed to protect their identities.
9․	At the commencement of the sentencing hearing the court discharged the
non-publication and pseudonym orders that had been made in January 2023 relation to
the offender.
10․	Notwithstanding the consent of each of the victims of the offending, there is no need, for
the purposes of these reasons, to refer to each of them by name and I will refer to them
in these reasons as Ms A, Ms B, Ms C and Ms D.

Facts and objective seriousness

11․	The facts in relation to the offences against Ms A and Ms B (count 3, count 6, count 9,
count 10 count 12, count 15, count 17, count 18 and, count 19) must be determined
based on the evidence given at the criminal trial. The facts in relation to Ms C and Ms D
are agreed and set out in an Agreed Statement of Facts. In order to make these reasons
more understandable, I have included, after the relevant facts, my assessment of the
objective seriousness of the offending.
12․	In identifying the objective seriousness of the offences I have taken care to consider the
immediate context in which that offending has taken place. I have adopted the approach
identified by Johnson J in R v Wilkinson (No 5) [2009] NSWSC 432 at [61]:

Care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. However, the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime: Director of Public Prosecutions v England [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: Director of Public Prosecutions v England at 263-264 [18].

13․	In relation to the offending against Ms B, Ms C, and Ms D, I have also taken into account
that this offending involves family violence offences and the matters required to be
considered under s 34B of the Crimes (Sentencing) Act 2005 (ACT) (CS Act).

Offending against Ms A

14․	In September 2011, Ms A, who was then a student in Year 10 at a local high school,
undertook work experience at Michel’s Patisserie in the Cooleman Court Shopping
Centre in Weston. The offender was a full-time employee. Ms A subsequently got a
casual job there and worked on Fridays and Saturdays. She was 16. He was 20.
15․	She and the offender struck up a friendship and were communicating regularly with each
other. She did not know that he was in a relationship with another woman until the other
woman visited him at work and it was clear that she was his girlfriend. The girlfriend
worked at a hospital. The offender subsequently explained to Ms A that he was trying to
leave his girlfriend.
16․	Ms A continued to go to his house when his girlfriend was not there. Ms A felt she could
not tell her parents the extent of her involvement with the offender. He instructed her to
tell her parents that she was going to work or for a walk when in fact she was seeing
him. Ms A felt she could not tell her sister with whom she was very close. The offender
suggested to her that the problem was her parents who were controlling. Ms A suffered
conflicting feelings because on the one hand he was interested in her and wanted her
around, yet on the other she felt really bad because she was lying to her family.
17․	Controlling and aggressive behaviour became a feature of the relationship. On one
occasion at work, he took her phone and interrogated her about an old message on the
phone, thinking it was from a male friend when it was from a female friend. After that,
she felt obliged to message him constantly or he would get upset or aggressive.
18․	The offender fabricated a story that she had made a complaint to him of being sexually
abused by her brother. She would do what he told her to do because she was scared of
the consequences if she did not.

Count 3: Negligently causing grievous bodily harm

19․	Sometime at the end of 2011, the offender required Ms A to give him access to her email.
There was an argument about this. Subsequently Ms A saw that the offender had cut his
chest. He told her that he needed her to do something for him, which was to cut herself.
She felt that this was the only way she could make the situation better and as a result
she used the knife that he had used to cut herself on her thigh close to her underwear.
It began bleeding. Although the scar from the cut has now faded, it is still visible. This is
count 3, negligent infliction of grievous bodily harm, which the offender was found guilty
of by the jury.
20․	The offending involved emotional manipulation of a teenage girl in circumstances where
there was an age and power differential between the two. It did, however, involve
grievous bodily harm at the very lowest end of what could come within the scope of that
concept. It is at the low end of objective seriousness for this offence.

Count 6: Recklessly inflict actual bodily harm

21․	The offender demonstrated controlling behaviour in relation to Ms A’s attendance at her
Year 10 formal in December 2011. He later claimed that she had really hurt him and
required that she cut herself using a house key. She refused and he became aggressive
when she could not cut her arm with the key. He pressed the key into her skin, hard and
quick across the top of her arm. This made a cut which began bleeding. Ms A still has a
scar from that incident. This is count 6, recklessly inflicting actual bodily harm, on which
the offender was found guilty by the jury.
22․	This offence involved controlling, manipulative and violent behaviour on the part of the
offender in circumstances where there was an significant power differential between him
and Ms A. Although the harm involves a modest example of actual bodily harm, the
circumstances of the offending lead it to be in the low to mid-range of objective
seriousness for this offence.

Count 9: Sexual intercourse without consent

23․	After the date of the formal, the offender instigated a sexual interaction. Ms A had never
done anything like that before. He told her to pull off her pants and underwear. He went
to the bathroom and returned with an erect penis and a condom on. She felt
overwhelmed and out of her depth. He told her to try to relax. He penetrated her vagina
with his penis and was quite gentle at first. She found it painful. He told her to stay calm.
She began crying, saying it hurt too much and that she did not want to continue. She
tried to get up but he stopped her. He pushed down on her shoulders and penetrated
her vagina deeply until she felt a pain at the very bottom of the stomach. While he
continued with the intercourse she zoned out. After he was finished, she felt her vagina
and saw bright red blood on her hand.
24․	Prior to this incident the offender and Ms A had not had any sexual relationship. I reject
beyond reasonable doubt the offender’s evidence that Ms A was the one who instigated
sexual activity or that intercourse had happened on multiple occasions. As I indicate
elsewhere in these reasons, I considered that the offender’s oral evidence was, to the
extent that it did not involve admissions, self-serving and unreliable.
25․	The relationship between Ms A and the offender ended in February 2012 after she made
a limited disclosure to her sister-in-law.

26․ The sexual intercourse without consent charge relates to the continuation of the

intercourse after the complainant began crying and said that she did not want to continue.

The offender correctly points out that a number of potentially aggravating features were

not present. However, the offending involved a significant age and physical differential

between the parties, the use of force to prevent the victim from getting up and knowledge

of the lack of consent. It is in the mid-range of objective seriousness for this offence.

Offending against Ms B

27․ In relation to each of the three transfer charges that remain to be determined

(CC2021/11049, CC2021/11050, CC2021/11058) it is necessary for the court to

determine whether or not those are established beyond reasonable doubt. I found Ms B

to be a compelling witness. As I point out later in these reasons, she gave detailed

evidence about very difficult matters in a matter-of-fact way. I have no doubt that she

was honestly recalling the events as they had occurred to the best of her recollection.

Her evidence on the number of matters denied by the offender was supported by

evidence of complaint and admissions by the offender. I did not consider that the

offender’s evidence gave rise to any reasonable doubt about the accuracy of the Ms B’s

evidence of these events.

28․	The offender and Ms B met when they were working at the Canberra Hospital. The
relationship commenced in July 2012 when Ms B was about 18 years old. This was
shortly after he had broken up with the girlfriend with whom he was involved during his
relationship with Ms A.
29․	The offender and Ms B got married in 2016. They had a daughter in February 2016. The
relationship ended in November 2018.
30․	The evidence disclosed a pattern of behaviour on the part of the offender reflecting
violence, abuse and manipulation of Ms B. There was significant evidence relied upon
for contextual purposes which indicated that this was the case. During the course of his
relationship with Ms B the offender was suspicious of her involvement with other men
and would accuse her (without any foundation) of having a sexual relationship with her
brother. He would search through Ms B’s phone. He would go through her underwear
and question her about any discharge on her underwear. The relationship was verbally
and physically abusive. He would call her a whore and a slut. On occasion, the offender
would cut himself after arguments, saying that it was her fault.

Transfer charge CC2021/11049: Common assault

31․	On a date in August 2012 Ms B was lying on her back on the queen bed at their house
in Fisher. He punched her four times in the upper thigh or thighs. She was crying and
screaming. This is the transfer charge of common assault (CC2021/11049).
32․	The offending occurred within a family violence context. It therefore must be recognised
as involving an exploitation of physical power in the context of an intimate relationship.
It occurred in the context of controlling and manipulative behaviour on the part of the
offender. It is at the upper end of the mid-range of objective seriousness for this offence.

Transfer charge CC2021/11050: Common assault

33․	Ms B was planning a trip to Adelaide with friends. The offender was unhappy because
he did not want her to go. In the week leading up to the departure for Adelaide there was
an argument between the two of them in the study at their home. The offender punched
Ms B on her sternum between her breasts with a closed fist. She felt she could not
breathe and was gasping for air. She slid down the wall and sat down. She was crying
"Stop”. He said “Oh, you’re just winded”. I accept Ms B’s evidence about this incident. It
was corroborated by the evidence of the friend that she visited in Adelaide in
September 2012 and the hospital records relating to her attendance on 2 September
2012 at the Queen Elizabeth Hospital in Adelaide. I reject the offender’s evidence that
no punch ever occurred and that he simply deflected Ms B to the side as she came
towards him. This is the transfer charge of common assault (CC2021/11050) which I find
proved beyond reasonable doubt.
34․	Once again this occurred in the context of manipulative, controlling and violent behaviour
on the part of the offender. It is at the upper end of the mid-range of objective seriousness
for this offence.

Transfer charge CC2021/11052: Property damage

35․	The offender pleaded guilty to property damage relating to Ms B’s mobile phone
(CC2021/11052). The facts, however, were disputed. Ms B’s evidence was that on
16 October 2012 the offender took a screwdriver from the kitchen and used the sharp
end of it to break Ms B’s mobile phone. The offender agreed that he had broken her
phone but said he did so by throwing it off the balcony. Given the unreliability of the
offender’s evidence generally I reject his version of events beyond reasonable doubt.
36․	This offence has an upper limit of $5000. The mobile phone would have been of some
value although there was not specific evidence of that. The gravity of the offending is not
simply determined by the value of the property but rather must take into account the family violence context in which the offending occurred. It is in the mid-range of objective
seriousness for this offence.

Count 10: Assault occasioning actual bodily harm

37․	On an occasion between August and December 2012, the couple were fighting in the
lounge room. The offender became aggressive. Ms B ran down the hallway to the front
door. The offender caught up to her pushed her to the ground in the hallway. He used a
closed fist to punch her in the upper legs, her thighs, her crotch, her abdomen just above
her crotch and directly onto her vagina. She was crying. He was also crying and yelling
at her that he hoped she could never have children. This was particularly hurtful because
he knew that she always wanted to be a mother. He punched her at least 20 times. She
experienced deep bruises on the lips of her vagina, particularly on one side. She had
bruising on her lower buttocks on the outside of her thighs. When in the following week
she subsequently got dressed in shorts in order to travel to the coast he said that she
could not wear them because of the bruising that was visible in her legs. This is count 10
of which the jury found the offender guilty.
38․	This offending involved multiple punches to a vulnerable area of the victim in a family
violence context where the emotional impact of the offending and what was said at the
time magnified the consequences of the physical harm. Notwithstanding that there was
no wound inflicted, it is in the high end of the range of objective seriousness for the
offence of assault occasioning actual bodily harm.

Count 12: Assault occasioning actual bodily harm

39․	Around November 2012 the couple moved to a house in Rivett. On one occasion at that
house the couple were arguing. The offender pushed Ms B to the ground then lifted her
body up by the arms and with force pushed her back down onto the slate. She hit her
head hard on the slate. She had a cut on her head because her scalp was bleeding. This
is count 12 on which the jury found the offender guilty.
40․	This offending is in the mid-range of objective seriousness for this offence having regard
to the family violence context in which it occurred.

Count 18: Common assault

41․	Sometime between December 2012 and August 2014 at the Rivett premises the offender
engaged in what would be colloquially described as waterboarding. He was sitting on the
lower half of Ms B’s body so that she could not stand up. He put a bath towel over her
face, made sure her entire face was covered and then poured water from a mixing bowl
onto the towel that was on her face. She could not breathe because of the water. She was trying to move her head away from the water but could not. She felt she might die.
At one stage the offender paused to allow her to catch her breath before starting again.
This is count 18, a count of common assault upon which the jury found the offender
guilty.
42․	This offending is in worst category of case for a common assault. It combines physical
force used upon the victim, the use of a method with particularly awful overtones for the
victim, and extreme fear caused to the victim by the perception that she might die. These
features existed within a long-standing context of manipulation violence and control by
the offender.

Count 19: Common assault

43․	While at the Rivett premises there was an occasion where Ms B was on her back on the
bed wearing underwear and nothing else. The offender, who was angry, straddled her
on the bed and pressed his forearm into her neck. Ms B could not breathe or talk. She
was trying to suck in breath but could not get any air in. It felt like her windpipe was
blocked. She feared for her life. She became incontinent and defecated. She was able
to say “Something happened”. Although her words came out strangely, the offender
stopped. She was allowed to get up and leave. This is count 19, an offence of common
assault which the jury found to be proved.
44․	Once again, this offending is in the worst category of case for a common assault. The
physical violence was directed to the neck of the victim, occurred in the context of the
long-standing relationship involving family violence and resulted, either through fear or
instinctive response, the victim defecating.

Count 15: Sexual intercourse without consent

45․	Whilst at the Rivett premises, during an argument, the offender made Ms B stand in the
shower. She was upset and crying but did so out of fear that if she did not, she would
end up getting beaten. The offender turned cold water on. She stood there for a few
minutes with the offender standing outside the shower. He turned the shower off but
would not let her dry off. He made her go to the lounge room and sit in front of a fan. He
remained angry and argued with her. He told her to lie down. He sat high up on her chest.
He grabbed his penis and inserted it into her mouth, saying, “I’m going to piss in your
mouth”. She tried to move her head. The offender put his penis in her mouth and tried to
urinate but could not. After about five or 10 seconds he stood up and thereby released
her. This is count 15, the offence of sexual intercourse without consent upon which the
jury found the offender guilty.
46․	The physical act involved in the sexual intercourse without consent was, and was
intended to be, particularly degrading. It occurred as part of the regime of control and
oppression of the victim. The actual intercourse was only brief. Notwithstanding the
brevity of the intercourse, the other features of the offending indicate that it is at the
upper end of the mid-range of objective seriousness for this offence.

Transfer charge CC2021/11058: Common assault

47․	In December 2013, in the lead up to Christmas, Ms B said she wanted to break up with
the offender and wanted to leave. The offender said something to the effect of, “Well if
you’re going to leave me anyway I’ll give you one for the road”. He cornered her between
the window and the chest of drawers in the room and punched her five or six times in the
stomach using his fist in an uppercut motion. Ms B was crying. This is the transfer charge
of common assault (CC2021/11058). I accept Ms B’s evidence beyond reasonable
doubt. I reject the offender’s denial of this event. I therefore find this offence to be proved.
48․	The offending involved multiple blows to the victim. It was family violence offending that
occurred in the context of a violent and manipulative relationship. This offending is in the
upper end of the mid-range of objective seriousness for a common assault.

Count 17: Sexual intercourse without consent

49․	On an occasion after the couple had moved into a home in Conder in about August 2014,
the offender engaged in penile-anal intercourse with Ms B. She was crying because she
was in so much pain. After he had finished the offender told her that it was a real turnoff
that she was crying during anal sex. This is count 17, the offence of sexual intercourse
without consent upon which the jury found the offender guilty.
50․	This offending involved the continuation of anal intercourse despite it causing and being
known to cause pain to the victim. The offender is to be sentenced on the basis that he
was reckless as to the victim’s consent. His conduct plainly involved a callous disregard
for the victim as indicated by the comment that he made. It is at the upper end of the
mid-range of objective seriousness for this offence.

Offending against Ms C

51․	Between 28 February 2019 and 17 June 2020 the offender and Ms C were in a
relationship. They had met at the Canberra Hospital where they both worked.
52․	Within the first few months of the relationship the offender began to exhibit controlling
and abusive behaviours. He would often accuse Ms C of sleeping around and cheating
on him. He would lose his temper, yell at Ms C, threaten to assault her or other people
and call her derogatory names. She became increasingly upset and frightened by his acts of aggression. On several occasions, after the offender had gone into a rage, Ms C
observed him to cry or engage in self-harm by inflicting superficial knife wounds to his
chest.

Count 1: Choke, suffocate or strangle

53․ This offence occurred on 1 September 2019. Ms C picked up the offender’s

three-year-old daughter from the house of her mother, Ms B. Ms C spent the day with

the offender’s daughter engaging in suitable activities. At about 4:30pm she took the

offender’s daughter back to Ms B’s parents’ house and stayed there, speaking to them

for about an hour. Her phone was left in the car. The offender had called and texted her

several times.

54․	When she arrived home, the offender was in the garage feeding the dogs. He accused
her of “being out fucking someone” and said that she was “an escort or a prostitute and
being paid for sex”. He came very close to her so their noses were almost touching and
screamed that she was a “cunt”. His eyes appeared completely black. He was tense in
his upper body and was aggressive, agitated and breathing fast. Ms C was terrified and
started to walk towards the door that led into the house. The offender put both of his
arms over her shoulders and around her neck and pressed hard against the front of her
neck and throat. She tried to scream but could only make a gurgling sound because of
how tightly the offender’s forearms were clamped against her neck and throat. She did
not lose consciousness. He threw her backwards onto the concrete floor before walking
inside.
55․	The offender was apologetic at first but then blamed Ms C for leaving her mobile phone
in the car and not making him “her first priority on Father’s Day”. She asked him why he
had accused her of being a prostitute. He showed photos of a female on an escort
website that he believed to be her. She said it was not her, but the offender was reluctant
to accept this. The next day when she got home from work, the offender was sitting in
his daughter’s room against the bedroom wall, crying hysterically. He kept saying he was
going to lose his daughter and that she would be taken away from him. At some point
that afternoon he told her that he knew his conduct was domestic violence.
56․	The offence is in the mid-range of objective seriousness for this offence.

Transfer charge CC2021/11195: Rolled-up charge of common assault

57․	At some point after this, Ms C and the offender moved to a house in Isabella Plains. On
16 March 2020 Ms C and the offender were arguing. The offender shoved Ms C four
times. On the fourth time he pushed her backwards onto the bed because she tried to
leave the room. Following this, she tried to get dressed for work. The offender tried to snatch her bra out of her hand but he grabbed her breast instead. This hurt Ms C but did
not cause a mark or injury.
58․	That night the offender and Ms C were arguing again at home. The offender coughed up
some phlegm and spat it straight into Ms C’s eyes. He had a cold at the time and Ms C
noticed the phlegm was smelly. She was disgusted.
59․	She cried after this occurred and tried to leave the offender that night. He talked into
believing it was her fault and that she should not leave him.
60․	This offending is in the mid-range of objective seriousness because it involves a rolled-up
charge and because of the spitting component which is particularly degrading.

Transfer charge CC2021/11194: Rolled-up charge of property damage

61․	On 24 or 25 February 2020 at the Isabella Plains residence the offender wanted Ms C to
perform oral sex on him while he watched pornography on his phone. She refused to do
so and the offender got up, punched a hole in the wardrobe door and slammed the door
with such force that he broke the latch.
62․	On 29 or 30 April 2020 the offender threw a remote control at the wall in the lounge room
causing a hole.
63․	On 8 May 2020 the offender was at home with Ms C. He demanded that she tell him how
many sexual partners one of her work colleagues had slept with. She refused. In anger,
the offender slammed the bedroom door into the wall, causing two big holes.
64․	Ms C left the offender on 17 June 2020 but returned on 6 July 2020 and tried to repair
the relationship. On 12 July 2020 she left the offender for good.
65․	The rolled-up nature of this charge and the context in which the offending occurred put
it in the mid-range of objective seriousness for this offence.

Offending against Ms D

66․	Ms D was in a relationship with the offender from July 2021. They both worked at the
Canberra Hospital. At the start of the relationship small arguments occurred between
them but over time the offender became more jealous and distrustful and would ask to
read Ms D’s phone. Verbal abuse also became prevalent in the relationship to the point
that it became normal.

Count 2: Assault occasioning actual bodily harm

67․	On 7 November 2021, Ms D and the offender were at his house. She made a comment
about a male which led to him verbally abusing her for half an hour calling her a “whore” and a “cunt”. The offender later apologised and they went out had dinner and drank
alcohol. They returned to Ms D’s apartment. They drank a bottle of champagne there.
Ms D was tipsy. There was then a further dispute arising because the offender insisted
on seeing what was on her phone. He ultimately got her phone and when she he read
some messages on it he began yelling “You’re a stupid cunt whore, low value”. Ms D
tried to persuade the offender to read the messages with her so she could explain their
content.
68․	The offender left the apartment. She followed him because she was trying to stop him
from ending the relationship. He continued to call her a “cunt” and a “whore”. The
argument continued through the apartment block and out onto Lowanna Street in
Braddon.
69․	Ms D and the offender ended up on Torrens Street. He was walking and she was walking
backwards in front of him, facing him, trying to convince him to stop. At some point, Ms D
put both her hands on his arms and the offender was pushing her backwards as he
walked. The offender grabbed her shoulders with a hand on each shoulder. He threw her
off the pavement onto the adjacent dirt verge. She fell on her left hip and hit her head on
something hard on the ground. She did not have the opportunity to break her fall. She
felt dazed and dizzy and did not get up. He said to her “Get up”. She said that she was
not well. He said “If you don’t fucking get up I’ll call an ambulance”. He then called 000
and started speaking to the operator. Ms D asked him to stop because they would know
any of the paramedics that attended because they worked at the Emergency Department
of the Canberra Hospital. The offender ended the call. Ms D said “Just fucking go, get
away from me”. The offender left her there. Ms D managed to get back into her apartment
with the assistance of a neighbour. She told a friend about the incident the next day and
sent her photographs of her injuries. I accept that this offending occurred in
circumstances where the offender was attempting to cease interacting with Ms D.
70․	Having regard to the injury sustained, this is at the low end of the mid-range of objective
seriousness.

Victim impact

71․	Four victim impact statements were read at the sentencing hearing. Ms B and Ms D read
them in person.
72․	Ms A’s statement was read by the prosecutor. Ms A described having her sense of
security and trust being shattered, leaving her with physical scars and deep emotional
scars that have persisted in the years since the offending. These have ongoing effects
on her, particularly in her relationships and her self-esteem. She clearly described the sense of loss that she feels at having not been able to experience the excitement, joy
and imagination about the future that would be common for a teenager. Instead, she
suffered overwhelming fear and anxiety, shame, guilt and a constant sense of
vulnerability. After the offending she spent many years isolating herself. The offending
continues to have impacts upon her sexual relationship with her husband. The statement
accurately describes the ripple effects of such offending that have flowed through to her
family and friends.

73․ I observe that Ms A’s evidence-in-chief interview, which she gave to police in

January 2022, was one of the most compelling such interviews that I have watched. It

was a very coherent and lengthy narrative of her relationship with the offender. It was

very clearly reflecting her detailed recollection of the events. She bravely recounted in

detail the awful intimate details of his conduct. The trauma of the events and the

long-term emotional impact of them was apparent. The evidence that she gave in court

was of the same quality. I accepted without doubt the accuracy and honesty of the Ms A’s

evidence.

74․	Ms B read her victim impact statement. She was in a relationship with the offender from
the age of 18 until 25. She describes the physical and emotional abuse that the offender
put her through as “unimaginable” and a weight and burden that she will carry for the
rest of her life. She suffers from anxiety, depression and Posttraumatic Stress Disorder
as a result of the offending. She describes the long-term impact on how she thinks and
on her romantic relationships. She describes the sense of loss at the life that she will
never get to live. She explained that she has lost the sense of being young and free and
optimistic and full of love for life. She lost that after she met the offender. She described
her commitment to her daughter and to raising her in freedom and safety.
75․	I observe that the evidence she gave both in her evidence-in-chief interview and in court
was also compelling. She described appalling facts in a matter-of-fact way consistent
with dreadful abusive conduct having become normalised. The evidence that she gave
for the purposes of the trial painted a disturbing picture of the offender’s malevolent,
manipulative and controlling conduct.
76․	Ms C’s victim impact statement was read by the prosecutor. It describes how “incredibly
confusing and confronting” it was to have the person you love most hurt you physically.
She describes the irreparable loss of a sense of safety in her own home. She described
how degrading it was to be spat at in the face and the feeling of immense sadness and
despair that she suffered being stuck in the abusive environment created by the offender.
77․	She moved interstate at the height of the COVID-19 pandemic in order to escape from
the offender. She has not felt safe returning to Canberra and the idea of having to return
to give evidence in court gave her severe anxiety. She has had to undergo regular
counselling to deal with the abuse that she suffered. The offending has affected her
perception of men and her willingness to engage in personal relationships. She
accurately summarises the conduct of the offender:

Under the guise of “love” you manipulated, controlled and abused me in a way that is incomprehensible to most. Your rules on how a woman should and shouldn’t act in a

relationship is coercive control, and is a reflection of your own insecurities and jealousy.

78․	Ms D’s victim impact statement described the uncontrollable anger that she saw in the
offender when he offended against her. She described knowing that she needed to leave
the offender but not doing so until a close friend told her that she was worried that next
time Ms D would be dead. It was her friend that called the police on her behalf.
79․	Following the offender being charged, Ms D could no longer go back to the Canberra
Hospital where the offender continued to work. She packed up and moved interstate
away from her home, her friends and colleagues and her dream job. Having done so she
was thoroughly miserable. She cried herself to sleep for months. She regularly
contemplated jumping from her 16th storey apartment. She described the endless hours
of counselling that she has had in order to heal the psychological scars the offender
caused. She said, perceptively:

That coming forward proves to the court that after all this time, spanning more than a decade, you are still violent, jealous, paranoid, manipulative, controlling and therefore dangerous. Until you take accountability for what you have done to multiple women, you will remain dangerous, and your jealousy and anger will go on to hurt other women in the same way.

Personally, I don’t think you will take accountability for your actions, stop blaming others and

make the changes you need to make. After all, according to you, we were the abusers, not

you.

Subjective circumstances

80․	The subjective circumstances of the offender are described in a pre-sentence report, a
report of a psychologist, Dr Jana Bollinger, and evidence given by the offender’s brother.
81․	The offender is 31 years old. He was born in New Zealand. He is one of four children
from his parents’ relationship. His father was very strict and would physically punish the
children. This would include punching and kicking the offender on numerous occasions.
His parents separated when he was between five and seven years old. He had little
contact with his father for a number of years. He moved with his mother and one of his
brothers to the South Island. They moved on multiple occasions and the offender had many temporary male role models. His mother had a relationship with a man which
included domestic violence directed to both her, the offender and his siblings.
82․	He went to live with his father at the age of 11. When he went to live with his father he
was subject to physical abuse. Between the ages of 11 and 14 he would often stay over
with his older brother who lived independently. His older brother introduced him to
alcohol and marijuana.
83․	He left home at the age of 15 and lived with friends for a short period before moving to
Australia at the age of 16. He visited Australia when he was 16 to meet a 21-year-old
woman whom he had met online. He ended up staying in Australia.
84․	He had a series of relationships with women that were the subject of, or in relation to
whom was evidence given during the course of, the proceedings. He has a daughter with
Ms B who is now seven years old.
85․	He has been in another relationship for 11 months.
86․	He has contact with his father who lives in Melbourne. He has less frequent contact with
his mother.
87․	He completed the equivalent of Year 10 in New Zealand. For someone of his background
who moved countries at the age of 16 the offender has done well in terms of employment.
He first obtained work at Michel’s Patisserie. He worked there for three years. This is
where he met Ms A. He then worked as a wardsman at the Canberra Hospital for 11
years where he met each of the other victims of his offending.
88․	He has a history of alcohol abuse. Between the ages of 19 and 21 he would consume
two bottles of fortified wine each night. He has a history of amphetamine and cocaine
use from the age of 24.
89․	He has a history of self-harming which commenced when he was 14 or 15 years old.
This continued until he was 25 years old. He described to Dr Bollinger that the
relationships followed “a pattern of fear of losing control and fear of
abandonment/rejection and as a result, he has lashed out at his partners to either reject
them first or to maintain control.” He reported that violence began with most partners
within the first few months.
90․	Dr Bollinger assessed him as meeting the criteria for Posttraumatic Stress Disorder,
Major Depressive Disorder and Alcohol Use Disorder.
91․	Dr Bollinger recorded that the offender appears to have the capacity to exercise
appropriate judgments in all areas of his life except for his romantic relationships. She
recorded that he still struggles to appreciate the wrongfulness of his conduct and “he
continues to minimise a large proportion of his behaviour”. She said “it is likely that his
history of exposure to extreme violence from multiple men in his life and the tacit
acceptance of that behaviour by the women led him to conclude that this sort of
behaviour was acceptable. He appears to experience fear of being rejected and
abandoned and is highly sensitive to any expression by his partner that this may occur.”
92․	Disturbingly, the pattern of suspicion and control is reflected in how he described his
current relationship to Dr Bollinger: “He reported that he was able to avoid being abusive
in his current relationship because she has “promised” she will not cheat on him …”
93․	He continues to maintain that the relationship with Ms A involved consensual sex and
that the self-harm occurred in the context of both of them being self-harmers. Similarly,
he continued to deny the shower incident which formed the basis of count 15. He has
not said anything to indicate that he accepts the accuracy of the jury’s verdicts on other
charges.

94․ He has completed the Preventing Violence Managing Anger Program with

Everyman Australia between December 2021 and January 2022.

95․	The author of the pre-sentence report expresses the opinion that he is at a medium to
high risk of general reoffending and above average risk of sexual reoffending.
96․	Dr Bollinger described him as a moderate risk of reoffending noting that he displays “a
pattern of high levels of violence, verbal, physical and sexual, across his relationships
over the past 15 years”. She identifies that actuarial material indicates that his risk for
further offending against an intimate partner was moderate and that of men who scored
in the same category, 39 percent committed further such offences within five years. She
indicated that he will require significant amounts of therapy in order to reduce his risk of
a continuing his pattern of behaviour.
97․	There is a significant prospect that he will be deported upon the completion of the
custodial portion of his sentence.

Plea of guilty

98․	The offender was convicted by a jury on the charges relating to Ms A and Ms B. So far
as the charge of property damage was concerned (CC2021/11052) the offender pleaded
guilty but disputed the facts. As such there was no utilitarian value in that plea.
99․	So far as the offending against Ms C and Ms B was concerned, this trial was severed
from the trial and the other charges and, following the conclusion of the first trial, after a
criminal case conference had occurred but prior to the setting of a new trial date, the offender pleaded guilty to these offences. In those circumstances a reduction of between
10 and 15 percent of the sentence is appropriate.

Time in custody

100․ The offender’s bail was revoked upon the finding of guilt on 10 February 2023. That

means he has been in custody for 188 days (six months and seven days). It is

appropriate to take this period into account by backdating the sentence until

10 February 2023.

Consideration

101․	The offender presents a disturbing history of offending. He demonstrates an entrenched
pattern of emotional manipulation, controlling and violent behaviour, degradation and
sexual abuse of his intimate partners over many years. The evidence indicates that any
prospects of this changing must be considered to be guarded at best. There is some
evidence of limited insight into his own conduct but nothing that would indicate any higher
chance of rehabilitation.

102․ Obviously, for this kind of offending, general and specific deterrence, denunciation,

accountability and recognition of the harm done to the victims are very important

sentencing considerations. Rehabilitation will also be a goal. However, having regard to

the pattern of behaviour and the number of different victims, protection of the community

must be a very significant factor in sentencing the offender.

103․	While the prosecution provided a large table of cases said to be comparable to some of
the charges in the present case, the current sentencing practice referred to in s 33(1)(za)
of the CS Act is not significantly informed by sentences imposed in the range of different
cases that were referred to. More practically useful is the understanding that current
sentencing practice recognises the significance of family violence offending, usually
perpetrated by men upon women, and the social significance of deterring that conduct
and protecting the community from such conduct.
104․	I accept that some of the entrenched characteristics of the offender’s behaviour are likely
to have been influenced by his dysfunctional childhood. Something has led to this
emotionally manipulative, controlling and violent approach to his intimate partners. It is
certainly likely that his poor and dysfunctional upbringing and early exposure to domestic
violence has contributed to this. The long-term consequences of such exposure to
violence and the absence of appropriate role models are likely to have lifelong
consequences for the offender. On the one hand, these matters are subjective
circumstances for which the offender was not responsible and which assist with
understanding his behaviour. However, on the other hand, recognising the connection between his formative experiences and his current behaviour is a factor which indicates
that he is likely to be at risk of further such offending in future and weight must be given
to this when regard is had to the need to protect the community.
105․	The evidence that the offender gave at the trial involved denial of most of the events of
which Ms A and Ms B gave evidence. The jury, correctly in my view, rejected beyond
reasonable doubt his denials of those charges upon which they returned guilty verdicts.
Yet in the course of his denials he made admissions of “deep seated paranoia or
insecurity about being cheated upon”. He also sought to normalise some of the abnormal
conduct that he engaged in by suggesting his partners also engaged in it. He suggested
that Ms A was also a self-harmer. He suggested that Ms B engaged in mutual inspection
of phones and genitals to guard against the other partner cheating. The combination of
his denials, his admissions and his attempts to normalise his abnormal conduct were
indicative of someone who clearly does not accept responsibility for what he did and
reflects poorly on his prospects of sustainable change in the longer term.
106․	Obviously, totality is a consideration in circumstances where there are so many offences
and so many victims. The sentences will be made concurrent to an extent which achieves
and overall sentence which is appropriate. Having regard to the separate offending
against different victims, the sentences can be structured so that there is no concurrency
as between offences against different victims without imposing a sentence which goes
beyond that which is just and appropriate.
107․	The sentences that will be imposed are set out in the table as follows.
No Offence Maximum Sentence in Cumulation

penalty (months) (months)

1	Negligently causing grievous	5 years	12	12
bodily harm (Count 3: CC2022/1150)
2	Recklessly inflicting grievous	5 years	12	3
bodily harm (Count 6: SCAN2022/61)
3	Engage in sexual intercourse	12 years	27	18
without consent (Count 9: CC2022/1153)
4	Common assault	2 years	4	4
(CC2021/11049)
5	Common assault	2 years	5	2
(CC2021/11050)
6	Property damage	2 years	2	1
(CC2021/11052)
7	Occasion actual bodily harm	5 years	30	29
(Count 10: SCCAN 2022/63)
8	Assault occasioning actual bodily	5 years	6	2
harm (Count 12: CC2021/11054)
9	Common assault (SCAN2023/22)	2 years	18	6
10	Common assault (SCAN2023/23)	2 years	18	9
11	Engage in sexual intercourse	12 years	36	24
without consent (Count 15: CC2021/11057)
12	Common assault	2 years	9	3
(CC2021/11058)
13	Engage in sexual intercourse	12 years	36	24
without consent (Count 17: SCAN 2022/65)
14	Choke, strangle or suffocate	5 years	21 (starting	21
(Count 1: SCCAN 2022/66)	point 24)
15	Damage property	2 years	8 (starting	2
(CC2021/11194)	point 9)
16	Common assault	2 years	8 (starting	2
(CC2021/11195)	point 9)
17	Assault occasioning actual bodily	5 years	8 (starting	8
harm (Count 2: CC2022/310)	point 9)

108․	The total sentence to be imposed is 14 years and two months. In my view a non-parole
period in the middle of the usual range will result in an appropriate minimum period to be
served by full-time detention having regard to the circumstances of the offending and the
offender. The non-parole period will be eight years and six months which corresponds to
60 percent of the total sentence.

109․ The prosecutor submitted that a condition should be recommend to the Sentence

Administration Board (SAB) that the offender be required to disclose his convictions to

any partner that he has during the course of any parole period. I do not consider that it

is appropriate to make such a recommendation. Having regard to the length of sentence

I am imposing, I consider that although the SAB will inevitably have to pay close attention

to what I have said in my reasons, I do not consider it appropriate to make a specific

recommendation as to the terms of any grant of parole, particularly one which will so

closely affect the conduct of the offender in many years’ time.

Orders

110․ The orders of the Court are:

1.       On the charge of negligently inflicting grievous bodily harm (CC2022/1150) the

offender is convicted and sentenced to 12 months’ imprisonment, beginning

on 10 February 2023 and ending on 9 February 2024.

2.       On the charge of recklessly inflicting actual bodily harm (SCAN2022/61) the

offender is convicted and sentenced to 12 months’ imprisonment, beginning

on 10 May 2023 and ending on 9 May 2024.

3.       On the charge of engaging in sexual intercourse without consent

(CC2022/1153) the offender is convicted and sentenced to 27 months’

imprisonment, beginning on 10 August 2023 and ending on 9 November 2025.

4.       On the charge of common assault (CC2021/11049) the offender is convicted

and sentenced to 4 months’ imprisonment beginning on 10 November 2025

and ending on 9 March 2026.

5.       On the charge of common assault (CC2021/11050) the offender is convicted

and sentenced to 5 months’ imprisonment beginning on 10 December 2025

and ending on 9 May 2026.

6.       On the charge of cause damage to property (CC2021/11052) the offender is

convicted and sentenced to 2 months’ imprisonment beginning on

10 April 2026 and ending on 9 June 2026.

7.       On the charge of assault occasioning actual bodily harm (SCCAN2022/63) the

offender is convicted and sentenced to 30 months’ imprisonment beginning on

10 May 2026 and ending on 9 November 2028.

8.       On the charge of assault occasioning actual bodily harm (CC2021/11054) the

offender is convicted and sentenced to 6 months’ imprisonment beginning on

10 July 2028 and ending on 9 January 2029.

9.       On the charge of common assault (SCAN2023/22) the offender is convicted

and sentenced to 18 months’ imprisonment beginning on 10 January 2028

and ending on 9 July 2029.

10.     On the charge of common assault (SCAN2023/23) the offender is convicted

and sentenced to 18 months’ imprisonment beginning on 10 October 2028

and ending on 9 April 2030.

11.     On the charge of engaging in sexual intercourse without consent

(CC2021/11057) the offender is convicted and sentenced to 36 months’

imprisonment beginning on 10 April 2029 and ending on 9 April 2032.

12.     On the charge of common assault (CC2021/11058) the offender is convicted

and sentenced to 9 months’ imprisonment beginning on 10 October 2031 and

ending on 9 July 2032.

13.     On the charge of engaging in sexual intercourse without consent

(SCAN2022/65) the offender is convicted and sentenced to 36 months’

imprisonment beginning on 10 July 2031 and ending on 9 July 2034.

14.     On the charge of choke, strangle or suffocate (SCAN2022/66) the offender is

convicted and sentenced to 21 months’ imprisonment, beginning on 10 March

2034 and ending on 9 December 2035.

15.     On the charge of causing damage to property (CC2021/11194) the offender is

convicted and sentenced to 8 months’ imprisonment beginning on

10 October 2035 and ending on 9 June 2036.

16.     On the charge of common assault (CC2021/11195) the offender is convicted

and sentenced to 8 months’ imprisonment beginning on 10 December 2035

and ending on 9 August 2036.

17.     On the charge of assault occasioning actual bodily harm (CC2022/310) the

offender is convicted and sentenced to 8 months’ imprisonment beginning on

10 August 2036 and ending on 9 April 2037.

18.     The non-parole period commenced on 10 February 2023 and ends on 9

August 2031.

19.     Charge CC2022/1148 is dismissed.

20.     Charge CC2022/1146 is dismissed.

21.     Charge CC2021/11051 is dismissed.

22.     Each of the following charges are dismissed:

a.	CC2021/8853;
b.	CC2021/11192;
c.	CC2021/11193;
d.	CC2021/11196;
e.	CC2021/11197;
f.	CC2021/11198;
g.	CC2021/11199; and
h.	CC2021/11200

I certify that the preceding one hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop

Associate:

Date: