Director of Public Prosecutions v Taylor
[2019] VCC 2063
•9 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01017
Indictment No: H10420340B
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL JAMES TAYLOR |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 26 November 2019 | |
DATE OF SENTENCE: | 9 December 2019 | |
CASE MAY BE CITED AS: | DPP v Taylor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2063 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Warren | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms M. O'Brien | Grigor Lawyers |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Daniel Taylor, you have pleaded guilty to one charge of stalking. The maximum penalty is 10 years' imprisonment.
2 This offending occurred between 6 December 2015 and 12 December 2015, and involved the victim of it, Adriana Dolan.[1]
[1]A pseudonym.
3 It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in detail, consistent with Exhibit A, by the prosecution, and was also discussed during the course of your plea hearing.
4 It is sufficient for present purposes to simply say the facts in this case are most disturbing.
5 I turn to a summary of your offending. At the time you were 28 years of age, and you are 32 years at sentence.
6 The complainant, Ms Dolan, at the time of your offending was 25 years of age. She first met you in California in November 2014. You had known each other for about a week before she returned to Melbourne.
7 You and Ms Dolan stayed in contact and your relationship developed into an exclusive romantic and sexual relationship when you moved to Melbourne in late 2014.
8 During the relationship, there were occasions where you stopped seeing each other for short periods of time but would then get back together again.
9 During the relationship, you engaged in 'family violence' towards Ms Dolan including breaking up with her for receiving contact from her family, threatening self-harm if she did not do as you wished, searching and using Ms Dolan's phone without her consent, criticising and controlling her dress, criticising and controlling aspects of her behaviour, such as how she would sit and how she spoke to others, and monitoring her social media accounts and mobile phone.
10 Your controlling behaviour continued, in my opinion, in this offending, as I discussed with your counsel, Ms O'Brien.
11
I turn to your offending. At approximately the end of November 2015,
Ms Dolan ended her relationship with you, and from that time blocked you from her social media accounts so that you would not be able to monitor her activities on those platforms.
12 Between November and December 2015, you constantly sent text messages to her, asking why she was not talking to you and sending her question marks. She did not respond to any of the messages.
13 On 5 December 2015, Ms Dolan attended a Christmas party with a friend, Ashton Carson[2] (“Carson”), also being known to you, and was a friend of yours on Facebook.
[2]A pseudonym.
14 During the event, Carson uploaded a picture of himself with Ms Dolan to his Facebook page, which was visible to you.
15 On 6 December 2015, you sent a text message to Ms Dolan, calling her a bitch for going out with Carson. You then started to bombard her with text messages, accusing her of sleeping with Carson and threatening her, such as:
“TAYLOR: 'you friend, its more than that unless you fuck all your friends'
TAYLOR: 'Hmm maybe you do'
TAYLOR: 'Ok goodbye waste of my life'
TAYLOR: 'I knew you would be like this all good suffer with what happens next'
DOLAN: 'what the hell does that mean you're the one calling me a slut all the time'
TAYLOR: 'Deal with it then fuck you fuck me over I will fuck you over now (sic)”
16 In total, you sent Ms Dolan 23 messages on 6 December 2015.
17 On 7 December 2015, you continued to send her abusive text messages, including a threat that you knew how to hack her Facebook account so you can look at what she had been up to.
18 You sent repeated demands to her to tell you about her relationship with Carson and threatened to wipe her Facebook if she was not completely honest with you. You texted her, 'I can do lots of stuff this is why you need to be honest with me and tell me if anything has happened with anyone or dates k coz if you tell me I won't go on if I do go on and find shit I will wipe your fb.'
19 That caused Ms Dolan apprehension and fear you would access her social media accounts.
20 You then sent her messages telling her you had accessed her Facebook account and changed her password.
21 On 7 December 2015, in total, you sent the complainant 328 messages.
22 Early in the hours of 8 December 2015, Ms Dolan received notification from Facebook that her log-in details had been changed to an email address [email protected].[3] That was not Carson's email address, but rather an alias account used by you.
[3]This email address has been anonymised.
23 Later that morning, you told Ms Dolan you had control over her Facebook account and sent her a screenshot of yourself logging into her profile page and threatened you would only tell her the password if she would confirm she was going out with Carson.
24 Further, on 8 December 2015, you sent Ms Dolan text messages telling her that you had photos and videos of her the last time you had sexual intercourse with her, messaging her, 'Last time we fucked I got photos when I was doing you doggy and 1 video lol'.
25 Ms Dolan felt violated, as she had never given permission for any photos or videos of you and she having sexual intercourse to be taken and was unaware that you had those items.
26 You then sent her some of the photos you had taken without her consent and threatened to send the photos to Carson and her family, and post them online and her social media accounts.
27 You continued to send Ms Dolan messages demanding to know if she loved you and threatening to come around to her house. Ms Dolan replied by telling you to stop threatening her.
28 You also threatened to harm Carson, sending her messages stating, 'If you don't tell me my answer I'm going to fuck Ashton up', followed by, 'I'll take all his teeth out'.
29 In total, on 8 December 2015, you sent Ms Dolan 472 messages.
30 On 9 December 2015, you sent her a photo and video of yourself masturbating and included a message that it was for her. You also sent repeated messages to her, stating you loved her, and demanding she come over to your house.
31 Ms Dolan sent two brief replies, telling you she was at home and not feeling well. That same day, you sent a bunch of flowers to her home. She was upset, as she had not given any indication she wanted anything to do with you.
32 In total, on 9 December 2015, you sent her 43 messages.
33 On 10 December 2015, you sent her a series of messages asking her to respond to you and asking if she liked the flowers. When she did not respond, you threatened her, stating, 'I will come around if you don't answer back', followed by, 'ok watch out'.
34 In response to that, the next day (11 December 2015), Ms Dolan replied, 'thank you for the flowers'.
35 You were not satisfied with her response and sent repeated demands to her to see you, and to send you a picture of the flowers to prove she had not thrown them out.
36 In total, between 10 and 11 December 2015, you sent Ms Dolan 79 text messages.
37 On 12 December 2015, you continued to bombard the complainant with text messages.
38 You sent Ms Dolan a photo of her in lingerie that she had previously sent you when you were dating. You threatened to publish the photo on social media if she did not respond in five minutes. You then sent further messages, counting down each minute.
39 At the end of the countdown, you sent Ms Dolan a message, telling her to look at her Instagram account. You attached a screenshot of your account, which showed you had uploaded the photograph of her to your account.
40 You stated that you would only remove the photo if she responded to your messages and that you also had naked photographs of her which you would upload if she did not respond.
41 Ms Dolan sent you a message asking you to take the photograph down. You told her that you would take it down if she sent you a photograph of the flowers you had sent.
42 Ms Dolan sent you a photograph of the flowers, but you responded angrily, as the flowers were outside and not in her room.
43 You sent repeated messages to her, telling her to come back to you, be your girlfriend, and that everything would then be fine.
44 You sent further messages to her, telling her that you had posted other naked photos of her online and were getting abuse from friends for doing so. That caused Ms Dolan apprehension and fear as she had no way of checking what you had uploaded on your social media account, as you had blocked her.
45 You then sent her a series of text messages, telling her that you would keep posting images until she got back together with you. You also sent her what you called a 'sneak peek' of the images you were posting online. This was an image of she and you having sexual intercourse, and this image was discussed with counsel.
46 While you initially instructed you only uploaded on social media a photograph of the complainant in lingerie, it is apparent you also sent her a photograph on her mobile phone of you and she engaged in a consensual sexual act. I was told that you now remember sending that photograph, after counsel had the opportunity to look at it, and identify the complainant and you on it. It was not, you said, sent via social media.
47 Ms Dolan sent you a text message asking why you were doing this, and your response was a message saying, 'why won't you answer me', followed by a quote, 'all you had to do was answer me and come around to be my gf'.
48 Later that day, as part of another series of messages to her, you sent her a picture of two people having sex in the 'doggie-style position'. Ms Dolan believed it to be a photograph of herself and you, as she recognised the female in the video as herself and recognised the bedroom wall as being your bedroom wall. You told her you had posted the photograph on Instagram and tagged her in it. This made her feel sick, upset, hurt and violated, and I discussed this with counsel. You instructions were that this was not Ms Dolan, rather a photo you downloaded from the internet and sent to her. Your intent, you said, was to have her believe it was she and you.
49 Ms Dolan sent you a message asking you to remove the photographs. You replied, saying you would remove all four photographs you had uploaded if she agreed to be your girlfriend again.
50 You further messaged her, stating that you would remove two photographs if she added you on Facebook, and would then remove the remainder when she saw you again.
51 Ms Dolan sent you another message asking you to take the photographs down, to which you responded by saying, 'no, be my girlfriend now', and telling her that it was her fault you had posted the images as she just needed to be your girlfriend to make it stop.
52 On 12 December 2015, in total, you sent her 308 messages.
53 On 13 December 2015, you sent further messages to her, telling her that you had not posted anything to social media and that you would not be contacting her again. This message was sent, it seems, after police contacted you about the texts.
54 The last contact between you and Ms Dolan was in a message you sent her on 13 December 2015, to which I previously referred.
55 Ms Dolan ceased responding to you and sought assistance from the police.
56 Ms O'Brien conceded your offending consisted of a barrage of persistent contact with the complainant, including threats to post intimate images online. That offending, however, she urged, was only over a period of six days and was the result of emotional distress as a result of the recent breakdown in your relationship with the complainant. The latter of course is no excuse, and six days to Ms Dolan was a very long time.
57 There is no doubt your offending was persistent, controlling, and threatening, designed to adversely impact on her mental state and you were successful in that regard as is apparent from her victim impact statement. Your offending, I regard, is very serious. The contents of your messages are completely puerile.
58 I was told that there is an intervention order still operative until 22 March 2020, and you have not breached that intervention order.
59 You were interviewed in relation to this matter on 20 April 2016 and remained mute during that interview.
60
You have pleaded guilty to this charge, and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial, and witnesses have not been required to give evidence upon your trial. Further, I take into account, in your favour, you intimated your intention to plead guilty to this charge on
16 May 2018, that plea of guilty being entered on 28 May 2019.
61 I am aware there was a contested committal held in this matter, although it appears that questioning was limited, and in the context of including a charge of rape, for which you have been acquitted. The questioning relevant to the stalking charge did not suggest the texting did not occur, rather along the lines of Ms Dolan's ability to stop you texting you by blocking the messages, rather than denial of sending them.
62 There has been, overall, a significant period of delay before this charge was finally dealt with, as I discussed with counsel, including approximately 13 months between your offending being reported and you being charged, and adjournment of your trial (for alleged offending of which you were acquitted) due to a prosecution witness being unavailable for approximately 10 months, and another delay of approximately two months.
63 Attached to the prosecution opening was a chronology relevant to this charge and your entering a plea of guilty to it, and the delay caused to this final hearing.
64 In the circumstances, I accept your plea of guilty indicates some remorse for your offending. I am concerned, however, about the extent of your remorse, given the duration of it, involving multiple and persistent messages over a period of six days, as per the Indictment.
65 There is limited, if any, other evidence of remorse for your offending. I do not, however, find that you are not remorseful.
66 You do not have any prior criminal history, nor anything subsequent and that is relevant to sentence.
67 The prosecution submitted in opening that an aggravating feature of your offending was the gross breach of trust of Ms Dolan. Ms O'Brien agreed with that submission. As do I, including personal images sent without her consent.
68 The prosecution submitted, and I accept, it was a calculated intent of yours to cause mental harm to Ms Dolan. You could have ceased your messaging at any time, however, chose not to. Further the messages escalated to threats, and threats to send photographs.
69 There was some sophistication, the prosecution submitted, referring to hacking her Facebook account and that some of the images sent to her included pictures of your penis and you masturbating. I agree.
70 The victim of your offending and her mother have suffered considerably in the manner described in the victim impact statements, and I shall return to those shortly.
71 Ms O'Brien addressed your background and history.
72 I was told about your current relationship with Ms Stefano and the recent birth of your son, now approximately six weeks old.
73 Ms Stefano is aware of this charge and had apparently read the text messages sent to Ms Dolan by you. She remained supportive of you and had encouraged you to seek counselling.
74 She told Ms O'Brien the text messages before me were not the person she had met in October 2018. She described you as a devoted father. To date, you had not been living together due to your bail conditions. You were however, financially supporting she and your son by paying their rent.
75 Ms O'Brien submitted Ms Stefano was a protective measure for you. Her family, however, apparently do not know of your offending.
76 In court to support you also was your mother and, as I understood it, your mother's partner.
77 Ms O'Brien referred to your attendance with Dr King and his conclusion that you had matured since this offending.
78 You were born in New Zealand and had never met your biological father. Your first stepfather was John. Your mother separated from him you were approximately six or seven years of age. You described John as having been a very important part of your life. He committed suicide when you were apparently 15 years of age.
79 Your mother re-partnered with 'Murray', and was married to him for 10 years.
80 You are the eldest of three boys, your brother, Corey, being your younger brother. He has had significant health issues over his life, including being on life support at one stage. You were always worried about Corey and his health.
81 At age 16 you left school and began a bakery apprenticeship in New Zealand. You were very successful at that and won a number of awards.
82 You then moved to TAFE and obtained appropriate chef qualifications. You had worked as a chef in various places, including Cairns, Port Douglas and overseas.
83 I was told you also had employment in the past in New Zealand in possum control.
84 You are currently working as a manager with Amira Cold, based in Laverton. Your employer being unaware of this court appearance.
85 Ms O'Brien submitted you had always worked very hard, and I accept that is so.
86 You met Ms Dolan in Santa Monica on your first big trip overseas. You moved to Melbourne and became involved in your relationship with her.
87 You instructed Ms O'Brien you learnt a salient lesson in relation to this offending. You were open to further counselling and would not be sending such messages in the future as a way of dealing with relationship issues or other issues. In particular, you had seen a psychologist to assist you in that regard. And I hope you have learned from that. Courts regard the offence of stalking as very serious, in particular, in the context of domestic relationships.
88 Ms O'Brien urged your personal circumstances had changed significantly since this offending in 2015. That in the last four years you had rehabilitated yourself, which was indicative of good future prospects of rehabilitation.
89 Regarding your citizenship, you are a New Zealand citizen, and Ms O'Brien submitted that being convicted for this offence would cause some uncertainty in terms of your future immigration status. This is by no means certain and I do not proceed on that basis.
90 I turn to a report from Dr King, dated 24 November 2019. You attended for two clinical sessions with Dr King, two hours each in duration, on 24 and 31 October.
91 In the opinion of Dr King, in the time since this offending, the process of normal and ongoing adult psychosocial maturation placed an important qualification on the opinions currently offered. It was likely you had learned and developed in psychosocial terms since 2015.
92 Assessment indicated you demonstrated average intelligence. In his opinion, you now demonstrated your capacity for understanding what was (and I assume what was not) prosocial behaviour.
93 There were two distinct 'weaknesses' identified in his current assessment of you, relating to your lack of forward planning and reliance upon impulsive responding. The absence of that forward planning was consistently shown in tasks that benefit from the application of foresight. Together with that absence of forward planning, you tended to respond quickly and impulsively. You did not reflect upon the outcome, and thus did not swiftly benefit from errors you made.
94 Dr King's recent observation was that you had learnt from your mistakes, albeit not as rapidly as would logically be possible. You could learn, but you would only do so slowly and with encouragement.
95
Regarding any mental health diagnosis, Dr King concluded the testing results reflected were 'normal' and did not match any diagnostic category of mental health or psychopathological problems. You could learn, but you would need encouragement to focus on the task of self-improvement. In the opinion of
Dr King, the persistence of your behaviour in 2015 indicated that present 'flaws' of limited planning and relatively impoverished imaginative responses were likely at a much more serious level four years ago than now.
96 In the opinion of Dr King, there had likely been a significant progress in your developmental social maturity and that you had 'learnt' from your mistakes. A future pathway for you was likely to be ongoing and further improvement in social learning.
97
Treatment suggested for the future would involve a program of clinical assistance aimed at factors referred to in paragraph 4(a) to (d) of his report.
Dr King indicated his preparedness to cooperate with Correction Services to ensure compliance with any mandated program of clinical assistance, should it be considered appropriate.
98 The victims of your offending have suffered considerably in the manner described in their victim impact statements. When reading those statements, I am conscious you were also before the court regarding another allegation made by Ms Dolan, of which you were ultimately acquitted. I must and do bear that in mind when assessing the impact of this current offending that is before me.
99 The statements are eloquent, and it is difficult to do justice to them in these brief sentencing remarks. But I have, however, read both statements.
100 I turn to the statement sworn by Adriana Dolan and read into the transcript by her. Prior to this offending, she was a happy, healthy, confident and carefree 24-year-old. She said no one should ever have to experience the six days of this offending. At the time of your offending, she had done everything to try and stop you from harassing her. She did what you asked, pleading and begging you to stop.
101 When you sent explicit images you had taken of her without her knowledge and told her you were putting them on the internet, she felt sick to the stomach. She agreed to send you photographs of the unwelcome flowers you had sent so that you would not post those photos of her on social media. Despite that, you said it was too late, and you sent her an image of both of you posted on social media.
102 She said she agreed to unblock you from social media, and you promised you would take down the photos, but you did not.
103 You promised you would leave her alone but continued to harass her with text and phone calls, which caused her distress, in particular, regarding the images.
104 She was terrified of you. Your behaviour was abnormal and unpredictable, but you did not seem to care you were hurting her. She did not know what you were capable of anymore.
105 She did not feel she could live with the shame and humiliation that you had threatened to put her through and wanted to be at peace from your constant harassment.
106 She said she did not know what to do, just wanted it to stop. She went to the police on 13 December 2015 and believed that was the only reason you stopped.
107 She was upset you blamed her for your behaviour and that you had never apologised or taken responsibility for your offending.
108 You constantly threatened her throughout the abusive and controlling relationship she felt trapped in. Your offending made her feel incredibly intimidated and frightened by you and your control of her. You undermined her confidence and self-esteem by calling her demeaning and malicious words. She felt degraded and ashamed.
109 For approximately six months following this offending, she described herself as being a broken human being, relying heavily on her mother to function and get through each and every day. She quit her job at the bank, where she was working, as she was taking a lot of leave for emotional distress and did not want to return, as you knew where she worked.
110 She obtained an intervention order to try and gain some feeling of safety. That was the lowest time in her life so far. She felt fragile, vulnerable, alone, and empty.
111 After this offending, she had to attend a doctor, as she developed complex health issues she has never previously had. She was diagnosed with Post-Traumatic Stress Disorder ('PTSD'), severe anxiety and depression, a sleep disorder, and an eating disorder due to significant weight loss.
112 She suffered from continued heightened anxiety, being alert and on edge all the time. She had panic attacks and night terrors, which she had never experienced before.
113 She understood she would require treatment for anxiety and depression for the rest of her life.
114 Since this offending, she had felt isolated and disconnected from her family and friends.
115 Your use of social media to abuse and manipulate her, further isolated her from friends, as social media and technology was an important part of her generation's connectedness and everyday life. She was now excessively wary of using social media.
116 Starting new relationships was difficult, being very guarded and wary of new people. She found it extremely difficult to trust and be intimate with them, fearing she will be manipulated and lose control over her life. She had not been able to commit to a relationship since your offending.
117 As at the date of swearing her victim impact statement, she did not have any reliable confirmation that the images you had posted were taken down and not distributed on social media or the internet. She remained fearful you would one day follow through on the threats you made and that she would be left exposed on social media with graphic images she had not consented to. The thought that you had those photographs and distributed them would haunt her for the rest of her life.
118 She had also been significantly impacted financially by your offending and was not able to work in paid employment for eight months following it. There has also been a loss of income since then due to her only part-time employment. She had to rely on financial assistance from her mother at times.
119 She did not believe you were remorseful, rather were simply caught out. She described you as a bully who controlled her through intimidation and fear. Now, you had no power over her.
120 I also received a report from Tamara Lovett, Positive Insight Psychology, dated 7 November 2019. Ms Dolan was referred to her by her general practitioner, Dr Rafe, in January 2016, having presented with severe symptoms of anxiety and depression.
121 Despite taking out the intervention order against you, she suffered severe fear and anxiety when she left the house, as you knew where she lived. She had to move to a new accommodation and despite that her anxiety continued.
122 Post your offending, she suffered symptoms of depression and loss of enjoyment of life, loss of confidence and lowered self-esteem. This affected her not only socially, but also inhibited her physical activity.
123 Despite ongoing psychological therapy, Ms Dolan continued to report symptoms of anxiety, depression, insomnia and lack of motivation, which continued to have that effect on her, as at the report date of 7 November 2019.
124
Correspondence was also attached to that victim impact statement from
Dr Rafe, dated 21 October 2019. In her opinion, Ms Dolan suffered with chronic, quite severe complex PTSD with anxiety and depression following your offending.
125 Dr Rafe noted that the complainant had ongoing anxiety, fear of social encounters, except family and a few trusted female friends; marked depression, with her loss of life enjoyment, and struggled to maintain basic activities of daily living. The physical impact of her PTSD on her energy levels was with ongoing fatigue, and also insomnia.
126 The complainant had been a patient of Dr Rafe for many years prior to your offending, with minimal medical assistance or mental health issues of any concern.
127 In the opinion of Dr Rafe, Ms Dolan would struggle with the impact of her PTSD mentally and physically for many years to come.
128 There was also a victim impact statement from Ann-Marie Dolan[4], the complainant's mother.
[4]A pseudonym.
129 During the time you and her daughter were together, she saw her daughter become increasingly anxious, fearful and withdrawn, losing a lot of weight, becoming isolated from her friends, and her twin sister. This caused Ann-Marie Dolan worry, sadness and distress, feeling helpless and powerless to assist her daughter.
130 In December 2015, her daughter showed her some of the text messages from you. Her daughter was absolutely distraught. She felt anxious, distressed and very fearful for her daughter.
131 In the months and years since her daughter made the police report relevant to this offending, Ann-Marie Dolan continued to experience constant anxiety, fear and vigilance.
132 The emotional burden of supporting her daughter through this aftermath of your offending had been substantial and exhausting. She was heartbroken by the effects it had on her daughter's life. Attached to that victim impact statement, was a report from Dr Davidson, dated 30 October 2019.
133 He states Ann-Marie Dolan has been a patient since 1992 and had recently been treated for a variety of stress-related complaints, which had become more serious over the years, since the beginning of her daughter's relationship with you. Ann-Marie Dolan has been on medication for anxiety and depression, and persistent insomnia. In his opinion, Ann-Marie Dolan's mental and physical health had been severely affected in an adverse way, directly as a result of the stress under which she has been placed during your offending.
134 Also important is the notion of social rehabilitation, referred to by his Honour Justice Vincent in DPP v Toomey[5] citing DPP v DJK.[6] I am conscious of the very different offences in those cases to yours; however the notion of social rehabilitation nevertheless applies.
[5] [2006] VSCA 90.
[6] [2003] VSCA 109 [17-18].
135 The effects upon a victim are a relevant sentencing consideration (see s.5 of the Sentencing Act 1991). But I am conscious, however, I must not allow the effects upon victims to swamp the sentencing process.
136 Ms O'Brien conceded that while you are able to 'move on', it had been difficult for Ms Dolan to 'move on' from your offending.
137 I hope the finalisation of this matter assists Ms Dolan to move on with her life, and to establish meaningful and caring relationships in the future, and to try and put your offending behind her. I accept that is easier said than done.
138 Regarding your rehabilitation prospects, I have some concerns. Whilst I accept you have 'grown up' over the past four years, you are yet to be tested should there be any future break up in any relationships you may have. Also, I note the limited remorse by you for this offending beyond your plea of guilty. Should you continue your counselling with Dr King, or another appropriately qualified professional to deal with your issues as described by Dr King, my concerns will be somewhat ameliorated.
139 I accept you have a good work history and a stable relationship, recently becoming a father. This will hopefully further assist your rehabilitation. I assess your rehabilitation prospects as fair to good.
140 Ultimately, Ms O'Brien submitted your offending could be appropriately dealt with by the imposition of a community correction order.
141
The prosecutor, Ms Warren, submitted the last text message from you on
13 December was after police involvement, that you did not cease sending these text messages of your own volition. I agree.
142 Regarding the naked photo you sent to Ms Dolan of she and you in a consensual sexual act, that had been taken without her permission, which was a horrific violation of her trust in you. I agree.
143 The prosecution accepted there was no evidence any images were posted on the internet other than the lingerie image.
144 The prosecutor submitted that whether or not the images were posted, the real concern was that you had the images without her permission, and constantly referred in the messages you sent to her that you had those photographs and were going to disseminate them.
145 Further, she submitted it was apparent from the victim impact statements that there has been significant trauma and distress caused to the victim by your offending. That your intention was to cause mental harm and anguish to the complainant and that had been achieved. I agree.
146 Ms Warren conceded delay from offending to sentence was relevant when sentencing you, and it is.
147 Regarding the report of Dr King, she submitted the only thing that had come out of that was that you had apparently now 'grown out of it'. There was nothing in that report to indicate you are remorseful for your offending. I agree.
148 Ms Warren submitted that there was limited evidence, apart from your plea of guilty, in any of the material put before the court of remorse by you beyond that plea of guilty.
149 I discussed briefly with Ms Warren, Ms O'Brien's written submission relevant to your possible deportation. Ultimately, Ms O'Brien did not appear to be relying upon that as a mitigatory factor. In my opinion, it is not a mitigatory factor in the circumstances of this case, as I discussed with both counsel during the plea hearing.
150
Ms Warren provided a decision of his Honour Judge Mason of this Court, DPP v Letiza[7], where the offender in that case was before the court on one charge of stalking over a period of five days. That offender had one prior conviction for stalking. The offending behaviour in that case was, in my opinion, very different to yours. During the interview with police, the offender made full admissions to sending the victim a number of digital images and of also sending a pornographic video to the victim. His Honour noted, as do I, that it appears that offender's prior offence of stalking occurred in circumstances which had a striking similarity to the case then before him. There was also a report from
Dr Walton relevant to that offender, who was diagnosed Major Depressive Disorder.
[7][2019] VCC 957.
151 Ms O'Brien referred me to a decision of DPP v Kavanagh (a pseudonym)[8], in which a combination disposition of imprisonment, plus a community correction order was imposed. Ms O'Brien urged that offending was a more serious example of stalking than that before me.
[8][2019] VCC 736.
152 It is always difficult comparing cases factually as facts vary enormously case to case, as do all matters in mitigation and personal to an offender. Ultimately, I must determine the appropriate disposition based on all the facts in this case, including your personal circumstances.
153 The prosecution also provided sentencing statistics relevant to the offence of stalking. While sentencing statistics have their place in sentencing, in my opinion, the statistics do not contain information such as whether or not Verdins applied in any particular case, whether or not parity was an issue, or any details of the type of stalking involved in any particular case. Nor is there any reference to any prior criminal history, or not, of any particular offender.
154 The prosecution submitted an immediate term of imprisonment was the appropriate disposition.
155 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
156 There is also the need for specific deterrence when sentencing you, given the duration of your offending, over a number of days and involving multiple text messages.
157 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am concerned about this. Some comfort is found in the report of Dr King, in essence, that you have 'grown' up finally. My concerns will be somewhat reduced if you continue appropriate treatment/counselling to address, in particular, relationship issues.
158 I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
159 I had you assessed for your suitability, or otherwise, for a community correction order and received a report from Paul Sguerzi. You were assessed as suitable for such an order.
160 Whilst he did not consider mental health assessment necessary, I do, at this stage. That assessment might, however, conclude you do not require further mental health treatment, but at this stage I consider such should be a condition of the order.
161 You indicated you did not have any pre-existing illnesses which would restrict your participation in community work.
162 The author recommended assessment for participation in Forensic Intervention Services, and I agree.
163 I have ultimately determined that the appropriate sentence take into account all relevant sentencing considerations is a community corrections order for three years.
164 Before I ask if you consent to being on such an order, I have to tell you a bit about the conditions so you can give informed consent or not to that order.
165 The following are core conditions which apply to all community correction orders and, of course, to you:
·You must not commit, whether in or outside Victoria, during the period of the order, which is three years, an offence punishable by imprisonment. And that can be anything, driving whilst disqualified. It does not have to be stalking. Beware.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order, for three years.
·You must report to the Community Corrections Centre at Werribee CCS (87 Synnot Street, Werribee) before 4 pm on 11 December 2019. Do not be late or you breach the order.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary, or Corrections officer, if you like, to give to ensure you comply with the order.
166 Now, there will be a number of other conditions attached to the order that particularly apply just to you:
· You must perform 200 hours of unpaid community work over a period of 18 months as directed by the Regional Manager (s.48C). I state I do not make an order under s.48CA. That means, in round terms, you must do 200 hours. I could make an order that if you undertook counselling, it can come off those hours, but I am not making that order; you just do 200 hours, and within an 18 month period.
· You must be under the supervision of a Community Corrections Officer for a period of three years.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).
· You must undergo mental health assessment and treatment including (but not limited to) mental health, for psychological, neuropsychological and psychiatric treatment in a hospital or residential treatment facility as directed by the Regional Manager of Corrections (s.48D(3)(e)).
· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, and I specifically refer to the Offender Behaviour Programs (s.48D(3)(f)).
· Another condition is you must attend for review of your progress and compliance or otherwise with conditions of the order every six months before me. So I am going to be seeing you every six months for the next three years. The first time I will see you is on 16 June 2020 at 9.30 am (s.48K).
167 Now, I can only impose a community corrections order if you agree to such an order being imposed; I have got to tell you even more about it.
168 I should advise you that if you contravene or breach that order by committing further offences, you can be charged, and a sentence of imprisonment is one of the options that can be imposed for that breach itself (s.83A(d)).
169 You will also be re-sentenced for the offences that are before me. And one of the options available includes a term of imprisonment (s.83A(s)).
170 Now, just think about that for a minute, the sentencing options that I have available to me if you breach this order in any way, shape or form. You come back before me and I have to re-sentence you on this offence of stalking. You follow?
171 The only options available to me, if I go down the line, are fines, monetary fines. For stalking? No. The other option I have is imprisonment. Will I put you on another CCO if you breach this one? Why would I? That narrows down the options significantly. Beware. You face a term of imprisonment if you breach this order.
172 So, you have got to be extra careful for the next three years of your life. No more puerile messages, no acting like a 16-year-old behind a shelter shed. Grow up. No committing any further offences that might incur a term of imprisonment, such as driving offences, otherwise you are back before and I re-sentence you.
173 You have also said that you can do the community work, so you must do it. You cannot come back and say, 'Whoops, I've got a bad back', or, 'Whoops, my boss doesn't know, I can't get time off', that is not an excuse. If you see me again for the wrong reasons, it is not good. If you see me every six months for the right reasons and things are going well, then I will see you in six months' time again.
174 I also have to tell you that if you fail to comply with any direction of the Secretary to the Department of Justice or a Community Corrections worker, if you like, as part of this order, you can also be fined by them, or for them (s83A(e) and A(f)).
175 Now you are aware of all of that? No, no, no, you have got to stand up right into that microphone.
176 OFFENDER: Yes, Your Honour.
177 HER HONOUR: Are you aware of all of those conditions?
178 OFFENDER: Yes, I am.
179 HER HONOUR: Now, do you understand what can happen if you breach this order in the next three years of your life?
180 OFFENDER: Yes, I do.
181 HER HONOUR: You will be back before me anyway in six months. If you see me earlier than that, it means that you are breaching the order. In six months' time, I want to see you.
182 Do you consent to the order being made and in all those terms, with all those conditions, both core and additional?
183 OFFENDER: Yes, I do.
184 HER HONOUR: In a nice loud voice.
185 OFFENDER: Yes, I do.
186 HER HONOUR: Yes. You see, what happens is if you breach the order and you come back, I just have that little last bit replayed, you see? It makes for a much shorter hearing, you follow? Have a seat.
187 So, I formally sentence you as follows.
188 On Charge 1, you are convicted, it has a conviction with it, and sentenced to a three year community corrections order in all the terms that I have just discussed with you.
189 I declare, pursuant to s.18(4) of the Sentencing Act 1991, you have not spent any days in custody by way of pre-sentence detention, should I need to revisit this sentence which, of course, I hope I do not.
190 Pursuant to s.6AAA of the Sentencing Act 1991, had you pleaded not guilty to this charge and been found guilty of it, I would not have imposed a community corrections order; I would not have done that. I would have imposed a term of imprisonment of three years, with non-parole period of two years if you had pleaded not guilty and been found guilty; you follow?
191 The prosecution also made application for a forensic sample pursuant to s.464ZF Crime Act 1958. At the plea hearing, draft orders were filed with the court, but not addressed by either counsel. I had my associate contact the parties to enquire about such an order. Your solicitor advised that you did not oppose the making of the order. I make the order on the basis of the seriousness of this offending. It will be for a saliva sample. And I must advise you the authorities case use reasonable force in order to obtain that sample from you. Were there any other orders ought?
192 MS SCHULTZ: No, Your Honour.
193 HER HONOUR: No?
194 MR SLUCKI: No, Your Honour.
195 HER HONOUR: All right. Well, I will sign that 464 document. I did, brilliant, all right. All right, copies are on - just wait for copies, and that is - I will be back in five.
196 (At this stage the court proceeded with another matter.)
197 HER HONOUR: You have to sign this community corrections order. I just want to make sure it is right. 16 June, no that is definitely not a Saturday or a Sunday. What day is it, just so I know?
198 MR SLUCKI: It is a Tuesday, Your Honour.
199 HER HONOUR: Thanks. All right, do you want to go back and explain that, Mr Slucki?
200 MR SLUCKI: Certainly, Your Honour.
201 HER HONOUR: It is up to you, you do not have to, but it is - so, just go.
202 MR SLUCKI: I believe he understands. I will make sure.
203 HER HONOUR: Yes, yes. We have got a pen, I think. He will need to sign it. You have to sign this order. Copies will be made.
204 COUNSEL: As Your Honour pleases.
205 HER HONOUR: Thanks.
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