DPP v Deighan (No 2)
[2023] ACTSC 295
•18 October 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Deighan (No 2) |
Citation: | [2023] ACTSC 295 |
Hearing Dates: | 23 June, 7 July and 3 October 2023 |
Decision Date: | 18 October 2023 |
Before: | Norrish AJ |
Decision: | See [103] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender found guilty after trial by jury – choke strangle or suffocate – sexual intercourse without consent – acts of indecency – sexual assault with intent to have sexual intercourse and commit act of indecency – offences committed in a family violence context – offences committed whilst on conditional liberty – totality – mental illness at time of sentence – youthful offender – rehabilitation relevant to fixing non-parole period – transfer offences of common assault related to indictable offences |
Legislation Cited: | Crimes (Sentencing) Act 2005, ss 7, 10, 33, 34B, 65 |
Cases Cited: | Cahyadi v The Queen (2007) 168 A Crim R 41 |
Parties: | Director of Public Prosecutions John Deighan ( Offender) |
Representation: | Counsel T Hickey (23 June, 7 July 2023) & S Jerome (3 October 2023) ( DPP) T Jackson ( Offender) |
| Solicitors ACT Director of Public Prosecutions Rachel Bird & Co ( Offender) | |
File Numbers: | SCC 225, 226, 301 of 2022 |
Norrish AJ:
Introduction
1․The offender appears for sentence in relation to 19 offences for which he was found guilty by a jury in April 2023 after a trial continuing for over two weeks. I will refer to these matters generally as “the indictable offences”. Further, the prosecution desires that seven transfer offences be dealt with at this time. Six of those matters are offences of common assault directly connected to the indictable offences and were subject of evidence in the trial.
2․The offender has pleaded guilty to one of the transfer offences, an offence of stalking the victim of the indictable offences in the period between 22 March and 29 April 2022. He has pleaded not guilty to the six common assault offences. The chart below sets out each of the indictable and transfer offences by relation their date of occurrence and with their respective maximum penal penalties set out.
Offence Date of offence Maximum penalty (years) Common assault
(Transfer charge: CC2022/1202)
30 January 2022 2 Choke/suffocate/strangle (Count 1: CC2022/1488) 30 January 2022 5 Common assault (Transfer charge: CC2022/10908) 30 January 2022 2 Assault with intent to have sexual intercourse (Count 2: CC2022/4149) 27 February 2022 12 Act of indecency (Count 3: SCAN2022/233) 27 February 2022 7 Sexual intercourse without consent (Count 4: CC2022/4151) 27 February 2022
12 Common assault (Transfer charge: CC2022/4148) 27 February 2022
2 Sexual intercourse without consent (Count 5: SCCAN2022/234) 27 February 2022
12 Choke/suffocate/strangle (Alternative to Count 6) 27 February 2022
5 Common assault (Transfer charge: CC2022/4157) 19 March 2022 2 Assault with intent to commit an act of indecency (Count 7: SCCAN2022/237) 19 March 2022 10 Act of indecency (Count 8: SCCAN2022/238) 19 March 2022 7 Choke/suffocate/strangle (Count 9: CC2022/4163) 21 March 2022 5 Assault with intent to have sexual intercourse (Count 10: CC2022/4164) 21 March 2022 12 Sexual intercourse without consent (Count 11: CC2022/4165) 21 March 2022 12 Common assault (Transfer charge: CC2022/4162) 21 March 2022 2 Common assault (Transfer charge: CC2022/10909) 21 March 2022 2 Sexual intercourse without consent (Count 12: CC2022/4172) 22 March 2022 12 Inflict actual bodily harm with intent to engage in sexual intercourse (Count 13: CC2022/4174) 22 March 2022 14 Choke/suffocate/strangle (Count 14: CC2022/4159) 22 March 2022 5 Sexual intercourse without consent (Count 15: SCCAN2022/244) 22 March 2022 12 Sexual intercourse without consent (Count 16: SCCAN2022/245) 22 March 2022 12 Sexual intercourse without consent (Count 17: SCCAN2022/246) 22 March 2022 12 Sexual intercourse without consent (Count 18: SCCAN2022/247) 22 March 2022 12 Sexual intercourse without consent (Count 19: SCCAN2022/248) 22 March 2022 12 Stalking (Transfer charge: CC2022/4146)
21 March – 29 April 2022
2
3․In respect of all the transfer offences to which the offender has pleaded ‘not guilty’, counsel for the offender has not put any submissions to the Court as to a basis for finding the offender not guilty of any of those charges and does not submit that the evidence at trial is not capable of establishing the guilt of the offender. This is so in the context of the understanding that the prosecution bears the burden of proof and must establish each element of each charge beyond reasonable doubt.
4․In the circumstances where the victim has given evidence of matters relevant to the transfer offences, I consider it to be in the interests of justice to deal with the matters transferred from the Magistrates Court in accordance with the relevant provisions of the Magistrates Court Act 1930 (ACT) and Part 8 of the Supreme Court Act 1933 (ACT): see R v Day (No 2) [2022] ACTSC 352 and DPP v Murphy (No 2) [2023] ACTSC 227.
5․In the context of the particulars provided by the prosecution in relation to each of the common assault matters the evidence given by the victim in the trial and the verdicts of the jury, noting the evidence of the offender (although that was primarily directed at the allegations of sexual assault and choking of the victim in circumstances where the particulars supplied for these summary matters are intricately entwined with the facts relevant to the indictable offences), I find the offender guilty. I am satisfied that the prosecution has proven beyond reasonable doubt that in each instance the prosecution has established infliction of force upon the victim by the offender, that he intentionally or recklessly inflicted that force, the victim did not consent to the infliction of force and the offender had no lawful excuse for the infliction of that force: see R v Garland [2020] ACTSC 242 at [22]. The task of the Court now is to sentence the offender in relation to both the indictable offences and the transfer offences.
Background
6․The victim of the offences was a woman with whom the offender was in a relationship for a number of months at the time of the offending the subject of the indictable offences which occurred between 30 January and 22 March 2022. They met through a dating website. During the course of the relationship from about September 2021, I understand that the offender and the victim were 19 and 20 years of age at these times. He was born in October 2002, she in March 2002. The seventh transfer offence, that of ‘stalking,’ relates to the conduct of the offender towards the victim after they separated on 22 March 2022 up until 29 April 2022, the date the offender was arrested and taken into custody in relation to other unrelated offences.
7․So far as the indictable offences are concerned, one offence was committed on 30 January 2022, 5 offences were committed on 27 February 2022, 2 offences were committed on 19 March 2022, 3 offences were committed on 21 March 2022 and 8 offences were committed on 22 March 2022.
8․When the complainant and the offender separated, she fled to a town in NSW where her mother lived. The victim made a statement to New South Wales Police in late March 2022 about the alleged offences committed by the offender after a forensic medical examination conducted on 23 March 2022 The victim was interviewed by ACT police officers in May 2022.
9․The offender was arrested on 29 April 2022 in relation to other unconnected offences and was later charged with the current matters before the Court. Before his trial on the current matters, he was sentenced in the ACT Magistrates Court on 11 November 2022 in respect of offences of choking another person (his brother) on 4 April 2022 and assault occasioning actual bodily harm of his brother on the same date. He was clearly in a psychotic state at that time. He was respectively sentenced to 18 months detention, with a non-parole period of nine months to commence on 29 April 2022, for the choking matter and three months imprisonment for the assault matter, each sentence to be served concurrently. The non-parole period fixed in relation of the choking matter expired on 28 January 2023; the longer sentence is to otherwise expire on 28 October 2023. Thus, the pre-sentence custody up until 28 January 2023 is not referable to the offending with which I am concerned. I propose to commence the “effective” sentences I impose from the date of the expiry of the previously fixed non parole period. That sentence then becomes relevant to fixing the effective minimum term in this exercise in a manner I explain below.
10․The offender had no prior criminal convictions at the time of the offending with which I am now concerned. He was born on 2 October 2002 and thus was 19 years of age at the time of these offences. He was the beneficiary of a trust established by his late father which enabled him to purchase, by way of a loan from the trust, an apartment at Greenway, ACT near Tuggeranong in about June 2021. There he subsequently set up a domestic relationship with the victim where both parties lived. It was in or near these premises all the offences were committed. The victim had lived in NSW but moved to Canberra mid-2021 to share a house with her brother and other people. After meeting the offender on a dating app, she shortly afterwards commenced a sexual relationship with him before they commenced to live together in about September 2021. There was evidence in the trial that their sexual relationship included a range of sexual activities consensually entered into that involved choking, whipping, slapping and restraint, without the infliction of bodily harm: see DPP v Deighan [2023] ACTSC 57.
11․The offences for sentence arose out of five separate incidents which were summarised by the prosecution in the document marked exhibit M4 which is a summary of the evidence given by the complainant at trial. It is clear from the verdicts of the jury that it accepted beyond reasonable doubt the truthfulness of the victim and where there was conflict between the version given by the victim and the offender, the jury accepted beyond reasonable doubt the victim’s version of events sufficient to prove each charge. Consistent with the verdicts of the jury, I find the facts as follows: see Cheung v The Queen [2001] HCA 67 at [14].
The offences
12․On 30 January 2022, the victim and the offender were at home lying in bed. The offender told her that she was not good enough for him and wanted a girl with a tighter vagina. He got up and straddled her and repeated what he was saying. The victim managed to wiggle her way out from underneath the offender, and he left the room. The victim shut the door, but the offender started banging on it and rammed it. He eventually opened the door and grabbed the victim by the throat and pushed her up against the wall. He then grabbed her by the hair and pulled her onto the bed. This was an offence of common assault (CC2022/1202).
13․He pushed her face into the blanket where she struggled to breathe. The victim tried to yell out that she could not breathe. This continued for some time until the victim landed on her back and the offender grabbed a pillow and put it over her face suffocating her and she could not breathe. She managed to tilt her head slightly which allowed her to breathe a little. The offender had the pillow over her face for a couple of minutes. This conduct constitutes count 1, an offence of choke/suffocate/strangle.
14․The offender got up and left the room. When he came back the victim told him that she had eaten a sewing pin in an attempt to get him to call an ambulance so she could get out of the situation. This claim did not have the desired effect and she told him that she made it up. The offender grabbed her by the back of her head and pushed her into the blankets on the bed and hit her bottom with his hand. The victim managed to get free and cowered in the corner of the room vomiting on the carpet. The offender yelled at her telling her that he was not done and grabbed her by the hair and pushed her into the bathroom. These actions constitute an offence of common assault (CC22/10908).
15․The offender went back into the bedroom to try to clean up the vomit. The victim ran out the front door wearing nothing but the black t-shirt she was wearing at the time. She took the elevator to the ground floor and ran outside the apartment building and ran into a passer-by who called police. The offender was arrested and subsequently bailed. For a period he did not reside with victim but they eventually agreed to co-habit again.
16․On 27 February 2022, the victim was sitting on her bed when the offender walked into the bedroom and pulled her underwear off. She grabbed her underwear and tried to keep it up asking him to stop. But he pulled her underwear and top off. He then pushed her onto her back and sat next to her and slapped her breasts and vagina with his hand while she tried to cover her legs and vagina from being hit. He swatted her legs away and pushed them down and slapped her vagina. This conduct constitutes count 3, an act of indecency without consent, being reckless as to whether she consented or not.
17․The offender then pulled her to knees on the ground and forced her to perform oral sex on him. The victim closed her mouth, but the offender took his penis and poked her in the face with it to try to get her to open her mouth. He then forced his hands into her mouth and pushed his fingers through her lips and started scratching her gums with his fingernails. The victim found it painful and tasted blood and opened her mouth. This constitutes count 2, an offence of assault with intent to have sexual intercourse.
18․The offender then penetrated her mouth with his penis. He held her hair and neck to manoeuvre her head. During this she moved her head to the side numerous times to let his penis fall out of her mouth. She told him that she was not enjoying it and did not consent to it, but he ignored her. He then pulled her onto the bed and lay on his back and continued making her perform oral sex on him. He then pulled her onto the ground by her hair, so she was on her knees and forced her to continue performing oral sex on him. She tried to pull away from him but he pushed her head up against a cupboard so she could not move backwards. Towards the end he tried to ejaculate in her mouth, but she moved her head to the side and he ejaculated on her breasts. This act of sexual intercourse without consent established count 4.
19․Afterwards, the offender pulled her by her hair onto the bed on her stomach. He hit her buttocks with his hand a couple of times before grabbing a horse-riding whip which belonged to the victim and struck her a couple more times. It caused her pain and she screamed and cried asking him to stop. This is an offence of common assault (CC22/4148).
20․Later, the offender brushed the victim’s hair while she sat on the side of the bed, before suddenly hitting her on the head and shoulders with the brush. He pulled her back down on the bed and grabbed her thighs and pulled her towards him. She told him not to ‘rape' her, but he inserted his penis into her vagina and had sexual intercourse with her. She cried and told him to stop and that he was hurting her, but he ignored her. It continued for a few minutes. This is count 5, sexual intercourse without consent.
21․While this happened, the offender put his hands on her throat choking her. The victim tapped his arms to get him to release her because she could not speak because of the force he was using and because she was struggling to breathe. The offender was arraigned in count 6 on a charge of choking or strangling the victim “so as to render (her) insensible or unconscious”. He was found not guilty of this offence but guilty of the alternative count of “choking, suffocating or strangling” simpliciter.
22․Afterwards, the victim waited for the offender to fall asleep before she rolled off the bed and put on her clothes and left the apartment and drove to the Calvary Hospital. The trial evidence included evidence of her hospitalisation and medical treatment there over the next 48-hours. Whilst in hospital some hours after admission the victim was examined by a general practitioner with forensic medical qualifications who observed on her to have a 4 to 5 cm bruise on the front of the middle section of the neck two linear parallel red marks on the right buttock and two linear parallel red marks located on the left buttock. There were no petechial haemorrhages and no injuries to the genitalia, anus or other areas of the victim’s body. There was no bruising to her eyes and inside of her ears and no discernible injuries on her breasts, chest and back. The victim complained of difficulty breathing and swallowing as well as tunnel vision, which may be consistent with “strangulation”. On release from hospital the victim and the offender “reconciled”, and the victim returned to reside at the offender’s apartment where the previous offences had occurred.
23․On 19 March 2022, which was the victim’s birthday, the victim and the offender were at home watching a movie on the TV. They were laying on the couch and cuddling with the offender spooning her from behind. The offender moved his hand up the front of her shirt and pinched her nipple. The victim yelped in pain and the offender pushed her off the couch. He got up and tried to pull her up by her hair and arms, but she resisted and eventually he let her go and she ran to the kitchen and grabbed a knife to defend herself. This conduct by the offender constitutes the offence of common assault (CC22/4157).
24․The victim told the offender that he needed to go have a shower to calm down. Afterwards the offender walked out of the bathroom and grabbed the victim by the ankle and pulled her off the couch. He then pulled her by arms and hair and dragged her into the bedroom and pushed her on the bed. This was the conduct that established count 7, an offence of assaulting with intent to commit an act of indecency.
25․He then got on top of her and held her hands and scrunched up the bottom of her shirt and pushed it into her mouth. He groped and tried to kiss her breasts while she was trying to push him off and telling him to stop. He put his hand over her mouth and kissed her neck before putting his hands around her neck. He then told her that it was not working anymore and stopped. This evidence established count 8, act of indecency without consent. The activity stopped and they resumed their cohabitation.
26․On 21 March 2022, the victim and the offender were at home when the victim was talking to the offender about how his recent behaviour had been affecting her. However, the offender became angry and dragged her by her hair to the bedroom and pushed her up against the wall and grabbed her neck with two hands and choked there for a moment before pushing her onto the bed. The victim struggled to breath and was very scared. This is the evidence that established count 9, a charge of intentionally and unlawfully choking/strangling/suffocating the victim.
27․The offender forced her onto to her knees on the ground. He pulled his penis out and did the same things with his fingers as before where he forced them into her mouth and scratched her gums in order to force her open her mouth. This caused her pain. This conduct constituted count 10, a charge of unlawful assault with intent to engage in sexual intercourse.
28․The offender put his penis in her mouth and held her head in his hands. She tried to move her head and tilt it down so his penis would fall out of her mouth. But when that happened, he put it back in. Eventually, he pushed the victim’s head against the cupboards and thrusted his penis in her mouth continuing to make her perform oral sex on him. This lasted about 5-10 minutes. This is count 11, a charge of sexual intercourse without consent.
29․Afterwards she tried to push him away, but he hit her hands away. He took his penis out of her mouth and hit her face with it a number of times while she tried to block it with her hands and he put it back in her mouth. He then pulled her by the hair onto the ground on her knees. This constitutes the offence of common assault (CC22/4162). The evidence of sexual assault at this time was ‘contextual evidence’ as it was left to the jury.
30․He continued to make her perform oral sex on him before ejaculating onto her face and hair. He then dragged her by her hair to the bathroom and made her look at herself in the mirror and called her “disgusting”. He pushed her into the shower and told her to sit on the floor. He washed her hair while continuing to tell her she was disgusting and yelling at her and hitting her head and shoulders from behind her with his hands. This is an offence of common assault (CC22/10909). He told her to pack her belongings and leave. She did not leave but packed up some of her belongings over the rest of the day and slept in the apartment that night.
31․The next morning, on 22 March 2022, the victim continued to pack her belongings. The offender’s mood switched between telling her that he needed her to stay, to telling her that he did not want her there. At one point he walked towards her in a hugging motion. She hugged him back but instead he unbuckled her bra. He pushed her on the bed and lifted up her shirt, pulling out her bra, and pulled down her pants despite her resisting. He then licked her genitalia. This is count 12, an offence of sexual intercourse without consent.
32․Count 13 is an offence where the offender inflicted actual bodily harm upon the complainant with intent to engage in sexual intercourse without her consent by slapping the victim on the buttocks with his hand and then hitting her on the buttocks with the riding crop for a substantial period of time causing her severe pain as well as striking her on the lower back with his fist. When he threatened her with the riding crop, he said he had to use it to “scare the bad [name of the victim] away”. During this episode he tied her hands together with a necktie. A physical examination by a qualified medical practitioner within the next 24 hours found injuries consistent with being stuck by the riding crop but not necessarily consistent with the frequency or ferocity of the victim’s description in evidence. The offender then stuffed the victim’s underwear in her mouth, thus committing the offence of intentional choking identified in count 14 of the indictment.
33․He then forcibly performed cunnilingus on the complainant, this conduct constituting count 15, an offence of sexual intercourse without consent. Count 16 was established by evidence that he inserted his fingers into her genitalia and count 17 by inserting his finger or fingers into her anus. The victim told him to stop but he reached up and tried to cover her mouth with his hand. He told her to relax and enjoy it. After about 10 or 15 minutes he stopped and left the room.
34․During these events the victim went to the lounge room and grabbed another pair of jeans and put them on. She told the offender that she would leave and would pick up her belongings another day. But he was angry and grabbed her ponytail and pushed her onto the bed on her back. He pulled her pants and underwear off again and put his face close to her genitalia and talked to it as if it were a person.
35․He subsequently inserted his penis into her vagina and had penile/vaginal sexual intercourse with her. The victim told him to stop and that she was in pain (she could feel his penis hitting her cervix) but he did not stop. The offender ejaculated and left the room. This constituted count 18, an offence of sexual intercourse without consent.
36․When the offender came back to the room, he told the victim to get on her hands and knees on the bed. She told him she was in a lot of discomfort and her stomach was cramping. He asked her if she needed to be whipped again. He pulled her over to the side of the bed and made her look at her reflection in the mirrored cupboard doors while he inserted his penis into her vagina from behind and had sexual intercourse with her. This caused he a great deal of pain. The sexual intercourse went on for about 10 minutes. This was count 19, an offence of sexual intercourse without consent.
37․Afterwards the offender got dressed and told the victim that he wanted to get some cannabis. The offender did not have a motor vehicle, but the victim did. She got dressed drove him to a house in North Canberra with which she was familiar, that he had been to before to purchase cannabis. When the offender got out of the car, the victim saw her opportunity to escape and drove off, initially going to meet the offender’s mother who she knew and with whom she spoke for some period of time, before leaving the ACT to drive to her parents residence in New South Wales.
38․The victim was subsequently examined within 24-hours by a medical practitioner experienced in forensic examinations who observed a number of recent injuries which were photographed, including 2 very faint 2 centimetre ovoid motley yellow bruises on the right side of her neck, a 4 cm ovoid yellow motley bruise on the left side of her neck, a 3 mm red mark on the inner surface of the left cheek of the patient, fine cracks in the skin on the inside of the mouth (known as stomatitis), a bruise on her right chest ( above the right breast) approximately 3 x 5 cm, a 3 cm scratch on the left elbow, a small abrasion on her left arm, two 6 x 1 cm linear bruises on her lower back and an extensive pattern of brown/red/black bruising on the buttocks. There were no internal injuries either in the genitalia or the anus. He described the linear bruising on the lower back as “tramline bruising”. The extent and character of the injuries was not as severe as one may have expected given the victim’s description of the attacks upon her on 21 and 22 March.
39․The transfer offence of stalking (CC22/4146) was committed subsequently in the period after 22 March 2022 up until the time the offender came into custody on 29 April 2022. In the days after the victim left the ACT the victim did not message or contact the offender. However, over the following month the offender messaged her by social media including Snapchat (sending her friend requests). He then started to call and message her from phone numbers. The offender also transferred many small amounts of money into her account, from one cent to a few dollars with messages attached to the transfer such as “I love you baby”. During this period, the offender sent about 560 messages or made attempts to call or contact the victim. Many telephone calls were made by the offender which were unanswered. The messages he wrote included “Baby i promise the mean john is gone”, “Just talk to me”, “But i loved you a whole lot more than i ever loved anyone else”, “I’m off the drugs”, “You don’t have to be scared…”, “Please don’t treat me like this” et cetera.
40․It is self-evident that the offences of physical violence and sexual violence are each individually serious, with their objective seriousness increasing over time with the intensity of unlawful activity by the offender and in the context of earlier offences having been committed before specific offences for consideration (after 30 January 2022). As mentioned elsewhere there are five separate incidents, each incident, with the exception of the third incident on 19 March 2022, representing an escalation in the seriousness of the offending. The first set of offences involve no sexual violence and has to be assessed in the context of there being at that time no prior incidents of physical violence by the offender towards the victim. However, after the first choking incident the victim was so disturbed by the offender’s conduct that she fled the scene undressed from the waist down and presented to a civilian witness in a distressed state, whilst the offender presented himself to the same witness as aggressive and threatening. The independent witness rang the police, his conversation with the 000 operator was recorded and his contemporaneous representations, which obviously were truthful, reflect the threat the offender continued to present to the victim. It is difficult to understand why they reconciled. As it transpired, she consented to the offender returning to the apartment. Although it was his apartment, but she had no desire to leave herself. The offending in count one was, in context, within the middle range of objective seriousness.
41․On 27 February 2022, the offender committed the first sexual assault and act of indecency, count 3, and then performed oral sex on the victim after forcing her mouth open (count 2) and then performing oral sexual intercourse upon her (count 4). That offence was followed by an act of penile vaginal intercourse (count 5). Each of the offences committed on this date were within the middle range of objective seriousness. To choke her afterwards was to inflict upon her a totally unnecessary further indignity (count 6). On 19 March there were two sexual assaults committed each in my view at the lower end of the middle range of objective seriousness (counts 7 and 8), particularly I note in relation count 8 that he voluntarily stopped assaulting the victim.
42․On 21 March 2022, the offence that constituted count 9 was the least serious of all the choking offences, even making allowance for the prior incidents of choking, given its short duration and the offender voluntarily stopping. However, when he stopped, he forced himself upon her penetrating her mouth with his penis after forcing her mouth open (count 10). Count 11 was very forceful sexual intercourse without consent and is an offence towards the upper level of the middle range of objective seriousness. This sexual assault was prolonged, interrupted only by an act of common assault before he concluded the sexual assault.
43․The offending on 22 March 2022 was the most serious course of offending given the number of offences and the prolonged period of time over which the offending occurred. The character of the offending made more serious by the multiplicity of the acts of sexual intercourse without consent. Count 13 is an offence that has the highest maximum penalty and in my view is amongst the most serious offences committed by the offender in context of the course of offending. It involved, in effect, a softening up of the victim for further sexual indignities. He inflicted pain on the victim, the assault was prolonged and by reason of this conduct the victim was rendered unable to defend itself. There was also the use of a weapon, albeit not a firearm or a knife capable of lethal consequences. Count 14 is an offence of choking occurring during the course of sexual assaults and is well within the middle range of objective seriousness given its duration and its context. Count 15 is an offence in the upper levels of the middle range of objective seriousness. Counts 16 and 17 are acts of digital penetration within the middle range, particularly in the context of the surrounding conduct of the offender. Count 18 is an act of penile-vaginal penetration. Whilst it did not involve any physical injury it occurred having coerced the victim into compliance and is an offence in the upper levels of the middle range of objective seriousness. The offender’s penetration of the victim was forceful and painful. Count 19 was an offence of penile/vaginal penetration from behind and in context was well within the middle range of objective seriousness. The common assaults were all unacceptable acts of physical violence to be assessed in the context of surrounding humiliation of the victim. Whilst the stalking charge is separate from and postdates the serious offending with which I am concerned, as it transpires given the structure of the sentences for the indictable matters it is not practical to make the sentence for that offence cumulative or partly cumulative upon other sentences. I also note, notwithstanding the unwanted attention from the offender which must been very distressing for the victim, there were no continuing direct threats made to the victim during the course of multiple (hundreds) of communications.
Reports
44․The Corrective Services (ACT) Presentence Report sets out the details concerning the contact of the offender with the Service prior to the preparation of report, which relates to the “subsequent offending” against the offender’s brother. The report sets out details of the offender’s background, education and employment, drug use, medical and mental health issues and his “attitude to the offences”.
45․As confirmed in the evidence of the offender’s mother, the report states that the offender’s parents separated when he was very young and he was largely neglected by his father, being raised by his mother. His mother gave evidence about this matter in greater detail which I will refer to later. The offender’s upbringing has been marked by significant deaths in relatively recent years including suicides of school contemporaries. He currently has a strained relationship with his mother, though they were previously close. I note she supported him during the trial and gave evidence in the trial (in my view truthfully) about observations of her son’s relationship with the victim. His relationship with his brothers appears currently broken as a result of the assaults referred to earlier.
46․The offender gave to the Corrective Services reporter what I regard as a totally unrealistic assessment of his relationship with the victim claiming at the time of the preparation of the report that he was “unsure of [their] relationship status”.
47․The report stated that the offender had a disrupted education changing schools frequently despite professional interventions. On leaving school he worked as a “engine machinist” and was apparently studying engineering through correspondence with the University of South Australia. He had left this employment just prior to the offending. He would appear to have had little prosocial acquaintances prior to the offending other than the victim. The evidence at trial revealed that they lived together in a seemingly self-contained environment largely staying within the apartment without socialising with others.
48․He gave a history to the reporter that since his early teenage years, he has been a regular cannabis user. That use exacerbating his symptoms of depression. He infrequently used psychedelic substances up until coming into custody.
49․In the community he had regular contact with psychologists and counsellors and apparently had been treated since coming into custody with anti-depressant and anti-psychotic medication. There was reference in the report to Canberra Mental Health Services noting a recent diagnosis of “schizophrenia” for which he is receiving ongoing treatment and is “currently” medicated. There is also a history of treatment for psychosis in mid-April 2022, shortly after the assaults committed on family members, before coming into custody which I will comment upon further below. As a child and young adult, he had referrals to mental health services.
50․He maintained his innocence in relation to the offending to the reporter. Obviously, in the view of the reporter, he did not take responsibility for his offending behaviour. He attributed the allegations in part to her “poor mental health”. He claimed that any injuries she suffered were a result of consensual sexual activity. It was stated in the report that his behaviour in mid-March 2022 reflected an episode of manic behaviour but according to the reporter he denied any link between his offending behaviour and his mental health and drug use “by his denial of guilt”.
51․He is assessed at “high risk of reoffending” based upon the actuarial risk instrument used but the conclusions of that testing are to be doubted in light of the evidence in Dr Nielssen’s report concerning the unreliability of risk assessment upon a person suffering from schizophrenia. Influencing factors on the offending were, in the view of the reporter his social isolation, his limited pro social support network, drug use and mental health issues largely undiagnosed at the time. He failed to have any insight as to the connection between his mental health and his drug use, nor the seriousness of his offending. There is a concern at this stage as to his capacity to engage with treatment programs to address his violent and sexual offending behaviour as well as concern as to the escalation of his behaviour.
52․Dr Olav Nielssen prepared a report dated 21 June 2023 requested by the legal representatives of the offender. Apart from material relevant to the offending and the criminal history, he had a report available to him prepared by a psychologist on 10 October 2022, a report from the CT scan of April 2022 and medical reports and discharge summaries relating to admissions to Canberra Hospital in respect of psychotic episodes before his arrest in relation to the current matters.
53․The doctor set out the offender’s account of his relationship with the victim and matters relating to his drug use, emotional state during the period of the offending, his background and general understanding of his emotional and mental health. He gave a history of admission to hospital in April 2022 with symptoms of psychotic illness. At the time of interview, he was receiving long-term antipsychotic injections and treatment for depression. He had a history of a troubled relationship with these two brothers, a half-brother aged 36 and a full brother aged 24.
54․The psychiatrist also obtained a history from the offender’s mother which detailed his difficulties at school, his counselling as a child where it was thought that he was “on the spectrum” because use of cannabis and his relationship with family members. She told Dr Nielssen that he was “psychotic” at the time of the assaults committed on his brothers in April 2022 and his subsequent admission to a psychiatric ward at Canberra Hospital. She noted in custody his mental health had improved. She described to the doctor the relationship between the victim and her son as “not healthy” and that she believed the victim suffered some form of “mental illness”. The victim gave evidence that she had received treatment at a mental health facility in New South Wales for “post-traumatic stress disorder”, but denied that she had been diagnosed or treated for “bipolar disorder”, although discharge notes suggested otherwise.
55․The doctor noted that in the clinical examination the offender was attentive and concentrated, his retrieval of information was “unimpaired”. His “pre-morbid intelligence” was estimated to be in the “higher part of the normal range”, having regard to his vocabulary and his scientific interests. Whilst there was no family history of diagnosed psychotic illness there was a family history of neurological disorder and eccentricity which might indicate an inherited vulnerability to psychotic illness. He was thought to be “on the spectrum” as a teenager and had several “brief psychotic episodes” in the period before the emergence of “schizophrenia”.
56․The doctor was of the opinion that the offender currently suffered from schizophrenia, or a persistent psychotic illness, rather than a drug-related condition, noting the onset of “hallucinated voices” and other matters in the weeks before his admission to Canberra Hospital in mid-April 2022. He was of the opinion that both his presentation and treatment was consistent with an “underlying schizophrenic illness”. He also noted a “cannabis use disorder in remission”. The doctor was of the view that the condition was either schizophrenia or a persistent psychotic illness rather than a drug-related condition because of the pattern of symptoms and the persistence of symptoms “long after the effect of any drugs would have been expected to have worn off”. The assault on his brothers was attributed to his mental illness.
57․He said that “the period between the emergence of acute symptoms of psychosis and the initiation of effective treatment, referred to as the first episode of psychosis …to be a period of greatly increased risk of serious violence to self and to others”. He also said that “emerging psychosis is associated with the disturbance in the perception of events and impairment in the capacity to regulate emotions and to think calmly and logically”.
58․He was of the opinion that the offenders “emerging mental illness is likely to have affected his perception of events, his ability to recognise the effect of his behaviour on others and his ability to regulate his emotional responses and hence exercise control over his conduct”. He noted that at the present time the offender continues to have “some impairment in his ability to identify symptoms of schizophrenia” although he does not object to treatment. He feels safer in prison which “is a further indication that his recovery from the first episode of psychosis is incomplete”.
59․The doctor said that because of his schizophrenia actuarial instruments like Static 99 R, that was used by Corrective Services, are not valid. He said, “on clinical grounds, his risk of further serious violence would be much lower after treatment and similarly his likelihood of further offences of a sexual nature would be greatly reduced by ongoing treatment with antipsychotic medication under the supervision of the public community mental health service”. His prognosis would be improved by long-term abstinence from cannabis and other drugs which can “exacerbate symptoms of psychosis”.
60․The sentencing of the offender had been delayed to permit cross-examination of the doctor and the preparation of a report from a psychiatrist retained by the prosecution. This considerable delay has been regrettable, particularly as it transpired neither doctor was ultimately required by the parties to give evidence when the matter resumed on 3 October 2023.
61․The psychiatrist retained by the prosecution, Dr Le, whose report I will refer to shortly, doubted the probability of the offender being in some way motivated by his mental illness at the time of the offending the subject of these proceedings. Counsel for the offender conceded that there was insufficient evidence of the offender being influenced by the symptoms of schizophrenia at the time of this offending. It is accepted by both parties that if the offender was suffering schizophrenia at the time of the offending, it had no causal connection.
62․Dr Le prepared a report in relation to the offender based upon a range of material including the report of Dr Nielssen. As a matter of history some weeks before 3 October the prosecution sought to invoke a rule of the Court, obviously directed at civil litigation, to compel the offender to be interviewed by a medical practitioner chosen by the prosecution. I declined that application believing that the rule had no role to play in criminal proceedings, particularly in the circumstances of an offender person having a right to silence. Dr Le did not clinically examine the offender.
63․Apart from the Dr Nielssen’s report the prosecution’s expert reviewed material from a clinical psychologist prepared in relation to the sentencing of the offender for the assault upon one of his brothers and Canberra Health Services medical records, relating to the offender’s admission for medical treatment in April 2022. These records extend from mid-April 2022 until 26 April 2023, including whilst he has been in custody, the detail of which I need not dwell upon. Dr Le also had regard to the presentence report and a review of the evidence of the victim and the offender at trial in the material that relates to the stalking/intimidation offence to which the offender is pleaded guilty.
64․Having reviewed all the material Dr Le agreed that the presentation of the offender for treatment in April 2022 and subsequent response to antipsychotic and antidepressant medication was consistent with a diagnosis of schizophrenia at the time of treatment. The doctor also noted the existence of a cannabis use disorder over a period of time. Dr Le is in “broad agreement” with Dr Nielssen that the offender was biologically predisposed to schizophrenia with cannabis use having a “probable” role in the onset of schizophrenia.
65․So far as the influence of mental illness on the offender’s perception of events and his behaviour at the time of the offences Dr Le agreed with Dr Nielssen as to his assessment of the offender’s condition at the time of the assault upon his brothers, but disagreed with the level of certainty expressed. The doctor in part relies upon clinical records from Canberra Health Services that reflect the fact that the psychotic symptoms were not directed towards or arose out of his relationship with his brothers. But he acknowledged that the contemporaneity of the psychotic symptoms to the offences against the brothers make it “plausible that the psychotic illness may have had a contributory role in the offending”. The doctor stated that “based on the available information the writer does not consider that it is possible to conclude with any degree of certainty that [the offenders] behaviour towards his brother contributed to, either in part or in whole, to the first episode of psychosis [sic]”.
66․He stated that he disagreed with Dr Nielssen’s assessment that the offender’s perception of events and behaviour was affected by emerging mental illness at the time of the offences with which I am concerned. Nor that his ability to recognise the effect of his behaviour upon others and regulate his emotional responses was comprised. He disagreed with the analysis that mental illness was in fact a “likely” contributor to the offender’s conduct. He stated that in his opinion such a conclusion relies upon the assumptions that the offender was both experiencing psychotic symptoms in relation to the victim at the time of the offending and that the psychotic symptoms were influencing his behaviour in relation to the offending. He said that there is “no reasonable evidence to support either assumption.”
67․Dr Le conceded that in the context of his hospitalisation in April 2022 it is “possible [that the offender] was experiencing prodromal psychotic symptoms of the time of the offending” however there was no recorded evidence to suggest this was occurring. This observation ignores the bizarre character of the offender’s behaviour towards the victim over a two-month period, particularly, his lack of empathy, disinterest and obsession, as well as the character of his behaviour over the period of the offending and his presentation in an obvious psychotic state so shortly after the last of the offending.
68․The reports of Dr Nielssen and Dr Le were ultimately tendered by the defence and the prosecution without objection from the opposing party. Counsel for the offender accepted the analysis of Dr Le that the evidence was not sufficient to establish a causal connection between the subsequently diagnosed condition of schizophrenia and the offending behaviour with which this Court is concerned, although there may have been an underlying condition of schizophrenia at the time of the offending that was undiagnosed but not contributing to the offender’s criminal conduct. This must at least to have been the case. The principal submission made on behalf of the offender was that the diagnosis of schizophrenia and the treatment of the offender for that condition in custody, and his favourable response to medication provided a “pathway” to rehabilitation.
69․While this may be so, the prosecution submitted correctly that in the absence of the existence of any proven relationship between the condition and the offending the offender’s moral culpability for the offending was not reduced. Further, that the weight to be given to general deterrence should not be moderated or eliminated and that the existence of the condition warrants consideration of the weight to be given to specific or personal deterrence and the protection of the community.
70․In the context of the principles identified in R v Verdins (2007) 16 VR 269, at [32], the absence of a reduction in moral culpability, as opposed to the offender’s legal responsibility, means that the existence of the condition now does not affect a punishment that is just in all the circumstances nor reduce the need for denunciation for that reason, subject to other matters discussed in Verdins that I will come back to later. The existence of the condition was diagnosed subsequent to April 2022 and the treatment of it, which appears to have been successful to an extent, in my view enhances the prospects of rehabilitation of the offender, notwithstanding the obvious difficulty in predicting the circumstances of the offender in the future, for the purposes of fixing a minimum term of imprisonment.
71․There is no direct evidence that the condition of the offender is such that any sentences imposed will weigh more heavily on the offender than a person of normal health nor that imprisonment will have a significant adverse effect on the offender’s mental health (beyond what would ordinarily be expected as a consequence of a substantial period of imprisonment). In the context of the specific submissions made by the prosecution about protection of the community, it would appear that the positive response of the offender to treatment is relevant to the assessment of the potential danger or threat the offender poses to the community and/or the victim and also relevant to the assessment of the weight to be given to personal deterrence.
72․The mother of the offender gave evidence in the sentence proceedings as to the background of the offender revealing that the father of the offender left the family home when the offender was two years of age to travel to Melbourne to care for his mother but never returned to the family home. The father returned to Canberra in 2016 suffering final stage prostate cancer and died of that cancer in Canberra shortly afterwards. He had almost no contact with the offender and his two brothers until shortly before his death. The father however did leave to the offender and the brothers his estate, the offender’s beneficial interest being held in a trust. The mother is a trustee for the offender’s interest in the estate. The apartment at Tuggeranong, which had been purchased for the benefit of the offender since the offences has been sold. The offender’s mother gave evidence that on his release from custody, her health and well-being permitting, she will strive to support him. She has attempted to obtain for him private medical treatment whilst in custody, but this has not been permitted. She gave evidence that the offender had a disrupted education, apparently largely brought about by behavioural issues arising from non-compliance with directions and a lack of attention to his studies.
73․The offender attended 4 different high schools because of his behavioural issues. She had attempted to obtain assistance from psychologists but was unable to get a definitive diagnosis of the offender. Reference was made during this time to the possibility of the offender suffering some form of autism. She confirmed that on leaving school with a Certificate of Completion, but no ATAR, and that the offender worked for 18 months at an engineering maintenance business in Queanbeyan. She was aware of the offender’s use of drugs in his early teenage years and believed that he was regularly using cannabis, LSD and amphetamines whilst at school and subsequently. She accepted that the assistance she can provide the offender in due course will be dependent upon his co-operation and that when much younger he had declined an opportunity to receive drug and alcohol counselling. It might be fairly said, however, that fact provides little assistance for future planning given his youth at that time and his lack of maturity. The evidence of the mother establishes a disrupted education, a history of behavioural issues and drug dependency or usage for an extended period of time prior to the commission of the current offences.
Submissions
74․A number of the submissions of the parties will be the subject of consideration as I proceed to outline them. The oral submissions from counsel for the offender conceded the absence of remorse on the part of the offender. However, In the circumstances of the continuing support of his mother, the diagnosis of schizophrenia and the treatment of it whilst in custody, as well as increased maturity and insight the prospects of rehabilitation of the offender were such that there was a proper basis for reducing the non-parole period or extending the relationship between the non-parole period and the balance of sentence to encourage and promote his rehabilitation.
75․It was submitted that in relation to offences committed on one particular date, for example the last group of offences (counts 12 – 19) committed on 22 March 2022 there should be a significant degree of concurrency as the offences were part of the one course of conduct. With regard to the stalking charge to which he pleaded guilty it was submitted that its seriousness was diminished, notwithstanding the extended period of contact, because the communications with the victim did not involve any threats to harm to the victim nor any suggestion of reprisal.
76․It was submitted that the offender’s background was one of disrupted education and obvious personality or behavioural issues that remained undiagnosed in the context of an accepted history of drug abuse which, particularly by the use of cannabis, probably contributed to the development of his schizophrenia. The diagnosis was an important advancement favouring optimism in his future. It was accepted that the offences in the various forms were individually “objectively serious” but that the prospects of rehabilitation were such that there should be a reduction of the minimum period to be spent in custody.
77․The prosecution provided detailed written submissions supplemented by oral submissions. Melding both the oral and written submissions the prosecution contends that the offences committed in a domestic context are serious offences requiring substantial terms of imprisonment: see R v Edigarov [2001] NSWCCA 436 at [41] and R v HC [2018] ACTSC 49 at [3]. This is correct. In assessing the objective seriousness of the sexual assault offences there are a number of considerations that may be relevant including the presence of premeditation, whether the offences were committed in company, the period of time of the relevant assaults, the number of assaults occurring at the same time, whether the victim was injured, whether there was humiliation or degradation of the victim, whether the victim was particularly vulnerable, whether the offender ignored warnings or protests amongst other matters: see Jurj v The Queen [2016] VSCA 57 at [80]. Only some of those matters in that “checklist” apply here. Each of the five episodes of physical and sexual violence against the victim were absent premeditation or planning. That noted, the repetition of conduct at a stage where the offender had knowledge of his previous offending against the same victim enhances the seriousness of each subsequent group of offences, culminating with the sustained offending of 22 March 2022. The pattern of behaviour demonstrates an escalation of seriousness of which there is no dispute. But beforehand there was no history of sexual violence. The victim was not in my view vulnerable per se. Whilst the offender was stronger than her and the offender’s outbursts were unpredictable, she had the opportunity on a number of occasions to severe the relationship up until 22 March and had the means to leave as she had access to the only vehicle in the relationship. I accept she could not leave in the middle of the course of particular offences but this was not because of an inherent vulnerability.
78․With regard to the nature and circumstances of the offending, the course of conduct and the degree of responsibility of the offender (by reference to s 33(1)(a) and (c)(i) of the Crimes (Sentencing) Act 2005 (ACT) ( the “Sentencing Act”)), the prosecution correctly noted that the victim had been sexually assaulted on multiple occasions over a period of almost 2 months and on more than one occasion on three separate occasions, that is 27 February 2022 and 21 and 22 March 2022. A number of the individual offences were accompanied by acts of violence in addition to that inherent in the nature of sexual offending, a weapon was used on 27 February 2022 and on 22 March 2022 and the victim was “degraded” on a number of occasions. It was noted that the offender ignored the victims protests and resistance. These matters have been considered in assessing the objective seriousness of the offending above.
79․All the offences after 30 January 2022 were in breach of conditional liberty as they were committed by the offender when on bail in respect of the offences committed against the same victim on 30 January 2022. The offences involved domestic or family violence with breaches of trust, in the sense that the victim was entitled to expect to be free from interference within her own residence in the company of her then partner on a number of occasions. In the consideration of s 34B of the Sentencing Act, as invited by the prosecution, it is to be noted that the assaults did not occur in the presence of other people and the offender did not have prior convictions for “serious family violence offences”. The other matters identified by the prosecution are an accurate reflection of the facts of the case.
80․Further, as the prosecution submitted, the Court is required to have regard to the effect upon the victim of the offences (s 33(1)(f) of the Sentencing Act). This must be regarded as profound having regard to the period of time over which the offending occurred, the number of individual offences committed and their character as well as the injuries suffered at various times. I have had regard to the victim impact statement in which the victim describes the significant effect upon her of the offending. Whilst I accept that the victim suffers the effects of Post-Traumatic Stress Disorder, in light of the evidence of the trial that she had been treated for that condition by admission to a facility before she met the offender, the conduct of the offender is not to be regarded as the cause of the condition but could well have aggravated that condition, noting the absence of expert evidence in relation to this matter. There is no evidence that the offender exploited her psychological vulnerability. The only medical evidence relating to injury suffered by the victim was that of investigative doctors given at trial which has been earlier summarised. I have otherwise had regard to the requirements of s 33 of the Sentencing Act.
81․I have already referred to the submissions of the prosecution and the defence in relation to the psychiatric evidence and its relevance to the sentencing exercise. I will come back to that topic shortly. As the prosecution submits, and the defence concedes, whilst it is likely the offender had schizophrenia at the time of the offending there is no evidence of any deficit in his capacity for controlling his behaviour or that any psychosis was present or experienced at the time of any relevant offending.
82․The prosecution submitted that the offender was a high risk of reoffending, however noted that the actuarial instrument used to assess the risk of sexual reoffending was unreliable having regard to the condition of schizophrenia as opined by Dr Nielssen. The prosecution submitted that the only available inference to be drawn as to the reason for offending the way he did was that the offender was motivated by personal sexual gratification and domination. Certainly, there was a pattern of “coercive control” in the offender’s behaviour. It was noted in submission that there was evidence that on 27 February 2022 the offender had consumed tablets thought to contain dexamphetamines but that there was no evidence of it having an effect upon his conduct, other than being awake for an extended period of time.
83․The Court is required, as the prosecution submits, to have regard to current sentencing practice and patterns (s 33(1)(za) of the Sentencing Act) and has provided a number of authorities for comparative purposes, but with the qualification that particular offending that arises here is more serious than some of the “comparative” cases. General principles relating to sentencing for sexual offending are identified by the prosecution in the decision of R v Miller [2019] ACTCA 25 at [44] and accepted for this sentencing exercise. I accept not only those principles but the proposition that comparative cases are not provided for “strict mathematical equivalence”, but rather to ensure consistency in the application of relevant principles: see Hili and Jones v The Queen [2010] HCA 45. The cases cited by the prosecution for comparative purposes include: Okwechine v The Queen [2023] ACTCA 25, DPP v Dunn [2022] ACTSC 355, R v Lindsay [2020] ACTCA 25, R v Bourke [2018] ACTSC 5, R v Stevens (No 3) [2017] ACTSC 297, R v Versteeg (No 2) ACTSC 273, R v Buda-Kaa [2013] ACTCA 46 and DPP v Murphy (No 2) [2023] ACTSC 227. I have had regard to the detail of these various decisions (Okwechine was an unsuccessful appeal from sentences I imposed after trial and Versteeg (No 2) was an offender who I dealt with recently for a breach of a Court order). I have noted the variation in the factual circumstances between those various cases and this offending (although not all the cases involve particular sexual offending less serious than here). In respect of the detail of the personal circumstances of the offenders in the matters cited above, by comparison with this offender, there are significant differences. For example, some of the offenders had “significant criminal histories”. Mr Okwechine was on parole at the time of the offending for which he was sentenced. Ultimately, individual sentences imposed for particular acts of sexual assault and related criminal activity in those various matters provide some guidance and assistance in this sentencing exercise.
84․The prosecution referred the Court to the purposes of sentencing identified in s 7 of the Sentencing Act, with the specific submission that particular purposes had “primacy” over others. Whilst all the purposes of sentencing are relevant it is not necessarily a matter of whether particular purposes have “primacy” over others, but the extent to which weight can be given to individual purposes bearing in mind ,as the High Court observed in Veen (No 2) v The Queen (1988) 164 CLR 465, at 476, the purposes of sentencing are “guideposts” that sometimes point in conflicting or different directions.
85․The prosecution correctly identified the need to have regard to principles of “totality” of sentencing, but with the requirement to fix an appropriate sentence for each offence and then turning to the issues of concurrency and accumulation in order to reflect the totality of criminality, which must include consideration of “repeated and discrete misconduct.” The maximum penalty provides a yardstick for identifying the appropriate sentence by regard to the objective seriousness of the offending and relevant mitigating factors. So far as the minimum term was concerned it was submitted that the Court was required to have regard to the existing sentence of imprisonment imposed in November 2022. As I made clear to the parties in submission the only just way to fashion the current sentences is to effectively commence them at the expiry of the non-parole fixed in the Magistrates Court. In fixing the minimum term in these matters I am however required to view the total term of imprisonment to be served effectively by the offender from 29 April 2022 “holistically”, making some adjustment in the minimum term to reflect the accumulation upon the previously imposed non-parole period.
86․The prosecution submitted that the prospects of rehabilitation and reform were “quite limited”, which favoured “more severe punishment” and that a “lengthy period on parole will not be to the ultimate protection of the community”. I do not accept those submissions. They are made with a view to only part of the evidence that the prosecution accepts. The prospects of rehabilitation are clearly important in considering the fixing of the non-parole period: see Taylor v The Queen [2014] ACTCA 9 at [19]. The learned prosecutor submitted that a longer period of non-parole was required to reflect the seriousness of the offending, the need to protect the community and general and specific deterrence. In respect of that submission I note my comments earlier concerning the proper approach to considering the “purposes of sentencing”. Clearly an aggregate non-parole period must bear a relationship to the total effective sentence, but the issues of deterrence and the measure of the seriousness of the offending will largely fashion the effective head sentences for each offence and the total sentence calculated by regard to “totality” principles.
Other consideration
87․As noted earlier, Mr Deighan at the time of the commission of the first offence had no prior criminal convictions or charges. He can properly be regarded as a youthful offender, if not a young offender, which is a matter of some mitigation. Of course, the mitigation it provides in this matter is limited and clearly not to be seen in the same way as the requirements of legislation in the sentencing of young offenders in Chapter 8A of the Sentencing Act. Relative youthfulness speaks of some degree of immaturity and lack of appreciation of the full consequences of his conduct, particularly in the context of what had been up until the commencement of the sexual offending a continuing sexual relationship, which included the offender inviting the victim to live with him and she accepting that invitation. I am not suggesting that a lack of sexual maturity or experience in maintaining a relationship with a live-in partner is an excuse for criminal conduct. Physical and sexual violence against a weaker partner is completely unacceptable. But the reality of the matter is that the relationship with this victim was, at least for the offender, the first such domestic relationship of any significance that he experienced. His immaturity was reflected by the unrealistic appreciation he had of the effect of his conduct upon the victim and his belief that the relationship could continue despite his conduct. In this matter this speaks of naivety rather than bloody-mindedness. He was slightly younger than the victim.
88․The absence of convictions at the commencement of this course of offending is of relevance to the assessment of his prospects of rehabilitation. Whilst he clearly had behavioural issues at school, there is no suggestion of any earlier criminal misconduct on his part. The criminal conduct of the offender is not to be seen in the same way as that considered by Mossop J in DPP v Murphy (No 2), previously cited, where the offender there was sentenced in relation to a range of offences of physical and sexual violence over a period of 10 years (August 2011 – November 2021) relating to 4 different victims, who at the time of sentencing was 31 years of age presenting with a “disturbing history of offending” and who had demonstrated “an entrenched pattern of emotional manipulation, controlling and violent behaviour, degradation and sexual abuse of his intimate partners over many years”. It was in these circumstances that Mossop J determined that any prospects of the offender’s attitudes changing would “be considered guarded at best” (at [101]). It is correct of course that this offender’s conduct towards this victim also reflected a pattern of “emotional manipulation, controlling and violent behaviour, degradation and sexual abuse” but over a much more limited period of time, without history of similar behaviour to others, or evidence of entrenched attitudes.
89․Such “good character” as existed at the commencement of the offending was ultimately diminished to the point of irrelevancy as the course of conduct towards the victim progressed, given that on the occasion of latter offending each offence committed has to be understood as occurring as part of a course of conduct in the knowledge by the offender that he had committed offences towards the same victim on earlier occasions. That having been said this is not the same situation as an offender manifesting “a continuing attitude of disobedience of the law” as discussed in Veen (No 2) at 477 and in authorities cited by the prosecution in the context of the consideration of a relevant criminal history, such as Kelly v Ashby [2015] ACTSC 346 at [38] and Millard v The Queen [2016] ACTCA 14 at [38].
90․I have earlier referred to the available evidence in relation to the mental state of the offender at the present time and earlier, including the diagnosis of schizophrenia that emerged after he was arrested on 29 April 2022. To my mind the medical evidence is in an unsatisfactory state given what occurred on 3 October 2023 when the parties chose for their own reasons not to call oral evidence from the two psychiatrists who prepared reports. I am to some extent bound by the way the parties conduct their cases and am obliged to note the acceptance on behalf of the accused that it cannot be claimed that mental illness was a contributing factor to the offender’s criminal conduct. But the dramatic emergence of the offender’s schizophrenia within a comparatively short time of the commission of the offences against this victim and the acceptance of the fact that there was present at relevant times the undiagnosed and underlying condition of schizophrenia presents a troubling aspect of the case. Although the matter has not been raised by the parties nor discussed by the Court with them, there remains an issue as to whether the offender’s schizophrenia has contributed to his presentation in court and the character of his evidence in the trial or whether his medication regime has contributed to his presentation in Court. Certainly, there is present in the evidence from the victim of his bizarre behaviour during some of the offending, such as trying to get rid of “the bad (name of victim)” and bring back “the good” (name of victim). Also, the occasions he spoke towards her genitalia. Although the offender gave a coherent account of relevant matters in the trial (essentially not accepted by the jury) he had a somewhat detached demeanour and an obvious lack of empathy for the victim.
91․By relation to Verdins principles, noting my earlier comments about this matter, it is to be remembered that consideration of the relevance of a mental illness is not to be had just at the time of the offending, but also at the time of sentencing (Verdins, at [32](3), (4) and (5)). Further, as I noted earlier, whilst there is no evidence that his condition renders his imprisonment onerous or that his imprisonment constitutes a risk to his mental health, I note the observations of Dr Nielssen that the offender’s statements to his mother about feeling safe in custody at the present time suggests that the effect upon him of his mental illness whilst in custody has not run its full course. It is in these circumstances that I have concluded, albeit in a relatively minor way, I should be concerned to recognise that his reformation may go hand in hand with the progress of his treatment. I acknowledge that his circumstances in custody due to a mental illness, that must now be regarded as permanent, may change and that positive response to his treatment reduces, to some degree, the weight required to be given to specific deterrence and the need to protect the community.
92․The presence of a mental illness is a relevant matter to assessing the prospects of rehabilitation of the offender. As I earlier pointed out, the diagnosis of schizophrenia that has occurred since the offending and the positive response to anti-psychotic and anti-depressant medications, provide evidence of the prospect of much improved mental health on the part of the offender in the future on his release than in my view existed over the period of time of the offending. The evidence of the offender’s unsettled mental state emerges clearly in the circumstances of the commission of the stalking offence. Noting the absence of any threats of harm to the victim or threats of reprisal, the intensity and character of the communications directed to the victim, the forwarding of nominal amounts of money and the like reflect a substantial disturbance of mind at that time. This is not a situation, as discussed in the prosecution’s helpful summary of relevant legal principles, where the manner in which the offender conducted his trial impacts upon his ability to rely upon specific principles that may otherwise “produce an appropriate sentence”: see R v Hoyle (No 2) [2017] ACTSC 175 at [38]-[53].
93․That the offender committed the offences in counts 2-19, as well as four of the seven transfer offences, whilst on conditional liberty is an aggravating factor in consideration of each such matter. But bearing in mind the character of the conditional liberty, a grant of bail for the first time in his life, this is not a situation where the breach of conditional liberty represents “a betrayal of opportunity for rehabilitation offered by (conditional liberty)”: see R v Tran [1999] NSWCCA 109 at [15]. There are degrees of seriousness of breaches of conditional liberty. For example, offences committed whilst on parole for sentences imposed for like offending may properly be regarded as the most serious examples of breaches of conditional liberty. In this matter it is noted that at the time of being granted bail the offender has not had any previous contact with the criminal law. But it is acknowledged, as authorities that need not be cited make clear, that a grant of bail carries with it the “condition” that the offender will be a good behaviour, and particularly will not commit further offences against the same victim of the offence for which the grant of bail was made.
94․There is no evidence of remorse as was conceded by the offender’s counsel. But in the context of the offender pleading ‘not guilty’ and giving evidence denying the allegations made by the victim the absence of remorse is not a matter that aggravates the offending.
95․The two critical issues for determination in this difficult sentencing exercise, having regard to all the matters that are required to be taken into account, are identifying or measuring the totality of the criminality reflected in the total sentence to be imposed and fixing the minimum period that the offender should be kept in custody by regard to that total sentence. The starting point in respect of the consideration of totality is the requirement to fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence as well as the ultimate totality: see Pearce v The Queen (1998) 194 CLR 610, at [45]. The Court is required to review the aggregate sentence in order to determine whether the overall sentence is “just and appropriate”: see Mill v The Queen (1988) 166 CLR 59 at 62-63. Further, where offences are discreet and independent the sentence for one offence usually cannot comprehend and reflect the criminality of other offences committed discreetly. Usually this will require the respective sentences to be at least partly cumulative, but where offences are not separate and distinct, but a part of a single episode of criminality with common features it is more likely that a greater degree of concurrency will be required, as the sentence for one offence may reflect the criminality of another offence or offences committed at or about the same time: see Cahyadi v The Queen (2007) 168 A Crim R 41 at [27]; O’Brien v The Queen [2015] ACTCA 47 at [26].
96․As was observed by Street CJ in R v Holder (1983) 3 NSWLR 245 at 260:
Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if they were viewed alone.
97․As earlier noted, so far as the non-parole period is concerned, bearing in mind the regard to be had to the “purposes of sentencing” enunciated in s 7 of the Sentencing Act for this exercise, one of the important informing considerations is the prospects of rehabilitation of the offender. Having regard to his comparative youth at the time of the offending, the absence of prior criminal conduct or antisocial behaviour in his history, the subsequent identification of his mental illness and his response to treatment one cannot conclude that his prospects of rehabilitation, as they can be assessed at this point, are poor or require greater weight in the fixing of the non-parole period to the protection of the community, particularly in this matter the victim. Notwithstanding the commission of the stalking offence against the victim I do not believe that the offender by the time of the expiration of the sentence I fix will represent a threat to the well-being of the victim or to the community.
98․As to the fixing of the non-parole period ,given the sentences of imprisonment that are required to be imposed here (taking into account the related sentences fixed in respect of the assaults on his brother), it is expected that the minimum time served in custody, the first custodial sentences experienced by the offender, will provide sufficient deterrent to prevent the offender offending in like manner, or at all, in the future.
99․I am mindful of the continuing lack of insight and failure to take responsibility for his conduct. But in my view the significance of these matters will be better assessed by those that will be required to make the decisions concerning his release from custody at the expiration of the non-parole period, given the time that will have elapsed since the offending and the sentencing proceedings with the knowledge of the progress of the offender in custody, particularly his cooperation with treatment, counselling and any prescribed medication regime thought suitable for his condition.
100․Further, the offender will require a substantial period of supervision within the community to assist him in the management of his mental health, to adjust to community living after what will be for him a substantial in custody and counselling to avoid further offending. In this regard I note the capacity for continuing support in the community from his mother who, in her evidence in the trial, demonstrated not only great concern for the welfare of her son but also for the welfare of victim. This was very much to her credit.
101․It is most important that the offender be given appropriate counselling and treatment whilst in custody for his mental illness and that proper consideration, when he is due for release, be given to ensuring an appropriate regime of treatment and counselling in the community noting the capacity and willingness of his mother to provide professional assistance to him. I note in that regard, as it is relevant also to the assessment of his prospects of rehabilitation, by reason of his beneficial interest in the trust, he has the financial means on release to provide for himself, or have provided to him, appropriate residential and financial support. This is not a situation where the future anticipated release of the offender invites a conclusion that he will be released without means of support.
102․Pursuant to s 65 of the Sentencing Act, I proposed to fix a non-parole period of approximately 50% of the aggregate sentence including the earlier sentence to reflect the need to encourage the rehabilitation of the offender by the opportunity of an earlier release to community living with appropriate supervision and to acknowledge the effective sentence now imposed given the sentence imposed in the Magistrates Court. The mental illness of the offender and the treatment for it in custody, which is ongoing, and the fact that this is, in effect, the first term of imprisonment served by the offender (despite the earlier sentencing in the Magistrates Court), substantial as it is, invites the conclusion that the weight to be given to specific deterrence reflected in the non-parole period may be lessened.
Orders
103․The orders of the Court are:
(1)The offender is convicted of all charges.
(2)The aggregate sentence imposed is 13 years and 5 months imprisonment commencing on 29 January 2023. The non-parole period on the aggregate sentence is 6 years and 4 months imprisonment expiring on 28 May 2029, remembering that the sentences are accumulative upon the non-parole period of 9 months expiring on 28 January 2023. In sentencing the offender, I have had regard to the methodology of Mossop J in DPP v Murphy (No 2). The individual sentences are set out below.
(3)On the charge of common assault (CC2022/1202), I impose a sentence of 6 months commencing from 29/1/2023 and expiring on 28/7/2023.
(4)On the charge of choke/suffocate/strangle (CC2022/1488), I impose a sentence of 1 year commencing from 24/4/2023 and expiring on 23/4/2024.
(5)On the charge of common assault (CC2022/10908), I impose a sentence of 6 months commencing from 24/4/2024 and expiring on 23/10/2024.
(6)On the charge of assault with intent to have sexual intercourse (CC2022/4149), I impose a sentence of 2 years commencing from 29/7/2023 and expiring on 28/7/2025.
(7)On the charge of act of indecency (SCAN2022/233), I impose a sentence of 1 year commencing from 29/7/2023 and expiring on 28/7/2024.
(8)On the charge of sexual intercourse without consent (CC2022/4151), I impose a sentence of 3 years commencing from 29/12/2023 and expiring on 28/12/2026.
(9)On the charge of common assault (CC2022/4148), I impose a sentence of 9 months commencing from 29/12/2023 and expiring on 28/9/2024.
(10)On the charge of sexual intercourse without consent (SCCAN2022/234), I impose a sentence of 3 years 6 months commencing from 29/12/2023 and expiring on 28/6/2027.
(11)On the charge of choke/suffocate/strangle (alternative to count 6), I impose a sentence of 1 year commencing from 29/3/2024 and expiring on 28/3/2025.
(12)On the charge of common assault (CC2022/4157), I impose a sentence of 6 months commencing from 29/3/2024 and expiring on 28/9/2024.
(13)On the charge of assault with intent to commit an act of indecency (SCCAN2022/237), I impose a sentence of 1 year 6 months commencing from 29/3/2026 and expiring on 28/9/2027.
(14)On the charge of act of indecency (SCCAN2022/238), I impose a sentence of 1 year commencing from 29/6/2026 and expiring on 28/6/2027.
(15)On the charge of choke/suffocate/strangle (CC2022/4163), I impose a sentence of 1 year 6 months commencing from 29/6/2027 and expiring on 28/12/2028.
(16)On the charge of assault with intent to have sexual intercourse (CC2022/4164), I impose a sentence of 2 years 6 months commencing from 29/6/2027 and expiring on 28/12/2029.
(17)On the charge of sexual intercourse without consent (CC2022/4165), I impose a sentence of 4 years commencing from 29/9/2027 and expiring on 28/9/2031.
(18)On the charge of common assault (CC2022/4162), I impose a sentence of 1 year commencing from 29/12/2027 and expiring on 28/12/2028.
(19)On the charge of common assault (CC2022/10909), I impose a sentence of 1 year commencing from 29/6/2028 and expiring on 28/6/2029.
(20)On the charge of sexual intercourse without consent (CC2022/4172), I impose a sentence of 3 years 6 months commencing from 29/9/2029 and expiring on 28/3/2033.
(21)On the charge of inflict actual bodily harm with intent to have sexual intercourse (CC2022/4174), I impose a sentence of 5 years commencing from 29/9/2029 and expiring on 28/9/2034.
(22)On the charge of choke/suffocate/strangle (CC2022/4159), I impose a sentence of 1 year 6 months commencing from 29/9/2029 and expiring on 28/3/2031.
(23)On the charge of sexual intercourse without consent (SCCAN2022/244), I impose a sentence of 4 years 6 months commencing from 29/6/2030 and expiring on 28/12/2034.
(24)On the charge of sexual intercourse without consent (SCCAN2022/245), I impose a sentence of 2 years 6 months commencing from 29/6/2030 and expiring on 28/12/2032.
(25)On the charge of sexual intercourse without consent (SCCAN2022/246), I impose a sentence of 2 years 6 months commencing from 29/6/2031 and expiring on 28/12/2033.
(26)On the charge of sexual intercourse without consent (SCCAN2022/247), I impose a sentence of 4 years 6 months commencing from 29/6/2031 and expiring on 28/12/2035.
(27)On the charge of sexual intercourse without consent (SCCAN2022/248), I impose a sentence of 4 years commencing from 29/6/2032 and expiring on 28/6/2036.
(28)On the charge of stalking (CC2022/4146), I impose a sentence of 1 year commencing from 29/6/2033 and expiring on 28/6/2034.
(29)Copies of the psychiatric reports of Dr Nielssen (Exhibit 10) and Dr Le (Ex M2) tendered in the proceedings be forwarded to ACT Corrective Services.
| Offence | Date of offence | Maximum penalty (years) | Sentence (years and/or months) | ||
| Common assault (Transfer charge: CC2022/1202) | 30 January 2022 | 2 | 6 months imp. From 29/1/2023 | ||
| Choke/suffocate/strangle (Count 1: CC2022/1488) | 30 January 2022 | 5 | 12 months imp. From 29/4/23 | ||
| Common assault (Transfer charge: CC2022/10908) | 30 January 2022 | 2 | 6 months imp. From 29/4/23 | ||
| Assault with intent to have sexual intercourse (Count 2: CC2022/4149) | 27 February 2022 | 12 | 2 years imp. From 29/7/23 | ||
| Act of indecency (Count 3: SCAN2022/233) | 27 February 2022 | 7 | 12 months imp. From 29/7/23 | ||
| Sexual intercourse without consent (Count 4: CC2022/4151) | 27 February 2022 | 12 | 3 years imp. From 29/12/23 | ||
| Common assault (Transfer charge: CC2022/4148) | 27 February 2022 | 2 | 9 months imp. From 29/12/23 | ||
| Sexual intercourse without consent (Count 5: SCCAN2022/234) | 27 February 2022 | 12 | 3 years 6 months imp. 29/12/23 | ||
| Choke/suffocate/strangle (Alternative to Count 6) | 27 February 2022 | 5 | 12 months imp. From 29/3/ 2024 | ||
| Common assault (Transfer charge: CC2022/4157) | 19 March 2022 | 2 | 6 months imp. From 29/3/24 | ||
| Assault with intent to commit an act of indecency (Count 7: SCCAN2022/237) | 19 March 2022 | 10 | 18 months imp. From 29/3/26 | ||
| Act of indecency (Count 8: SCCAN2022/238) | 19 March 2022 | 7 | 12 months imp. From 29/6/26 | ||
| Choke/suffocate/strangle (Count 9: CC2022/4163) | 21 March 2022 | 5 | 18 months imp. From 29/6/27 | ||
| Assault with intent to have sexual intercourse (Count 10: CC2022/4164) | 21 March 2022 | 12 | 2 years 6 months imp. From 29/6/27 | ||
| Sexual intercourse without consent (Count 11: CC2022/4165) | 21 March 2022 | 12 | 4 years imp. From 29/9/27 | ||
| Common assault (Transfer charge: CC2022/4162) | 21 March 2022 | 2 | 12 months imp. From 29/12/27 | ||
| Common assault (Transfer charge: CC2022/10909) | 21 March 2022 | 2 | 12 months imp. From 29/6/28 | ||
| Sexual intercourse without consent (Count 12: CC2022/4172) | 22 March 2022 | 12 | 3 years 6 months imp. From 29/9/29 | ||
| Inflict actual bodily harm with intent to have sexual intercourse (Count 13: CC2022/4174) | 22 March 2022 | 14 | 5 years imp. From 29/9/29 | ||
| Choke/suffocate/strangle (Count 14: CC2022/4159) | 22 March 2022 | 5 | 18 months imp. From 29/9/29 | ||
| Sexual intercourse without consent (Count 15: SCCAN2022/244) | 22 March 2022 | 12 | 4 years 6 months imp. From 29/6/30 | ||
| Sexual intercourse without consent (Count 16: SCCAN2022/245) | 22 March 2022 | 12 | 2years 6 months imp. From 29/6/30 | ||
| Sexual intercourse without consent (Count 17: SCCAN2022/246) | 22 March 2022 | 12 | 2years six months imp. From 29/6/31 | ||
| Sexual intercourse without consent (Count 18: SCCAN2022/247) | 22 March 2022 | 12 | 4 years 6 months imp. From 29/6/31 | ||
| Sexual intercourse without consent (Count 19: SCCAN2022/248) | 22 March 2022 | 12 | 4 years imp. From 29/6/32 | ||
| Stalking (Transfer charge: CC2022/4146) | 21 March – 29 April 2022 | 2 | 12 months imp. From 29/6/33 | ||
| I certify that the preceding one hundred and three [103] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish. Associate: Date: | |||||
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