Jude Middlemiss v Ali Bilal
[2022] ACTMC 17
•2 August 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jude Middlemiss v Ali Bilal |
Citation: | [2022] ACTMC 17 |
Hearing Date(s): | 21 July 2022 |
DecisionDate: | 2 August 2022 |
Before: | Chief Magistrate Walker |
Decision: | [80] – [86] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment –Use carriage service to threaten serious harm – Use carriage service to menace/harass/offend Sentence – sentencing federal offenders – relevant commonwealth sentencing considerations – utilitarian benefit of early guilty plea |
Legislation Cited: | Commonwealth Crimes Act 1914 (‘Crimes Act’), s 4J(3), 20AB Commonwealth Criminal Code Act 1995 (‘Criminal Code’), s 474.15(2), 474.17(10) |
Cases Cited: | Bae v The Queen [2020] NSWCCA 75 Bui v Director of Public Prosecutions [2012] HCA 1; (2012) 244 CLR 638 Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA (‘Ip’) Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 MRM v The Queen [2015] NSWCCA 195 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 (‘Pearce’) R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Grey (No 3) [2020] ACTSC 43 R v Harrington [2016] ACTCA 10; (2016) 11 ACTLR 215 R v Mak [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Pham [2015] HCA 39; (2015) 256 CLR 550 R v Turnbull [2018] NSWDC 142 R v Woods [2021] NSWDC 264 Totaan v R [2022] NSWCCA 75; (2022) 365 FLR 69 Turner v Raiser [2021] ACTSC 21 |
Parties: | ACT Director of Public Prosecutions (Prosecutor) Ali Bilal (Defendant) |
Representation: | Counsel Beth Morrisroe (Prosecution) Margaret Jones SC (Defendant) |
File Number(s): | CC 12087 of 2021 CC 12088 of 2021 CC 12090 of 2021 CC 12093 of 2021 CC 12096 of 2021 |
CHIEF MAGISTRATE WALKER:
I am to sentence the offender, Mr Ali Hassan Bilal today in relation to two counts of using a carriage service to threaten to cause serious harm, contrary to section 474.15(2) of the Commonwealth Criminal Code Act 1995 (Cth) (‘Criminal Code’). It is an offence which, on conviction, carries up to seven years’ imprisonment. Pursuant to section 4J(3)(b) of the Commonwealth Crimes Act 1914 (Cth) (‘Crimes Act’), this court’s jurisdictional limit is two years’ imprisonment, or a fine of up to 120 penalty units.
I am also to sentence the offender for three counts of using a carriage service to menace, harass or cause offence contrary to section 474.17(1) of the Commonwealth Criminal Code Act 1995 which carries on conviction up to three years’ imprisonment and as to which the jurisdictional limit is 12 months or 60 penalty units.
The offences relate to 19 January 2021, 25 January 2021, 26 June 2021 and 12 August 2021. For the purpose of considering sentence, I have had the statement of facts in respect to each of those occasions. I have listened to audio, an excerpt of the call on 19 January 2021. I have read the offender’s criminal history dated 21 June 2022 as edited by the prosecutor.
I have read the offender’s tender bundle documents, a report from counsellor, Mr Dion Dowdy dated 8 June 2022 and his curriculum vitae, a letter to the court from the offender’s wife, Ms Chloe Bilal, undated, and a second letter dated 1 July 2022; references from Mr Timothy Jones dated 3 May 2022, Mr Theo Bardis, undated, Mr Chris Antos dated 5 May 2022, Mr Zoran Matijevic dated 4 April 2022 and from Anthony and Jodie Lord dated 1 June 2022. I have also read a letter to the court from the offender’s adult daughter, Sophie Bilal dated 1 July 2022, the presentence report prepared for these proceedings, and I have had regard to the offender’s bail conditions as they stood at 23 December 2021
Turning to the factual scenario. The offender submits that his offending occurred against a background of personal stress following a second divorce and some housing instability. The offences occurred over approximately eight months from 19 January 2021 to 12 August 2021.
On 19 January 2021 the offender called Mr Yazin al Naqib and made threats to cause serious harm to him. The offender submits that Mr Naqib had been allowed to live as part of his family for nearly a decade before this incident. Mr Naqib had upset the offender by using illicit substances and having a relationship with another man’s girlfriend, a fact that the other man had complained of to the offender. The court had the benefit of hearing the tone of this call as well as a partial transcript of it. The tone was aggressive, verging on apoplectic.
It must be considered in the context of the discrepancy of power between the offender, as the declared President of the Rebels motorcycle gang in the ACT, and Mr Naqib as his employee and mentee. The call was made from Collector NSW, although it is not apparent that Mr Naqib knew that. It included the following:
“Where are you now fuck head? I’m gonna stomp on your head now. Your gunna be sorry when I’ve finished. You’re gunna spend a week in hospital when I’m finished with you next hour. 24 hours you’ve got to get the fuck out of my State or I’m gunna shoot you. And take your fuckin’ bitch with you”.
These threats were interspersed with insults and continued demands to know Mr Naqib’s location.
The threats were serious and violent: a stomp to the head and hospitalisation, along with shooting. The threats were directed towards the victim and another person close to him. The offender was not looking to make a financial gain by his hostile conduct, and it is submitted the offences are not in the ‘family violence’ context. Rather, the call was intended to effect behaviour modification. Whilst there is some suggestion of immediate harm, that is tempered by an offer of a 24-hour reprieve. Whilst no victim impact statement has been made, one could readily infer that the statements were intended to create real fear in the recipient and probably did. This is a serious example of such offending.
On 25 January 21, the offender called Mr Shane Comber in Mr Naqib’s presence intending to menace, harass or cause offence. There were two calls in fact made on 25 January 2021 to Mr Comber, who was an associate of the offender whom the offender perceived was enabling Mr Naqib’s conduct by allowing it to take place at his home. The offender called from Collector in the morning making such statements as:
“Good, you’re at work. I’m gunna send someone to see you. I’m gunna teach you a fuckin lesson now.”
This threat, although less graphic than that directed to Mr Naqib six days earlier, had an air of immediacy which was, no doubt, very concerning to the recipient, also a member of the Rebels motorcycle gang.
This is, however, a lesser example of such an offence, albeit with a degree of immediacy suggested.
Later that day the second call was made to Mr Comber from Fyshwick:
“I’m outside in the car park. If you call me mate again, I’m not going to be outside in the car park again.”
On this occasion, the impact on the recipient at the time is clear from his response:
“I’m bloody shitting myself; I have no idea what’s going on…”
The offender continued:
“I am not being nice to you anymore. That is it. You are a dumb cunt that has got kids, and you have got a fuckwit living at your fucking house, and you do not realise that he’s about to bring on you, but it is okay, I keep fuckin turning the other fuckin cheek because you are a fuckin’ simple cunt with kids. But this fuckwit’s putting you that much in harm’s way you cannot even see it, you dumb cunt. I am about to go to war with this cunt so if you want to keep him at your house, go for your fuckin’ life. I am not even fuckin’ going to say anything anymore, if you call me fuckin’ mate again, I am going to show you that I am not your fuckin’ mate.”
Mr Comber responded:
“I am just at work anyway so can I give you a call once I am done.”
To which the offender responded:
“No, bro, I am outside in the car park. You call me mate again I am coming in”
Again, asserting an immediate threat. These two offences reflect a course of conduct directed towards Mr Comber, aggravated by repetition increasing the level of harassment.
The offender submits that he has had amicable contact with both Mr. Naqib and Mr Comber since these offences were committed.
On 26 June 2021, the offender threatened to cause serious harm to Ms Hayley Gilbert. That unrelated offence was directed to the 30-year-old daughter of Anthony and Jodie Lord, who have written a reference in support of the offender. The offender has known Ms Gilbert and her family since she was an eight-year-old child. In their letter, the Lords state that they enlisted the offender’s assistance to modify the behaviour of their adult daughter who had engaged in illicit substance use. They describe the offender as the kind of man that people go to with their problems.
The offender’s “problem-solving approach” was to make the following threats:
“Just tell him to meet me somewhere. I do not want to talk to him. I do not want to speak to him. I am gonna fuckin’ kill this cunt. And I am gonna make you watch. Your gonna learn what I am about tonight. I will show you what power I have got and what I have not. Just get him to meet me that it.”
And then screaming:
“Get him to meet me. I am gonna fuck him, his mother, his father I am - I am not gonna leave anybody tonight. Watch me.”
And later that day:
“The instruction on the phone is I want this cunt dead tonight. There you go.”
It is not entirely clear how these threats relate to Ms Gilbert’s drug use. Nonetheless, for whatever reason they were made, they constitute highly manipulative, aggressive conduct geared to frightening another person in to bending to the offender’s will. They involve threats of death and serious injury to someone associated with Ms Gilbert and that person’s extended family, but not directly to her. They are grandiose and alarming.
On 12 August 2021 the offender called Mr Scott Janiak to menace, harass or cause offence. The offender submits that he had been assisting Mr Janiak as though he were family since Mr Janiak was 18 years old and that he felt betrayed by his intention to move in with someone the offender disapproved of. He perceived this conduct as disrespectful stating:
“Because I am thinkin’ to myself this guy, who showed no respect at all and option A is your gonna leave in one piece or option B, you are not gonna leave at all. I am gonna put you in a fucking hole. We’ll come to the site where you are right now and will deal with you in public in front of everybody to finally make a statement in this town. I am happy - I am happy to go to jail for it. Let us not fuck around anymore, bro. You see, I was taught as a kid that little Rottweiler that you raise and you pat and you feed and you clean it its arse and you make sure it doesn’t get wet and you make sure it has got somewhere to live, the day it bites you, you have to shoot it in the head because it is just going to keep biting you.
But I thought you would change. So why do not we just come to you there and we’ll sort it out then and there, bro, with whoever the fuck you are with now. Ring your mother, make sure she is okay, so she hears your voice. That is all I am gonna say to ya because I am not gonna allow the people who tell me they love me to fuck me anymore. Yeah, I know you have nothin’ brother, and you are about to have even less than that because, brother, you are either with me or you’re under me. I am gonna make sure your-your head is under my fuckin’ foot.
If I do not see for you - see you by Monday morning I suggest you find somewhere else to be at peace because you will not find it here and that, I give you my fucking word, you are making me and our family look like gronks in front of the rest of these members the way this has been dealt with and handled with. And I no longer will allow anything that I have in my heart for you to get in the way of what has to be done.
Because of all the fuckups the next one that leaves will leave in a wheelchair and I will make sure he does not walk again. This is not the Boy Scouts, bro. So, if you want your family, Scotty, you have got till Monday to come and see me.”
This is an excerpt from an extensive rant. The offender referred to the fact that he had been experiencing particular stress for the last nine months and that he sometimes shouts and screams unfairly but blamed that on Mr Janiak’s disrespect for him.
This offence is another example of manipulative aggression utilised to bend the recipient to the offender’s will. It involves numerous implied threats of very serious harm to the recipient and his family.
The offender submits that he did not intend to carry out any of the threats that he made. That does not render the offences less serious in circumstances in which the victims could not have known that. If there was evidence that he was actively planning to carry the threats out, that may be an aggravating factor, depending on the circumstances. But there is not.
However, a statement to the court about 12-18 months after the fact provides little to no comfort to the recipient of those threats whom I readily infer were placed in fear because of the nature of the threats and the position of the person who made them, that is, the President of a motor cycle gang which was, during its historical time in ascension in the Territory, widely reputed in the community at large to be engaged in criminal activity, including standover tactics. Perhaps unsurprisingly, none of the victims of the offending have expressed a desire to provide a victim impact statement.
The offender was arrested by police on 23 December 2021. He was charged and bailed at the ACT Watch House that evening. He has been on strict bail conditions with which he has substantially complied since then.
Subjective features
The offender is a 50-year-old man who was born the eldest of five children to Lebanese immigrant parents. He was raised in Sydney with an unremarkable childhood but with a strict and controlling father with whom he clashed as a teen in respect to religious values and culture. He describes his father as angry, authoritarian and aggressive, and attributes his own conduct to this influence. He was removed from the family home at 15 years of age. He has a fractured relationship with his father although is now in regular contact with his mother and one brother of the sibship of five.
He is educated to year 12 and has been engaged in business, including hospitality, labour hire and a dog racing breeding business within the ACT region.
Contrary to what is reported in the pre-sentence report, which appears to have been in error, he is now in his third marriage, the first having started and ended when he was very young, the second having ended a number of years ago and resulting in one son, with whom he has no contact, and one daughter, both adults. He has been in an apparently close and supportive relationship with Chloe for 12 years and they have been married for the last couple of years following the offender’s divorce from his second wife.
The offender lives on a large property on which he conducts a racing kennel and dog breeding business and which he proposes to buy in December of this year. He gambles and uses cocaine occasionally. He is in good physical health.
Recently, that is in March this year, the offender commenced attending a counselling service to address his obvious emotional dysregulation, in a course of eight one-hour sessions. Mr Dowdy, the counsellor, described the offender’s engagement with the counselling process and the type of issues that have been addressed. He says that the offender was, at times, insightful and had made plans to distance himself from his gang affiliation, enlisting his wife and daughter to “keep him accountable”. He further noted that the offender “is expecting the authorities to continue to question how authentic (is his) choice to changes (sic)”. He recommends ongoing therapy. The offender accepts that the Verdins principles are not enlivened in his case.
The offender’s wife has written a hyperbolic reference about her husband whom, in her words, “saved me, in every way a person could be saved”. She observes that he has better control of his emotional dysregulation following counselling. He is calmer and is committed to putting his former life behind him. She also states that she cannot be away from the offender “for any longer than two days” because she becomes anxious and lacks the confidence to make decisions without him. His absence causes her panic attacks. She also attests to the role he plays in caring for and cleaning up after the dogs they breed and running their labour hire business. His absence would cause her stress and would likely have a financial impact. He clearly has an important role in their shared business interests.
The offender’s daughter, Sophie, who lives with her father and stepmother, also fears that she would not cope mentally or emotionally if her father was not present.
There are a number of positive references before the court which attest to the offender’s support of his friends and the notion that this type of offending is out of character for him.
Mr Timothy Jones has known the offender for about 18 months. He described him as an “amazing man”, a truly good person, and thanks him for his very life. He refers to the support that the offender provides him with for his depression and physical illnesses on a daily basis. That practical support is corroborated by Mr Jones’ general practitioner who reports that the offender attends Mr Jones’ medical appointments with him.
Anthony Lord and Jodie Lord provided a reference in which they accepted some responsibility for the offender’s actions which they say were undertaken in response to their request that he “talk some sort of sense” to their daughter, leading to him making a phone call on their behalf. They describe the offender as “a go to person to solve problems.”
Mr Theo Bardis, ACT branch manager of Five Star Scaffolding, attests to the offender’s gentlemanly qualities and professional business support. He describes the offender as “an honourable individual, a loyal friend and a good human being”.
Mr Chris Antos, Director of Sentia Real Estate, also attests to the offender’s gentlemanly qualities and strong family values observed through their business relationship. Adopting the same words as Mr Bardis, he too, describes the offender as “an honourable individual, a loyal friend and a good human being”.
Mr Zoran Matijevic attests to the offender ’s mentoring of him and attributes his personal and business accomplishments in “massive part to the guidance” received from the offender. He attributes his ability to become “a person that people respected in local and interstate communities” to the offender’s support.
Whilst I have no basis to conclude that these numerous glowing opinions are other than genuinely expressed and reflect the authors’ experience of the offender, they are entirely at odds with the persona demonstrated through the offender’s conduct on not just one but a number of occasions, and against not just one but a number of victims, over a period of eight months.
The offender declared his previous involvement with the Canberra Rebels motorcycle gang and claims now to have stepped away from that group and denies ongoing engagement with any outlaw motorcycle gang. That submission is received with some scepticism given his previous level of involvement with Rebels motorcycle gang.
He has a relatively limited criminal history, albeit one dating back over 20 years, primarily in New South Wales. His record includes convictions for offences of assault occasioning actual bodily harm, making a false statement to obtain money, possessing or attempting to possess a prescribed substance, using a prohibited weapon and driving offences. The most recent conviction for violent offending was in 2006.
He has been assessed as at medium risk of further offending generally by ACT Corrective Services although the presentence report author also considers that this risk could be reduced if the offender does in fact dissociate from his bikie connections.
He has been assessed as unsuitable for community service due to residing interstate and his business commitments.
Sentencing principles
I turn to the sentencing principles applicable. The court is required to have regard to a number of mandatory considerations pursuant to section 16A of the Crimes Act. In determining the sentence to be passed or the order to be made in respect of any person for a federal offence a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
Relevantly, I have considered the nature and circumstances of the offence which I have already addressed; that the offending forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character; the personal circumstances of any victim of the offence, as to which I have very little information beyond that provided by the offender’s submissions; any injury, loss or damage resulting from the offence, again, as to this, I have no evidence beyond that which can be inferred from the nature of the offending which I have already discussed; the availability of any victim impact statement – and, of course, there are none; the degree to which the person has shown contrition for the offence, and I note that the offender expressed such contrition to the presentence report author but beyond those words has not demonstrated contrition in any practical sense.
I have also considered the issue of if a person has pleaded guilty to the charge in respect to an offence, that fact, the timing of the plea and the degree to which the plea resulted in any benefit to the community or any victim of or witnesses to the offence. This provision has been the subject of extensive judicial consideration. I was directed to the decision in Bae v The Queen [2020] NSWCCA 75 (‘Bae’), a decision which post-dates R v Harrington [2016] ACTCA 10; (2016) 11 ACTLR 215 and R v Grey (No 3) [2020] ACTSC 43. Bae, a New South Wales decision, is authority for the proposition that the utilitarian value of a delayed plea is less even where it follows a plea bargain, adopting the assessment of Howie J in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 in respect to the NSW approach to State offences. This is at odds with the ACT approach in respect to Territory offences and, having regard to R v Grey (No 3) [2020] ACTSC 43, also in respect to Commonwealth offences. These decisions raise significant and, at least in the ACT context, potentially unresolved issues. Firstly, whether the utilitarian value of a plea may be considered in the Commonwealth sentencing context; secondly, whether a plea which comes as a result of a plea bargain should attract as great a discount as an earlier in time plea; thirdly, whether the utilitarian value of a plea is more appropriately considered as a subjective factor reflecting the offender’s willingness to facilitate the course of justice. This issue also brings into sharp relief the application of the overarching principle that there should be consistency in Commonwealth sentencing regardless of the State or Territory jurisdiction applying the law (Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, R v Pham [2015] HCA 39; (2015) 256 CLR 550).
I intend to leave somewhat arcane complexities of these matters to the higher courts. In this case, I am satisfied that the pleas of guilty were entered following service of the brief and promptly following negotiated reduction in charges. Given the number of charges and victims, even though there was a strong case with significant independent corroboration by the telephone records, I am satisfied that there was significant utilitarian value in the plea. I am satisfied that entry of the pleas at the stage they were entered facilitated the course of justice. The pleas attract a discount of approximately 25 percent.
The court is also required to consider the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or offences and that attracts no separate discount, in this case there being no evidence of such cooperation.
The court is to consider the deterrent effect that any sentence or order under consideration may have on the person. This is an important consideration, given the offender’s history of offending, having largely been dealt with by way of financial penalty in the past. In considering this matter, I note that he has complied with two relatively short good behaviour orders in the past without breach.
The court is to consider the deterrent effect that any sentence or order under consideration may have on the person. Again, this is an important factor as there is, in this type of matter, a very strong need for general deterrence.
The court is to consider the need to ensure that the person is adequately punished for the offence. This is also an important consideration, particularly as it intersects with personal and general deterrence.
The court is to consider the character, antecedents, age, means and physical or mental condition of the person. I have addressed each of those considerations above and taken them into account in arriving at an appropriate sentence.
The court is to consider if the person’s standing in the community was used by the person to aid in the commission of the offence, and that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates. I have considered this provision but not relied upon it, because although I am satisfied that the offender used his position as president of the Rebels, that is not the issue that this sub-section is directed towards, it being geared towards discouraging people from using their respected positions to facilitate crime.
The court is to consider the prospect of rehabilitation of the person. This is a difficult matter to assess on the evidence, but I accept that the offender has, at least recently, engaged in some counselling geared to reflecting on his communication style and claims to have benefitted from that, which claim is supported by his family. Also, given his apparent compliance with bail, the offender must be assessed as having some prospect of rehabilitation
The court is required to consider the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants. I accept that the offender’s wife and adult daughter would find the offender’s incarceration very distressing and that his wife would struggle with her business interests in his absence. There is no reliable evidence that this is significantly beyond the ordinary impact of incarceration on a person’s family member, but the section does not require that there need be for this mandatory consideration to be taken into account in determining the appropriate sentence. There is clear authority for the proposition that the court is not required to find anything exceptional about the impact or potential impact upon an offender’s family of their incarceration (DPP v Ka-Hung Ip [2005] ACTCA 2005 (‘Ip’), Totaan v R [2022] NSWCCA 75; (2022) 365 FLR 69.
That said, as was noted in Ip at [61] that:
“The weight to be given to this factor is a discretionary matter and “in many cases, it will not be possible to give a family’s suffering much or any weight”.
In this particular case, the court has evidence of a likely impact on the offender’s family, but I have not afforded that great weight. I am not satisfied that the suffering adverted to will, in fact, be as significant as claimed in the absence of medical evidence in support, particularly for the offender’s wife’s claims (see by way of analogy Bui v Director of Public Prosecutions [2012] HCA 1; (2012) 244 CLR 638). Further, I have balanced this factor with other sentencing considerations, in particular the need for both specific and more especially, general deterrence.
Territory sentencing options not otherwise provided for in the Crimes Act are available pursuant to s20AB Crimes Act. However, an intensive corrections order is not an available sentencing option for this offender by virtue of his New South Wales residency. A community service order is also not available, both because of his residency and in light of his employment commitments.
It is open to the Court to make a non-association order, as an ACT sentencing option. I am not satisfied that such an order, although available, is appropriate in this case. Whilst the offending was directed in part to people whom it is alleged are gang associates, it is not apparent that the offender’s association with them was causative of, or relevantly connected to, the offences; the offending could easily have been directed to non-associates, as it was, for example, to Ms Gilbert. Whilst the offender may have been using his position as President of the Rebels to assert some perverted form of moral authority, the evidence does not allow the conclusion beyond reasonable doubt, as is required to make a finding to the offender’s detriment in sentencing. The court must find that there is a:
“demonstrable and substantial connection between the particular offence for which the offender is being punished and the making of, and terms of, any non-association order. Without such connection, the making of an order could not be reasonable or necessary bearing in mind the provisions of the Human Rights Act”
per Burns J in Turner v Raiser [2021] ACTSC 21.
The offender has indicated that he is able to meet a financial penalty.
As to the possibility of a sentence of imprisonment, I have regard to s17A of the Crimes Act which states at subsection (1):
A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
The offender submits that a recognisance is an appropriate penalty. The prosecution submits that a sentence of imprisonment is within range.
I have considered the questions of totality and concurrency. The requirement is that each individual sentence reflects the criminality of the offence to which it relates, and the overall sentence reflects the total criminality of the crimes committed: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 (‘Pearce’).
The charging of two or more offences that involve common elements requires the court to ensure that there is no double punishment for the one offending course of conduct: Pearce at [40]. A common-sense approach to the issue must be taken: Pearce at [42].
Only after fixing an appropriate sentence for each offence should a sentencing judge consider questions of accumulation and concurrency and questions of totality: Pearce at [45].
I note also the case of R v Mak [2006] NSWCCA 381 which warns against the application of the principle of totality amounting to a “discount for multiple offending”. The case has been approved more recently in MRM v The Queen [2015] NSWCCA 195, in which Simpson J stated:
When applying the principle of totality, his Honour had to bear in mind that the severity of a sentence is not simply the product of a linear relationship between individual sentences, and that severity may increase at a greater rate, than an increase in the length of a sentence (see R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15] - [18]). A crushing sentence that will induce a feeling of hopelessness and destroy any expectation of a useful life after release, ought not to be imposed on an offender (see MAK at [17]). The impression may not be given, however, that there is some kind of discount for multiple offending.
Commonwealth sentences of imprisonment may be suspended pursuant to ss20(1)(b) upon giving security to, amongst other things, the requirement to be of good behaviour for up to five years and accept supervision and obey all reasonable directions of a probation officer.
In terms of comparative decisions, there are few reported decisions.
In respect to offences pursuant to s 474.15(2), in R v Woods [2021] NSWDC 264 in very different circumstances, a young adult offender from a disadvantaged background, for offences committed in a family violence context, was sentenced to 10 and 13 months respectively for offences against two different partners. In R v Turnbull [2018] NSWDC 142, for offences contrary to s 474.15(1), an offence which carries a maximum penalty of 10 years imprisonment, a matter again in a family violence context, in which the offender threatened to cause the victim’s death, and ruin her and her family’s lives, in the context also of mental ill-health and substance abuse, but with repeat offending and little insight into the impact of his offending, a sentence of 4 years was imposed for two offences.
Sentencing statistics from the Local Court of NSW are of little assistance other than to identify that all available sentence types had been applied to both s 474.15(2) (threat to cause serious harm) and s 474.17(10) (menace/harass/offend) offences. Whilst recognisance or community control orders were most common, imprisonment was also frequently applied, particularly for the threat to cause serious harm offence.
In this case, I am satisfied that imprisonment is the sentence of appropriate severity to reflect the criminality of these offences.
Noting that the offender has not previously served a sentence of imprisonment, the time since his last conviction for violent offending, and some prospect for rehabilitation, albeit guarded, it is appropriate that the sentence be partially suspended.
Having regard to these observations, I proceed to sentence.
In respect to each of the charges before the court I now record a conviction.
In respect to charge 12087/2021 I would have imposed a sentence of six months’ imprisonment, but it is reduced to five by virtue of the plea of guilty.
In respect to charge 12088/21 I would have imposed a period of two months’ imprisonment and I address any reduction by way of concurrency.
In respect to charge 12090/2021 I would have imposed a period of three months’ imprisonment, but it is reduced to two by virtue of the plea of guilty. The two months’ imprisonment imposed on charges 12090 and 12088 will be cumulative on the five months imposed on 12087/21.
In respect of charge 12093/2021 I would have imposed a period of six months’ imprisonment, but it is reduced to four by virtue of the plea of guilty. It will be cumulative on the existing sentence.
In respect to charge 12096/2021 I would have imposed three months’ imprisonment, but it is reduced to two in light of the plea of guilty.
That is a total of 13 months’ imprisonment. That period of imprisonment will be suspended after the offender has served four months in prison upon entering into a recognizance for 18 months with conditions that he be subject, on probation, to supervision by the Director-General of Corrective Services of the Australian Capital Territory and be required to obey all reasonable directions given by his supervisor.
As part of that supervision, he may be required to attend programs, counselling or assessments in relation to emotional dysregulation. It will also be a requirement that he not travel interstate or overseas without the written permission of his probation officer.
| I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Magistrate Walker. Associate: A Jones Date: 17 August 2022 |
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