Kibblewhite v Buik
[2020] ACTSC 132
•11 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kibblewhite v Buik |
Citation: | [2020] ACTSC 132 |
Hearing Date: | 12 May 2020 |
DecisionDate: | 11 June 2020 |
Before: | Mossop J |
Decision: | See [75] |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Appellant convicted of contravening family violence order – appellant self-represented at sentencing hearing – appellant suffers from anxiety and autistic spectrum disorder – whether magistrate failed to consider making a non-conviction order – her Honour did fail to do so – specific error – further evidence admitted on appeal – appellant resentenced without conviction |
Legislation Cited: | Crimes Act 1900 (ACT), s 334 Crimes (Sentencing) Act 2005 (ACT), ss 17, 47 Mental Health (Criminal Procedure) Act 1990 (NSW), s 32 |
Cases Cited: | Edwards v Marinus [2010] ACTSC 57 Eliasenv The Queen (1991) 53 A Crim R 391 Subasic v Williams [2018] ACTSC 207; 85 MVR 209 |
Parties: | Adam Kibblewhite (Appellant) Christopher Buik (Respondent) |
Representation: | Counsel K Archer (Appellant) M Dyason (Respondent) |
| Solicitors Tu’ulakitau McGuire (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 60 of 2019 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Magistrate Boss Date of Decision: 13 September 2019 Case Title: Buik v Kibblewhite Court File Number: CC 2443 of 2019 |
MOSSOP J:
Introduction
On 13 September 2019 a magistrate convicted the appellant of a single count of contravening a family violence order. This was an offence against s 43(2) of the Family Violence Act 2016 (ACT). The maximum penalty for this offence is five years’ imprisonment, 500 penalty units or both. In addition to recording a conviction, the magistrate required the offender to enter into a good behaviour order for 12 months.
Grounds of appeal
The grounds of appeal set out in the Amended Notice of Appeal are:
(a)The Appellant was denied procedural fairness in not being granted an adjournment by the Learned Magistrate;
(b)Her Honour failed to consider whether the making of [a] non-conviction order was appropriate in the circumstances;
(c)Her Honour placed undue weight on the need for general and specific deterrence and denunciation in the sentencing of the appellant;
(d)The sentence imposed by Her Honour was manifestly excessive.
Further evidence
At the hearing of the appeal further evidence was admitted by consent, pursuant to s 214(3)(b) of the Magistrates Court Act 1930 (ACT). That evidence was the report of Dr Furst, a forensic psychiatrist, which except for question and answer 14 was admitted and became Exhibit 1.
At the hearing of the appeal there was some difference between the parties as to the consequences of the admission of this evidence. Counsel for the appellant submitted that once this additional evidence was admitted it was not necessary for the appellant to establish error in order for the court to consider whether or not a different sentence should be imposed upon the appellant. Counsel for the respondent submitted that the nature of the appeal was such that it remained necessary for the appellant to establish error prior to the court considering whether to resentence the appellant. In making this submission, counsel for the respondent adopted the same approach as that contended for, but not accepted, in IT v Knight [2020] ACTSC 101 (Knight) at [37]-[41].
While the parties identified the competing approaches, the written submissions did not address this issue and their oral submissions were limited. As identified in Knight, the approach contended for by the appellant has been adopted by single judges of this court in a number of cases: Edwards v Marinus [2010] ACTSC 57; Saga v Reid [2010] ACTSC 59; Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 (Grooms); Islam v Wasley [2014] ACTSC 127; Subasic v Williams [2018] ACTSC 207; 85 MVR 209 and Fallon v Baker [2018] ACTSC 319 (Fallon). I confess that Fallon is a decision of mine and I followed the approach derived from the decision in Eliasenv The Queen (1991) 53 A Crim R 391 at 396.
On the other hand, in SE v Ruhen [2019] ACTSC 190 (Ruhen) at [30] the Chief Justice said:
The admission of further evidence does not change the nature of the appeal to a hearing de novo, and it is only if error is demonstrated that the appeal court can substitute its own decision based on the evidence before it.
Her Honour’s reasons do not make reference to the authorities referred to above other than Grooms and, in relation to that decision, the reasons do not make reference to that part of the decision which is contrary to the approach adopted in Ruhen.
If the issue was determinative, it would be necessary to attempt to reconcile these cases. However, because, for the reasons in the balance of this judgment, I have found a specific error in the approach taken by the magistrate, it is not necessary to consider whether in the absence of such error, the appellant should be resentenced. I observe, however, that when the issue is properly argued, because the appeal is by way of rehearing, careful attention may need to be paid to the formulation of the circumstances in which admission of further evidence avoids the need for further inquiry as to error. Attention should also be had to the consequences of the terms of s 214, insofar as they permit admission of further evidence in a broad range of circumstances.
Prosecution case
On 13 November 2018 a family violence order was made in relation to the victim and her two children. The respondent to the application was the appellant.
The order contained a number of conditions which prevented him from being at the premises where the protected persons lived, being within 100 m of the protected persons or engaging in behaviour that constituted family violence towards the protected persons.
The order was served on the appellant on 17 November 2018 in Goulburn.
On 21 February 2019 a friend of the victim called police saying that she had received a text message from the victim saying “call Police now, now, now!”.
Eight minutes later the police arrived, and the appellant was arrested and handcuffed. The victim told police that she had been in an on-again off-again relationship with the appellant for about three weeks and had invited him to her house after they attended mediation together on 15 February 2019. She said that she sent the text message to her friend after the appellant “had begun playing psychological mind games on her and abusing her in relation to a number of morning after pills he had located”.
The appellant confirmed that he had been staying with her for about three days after she invited him to the location.
At the Tuggeranong Police Station the appellant participated in a recorded interview with police. In that interview he stated:
(a)When the police officer had served the order, the officer had read it to him.
(b)On 23 January 2019 the matter returned to the Magistrates Court where mediation was recommended.
(c)He and the victim had attended mediation a few weeks ago.
(d)He wrote a letter to the victim explaining how much he loved her.
(e)About 20 days ago he was in the car park opposite Tuggeranong McDonald’s when the victim approached him and invited him back to her house where their relationship recommenced.
(f)The relationship with the victim had been positive during the last 20 days until this morning.
(g)He found an empty packet of contraceptives in the kitchen last night. He was very insecure and questioned her about the packet. He said that the victim had been dishonest and slept with other men. The victim took his questioning as him abusing her.
(h)He wanted to be alone and went to bed in his own room which made the victim angry and she called the police.
(i)He would never engage in any way that would constitute family violence.
(j)He thought that because the victim initiated the contact and invited him over that this would not constitute him breaching the family violence order.
Proceedings below
The proceedings commenced at 2:58pm on Friday, 13 September 2019. They concluded at 3:38pm. The magistrate’s decision and reasons were given immediately following the conclusion of the submissions.
The magistrate opened by asking the appellant why he had failed to attend court for the purposes of the preparation of a “court duty report”, a short pre-sentence report prepared by the duty officer in attendance at the Magistrates Court. The appellant gave a specific explanation of having contacted ACT Corrective Services but having never received a call back instructing him to attend for the preparation of a report. The magistrate did not pursue this issue further.
The magistrate then commenced by marking the Statement of Facts as Exhibit 1. She did not enquire whether those facts were agreed by the appellant.
She next marked as Exhibit 2 a document containing the appellant’s criminal history. That comprised a New South Wales criminal history, which included charges for assaulting an officer in the execution of their duty, resisting an officer and contravening a domestic violence order. These charges arose in 2005 and each was dismissed under s 32 of the “Mental Health Act”. This is a reference to the provisions in what was then the Mental Health (Criminal Procedure) Act 1990 (NSW). Section 32 permitted a magistrate to dismiss proceedings if that would be more appropriate than dealing with the appellant otherwise in accordance with law. It was the equivalent to s 334 of the Crimes Act 1900 (ACT).
Next tendered was a victim impact statement. The victim read the victim impact statement aloud from a remote witness room. The victim impact statement provided a significant amount of information about the victim’s perspective on the relationship between the two of them more generally. It included:
(a)The “DVO” had been put in place in November 2018.
(b)She described her relationship in the three years prior as being “three years of abuse beforehand with Adam”.
(c)As at 21 February 2019 the appellant was at her home as “we were trying to progress the mediation we had been doing”. She had been going to change the order but had not.
(d)She described him seeing evidence on her phone that she had been seeking relationships with others during the period that they had been separated.
(e)She described her mixed feelings in relation to the relationship with the appellant and what she described as his “extreme psychological abuse”. She said “In the distress of everything going on, I took pills and then became hysterical, needed a friend to help. She said “I had hoped having him in my home would make us a family and help us grow, but things went wrong and police had to be called”.
(f)She said: “I loved him. My intentions for the relationship were always honest and good. I wanted him to be part of my family and mentally and emotionally well, so we could be a strong couple. If I just asked him to leave, he may have, but I felt like I had no choice to get police involved, as the psychological stuff, blame and pressure wasn’t going to stop. I would not change what I did, having police come, even if it got me into trouble, because I needed it to stop.”
Having regard to the terms of the statement, care was obviously necessary to confine it to its appropriate function, having regard to the definition of victim impact statement in s 47 of the Crimes (Sentencing) Act 2005 (ACT) (CS Act) which focusses on “harm suffered by the victim because of the offence”.
Counsel for the respondent indicated that she would make her submissions first because the appellant was self-represented. She also noted that the victim had indicated that she would like to observe the remainder of the proceedings from the remote witness room, which she apparently did.
Counsel for the respondent then outlined the facts consistently with the Statement of Facts.
After that, the balance of her submissions was:
As your Honour has heard, the [appellant] was at the complainant’s residence, by her invitation, and they were trying to work things out. That provides some insight into the reason behind [his] offending. The impact on the victim is a reflection of the further reaching reasons [sic] for which she presumably applied for a family violence order in the first place and that family violence order is clearly in place to protect victims from family violence.
Notwithstanding that she invited the [appellant] to her home herself, she’s still afforded the protection of the court and a breach did occur when the [appellant] was within a hundred metres of her and being on the premises that he was not supposed to be at.
The [appellant] has not attended for a court duty report, therefore very little is known about his subjective factors, but perhaps he can shed some light on that to your Honour. Principles of general deterrence and denunciation for this type of offending will obviously be pertinent in sentencing the [appellant] today. Unless I can assist the court further, those are my submissions.
Her Honour then asked the appellant what he wished to say. He apologised and said that he wished to seek an adjournment as he had some issues with his current representation for not representing him to his satisfaction. He sought an adjournment to find new legal counsel.
The magistrate immediately rejected the application saying that she was “not going to put the victim through this again”. The interaction was as follows:
Her Honour: We’re halfway through. We’re more than halfway through. You’ve simply left it too late. I’m simply not going to put a victim through this a second time. If you’d asked me right at the beginning, I may have had a different approach but---
[Appellant]: I’m sorry, your Honour.
Her Honour: --- the stage we’ve got to in the proceedings, I’m not going to grant an adjournment at this late stage. Not in circumstances where a victim has already read their victim impact statement.
[Appellant]: I’m sorry, your Honour. I do need legal representation because I need witnesses to be subpoenaed that will provide evidence, like perjury, I might add, against some of the statements that [the victim] has provided, and to provide them in a proper context towards the court. I have evidence of incorrect information---
Her Honour indicated that the victim impact statement was not a sworn statement. She asked him whether he pleaded guilty on the basis of the Statement of Facts. The appellant kept talking and the magistrate sought to pin him down:
All right, so you’ve pleaded guilty on the basis of that statement of facts, yes or no?
The appellant said that he did, on the word of his previous lawyers. He asked for an adjournment to get a legal representative and to provide the “inaccurate representations” made by his previous lawyers. The magistrate indicated that she was proceeding to sentence him on the basis of the Statement of Facts and the victim impact statement that had be read onto the record. She said that any such representations were not relevant to these proceedings. The appellant said that there were mitigating circumstances relevant to the proceedings. The magistrate asked him what they were.
The appellant then made reference to medical records, which were referred to in the representations, which indicated that he suffered from depression and anxiety. He said anxiety can cause confusion, in his case, extreme. He said: “I can, with psychological assessment, get evidence of that and evidence of my life up until this point.”
The transcript is then as follows:
Her Honour: Well, you knew that these proceedings were on today. Why haven’t you brought it with you?
[Appellant]: I’m very - sorry, I was under the impression - I’ve spoken to several lawyers, and they did inform me that adjournment would be granted.
Her Honour: Well, why didn’t you ask for an adjournment then? I just think that we’ve got to a stage now where a victim of offending has had to go through a very traumatic process of reading the victim impact statement onto the record. The adjournment boat has sailed. I’m not going to put her through this again.
[Appellant]: I understand that, your Honour. I thought you was [sic] just questioning about the court duty report and it was no longer my chance to speak. I thought I would address this when I next had the opportunity to speak. I’m not a lawyer; I’m not familiar with court proceedings. I just brought it up when I believed was the next available opportunity, as I’m completely ignorant in matters of legal proceedings.
Her Honour: Well, that’s not entirely true, is it now, Mr Kibblewhite? You’ve been before the court before.
[Appellant]: I’m sorry, your Honour. I’m not a trained legal professional.
Her Honour: You came before the court on 30 June 2005, so it’s not entirely accurate that you don’t know anything about legal proceedings. You’ve appeared in these proceedings on a number of occasions before; you’ve been before this court since 21 February, so you’ve - 21 February, 12 March, 9 April, 7 May, 9 May, 4 June, 25 June, 9 July. So why are we now in a position where you say you don’t know that you can say anything? I mean, that simply does not have the ring of truth about it, I’m afraid. You gave no indication that you wanted an adjournment until you’ve heard the victim impact statement.
[Appellant]: I’m sorry, your Honour. That was always my intention, to seek an adjournment. You simply questioned me about the court duty report, which I gave an explanation for, and then the prosecution spoke. I believed - you know, I didn’t have an opportunity to---
Her Honour: No, I said, “Are you ready to proceed,” and you said “Yes”.
[Appellant]: I didn’t understand, your Honour. I’m sorry.
Counsel for the respondent then indicated that she was content for the appellant to make submissions about his depression and anxiety from the bar table. She indicated that she would oppose the adjournment because the matter had been adjourned on the last occasion when it was set down for sentence. She pointed out that up until today he had been legally represented.
The magistrate asked him why he was not ready to go. He said he was aware of the various adjournments. The magistrate said:
You’ve known about today for quite some time and indeed, this is the second time we’ve tried to have a sentence of the matter and you didn’t turn up on 23 August when it was originally set down, so---
The magistrate repeated once again that she was not going to put the victim of the offending through this process again and that the appellant had had more than enough time. The appellant responded:
I respectfully do not ask you to do that, your Honour. The victim impact statement has been read. It can be read in future by the prosecution. I do not [wish] to subject [the victim] to any further trauma.
The transcript then records:
Her Honour: Well, it’s further trauma by these proceedings - you’ve had more than enough time. We’re now here, we’re ready to go. What do you wish to say in relation to this offence?
[Appellant]: If it would please you, your Honour, I only just severed ties with Kamy Saeedi law firm on Monday. As you know, that is insufficient time to seek new legal representation. They were not following---
Her Honour: Well that’s your choice. If you choose to dispense with your legal representative, that’s - it’s a choice you can make, but the consequence of that choice is that you proceed yourself or you arrange something else. You haven’t arranged anything else. We’re now here. The matter’s been going on for a long time.
You’ve known that it was set down for this date for some considerable time; in fact, it was set down on 9 July for a date that you didn’t turn up for. You were granted an adjournment on that occasion to today. We’re now proceeding, so what do you wish to say in relation to this offence?
[Appellant]: A proper legal representative would be able to more accurately present---
Her Honour: Well, I don’t doubt that, but you made the decision to dispense with one, so that was your choice, your choice alone. Nobody else sacked your lawyer; you sacked your lawyer. Your choice. Entirely your choice. So let’s proceed; what do you wish to say in relation to this offence?
[Appellant]: I do apologise for that, your Honour. I was given information by several lawyers as I was shopping around for legal representation that I would be granted adjournment today if I---
Her Honour: Well, they were wrong. Okay, so now, what do you wish to say in relation to this offence?
Counsel for the respondent then respectfully suggested that the appellant could be asked questions about his dependents, finances, specific things that would assist him to answer and provide information to the court. Her Honour indicated that she would do that but would give him an opportunity to respond generally first. The appellant did say:
[Appellant]: I genuinely did not realise at the time that I was breaking a court order. I am aware that negligence of the law is not a defence for breaking the law, your Honour, but I do have extreme depression, anxiety. I am sure in your - with your profession, you would be aware of the negative consequences that anxiety may cause.
When I was - and my mother will testify to this, who is in court at the moment, I was placed in psychiatric care last year. The psychiatrist completed his assessment on me. He removed an earlier diagnosis that I had placed upon myself of bipolar. He said that was a misdiagnosis. He did label me as autistic.
He also indicated that I have the lowest risk level to danger to self, danger to others, danger to children under 16 years of age, danger to community; he gave me the lowest possible risk factor ever and he also said to my mother, “Adam has - he is intellectually where he is supposed to be at, but on an emotional level, he is that of a 12 to 13 year old.”
He also stated to my mum, off the record, that “[the victim] had done this to set him up.” My mum - my mother asked him if he could write that in a letter. He said, “unfortunately, I cannot. It’s off the record.” My mum will testify on a bible or a statutory declaration or whatever would please the court that that is - what is in fact happened and---
Her Honour: But you understand that the order was made and that it was made against you and that you had to comply with it.
[Appellant]: I’m sorry, your Honour. If I may also add, when I was served the order [I] was also in the Goulburn Chisholm Ross mental facility. I was under, as you can imagine, extreme stress and anxiety. Like, all I - all that rang through my mind, your Honour, was “do not approach her, do not approach her, do not approach her.” And once it was served I did not - I missed her very much and her children very much, but---
Her Honour then interrupted him and asked him questions about what he currently understood. He indicated an understanding consistent with the terms of the order.
The appellant continued to make submissions in mitigation:
[Appellant]: … If I may also add, your Honour, the experiences that happen to me back in November were very traumatising. Like, I could hardly focus on what the police officer said. Like, all - the only thing that stuck in my mind is “stay away and do not contact her”.
[The victim] contacted me a few times before she actually approached me in the car park where I help out at my friend’s restaurant… She had contacted me on Christmas Day, saying that she had had permission from the court to leave a present at my door. I was currently at my mother’s place when I received that text.
During the mediation proceedings in the courtroom, conducted with a deputy registrar, I handed her some gifts, she handed me a note and there was also a letter contained in those gifts and it seemed to warm her heart a little bit and once again, she contacted me, but again I did not contact her and I only---
The magistrate interrupted him and once again asked about his current understanding of his obligations under the order. He gave appropriate answers, indicating “I am of the understanding now that if she attempts to contact me again, I’m to report the matter to police.”
He was then asked about his employment and income, which he began to address, before asking if he could continue to make submissions about his background. He referred to his achievements at school and his failure to complete Year 12 at school. He indicated that he had enrolled in Year 12 again at the Canberra Institute of Technology. He said his intention was to go to university to study medicine, or if he was not accepted into medical school, a medical science or chemistry degree. He said that the anxiety associated with these proceedings had caused him “extreme confusion” and he had to drop out of school.
Her Honour then asked whether he had anything else to say. The transcript then provides:
[Appellant]: Would it please the court if I would present at another date contradictory evidence to the---
Her Honour: No. We’re going to finish this today. Everybody needs it to finish; you need it to finish as much as anybody else, from what I’ve just heard…
He was asked by the magistrate whether he regretted having been on the premises. He indicated that he regretted “everything about this situation”.
The magistrate gave her reasons immediately. They were as follow:
All right, in sentencing you, I take into account the purposes and the factors of sentencing set out in the legislation, the statement of facts and circumstances. In terms of objective seriousness, I note that there seems to have been a very difficult relationship. I note that there are issues of mental health involved and perhaps misunderstandings rather than wilful breaching of court orders. I note that the circumstances were emotionally complex.
I take into account your plea of guilty. It facilitates justice and is indicative of remorse. I have given you a discount in the manner of sentence. I take into account your age and your personal circumstances as you have outlined them to me. I take into account the fact that you have no formal criminal history. I note that prior matters have been dismissed.
I take into account the victim impact statement. I publicly recognise the victim and the trauma that has been occasioned by your conduct to the victim. I take into account your mental health. I note you suffer from anxiety. You have also been diagnosed as being on the autism spectrum. I note that there is some diminishment of your emotional development that has been diagnosed and reported through your mother and rehabilitation is a highly relevant sentencing consideration.
However, deterrence is also relevant. I impose a penalty to deter you from engaging in this conduct again and also to deter others. The community is to be protected from this type of behaviour. A court order is a court order. There’s no ifs and buts. It is to be complied with.
To not comply with a court order tends to undermine that order, undermine the rule of law and undermine its effectiveness, as well as undermining the trust of the community in the ability of the courts to protect people. I impose a penalty to publicly denounce your conduct and to hold you accountable for your actions.
In the circumstances, I convict you of the offence. You are to enter into a good behaviour order for a period of 12 months. You will be subject to the supervision of the Director-General and Corrective Services and comply with all reasonable directions in relation to - for the period of 12 months or such relevant period as deemed appropriate.
You are to attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as you’re directed to do. In particular, you are to engage with the EveryMan program; you are to receive counselling to address your underlying issues and assistance with your mental health; and you are to continue with your study.
If you fail to comply with your obligations under this order, or if you are fond [sic] to have committed a relevant offence in the next 12 months, you may be re-sentenced in relation to this offence. Do you understand?
[Appellant]: I understand and thank you, your Honour.
Her Honour: All right, so this order is primarily aimed at giving you some assistance and support to get you back doing the right thing, all right? Okay. Thank you. Yes, thank you for your assistance.
Did the magistrate fail to consider s 17?
So far as the course of proceedings was concerned, the refusal of the adjournment appears to have been based upon the fact that the victim had read her victim impact statement. It was based upon the assumption that if the matter was adjourned then the victim would need to participate in the proceedings by reading it on another occasion. That assumption was not an accurate one. There was no apparent reason why the sentencing proceedings could not have been adjourned part heard before the magistrate, so as to avoid any further imposition upon the victim. The refusal may also have been contributed to by the number of occasions on which it had previously been before the court.
Insofar as the application for an adjournment was made late, the transcript does not record any opportunity given to the appellant to make an application earlier. The transcript does not record any occasion, as referred to by the magistrate, upon which he was asked whether he was ready to proceed. However, it is possible that such an occasion occurred at some point previously that day and is not recorded in the transcript.
The conclusion that he should have been familiar enough with court proceedings because he had been to the Queanbeyan Local Court and had charges dismissed some 14 years ago, or by reason of the previous listings in the Magistrates Court when he was legally represented, appears to understate the extent to which a lay person would be unfamiliar with the processes of the court and the approach of the court to particular issues in sentencing proceedings. The suggestion that he was lying in relation to the extent of his knowledge or preparedness (“that simply does not have the ring of truth about it”) seems somewhat harsh, particularly given that the magistrate had been told (accurately) that he suffered from depression and anxiety, and that he had not yet been given the opportunity to explain that he suffered from autism.
The refusal of the adjournment provides the context in which her Honour then proceeded to receive submissions from the appellant. Those submissions disclosed:
(a)Consistently with the Statement of Facts, the appellant had attended the premises and recommenced a relationship with the victim at her instigation and with, up until the text message to her friend, her consent.
(b)The appellant had a diagnosis of autism spectrum disorder and an emotional age of 12 or 13 years.
(c)At the time when the appellant was served with the order, he was in a mental health facility in Goulburn and was suffering “extreme stress and anxiety”.
(d)The appellant understood at the time of service that he should not approach the victim.
(e)He did not realise at the time he was arrested that he was breaking a court order.
None of these matters were put in issue, expressly or impliedly, by counsel for the respondent. There is no indication either in the course of the proceedings, or in her Honour’s reasons, that her Honour did not accept these statements to be accurate, or discounted them on the basis that they involved self-serving statements or lacked a proper evidentiary foundation: R v Olbrich [1999] HCA 54; 199 CLR 270 at [25].
In her Honour’s reasons:
(a)She does make reference to “issues of mental health involved and perhaps misunderstandings rather than wilful breaching of court orders”.
(b)She makes no reference to the fact that it was the victim who had invited the appellant to her house to re-establish the relationship and invited him to recommence living at the premises.
(c)There were no findings inconsistent with the statements made by the appellant to police that prior to their arrival he had wanted to be alone and went to bed in his own room.
(d)There was no reference to the fact that prior to requesting that police be called, there was no request by the victim that the appellant leave the premises.
Each of these circumstances were circumstances of mitigation which warranted consideration.
Notwithstanding that:
(a)the extemporaneous reasons of magistrates should not be analysed with an eye keenly attended to the detection of error; and
(b)s 17 of the CS Act is a provision so commonly considered by magistrates that a conclusion that it has not been considered should not be reached lightly,
in the circumstances of this case, I am satisfied that the possible application of the provision was not given consideration by the magistrate.
A court would usually rely upon the parties’ submissions, in particular those of the defendant, to raise the possible application of s 17. No submission made to the magistrate raised its possible application in the present case. However, the failure to make any specific submission relating to the possible application of s 17 occurred in circumstances where the appellant, who had previously been represented and who disclosed to the court his mental health conditions including autistic spectrum disorder and anxiety, had been refused the adjournment that he had sought in order to obtain legal representation. Those circumstances, in my view, made it incumbent upon the court to consider the application of s 17, even though it had not been specifically raised by the appellant or by counsel for the respondent.
In failing to give consideration to the application of s 17, the magistrate committed a specific error. Plainly enough, that would not lead to the appeal being allowed, unless upon a resentence the court considered a sentence other than that which was imposed was appropriate.
In considering whether any different sentence would be appropriate, it is necessary to have regard to the additional evidence tendered on the appeal, namely, the report of Dr Furst.
The Report of Dr Furst
The report of Dr Furst was admitted by consent and without any restriction on its use (aside from the exclusion of question and answer 14). No submission was made that it should be given less weight because the appellant did not give evidence: Munro v The Queen [2006] NSWCCA 350 at [17]-[19].
The report disclosed the following about the personal circumstances of the appellant. The appellant suspected that he suffered from attention deficit hyperactivity disorder at school. Autistic spectrum disorder was also suspected but was not formally diagnosed until his admission to the Chisholm Ross Centre at the Goulburn Base Hospital in November 2018.
He suffered from high levels of anxiety from his early teens and throughout his high school years. In 2004 or 2005 he was admitted to the psychiatric units of Woden Valley Hospital and the Chisholm Ross Centre, each for periods of one to two weeks, as he was suffering from symptoms consistent with mania at the onset of bipolar affective disorder. He struggled to tolerate the medications that he was prescribed, due to side‑effects of sedation.
In 2017 and 2018 he was working as a diesel mechanic but was subjected to bullying in the workplace. He became increasingly stressed, depressed and anxious and was prescribed antidepressants. He has not used illicit drugs since the age of 20.
The report indicates that the appellant was again admitted to the Chisholm Ross Centre from 15 November 2018 until 19 November 2018 as a result of the victim contacting emergency services, believing that he was suicidal. He became increasingly depressed in January 2019.
After the victim contacted him in January 2019, they began seeing each other again, including resuming a physical relationship. The victim told him she had not been seeing anybody else, although that was not the case. It was this which led to the incident with the victim. The report records that the appellant had always been very anxious about contracting a sexually transmitted infection.
In the months after the incident leading to the charges the couple attended counselling, but the relationship broke down in August 2019. The appellant indicated that his plans were to work in information technology or science but was anxious about the impact of a criminal conviction on his job prospects.
Dr Furst administered some tests and reviewed the available medical records. He made a diagnosis of autistic spectrum disorder. He concluded that the effect of the autistic spectrum disorder at the time of the offence was as follows:
Adults with autistic spectrum disorders typically struggle with deficits in communication, deficits in empathy, inability to read social cues/body language, obsessive and controlling traits and a greater tendency towards irrational anxiety than people without autistic spectrum disorders. The available history also suggests that Mr Kibblewhite has been prone to mood swings throughout the period of his relationship with [the victim], including at the time in question before the court.
So far as the effect on his judgment was concerned, the doctor said:
… autistic spectrum disorder are typically associated deficits in relation to interpersonal relationships and his autistic spectrum disorder is more likely than not to have affected his relationship with [the victim] and interactions towards her after they separated.
Mr Kibblewhite’s high levels of anxiety, rigid thinking and obsessional thinking, which are likely to be features of his autistic spectrum disorder, appear to have resulted in obsessional, intrusive and emotional behaviour towards [the victim], and adversely affecting his ability to exercise appropriate judgment.
In relation to the risk of further offending, the doctor said:
…Based on the available history in the presence of his autistic spectrum disorder, Mr Kibblewhite will remain at some risk of encountering difficulties in future intimate relationships, anticipated problems including a tendency towards obsessional thinking, high levels of anxiety and emotional instability.
To a large extent, the report of Dr Furst reinforces the accuracy of what the appellant told the magistrate in relation to his personal circumstances.
Consideration of s 17
I set out below the matters raised by the considerations referred to in s 17(3) of the CS Act.
The offender’s character, antecedents, age, health and mental condition (s 17(3)(a))
The appellant is currently 35 years old. He had no previous convictions. Almost 14 years ago, three charges were dismissed for mental health reasons.
He suffers from autistic spectrum disorder which affects the nature of his thinking, increases his anxiety and impedes his capacity to maintain relationships. This forms the background to the deterioration of the relationship with the victim. It is also a significant element of his subjective circumstances generally.
The seriousness of the offence (s 17(3)(b))
On any view, the offending is at the low end of the spectrum for offences of this type. While counsel for the respondent contended that it was offending over a significant period, the charge only referred to events on 21 February 2019. Insofar as there is background evidence of admitted conduct which would constitute offending, that only reinforces the significance of the invitation by the victim to recommence a relationship, her consent to him being with her and at her residence, and his ignorance that in those circumstances what he was doing amounted to an offence.
Any extenuating circumstances in which the offence was committed (s 17(3)(c))
The extenuating circumstances have been referred to above. They are:
(a)the invitation by the victim to recommence contact;
(b)the re-establishment of a physical relationship between the victim and the appellant over a period of weeks prior to the charged conduct;
(c)the consent of the victim to him being present at her house; and
(d)the absence of any request by the victim for him to leave the house or cease contact with her prior to the police being called.
So far as other relevant matters are concerned (s 17(4)), I was told on the appeal that the victim had been charged with aiding and abetting a breach of the Act, but that those proceedings had been discontinued.
While I accept that in family violence cases, because of the significance of general and specific deterrence, the power in s 17 of the CS Act will not often be deployed, it remains a power which is available. The circumstances of this case and, in particular, the personal circumstances of the appellant and the extenuating circumstances in which the offence occurred, are such that it is appropriate to deal with the matter in a way which does not involve the recording of a conviction against him.
Therefore, it is a case in which I am satisfied that a different sentence should be imposed.
Other grounds of appeal
In light of this conclusion it is not necessary to address the other grounds of appeal.
Orders
It is appropriate to set aside the orders of the magistrate and to make an order under s 17(2)(b).
For the reasons given in R v Jones [2020] ACTSC 92 at [31], only a supervision condition on the good behaviour order is necessary and it is not necessary to further enumerate the nature of the directions that may be given by the Director-General.
The orders of the Court are:
1. Appeal allowed.
2. The orders of the Magistrates Court made on 13 September 2019 are set aside and the following order made:
(a) On charge CC2019/2443, pursuant to s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) the defendant is, without conviction, required to enter into a good behaviour order for a period of 9 months from 11 June 2020 with the following additional condition: to be on probation subject to the supervision of the Director-General and obey all reasonable directions of the Director-General for a period of 9 months or such lesser period as deemed appropriate by the Director-General.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 11 June 2020 |
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