Morrison v Maher (No 2) - [2022] ACTSC 63

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Morrison v Maher (No 2)
Citation:	[2022] ACTSC 63
Hearing Dates:	15 December 2021 and 29 March 2022
DecisionDate:	1 April 2022
Before:	Mossop J
Decision:	See [185]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – resentence following appeal against Magistrates Court sentence – 13 series of domestic violence-related offences – offending ranged from low to above the mid-range of objective seriousness – no criminal history – pleas of guilty – history of bipolar disorder and methamphetamine dependence – strong employment history – high risk of general reoffending – sentences of imprisonment imposed – fines imposed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), Pt 5.2, ss 10, 64, 71, 72 Crimes (Sentence Administration) Act 2005 (ACT), s 116C(3) Crimes Act 1900 (ACT), ss 24, 26, 27(3)(a), 35, 44, 72C, 381(1), 713(1) Crimes Act 1914 (Cth), ss 19, 19AC Criminal Code Act 1995 (Cth), s 474.17(1) Criminal Code 2002 (ACT), ss 44, 403, 713 Family Violence Act 2016 (ACT), s 43(2) Magistrates Court Act 1930 (ACT), ss 208(e), 214 Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)
Cases Cited:	Betts v The Queen [2016] HCA 25; 258 CLR 420 Cherry v R [2017] NSWCCA 150 Morrison v Maher [2021] ACTSC 312 Ndlovu v The Queen [2018] ACTCA 33; 336 FLR 307 Penelope Maher v Sonney Morrison [2020] ACTMC 26 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Verdins [2007] VSCA 102; 16 VR 269
Parties:	Sonney Morrison ( Appellant) Penelope Maher and David McDonald ( Respondent)
Representation:	Counsel Self-represented ( Appellant) T Hickey ( Respondent)
Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 4 of 2021
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 17 December 2020 Case Title: Penelope Maher v Sonney Morrison Citation: [2020] ACTMC 26

MOSSOP J:

Introduction

For the reasons given in Morrison v Maher [2021] ACTSC 312, it is necessary to resentence Mr Morrison on 30 charges. Those charges are set out in the following table.

Series	Sequential charge number	Charge	Offence date	Statute contravened	Maximum penalty
A	1	CC2019/5474: assault occasioning actual bodily harm	September 2011	s 24 of the Crimes Act 1900 (ACT) (ACT Crimes Act)	5 years’ imprisonment
B	2	CC2019/5475: damaging property	November 2016	s 403(1) of the Criminal Code 2002 (ACT) (ACT Criminal Code)	1000 penalty units, 10 years’ imprisonment or both
B	3	CC2019/5476: assault occasioning actual bodily harm	November 2016	s 24 of the ACT Crimes Act	5 years’ imprisonment
B	4	CC2019/5477: possess offensive weapon with intent	November 2016	s 381(1) of the ACT Crimes Act	$2000, 1 year’s imprisonment or both
C	5	CC2019/5478: act endangering life (choke/render insensible)	22 – 25 December 2016	s 27(3)(a) of the ACT Crimes Act	10 years’ imprisonment
C	6	CC2019/5479: assault occasioning actual bodily harm	22 – 25 December 2016	s 24 of the ACT Crimes Act	5 years’ imprisonment
D	7	CC2019/5480: assault occasioning actual bodily harm	25 – 28 January 2018	s 24 of the ACT Crimes Act	5 years’ imprisonment
D	8	CC2019/5481: common assault	25 – 28 January 2018	s 26 of the ACT Crimes Act	2 years’ imprisonment
D	9	CC2019/5484: common assault	25 – 28 January 2018	s 26 of the ACT Crimes Act	2 years’ imprisonment
E	10	CC2019/6245: assault occasioning actual bodily harm	2 – 3 November 2018	s 24 of the ACT Crimes Act	5 years’ imprisonment
E	11	CC2019/6244: common assault	2 – 3 November 2018	s 26 of the ACT Crimes Act	2 years’ imprisonment
F	12	CC2019/5485: non‑consensual distribution of intimate images	29 January 2019 – 1 February 2019	s 72C of the ACT Crimes Act	300 penalty units, 3 years’ imprisonment or both
G	13	CC2019/6242: trespass	22 March 2019	s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth)	10 penalty units (Cth)
G	14	CC2019/6243: damaging property	22 March 2019	s 403 of the ACT Criminal Code	1000 penalty units, 10 years’ imprisonment or both
H	15	CC2019/6234: stalking	24 March 2019 – 26 April 2019	s 35 of the ACT Crimes Act	5 years’ imprisonment
H	16	CC2019/6235: contravene family violence order (FVO)	24 March 2019 – 26 April 2019	s 43(2) of the Family Violence Act 2016 (ACT)	500 penalty units, 5 years’ imprisonment or both
I	17	CC2019/4860: contravene FVO	26 April 2019	s 43(2) of the Family Violence Act	500 penalty units, 5 years’ imprisonment or both
I	18	CC2019/4861: trespass	26 April 2019	s 11(1) of the Public Order (Protection of Persons and Property) Act	10 penalty units (Cth)
J	19	CC2019/5156: contravene FVO	30 April 2019	s 43(2) of the Family Violence Act	500 penalty units, 5 years’ imprisonment or both
J	20	CC2020/12122: attempt to pervert the course of justice	30 April 2019	s 713(1) of the Criminal Code by virtue of s 44	700 penalty units, 7 years’ imprisonment or both
K	21	CC2019/6237: contravene FVO	16 May 2019	s 43(2) of the Family Violence Act	500 penalty units, 5 years’ imprisonment or both
K	22	CC2020/12121: attempt to pervert the course of justice	16 May 2019	s 713(1) of the ACT Criminal Code by virtue of s 44 of the ACT Criminal Code	700 penalty units, 7 years’ imprisonment or both
K	23	CC2019/6240: contravene FVO	20 May 2019	s 43(2) of the Family Violence Act	500 penalty units, 5 years’ imprisonment or both
K	24	CC2019/6241: stalking	16 –20 May 2019	s 35 of the ACT Crimes Act	5 years’ imprisonment
L	25	CC2020/10745: attempt to contravene FVO	8 August 2020	s 43(2) of the Family Violence Act	500 penalty units, 5 years’ imprisonment or both
M	26	CC2020/10405: stalking	12 – 19 August 2020	s 35 of the ACT Crimes Act	5 years’ imprisonment
M	27	CC2020/10674: use carriage service to harass	12 – 19 August 2020	s 474.17(1) of the Criminal Code 1995 Act (Cth) (Commonwealth Criminal Code)	3 years’ imprisonment
M	28	CC2020/10676: contravene FVO	12 – 19 August 2020	s 43(2) of the Family Violence Act	500 penalty units, 5 years’ imprisonment or both
N	29	CC2020/10967: contravene FVO	10 September 2020	s 43(2) of the Family Violence Act	500 penalty units, 5 years’ imprisonment or both
N	30	CC2020/11403: contravene FVO	10 September 2020	s 43(2) of the Family Violence Act	500 penalty units, 5 years’ imprisonment or both

The number of offences is one less than dealt with in the earlier reasons because, with the consent of the prosecution, the appellant withdrew his plea of guilty to charge CC2019/6236 and that charge was dismissed. At the same time, the date particularised for the stalking charge CC2019/6241 was amended from 20 May 2019 to between 16 and 20 May 2019. This reflected the fact that the stalking charge comprised the sending of two letters, one on 16 and one on 20 May 2019.

The stalking charges (CC2019/6234, CC2019/6241, CC2020/10405) all carry a five‑year sentence of imprisonment because they are statutorily aggravated by the fact that the contact with the victim via letter, text messages and emails involved breaches of an FVO: ACT Crimes Act s 35(1).

Charge CC2019/6240 was particularised in the information as having occurred between 24 March 2019 and 26 April 2019. However, the Statement of Facts which formed the basis of the sentence identified that the charge related to a letter sent on 20 May 2019 which formed part of the series K offences. The magistrate sentenced the appellant on the basis that the offending formed part of the series H offending but did not identify with precision what conduct was said to be involved in charge CC2019/6240 as distinct from the other charge of contravening an FVO, CC2019/6235: Penelope Maher v Sonney Morrison [2020] ACTMC 26 at [53]. Having regard to the fact that the Statement of Facts admitted before the magistrate identifies that this offence relates to events on 20 May 2019 and that the facts disclosed in the Statement of Facts do not make clear what conduct would otherwise be the subject of the charge if it occurred in the period 24 March to 26 April 2019, it is appropriate to grant leave to amend the charge so that the relevant date is “on or about 20 May 2019”. This means that this charge fits within series K, as indicated in the table above.

The offending involved in series J and following all occurred when the appellant was remanded in custody. This has the consequence that different provisions apply in relation to non-parole periods and in relation to concurrency or cumulation of sentences: see [177] - [178] below.

Basis for resentencing

The appellant was represented in the proceedings before the magistrate. He represented himself in the Supreme Court. In the Supreme Court, he filed 109 pages of written submissions. Many of those submissions sought to provide an alternative factual basis for the sentence. Further, the appellant sought to have admitted on the appeal significant additional evidence that was not before the magistrate.

Having found in my earlier reasons that the appeal was to be allowed, I heard submissions as to whether it was appropriate to resentence the appellant myself or remit the matter to the Magistrates Court to conduct the sentencing hearing again. That issue was the subject of further submissions on 29 March 2022. The position of the Crown was that the submissions being made on behalf of the appellant, both as to the facts generally and as to his mental health at the time of the offending, were such that the appropriate course was to remit the matter to the Magistrates Court to conduct the sentencing hearing afresh and address any contentions that may be raised in relation to the factual basis for the sentence.

Mr Morrison did not wish to have the matter remitted. He did not wish to have the matter reopened in a way that might require members of his family to give evidence and wished the matter to be finalised. That remained the case even if it meant that he would not be able to take a different approach to the facts or the issue of his mental health than was taken in the Magistrates Court.

The applicable principles are those set out in Betts v The Queen [2016] HCA 25; 258 CLR 420 at [2] and [14]:

2As a general rule, the appellate court’s assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender’s progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. …

…
14Forensic choices are made in the conduct of the offender’s case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge’s discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct.

Had it been the case that the factual basis for the resentencing was to be reopened or a different approach to the issue of the appellant’s mental health was to be taken on the resentence then I would have remitted the matter to the Magistrates Court. That is because it is not appropriate on an appeal from the Magistrates Court where a resentence is required to have the sentencing proceedings run on a different factual basis as if the court was sentencing at first instance.

Further evidence

The appeal is brought pursuant to s 208(e) of the Magistrates Court Act 1933 (ACT). Section 214 of the Act provides for the admission of further evidence on certain circumstances.

The applicant sought to have admitted on the appeal further evidence which was not before the magistrate. That comprised some 408 pages of documents, most of which were extracted from the prosecution brief of evidence. They included the report of Dr Saboisky, Dr Spruce and Canberra Hospital notes, some of which had been provided to psychologist Mr Tom Sutton.

The application for admission appears to be based upon s 214(4) of the Magistrates Court Act. The conditions in that subsection are that (a) it appears to the court that the evidence is likely to be credible and would have been admissible in the proceedings below and (b) the court is satisfied that there is a reasonable explanation for the failure to adduce it. Although there are a variety of different pieces of documentary evidence sought to be admitted, speaking generally I consider the paragraph (a) is satisfied. I do not consider that paragraph (b) is satisfied.

The approach taken before the Chief Magistrate involved no factual challenge to what was in the police Statements of Facts. Further, it did not involve putting into evidence additional material from the evidence-in-chief interviews. It did not involve calling any oral evidence from the appellant or other persons relating to the matters raised in the appellant’s 20-page statement given to the author of the pre-sentence report. There were legitimate forensic reasons for adopting this course. Had there been a challenge to the facts set out in the Statements of Facts then this would have required a disputed fact hearing involving the victim giving evidence and being cross-examined. Such an approach would have carried with it very grave risks for the appellant in that it would have substantially undermined the utilitarian value of the pleas of guilty. Further, the impression of the case so far as the magistrate was concerned may have been very different from one which was simply presented on the papers. Finally, the magistrate may well have formed an adverse impression of the appellant’s insight into the nature of his offending conduct and his prospects for rehabilitation if the facts were contested in the manner sought to be done in the present case.

Insofar as the material relates specifically to the appellant’s mental health, much of it was material which was put before Mr Sutton and hence clearly available at the time of sentencing. There is no specific evidence about the forensic decisions made in relation to mental health evidence before the magistrate. However, had the appellant below sought to establish that his mental health was a factor reducing his culpability then that would have significantly altered the scope of the sentencing hearing, altered the requirement for expert evidence and may have required the appellant himself to give oral evidence.

In the circumstances, I am not satisfied that there is a reasonable explanation for the failure to adduce the evidence now sought to be adduced by the appellant. Rather, the evidentiary approach taken before the magistrate is consistent with forensic choices made on behalf of the appellant.

Offence provisions

The relevant offence provisions as at the date of the offending were as follows:

Section 24 of the ACT Crimes Act:

24 Assault occasioning actual bodily harm
(1) A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
(2) ….

Section 26 of the ACT Crimes Act:

26 Common assault
A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.

Section 27(3)(a) of the ACT Crimes Act:

27 Acts endangering life etc
…
(3) A person who intentionally and unlawfully—
(a) chokes, suffocates or strangles another person so as to render that person insensible or unconscious or, by any other means, renders another person insensible or unconscious; or
….
is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

Section 35 of the ACT Crimes Act:

35 Stalking
(1) A person must not stalk someone with intent—
(a) to cause apprehension, or fear of harm, in the person stalked or someone else; or
(b) to cause harm to the person stalked or someone else; or
(c) to harass the person stalked.
Maximum penalty:
(a) imprisonment for 5 years if—
(i) the offence involved a contravention of an injunction or other order made by a court; or
(ii) the offender was in possession of an offensive weapon; or
(b) imprisonment for 2 years in any other case.

(2) For this section, a person stalks someone else (the stalked person) if, on at least 2 occasions, the person does 1 or more of the following:
(a) follows or approaches the stalked person;
(b)loiters near, watches, approaches or enters a place where the stalked person resides, works or visits;
(c) keeps the stalked person under surveillance;
(d) interferes with property in the possession of the stalked person;
(e) gives or sends offensive material to the stalked person or leaves offensive material where it is likely to be found by, given to or brought to the attention of, the stalked person;
(f)telephones, sends electronic messages to or otherwise contacts the stalked person;
(g) sends electronic messages about the stalked person to anybody else;
(h) makes electronic messages about the stalked person available to anybody else;
(i)acts covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person;
(j) engages in conduct amounting to intimidation, harassment or molestation of the stalked person.

(3) However, this section does not apply to reasonable conduct engaged in by a person as part of the person’s employment if it is a function of the person’s employment to engage in the conduct and the conduct is not otherwise unlawful.
(4)Without limiting subsection (1), a person is also taken to have the intent mentioned in the subsection if the person knows that, or is reckless about whether, stalking the other person would be likely—
(a) to cause apprehension or fear of harm in the person stalked or someone else; or
(b) to harass the person stalked.

(5)In a prosecution for an offence against subsection (1), it is not necessary to prove that the person stalked or someone else apprehended or feared harm or that the person stalked was harassed.
(6)For this section:
harm means physical harm, harm to mental health, or disease, whether permanent or temporary.
harm to mental health includes psychological harm.
physical harm includes unconsciousness, pain, disfigurement and physical contact that might reasonably be objected to in the circumstances, whether or not there was an awareness of the contact at the time.

Section 72C of the ACT Crimes Act:

72C Non-consensual distribution of intimate images
A person (the offender) commits an offence if—
(a) the offender distributes an intimate image of another person; and

(b) the offender—
(i)   knows the other person does not consent to the distribution; or
(ii)   is reckless about whether the other person consents to the distribution.
Maximum penalty:  300 penalty units, imprisonment for 3 years or both.

“Intimate image” is defined in s 72A of the ACT Crimes Act.

Section 381(1) of the ACT Crimes Act:

381Possession of offensive weapons and disabling substances with intent
(1) A person who has on his or her person an offensive weapon or a disabling substance, in circumstances indicating intent to use the weapon or substance to commit an offence involving actual or threatened violence, is guilty of an offence punishable, on conviction, by a fine of $2 000, imprisonment for 1 year or both.
(2) In subsection (1):
disabling substance means any anaesthetising or other substance made for use for disabling a person, or intended for that use by the person who has it in his or her possession.

Section 403(1) of the ACT Criminal Code:

403 Damaging property
(1) A person commits an offence if the person—
(a) causes damage to property belonging to someone else; and
(b) intends to cause, or is reckless about causing, damage to that property or any other property belonging to someone else.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

Section 713(1) of the ACT Criminal Code:

713Perverting the course of justice
(1) A person commits an offence if the person, by his or her conduct, intentionally perverts the course of justice.
Maximum penalty: 700 penalty units, imprisonment for 7 years or both.

Section 43(2) of the Family Violence Act:

43Offence—contravention of family violence order
…
(2) The person commits an offence if the person engages in conduct that contravenes the family violence order (including a condition of the order).
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
NoteIn deciding the sentence to be imposed on a person under this section, the Magistrates Court must consider the matters under the Crimes (Sentencing) Act 2005, s 33 (Sentencing—relevant considerations).

Section 11(1) of the Public Order (Protection of Persons and Property) Act:

11 Additional offences on premises in a Territory
(1) A person who trespasses on premises in a Territory commits an offence, punishable on conviction by a fine of not more than 10 penalty units.

Section 474.17(1) of the Commonwealth Criminal Code:

474.17 Using a carriage service to menace, harass or cause offence
(1) A person commits an offence if:
(a) the person uses a carriage service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 3 years.

Facts

The approach the appellant took before the magistrate involved no challenge to the facts identified in police Statement of Facts documents which were tendered. Those documents included some redactions which, I infer, were made as a result of negotiation between the Director of Public Prosecutions and the representatives of the appellant. There were obviously good forensic reasons for the appellant, through his lawyers, to have taken this approach.

In this court, the submissions made by the appellant in support of his appeal involved:

(a)a very detailed examination of each of the offences and the factual basis for what was said in the Chief Magistrate's reasons or the Statement of Facts in relation to those offences;
(b)a large number of factual assertions which seek to undermine or alter the basis on which he was sentenced as set out in the Statement of Facts;
(c)dissection of the matters referred to in the Statement of Facts by reference to material available in the prosecution brief; and
(d)in some cases, a clear traversal of the plea.

The submissions paint the appellant as a victim of manipulation and violence by the victim. They seek to emphasise the sexual conduct of the victim with other people. The appellant asserts that the victim has manipulated her daughter to lie about his conduct.

As pointed out above, had there remained a challenge on the appellant’s part to the factual basis for his pleas of guilty as was articulated in his written submissions, then a disputed fact hearing would have been required and it would have been appropriate to have remitted the matter to the Magistrates Court for that to occur. Such a disputed facts hearing would inevitably have involved the victim of the offending giving evidence and being cross-examined. However, in order to avoid remittal of the proceedings, the appellant altered his position and submitted that the matter should be dealt with to finality in the Supreme Court. That involved acceptance of the facts as articulated in the Statements of Facts that were tendered in the Magistrates Court.

The appellant did not, however, abandon his application to have further evidence admitted on the appeal. For the reasons that I give at [11] – [16], I have not admitted that further evidence. The factual basis for the sentence is therefore set out in the Statements of Facts and other material that was tendered before the magistrate. That included a 20‑page statement provided by the appellant to the author of the pre-sentence report. That was tendered by the respondent before the magistrate along with the pre-sentence report. The appellant did not give evidence before the magistrate and, as a consequence, it was not evidence given on oath or affirmation and there was no opportunity for the prosecution to test the evidence in that statement.

Series A – September 2011 (CC2019/5474)

Between 1 and 30 September 2011, the victim was at her residence in Harrison along with her husband, the appellant. They were having an argument about their sexual relationship when the appellant began to pack his belongings and leave the residence. The appellant told her that he was leaving as she did not care about him. She decided to leave the residence and got in their car. The appellant got in the passenger side of the vehicle shortly afterwards.

They commenced driving. The argument continued. The appellant became increasingly angry at the victim. As a result, she stopped the vehicle and told the appellant to get out. The appellant refused, so she got out. The appellant got into the driver’s side of the vehicle and left her at the location. She then walked back to their house.

It was night by the time the victim got back home. The appellant had not yet returned. He subsequently returned and they began to argue again about their sexual relationship. The appellant and the victim were in the living room and he slapped her multiple times in the face with an open palm. He told her that if he ever used a closed fist, her head would be caved in. She fell to the ground and the appellant continued to slap her face and upper body. While she was on the ground, the appellant kicked her torso multiple times and also bit her ear. These actions constitute the assault occasioning actual bodily harm (Charge 1: CC2019/5474). While he was doing this, he said words to the effect of “you’re a slut and a horrible person”. She pushed him off and yelled at him to leave the house. He got into their car and left the location.

By this time, the sun was up. The victim was shaken and wanted to leave the house immediately. She woke up the two children, put them in another vehicle and went to a friend’s house. Her friend, Ms T, observed that the victim had black coloured eyes and was bleeding from the mouth. She invited her inside the house. The victim had a shower there and borrowed clean clothes as hers were covered with blood. She said words to the effect of “Sonney has beaten me up but please don’t call the Police, I don’t want him to get in trouble. I am taking the kids and going down to Melbourne to visit my brother.” Later that day, the victim started driving to Melbourne. When she was near Yass, she received a phone call from the appellant stating that he had overdosed. She heard an ambulance in the background. She rang Ms T and asked her to check if the appellant was at her house or not. Ms T and Ms T’s husband went and checked. The appellant was not there. Ms T told the victim this and the victim returned to the house to gather some clothes and then continued down to Melbourne.

After the victim had arrived at her brother’s house, her brother observed that she was speaking through her teeth and had difficulty speaking. She told him that the appellant had caused the bruises and marks on her body. She did not explicitly explain how the injuries were inflicted upon her and her brother did not ask, as she was crying and he did not want to make her relive the experience again. On the second night that she stayed at her brother’s house, her brother took 12 photographs on his mobile phone of the victim. In the photographs, she has purple and yellow coloured bruising around her eyes, red and purple coloured bruising on her ear and purple and yellow coloured bruising on her chin and neck. The victim also had a significant swelling on her neck that was marked with finger imprints and petechiae. Both arms had finger marks in the form of purple colour bruising and there was purple and yellow colour bruising on her stomach. Her brother stored these images on his computer and never deleted them, even after the appellant messaged him from the victim’s phone at a later date telling him to do so.

During her visit, the victim told her brother’s partner that “Sonney beat me up and caused these bruises”. She then removed her sunglasses and showed her brother’s partner the injuries and bruises to her face. She spoke with her brother’s partner about leaving the appellant and seeing a doctor to have a record of injuries and to make sure that she was physically okay. She subsequently did see a doctor but did not tell the doctor how she obtained the injuries and simply obtained a medical certificate for her workplace because she was off work for about one week. After this time, she and the children returned to Canberra.

Series B – November 2016 (CC2019/5475, CC2019/5476 and CC2019/5477)

Late in November 2016, the appellant arranged for the victim to attend a location and have sexual intercourse with a man unknown to the victim and to record it. The victim engaged in consensual sexual intercourse with the unknown male and recorded the interaction for the appellant. After this, she returned to the family home.

When she returned home, the appellant viewed the recording and became upset with the victim because the footage was of poor quality due to music being left on and bad lighting. The appellant told her “You better leave the house right now”. The victim left the house immediately on foot because she feared the appellant.

A few hours later at around midnight, the appellant called the victim and told her to come home right away. She returned home. The appellant sat down at the desk in his and the victim’s bedroom and made her watch the film of sexual intercourse. The appellant pushed her into the desk so tightly that her ribs were digging into the desk and she was unable to move away. He became upset and said to her words to the effect of “not being able to see you have sex is like cheating on me”. He produced a knife that was about 40 cm long with a curved blade and a decorative handle and rested it on top of the victim’s head. He did not let her get up and when she attempted to, he struck the desk with the knife causing it to leave an indented mark. These are the offences of property damage (Charge 2: CC2019/5475) and possessing an offensive weapon with intent (Charge 4: CC2019/5477). He used the knife to cut the top of the victim’s forehead while she was watching the recording. Her forehead bled, which resulted in blood running down her face and onto her dressing gown. This is the offence of assault occasioning actual bodily harm (Charge 3: CC2019/5476). She tried to get out of the chair but the appellant pushed her back down. After this, she escaped and ran out of the residence. She discarded the dressing gown and walked the surrounding streets trying to find a person whose phone she could use to call her brother-in-law.

The victim came across a man who was unknown to her who offered to take her to his house to use his phone. Once at the residence, she could not remember any numbers and was unable to contact anyone.

Around this time, the appellant collected the victim’s dressing gown which had blood on it and dropped it in a garbage bin in Goulburn.

About two hours later, the victim returned to the residence and got ready for work. The appellant was not there. On her way to work she took two photos of her face and sent them to her work email account. When she arrived at work, she copied the two photos onto a disk and then deleted emails from her email account. She did this because the appellant had a history of checking her work and personal emails.

Later that day, the victim and appellants’ daughter observed the victim to have a fresh purple scar on her forehead that she had never seen before. She had heard her father yelling at her mother the night before.

The injuries that the victim suffered were a deep cut on her forehead, swollen bloodied lips and bruised eyes. The victim did not see a doctor for these injuries or report the incident to police. She has a scar on her forehead from this incident.

Series C – December 2016 (CC2019/5478 and CC2019/5479)

Between 23 and 24 December 2016, the appellant and the victim were at their residence in Harrison. They were about to go on a trip to Cairns to visit the victim’s parents. The appellant and the victim were having an argument about their relationship when the appellant stated that if the victim was to take drugs with him, it would help fix their sexual relationship. She agreed to do so out of fear of the appellant.

The appellant put a strap around the victim’s arms and then injected her with a substance she believed to be methamphetamine. She began to feel very unwell and scared. The appellant and the victim were sitting on their bed discussing their sexual relationship when the appellant accused the victim of falling out of love with him. The appellant was yelling at her, saying words to the effect of “You are having affairs and don’t love me anymore!” The victim became fearful and was concerned that the appellant would become physically abusive if she did not agree with him, so she told the appellant that she had slept with men even though she had not. She subsequently told police that she had learned over the years not to argue or fight back with the appellant as it only made situations worse. As a consequence, she would always agree with him in order to appease him.

The victim got on the floor of the room and the appellant continued to yell at her. While she was on the ground, feeling unwell, the appellant kicked and punched her on the back and face. This is part of the offence of assault occasioning actual bodily harm (Charge 6: CC2019/5479). He took the belt from his dressing gown and wrapped it around her neck. He used the dressing gown belt to squeeze the victim’s neck and lift her off the ground. He squeezed so tightly that she could not breathe. She tried to pull the belt from her neck while she was off the ground but was unable to get it off. She subsequently lost consciousness. This is the offence of an act endangering life (Charge 5: CC2019/5478). When this occurred, the appellant slapped her face and body to wake her up. He removed the belt from her neck and pushed her into the shower to wash away her blood. While she was having a shower, the appellant entered the shower, grabbed the back of her head and slammed it into the shower glass and bathroom wall.

Over the course of that night, the victim passed out a number of times and the appellant slapped her to wake her up each time. This is also part of the offence of assault occasioning actual bodily harm (Charge 6: CC2019/5479). After a few hours, the appellant went to use the bathroom. The victim noticed that he was preoccupied and ran out of the house and jumped over a few neighbours’ fences. She waited in bushes to hide from the appellant for a few hours. She then returned to the residence using a spare key. The appellant had left the residence, so the victim went to her workplace and sat at her desk for a few hours. She took photographs of her injuries on her phone and sent them to her work email account. She copied the images onto the same disk that she had used before and then deleted the email. While at work, she got a phone call from the appellant saying that he was in Sydney because he thought the police would be coming to arrest him. She left her work and returned home. She had missed her previously‑booked flight to Cairns and stayed at home for about a week and half. She told her parents that she did not come to Cairns because the appellant and her had an argument about her cheating on him. As a result of these incidents, the victim had two black eyes, a cut on her jaw, swollen and bruised lips and bruising on her face. She did not see a doctor for these injuries and did not report the incident to the police at the time.

Between 1 July and 30 September 2017, the appellant and the victim were at home having an argument about their relationship. The appellant asked her to list two things he did not know about her. He said words to the effect of “You better tell me something good or you will get it”. She told the appellant that she had sent a voice recording of him abusing her over the phone to her work email account. The appellant told her to get in their vehicle as they were going to her workplace. They went to her workplace and the appellant deleted the email containing the abusive voice recording. He also asked whether there was anything else he should know. The victim became very scared and told him about the disc containing the photographs that she took of her injuries after the two previous incidents. The appellant picked up the disc and broke it in front of her.

Series D – January 2018 (CC2019/5480, CC2019/5481 and CC2019/5484)

Between 26 and 27 January 2018, the appellant arranged for the victim and himself to have sexual intercourse with another couple at the other couple’s residence. The appellant claimed that the victim was disrespectful as she did not obey him which made him feel inadequate. The appellant and the victim left the couple’s house a short time after this.

While they were in their car the appellant said “You’re done”. When they returned home, the appellant hit the victim with a small bag that had a box inside it, resulting in her cheek being cut and a scar that was still noticeable in 2019. This is the offence of assault occasioning actual bodily harm (Charge 7: CC2019/5480). The appellant told the victim that she had to sleep in the garage like the dog she was. She was so terrified of him that she did as he told her to and slept in the garage on top of a foldout mattress.

During the night, the appellant came into the garage and yelled at the victim words to the effect that she was a “horrible human and a dog who wasn’t even worth being pissed on”. He kicked and slapped her as she was huddled up on the mattress on the floor. This is the offence of common assault (Charge 8: CC2019/5481).

After a few hours, the appellant returned to the garage and dragged the victim out of the garage into their ensuite. He told her he was going to make her ugly so that no one would want her. He yelled at her to shave her head. She was crying and tried to reason with the appellant but he kept yelling at her to shave her head. She picked up the hair clippers and put on a clipper guard that would have left some length of hair when used. The appellant told her to take the guard off. She turned on the clippers and slowly began to shave her head. The appellant to told her to shave more quickly. He grabbed her hands and made them move more quickly over her head. This hurt the victim as it pulled out her hair instead of shaving. At the end, the appellant told her that she did not deserve to have nice long hair. The shaving of her head is the offence of common assault (Charge 9: CC2019/5484).

The next day, the victim told her daughter that “Dad made me shave my hair and told me to tell people that I did it because I have a friend with cancer”. She appeared very tired and had a bruised eye and swollen face. Her daughter knew that the victim did not have a friend with cancer and was worried about her.

Series E – November 2018 (CC2019/6244 and CC2019/6245)

Between 2 and 3 November 2018, the appellant yelled at the victim in relation to something while he was slapping her on the face and pushing her on the chest with his fingers. This is the offence of common assault (Charge 11: CC2019/6244). She sat on the end of the bed not moving out of fear of the appellant. The appellant used such force against her, either in a push or a slap with his hands, that she fell off the bed and hit her head against the bedframe. This resulted in a large laceration near her left eyebrow. Pushing her from the bed constitutes the offence of assault occasioning actual bodily harm (Charge 10: CC2019/6245). The victim began to cry, which was something the appellant hated. He pushed her toward the bathroom so she could wash the blood off her face.

As the victim came back into the bedroom someone else attempted to come inside the room. The appellant told her to get into the walk-in wardrobe. When she started to crawl towards the wardrobe, she hit her head on the door frame and cut her forehead. She was crawling because she had a broken foot at the time. The victim hid in the wardrobe and when she came out the appellant said to her “Make sure you remember that I never did that one. That was all you, but you deserved it.” About 12 hours after the incident, she attended the Belconnen walk-in centre to have her injuries examined.

Series F – February 2019 (CC2019/5485)

On 30 January 2019, the victim arrived home from work and had an argument with the appellant. At about 9pm that day, she got in her vehicle and left the house. She slept in the vehicle at a truck stop on the Federal Highway.

At 6am the next morning, the appellant called the victim and said words the effect of “I have shown everyone who you really are. Check your work emails.” The victim used her mobile phone to check her emails. The appellant had sent sexually explicit images and comments about her to her co-workers’ email accounts at the Australian Defence Force (ADF) as well as other family friends. The victim was devastated. This constitutes the offence of non-consensual distribution of intimate images (Charge 12: CC2019/5485).

The submissions on behalf of the prosecution before the magistrate described the contents of the images as follows “a photo of the lower half of the victim’s body showing her vagina” which was pornographic in nature, “the victim in lingerie” and “the victim participating in sexual intercourse”. There was no contest about the nature of the images before the magistrate. Although the appellant submitted that I should view the images myself, in circumstances where there appears to have been an agreed description before the magistrate, where the magistrate did not view the images and where nothing has been pointed to which would suggest that the description relied upon before the magistrate was inaccurate, I did not consider it necessary to view the images in order to sentence the appellant.

The appellant told the victim to pick him up from Watson and take him in to his workplace. While she was driving, the appellant he told her that she deserved what she got and that if she had not left him the night before, then it would not have happened.

As a result of this conduct, the victim was subject to a workplace investigation by the military police of the ADF. No action was taken against her as a result of that investigation.

Series G – March 2019 (CC2019/6242 and CC2019/6243)

The appellant and the victim separated on 30 January 2019. The victim and their two children, who were aged 16 and 11 at the time, moved out of their residence. They moved into premises in Gungahlin.

At about 5am on 22 March 2019, the appellant entered the backyard of the victim’s address in Gungahlin. It was surrounded by a 6-foot-tall timber fence with a matching gate. On the property was a house and garage. The house was dark. The appellant was not welcome at that residence. The entry onto the premises constitutes the offence of trespass (Charge 13: CC2019/6242).

While at the residence, the appellant looked into the window of the garage and saw a car that he did not recognise parked inside. He banged on the window and yelled “Whose fucking car is this, [name of victim]!” The victim was woken by the noises of banging and yelling coming from her backyard and went into the kitchen. She saw her daughter walk into the hallway. She recognised the voice that she had heard to be that of the appellant. Her daughter was terrified that the appellant had caused damage to their property and would enter the residence, so she called 000 for police to attend the location immediately.

The appellant pulled the flyscreen and its frame off the window. He then pulled on the glass window and metal frame causing the metal chain holding it in place to snap. He put the glass window and the metal frame on the ground then fled the area. The damage to the metal chain constitutes the offence of damaging property (Charge 14: CC2019/6243)

A short time later, police arrived at the location and spoke with the victim and her daughter. Police took photographs of the damaged window and flyscreen in the backyard. Neither the victim nor her daughter provided a statement to police at that time. Later that day, the victim attended the Australian Capital Territory (ACT) Magistrates Court and was granted an interim FVO. The FVO contained prohibitions on the appellant being at certain premises including those where the victim lived and worked, except in certain circumstances. It also prevented him from contacting her except in certain circumstances.

Series H – March – April 2019 (CC2019/6234 and CC2019/6235)

On Sunday, 24 March 2019 the appellant was personally served with the FVO that had been made on 22 March 2019. Between that day and Friday, 26 April 2019, the appellant sent 280 SMS messages and made 75 phone calls from his mobile phone to the victim’s. None of these communications were for the permitted purposes for contact under the FVO.

For example, on 30 March 2019, the appellant sent the victim text messages which included:

(a)“I want a divorce from you arsehole”;
(b)“Are you going to police now you little snitch? Give me a reason not to turn my back on you all?”;
(c)“12 myth AVO, screw you”;
(d)“R u going to tell police I contacted u?”;
(e)“Just answer, send to San, r u going to fuck me over now with cops? Y/N & if you don’t want me will u lodge divorce immediately Y/N Send answers to both questions to Sam’s ph please!”;
(f)“Were you with the kids? Where were u going on ur sat night?”;
(g)“U said would stay true to me. If your dating I want to know, I might as well get out there and date to, were u with kids y/n?”;
(h)“Ur on a date aren’t u?”; and
(i)“Saturday night driving toward wooden? Tell me please?”

The appellant continued to send text messages with similar content to the victim until he was arrested at about 5:45pm on Friday, 26 April 2019. Police subsequently obtained from the victim’s phone, call logs and text messages sent from the appellant.

This conduct constitutes a contravention of the FVO (Charge 16: CC2019/6235) and the charge of stalking (Charge 15: CC2019/6234).

Series I – April 2019 (CC2019/4860 and CC2019/4861)

At 2:30pm on 26 April 2019, the appellant called ACT police, identified himself and stated that he had an order preventing him from attending the victim’s address. He requested that police accompany him to the address so that he could see as children or amend the conditions of the order. Police advised the appellant to seek legal advice or contact the courts if he wished to change the content of the order but made it clear that he must not attend the address as it would be an offence to do so.

At 4:36pm, the victim left her residence with her daughter to collect her son. She locked the house including securing the rear gate with a padlock.

At 5pm that day, the appellant entered the rear yard of her house. The victim was notified that the motion sensors of her CCTV system had been activated. She could observe the CCTV footage even though she was not at home at the time. She watched a live feed of the CCTV and saw the appellant enter the garage. At 5:19pm, she sent a text message to the appellant, asking him to leave the residence or she would call the police. At 5:23pm, she called the police and told them he was in her garage. At 5:44pm, police attended the premises and entered the garage. They located the appellant lying face-down behind a parked vehicle in the garage. The appellant was arrested. The appellant’s presence on the premises constitutes the charge of trespass (Charge 18: CC2019/4861) and a breach of the FVO (Charge 17: CC2019/4860).

Series J – April 2019 (CC2019/5156 and CC2020/12122)

On 30 April 2019, the appellant was held on remand at the Alexander Maconochie Centre (AMC). At 1:22pm, the appellant made a phone call to his brother, Samuel O’Rielly. During that call he indicated to his brother that the best thing that could happen would be for the FVO to be dropped. He asked his brother to go and sort it out today and said he needed “her” help. He asked his brother to spread the word to his family that he was back on medication and that the psychiatrists there were helping him. He said:

Alright, so Sam please remember, go back this afternoon and just say to her, he loves you dearly, he said he swears to God he will never ever do anything wrong ever again, right? He is back on medication and please drop the order right now because if she doesn’t, I’m not going to be able to get through this. And once the order is dropped then you and her can come and visit me. Please?

Following that call, Mr O’Rielly called the victim and told her that he had been speaking with the appellant, that he had said that he loved her and the kids and had asked her to lift the order.

The conversations between the appellant and his brother and subsequently his brother and the victim involved a breach of the FVO because the appellant used a third person to contact the protected person (Charge 19: CC2019/5156). The importuning of the victim to drop the order constituted the attempt to pervert the course of justice (Charge 20: CC2020/12122).

Series K – May 2019 (CC2019/6237, CC2019/6240, CC2019/6241 and CC2020/12121)

On 14 May 2019, police executed a search warrant at the appellant’s brother’s house. They conducted a recorded interview with his brother who admitted to having asked the victim to withdraw the FVO against the appellant. He told police that he did not know what the conditions of the FVO were. Police explained to him the conditions and that he was not to contact the victim on behalf of the appellant. The appellant’s brother told police that he understood and would not be contacting the victim again.

On 20 May 2019, police conducted a second evidence-in-chief interview with the victim. She said that the appellant’s brother had recently given her two letters that were from the appellant. They had been given to the appellant’s brother when he was visiting the appellant in the AMC. The appellant’s brother had visited the victim’s house on 16 May 2019 and had given her a six-page letter from the appellant. In the letter the appellant:

(a)referred to the family violence charges that had been laid against him;
(b)sought information about the evidence that had been provided to police;
(c)requested that the victim provide a statutory declaration withdrawing her complaint against the appellant;
(d)advised that if she did so then the appellant would reconcile the relationship; and
(e)said that if he was convicted and incarcerated, he would hang himself in jail.

This letter constitutes the attempt to pervert the course of justice (Charge 22: CC2020/12121). The sending of this letter also constitutes a breach of the FVO (Charge 21: CC2019/6237).

The second letter was given to the victim on 20 May 2019, when she attended the appellant’s brother’s house in Palmerston. The appellant’s brother told the victim “Sonney needs my help to do things for him while he is in jail, but I can’t so he’s asked for you to help too”. He handed her the letter. The letter:

(a)apologised for the appellant’s behaviour and his ‘ice’ addiction;
(b)said that he was now being medicated and felt more clear headed;
(c)said that he was sorry and responsible;
(d)advised that if she withdrew her complaint to police, he would reconcile the relationship; and
(e)instructed her to remind his brother that the letters “never existed” and to return them to his brother after she had read them.

The appellant’s brother was subsequently arrested and charged with two offences.

The sending of the letter on 20 May 2019 constitutes a breach of the FVO (Charge 23: CC2019/6240) The sending of the two letters on 16 May 2019 and 20 May 2019 also constitutes the offence of stalking (Charge 24: CC2019/6241).

Series L – August 2020 (CC2020/10745)

At 12:16am on Saturday 8 August 2020, the appellant emailed his brother. The subject of the email was “Farewell”. The email requested his brother to contact the victim. That email included:

Hi Sam,
I just cannot go on.
Please tell [the victim], I feel she forgot the real me, I am in excruciating emotional pain, hence my erratic behaviour with [his daughter] and reaction to hearing about her dream.
Please tell [the victim], I love her with absolutely all my heart, mind, body and soul, and will for eternity, even though she does not love me.
Love to you all.
Sonney

The appellant’s brother did not contact the victim. The appellant’s communication with his brother constitutes an attempt to contravene the FVO (Charge 25: CC2020/10745).

Series M – August 2020 (CC2020/10405, CC2020/10674 and CC2020/10676)

On 24 July 2020, the interim FVO that had been granted on 22 March 2019 was extended. At 4:12pm on 28 July 2020, that extended order was served on the appellant at the AMC and the conditions explained. It contained conditions prohibiting the appellant from contacting the victim except in certain circumstances. It also contained a condition preventing him from engaging in behaviour that constituted family violence towards the victim or causing someone else to contact her unless permitted by the order.

On 29 July 2020, the appellant requested staff at the AMC to be given access to his children’s contact details so that he could communicate with them. His daughter accepted the request from AMC staff to be in contact with the appellant.

On 6 August 2020, the appellant sent an email to his daughter’s email address asking if she could contact him. The appellant and his daughter proceeded to exchange a couple of emails.

On 13 August 2020, the appellant sent a long email to his daughter’s email address which was addressed to the victim. His daughter forwarded it to the victim. The letter included:

Hi Sweetheart,
At some point, someone is going to have a conversation regarding the validity of the correspondence between us, if this has not occurred already. Before all further communication is put to a stop by those people, I would like to leave you with these last few words.
I forgive you raggamuffin, baby, I miss you, and I will make it through,
Your friend, husband, protector, yes, protector, as you don’t know me, you won’t understand.
Forever yours.
Sonney

On 13 August 2020, the appellant emailed his daughter again with another email addressed to the victim. The daughter emailed it to the victim. The email included:

Hi Baby,
I am appalled, I never thought this was you, but look what you did behind my back with so many other guys, I know alot [sic] more than you could imagine, and all I wanted was for you to love and only want me, physically, spiritually, intimately.
Do you recall our last Gold Coast holiday in Jan 2016, we went and saw ‘Daddy’s Home’, you and I were so in love.
You could choose to remove your order so we could communicate as responsible parents, but Im [sic] guessing you have made things so bad to this point, your [sic] probably dead set on exercising judgment that is centred on what you and only you want, not what is good for these kids or me.
I love you [name].
Sonney

On 14 August 2020, the appellant emailed his daughter’s email address again. The email was addressed to the victim. His daughter forwarded it to her mother. The email included:

There is a detailed list of things in addition to the drives which Bowen will make contact about after I receive my gaol sentence.
Have a wonderful life, I feel it is best that there be no direct or indirect contact between you and I for the remainder of our lives,
Thank you for spending so many wonderful years with me.
I love you deeper than the deepest of oceans, I could never describe how I feel about you.
Truly and most sincerel [sic] yours, now and forever.
Love Sonney

Later on the same day, the appellant emailed his daughter again. Once again, the email was lengthy and addressed to the victim. His daughter forwarded the email to her mother. The email included:

Hi Baby,
Im [sic] sure you do not like me calling you that anymore, but I am true to my heart and feelings, and you remain my baby, I still love you with all my heart,
My transformation, permanently, is my way of honering [sic] the privilege I held to be your husband, lover, friend, father to your children.
I am so sorry sweetheart, but I just cannot put a step toward breaking this one last marital vow that you and I have not on some level together, broken before God.
Your Friend, still husband, and most loving admirer.
Sonney

A few minutes later, the appellant emailed his daughter the same email again.

The next day, the appellant emailed his daughter again. The email was lengthy and addressed to the victim. His daughter forwarded the email to the victim. The email included:

Hi Baby,
You are a beautiful soul, irrespective of how you expressing your feelings and behaving right now. I love you, and as I understand the situation, I am saying goodbye to you, and again, ask that you please refrain from using this email account or the mobile now, and into the future should you wish to genuinely contact me yourself at any point.
I love you with all my heart.
Goodbye.
Sonney

On the evening of 15 August 2020, the appellant emailed his daughter’s email address again. The email was lengthy and addressed to the victim. His daughter forwarded the email to her mother. The email included:

Hi Baby,
I know how much you hate my guts, I get that, and can understand why. You can continue to feel that way indefinitely and keep pushing me further and further away, abuse me, express your hate toward me, thats fine, however, it won’t make any difference to me now or at any time in the future to how I feel about you, I do and always will genuinely love you, adore you, and miss you, and I will be right there for you if your feelings change, for the foreseeable future anyway.
I love you with all my heart. I sincerely wish you the absolute best with your life and I do hope to reconnect with our children.
Goodbye.
Sonney

On 18 August 2020, the appellant emailed his daughter again with an email addressed to the victim. His daughter forwarded the email to her mother. The email included:

I don’t appreciate how I am being treated by any of you.
I supported you all as a father, paid for private schools, holidays, outings, I worked my arse off to bring in an income, until I became unwell on drugs, did wrong, but nonetheless needed family help and support, instead, you all dropped me like a bag of potatoes.
I feel like I don’t know any of you anymore, my son wants nothing to do with me, my daughter is non-stop abusing me, and my wife hates my guts. All I want is to come home, to make up for my wrongdoing, but I really cannot and do not see any future that involves me being any part of what once was my family.

Get away from me, and stay away.
Have a good life on your podiums.
Sonney

The emails from the appellant between 13 and 18 August 2020 were sent in a series and without replies. They constitute the Commonwealth offence of intentionally using a carriage service to harass (Charge 27: CC2020/10674). They also constitute the offence of stalking (Charge 26: CC2020/10405) and a breach of the FVO (Charge 28: CC2020/10676).

Series N – September 2020 (CC2020/10967 and CC2020/11403)

At 4pm on 10 September 2020, the victim attended her post office box in Mitchell. Since the appellant had been remanded in custody in April 2019, she was the only person who had the key to access it. She had checked it the week before but nothing of interest had been located. On this occasion she found an envelope with the date of 7 September 2020 stamped on it. It had no addressee but appeared from the stamp and its markings to have come from the AMC. That was because the markings on it matched earlier letters sent by the appellant to his children at that post office box.

The victim opened the envelope and found two letters from the appellant. The sending of each of the two letters constitutes an offence of contravening the FVO (Charge 29: CC2020/10967 and Charge 30: CC2020/11403). Both of them were written in a manner which addressed her directly. Having read the letters, the victim felt sick and had a panic attack because of the appellant’s continued efforts to breach the FVO and stalk her despite being remanded in the AMC since April 2019. The next day, she attended City Police Station, gave police the envelope and the letters and participated in an evidence‑in‑chief interview.

Victim impact

Two victim impact statements were read to the court. The first was prepared by the victim. The second was prepared by the appellant’s daughter.

The victim impact statement prepared by the victim described a not-uncommon pattern of manipulation and control by the appellant which led her to believe that she deserved everything that happened to her. It described how she would lie to cover up what had occurred and that she lived in constant fear of how he would react to her. The victim reported her ongoing fear and what might occur when he is released from prison. She outlined the ongoing effect of his behaviour upon her and her reflexive adoption of safety measures to protect herself against his behaviour. It describes the consequences for her of the disclosure in January 2019 of the intimate images at her work and the impact of the appellant’s continuing harassment after he had been detained on remand.

The victim impact statement prepared by the appellant’s daughter demonstrated the impact that the offending had upon her as a young child in the household where she witnessed the offending or the consequences of it upon her mother. It described how the trauma of the appellant’s conduct affected her and has ongoing consequences for her. Once again, the impacts on her are consistent with what would be expected from a long‑term course of domestic violence offending.

Objective seriousness

The offending involves serious domestic violence offending. It is offending directed to the maintenance of control over the victim. It occurred in the context of a relationship where physical and emotional tools were used to maintain that control. It occurred in the victim’s home. Some of the offences directly involved the children. Others indirectly involved the children through the creation of a climate of fear. The assessment of the objective seriousness of the offending must be made with due regard to that context.

Charge 1 (series A), the offence of assault occasioning actual bodily harm, involved injuries to the victim’s neck, the area of both her eyes, her forehead, her ear, her chest, her stomach and her arms. This was in the form of scratching or bruising. While the nature of the injuries are not at the most serious end of the spectrum, the variety of injuries and the circumstances in which they occurred (domestic violence committed by a man on a woman at home) indicate that this offending is in the upper end of the mid‑range of objective seriousness for this offence.

Charge 2 (series B) involves the property damage to the desk. The damage to the desk was modest and shown in photographs that were in evidence. However, the context in which it occurred (namely in order to strike fear into the victim when she attempted to stand up) means that this conduct is at the low end of the mid-range of objective seriousness for this offence.

Charge 3 is the offence of assault occasioning actual bodily harm resulting from the appellant holding a 40 cm-long knife to the top of the victim’s head, cutting her head so as to cause bleeding from her head which ran down her face and onto her dressing gown. Having regard to the domestic violence context, it is in the mid-range of objective seriousness for this offence.

Charge 4, possessing an offensive weapon with intent, relates to the possession of the 40 cm-long knife with a curved blade. Having regard to the separate charge relating to the use of the weapon, care must be taken to confine the offending to the possession of the weapon. It relates to the possession of the knife and resting it on the top of the victim’s head immediately prior to its use. Because of the context in which the offending occurred and the proximity of the threat created by its possession, it is in the mid-range of objective seriousness for this offence.

Charge 5 (series C) is the commission of an act endangering life by strangling the victim so as to render her insensible. This offending involved grotesque abuse of the appellant’s wife, squeezing her neck with his dressing gown belt and lifting her off the ground despite her attempts to remove the belt from her neck. Notwithstanding the wide range of conduct captured by s 27(3) of the ACT Crimes Act, this offending is above the mid-range of objective seriousness for this offence.

Charge 6 is the assault occasioning actual bodily harm comprised of kicking and punching the victim on the back and face as well as slapping her to wake her up each time that she passed out during the night. Having regard to the variety of acts involved and the domestic violence context, this offending is above the mid-range of objective seriousness for this offence.

Charge 7 (series D) is the assault occasioning actual bodily harm constituted by hitting the victim with a small bag that had a box inside it resulting in her cheek being cut and some unparticularised scarring. It is at the low end of objective seriousness for this offence.

Charge 8 is a count of common assault when the appellant kicked and slapped the victim as she was huddled on the floor of the garage. This occurred immediately after the appellant verbally abused her. Having regard to the domestic violence context in which this occurred, this conduct is in the mid-range of objective seriousness for this offence.

Charge 9 is the common assault constituted by the appellant participating in shaving the victim’s head. The objective seriousness of this offending is increased by the fact that the head shaving was designed to demean and humiliate the victim. Notwithstanding that the physical acts involved were modest, it is in the mid-range of objective seriousness for the offence of common assault.

Charge 10 (series E) is a charge of assault occasioning actual bodily harm. This involved pushing the victim off the bed which resulted in her head hitting the bedframe causing a large laceration near her left eyebrow. It is at the low end of the mid-range of objective seriousness for this offence.

Charge 11 is a charge of common assault involving slapping the victim on her face and pushing her in the chest with his fingers. It is below the mid-range of objective seriousness for this offence.

Charge 12 (series F) is the charge of non-consensual distribution of intimate images. The nature of those images is described earlier in these reasons at [63]. The sharing was designed to humiliate and embarrass the victim as well as to cause her difficulties with her employer. A number of factors contribute to the objective seriousness of this offending:

(a)the number of the images (seven) and the nature of their explicit content which is described above at [63];
(b)the distribution via the victim’s email address tending to create the impression of the veracity of the communication;
(c)the extent of the distribution to both work and family;
(d)the knowledge on the part of the appellant that the distribution to her co-workers would cause significant problems for her having regard to the nature of her employer;
(e)the intention on the part of the appellant to cause harm to the victim and punish her for her conduct in leaving the house following an argument; and
(f)the context in which this occurred namely a relationship involving a course of domestic violence on the appellant’s part.

The offending is in the high-range of objective seriousness for this offence.

Charge 13 (series G) is a charge of trespass. It involved the appellant going into the premises of the victim from whom he was, at that time, separated. It involved a deliberate intrusion onto her property. It is above the mid-range of objective seriousness for this offence.

Charge 14 is a charge of damaging property. The property particularised as being damaged was the metal chain holding the window in place. The offending is at the low end of objective seriousness for this offence.

Charge 15 (series H) is a charge of stalking. The charge of stalking covers a range of different intents. In this case, it was particularised as being an intent to harass the person rather than to cause fear of harm or cause harm. It comprised the sending of text messages and the making of phone calls rather than physical acts proximate to the victim. It occurred over a month from 24 March and 26 April 2019. It is conduct in the mid-range of objective seriousness for this offence.

Charge 16 is a contravention of an FVO. Given the volume of communications, it is within the mid-range of objective seriousness for this offence.

Charge 17 (series I) arises from the appellant being on the victim’s premises after he was not only served with the FVO but had also been told by police to not attend the address. He remained on the premises after being sent a text message by the victim telling him to leave. The offending is above the mid-range of objective seriousness for this offence.

Charge 18 is the associated trespass charge. It related to residential premises and involved entry into and remaining within the garage of the premises until the appellant was arrested. It is above the mid-range of objective seriousness for the offence.

Charge 19 (series J) is a further charge of contravening an FVO. It occurred while the appellant was detained on remand at the AMC. It involved procuring the appellant’s brother to contact the victim. It involves very persistent breaching of the order but is in the low to mid-range of objective seriousness.

Charge 20 involved an attempt to pervert the course of justice by seeking to have the victim drop her FVO. It involved bringing pressure upon the victim to not pursue a claim which the appellant knew to be soundly based. It was neither sophisticated nor complex. It is in the mid-range of objective seriousness for this offence.

Charge 21 (series K) is another charge of contravening an FVO by sending the letter on 16 May 2019. It occurred while the appellant was in prison. It is in the low to mid-range of objective seriousness.

Charge 22 is a charge of attempting to pervert the course of justice. This involved an attempt to have the victim withdraw her complaint against the appellant. It involved pressuring her by that letter of 16 May 2019 in an attempt to influence the course of proceedings. It is in the mid-range of objective seriousness for an attempt to pervert the course of justice.

Charge 23 is another contravention of the FVO arising from the sending of the letter on 20 May 2019. It occurred while the appellant was in prison. It is in the low to mid-range of objective seriousness.

Charge 24 is a count of stalking. It comprises the sending of the two letters on 16 and 20 May 2019 while the appellant was in custody. It is particularised as being with the intent to harass. It is in the low to mid-range of objective seriousness for the offence.

Charge 25 (series L) is an attempt to contravene an FVO. It involved an attempt to get the appellant’s brother to contact the victim. It is in the low to mid-range of objective seriousness.

Charge 26 (series M) is another charge of stalking. This arises from the sending of multiple communications between 12 and 19 August 2020 with the intent to harass the victim. It was achieved through contact made via the appellant’s daughter. Given that and the volume of communications, it is in the mid-range of objective seriousness notwithstanding that the appellant was detained on remand during the period.

Charge 27 relates to the same communications. It is the offence of using a carriage service to harass. The offence provision covers communications which are menacing, harassing or offensive. This conduct involves multiple communications but the nature of those communications are such that it falls in the low to mid-range of objective seriousness for this offence.

Charge 28 involves the same conduct which amounts to a breach of the FVO. Given the volume of material, the conduct is in the mid-range of objective seriousness for this offence.

Charges 29 and 30 (series N) involve contraventions of the FVO. They relate to the two letters sent to the victim in September 2020. The conduct is in the low to mid‑range of objective seriousness in each case.

Subjective circumstances of the appellant

Personal circumstances

The appellant’s personal circumstances are recorded in the report of Mr Sutton dated 14 July 2020, as well as a relatively brief pre‑sentence report.

The appellant is 45 years old. He has a brother who was diagnosed with paranoid schizophrenia and died from an accidental overdose of drugs in 2011. He has another older brother who has paranoid schizophrenia. He has a younger brother with schizophrenia who was or had been in jail. He said he had a sister diagnosed with borderline personality disorder and another sister who suffered from anorexia.

He had a traumatic childhood which included physical and sexual abuse, neglect and witnessing violence. His parents separated soon after his birth and he lived with his grandparents until the age of five. He then moved away from his mother and father and recalls time spent with strangers. From the age of 11, he resided with his mother although he would spend time with a school friend who had been kicked out of home. He described a history of sexual abuse involving numerous family members.

The appellant completed Year 12. He was in the army between 1997 and 2000. In 2001, he transferred to the Air Force. He undertook a Bachelor of Nursing and a postgraduate diploma in advanced clinical nursing. In 2010, he completed a Master of Nursing degree. He has been employed as a nurse in New South Wales, Victoria, Tasmania, Queensland and the ACT. He has primarily been in mental health services. At the time of the offences, he was a nurse manager with the ACT Health at the Gungahlin Adult Community Mental Health Team. He was removed from clinical duties in 2020.

The appellant is no longer in contact with his father. He has some contact with his mother who suffers from dementia.

He met the victim of the offending when they were in high school. He has two children who were aged 17 and 12 at the time of his arrest.

Mr Sutton recorded that if the history that was reported to him was accurate then the relationship with his wife was “quite dysfunctional”. It is not necessary for the purposes of sentencing him to make specific findings about the history of the appellant’s relationship with his wife.

The opinion of the author of the pre-sentence report was that he had been assessed as having a high risk of general reoffending, the primary risk factors being illicit substance use and mental health issues. However, the report did also note protective factors being community supports, strong employment history and a lack of prior convictions.

Mental Health

The appellant has a history of being diagnosed with bipolar disorder. He was addicted to methamphetamine from 2016 until his arrest in 2019.

A letter from Dr John Saboisky dated 13 August 2009 provides a history of the appellant’s health and mental health circumstances at a time well prior to his offending and hence unlikely to be coloured by self-interest.

The letter records that the appellant’s work at that time was at the Belconnen Mental Health team as a registered nurse. Dr Saboisky records the “very straightforward history of bipolar disorder beginning when he was sixteen years of age with a depressive episode” and a manic episode at the age of 18. The appellant was in the army from age 19 until 24. He was knocked out during a football game and had a significant head injury. He became depressed in 1999 after a friend committed suicide.

The appellant was depressed in the period from 2001 to 2003 although he did have episodes of mania as well. In 2003, he was depressed to the point of suicide and in 2005 he had a hypomanic episode. He was diagnosed with depression in 2006 and was treated with medication but this caused agitation. He saw a psychiatrist in Newcastle who correctly diagnosed him as suffering bipolar disorder and put him on lithium. This was recorded by Dr Saboisky as having “turned his life around”. He recorded that the appellant had been assaulted in December 2008 which led to his left wrist being crushed.

The appellant reported the mental health issues in the members of his family. Dr Saboisky said that he found the appellant to be “a very pleasant euthymic man” and did not alter his treatment. He recommended that the appellant have bloods taken (presumably for his lithium levels and to assess his renal and thyroid function) and indicated that he would see him again.

The status of the appellant’s mental health soon after he was remanded in custody is described in a letter from Dr Bree Wyeth, a psychiatrist at “Mental Health Services” at the AMC dated 6 May 2019. She referred to the diagnosis by Dr Saboisky of bipolar disorder. She recorded that the appellant had “stopped taking his medications in recent months” but that he had restarted taking medications he had previously “had a good response to”, he “has made a sound early recovery”.

Mr Sutton’s report is significant because it was prepared for the purposes of the sentencing proceedings. He records that the appellant was referred for psychological assessment “specifically for any effects from a past history of two traumatic brain injuries and a period of epilepsy”.

Mr Sutton had been provided with reports or letters as follows:

(a)Dr Frank Spruce, dated 28 November 2008;
(b)Dr John Saboisky, psychiatrist, dated 13 August 2009; and
(c)ACT Health notes from 27 April 2019 until 11 May 2020.

Dr Spruce had made a provisional diagnosis of bipolar disorder with depressive episodes. He pointed out that Dr Saboisky recorded “a very straight forward history of bipolar disorder beginning when he was 16 years of age”. He also referred to the fact that Dr Saboisky had recorded the history of a significant head injury during a football game. The ACT Health notes provided to Mr Sutton recorded that “his manic and psychotic symptoms in recent weeks and months contributed to his offending behaviour”. They recorded that the appellant’s psychotic symptoms had settled quickly after reception into custody. They recorded that lithium was the most effective mood stabiliser. They recorded that the appellant has a significant family history of mental illness including bipolar disorder and schizophrenia and that he was diagnosed with bipolar disorder and his psychotic symptoms resolved with medication.

Mr Sutton recorded that the appellant had “very severe comorbid depression and anxiety disorder (both general and traumatic anxiety), with significantly elevated suicidal ideation”. He said that the manic component of bipolar disorder was well‑controlled at the moment. He said that the severe anxiety and depression was not currently managed and therefore the appellant remained a suicide risk. He said there were no current symptoms of psychosis or issues with illicit drugs. He said that the emotional containment which prison provides is therapeutic. He said that the appellant’s levels of anxiety and depression and dependence upon relationships for his sense of self and identity placed him at risk of decompensation (“A breakdown in an individual’s normal psychological defense mechanisms resulting in a progressive loss of normal functioning or worsening of psychiatric symptoms.”)

In relation to traumatic brain injury, Mr Sutton said there was no evidence for disruptions to cognition as a result of two concussive episodes in 1998.

In response to being asked whether, at the date of his assessment, the appellant suffered from a mental impairment and whether he would continue to suffer from a mental impairment in the future, Mr Sutton said that the appellant suffered from anxiety and depressive disorders with an underlying controlled bipolar or manic‑depressive psychosis disorder. Those were independent to any additional drug induced psychosis and were permanent disorders always requiring management.

Mr Sutton appears to have been asked about the appellant’s state of mind in relation to various identified incidents (presumably some or all of those subject to the charges). In relation to that he said:

… I cannot comment on Mr Morrison’s past state of mind in reference to each incident. I can say:
a. There was no impairment of reasoning arising from his history of traumatic brain injury, as there is no present evidence for sustained cognitive dysfunctions due to brain damage.
b. My current assessment shows Mr Morrison is vulnerable to decompensation… including into manic episodes and psychosis. This is separate from methamphetamine use, which will also cause psychosis.

The report includes the following under “History of Offences”:

Aside from one offence in 2011, there were a series of incidents between 2016 and 2019. Mr Morrison notes that in his lengthy deposition on these offences, he actually has little memory of events due to his prolonged psychosis.
He reports suffering psychotic symptoms since 2006. He felt he “unravelled” in 2016 where he was having some cannabis but also changing his medication caused by kidney dysfunction. Whilst changing medications he deteriorated. At the time he was managing the northern area of Canberra’s mental health team. He became manic, disinhibited, socialised excessively and was then introduced to methamphetamine by a friend. He took the latter intravenously and was immediately addicted. From 2016 his memory is poor for subsequent events. He managed for quite some time by taking excessive Seroquel (up to 1g) to help with sleep and stabilise, then work and become hypomanic again. During this period he suffered recurrent severe delusional psychoses. These occurred from September 16 to April 19. His workplace became concerned and stood him down from his normal duties.

I assume that this history was given to Mr Sutton by the appellant.

Mr Sutton records:

His self-identity is poorly established, and harsh self-criticism and severe self-doubt seem characteristic. His self-perception will tend to vary as a function of the current status of close relationships; apart from a sense of identity established from such relationships, he likely feels incomplete, unfulfilled, and inadequate. As a result, his self-esteem is quite fragile and is likely to plummet in response to slights or oversights by other people.

In summary, the evidence establishes that the appellant suffers from bipolar disorder and that condition is well-treated with medication. It indicates that he had stopped taking his medications prior to his arrest. Precisely when this occurred is not disclosed. There is no expert evidence which indicates that particular offending behaviour was the result of the bipolar disorder as opposed to the taking of methamphetamine or other reasons. The evidence relating to the appellant’s mental health is not sufficient to establish, on the balance of probabilities, a causal link between that condition and his offending which would reduce his moral culpability. Nor is it sufficient to indicate that imprisonment would be more burdensome upon him than a person without his condition. The evidence is, however, a relevant and significant part of his subjective circumstances.

References

Three character references were tendered from persons who had worked with the appellant at Mental Health ACT. Each of those were given with knowledge of his offending behaviour. One was from a nurse, one from a consultant psychiatrist and one a person holding a clinical manager position. Each expressed the opinion that the appellant had performed at a high level in a difficult job.

That the appellant was able to perform at a high level as a mental health nurse, get on with his colleagues and demonstrate skill, professionalism and compassion when dealing with clients while working in the Belconnen and Gungahlin mental health teams tends to emphasise the gravity of the offending conduct. That is because it is conduct engaged in by a person who, notwithstanding his background, was able to function well in a professional context yet behave appallingly in a domestic context where his conduct could not be readily scrutinised.

Certificates

11 certificates were tendered which demonstrate the appellant’s completion of programs of varying length while in custody. I accept that the appellant is participating in the programs available at the AMC and is making the best use of time possible in the circumstances.

20-page statement

The appellant provided a 20-page statement to the author of the pre-sentence report. It was tendered by the prosecution at his sentencing hearing in the Magistrates Court. It is a very long and detailed description of his life, his relationship with the victim and the circumstances of the offending. Most of the information in it was not repeated by the author of the pre-sentence report to whom it was provided by the appellant. It was not the subject of oral evidence before the Magistrates Court. As a result, there was no opportunity for the prosecution to test its accuracy. Only very limited reference was made to it in submissions before the Magistrates Court. It must be treated with considerable caution. I accept that it establishes that the appellant had a disrupted upbringing in which he was victim of abuse as described earlier. Insofar as it describes his relationship with the victim, his state of mind or mental health condition, because of the caution with which such material must be treated and the potential for it to be inaccurate and self-serving, I do not make any findings on the balance of probabilities based on this material.

Pleas of guilty

In relation to the offending the subject of charges 1-24 (series A-K) the appellant initially pleaded not guilty but then pleaded guilty following preparation of the prosecution brief. In my view, a reduction in his sentence of approximately 15 percent is appropriate in relation to these charges where a custodial sentence is imposed. In relation to fine-only offences, the plea of guilty will be taken into account.

In relation to charges 25-30 (series L-N), the plea of guilty was entered at the first available opportunity. A reduction of approximately 25 percent in the custodial sentence that would otherwise have been imposed is appropriate.

Resentence

The offending in this case involves the sustained use of violence against a female domestic partner of the appellant as a component of the manipulation and control exercised over her. It involves serious examples of domestic violence.

The approach to sentencing for domestic violence offences is summarised in the authorities referred to by Johnson J (with whom Hunt AJA and Latham J agreed) in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [67]-[78]. In that case, Johnson J said (at [86]):

86In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.

Similarly in Cherry v R [2017] NSWCCA 150 at [78], Johnson J said

18In R v Kilic (2016) 91 ALJR 131; [2016] HCA 48, the High Court observed at 137 [21] that current sentencing practices for “offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations”. It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.

In light of these statements, while each of the purposes of sentencing is relevant, denunciation, making the appellant accountable, recognition of harm done to the victim of the crime and the community as well as general deterrence are all very important sentencing considerations in a case such as this.

So far as the prospects of rehabilitation are concerned, the picture is a difficult one. Notwithstanding apparent acceptance of the wrongfulness of his conduct, the submissions of the appellant and his 20-page statement seek to shift a degree of responsibility for his offending to the conduct of the victim. Given the absence of evidence given on oath or affirmation and the caution with which the unsworn statements of the appellant must be treated, it is not possible to reach conclusions about the history of his relationship with the victim. It is very difficult to assess the appellant’s prospects of rehabilitation, largely because the behaviours evidenced in the offending in this case reflect controlling and manipulative conduct which is of a nature that is likely to be entrenched. That conclusion is reinforced by the complex background of the appellant, his mental health condition and the mix of remorse and victim blaming demonstrated by the material before the court. It is not possible to reach a conclusion that his prospects of rehabilitation are anything other than guarded. As a consequence, the need for specific deterrence also remains a significant sentencing consideration.

The objective seriousness of the offending has been examined earlier in these reasons. The subjective circumstances of the appellant involve a difficult childhood, an underlying mental health condition, a significant work history and an absence of prior offending.

The relationship between his mental health condition, his methamphetamine use and his offending is unclear. Before the magistrate, counsel for the appellant expressly disavowed any reliance upon the principles in R v Verdins [2007] VSCA 102; 16 VR 269. In this court, the appellant accepted that he was to be resentenced in this court even if this meant abandoning an opportunity to reopen the factual basis for sentencing in relation to his mental health. It is clear that in the period from 2016 until his arrest he was using methamphetamine. He remained in responsible and senior employment with the ACT government. The evidence does not establish on the balance of probabilities the relationship between his use of methamphetamine, his suffering from paranoid delusions, his failure to take medication for his bipolar disorder and his suffering the symptoms of that disorder. In those circumstances, he is to be sentenced on the basis that his underlying mental health condition is a significant part of his subjective circumstances but not one which reduces his culpability for the offending.

The threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) is clearly passed in relation to each of those offences which carry a custodial penalty.

Sentence structure

There are a number of statutory provisions which influence how the overall sentence must be structured.

Section 19(3) of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act) requires that when both Territory and Commonwealth offences are dealt with the same sitting, no federal sentence may commence later than the end of the last Territory sentence and if a federal sentence commences after the end of a Territory non-parole period, then it do so immediately following the end of that period. The Commonwealth offence which carries a custodial sentence is Charge 27 (CC2020/10674). This is most easily dealt with by imposing the sentences for that series of offending near the start, notwithstanding that this will be out of the chronological order of offending.

A number of the sentences to be imposed fall within the definition of an “excluded sentence of imprisonment” in s 64(2) of the Crimes (Sentencing) Act. That is because they will be sentences of imprisonment imposed for an offence committed while in lawful custody: s 64(2)(e). The offences which fall into this category are Charges 19 and following (series J-N). This means that Pt 5.2 of the Crimes (Sentencing) Act which relates to the imposition of non-parole period is does not apply in relation to those sentences: s 64(1)(a). While that means that the provisions relating to non-parole periods do not apply, Pt 5.2 does not affect the capacity of the court to structure a sentence in a manner which permits a non-parole period to be set for other offences and which allows a structured return of the appellant to the community on parole.

Another consequence of offences being committed in lawful custody is that s 72 of the Crimes (Sentencing) Act alters the default rule in relation to concurrency or cumulation. Unless a direction is made under s 72(3), the sentences for the offences committed while in lawful custody must be cumulative upon other sentences imposed in the same proceedings. Although the default rule relating to cumulation and concurrency is altered, there is no threshold requirement before a direction under s 72(3) may be made except in the circumstances referred to in s 72(4), which are not applicable here. The specification of start and end dates which involves concurrency or cumulation is sufficient to amount to such a direction: Ndlovu v The Queen [2018] ACTCA 33; 336 FLR 307 at [31], although specific reference to the issue in a direction will make it clear that the different rule in s 72 to that under s 71 has been addressed.

It is also necessary to have regard to considerations of totality and this will influence the overall sentence structure by requiring a degree of concurrency to be introduced in order that the total sentence be an appropriate one to meet various purposes of sentencing.

The sentence which I will impose involves the following general structure. The sentences for those series of offences which were committed in custody (series J-N) in relation to which there can be no non-parole period set will be imposed first. This also means that the Commonwealth offence (which is part of series M) will be imposed in this part of the overall sentence, allowing s 19(3) of the Commonwealth Crimes Act to be complied with. No recognizance release order is required to be made in relation to the Commonwealth offence because it is a sentence that does not exceed six months: Commonwealth Crimes Act, s 19AC(3). A direction will be made that there be a degree of concurrency between the sentences notwithstanding the default rule in s 72 of the Crimes (Sentencing) Act. A non-parole period will be set in relation to those Territory offences for which a non-parole period may be set. The length of that non-parole period will be determined having regard to the overall sentence to be imposed rather than simply those Territory offences for which a non-parole period may be set. That is done in order to ensure that there is an appropriate relationship between period of the sentence which is spent in full-time custody and that which is on probation in the community.

Section 15A of the Commonwealth Crimes Act picks up the law of the Territory relating to the enforcement of fines in so far as that is not inconsistent with a law of the Commonwealth. It picks up s 116C(3) of the Crimes (Sentence Administration) Act 2005 (ACT) that provides that the penalty notice for a fine must state the amount of the fine and the due date for payment. In order to be consistent with the requirements for enforcement, I will therefore specify the period in which payment of the fines must be made.

The appellant will be sentenced as set out in the following table. The table includes the sentence actually imposed as well as the starting point prior to the application of a reduction on account of the plea of guilty.

Series	Charge number	Charge	Starting point	Sentence	Start and end dates
J	19	CC2019/5156: contravene FVO (contrary to s 43(2) of the Family Violence Act)	Five months’ imprisonment	Four months and seven days’ imprisonment	26 April 2019 – 1 September 2019
J	20	CC2020/12122: attempt to pervert the course of justice (contrary to s 713(1) of the ACT Criminal Code by virtue of s 44 of the ACT Criminal Code)	12 months’ imprisonment	10 months’ imprisonment	26 June 2019 – 25 April 2020
K	21	CC2019/6237: contravene FVO (contrary to s 43(2) of the Family Violence Act)	Five months’ imprisonment	Four months and seven days’ imprisonment	26 February 2020 – 2 July 2020
K	22	CC2020/12121: attempt to pervert the course of justice (contrary to s 713(1) of the ACT Criminal Code by virtue of s 44 of the ACT Criminal Code)	12 months’ imprisonment	10 months’ imprisonment	26 April 2020 – 25 February 2021
K	23	CC2019/6240: contravene FVO (contrary to s 43(2) of the Family Violence Act)	Five months’ imprisonment	Four months and seven days’ imprisonment	19 May 2020 – 25 September 2020
K	24	CC2019/6241: stalking (contrary to s 35 of the ACT Crimes Act)	Eight months’ imprisonment	Seven months’ imprisonment	26 February 2020 – 25 September 2020
L	25	CC2020/10745: attempt to contravene FVO (contrary to s 43(2) of the Family Violence Act)	Five months’ imprisonment	Three months and 21 days’ imprisonment	26 December 2020 – 15 April 2021
M	26	CC2020/10405: stalking (contrary to s 35 of the ACT Crimes Act)	Eight months’ imprisonment	Six months’ imprisonment	16 March 2021 – 15 September 2021
M	27	CC2020/10674: use carriage service to harass (contrary to s 474.17(1) of the Commonwealth Criminal Code)	Six months’ imprisonment	Four months and 15 days’ imprisonment	1 July 2021 – 15 November 2021
M	28	CC2020/10676: contravene FVO (contrary to s 43(2) of the Family Violence Act)	Eight months’ imprisonment	Six months’ imprisonment	16 March 2021 – 15 September 2021
N	29	CC2020/10967: contravene FVO (contrary to s 43(2) of the Family Violence Act)	Five months’ imprisonment	Three months and 21 days’ imprisonment	16 September 2021 – 5 January 2022
N	30	CC2020/11403: contravene FVO (contrary to s 43(2) of the Family Violence Act)	Five months’ imprisonment	Three months and 21 days’ imprisonment	26 September 2021 – 15 January 2022
A	1	CC2019/5474: assault occasioning actual bodily harm (contrary to s 24 of the ACT Crimes Act)	Six months’ imprisonment	Five months’ imprisonment	16 November 2021 – 15 April 2022
B	2	CC2019/5475: damaging property (contrary to s 403(1) of the ACT Criminal Code)	One month’s imprisonment	25 days’ imprisonment	14 October 2022 – 7 November 2022
B	3	CC2019/5476: assault occasioning actual bodily harm (contrary to s 24 of the ACT Crimes Act)	Nine months’ imprisonment	Seven months and 15 days’ imprisonment	16 March 2022 – 30 October 2022
B	4	CC2019/5477: possess offensive weapon with intent (contrary to s 381(1) of the ACT Crimes Act)	One month’s imprisonment	25 days’ imprisonment	22 October 2022 – 15 November 2022
C	5	CC2019/5478: act endangering life (choke/render insensible) (contrary to s 27(3)(a) of the ACT Crimes Act)	36 months’ imprisonment	30 months’ imprisonment	22 August 2022 – 21 February 2025
C	6	CC2019/5479: assault occasioning actual bodily harm (contrary to s 24 of the ACT Crimes Act)	12 months’ imprisonment	10 months’ imprisonment	22 October 2024 – 21 August 2025
D	7	CC2019/5480: assault occasioning actual bodily harm (contrary to s 24 of the ACT Crimes Act)	Six months’ imprisonment	Five months’ imprisonment	22 June 2025 – 21 November 2025
D	8	CC2019/5481: common assault (contrary to s 26 of the ACT Crimes Act)	Four months’ imprisonment	Three months and 15 days’ imprisonment	7 October 2025 – 21 January 2026
D	9	CC2019/5484: common assault (contrary to s 26 of the ACT Crimes Act)	Six months’ imprisonment	Five months’ imprisonment	22 November 2025 – 21 April 2026
E	10	CC2019/6245: assault occasioning actual bodily harm (contrary to s 24 of the ACT Crimes Act)	Six months’ imprisonment	Five months’ imprisonment	22 February 2026 – 21 July 2026
E	11	CC2019/6244: common assault (contrary to s 26 of the ACT Crimes Act)	Two months’ imprisonment	52 days’ imprisonment	15 June 2026 – 5 August 2026
F	12	CC2019/5485: non‑consensual distribution of intimate images (contrary to s 72C of the ACT Crimes Act)	18 months’ imprisonment	15 months’ imprisonment	6 June 2026 – 5 September 2027
G	13	CC2019/6242: trespass (contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act)	$1050 with 28 days to pay
G	14	CC2019/6243: damaging property (contrary to s 403 of the ACT Criminal Code)	Three months’ imprisonment	Two months and 15 days’ imprisonment	6 August 2027 – 20 October 2027
H	15	CC2019/6234: stalking (contrary to s 35 of the ACT Crimes Act)	Eight months’ imprisonment	Seven months’ imprisonment	21 September 2027 – 20 April 2028
H	16	CC2019/6235: contravene FVO (contrary to s 43(2) of the Family Violence Act)	Eight months’ imprisonment	Seven months’ imprisonment	21 September 2027 – 20 April 2028
I	17	CC2019/4860: contravene FVO (contrary to s 43(2) of the Family Violence Act)	Eight months’ imprisonment	Seven months’ imprisonment	21 February 2028 – 20 September 2028
I	18	CC2019/4861: trespass (contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act)	$1050 with 28 days to pay

The aggregate sentence of imprisonment is nine years, four months and 26 days.

The period of imprisonment prior to the possibility of release on parole will be the equivalent of 60 percent of the overall sentence, a period of five years and eight months’ imprisonment. However, because of the operation of s 64 of the Crimes (Sentencing) Act which precludes the setting of a non-parole period in relation to series J – N (see [177] above), the non-parole period will start on 16 November 2021 rather than at the commencement of the overall sentence on 26 April 2019. The non-parole period will therefore be from 16 November 2021 until 25 December 2024.

Orders

The orders of the Court are:

1.Appeal allowed.
2.Charge CC2019/6240 is amended by deleting “between 24 March 2019 and 26 April 2019” and inserting “on or about 20 May 2019”.
3.The sentences imposed by orders of the Magistrates Court on 17 December 2020 and 8 February 2021 are set aside and the appellant resentenced as follows:
(i)On charge CC2019/5156, contravene family violence order, the offender is sentenced to four months and seven days’ imprisonment starting on 26 April 2019 and ending on 1 September 2019.
(ii)On charge CC2020/12122, attempt to pervert the course of justice, the offender is sentenced to 10 months’ imprisonment starting on 26 June 2019 and ending on 25 April 2020.
(iii)On charge CC2019/6237 contravene family violence order, the offender is sentenced to four months and seven days’ imprisonment starting on 26 February 2020 and ending on 2 July 2020.
(iv)On charge CC2020/12121, attempt to pervert the course of justice, the offender is sentenced to 10 months’ imprisonment starting on 26 April 2020 and ending on 25 February 2021.
(v)On charge CC2019/6240, contravene family violence order, the offender is sentenced to four months and seven days’ imprisonment starting on 19 May 2020 and ending on 25 September 2020.
(vi)On charge CC2019/6241, stalking, the offender is sentenced to seven months’ imprisonment starting on 26 February 2020 and ending on 25 September 2020.
(vii)On charge CC2020/10745, attempt to contravene family violence order, the offender is sentenced to three months and 21 days’ imprisonment starting on 26 December 2020 and ending on 15 April 2021.
(viii)On charge CC2020/10405, stalking, the offender is sentenced to six months’ imprisonment starting on 16 March 2021 and ending on 15 September 2021.
(ix)On charge CC2020/10674, use carriage service to harass, the offender is sentenced to four months and 15 days’ imprisonment starting on 1 July 2021 and ending on 15 November 2021.
(x)On charge CC2020/10676, contravene family violence order, the offender is sentenced to six months’ imprisonment starting on 16 March 2021 and ending on 15 September 2021.
(xi)On charge CC2020/10967, contravene family violence order, the offender is sentenced to three months and 21 days’ imprisonment starting on 16 September 2021 and ending on 5 January 2022.
(xii)On charge CC2020/11403, contravene family violence order, the offender is sentenced to three months and 21 days’ imprisonment starting on 26 September 2021 and ending on 15 January 2022.
(xiii)On charge CC2019/5474, assault occasioning actual bodily harm, the offender is sentenced to five months’ imprisonment starting on 16 November 2021 and ending on 15 April 2022.
(xiv)On charge CC2019/5475, damaging property, the offender is sentenced to 25 days’ imprisonment starting on 14 October 2022 and ending on 7 November 2022.
(xv)On charge CC2019/5476, assault occasioning actual bodily harm, the offender is sentenced to seven months and 15 days’ imprisonment starting on 16 March 2022 and ending on 30 October 2022.
(xvi)On charge CC2019/5477, possess offensive weapon with intent, the offender is sentenced to 25 days’ imprisonment starting on 22 October 2022 and ending on 15 November 2022.
(xvii)On charge CC2019/5478, act endangering life, the offender is sentenced to 30 months’ imprisonment starting on 22 August 2022 and ending on 21 February 2025.
(xviii)On charge CC2019/5479, assault occasioning actual bodily harm, the offender is sentenced to 10 months’ imprisonment starting on 22 October 2024 and ending on 21 August 2025.
(xix)On charge CC2019/5480, assault occasioning actual bodily harm, the offender is sentenced to five months’ imprisonment starting on 22 June 2025 and ending on 21 November 2025.
(xx)On charge CC2019/5481, common assault, the offender is sentenced to three months and 15 days’ imprisonment, starting on 7 October 2025 and ending on 21 January 2026.
(xxi)On charge CC2019/5484, common assault, the offender is sentenced to five months’ imprisonment starting on 22 November 2025 and ending on 21 April 2026.
(xxii)On charge CC2019/6245, assault occasioning actual bodily harm, the offender is sentenced to five months’ imprisonment starting on 22 February 2026 and ending on 21 July 2026.
(xxiii)On charge CC2019/6244, common assault, the offender is sentenced to 52 days’ imprisonment starting on 15 June 2026 and ending on 5 August 2026.
(xxiv)On charge CC2019/5485, non-consensual distribution of intimate images, the offender is sentenced to 15 months’ imprisonment starting on 6 June 2026 and ending on 5 September 2027.
(xxv)On charge CC2019/6242, trespass, the offender is fined $1050 with 28 days to pay.
(xxvi)On charge CC2019/6243, damaging property, the offender is sentenced to two months and 15 days’ imprisonment starting on 6 August 2027 and ending on 20 October 2027.
(xxvii)On charge CC2019/6234, stalking, the offender is sentenced to seven months’ imprisonment starting on 21 September 2027 and ending on 20 April 2028.
(xxviii)On charge CC2019/6235, contravene family violence order, the offender is sentenced to seven months’ imprisonment starting on 21 September 2027 and ending on 20 April 2028.
(xxix)On charge CC2019/4860, contravene family violence order, the offender is sentenced to seven months’ imprisonment starting on 21 February 2028 and ending on 20 September 2028.
(xxx)On charge CC2019/4861, trespass, the offender is fined $1050 with 28 days to pay.
(xxxi)The court directs pursuant to ss 71 and 72 of the Crimes (Sentencing) Act that the sentences be served concurrently or cumulatively as required by the terms of orders (i)-(xxx).
(xxxii)The non-parole period starts on 16 November 2021 and ends on 25 December 2024.

I certify that the preceding one hundred and eighty‑five [185] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop

Associate:

Date: 1 April 2022