Penelope Maher v Sonney Morrison
[2020] ACTMC 26
•17 December 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Penelope Maher v Sonney Morrison |
Citation: | [2020] ACTMC 26 |
Hearing Dates: | 13 October 2020, 8 December 2020 |
DecisionDate: | 17 December 2020 |
Before: | Chief Magistrate Walker |
Decision: | See [123]–[127]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Totality – Family Violence |
Legislation Cited: | Crimes Act 1914 (Cth) Crimes (Sentencing) Act 2005 (ACT) |
Cases Cited: | MRM v R [2015] NSWCCA 195 Nguyen v R [2016] HCA 17; 256 CLR 656 R v Verdins [2007] VSCA 102 R v UG [2020] ACTCA 8 R v Dunn [2004] NSWCCA 346; 144 A Crim R 180 Pearce v R [1998] HCA 57; 194 CLR 610 |
Parties: | Penelope Maher (Informant) Sonney Morrison (Defendant) |
Representation: | Counsel N Deakes (Crown) S Whybrow (Defendant) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Sharman Robertson (Defendant) | |
File Number(s): | CC 4860-61 of 2019 CC 5156 of 2019 CC 5474-81 of 2019 CC 5484-85 of 2019 CC 6234-37 of 2019 CC 6240-45 of 2019 CC 10405 of 2020 CC 10674 of 2020 CC 10676 of 2020 CC 10745 of 2020 CC 10967 of 2020 CC 11403 of 2020 CC 12121-22 of 2020 |
Chief Magistrate Walker:
The offender, Sonney Morrison, is charged with a series of family violence offences, broadly described, spanning the period from September 2011 to September 2020.
Given the multiplicity of matters they are conveniently presented in a table appended to my remarks which was helpfully prepared by the prosecution.
The offender pleaded guilty at various stages of the proceedings, in some matters after receipt of the brief of evidence, and in some at the first or very early mention of the matters. No matter was set down for hearing prior to a guilty plea being entered.
Facts
The offender, who is now 43 years old, appears to have experienced a traumatic early childhood which I will address in due course. He met his long-term partner and now former wife whilst they were both in their mid-teens. They married in 2000. There are two children of the relationship now aged 17 and 13 years old. The couple separated in January 2019 and their divorce became final in December 2020.
Whilst there is no clear evidence before the Court as to when the offender began abusing the victim, she refers in her victim impact statement to “the last 10 years of control, manipulation and physical abuse …”. The complaints came to light when she separated from the offender and sought police advice in relation to obtaining a Family Violence Protection Order.
The historical charges laid reflect instances in which the victim was able to point police to independent corroboration of her complaints in various forms.
CC19/5474
The first of these is the charge of assault occasioning actual bodily harm in September 2011. At that time the offender was living with the victim and their children in the northern suburbs of Canberra. Whilst at home, the offender and the victim were arguing about their sexual relationship, a theme common to the matters before the Court. The offender was threatening to leave when the victim determined to leave instead and got into a motor vehicle. The offender followed her and got into the passenger side.
The argument continued as they drove. She stopped the vehicle and told him to get out. He refused so she got out. He then drove off leaving her on the side of the road. She then walked back to the house.
By the time she returned it was nighttime and the offender was not at the house. He arrived later and they argued again. Whilst in the living room of the house the offender slapped the victim multiple times on the face with an open palm. She recollects that it was an open palm because he indicated to her that if he had used a closed fist her head would be caved in.
When she fell to the ground, he continued to slap her face and upper body. While she was on the ground, he kicked her torso multiple times and bit her ear. He verbally abused her whilst doing this. She pushed him off her and told him to leave which he did.
By this time the sun had risen. She wished to leave also. She woke the children and placed them in a second motor vehicle. They drove to a friend’s house. The friend saw injuries to the victim’s face and bloodstains on her clothing and invited she and the children inside. The victim told the friend that the offender had beaten her up but asked that she not call the police as the victim did not wish to get the offender in trouble.
She indicated that she was taking the children to Melbourne to visit her brother. They commenced their journey and when she was near Yass, NSW, she received a phone call from the offender stating that he had taken an overdose of medication. She heard an ambulance in the background. She called the same friend asking that she check whether the offender was at the family home or not. The friend’s husband did so and confirmed that he was not. The victim returned to the house to get clothing and then continued the trip to Melbourne.
When she arrived at her brother’s home, he noted that she had difficulty speaking. She told him that the offender had caused bruising marks on her body but did not provide further details.
Her brother took 12 photographs of her injuries, which he kept, contrary to the victim’s request. They show significant bruising to her eyes, particularly the right eye, various abrasions on her face, a significant bruise on her right ear, finger imprints and petechiae on her throat, bruising on her jaw, significant bruising on her stomach, finger mark bruising on both inner upper arms and bruising and abrasions on her right elbow.
This was a vicious and protracted assault occasioning actual bodily harm. Whilst the children were not direct witnesses to the incident and it is not known what they heard, I infer that they were impacted by their mother’s response to the violence and their observations of her injuries.
CC19/5475, CC19/5476, CC19/5477
There was an hiatus in charged offending from September 2011 until November 2016. Late in that month the offender arranged for the victim to have sexual intercourse with another man and record it for his benefit. When the video recording was provided to the offender, he became upset due to the poor quality of it. The offender threateningly stated, “you better leave the house right now”, which she did immediately in fear for her safety.
He then called her a few hours later, at about midnight, and directed her to return home which she also did. He sat her down at a desk in their bedroom and made her watch the video recording. He pushed her tightly in towards the desk so that her ribs were digging in and she was unable to move away. He made reference to her cheating on him and produced a curved bladed knife which he rested on top of her head. She tried to get up but he prevented her from doing so, striking the desk with the knife, leaving a scratch and indent. This conduct constitutes the property damage and possess offensive weapon with intent charges.
He then used the knife to cut her forehead while she watched the recording. Her forehead bled, the blood running down her face and onto her dressing gown. This conduct constitutes the assault occasioning actual bodily harm.
The victim was not allowed by the offender to leave although did eventually manage to escape. She discarded the dressing gown in the process, leaving it on the street as she fled.
She wandered the streets looking for a person who could lend her a telephone to call her brother-in-law, who lived in Canberra, for help. Although she was offered assistance by a man, she could not remember any relevant numbers and was unable to action her plan.
At some point that night the offender found her bloodied dressing gown and later deposited it in a garbage bin in Goulburn, NSW.
The victim returned to the home and the offender was not there. She got ready for work, on the way there taking two photographs of her face and sending them to her work email account. At work she copied them onto a disk and then deleted the emails for fear of the offender discovering them, given his propensity to check both her work and personal emails.
Later that day the victim’s daughter noted the fresh purple cut on her mother’s forehead. She knew that her father had caused it, having heard her father yelling at her mother the previous night. That scar has proved permanent. The daughter also noted her mother had swollen bloodied lips and bruised eyes.
This must have been a terrifying incident. The extent of injury suffered is significant given that it caused a lasting facial scar, a permanent reminder of the violence to which the victim was subjected. Whilst the property damage is not serious in the sense of the degree of damage caused the context in which it was caused, clearly intending to elicit fear and effect control of the victim, aggravates it. There is significant overlap between the property damage offence and the possessing an offensive weapon offence.
CC19/5478, CC19/5479
Just before Christmas 2016 the offender and victim were preparing to travel interstate to visit her parents. They began arguing again about their relationship. The offender told the victim that if she took drugs with him it would improve their sexual relationship.
She did so out of fear. He placed a strap around her arm and injected her with what she believed was methamphetamine. This caused her to feel unwell and afraid. The offender became more heightened at this time with accusations of the victim having extra-marital affairs. Afraid to disagree with the offender, the victim stated that she had slept with other men. She did so simply to appease him.
Feeling unwell she lay on the floor where the offender kicked and punched her on her back and face. She was injured and bled. This conduct constitutes an assault occasioning actual bodily harm.
He then took the tie from his dressing gown and wrapped it around her neck. He faced her and used the dressing gown tie to squeeze her neck and lift her off the ground. She was unable to breathe or remove the tie. She lost consciousness. This conduct constitutes the choking charge.
The offender slapped her face and body to rouse her. He removed the tie from her neck and pushed her into the shower to wash off the blood. While she was in the shower, he grabbed the back of her head and slammed it into both the shower glass and the bathroom wall. The victim recollects passing out a few times during the night with the offender slapping her to wake her each time. This further conduct forms part of the assault charge.
At one point, whilst the offender was otherwise occupied, the victim went to use the bathroom. She was able to run from the house and scaled a number of neighbouring fences before hiding from the offender in bushes.
A few hours later she returned to the house, accessing it using a spare key. The offender was not there. The victim went to work in the morning and again took photographs of her injuries and sent them to her work email account. She stored them on the same disk previously used and deleted the records from her email.
While she was at work the victim was called by the offender who said he was in Sydney as he feared the police would come to arrest him. She left work and went home.
She missed the flight booked to visit her parents and stayed at home for the planned leave period. She had two black eyes, a cut on her jaw, swollen and bruised lips and bruising to her face. She did not see a doctor for these injuries nor report them to the police.
The choking charge is serious in that it resulted in a loss of consciousness. The assault charge is also serious, being effected by multiple blows over a protracted period.
On an occasion between July and September 2017 the offender attended the victim’s workplace with her. He deleted an email which included a recording she had made of an abusive call from him to her. He pressed her as to whether there was anything else he should know about and she became fearful and told him about the disc containing photographs of her injuries. He then destroyed the disc in front of her and thus the photographic evidence was lost.
CC19/5480, CC19/5481, CC19/5484
Around Australia Day 2018 the offender arranged for he and the victim to engage in sexual activity with another couple at that couple’s home. The offender felt that the victim was disrespectful of him during that event, which caused him to feel inadequate.
Whilst travelling home from that event, the offender said to the victim, “you’re done”. When they entered the house he hit her in the face with a small bag containing a box. This struck her cheek and resulted in a cut which scarred. This conduct constitutes assault occasioning actual bodily harm.
He then told her that she was to sleep in the garage, “like the dog she was”. In fear she did as she was told. During the night he entered the garage and abused her, stating words to the effect that she was “a horrible human and a dog who wasn’t even worth being pissed on”. He then kicked and slapped her as she huddled on the mattress on the floor. This conduct constitutes common assault.
Some hours later he returned to the garage dragging her through the house and into the ensuite bathroom. He told her that he was going to make her ugly so no one would want her. He then directed her to shave her head. When she placed a clipper guard on the hair clippers to retain some length to her hair, he told her to remove it. When she began shaving slowly, he forced her hand more quickly through her hair which caused her pain as it pulled rather than shaved the hair. He told her that she did not deserve to have nice long hair. This conduct constitutes common assault.
The victim told her daughter the next morning that the offender had made her shave her head and told her to tell people that she had done so because she had a friend with cancer. Her daughter knew that her mother did not have a friend with cancer, saw that she was tired and bruised and was very worried about her.
Permanent scarring is significant in respect of the actual bodily harm. The intentional degradation, particularly of forced hair removal, a technique historically used to degrade women, evidences a serious common assault.
CC19/6244, CC19/6245
In November 2018 a further argument erupted between the offender and the victim in the bedroom of the family home. The offender slapped the victim about her face and poked her in the chest. She sat on the end of the bed too afraid to move. The offender pushed or slapped her so hard she fell off the bed and hit her head against the bedframe causing a large cut above her left eyebrow.
She began to cry, which the offender hated. He pushed her to the bathroom to wash the blood from her face. Someone tried to come into the bedroom so the offender told the victim to get in the wardrobe. As she crawled towards it she hit her head on the door frame and suffered a further cut.
She was crawling because of a broken foot from an unrelated incident. She hid in the wardrobe and then when she emerged she was told, “make sure you remember that I never did that one. That was all you, but you deserved it.” She sought medical attention some hours later and was left with a large mark above her left eyebrow for a few months.
This incident was less protracted than earlier ones but again involved the victim’s degradation, being forced to hide in a cupboard and blamed for her own injury. This conduct constitutes an assault occasioning actual bodily harm.
CC19/5485
On 30 January 2019 the offender and the victim were again arguing at home. At about 9 pm the victim left in a car. She slept at a truck stop on the highway.
At about 6 am the next morning the offender called her and said words to the effect of “I have shown everyone who you really are. Check your work emails.” The victim found that the offender had sent sexually explicit images of her and comments about her to her family, friends, and ADF colleagues by email. That conduct constitutes non-consensual sharing of explicit images.
The victim was devastated. She was nonetheless ordered to pick the offender up from an address in Watson and take him to work which she did. During the trip he told her that she deserved what she had gotten; if she had not left him the night before it would not have happened.
As a result of this incident the victim was subject to a workplace investigation by the military police. Whilst exonerated she continues to feel shame as a result this crime committed by the offender.
After this incident the victim left the offender. She and the children relocated to another address in the Gungahlin area.
CC19/6242, CC19/6243
At 5 am on 22 March 2019, knowing he was not welcome, the offender attended the Gungahlin area address constituting the offence of trespass. He saw a car that he did not recognise in the garage. He began banging on the window and yelling, “who’s fucking car is this?”. The victim was woken by the banging and yelling and went into the kitchen. Her daughter was also woken up. They recognised the offender’s voice. The daughter was terrified that he would enter and called 000 for police to attend.
Meanwhile the offender pulled apart one of the garage windows, breaking a metal chain to which the window attached in the process. He left both the window’s screen and metal frame on the ground before he fled. This conduct constitutes the property damage charge. Neither the victim nor her daughter provided a statement to police at this time. However later that day the victim attended this Court, applied for and was granted an Interim Family Violence Order.
CC19/6234, CC19/6235, CC19/6240
The offender was served with a copy of the order two days later. Between the date of service on 24 March 2019 and 26 April 2019 he sent 280 SMS messages and made 75 phone calls from his mobile phone to the victim in breach of the order. Communications were varied but were intrusive and harassing. This conduct constitutes two counts of contravention of the family violence order and the aggravated stalking charge.
CC19/4860, CC19/4861
On 26 April 2019 the offender asked police to attend the address with him so that he could see his children or arrange to amend the conditions of the order. He was told to get legal advice or contact the court and was also advised that he must not attend the address as it would be a criminal offence.
At 4.30 pm on that day the victim left the house with her daughter to collect her son. She locked and secured the rear gate. The offender entered the yard about half an hour later. The victim saw this on her home closed circuit television footage after notification was sent to her that motion sensors had been activated. She sent an SMS message to the offender asking him to leave and stating she would call the police if he did not. She was watching a live feed from her CCTV cameras whilst doing this and saw the offender go into the garage. She did not see or hear the garage door open and believed that he remained inside.
She called police at about 5.20 pm. They attended the address at about 5.45 pm, gaining access to the yard over the locked gate. On entering the garage, they saw the offender lying face down behind a parked vehicle with the garage lights switched off. He was arrested. His conduct constitutes the trespass charge and a further contravention of the Family Violence Order.
CC19/5156, CC20/12122
Following his arrest the offender was remanded in custody. On 30 April 2019, whilst in custody, the offender made a phone call to his brother which was recorded and provided to police. In that call the offender suggested to his brother that the best thing to happen would be for “you know who to go to the Magistrates Court and drop the you know what order”. The offender told his brother “you should go and sort that out today okay? Um, please, because I need her help”.
The offender’s brother was asked to approach the victim and tell her that the offender loved her and would never do anything wrong to her again. He was also asked to tell the victim that she should drop the order because if she did not the offender would not be able to get through this.
Following that instruction the offender’s brother called the victim and passed on that he had been speaking with the offender, who had asked that he tell her that the offender loved her and the kids and that she should lift the order. The conversations between the offender and his brother, and subsequently his brother and the victim, breach the Family Violence Order by utilising a third person to contact the protected person. The importation to drop the order constitutes an attempt to pervert the course of justice.
CC19/6236, CC19/6237, CC20/12121
On 14 May 2019 police spoke with the offender’s brother. He admitted in interview that he had asked the victim to withdraw the Family Violence Order against the offender. He said he did not know what the conditions of the order were. Police explained to the brother the conditions of the order, noting that he was not to contact the victim on behalf of the offender and that such conduct would constitute the offence of aiding and abetting a breach of the order. The offender’s brother said he understood and would not contact victim again.
On 20 May 2019, police interviewed the victim. She told them that the offender’s brother had recently delivered two letters to her from the offender, both written by the offender whilst imprisoned and passed to the brother for delivery.
The first was a six page letter from the offender passed to the victim by the brother on 16 May 2019. This constitutes a breach of the family violence order.
In this letter, amongst other things, the offender requested that the victim provide a statutory declaration withdrawing her complaint. He threatened that if he was convicted and imprisoned, he would hang himself in prison. This conduct constitutes both a second attempt to pervert the course of justice and the charge of stalking.
A second letter was passed by the offender’s brother to the victim on 20 May 2019. This letter was 10 pages long and again sought to manipulate the victim into withdrawing her statements to the police. The letter also contained a rambling apology and an offer to reconcile the relationship. The offender in this letter instructed the victim to remind the offender’s brother that the letters “never existed” and to return the letters to the brother after she had read them. This conduct constitutes stalking.
CC20/10745
During August 2020 the offender reached out to his daughter. She agreed to accept contact from him whilst he was remanded in the AMC. They exchanged a number of emails.
In the early hours of 8 August 2020, the offender also emailed his brother exhorting him to contact the victim on his behalf. He intimated that he may harm himself by use of the phrase “I just cannot go on”. The offender’s brother did not act on this request. The conduct constitutes an attempt to contravene the family violence order.
CC20/10405, CC20/10674, CC20/10676
On 13 August 2020 the offender emailed his daughter’s email address with a message intended for the victim. The daughter forwarded that email to her mother. In that email the offender stated:
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 ragamuffin, 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.
Later that day, the offender emailed his daughter again with a message addressed to the victim. In it he stated:
Hi baby, I am appalled, I never thought this was you, but look what you did behind my back with several other guys. I know a lot 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 I’m guessing you have made things so bad to this point, you’re probably dead set on exercising judgment that is centred on what you and only you want, not what is good for the kids or me. I love you, Sonney.
The offender sent a further email to the victim via his daughter on 14 August 2020. That email purported to accept that there would be no future contact between the offender and the victim. However, that same evening the offender again emailed the victim via his daughter professing his love for the victim. The offender sent the same email to his brother requesting that it be forwarded to the victim.
On 15 August 2020 the offender emailed his daughter, again addressing the victim, observing amongst other things that “you are a beautiful soul, irrespective of how you expressing your feelings and behaving right now”. The offender again sought to send the same email to the victim through his brother. He sent another email later that day continuing to profess his love.
On 18 August 2020 the offender emailed his daughter with correspondence for the victim entitled “users”. The message stated:
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 need a family’s help and support. Instead, you dropped me like a bag of potatoes. I feel 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 my wrongdoing, but I really cannot and do not see a future that involves me being any part of what was once my family. Get away from me and stay away. Have a good life on your podiums. Sonney.
This conduct constitutes the use of a carriage service to harass, contravention of the family violence order and stalking.
CC20/10967, CC20/11403
On 10 September 2020, the victim went to her post office box. This address was presumably known to the offender as it had previously been a shared post office box.
The victim found an envelope from the AMC which contained two letters. The first protested ongoing love. The second did likewise, although stated that out of respect to the victim he would not contact her again, all the while asserting that he very much wished to have her back in his life. The victim felt sick on reading these letters and experienced a panic attack. Each item of correspondence is charged as contravention of the family violence order.
Sentencing Considerations
Assessing the seriousness of the offender’s conduct
The victim’s impact statement details a life lived in fear, “walking on eggshells”, concerned to hide the physical signs of abuse from others and needing to shield her children from what was happening to her. Despite her efforts to do so, the victim notes that her children have been traumatised by their father’s offending.
The victim speaks of the impact of the offender’s conduct on her relationship with family, friends and colleagues. She speaks to physical scars that act as a daily reminder of the offences committed against her and of the shame she still carries because of the offender’s publication of intimate images of her. She also notes the impact of his conduct on her career.
She speaks of the fear she held during the relationship and continues to hold now, that she will one day die at the offender’s hand.
Her daughter speaks of her powerlessness, guilt and the ongoing fear caused by her father’s conduct towards her mother.
These offences represent a lengthy course of conduct bearing classic features of intimate partner violence. They reflect an abuse of trust and power effected through the tools of fear and manipulation. They have had ongoing physical and psychological consequences.
The serious nature of the offending must be considered in the context of the extensive history of conduct rather than as isolated incidents.
The Offender
The offender is a mature man at 43 years of age with no prior criminal history. He reports an extremely traumatic childhood marked by neglect and abandonment, early exposure to observed violence and direct physical and sexual abuse. His education was disrupted in the early years although more settled during high school.
As noted above he met and married the victim whilst both were young. The relationship produced two children now in their teens.
The offender’s brother, referred to in the facts above, is a younger brother who suffers a major mental illness. He relocated to Canberra at the offender’s urging. They appear to have been, and continue to be, mutually supportive.
The offender reports having suffered an head injury in 1998 during military training exercises.
He has been diagnosed with Bipolar Disorder, Attachment Disorder and Complex Post-Traumatic Stress Disorder. The bipolar diagnosis is confirmed by a report from Dr John Saboisky, psychiatrist, dated 13 August 2009. He noted the offender was stable on Lithium at that time. Dr Bree Wyeth, psychiatrist with the Mental Health Service at the AMC, also confirmed that diagnosis on 6 May 2019 and noted a good response from the offender on restarting medication. It was not apparent how long he had not been taking it. He remains under the care of the Forensic Mental Health Service in custody.
Despite his difficult childhood, the offender had an 18 year career in various capacities with the Australian Defence Force, during which time he qualified as a psychiatric nurse. Throughout the period of his offending he worked in this capacity in highly challenging work environments. His registration to practise has now been cancelled.
Three work colleagues, each of whom also socialised with the offender outside of work, wrote letters in support which mentioned his compassion and professionalism. These colleagues observed what a loving father and partner the offender was and reported that this conduct was out of character for him.
These references carry little weight in light of the proven conduct other than to reflect the offender’s positive engagement outside of the domestic sphere. This is a feature not uncommon in perpetrators of intimate partner violence.
With minimal substance abuse previously, the offender commenced methamphetamine use in 2016. He attributes his offending to this drug use in combination with the claimed effects of his acquired brain injury and mental health issues. In his letter to the pre-sentence report author he denies that he would have behaved as he did without the impact of methamphetamine on his “basic moral values”.
The evidence does not support this assertion and the offender’s counsel specifically accepted that there was no basis for application of the principles deriving from R v Verdins [2007] VSCA 102.
The chronology of his offending also does not support this proposition as the offender committed a serious assault on the victim in 2011, long before he reports commencing use of methamphetamine.
Dr Tom Sutton, psychologist, assessed and reported on the offender on 14 July 2020. He noted that the offender’s Bipolar Disorder was well-controlled with medication, but that he suffered very severe comorbid depressive and anxiety disorders with elevated suicidal ideation. Both conditions dated back to adolescence and are permanent.
Dr Sutton noted that the depressive condition along with the offender’s dependence on relationships for his sense of identity put him at high risk of decompensation. He found no evidence of cognitive dysfunction related to traumatic brain injury and made a positive finding that this did not result in any impairment of reasoning at the time of each offence. He was unable draw a causal connection between any mental illness and the offences although he noted that decompensation could include mania and psychosis. Dr Sutton was unable to separate out any effects from methamphetamine use.
I am unable to be satisfied that the offender’s moral culpability is reduced significantly as a result of mental illness, although I do have regard to his psychological vulnerability as a result of his very challenging childhood.
The offender pleaded guilty to all matters at varying stages and in each prior to the matter being listed for hearing, with the utilitarian benefit of a significant saving in court time and the avoidance of what would have no doubt been a difficult experience for the direct witnesses. He is to receive a reduction in the sentence imposed to reflect this.
The offender has not however demonstrated any genuine acceptance of responsibility or remorse for his conduct. This is evident in the nature of his most recent offending whilst in custody awaiting resolution of the matters.
On the contrary, his attempts to pervert the course of justice demonstrate a callous disregard for the impact of his conduct on the victim and their children. His lengthy letter to the author of the pre-sentence report on the face of it expresses remorse but in reality takes the opportunity to further embarrass the victim and blame her conduct for his offending. It is at least in part an effort to manipulate both the legal process and the victim.
Despite what appear to be some factors favourable to the offender’s rehabilitation, such as his lack of criminal antecedents, engagement with ongoing education whilst incarcerated, other employment skills, supportive friends and family, treatment for his mental illness and apparent abstinence from illicit substances, the pre-sentence report author assesses the offender as being at high risk of general reoffending.
I agree with this assessment in part because of the issues identified in the report but also because of the lack of any demonstrated genuine insight into the harmful effects of his offending.
Relevant law
In determining an appropriate sentence I have been guided in particular by the provisions of ss 7, 10, 33, 35, 63, 65 and 72 of the Crimes (Sentencing) Act2005 (ACT) (‘Sentencing Act’).
In respect to those offences of attempting to pervert the course of justice I am mindful of the vital importance of upholding the integrity of the justice system.
The approach to sentencing family violence offences was recently considered in R v UG [2020] ACTCA 8. In that decision their Honours Murrell CJ, Burns and Mossop JJ addressed the Crown submission that:
…the objective seriousness of the offences was informed by the fact that they were “disturbing acts of family violence” and emphasised the importance of maintaining an adequate standard of punishment for “family violence offences”. At least by implication, the Crown contended that “family violence offences” constitute a special category of offence in relation to which different sentencing principles apply.[1]
[1] [2020] ACTCA 8, [45].
Whilst accepting that the offences there under consideration were serious family violence offences, their Honours observed:
We disagree with the contention impliedly advanced by the Crown. Absent any statutory provision to the contrary, in a criminal justice system based on individualised justice, there is no place for a separate sentencing regime that applies to offenders who commit “family violence offences” (or any other general category of offences), whether it be a more lenient or a more severe sentencing regime.[2]
[2] Ibid [47].
Their Honours further noted:
When sentencing a particular offender for a “family violence offence”, the usual sentencing principles apply. This means that, when relevant to the particular case and subject to the De Simoni principle (R v De Simoni (1981) 147 CLR 383), the sentencing court will take into account matters that are frequently associated with “family violence offences”. These matters include:
(a) whether the offence forms part of a course of conduct (Sentencing Act s 33(1)(c));
(b) whether and how a weapon was used;
(c) whether the offence was associated with actual or threatened violence;
(d) the impact on victims (Sentencing Act s 33(1)(f)); and
(e) whether the offender was in a position of trust or authority vis-à-vis the victim (Sentencing Act s 33(1)(u)), which is usually—perhaps even “necessarily”—the case in relation to domestic violence offences see R v Kilic[2016] HCA 48; 259 CLR 256 at [28].
However, such factors are not taken into account because the offence can be labelled a “family violence offence”, but because they attach to the particular offending conduct.[3]
[3] Ibid [51].
Historically domestic violence was often treated by the police, courts and indeed the community at large as somehow a lesser form of violence or as a private matter.
Thankfully the Australian community has largely moved away from that perspective founded as it was in outmoded views of the lesser place of women and children in society. This is reflected in s 34(2) of the Sentencing Act, which provides that a court must not sentence less severely than it would otherwise have done because an offence falls within the family violence category.
This does not mean that the body of case law which has developed highlighting those features of family violence which might be aggravating is irrelevant. Rather, each matter is to be determined with regard to the particular features of the offender and the offences in that matter, consistent with proper sentencing practice.
Section 7 of the Sentencing Act details the purposes for which a sentence may be imposed. Each of the purposes has application in this case, that is appropriate punishment, deterrence, both general and specific, denunciation, accountability, recognition of the harm done both to the direct victims and the wider community, protection of the community, particularly but not exclusively the current victims, and rehabilitation of the defendant.
Particularly apposite in this matter are the observations of Adams J in R v Dunn [2004] NSWCCA 346; 144 A Crim R 180, (Ipp JA and Sully J agreeing) at 195:
Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind.
The s 33 considerations and other considerations identified by their Honours above in R v UG above,[4] each have application in this case to one or more of the offences.
[4] [2020] ACTCA 8.
In addition, pursuant to s 33(1)(m) of the Sentencing Act, the cultural background, character, antecedents, age and physical or mental condition of the offender are relevant.
Subsection s 33(1)(p), whether the offender was affected by alcohol or a controlled drug when the offence was committed and the circumstances in which the offender became affected, noting that it was an adult and voluntary choice of the offender’s to consume methamphetamine, is also relevant.
Subsection s 33(1)(t), whether the offender is voluntarily seeking treatment for any physical or mental condition that may have contributed to the commission of the offence, noting that such treatment is being sought, and s 33(1)(w) whether the offender has demonstrated remorse, are relevant considerations and have been addressed in my remarks above.
I have formed the view that a sentencing discount in the region of 15 to 20 percent is properly applied across the various offences.
I note the well-established principle of totality as expressed in Pearce v R [1998] HCA 57; 194 CLR 610 and Nguyen v R [2016] HCA 17; 256 CLR 656 is to be applied in this matter. Each matter is to be considered first individually. I also note the observations of Simpson J in MRM v R [2015] NSWCCA 195 when applying the principal of totality:
…that the severity of a sentence is not simply the product of a linear relationship between individual sentences, and that severity may increase at a greater rate, than an increase in the length of a sentence (see R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15] - [18]). A crushing sentence that will induce a feeling of hopelessness and destroy any expectation of a useful life after release, ought not to be imposed on an offender (see MAK at [17]). The impression may not be given, however, that there is some kind of discount for multiple offending.[5]
[5] [2015] NSWCCA 195, [176].
The question of concurrency or cumulation is to be considered in order to arrive at an aggregate sentence which is just and appropriate. The complexity here arises from both the period of offending, being nearly 10 years, and the multiplicity of offences on a number of occasions.
It is conceded by the defence, as submitted by the prosecution, that a sentence of imprisonment is the only appropriate sentence, an uncontentious proposition in the circumstances.
I have considered whether suspension, partial or wholly, is appropriate but am satisfied that the seriousness of the offending and the need for intensive supervision upon eventual release do not support this option.
Time served on remand will be taken into account pursuant to s 63 of the Sentencing Act. I note the defendant has been in custody continuously since 26 April 2019.
I note that a number of the offences were committed whilst the offender was in custody, enlivening s 72 of the Sentencing Act, which requires that a sentence imposed in respect to such an offence must be served consecutively upon any existing sentence of imprisonment, unless the court directs otherwise. In this case my sentence will have the effect of so directing in order to properly reflect the totality consideration.
Sentencing of this offender is further complicated by the interplay of the Crimes Act 1914 (Cth) in relation to the Commonwealth offence. Section 19 provides:
(3) Where
(a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and
(b) the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each federal sentence commences but so that:
(c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(d) if a non-parole period applies in respect of any State or Territory sentences--the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.
(4) For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first-mentioned sentence.
Section 19AC of the Crimes Act 1914 (Cth) requires that a recognizance release order rather than a non-parole period must be set by the court if a federal sentence not exceeding three years in aggregate is imposed, unless the aggregate sentence does not exceed six months.
Sentence
Having regard to all of the above considerations, I now record convictions on all of charges before the Court.
I will sentence by reference to the charge number and period of imprisonment which is to be imposed with respect to each charge.
On charge CC19/5474 I impose a period of imprisonment of six months which will be taken to have commenced on 26 April 2019 and to have completed on 25 October 2019. On charge CC19/5475 I impose one month that period being 26 October 2019 to 25 November 2019. On charge CC19/5476 I impose 14 months from 26 October 2019 to 25 December 2020. On charge CC19/5477 I impose one month from 26 October 2019 to 25 November 2019. On charge CC19/5478 I impose 20 months from 26 December 2020 to 25 August 2022. On charge CC19/5479 I impose 12 months from 26 December 2020 to 25 December 2021. On charge CC19/5480 I impose 10 months from 26 August 2022 to 25 June 2023. On charge CC19/5481 I impose two months from 26 August 2022 to 25 October 2022. On charge CC19/5484 I impose six months from 26 August 2022 to 25 February 2023. On charge CC19/6245 I impose 10 months from 26 June 2023 to 25 April 2024. On charge CC19/5485 I impose 12 months from 26 April 2024 to 25 April 2025. On charge CC19/6242 I impose no separate penalty. On charge CC19/6243 I impose five months from 26 April 2025 to 25 September 2025. On charge CC19/6234 I impose 10 months from 26 April 2025 to 25 February 2026. On charge CC19/6235 I impose 10 months from 26 April 2025 to 25 February 2026. On charge CC19/6240 I impose 10 months from 26 April 2025 to 25 February 2026. On charge CC19/4860 I impose 10 months from 26 April 2025 to 25 February 2026. On charge CC19/4861 I impose no separate penalty. On charge CC19/5156 I impose 10 months from 26 February 2026 to 25 December 2026. On charge CC20/12122 I impose 12 months from 26 February 2026 to 25 February 2027. On charge CC19/6236 I impose 12 months from 26 February 2027 to 25 February 2028. On charge CC19/6237 I impose 12 months from 26 February 2027 to 25 February 2028. On charge CC20/12121 I impose 12 months from 26 February 2027 to 25 February 2028. On charge CC19/6241 I impose 12 months from 26 August 2027 to 25 July 2028. On charge CC20/10745 I impose six months from 26 August 2027 to 25 February 2028. On charge CC20/10405 I impose 12 months from 26 August 2027 to 25 July 2028. On charge CC20/10674 I impose six months from 26 August 2027 to 25 February 2028. On charge CC20/10676 I impose 10 months from 26 August 2027 to 25 May 2028. On charge CC20/10967 I impose 10 months from 25 February 2028 to 25 December 2029. On charge CC20/11403 I impose 10 months from 25 February 2028 to 25 December 2029.
I impose a total period of imprisonment of 10 years and eight months from 26 April 2019 to 25 December 2029. I set a non-parole period of five years and eight months.
The offender would be eligible for parole from 25 December 2025, except noting that the parole period cannot commence until the Commonwealth sentence is served. The offender is therefore not eligible for parole until after 25 June 2026.
| I certify that the preceding one hundred and twenty-seven [127] numbered paragraphs are a true copy of the sentence of her Honour Chief Coroner Walker. Associate: S Corish Date: 17 December 2020 |
Corrigendum:
8 February 2021
I make the following corrections under s 61 of the Sentencing Act.
Paragraph [125]:
Replace “On charge CC19/6241 I impose 12 months from 26 August 2027 to 25 July 2028” with “On charge CC19/6241 I impose 12 months from 26 August 2027 to 25 August 2028.”
Insert “On charge CC20/6244 I impose no separate penalty”.
Replace “On charge CC20/10405 I impose 12 months from 26 August 2027 to 25 July 2028” with “On charge CC20/10405 I impose 12 months from 26 August 2027 to 25 August 2028”.Replace “On charge CC20/10676 I impose 10 months from 26 August 2027 to 25 May 2028” with “On charge CC20/10676 I impose 10 months from 26 August 2027 to 25 June 2028.”
Replace “On charge CC20/10967 I impose 10 months from 25 February 2028 to 25 December 2029” with “On charge CC20/10967 I impose 10 months from 26 February 2028 to 25 December 2028”.
Replace “On charge CC20/11403 I impose 10 months from 25 February 2028 to 25 December 29” with “On charge CC20/11403 I impose 10 months from 26 February 2028 to 25 December 2028.”
Paragraph [128]:
Replace “I impose a total period of imprisonment of 10 years and eight months from 26 April 2019 to 25 December 2029” with “I impose a total period of imprisonment of nine years and eight months from 26 April 2019 to 25 December 2028”.
Paragraph [129]:
Replace “The offender would be eligible for parole from 25 December 2025, except noting that the parole period cannot commence until the Commonwealth sentence is served. The offender is therefore not eligible for parole until after 25 June 2026” with “The offender would be eligible for parole from 25 December 2024, except noting that the parole period cannot commence until the Commonwealth sentence is served. The offender is therefore not eligible for parole until after 25 June 2025”.
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