Police v Blackwell (a pseudonym) - [2024] ACTMC 5

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Blackwell (a pseudonym)
Citation:	[2024] ACTMC 5
Hearing Dates:	5 March 2024
Decision Date:	19 March 2024
Before:	Magistrate Temby
Decision:	See [157]
Catchwords:	JUDGEMENT AND PUNISHMENT – SENTENCE – Family Violence – Stalking with intention to harass – Threat to distribute intimate images– Contravention of a family violence order
Legislation Cited:	Crimes (Sentencing) Act 2005 ss 10(2) 33(1)(w), 33(1)(za) Crimes (Sentencing Administration) Act 2005
Cases Cited:	R v EP (No 3) [2019] ACTSC 242 Morrison v Maher (No 2) [2022] ACTSC 63 R v Elliott (No 2) [2022] ACTSC 390 Bugmy v The Queen (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Barbaro v The Queen [2012] VSCA 288 Mun v The Queen [2015] NSWCCA 234 Georgopolous v The Queen [2010] NSWCCA 246 R v Toumo’ua [2017] ACTCA 9 R v Doan (2000) 50 NSWLR 115 O’Brien v R [2015] ACTCA 47 R v Deng; Carberry v The King [2023] ACTCA 32
Parties:	Andrew Bishop (Informant 1^st series) Caleb Marcus Boxx (Informant 2^nd series) John Blackwell (a pseudonym) ( Defendant)
Representation:	Solicitors ACT Director of Public Prosecutions Tiffen-Oaks ( Defendant)
File Numbers:	CC 12412 of 2022 CC 1012 of 2023 CC 10800 of 2022 CC 10798 of 2022 CC 5322 of 2022 CC 5321 of 2023

MAGISTRATE TEMBY:

Introduction:

1․The Defendant is to be sentenced in relation to the following offences:
First Series
(a)CC2022/12412 – Stalking with intention to harass, in contravention of a court order (maximum penalty of 5 years’ imprisonment);
(b)CC2023/1012 – Stalking with intent to harass in contravention of a court order, aggravated as a family violence offence (maximum penalty of 7 years’ imprisonment);
(c)CC2022/10800 – Threaten to distribute intimate images of another person, aggravated as a family violence offence (maximum penalty of 400 penalty units and/or 4 years’ imprisonment);
(d)CC2022/10798 – Contravention of a Family Violence Order (FVO) (maximum penalty of 500 penalty units and/or 5 years’ imprisonment);

Second Series
(e)CC2022/5322 – Contravention of a FVO (maximum penalty 500 penalty units and/or 5 years’ imprisonment);
(f)CC2023/5321 – Attempt to contravene a FVO (maximum penalty of 500 penalty units and/or 5 years’ imprisonment).

2․In considering the matter, I note that:
(a)I must be satisfied beyond reasonable doubt of any fact which might be relied on in aggravation of the offence for which the Defendant is charged; and
(b)I must be satisfied on the balance of probabilities of any facts which I take into account in mitigation of the offences or in mitigation of the sentence.

Nature and circumstances of offence
Agreed Facts
3․The Defendant and the complainant were married in 2008 and separated in 2022. They have four children.
4․On 24 May 2022, the complainant obtained a FVO (FVO 448/2022), protecting herself and her children from the Defendant. The parties’ eldest child (the child protected person) was 14. Relevantly, the FVO prohibited the Defendant from contacting the protected persons except, in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Blackwell (a pseudonym)

Details

AGLC: Police v Blackwell (a pseudonym) [2024] ACTMC 5
Case: [2024] ACTMC 5
Decision Date: 19 March 2024

CaseChat Overview and Summary

In the case of Police v Blackwell, the appellant, referred to as Blackwell, was found guilty of stalking with intent to harass, threatening to distribute intimate images, and contravening a family violence order. The case was heard in the County Court of Victoria. Blackwell, who had been previously involved in a domestic relationship, was subject to a family violence order that prohibited him from contacting the victim. Despite this order, Blackwell engaged in stalking behaviour, made threats to distribute intimate images, and breached the family violence order by contacting the victim. The court had to determine the appropriate sentence for Blackwell's conduct.

The primary legal issues revolved around the sentencing principles applicable to stalking, the seriousness of the threats made by Blackwell, and the breach of the family violence order. The court had to consider the impact of the offences on the victim, the need to protect the community, and the need for deterrence. The court also had to balance the principles of proportionality and the need to ensure that Blackwell understood the seriousness of his actions.

The court held that Blackwell's conduct was serious, particularly given the breach of the family violence order and the threat to distribute intimate images. The court found that Blackwell's actions had caused significant emotional harm to the victim, and that the community needed to be protected from such conduct. The court considered the need for deterrence and the need to ensure that Blackwell understood the seriousness of his actions. Ultimately, the court imposed a sentence of imprisonment, with additional orders for rehabilitation and support to address Blackwell's behaviour.

The court ordered that Blackwell be imprisoned for a term of two years and six months, with a non-parole period of one year and nine months. The court also imposed a number of additional orders, including that Blackwell participate in a rehabilitation program and that he be subject to a restraining order for a period of five years. The court emphasised the importance of addressing Blackwell's behaviour and ensuring that he does not reoffend.

Orders

Orders of the court

See [157]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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