Police v Harrington (a pseudonym)
[2025] ACTMC 9
•14 March 2025
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Harrington (a pseudonym) |
Citation: | [2025] ACTMC 9 |
Hearing Date: | 4 March 2025 |
Decision Date: | 14 March 2025 |
Before: | Magistrate Temby |
Decision: | See [148] |
Catchwords: | CRIMINAL LAW – SENTENCING – Sentencing procedure – distribution of intimate images – withdrawal of consent – family violence – abusive relationship – impact of mental health condition – expert evidence |
Legislation Cited: | Family Violence Act 2016 (ACT), s 8 Crimes (Sentencing) Act 2005 (ACT), ss 17, 10(2), 33(1)(za), 34B Crimes Act 1900 (ACT), s 334 Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | DPP v Matas [2024] ACTSC 234 Morrison v Maher [2021] ACTSC 312 Bugmy v The Queen (2013) 249 CLR 571 R v Teel (a pseudonym) [2021] ACTSC 183 R v Verdins & Ors [2007] VSCA 102 (Verdins) Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 R v Mauger [2012] NSWCCA 51 |
Parties: | Scott Richard Smith (Informant) Melissa Harrington ( Defendant) (a pseudonym) |
Representation: | Solicitors ACT Director of Public Prosecutions ACT Legal Aid ( Defendant) |
File Numbers: | CC 4243 of 2023 |
MAGISTRATE TEMBY:
Introduction
1․The Defendant is to be sentenced for one count of aggravated non-consensual distribution of intimate images between 19 October 2022 and 3 January 2023.
2․The offence carries a maximum penalty of 400 penalty units and/or 4 years’ imprisonment. The Defendant consented to the matter being dealt with summarily.
Nature and circumstances of offence
3․The Defendant and the complainant commenced a relationship between February and March 2022. During their relationship they filmed about six sexually explicit videos together and took a number of intimate photos. They agreed that the Defendant would sell the videos on her ‘OnlyFans’ page.
4․The complainant ended the relationship in June 2022. He demanded that the Defendant remove the photos and videos of him from her OnlyFans page, and anywhere else she stored them. He withdrew his consent for her to use his image.
5․The Defendant said: “I ain’t getting rid of shit. Hope you realise you fkd with the wrong bitch”. The Defendant continued to sell the videos on her OnlyFans page.
6․On 18 October 2022, the complainant’s solicitor wrote to the Defendant. The letter noted:
(a)the complainant’s withdrawal of his consent for the videos to be used;
(b)that the complainant had not been financially compensated for profit the Defendant had earned from continuing to use his image, and that the complainant might seek compensation if the Defendant did not remove all content featuring the complainant by 21 October 2022;
(c)that the Defendant had posted intimate images of the complainant on her Instagram page, something the complainant had never consented to; and
(d)that distributing intimate images is a criminal offence and that, if the Defendant continued to share intimate images of the complainant on her Instagram page, or otherwise shared the images, the matter would be referred to the Australian Federal Police and the Director of Public Prosecutions for criminal prosecution of the Defendant.
7․The Defendant did not respond positively to this letter. On 19 October 2022 she posted the letter to her Instagram account, saying: “HERE WE FKN GOOOO, lost your power so you gotta pull this move hahahaha weakkkkk”.
8․The Defendant also continued to share intimate videos of the complainant, at least to a person known as ‘Brett James’ (around 23 October 2022) and to the complainant’s then partner (on 2 January 2023), who had requested videos from the Defendant using an account named ‘Mamacita’. The Defendant suspected that the request had come from the complainant or his partner but nevertheless sent three videos.
9․The Defendant’s persistent posting of the complainant’s intimate images on her social media platforms has made the complainant feel harassed and menaced.
Objective seriousness
10․Previous cases which have considered this offence have identified a range of factors as being relevant to assessing the objective seriousness of the offence of distributing intimate images. Those factors, which are relevant in this matter, are:
(a)the number of intimate images;
(b)the nature of the content;
(c)the mechanism by which they were distributed;
(d)the extent of distribution;
(e)the harm suffered by the complainant;
(f)the knowledge of the defendant as to the impact of the distribution on the complainant;
(g)the motivation of the defendant; and
(h)whether the offending occurred in a family violence context.
11․I agree with the Prosecution’s submission that the Defendant’s offending is serious. The Defendant shared multiple videos of the complainant to at least two people through her OnlyFans account (and a third person told the complainant that they were aware that the Defendant was still selling intimate videos of the Defendant) and the Defendant shared intimate images of the complainant on her Instagram page. The images (both video and still) were of a high level of intimacy and the Defendant was recognisable.
12․The conduct continued for some time, from October 2022 to January 2023. This was despite the Defendant being directed by the complainant and his lawyer to remove images of the complainant from her social media.
13․The complainant felt harassed and menaced as a result of the offending.
14․The Defendant initially submitted that the complainant’s loss was only financial, given the indication his lawyers made that he might press the complainant to account for the profit she had earned from the sale of the videos. However, it is an agreed fact that the complainant felt harassed and menaced, not that he was concerned that he had suffered financially. It seems to me that the complainant objected to the Defendant financially benefiting from the use of the images rather than being concerned that he had suffered financial detriment.
15․The Defendant also submitted that it is not possible to distinguish between any reputational or psychological harm the complainant suffered as a result of the images being publicly distributed with his consent, as compared with any such harm he suffered after he withdrew his consent. In further submissions, the Defendant submitted that any reputational harm must be ‘lower’, given his previous consent to the distribution of the images. The Prosecution submits that the fact that the complainant previously consented to the distribution of the images does not mitigate the offending.
16․I agree that it is not possible, on the agreed facts, to draw the distinction identified by the Defendant. However, that does not mean that the complainant could not feel harassed and menaced by the continued distribution of his image once he withdrew consent.
17․I also accept that the complainant’s earlier provision of consent does not mitigate the offending conduct. However, the fact that he was content for the images to be publicly shared does inform the nature of the harm he is likely to have suffered once he withdrew consent. His is a different experience to someone who, for example, made an intimate video only for private use but had their partner share the video publicly (including, perhaps, in a way that would significantly impact the person in a social or professional context).
18․In what way a person in the complainant’s position is impacted by the ongoing distribution, or availability, of their intimate images will vary from person to person. It is certainly not the case that, just because a person has previously consented to their intimate images being distributed in the past, they cannot suffer harm once they withdraw their consent for the distribution of the images. As I have noted, it is an agreed fact that the complainant felt harassed and menaced, which I accept was the harm he suffered as a result of the Defendant’s conduct.
19․Whether the Defendant knew that continuing to distribute the images would have a particular impact on the complainant is unclear. She was certainly aware that he did not want her to continue to have or share the images, but it is not clear that she was aware that it would make him feel harassed and menaced if she continued to share the images.
20․What motivated the Defendant to continue to share the images is not entirely clear. Sharing the images through her OnlyFans page enabled her to earn money, but there is no evidence as to the extent to which she derived an income from these images. At face value, the Defendant’s responses to the complainant and to the letter she received from his lawyers requesting that she remove the images from her social media indicate that the Defendant was at least partly motivated by animosity towards the complainant and a desire for retribution.
21․It is clear that she did not want to do anything that he told her to do.
22․The opinion of Ms Tabitha Frew, clinical psychologist, is that the Defendant’s defiance can be explained, at least in part, by the Defendant’s Autism-related deficits in social and emotional understanding, in the context of the risk to her safety posed by the complainant’s history of family violence towards her, and the associated exacerbation of her symptoms of Post Traumatic Stress Disorder (PTSD) from the family violence. Ms Frew considers that the Defendant’s actions were more driven by a desire to protect herself than to effect retribution. Ms Frew’s evidence is discussed in greater detail later in these reasons.
23․For present purposes, I find that the Defendant’s actions were partly driven by a desire for retribution and partly because, as a result of her Autism Spectrum Disorder (ASD), coupled with an exacerbation of her PTSD, she thought that resistance was less vulnerable than compliance and she wanted to safeguard her autonomy. Having regard to the impact of her mental health condition, her moral culpability is reduced to a moderate degree.
24․The offending also occurred in a family violence context. That is the statutory factor of aggravation. The family violence engaged in by the Defendant was, in terms of the kinds of family violence identified in s 8 of the Family Violence Act 2016, ‘emotional or psychological abuse’ which, as I have noted, made the complainant feel harassed and menaced.
Comparable cases
25․Paragraph 33(1)(za) of the Sentencing Act provides that the Court must have regard to current sentencing practice and patterns when considering how an offender must be sentenced. Consistency does not mean numerical equivalence, but the consistent application of relevant legal principles. Considering past sentences is also relevant to the achievement of reasonable consistency in sentencing.
26․As the Defendant notes, there are no reported cases which are similar to the facts of this matter. Nevertheless, I have summarised below three cases from recent years which provide some assistance in understanding how the courts have approached other matters involving the sentencing of an offender for distributing intimate images.
DPP v Matas [2024] ACTSC 234
27․In Matas, the victim became aware that the offender had distributed a video of the offender and the victim engaging in consensual sexual intercourse, to two of the victim’s friends. The victim confronted the offender about it over text message and said, “ALAN WTF” and “WHO DID YOU SEND THIS TO”. The offender replied, “Should I keep sending”, “How do you like it”, and “Its to your friends”. The victim replied, “You sent a video of you fucking [me] to a bunch of people I don’t even know just for a laugh”.
28․The Court concluded that the objective seriousness of the offending was serious, noting that, although the distribution was limited to two people, it was a serious matter and a violation of the dignity of the victim. The Court stated that the offence approached the mid-range.
29․Ultimately, the Court sentenced the offender to a term of imprisonment of 18 months, reduced to 1 year, 3 months and 8 days for the offender’s guilty plea.
Morrison v Maher [2021] ACTSC 312
30․In Maher, the offender sent sexually explicit images and comments about the victim to her co-workers’ email accounts at the Australian Defence Force and to other family friends. The victim was devastated. To make matters worse, she was subject to a workplace investigation by the military police although no action was taken against her.
31․The Court concluded that the offending was in the high range of objective seriousness. The Court noted that the offending involved the sustained use of violence against a female domestic partner of the offender as a component of the manipulation and control exercised over her and that it involved serious examples of domestic violence.
32․The Court took into account the fact that the offender suffered from bipolar disorder, although the Court did not accept that there was a causal link between that condition and his offending which would reduce his moral culpability. The Court also had regard to the fact that the offender had endured a traumatic childhood, although the Court did not apply the principles developed in Bugmy v The Queen (2013) 249 CLR 571.
33․The Court sentenced the offender to a term of imprisonment of 18 months, reduced to 15 months’ imprisonment for the offender’s guilty plea.
R v Teel (a pseudonym) [2021] ACTSC 183
34․In Teel, the offender uploaded intimate images of his wife to a particular website, ‘Zoig’. The images were of his wife, naked, in their bedroom, ensuite and shower. The offender uploaded photos on five occasions, using two to four photos each time. He also sent photos by email to someone.
35․The victim felt humiliated and degraded. She was mortified.
36․Evidence was given to the Court of the Defendant’s mental health condition. At [106] the Court said:
106. You did not give any evidence suggesting that you had any difficulty in being able to restrain your urge to engage in this sexual offending. Dr Lennings gave evidence, which I accept, that your psychological conditions together with your use of pornography lead to you developing a paraphilia which was the immediate cause of your offending behaviour. He believed that your impulse control was detrimentally affected, as was your “moral compass”. On balance, I accept that evidence. That evidence, however, is not to the effect that you could not control your behaviour. Indeed, in your evidence you accepted that while alcohol abuse contributed to your offending, you still made the decisions. While your moral compass may have been skewed, you were well aware that what you were doing was wrong. For these reasons, I am satisfied that only a slight reduction in your moral culpability for this offending is warranted based on your psychological conditions and your alcohol abuse.
37․The Court sentenced the offender to 8 months’ imprisonment for each offence (each occasion he uploaded the photos), with substantial concurrency between the offences. That took into account the principle of totality and the fact that the offender had already been dealt with in the Magistrates Court for an offence against his wife that formed part of the series of offences before the Court. The aggregate sentence for the seven offences was 20 months.
Observations in relation to previous cases
38․The level of intimacy of the images distributed by the Defendant are higher than in the above cases. The extent of distribution (number of images and breadth of audience) is difficult to compare, but certainly greater than in Matas.
39․A comparison of the harm suffered by the victims of the offences is also difficult. However, the harm suffered in Morrison v Maher and Teel must have been more significant.
Subjective Circumstances
40․The Defendant relies on three considerations in support of her subjective case, namely that:
(a)the Defendant suffered childhood disadvantage, engaging the principles set out in R v Bugmy [2012] 302 ALR 192 (Bugmy);
(b)the Defendant’s offending conduct needs to be understood in the context of her being a long-term victim of serious family violence at the hands of the complainant; and
(c)the Defendant suffers from a range of mental health conditions which enliven the principles set out in R v Verdins & Ors [2007] VSCA 102 (Verdins).
41․To some extent, these considerations, and the evidence upon which the Defendant relies in support of them, overlap.
42․For reasons which I will explain, I do not accept that the Bugmy principles are applicable in this case.
43․Insofar as the Defendant relies on her having been the victim of long-term serious family violence at the hands of the complainant, I accept that the Defendant was the victim of family violence from the complainant , however the evidence as to the nature and extent of that violence is limited. In my view, the history of family violence is relevant both to the Defendant’s motivation for retribution, and to the impact of her mental health condition, with respect to the conduct that she engaged in.
44․I agree that the Verdins principles are engaged.
Report of Ms Tabitha Frew
45․Ms Frew prepared a report for the Court at the request of the Defendant, in anticipation of an application for dismissal pursuant to s 334 of the Crimes Act 1900. That application did not proceed, however Ms Frew’s report was relied on at the sentencing hearing. Ms Frew also gave evidence at the sentencing hearing.
46․Ms Frew is a clinical psychologist and there was no dispute that she is an expert in the field of psychology. There was considerable disagreement between the parties, however, as to the findings which I should make, having regard to Ms Frew’s evidence.
History informing Ms Frew’s opinions
47․The Defendant told Ms Frew that her mother told her that she was sexually abused by her father when she was very young. She had no recollection of this occurring but believes that it did.
48․The Defendant remembered that her father came home late every day after work and he and the Defendant’s mother would fight for hours, causing the Defendant to cry. She started to pull her hair out when she was about ten years old when the fighting between her parents became more intense. The hair pulling became worse when her parents separated, which was when she was 12 years old. For years she shut down emotionally.
49․The Defendant said that she always felt safe and comfortable with her mother when she was growing up, however she started being bullied at school after the children at school noticed that she was pulling her hair out. The bullying continued at college in years 11 and 12, leading to the Defendant finishing year 12 at CIT. The Defendant also said that everyone at her school spread rumours about her and she did not know why.
50․Despite the challenges she had faced during her childhood, she started work at a supermarket when she was 18 and had maintained that employment for eight years.
51․Prior to her relationship with the complainant, the Defendant was in an on-again-off-again relationship with another man. They had a child together, but that man did not want to be involved in the baby’s life and he has moved interstate. He was abusive to the Defendant during the relationship including, on one occasion, punching her and breaking her nose.
52․The Defendant’s relationship with the complainant was also abusive. Ms Frew referred to the Defendant’s statement that the complainant gave her gonorrhoea but lied about having it himself. Most concerningly, she recounts that the Defendant told her that the complainant has sexually assaulted her a few times.
53․Ms Frew also notes that the Defendant told her that, after her relationship with the complainant ended, the complainant and his new partner came to the Defendant’s store and were aggressive to staff.
Medical records
54․Ms Frew also had regard to the Defendant’s Canberra Health Services medical records, both before and after her relationship with the complainant ended. The records provide a limited snapshot of the Defendant’s mental health status after particular life-events (in mid-2020, early and mid-2022 and mid-2023) and Ms Frew does not appear to place much reliance on them in reaching her opinions.
55․The records are nevertheless relied on by the Defendant. In terms of the records which concern the complainant, which post-date the end of their relationship, they record that:
(a)the Defendant was referred by her GP on 28 July 2022 for acute mental health support after the Defendant presented as agitated, fearful, hypervigilant, with sleep disturbance and worsening low mood. The notes record that the Defendant decompensated after her car was set alight by an ex-partner, which the Defendant had told Ms Frew was the complainant. This is consistent with a claim that is made in an application the Defendant lodged for a family violence order in October 2024, in which she stated that the complainant arranged for a friend to light her car on fire shortly after their relationship ended;
(b)Access Mental Health wrote to her GP on 30 July 2022, stating that they had advised ACT Policing of the Defendant’s safety concerns but that the Defendant had declined a referral to Domestic Violence Specialist Services and the Women’s Legal Centre. The precise nature of her safety concerns is not explained and this correspondence is not referred to in Ms Frew’s report;
(c)the Defendant’s GP referred the Defendant to Access Mental Health on 26 June 2023 for urgent mental health support after the Defendant presented with tearfulness, low mood, anxiety and fear of being stalked. He identified that the Defendant had suffered significant domestic violence in the recent past and that she was getting very agitated because she thought she was being stalked and was worried that someone was going to attack her. She wasn’t coping;
(d)Ms Frew wrote in her report that the Defendant feared being stalked by the complainant but the referral from the Defendant’s GP does not identify the person whom the Defendant feared. The Access Mental Health notes from 28 June 2023 state that the person the Defendant thought was stalking her was her ex-partner’s girlfriend, not the complainant (although the Defendant may well have feared both the complainant and his partner as a result). The notes record that the Defendant had sought assistance from the police in relation to the incidents of stalking but the police did not take any action; and
(e)the Access Mental Health notes also record that the Defendant had advised that she was a victim of domestic violence, that she was getting support from the Domestic Violence Crisis Service, and that her ex-partner was in custody. This suggests that the family violence that is discussed elsewhere in the notes refers to family violence that the Defendant had alleged that the complainant engaged in towards her, although it is not clear what form the family violence took. It seems that the reference to ‘significant family violence’ in the Access Mental Health notes has been taken from the use of that phrase in the referral that was written by the Defendant’s GP.
Psychosocial testing
56․Ms Frew conducted a number of psychosocial tests of the Defendant.
57․Having regard to the Paulhus Deception Scale, Ms Frew stated that the Defendant’s pattern of responding indicated that she was not likely to have difficulties with pathological lying, or a trait disposition toward grandiosity, or chronically deliberate deceptive acts. Similarly, on the Miller Forensic Assessment of Symptoms Test, Ms Frew stated that the Defendant’s results indicated a very low likelihood of feigning a psychiatric illness such as psychosis or PTSD.
58․Less positively, Ms Frew opined that:
(a)although the Defendant is typically able to function adequately, there are likely to be periods of marked emotional, cognitive or unpredictable moods and the feeling of being cheated, misunderstood and unappreciated. Ms Frew said that the Defendant may often feel like an overburdened and mistreated victim and that an intense conflict between dependency and self-assertion may contribute to self-pitying and rash emotionality;
(b)a desire for retribution for past mistreatment is likely to underlie the Defendant’s characteristic hostility, envy and suspiciousness. Also noteworthy are the Defendant’s gratification in undermining the pleasures and expectations of others, and her overt displays of oppositional behaviour. Ms Frew stated that, although nearly everyone behaves resentfully at times, what distinguishes the Defendant is the ease with which she can be provoked into acting in a resentful manner and the regularity with which she manifests obstinate behaviour (amongst other things).
Ms Frew’s diagnoses of the Defendant
59․Ms Frew diagnosed the Defendant as suffering ASD, level two (moderate level of severity). In this context, Ms Frew noted that the Defendant had been prolifically bullied from late primary school and that the effects of bullying cause deeper harm and last longer for children with Autism in comparison to neurotypical peers.
60․Ms Frew said that people with ASD, especially women, are more likely to experience PTSD than the general population. Ms Frew considers that the Defendant developed PTSD symptoms after exposure to family violence in her relationship with the father of her children, on the background of a history of prolific bulling and social exclusion at school.
61․Neither of these diagnoses are in issue.
62․Ms Frew stated that the Canberra Health Services records indicated that the Defendant experienced a deterioration in her mental state following exposure to family violence in her relationship with the complainant and the subsequent threats and harassment from the complainant’s partner, which caused a relapse of symptoms of PTSD.
63․Ms Frew noted that the Canberra Health Services records indicate that the Defendant also had pre-existing diagnoses for other conditions. Ms Frew noted a diagnosis of cannabis use disorder and agreed that the Defendant suffered from trichotillomania (hair-pulling disorder).
64․She disagreed that the Defendant suffers from Borderline Personality Disorder, stating that her provisional opinion was that the Defendant’s presentation is better explained by the impact of her ASD, PTSD, trichotillomania and chronic cannabis use on her functioning. Similarly, Ms Frew considers that the Defendant’s self-report of auditory hallucinations is related to an Autism-specific experience of abnormal perception, rather than schizophrenia (a possible diagnosis that the Defendant had raised with Canberra Health Services at one stage).
Ms Frew’s opinions with respect to the Defendant’s offending conduct
65․Ms Frew concluded that the Defendant’s perception of others, and how she interprets another person’s intent, is affected by Autism, and this had a causal contribution to the commission of the present offence to a moderate degree. She opined that the Defendant’s decision to distribute the complainant’s images despite the complainant’s requests to remove them from her social media, was an attempt to safeguard her autonomy and to feel some control over the complainant’s future actions.
66․Ms Frew said that, while it would make more sense to avoid actions which could provoke violence from an ex-partner, some people with ASD experience a fight, flight or freeze reaction when confronted with demands that challenge their independence, leading to heightened emotional responses. She said that this type of heightened emotional response is distinctly characterised by an intense inclination to avoid demands, even when the person actually wants to comply with the request.
Challenge to Ms Frew’s opinion that the Defendant’s actions were caused by her mental health condition – the flight or fright response
67․In cross-examination, the Prosecution challenged the notion that the Defendant’s conduct involved a flight or fright response, given that the offending occurred over several months, with repeated requests for the Defendant to remove the complainant’s images from social media. Ms Frew maintained her view. She said that, because of the nature of the Defendant’s relationship with the complainant (involving family violence), which exacerbated her symptoms of PTSD, the impact of her ASD meant that the Defendant failed to exercise appropriate judgment each time a request to remove the material was made.
68․Ms Frew opined that, while the Defendant’s online persona maintained a façade of independence, it was indicative of an Autism-specific form of resistance to threat. She said that this resistance was based in fear and extreme anxiety rather than antisocial motivations.
69․Mr Frew considered that, in reality, the Defendant’s behaviour was characterised by fear, a deterioration in her mental state, reports to police, presentation to health services and seeking a family violence order to protect her and her daughter. Ms Frew’s assessment of the Defendant’s presentation was that she was ‘terrified of the [the complainant] and his enduring capacity for malice toward her’.
70․Ms Frew opined that the Defendant’s Autism-related deficits in social and emotional understanding, in the context of the risk to her safety posed by the complainant’s history of family violence towards her, and the associated exacerbation of her symptoms of PTSD from the family violence, impaired her ability to exercise appropriate judgment. Ms Frew considered that the Defendant erroneously perceived that non-compliance with the complainant’s requests to remove the images from her social media would reduce the likelihood of further harm towards her and was the most reasonable way to maintain control over her safety.
Challenge to Ms Frew’s opinion that the Defendant’s actions were caused by her mental health condition – reliance on history of family violence committed by the complainant as a contributing factor to Defendant’s mental health condition
71․A key element of Ms Frew’s reasoning, in support of her view that the Defendant’s mental condition had been a causative factor in offending, was thus an acceptance that the Defendant had been subject to family violence at the hands of the complainant, that he posed an ongoing risk to her safety and that this led to fear, a deterioration in the Defendant’s mental state and an exacerbation of her PTSD symptoms.
72․The Prosecution cross-examined Ms Frew in relation to the extent to which her opinion was premised on the complainant having engaged in family violence towards the Defendant during their relationship. The Prosecution submits that there is little evidence of family violence prior to the Defendant engaging in the present offending.
73․Ms Frew said that the Defendant’s judgment would have been less impaired in the absence of a history of family violence from the complainant but that it was difficult to know how she would have reacted without that history. She said that, while the relationship exacerbated the Defendant’s PTSD, it is difficult to say how much it contributed.
74․I find it difficult to understand that view.
75․Firstly, I note that, in re-examination Ms Frew, she said that it was not possible to distinguish between the impact of the Defendant’s PTSD and her ASD, given that the offending involved an interpersonal relationship. This suggests that it is Ms Frew’s view that the Defendant’s PTSD (which she considered had been exacerbated by the complainant engaged in family violence towards the Defendant) was a significant contributing factor driving her offending.
76․Secondly, a central premise of Ms Frew’s opinion as to the cause of the Defendant’s conduct is that the Defendant perceived that non-compliance would reduce the likelihood of further harm towards her. That is, it was an attempt to safeguard her autonomy and to feel some control over the complainant’s future actions.
77․If there had not been any family violence in the relationship, she might still have wished to safeguard her autonomy but there would have been no threat to her safety to guard against. Indeed, later in her evidence, Ms Frew noted that the Defendant’s fear of violence led to the offending conduct.
78․It is thus clear that Ms Frew’s acceptance that there had been family violence engaged in by the complainant towards the Defendant was an important element of her reasoning as to why the Defendant acted in the way that she did.
79․As noted earlier in these reasons, I accept, as the Prosecution submits, that there is limited evidence as to the family violence that the complainant engaged in towards her.
80․The records which describe the Defendant’s experience of family violence at the hands of the complainant are quite general in nature. For example, the Access Mental Health notes record that the Defendant advised that she was a victim of domestic violence but do not identify what form that violence took. Similarly, they record that ACT Policing had been advised of the Defendant’s safety concerns, but do not identify what those concerns were.
81․In her application for a family violence order in 2024, the Defendant states that her relationship with the complainant was characterised by sexual, physical, emotional and verbal violence. However, the Defendant did not provide any examples of such violence.
82․The Defendant points to the fact that she was granted a family violence order in September 2022, which was extended for 12 months in September 2023. However, I understand from the Prosecution’s submissions that the September 2022 order was made on a ‘without admissions’ basis.
83․The Defendant submits that that is irrelevant because, regardless, the order stands as a contemporaneous allegation of family violence that was serious enough to warrant a court order. I disagree. By its very nature, an order that is made on a without admissions basis involves no assessment or finding that there has been family violence. Thus, the basis upon which the order was sought remain allegations only.
84․Similarly, the Defendant notes that the family violence order she applied for in 2024 was granted, however I understand that it was granted as an interim order. Accordingly, it would almost certainly have been granted on an ex-parte basis, leaving the allegations in it untested.
85․Despite the foregoing, there is evidence that the Defendant has been the victim of family violence at the hands of the complainant. The Defendant has made, and maintained, her claims of family violence over time and she has described a number of specific incidents.
86․The Defendant told Ms Frew that the complainant had sexually assaulted her on more than one occasion during the relationship and, shortly after the relationship ended, her car was set alight by a friend of the complainant. She also said that the complainant and his new partner came to the shop where the Defendant worked and were aggressive to staff, raising issues for her employment at the shop.
87․All of these incidents occurred prior to the conduct for which the Defendant is charged in these proceedings.
88․There is also evidence of the Defendant’s mental health deteriorating at the end of her relationship with the complainant. She was referred to Access Mental Health by her GP in July 2022 for acute mental health support after the Defendant decompensated following her car being set alight. That referral is also a contemporaneous record of the Defendant’s claim with respect to the setting alight of her car, adding weight to its credibility. I note that this incident is also referred to in the Defendant’s 2024 application for a family violence order.
89․The Defendant also points to incidents which have occurred after the offending conduct which is the subject of these proceedings.
90․In her 2024 application for a family violence order, the complainant describes several incidents which occurred after the end of her relationship with the complainant. She says that, while the 2022 family violence order was in place, the complainant located her father’s house and threw paint stripper on the Defendant’s step-mother’s car. The complainant drove past the Defendant, recording her walking into the police station to make a statement.
91․The Defendant submits that, in January 2023, the complainant smashed the Defendant’s car with a crowbar and breached the family violence order that was then in place. It is possible that the breach of the family violence order relates to the incident in which the complainant is said to have driven past the Defendant when she attended the police station.
92․I note that, subsequent to the sentencing hearing, the complainant was found guilty of contravening the family violence order that was in place to protect the Defendant but he was found not guilty of damaging her property. In circumstances where the complainant has been found to have contravened the family violence order that was put in place for her protection, I accept the Defendant’s assertion that the complainant located her father’s house and threw paint stripper on her step-mother’s car and located her and filmed her going into the police station to make a statement.
93․The Defendant submits that the complainant’s conduct of January 2023 is indicative of the violence that the Defendant endured during their relationship. The basis of that submission is that the court would understand that individuals who engage in violence after a relationship has ended are likely to have also engaged in violence during the relationship.
94․I accept that this may sometimes be true, but I do not accept that it describes a ‘likely’ scenario. Sometimes, a partner to a relationship who feels wronged will engage in acts of, for example, property damage, by way of retribution, without having engaged in violence during the relationship.
95․Here, the complainant was clearly upset by the Defendant’s conduct of making his image available for sale, and posting his image on her social media page, over a protracted period. That he would take steps in retribution for her conduct is at least equally likely to the possibility that his conduct reflects the fact that he was violent towards the Defendant during their relationship.
96․Nevertheless, I do accept that the complainant’s conduct is consistent with the Defendants’ assertions that the complainant committed acts of family violence during the relationship, and that he has continued to do so subsequent to the end of that relationship.
97․Ultimately, I accept for the purposes of this sentencing exercise the Defendant did suffer family violence at the hands of the complainant prior to her engaging in the offending which is the subject of these proceedings. Most obviously, this includes having her car set alight but I am satisfied that there were instances of family violence that the complainant committed during the course of the relationship, as the Defendant says occurred, inclusive of physical and verbal abuse. I cannot make any findings, though, as to specific incidents on the basis of the evidence before me.
98․Accordingly, I also accept that there was a basis for Ms Frew’s opinion that the Defendant’s relationship with the complainant involved family violence, which exacerbated her symptoms of PTSD and caused her to fear the complainant.
Challenge to Ms Frew’s opinion that the Defendant’s actions were caused by her mental health condition – impact of the Defendant’s desire for retribution on offending conduct
99․Another key aspect of the Prosecution’s challenge to Ms Frew’s conclusions was the proposition that Ms Frew had not adequately accounted for the Defendant’s desire for retribution in giving her opinion as to the drivers for the Defendant’s conduct.
100․The Defendant submits that, to the extent that a desire for retribution is a feature of the Defendant’s personality, that cannot be divorced from her ASD because her personality is indivisible from her ASD. I disagree.
101․Ms Frew’s report does not suggest that every person with ASD has the same personality traits, nor that a desire for retribution is a common personality trait for someone diagnosed with ASD. Further, the observations that Ms Frew made, that the Defendant’s ‘desires for retribution for past mistreatment are likely to underlie her characteristic hostility’ and that what distinguishes the Defendant’s capacity for resentment ‘is the ease with which she can be provoked into acting in a resentful manner and the regularity which she manifests … obstinate behaviour’, were made in the context of Ms Frew’s discussion of the Defendant’s general personality structure, not in the context of the Defendant’s ASD diagnosis.
102․In this respect, I note that Ms Frew was asked a number of questions in cross-examination about the impact of the Defendant’s desire for retribution and her answers seemed to indicate that the Defendant’s desire for retribution and her ASD were factors that independently impacted the Defendant’s actions. For example, Ms Frew gave evidence that:
(a)people with ASD are less likely to commit offences of the kind that the Defendant did, but the Defendant’s betrayal trauma led to a desire for retribution – the offending gave her an outlet to direct the hurt she felt at being betrayed;
(b)the Defendant’s conduct could have been driven by both a desire for retribution and her ASD; and
(c)the Defendant’s actions were more about having control and protecting herself than retribution.
103․While Ms Frew also said that the personality testing should be interpreted as part of the ASD, and that it wasn’t possible to take Autism out of person, she then said that, if a person did not have some trauma, her personality may not have developed to seek retribution. There is no suggestion in Ms Frew’s report, or her evidence, that the trauma suffered by the Defendant played any role in the development of her ASD.
104․Taking Ms Frew’s evidence as a whole, including her report, I understand the Defendant’s desire for retribution, and the ease with which she can be provoked into acting in a resentful manner, are aspects of her personality that are separate from her ASD. That aspect of her personality may have been moulded by trauma the Defendant has experienced in her life but Ms Frew gave no evidence as to the likelihood that that was the case. As previously discussed, Ms Frew’s opinion is that at least some aspects of the Defendant’s trauma led her to develop PTSD.
105․In my view, a material contributing factor to the Defendant’s conduct, separate from her mental health condition, was a desire for retribution against the complainant, for the family violence he had committed against her and for the betrayal that Ms Frew identified that the Defendant felt that the complainant had exhibited.
106․Ms Frew opined that a period of imprisonment would have an adverse effect on the Defendant in terms of worsening her PTSD, cannabis use disorder and trichotillomania. She said that the Defendant would likely leave custody unable to appropriately parent her daughter or maintain regular employment.
Bugmy principles
107․I do not accept that the Bugmy principles are engaged in this matter.
108․The Defendant submits that she was exposed to family aggression at an early age. The only evidence of that fact is the statement that the Defendant made to Ms Frew that she was witness to her parents arguing when her father came home from work each day, which upset her to the point that she cried and ultimately led to her developing trichotillomania when the fighting became more intense and shutting down emotionally when her parents separated.
109․She lived with her mother after her parents separated. She visited her father but did not like going to his house. She said that she felt safe and comfortable with her mother when she was growing up.
110․Accepting this recollection at face value, I do not accept that is establishes that the Defendant suffered childhood disadvantage in the sense contemplated in Bugmy. Nor do I accept that there is a sufficient link between her childhood experience and the offence such that her experience can, to any extent, explain her offending.
111․The Defendant also refers to having been bullied at school, which she attributed to children noticing that she was pulling out her hair. Ms Frew records that the bullying became so bad that the Defendant ended up leaving Canberra College and finishing her Year 12 certificate at CIT.
112․Ms Frew also notes that the Defendant said that she did not know how to approach other children and make friends, and that it was a mystery to her that other children made friends so easily. Again, while Ms Frew included this statement after describing the Defendant’s recollection that she was bullied for pulling her hair out, it suggests that the Defendant’s social struggles went beyond her hair pulling condition. From Ms Frew’s description of the impact of the Defendant’s ASD on her ability to relate to others, I suspect that that condition had a role to play in her experience of school, both in terms of how she perceives she was treated and in terms of how other children interacted with her.
113․Nevertheless, I do not accept that the Defendant’s experiences at school reflect childhood disadvantage of the kind contemplated by Bugmy. Nor do I accept that it explains, to any extent, her offending conduct. In saying this, I note that Ms Frew’s opinion that the Defendant suffers from PTSD was in part based on the bullying and social exclusion that she had experienced at school and that her PTSD explains, to some extent, her offending conduct. Her experiences at school are therefore relevant, not on the basis that they engage the Bugmy principles but in the application of the Verdins principles.
114․The Defendant submits that her early experiences of relationship dysfunction would have led her to believe that such dysfunction was an ordinary part of relationships, making her more likely to become a victim of family violence in the future. I accept that the Defendant is a vulnerable person. This is most obviously because of her mental health conditions, including the contribution that childhood bullying made to her suffering PTSD. It is also possible that her childhood experience at home also contributed to her vulnerability, including the possibility that she was sexually abused as a child as her mother told her had occurred.
115․However, it is not clear to me, even if that vulnerability did make it more likely that she would become a victim of family violence, as the Defendant submits, how her experience explains, to any extent, her offending conduct. The fact that she was more likely to be a victim of family violence does not explain why she would be a perpetrator of family violence, at least not in any way that is distinct from the impact of her PTSD on the commission of her offence.
Mental health condition
116․In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, McClellan CJ at CL (with whom Simpson J and Barr AJ agreed) said, at [177]:
Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing ... They can be summarised in the following manner:
Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...
It may also have the consequence that the offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed …
It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced …
It may reduce or eliminate the significance of specific deterrence …
Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence …
Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public …
117․I accept Ms Frew’s opinion that the Defendant’s mental health condition contributed to the commission of the present offence in a material way. The Defendant’s Autism-related deficits in social and emotional understanding, in the context of the risk to her safety posed by the complainant’s history of family violence towards her, and the associated exacerbation of her symptoms of PTSD from the family violence, contributed to her offending to a moderate degree. As I noted earlier in these reasons, I found that the Defendant’s moral culpability is also reduced to a moderate degree. The need to denounce the offending conduct is similarly reduced.
118․However, as I have also found, a material contributing factor to the Defendant’s conduct, separate from her mental health condition, was a desire for retribution against the complainant, for the family violence he had committed against her and for the betrayal that Ms Frew identified that the Defendant felt that the complainant had exhibited. This limits the extent to which the weight to be given to specific and general deterrence would otherwise be reduced by the impact of the Defendant’s mental health condition. Nevertheless, I accept Ms Frew’s opinion that the Defendant’s actions were more driven by a desire to protect herself than to effect retribution.
119․I accept that a custodial sentence is likely to weigh more heavily on the Defendant.
Remorse and Contrition
120․There is no evidence that the Defendant is remorseful for her conduct.
Criminal History
121․The Defendant’s criminal history is not long, but it does include offences which are relevant to the present offending.
122․The Defendant’s most recent offence was aggravated common assault. It was committed at the beginning of the period covered by the present offending and was also in a family violence context. The Defendant submits that this offence was committed against her mother and was not serious, resulting in a non-conviction order.
123․The Defendant also has four convictions for contravening a protection order and one conviction for property damage. These offences were committed between March 2016 and March 2017 and, like the present matter, I understand from the Prosecution’s submissions that they were also committed in a family violence context.
124․The Defendant also has one conviction for common assault, in 2017, as well as for a number of driving offences which are not relevant.
125․The Defendant’s history does not entitle her to leniency. Rather, it indicates that specific deterrence is a relevant purpose of sentencing. The weight to be given to that consideration is impacted, however, by the relevance of the Defendant’s mental health condition to the commission of the present offence and by the fact that most of the Defendant’s offending history is somewhat dated now.
126․Ms Frew notes that the Defendant’s history of offending appeared to have reduced in severity and frequency after the birth of her daughter in January 2021. Ms Frew noted that, coinciding with the birth of her daughter, the Defendant had reached an age where her neurocognitive development is likely to have reached maturity, such that she was likely to have improved in her capacity to self-regulate and make prosocial choices.
Plea of Guilty
127․The Defendant entered a plea of guilty on the day of the hearing. She had apparently advised the Prosecution four days prior to the hearing that she would be pleading guilty and, accordingly, no witnesses were required to attend the hearing.
128․At that time she entered her plea of guilty, the Defendant sought to have the charge against her dismissed pursuant to s 334 of the Crimes Act 1900. The pursuit of that application was delayed until January 2025, whilst the Defendant obtained medical evidence in support of it.
129․Ultimately, the Prosecution did not consent to the matter being dealt with under s 334 of the Crimes Act 1900 and it was listed for hearing on 4 March 2025, when the matter came before me for sentence.
130․I agree with the Prosecution that a discount of 10% on the Defendant’s sentence is appropriate in the circumstances.
Parties’ submissions as to appropriate disposition
131․The Defendant seeks a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (Sentencing Act). She submits that:
(a)the objective seriousness of, and the Defendant’s moral culpability for, the offending is low;
(b)her childhood trauma sheds light on her offending, in that it made it more likely that she would enter relationships with abusive individuals such as the complainant;
(c)her history of abuse at the hands of the complainant and her mental health condition had a causal effect on her offending;
(d)the application of the Verdins principles reduce the weight to be given to specific deterrence, general deterrence and punishment as sentencing considerations; and
(e)the need for community protection is low.
132․The Defendant submits that these factors amount to ‘compelling reasons’ justifying a departure from the ordinary outcome of a finding of guilt. The Defendant submits that a non-conviction order, coupled with a Good Behaviour Order, would be an appropriate disposition of the matter.
133․The Prosecution submits that nothing other than a term of imprisonment is appropriate. The Prosecution submits that:
(a)the offending was objectively serious;
(b)the Defendant continued to distribute the videos in the face of the complainant’s clear expression of non-consent, such that her moral culpability is high;
(c)the Defendant has a history of family violence offending;
(d)the Defendant’s subjective case does not mitigate her offending to any significant degree because her childhood background and mental impairment do not have the mitigatory effect argued for by the Defendant; and
(e)the sentencing principles of general deterrence, specific deterrence and protection of the community remain paramount.
Decision in relation to section 17 application
134․I note that a conviction is the ordinary consequence of a finding of guilt and that the absence of a conviction is, therefore, an exceptional outcome. Further, as the NSW Court of Criminal Appeal said in R v Mauger [2012] NSWCCA 51, in discussing a similar provision that operates in NSW:
Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of the section decreases.
135․Of course, the application of s 17 of the Sentencing Act is not limited to minor offences. I also accept that an order under s 17 can be made in conjunction with a good behaviour order, which itself is a form of punishment.
136․Ultimately, the question is whether, having regard to the considerations set out in section 17, there are sufficiently cogent or compelling circumstances to warrant a departure from the usual course.
137․I have set out my views in relation to the factors that the parties raised in support of their positions in the course of these reasons.
138․Despite the reduction in the Defendant’s moral culpability for the impact of her mental health condition, I do not consider that it is appropriate to exercise my discretion under s 17 not to record a conviction. In my view, the purposes of sentencing would not be adequately met by a s 17 disposition, having regard, in particular, to the seriousness of the offending (both in terms of the seriousness of the offence and the objective seriousness of the offending conduct), and the need for specific deterrence and protection of the community.
Purposes of sentencing
139․For the reasons I have already articulated, the need to denounce the Defendant’s conduct is reduced to a moderate degree by reason of the impact of her mental health condition. The appropriateness of the Defendant’s case as a vehicle for general deterrence and the need for specific deterrence is similarly reduced but by no means eliminated given that the Defendant was also motivated by retribution.
140․The Defendant’s desire for retribution for past mistreatment, and the ease with which she can be provoked into acting in a resentful manner, as elements of her personality which played a part in the present offence, mean that protection of the community is a relevant purpose of sentencing, despite the somewhat dated nature of the Defendant’s relevant criminal history. Nevertheless, the Defendant’s history suggests that she does not pose a particularly high risk of reoffending.
141․I take into account the harm caused to the complainant. Of course, I also need to take into account the considerations in s 34B of the Sentencing Act and the matters mentioned in the preamble to the Family Violence Act 2016. In that respect, I note that freedom from family violence is a human right. I also acknowledge that the Defendant’s actions were, in part, caused by a deterioration of her mental health as a result of the complainant engaging in acts of family violence towards her.
Sentence
142․Ultimately, I must ensure that the Defendant is adequately punished in a way that is just and appropriate.
143․I have had regard to the maximum penalty for the offence. In this respect, I note that, even though the limit of the Court’s jurisdiction in this matter is lower than the maximum penalty, I am required to conduct an initial assessment of the appropriate sentence without reference to that jurisdictional limit.
144․Pursuant to s 10(2) of the Sentencing Act, the court may only sentence the Defendant to imprisonment if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. Having considered all the sentencing options, the objective seriousness of the offending conduct and the purposes of sentencing, it is my view that there is no appropriate alternative to imprisonment in this matter. I take that view despite the reduction in the Defendant’s moral culpability that arises because of the impact of her mental health condition and in the acknowledgment that the Defendant’s offending was, in part, a reaction to acts of family violence that had been committed against her by the complainant.
145․I have determined that the appropriate sentence is 6 months’ imprisonment, reduced by 10% to 5 months and 12 days on account of the Defendant’s guilty plea.
146․However, having regard to the circumstances of the offending, the contribution that her mental health condition had to the commission of the offending, and the burden that full time custody would place on the Defendant (including both the impact of her mental health condition and her parenting responsibilities), I will suspend the term of imprisonment on the Defendant entering into a 12 month Good Behaviour Order.
147․The Defendant will be subject to the core conditions of a Good Behaviour Order only.
Orders
148․Accordingly, I make the following orders:
(a)I record a conviction in relation to charge 4243/2023.
(b)The Defendant is sentenced to 5 months and 12 days’ imprisonment, commencing on 14 March 2025.
(c)The sentence is to be wholly suspended upon the Defendant entering into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months.
| I certify that the preceding one-hundred and forty-eight [148] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Niamh Dwyer Date: 14/04/2025 |
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