Police v Paul Stanik
[2022] ACTMC 2
•18 February 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Paul Stanik |
Citation: | [2022] ACTMC 2 |
Hearing Date(s): | 2 & 18 February 2022 |
DecisionDate: | 18 February 2022 |
Before: | Magistrate Theakston |
Decision: | See [28] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Driving with prescribed drug in oral fluid – contravene protection order – stalking with intent to harass – use carriage service to harass |
Legislation Cited: | Crimes Act 1900 (ACT), s 35, s 374 Criminal Code 1995 (Cth), s 474.17(1) Criminal Code 2002, s 360(1) Crimes (Sentencing) Act 2005 (ACT), s 72, s 34 Family Violence Act 2016 (ACT), s 43 Road Transport Alcohol and Drugs Act 1988 (ACT), s 20 |
Parties: | Justin Houlahan (Informant) Sandeep Singh (Informant) Caleb Boxx (Informant) Paul Stanik (Offender) |
Representation: | Counsel J Melloy (Informant) J Johnson (Offender) |
| Solicitors ACT Director of Public Prosecutors (Informant) Hugo Law Group (Offender) | |
File Numbers: | CC 2545/2021 CC 8421/2021 CC 10169-74/2021 CC 10217/2021 CC 10301-2/2021 CC 11524/2021 CC 11526/2021 |
MAGISTRATE THEAKSTON:
Introduction
The offender has pleaded guilty to a number of charges and is being sentenced by me. These are my reasons for sentencing.
I will start by describing the charges, including the agreed facts and the timing of the offender’s pleas of guilty.
First series
Charge
Description
Date
Maximum penalty
CC2545/2021
Drive with prescribed drug in oral fluid (contrary to s 20(1) of the Road Transport Alcohol and Drugs Act 1988 (ACT))
6 Mar 21
10 penalty units
The first series involves the single charge of driving with a prescribed drug in oral fluid. The offender is a first offender and was observed driving in Condor on 6 March 2021, just after lunchtime, with deta-9-tetrahydrocannabinol in his oral fluid. He is a first offender. There were no aggravating features and he entered a late plea of guilty after initially pleading not guilty, but well before the listed hearing date. He claimed he had used two drops of cannabis oil the night before.
Second series
Charge
Description
Date
Maximum penalty
Jurisdictional maximum
CC 8421/2021
Contravene protection order (contrary to s 43(2) of the Family Violence Act 2016 (ACT)
11 Aug 21
Imprisonment 5 years
Imprisonment 2 years
The second series involves the offender contravening a family violence order. The order was made on 27 July 2021, in favour of his wife and was served on 6 August 2021. It included a condition not to be within 20 metres of his wife. Days later on 11 August 2021, the offender attended the Wanniassa Police Citizens Youth Club where his wife was with four of their children. He approached her from behind and stood three metres behind her. She turned to notice he was there, and he then left. The offender entered a late plea of guilty after an initial plea of not guilty, again well before the listed hearing date. This offending was brief, and opportunistic in nature. There is no evidence of considered planning.
Third series
Charge
Description
Date
Maximum penalty
Jurisdictional maximum
CC 10172/2021
Contravene protection order (contrary to s 43(2) of the Family Violence Act 2016 (ACT))
Between 5 Sep & 8 Oct 21
Imprisonment 5 years
Imprisonment 2 years
CC 10173/2021
Stalking with intent to harass (contrary to s 35(1)(b) of the Crimes Act 1900 (ACT))
Between 29 Jul & 8 Oct 21
Imprisonment 5 years
Imprisonment 2 years
CC 10174/2021
Use carriage service to harass (contrary to s 474.17(1) of the Criminal Code (Cth))
Between 29 Jul and 8 Oct 21
Imprisonment 3 years
Imprisonment 1 year
The next series involves the offender contravening a protection order, using a carriage service to harass and stalking with intent to harass. On 30 July 2021, the offender caused his son to call his wife twice and verbally abuse and harass her regarding the above order. His wife could hear the offender coaching their son about what to say.
From 4 to 8 August 2021, the offender left 15 voice mail messages on his wife’s phone. Many were harassing and abusive and included accusing her of drug activity, harming the children and lying to Child and Youth Protective Services, calling her a cunt, slut, bitch and junkie. He also sent numerous abusive and harassing text messages to her. The offender was subject to both bail conditions and the family violence order prohibiting contact with his wife and any harassing or abusive behaviour. Clearly these charges cover considered and repeated offending over a period of time. The repeated nature of this offending warrants a punishment proportionate to that feature, including the accumulated impact upon the victim and the demonstrated indifference to the protection order.
Fourth series
Charge
Description
Date
Maximum penalty
Jurisdictional maximum
CC 10169/2021
Stalking with intent to harass (contrary to s 35(1)(b) of the Crimes Act 1900 (ACT))
Between 30 Sep – 8 Oct 21
Imprisonment 2 years
CC 10170/2021
Using carriage service to harass (contrary to s 474.17(1) of the Criminal Code (Cth))
30 Sep 21
Imprisonment 3 years
Imprisonment 1 year
CC 10171/2021
Impersonate Territory public official (contrary to s 360(1) of the Criminal Code 2002 (ACT))
6 Oct 21
Imprisonment 2 years
The next series involves the charges of stalking, use carriage service to harass and the impersonation of a Territory public official. On 30 September 2021, the offender telephoned the Police Citizens Youth Club and left a voicemail message with his name and indicated that he wished to make a formal complaint against a particular youth worker who had been working with the offender’s family. Later that same day, the offender left another voicemail message and requested the youth worker contact a particular police officer as charges would be coming. On 6 October 2021, the offender telephoned the Police Citizens Youth Club and spoke to a staff member. He claimed to be a particular officer from Child and Youth Protective Services and requested to speak to the same youth worker. The staff member indicated she believed it was the offender calling. On 8 October 2021, the offender sent two text messages to the youth worker that were offensive, abusive and harassing. The calls caused the youth worker to feel anxious, stressed and harassed. The offender pleaded guilty to each of the three charges after five appearances. The offending was malicious and appeared to be directed at the victim due to his role as the youth worker assisting the offender’s children.
Fifth series
Charge
Description
Date
Maximum penalty
Jurisdictional maximum
CC 10217/2021
Contravene protection order (contrary to s 43(2) of the Family Violence Act 2016 (ACT))
9 Oct 21
Imprisonment 5 years
Imprisonment 2 years
CC 10301/2021
Stalking with intent to harass (contrary to s 43(2) of the Family Violence Act 2016 (ACT))
Between 9 & 13 Oct 21
Imprisonment 5 years
Imprisonment 2 years
The next series involves contravention of the family violence order and stalking charges. On 9 October 2021 and the day after his arrest, the offender called his son from the Alexander Maconochie Centre (‘AMC’). He directed his son to say certain harassing and threatening things to his wife and to put the phone on speaker. Once on speaker, the offender told his wife several times to ‘get the fuck out of my house’.
After that phone call, the offender completed a telephone contact list form and nominated his wife’s number. He attributed that number to the name of his wife’s grandmother. AMC staff used the number, spoke to the offender’s wife, and then placed that number on the AMC’s no contact register.
The offender pleaded guilty to each of these charges at a relatively early time.
The indifference and sense of entitlement demonstrated by the offender is breath taking. He demonstrated an intent to harass his wife, notwithstanding the existence of the protection order and notwithstanding being remanded in custody due to the risk of him re-offending. This offending demands a degree of specific deterrence, adequate to persuade this offender that he is better off complying with the protection order than not, and not stalking his wife.
I also note that s 72 of the Crimes (Sentencing) Act 2005 (ACT) requires that any sentence of imprisonment for these offences, which were committed while the offender was in lawful custody, should be consecutive with any other sentence imposed, unless the court makes an order otherwise. I do not consider it to be appropriate to make such an order, other than for concurrency between these offences within the same series where the same conduct creates more than one offence. This is necessary to avoid double punishment.
Sixth series
Charge
Description
Date
Maximum penalty
Jurisdictional maximum
cc 11524/2021
Attempt to contravene protection order
Between 1 & 26 Nov 21
Imprisonment 5 years
Imprisonment 5 years
cc 11526/2021
Attempted to stalking with intent to harass
Between 1 & 26 Nov 21
Imprisonment 5 years
Imprisonment 5 years
The final series involves attempting to contravene the protection order and attempting to stalk the offender’s wife with the intention to harass. On 1 November 2021, the offender requested the staff at the AMC to post a letter he had addressed to his son. The letter was seven pages in length and directed his son to tell the offender’s wife a range of things, touching on topics of his wife possibly having a new relationship, the custody of the children, treatment for mental health issues, divorce and requesting his wife to write and arrange visits. The letter was not posted and instead provided to the police.
On 12 November 2021, the offender requested the staff at AMC to post another letter, again addressed to his son. That letter was six pages in length and again requested his son to tell his wife to write. The letter was not posted and returned to the offender.
The offender subsequently re-addressed the letter to his brother and requested AMC staff to post the same. It was not posted.
The offender subsequently wrote five letters to his brother, all of which were not mailed by the staff at AMC. In the first letter, the offender told his brother to tell his wife ‘no boyfriend’ and in the third to write him a letter.
The offender pleaded guilty to each of these two charges, the first time they were before the court.
This set of offending has similar features to the last set and occurred while the offender was in lawful custody. Again, I do not see it appropriate to depart from the sentences being consecutive, other than between each offence within this series.
Jurisdiction and pleas
The prosecution elected to have most of the indictable Territory offences heard summarily pursuant to s 374 of the Crimes Act 1900 (ACT). For the balance of the indictable charges, the offender consented to them being heard summarily before this court, as did the prosecution where applicable.
I take into account the pleas of guilty to each charge. While some where not entered early, but after a brief of evidence was prepared, they all still provide a utilitarian benefit. I also accept that they demonstrate some degree of remorse and the acceptance of responsibility. I will discount the sentences I impose accordingly.
Subjective circumstances
The offender has a criminal history that involves offences of violence, but with a significant gap between the ages of 28 and 47 years.
I take into account the contents of the Pre-Sentence Report. In particular, I note the following features:
1. The offender is 52 years of age;
2. He reported a dysfunctional childhood with exposure to drug and alcohol abuse and family violence;
3. He had been with his wife for 25 years, but they are now separated;
4. The couple have five children, with the eldest living with the offender when he is in the community;
5. Child and Youth Protective Services have been involved with the family for a long time and the children were removed from his care, but their file is now closed;
6. The offender left school at 15 years, has worked in a range of roles and has, for the last 10 years, conducted a garden maintenance business;
7. He has a history with alcohol, cannabis and amphetamines, and following the removal of his children he abused sleeping pills and cannabis;
8. He is awaiting a hip replacement, has issues with a pinched nerve, suffers from Attention Deficit Hyperactivity Disorder, and has recently suffered from depression;
9. The offender has limited memory of some of the offending, expressed empathy for the impact on his children, and acknowledged the need for him to address his behaviour;
10. He also attributed some blame to his wife; and
11. He is suitable for a medium level of intervention by Corrective Services, but not suitable for community service or an intensive correction order.
The offender has been in custody since his arrest on 8 October 2021 and, while in custody, he has completed five self-paced booklet learning courses.
Consideration
The offending can be described as a course of conduct, persistent and contumacious in character, but not including any overt or implied threats of violence. The ongoing and repeated nature of the breaches, including while he was in custody, are of concern. That feature calls for a sentence that clearly, unequivocally, and directly deters the offender from offending again. There is also the need to deter others from committing similar offending. Put another way, in order for protection orders to remain an effective tool to protect vulnerable people in our community, real consequences must be anticipated for any potential breach, and the courts must not by their sentencing, inadvertently or otherwise send a message that comforts offenders who breach these orders. The message must be clear. Breaches of protection orders, in particular persistent breaches of such orders, carry a real consequence.
Most of the offences are family violence in nature. Accordingly, I take into account the considerations listed at s 34B of the Crimes (Sentencing) Act 2005 (ACT), in particular the contents of the preamble to the Family Violence Act 2016 (ACT), and the offender’s wife was at home on some of the occasions.
I am satisfied that nothing other than sentences of imprisonment would be appropriate for most of the Territory offences, other than the first two series and the impersonate Territory public official offence. For the two Commonwealth offences, the associated offending involves much of the same conduct as for the related Territory offences, and I see no need to impose additional periods of imprisonment. Accordingly, for those Commonwealth offences I will impose fines that can be served while the offender is serving his sentences of imprisonment. This also avoids complexities associated with imposing imprisonment for both Territory and Commonwealth offences, particularly where there are multiple series of offending and where there would need to be concurrency in sentences because the different offences arise out of the same conduct.
I have attempted to set individual penalties proportionate to the individual offending and have turned my mind to the aggregate sentence to ensure it is proportionate and appropriate to the totality of the offending and not otherwise crushing. I will also release the offender for a period for the purpose of encouraging rehabilitation. Such rehabilitation serves both him and the community.
Orders
The Court makes the following orders:
1. In relation to CC 11524/2021 attempting to contravene protection order, a conviction is recorded, and the offender is sentenced to 6 weeks’ imprisonment, starting on 8 October 2021 and ending on 18 November 2021. But for the plea of guilty, the sentence would have been two months.
2. In relation to CC 11526/2021 attempting to stalk with intent to harass, a conviction is recorded, and the offender is sentenced to 6 weeks’ imprisonment, fully concurrent on the previous sentence and therefore starting on 8 October 2021 and ending on 18 November 2021. But for the plea of guilty, the sentence would have been two months.
3. In relation to CC 10217/2021 contravening protection order, a conviction is recorded, and the offender is sentenced to 6 weeks’ imprisonment, fully consecutive on the previous sentence, and therefore starting on 19 November 2021 and ending on 30 December 2021. But for the plea of guilty, the sentence would have been two months.
4. In relation to CC 10301/2021 stalking with intent to harass, a conviction is recorded, and the offender is sentenced to 6 weeks’ imprisonment, fully concurrent on the previous sentence and therefore starting on 19 November 2021 and ending on 30 December 2021. But for the plea of guilty, the sentence would have been two months.
5. In relation to CC 10169/2021 stalking with intent to harass, a conviction is recorded, and the offender is sentenced to 2 months imprisonment, fully consecutive on the previous sentence and therefore starting on 31 December 2021 and ending on 28 February 2022. But for the plea of guilty, the sentence would have been 2 ½ months.
6. In relation to CC 10170/2021 using carriage service to harass, a conviction is recorded, and the offender is fined $750 with no time to pay.
7. In relation to CC 10171/2021 impersonate Territory public official, a conviction is recorded, and the offender is fined $750 with no time to pay.
8. In relation to CC 10172/2021 contravening protection order, a conviction is recorded and the offender is sentenced to 3 months imprisonment, consecutive for 2 months on the above sentence and therefore starts on 1 February 2022. This is suspended after the offender has served one month, with a good behaviour order for a period of 12 months and a probation order for a period of 9 months or such lesser period as determined by his supervisor.
9. In relation to CC 10173/2021 stalking with intent to harass, a conviction is recorded and the offender is sentenced to 3 months imprisonment, fully concurrent on the previous sentence and therefore starts on 1 February 2022. This is also suspended after the offender has served one month, with a good behaviour order for a period of 12 months and a probation order for a period of 9 months or such lesser period as determined by his supervisor.
10. In relation to CC 10174/2021 use carriage service to harass, a conviction is recorded and the offender is fined $750 with no time to pay.
11. In relation to CC 8421/2021 contravening protection order, a conviction is recorded and the offender is fined $750 with no time to pay.
12. In relation to CC 2545/2021 drive with prescribed drug in oral fluid, a conviction is recorded and the offender is fined $500 with no time to pay. He is also disqualified from holding or obtaining a driver’s licence for a period of 6 months from today.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Magistrate Theakston Associate: Linda Cao Date: 18 February 2022 |
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