R v Black
[2022] ACTSC 4
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Black |
Citation: | [2022] ACTSC 4 |
Hearing Dates: | 4 June 2021, 31 August 2021 and 8 November 2021 |
DecisionDate: | 21 January 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [178] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Use carriage service to menace, harass, or cause offence – delusional disorder – erotomanic subtype – application of Verdins principles – consideration of Intensive Correction Order – Intensive Correction Order imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 42 Crimes (Sentencing) Act 2005 (ACT) ss 11, 46C Mental Health Act 2015 (ACT) ss 19, 26, 27 |
Cases Cited: | Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP (Cth) v Boyles (a pseudonym) [2016] VSCA 267 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen ( Crown) Steven Black ( Offender) |
Representation: | Counsel B Morrisroe (4 June 2021 and 31 August 2021) and I Thomas (8 November 2021) ( Crown) F Lalic ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) | |
File Number: | SCC 66 of 2021 |
LOUKAS-KARLSSON J:
Introduction
On 16 March 2021, Steven Black (the offender) pleaded guilty to the following:
(a) Three offences of use carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) (Criminal Code). The maximum penalty for this offence is 3 years’ imprisonment.
Agreed Facts
The facts are set out in the Agreed Statement of Facts, which forms part of the Crown Tender Bundle. The agreed facts may be summarised as follows.
The three offences the offender has pleaded guilty to are particularised as follows:
Offence No. Particulars 1 Between 18 April 2020 and 31 July 2020, the offender called the victim Ms Natalie Foster (a pseudonym) 117 times. 2 Between 27 June 2020 and 31 July 2020, the offender made various Facebook posts and Twitter follow requests to Ms Natalie Foster. 3 Between 7 July 2020 and 31 July 2020, the offender made various Facebook posts and Instagram follow requests to the victim Ms Anne Cooper (a pseudonym).
As noted in the above table, there are two victims in this matter: Ms Natalie Foster and Ms Anne Cooper. The victims’ real names have been anonymised in order to protect their identities. The names Natalie Foster and Anne Cooper are pseudonyms.
Background
Natalie Foster first met the offender in January 2015 in a professional context providing legal services where the offender was a client. Natalie Foster ceased employment at the workplace where she met the offender in May 2015. Ms Foster commenced employment at another law firm (the second workplace). In February 2016, Ms Foster commenced employment at a further new workplace in the legal field (the third workplace).
In early 2019, Ms Foster was working with Anne Cooper at the new workplace. Anne Cooper has never met the offender.
This is the third occasion the offender is being sentenced for offences concerning Natalie Foster and Anne Cooper. In 2018, the offender was convicted of three offences, the conduct of which commenced in February 2015 and was directed at Natalie Foster and a colleague of hers (the 2018 sentences). In 2020, the offender was convicted of six offences relating to Natalie Foster, Anne Cooper, and Anne Cooper’s partner (the 2020 sentences).
The statement of facts for the 2018 sentences and 2020 sentences were included in the Agreed Statement of Facts. It is not necessary to set out those facts in full. It is however important to note that for the 2018 sentences, the offender was convicted and sentenced for the following offences:
(a) Contravening protection order, contrary to s 90(2) of the Domestic Violence and Protection Orders Act 2008 (ACT) (now repealed) (in relation to Natalie Foster);
(b) Stalking, contrary to s 35 of the Crimes Act 1900 (ACT) (Crimes Act); (in relation to Natalie Foster); and
(c) Use carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Criminal Code (in relation to Natalie Foster).
Further, in relation to the 2020 sentences, the offender was convicted and sentenced for the following offences:
(a) Stalking, contrary to s 35 of the Crimes Act (in relation to Natalie Foster);
(b) Stalking, contrary to s 35 of the Crimes Act (in relation to Anne Cooper);
(c) Use postal service to menace, harass or cause offence, contrary to s 474.12 Criminal Code (in relation to a package the offender sent to Natalie Foster at her new workplace);
(d) Use carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Criminal Code (in relation to Natalie Foster);
(e) Use carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Criminal Code (in relation to Anne Cooper);
(f) Use carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Criminal Code (in relation to Anne Cooper).
Offence One
Between 18 April 2020 and 31 July 2020, Ms Foster received 117 unsolicited phone calls from the offender. The calls were made on 32 days within that period. Of note, on 23 July 2020, the offender called Ms Foster 17 times and on 13 July 2020, the offender made 13 calls.
The calls appeared on Ms Foster’s phone as being made from a private number. The calls disconnected almost immediately after ringing or immediately after she answered the phone.
Ms Foster was concerned by the similarity of the calls and their increasing frequency. In light of the offender’s previous attempts to contact her, Ms Foster suspected the offender was making the calls.
Ms Foster reported the calls to police on 20 July 2020. On that occasion, Ms Foster confirmed that she had not given the offender permission to call or otherwise contact or harass her.
Offence Two
Between 27 June 2020 and 31 July 2020, the offender communicated with and about Ms Foster using Facebook and Twitter. The offender made numerous Facebook posts that related to Ms Foster and sent her three follow requests on Twitter accounts. The offender used different accounts when sending the follow requests and none of the accounts were in his own name.
The Facebook posts did not explicitly name Ms Foster. The Agreed Statement of Facts notes that the various posts are symbolical, suggestive, and cryptic, and that it can be inferred from the offender’s earlier conduct directed at Ms Foster that the posts were about her. The offender has previously used the following motifs in relation to Ms Foster and also used them in the Facebook posts:
(a)Queen, crown, swords, official crests
(b)Julia Gillard, parliament, ‘the hill’
(c)Freedom of speech
(d)Latin phrases
(e)Courts, justice, scales of justice, prison, the Alexander Maconochie Centre (AMC), convicts/ prisoners, cages, lock/ key, references to particular legal principles such as specific deterrence
(f)Ms Foster’s career
(g)Light, light of dei, star
(h)Various images of cats, including black cats
(i)Tortoiseshell
(j)#dare and #truth
(k)A black heart emoticon
(l)‘xx’
(m)‘Country girl’
(n)Biblical references
(o)Cuddling/ being in each other’s arms, spooning
(p)Reference to the matter for which Ms Foster assisted the offender as a client
(q)Reference to the Whitsundays, a place the offender travelled to around the time he met Ms Foster
The offender sent Ms Foster three Twitter follow requests from the following account handles:
(a)@dysonheydonJ
(b)@convictsRus
(c)@YourConvict77
The account @convictsRus had a biographical line which read, ‘ps. No other Twitter profiles (except 1 for our secret night xXx). No Instagram either’. The account @YourConvict77 also had a biographical line which read, ‘*kHiss*’ and ‘Truth: Your light shines brighter than even that perfect star of dei to me, it always has. You’re my star, and you always will be. I love you [black heart emoticon] Xx’.
Ms Foster uses a private Twitter account and she blocked the offender’s requests to follow her account. The offender later deleted the requests.
Third Offence
Between 7 July 2020 and 31 July 2020, the offender communicated with and about Ms Cooper using Facebook and Instagram. The offender made numerous posts on Facebook that related to Ms Cooper and sent her a follow request on Instagram using an account not in his own name.
The Facebook posts did not explicitly name Ms Cooper. As with Ms Foster, the Facebook posts in reference to Ms Cooper are symbolical, suggestive, and cryptic. The motifs that the offender used in the Facebook posts that are suggestive of them being in relation to Ms Cooper include references to Ms Cooper’s real middle name, the brand and Greek goddess Nike, as well as references to the sky, stars, heaven, and hell.
The offender sent Ms Cooper a follow request on Instagram using an unidentified account. In response to the follow request, on 13 July 2020 Ms Cooper sent the offender a private message on Instagram saying: “I don’t want you to contact me on any platform or in any way. Leave me alone, I do not know you”. The offender subsequently deleted the follow request.
On 15 July 2020, Ms Cooper reported the follow request to police. Ms Cooper also informed police about the posts she had seen on the offender’s Facebook page that she suspected were about Ms Foster and herself.
Investigation
On 31 July 2020, police executed a search warrant on the offender’s residence and seized his mobile phone. At the time the search warrant was executed, the offender gave a different name, stated that he was a special envoy, and that he had diplomatic immunity.
The offender had previously informed police in a record of interview in May 2019 that he had a romantic interest in Ms Cooper. The offender described Ms Cooper as a friend of Ms Foster’s that he had identified through Facebook.
While examining the offender’s phone, police noted that the offender was signed in on Instagram to the account that had sent Ms Cooper the follow request, the Twitter account “@convictsRus” which had sent Ms Foster a follow request, and the Facebook account where posts originated from.
Principles of Sentencing for Commonwealth Offences
The principles of sentencing for Commonwealth Offences are contained in Part 1B of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act). Section 16A(1) provides that a sentence must be of a “severity appropriate in all of the circumstances of the offences”. The Court is to have regard to the non-exhaustive list of matters set out in s 16A(2) of the Commonwealth Crimes Act.
Victim Impact
There are no formal impact statements within the meaning of s 16AAAA of the Commonwealth Crimes Act before the Court. However, the Crown Tender Bundle included both a redacted statement that Ms Foster had made to police and a redacted statement Ms Cooper had made to police.
Ms Foster
Ms Foster’s statement is dated 14 January 2021 and contains two annexures. Annexure A is a previous statement of Ms Foster dated 8 November 2016. Annexure A sets out how the offender became known to her as a client and outlines the attempts the offender made to contact Ms Foster, including sending parcels to the third workplace. As those matters do not pertain to the present offences, it is not necessary to set out Annexure A in full. It is sufficient to note that Annexure A details the offender’s prolonged and insistent attempts to contact Ms Foster, which resulted in distress to Ms Foster.
Ms Foster’s 14 January 2021 statement also contains an Annexure B, which is a redacted transcript of a record of conversation she participated in with police on 2 May 2019. In the 14 January 2021 statement, Ms Foster confirms that her answers to the questions in the record of conversation continue to represent how the offender has made her feel and still accurately details how the offender’s behaviour continues to affect her.
In the redacted transcript of the record of conversation, Ms Foster sets out that she feels scared by the contact from the offender. She stated that although it may seem innocuous to some people, in the context of repeated insistent offending, it is deeply distressing that the offender is able to find ways to try and contact her. Ms Foster stated that when she gets a friend request, she feels sick and frightened because the offender’s conduct is constant and non-stop. When asked whether the offender’s behaviour impedes on her day-to-day life, Ms Foster told police the following:
…it’s non—stop, because it’s now nearly four and a half years later, that I’m still talking about this…. I can’t go to work and feel confident because I feel that he’s sort of obsessed with me being a lawyer… when it’s sort of connected to my work, and my work is such a big part of my life, I just have this thing that’s hanging over and I can’t move forward. And I also don’t know what it will take to get rid of it…I’ve contemplated leaving Canberra…moving jobs.
Ms Foster stated that while the offending cannot stop her from living her life, it causes her varying degrees of anxiety going into public because she is in fear that she might run into him. Ms Foster reflected on the offender’s previous convictions in respect of offending against her and his time on bail and states that it has failed to stop the offender’s obsessive behaviour. Ms Foster noted that she feels hopeless, as she does not know what can get the offender to stop. Ms Foster furthered stated that she feels responsible if the offender begins to target other people.
Ms Cooper
Ms Cooper’s statement is dated 3 March 2021 and includes an Annexure A of a previous redacted transcript of a record of conversation Ms Cooper participated in with police on 29 April 2020. In the statement dated 3 March 2021, Ms Cooper confirms that the transcript of conversation accurately reflects how the offender made her feel at the time and how his behaviour continues to affect her.
When asked in the record of conversation how a follow request by the offender made her feel, Ms Cooper told police that she was concerned by the offender’s conduct as she was aware of the ongoing situation with Ms Foster and was unsure how the offender had identified her. Ms Cooper stated that it was a conundrum that the offender had been able to find her Facebook profile as she has high privacy settings and her account does not list her surname. Ms Cooper informed police she found the follow request bizarre as the connection between herself and Ms Foster was not readily apparent to her. Ms Cooper said she felt nervous as well as sensing that she may be being watched.
Ms Cooper stated that she checked the offender’s Facebook profile so that she could alter her behaviour as a precaution. For instance, if the offender’s Facebook profile showed him having coffee at a café that Ms Cooper would attend, she would ensure she did not attend that venue that same day. Ms Cooper stated that part of her motivation to check the offender’s Facebook profile was also to protect Ms Foster, so that she could alert Ms Foster if there was anything posted about her. Ms Cooper stated she felt alarmed by the offender’s interest in her as she was unsure how the offender knew who she was, how he obtained her first and middle name. Ms Cooper said that the Facebook posts raised concern and made her feel unsafe. Ms Cooper said it was very unsettling that the offender was engaging in this behaviour when she has never met the offender. Ms Cooper told police that the offender’s behaviour was impacting on her life, occupying her mind, and causing her to look over her shoulder when she goes into public.
Prosecution Submissions
Counsel for the prosecution submitted that the statement of Ms Foster and the agreed statement of facts highlights that Ms Foster has suffered significantly as a consequence of the offender’s conduct, including feeling physically sick, scared, and anxious, as well as avoiding public spaces for fear of running into the offender.
It was submitted that the impact upon Ms Foster has been significant both in terms of the offending directly against her and together with Ms Cooper. The offender’s conduct has impacted Ms Foster’s relationships with others for fear of the offender then happening upon her connections and choosing to target that person, as happened with a former colleague as well as Ms Cooper. The prosecution noted that Ms Foster feels responsible for the offender’s conduct towards Ms Cooper. It was highlighted that Ms Foster feels helpless given the amount of time that has passed since she first met the offender in 2015 and the inability of the court process to stop the offender’s behaviour.
In respect of Ms Cooper, the prosecution submitted that Ms Cooper has had to adapt her behaviour and ordinary routines for fear of running into the offender. It was noted that Ms Cooper has never met the offender and that she feels panicked in light of this fact, that the offender continues to attempt to contact her.
It was submitted that the ongoing impact on the victims as a consequence of the offender’s continued conduct could not be understated. The prosecution submitted that despite two prior sentencing proceedings, the offender’s past expressions of remorse and structured sentences in the community acknowledging his mental health conditions, the offender has continued to compromise the sense of safety and security of the victims by his repeated offending.
Offender Submissions
Counsel for the offender acknowledged that recognition of the impact of the offender’s offending upon the victims is relevant to sentencing. It was submitted that their safety and security is a paramount consideration in the sentencing exercise pertaining to the offender.
Consideration
The Court recognises the serious and long-lasting effects of such crimes on the victims and acknowledges the significant impact that offences have demonstrably had on Ms Foster and Ms Cooper. While there are no formal Victim Impact Statements before the Court, the Court further acknowledges the importance of what Ms Foster and Ms Cooper have expressed in their statements to the police.
Objective Seriousness: Nature and Circumstances of the Offending
Counsel for the prosecution submitted that all three of the offences involve a serious and prolonged course of conduct. It was submitted that the current offences occurred against a background where the offender has been convicted on two prior occasions for similar conduct against Ms Foster and on one prior occasion for similar conduct against Ms Cooper. Counsel for the prosecution submitted that the offending against Ms Foster demonstrates a persistent attempt to contact her despite Ms Foster asking the offender to stop contacting her.
Counsel for the offender conceded that the offences amount to persistent attempts by the offender to contact Ms Foster and Ms Cooper, particularly in light of the circumstances where the offender has previously been convicted in respect of similar offending pertaining to both victims. It was submitted that the present offences occurred at a time when the offender was in a psychotic state and mentally ill. Counsel for the offender further submitted that the previous instances of offending also occurred during periods when the offender’s mental health had deteriorated.
It must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. I accept the features identified by the prosecution and by the defence as set out above.
Subjective Circumstances
In evidence before me is a vast amount of material concerning the subjective circumstances of the offender. Due to the sheer number of documents, it is not possible to summarise them all. Notably the bundle includes:
(a) Pre-sentence report dated 2 June 2021
(b) Psychological Assessment Report of Dr Danielle Clout dated 16 September 2019
(c) Psychological Assessment Report of Dr Danielle Clout – Addendum dated 10 January 2020
(d) Updated Psychological Assessment Report of Dr Danielle Clout dated 18 May 2021
(e) Letter under the hand of Forensic Psychologist Leesa Morris dated 30 March 2021
(f) Letter under the hand of Treating Psychiatrist Dr Christopher Lee addressed to Dr Lee Chan dated 27 May 2021
(g) Material pertaining to a Guardianship Application before the ACT Civil and Administrative Tribunal
(h) Advance Consent Direction dated 19 May 2021
(i) Intensive Correction Order Assessment Report dated 2 June 2021
(j) Letter from the offender dated 4 June 2021
(k) NDIS Material
(l) Letter under the hand of Ivette Gonzalez – ACT Disability Aged and Carer Advocacy Service dated 5 November 2021
(m) My Rights, My Decisions Form Kit
Pre-Sentence Report
The pre-sentence report (PSR) is an updated pre-sentence report prepared by ACT Corrective Services in respect of earlier related offending for the 2020 sentences. The PSR notes that since the earlier 2020 PSR was provided to the Court, the offender was sentenced on 14 January 2020 to three months’ imprisonment that was suspended immediately upon the offender entering into a good behaviour order. That good behaviour order included a particular direction to continue to comply with medication and health treatment as prescribed.
The PSR notes that ACT Corrective Services received a letter dated 17 February 2020 that confirmed the offender had remained a consumer of Forensic Mental Health Services since 31 May 2019 and had regular contact with the Forensic Community Outreach Service team. The offender was regularly reviewed by clinicians and psychiatrists associated with these services.
The AFP emailed ACT Corrective Services on 3 March 2020 that confirmed the offender had not come to the attention of ACT Policing since 14 January 2020. On 4 March 2020, the offender’s period of community supervision by ACT Corrective Services was terminated early.
The PSR records that the offender engaged appropriately during interviews for the preparation of the PSR.
The offender referred positively to his continued relationships with his parents, with whom he resides on strict bail conditions. The offender’s father advised he witnesses his son take his prescribed medication each day and planned to continue to do so. The offender has two children who continue to reside interstate. The offender informed the PSR author that he is allowed to send them gifts, but he does not have any physical contact with them at this time.
The offender has continued to reside at his parents’ address, except for periods of hospitalisation from August 2020 to November 2020. During those periods, the offender was hospitalised at the Canberra Hospital, Calvary Hospital and the University of Canberra Psychiatric Hospital.
The offender’s father informed the PSR author that the offender has been allocated an ACT Housing property since 2019 and the address remains on hold for him with ACT Housing. The PSR notes that this information was not verified, and the offender had not indicated planning to live anywhere except his parents’ address.
The offender informed the PSR author that he ended his employment in early 2020 following his employer become aware of his prior offending. The offender had previously informed ACT Corrective Services that he was returning to part time study.
The offender identified that his loss of employment, coupled with not taking his medication as prescribed, were potential triggers for the decline in his mental health and offending behaviours.
The offender reported he is currently supporting his parents by undertaking bookwork for their family business. The offender further advised he is continuing his online university study in order to use his time productively since his discharge from hospital.
As in previous PSRs, the offender confirmed that he had a history of drug and alcohol use. The offender reported no ongoing issue with drug or alcohol use since that time.
The offender informed the PSR author that he has had no engagement with leisure or recreational activity in the period of his bail and attributed this to his curfew conditions. The offender noted that while he plays some competitive chess online, this is not an organised social activity.
The offender attributed his offending to the decline in his mental health. The offender stated he now recognises he had been experiencing delusional beliefs, that included thoughts he was in a relationship with the victim. I note at this juncture that the PSR does not specify whether this was in relation to Ms Foster or Ms Cooper. By clear inference, the reference is to Ms Foster. While the offender reported continued use of his medication in the period of his offending, the offender noted he had not been taking the medication as prescribed and attributed those circumstances to the decline in his mental health.
The PSR noted the psychological assessment report by Dr Danielle Clout dated 16 September 2019 was available for the offender’s last sentence and stated it should be before the Court for the present matters.
ACT Corrective Services received a letter from ACT Health dated 20 May 2021 which outlined the offender remained a consumer of the Forensic Community Outreach Service team until closure of his file on 19 January 2021, when primary care was transferred to Belconnen Mental Health. A phone call with Belconnen Mental Health on 28 May 2021 confirmed that the offender’s engagement with treatment has been positive.
The offender accepted the Agreed Statement of Facts and attributed his offending to a decline in his mental health. The offender advised that his diagnosis of delusional disorder had made him believe he shared a relationship with the victim. The offender stated he was now able to recognise the negative impact his offending would have had on the victim, as he is now under medical treatment and taking his medication as prescribed. I again note that the PSR does not specify whether this is in relation to Ms Foster or Ms Cooper. Again, by clear inference, the reference is to Ms Foster.
The offender reported to the PSR author that he now understood the importance of maintaining his treatment as required and appeared to welcome the continuation of his Psychiatric Treatment Order, which was listed for review in August 2021. The offender identified the support of his family, residing at his parents’ address, and noted openness to engagement with interventions as required.
The PSR author opined that as the offender is again before the Court in relation to offences against Ms Foster in the same manner, the nature of his offending is particularly concerning. This observation was made notwithstanding the offender being assessed as medium low risk of general reoffending due to his protective factors of his supportive family, accommodation, and study. The PSR acknowledged that the assessment was conducted while the offender had been effectively engaged in treatment. The PSR states that should the offender’s mental health treatment be discontinued for any reason, his assessed risk may significantly increase.
The PSR noted that if the Court were to impose a period of community supervision as part of the offender’s sentence, ACT Corrective Services would focus on monitoring his engagement with mental health treatment and health services as required. The PSR concludes that the offender is suitable for a medium-low level of intervention by ACT Corrective Services. The offender was assessed as suitable for a community service work condition.
Psychological Assessment Report of Dr Danielle Clout
Counsel for the offender tendered a Psychological Assessment Report of Dr Danielle Clout dated 16 September (the first Dr Clout report). Dr Clout conducted an assessment with the offender on 23 August 2019 in respect of the offences that the offender was sentenced for in 2020. Dr Clout is a registered psychologist.
Dr Clout opined that at the time of the report, the offender met the DSM-5 diagnosis criteria for Delusional Disorder (erotomanic subtype). The first Dr Clout report noted that Delusional Disorder is a severe mental disorder within the schizophrenia spectrum, in which an individual experiences significant delusional thinking, typically centred around a specific theme. It was noted that in the erotomanic subtype, the central theme of the delusion is that another person is in love with the individual. Attempts to contract the person or persons at the centre of the delusion is common.
The offender informed Dr Clout that the onset of his Delusional Disorder occurred in 2016, with his delusions initially centring around a romantic relationship with Ms Foster and thereafter, a relationship with Ms Cooper. The first Dr Clout report noted that the available research on Delusional Disorder indicates that it is associated with greater cognitive impairment, less insight, and a poorer response to treatment than schizophrenia. However, the functional impairment of delusional disorder is more circumscribed than for other schizophrenia spectrum disorders, which allows those living with this disorder to also exhibit normal behaviour and appearance when their delusional ideas are not being discussed and acted upon. Dr Clout noted that this factor provides insight into how the offender was able to maintain participation in work and education, notwithstanding his mental illness.
The first Dr Clout report noted that Delusional Disorder is associated with a range of impairments in cognitive, emotional, and behavioural functioning. Dr Clout reported that during acute episodes, executive functions such as decision making, impulse control, and behavioural regulation around delusional reliefs are significantly impaired. The presence of delusions also inhibits factors such as rationality, judgement, and intention.
The first Dr Clout report opined that the offender would benefit from continuing with both pharmacological and psychological therapy to maintain his then remission from active delusions. It was noted that ongoing assistance could assist the offender to develop adaptive coping strategies for re-establishing his life in the absence of delusions. Dr Clout stated that this would ensure the offender received ongoing monitoring and it would have improved his and his family’s ability to detect early warning signs of relapse.
At the time of the first Dr Clout report, the offender’s Psychiatric Treatment Order had lapsed. Dr Clout noted that while the offender presented with reasonable insight and reported an intention to continue treatment, he had a previous period of non-compliance with medication. Dr Clout referred to medication cessation being common in individuals who live with schizophrenia spectrum disorders. The first Dr Clout report noted that the long-term nature and severity of the offender’s delusions indicated that ongoing monitoring and treatment beyond a three month Psychiatric Treatment Order was advisable and would assist to reduce the risk of relapse and by extension, recidivism.
When undertaking the psychological assessment for the first Dr Clout report, the offender acknowledged that he found it embarrassing to discuss his delusions when he is medicated and knows that the delusions were a symptom of his illness. The offender informed Dr Clout that he has a twin brother and stated that he had a good relationship with his twin while growing up. The offender noted that both he and his twin brother have now been medicated for schizophrenia. The offender stated that both he and his brother are currently living at home, as they addressed their respective mental health concerns. The offender described a positive relationship with both of his parents during his upbringing, stating that his parents were always supportive and showed him unconditional love.
The offender informed Dr Clout that he left school in Year 11 but acknowledged that he now regrets his choice to leave school early. The offender reported that after leaving school, he helped his parents start their electrical business and he did the books. The offender then worked in various departments of the Commonwealth Public Service and was then working at the National Gallery but was on extended leave at the time of the first Dr Clout report. The offender also stated that he was studying law and that he has always been passionate about the law, hoping to eventually work in the legal field if he is able to fully recover.
The offender informed Dr Clout that he met his ex-wife when he was 20 years old and that she fell pregnant within one month of them seeing each other. The offender’s first child was born in 2011 and his second child was born in 2013. The offender noted that having two young children at that age was a lot to manage. The offender’s relationship with his ex-wife ended in 2015 and the offender acknowledged that he turned to drug use after the separation as a coping mechanism. At the time of the first Dr Clout report, the offender advised he had no contact with his ex-wife nor his children, but stated that he would like to re-establish a relationship with his children when his mental health improved. The offender noted that his ex-wife and his children had relocated into regional NSW. The offender reported that while he has had casual relationships since his divorce, he had not felt the same emotional connection he did as when he was having delusional thoughts about Ms Foster and Ms Cooper.
The offender informed Dr Clout that he first tried alcohol in his mid-adolescence but that his usage was irregular until he was approximately 19 years old. The offender outlined a period of social binge drinking until his ex-wife fell pregnant. The offender advised that he ceased all alcohol and drug use at that time and did not engage in problematic drug use thereafter. The offender reported using ecstasy first when he was 19 years old and resumed use after the breakdown of his relationship with his ex-wife. The offender also reported using cocaine and engaged in heavy use throughout 2015 and 2016. The offender voluntarily admitted himself into the Sydney Clinic private rehabilitation program and reported ceasing his ecstasy and cocaine use thereafter.
At the time of the first Dr Clout report, the offender reported that he was prescribed the antipsychotic Olanzapine, which was administered via depot injection, as well as Lithium tablets. The offender had been under a psychiatric Treatment Order since May 2019 at the time of the first Dr Clout report, which was due to lapse in August 2019. The offender noted that he was first diagnosed with delusional disorder and prescribed antipsychotic medication after his arrest in October 2016. The offender acknowledged that he did not take the antipsychotic medication as he believed the delusions were real. The offender thought the psychiatrist appointments and medication were part of the game he believed he was playing with Ms Foster.
The offender identified the onset of mental health issues after the breakdown of his marriage in 2015. Dr Clout noted that the symptoms the offender described were consistent with major depressive disorder.
The offender stated he believed he and Ms Foster were in love and in a consensual relationship, and he would think she was sending him messages through social media. The offender acknowledged that such beliefs were not soundly based with the hindsight offered by compliance with a medication regime. The offender reported that he first decided to ask Ms Cooper for a coffee date to make Ms Foster jealous and then began experiencing delusions centred around Ms Cooper.
After complying with his medication regime and the then Psychiatric Treatment Order, the offender developed insight into his mental illness. The offender described feeling very down about the realisation and identified that the delusion of being in love and in a relationship made him happy, and it would be easier to be in a delusional state. The offender denied experiencing any delusions when he commenced on medications.
In the first Dr Clout report, Dr Clout discussed the typical behaviour of delusional disorder noting that stalking behaviour is common within the erotomanic subtype. Dr Clout opined that due to the nature and severity of the offender’s illness, he would require ongoing monitoring and treatment to reduce the risk of relapse.
Dr Clout reported that the offender’s overall risk of reoffending at the time of the first Dr Clout report was in the low-risk range. It was noted that his risk factors are changeable with appropriate intervention and support and his protective factors included his supportive family relationships and engagement in meaningful employment.
Psychological Assessment Report of Dr Danielle Clout – Addendum
On 10 January 2020, Dr Clout provided an addendum to the first Dr Clout report (the addendum) to address the impact of available sentencing options for the 2020 sentences. Dr Clout was asked for her opinion of how the offender’s mental illness would impact how he would experience a sentence of full-time imprisonment to be served in custody, as well as how he would experience a community-based sentence.
In the addendum, Dr Clout opined that the offender is likely to find a sentence of full-time imprisonment more difficult than someone without his condition of delusional disorder, especially as the offender was in the early stages of recovery at that time. Dr Clout stated that a sentence of full-time imprisonment would likely exacerbate the stigma and distress the offender feels around his diagnosis and further increase his negative self-evaluation. It was noted that there was no indication that the offender would have difficulty managing a community-based sentence. Dr Clout opined that from a clinical perspective, a community-based sentence would enable the offender to continue to engage in his treatment and maintain his environmental protective strengths. Dr Clout stated that maintaining his treatment regime is vital for the offender as disruptions would be of significant clinical concern. Dr Clout noted that the early signs of relapse in delusional disorder can be subtle and could be unlikely to be detected by individuals unfamiliar with the offender or in a custodial environment.
In the addendum, Dr Clout opined that the offender presented with the ability to deal with the conditions of an Intensive Correction Order. Dr Clout noted that the offender expressed a willingness to continue treatment and that there was no indication that the offender would have difficulty dealing with supervision requirements, additional treatment or community service requirements.
Updated Psychological Assessment Report of Dr Danielle Clout
Dr Clout again prepared a report in respect of the offender for the present offences. That report is dated 18 May 2021 (the updated Dr Clout report). During the assessment for the updated Dr Clout report, the offender reported experiencing lethargy and physical side effects as a result of his current medication regime. Dr Clout noted that there was no evidence of current delusional thinking, hallucinations, or other perceptual disturbances. The offender outlined experiencing problems with his memory since recommencing on depot medication in mid-2020 and had some difficulty establishing a timeline or elaborating on his illness during the period of the present offending.
The offender reported that he is still living with his parents and twin brother, but that prior to the current offences, he was in the process of moving into an ACT Housing property. The offender informed Dr Clout that although his parents are really supportive, he was hoping to live more independently. While the offender still has the housing property, he identified that he has no short-term plans to move into it as he needs to properly stabilise his mental health. The offender reported that his brother continues to live with his parents but has not been doing well in light of his diagnosis of schizophrenia.
The offender stated that he had returned to work in late 2019 to early 2020 but that his employers became aware of the previous charges after a news article was published. The offender stated that although his workplace was supportive, he felt his only option was to resign. The offender reported that he felt anxious about people knowing and was worried his work colleagues would feel uncomfortable around him. The offender acknowledged that he found giving up his full-time job very stressful and noted this was exacerbated by his brother’s deteriorating mental health.
The updated Dr Clout report noted that the offender reported he decided to go off his depot medication when his bail conditions allowed in early 2020. The offender reported that he found the depot medication to be intrusive and demeaning and stated that the time needed for the appointment would interfere with work to a greater degree than oral medication. The offender acknowledged that he then began to miss taking does of his medication, initially due to stress or forgetfulness. The offender admitted that the delusions then started returning stating “it all became a bit of a blur”. The offender recalled being manic at this point in time and said he continued to be very inconsistent with his oral medication. The offender denied any alcohol or drug use since the assessment undertaken for the first Dr Clout report.
The offender stated that he did not recall a lot about the months leading up to his hospitalisation in August 2020, although he could recall the return of the delusions. The offender noted that he believed Ms Foster wanted to be in a “secret relationship” that he needed to hide from everyone. In addition to erotomanic delusions, the offender reported he felt like the sun was “guiding” him and that he became quite obsessive about the sky, hence changing his first name to Sky.
The offender acknowledged that as his mental health worsened, he believed he was “seeing signs” that Ms Foster wanted to be with him and talk to him, so he commenced calling her and hanging up. As the delusions escalated, the offender believed he and Ms Foster were playing a “secret game” between themselves and that the mental health and legal systems were part of their romantic game. Dr Clout noted that this subsequently increased the offender’s secretiveness with mental health professionals.
The offender accepted that he was very psychotic when he was initially placed in the Adult Mental Health Unit (AMHU) before being transferred to 2N at Calvary and then a mental health rehabilitation hospital. The offender reported that his medication was gradually altered while he was in hospital and stated he began to feel more normal. The offender noted he was initially placed on a six-month Psychiatric Treatment Order and is now on a second incarnation of such an order.
The offender reported to Dr Clout that his parents were attempting to apply for a guardianship order, which would give control of his medical and treatment decisions to the public trustee for an initial three-year period. The offender noted that while he felt some nervousness about surrendering his autonomy, he acknowledged that his history has shown such an order is required. The offender stated he is receiving a monthly Abilify depot injection in addition to oral Clozapine and Lithium. The offender acknowledged that his history has shown that he reoffends when he ceases his depot medication.
The offender noted that he is seeing a forensic psychologist, Ms Leesa Morris on a fortnightly basis. The offender reported that he struggles with the stigma associated with his mental illness and the need for long-term medication. The offender stated he would like to make his parents proud, manage his illness better, and rebuild his life.
As part of the preparation for the second Dr Clout report, Dr Clout also conducted a separate interview with the offender’s parents on 12 November 2020. The offender’s parents reported that in early 2020, the offender had elected to stop depot injections and go onto oral medication only. His parents’ reflected that with hindsight, they had begun to notice a decline in the offender’s mental health in approximately March or April 2020. At this time, the offender had stopped his parents from speaking to his psychiatrist and psychologist through mental health, and his treating team did not recommend pushing it. The offender’s parents informed Dr Clout that after the offender’s arrest in July 2020, they were informed that police had earlier raised concerns about him reoffending with his treatment team, but no one had contacted them about it. The offender’s parents expressed concern that this decision was not in the interests of the offender, nor of the victims. His parents also noted that in their experience, oral medication had not been as effective in controlling the offender’s illness. His parents informed Dr Clout that they are concerned that no individual or service necessarily has a clear idea of what is happening for the offender and how to treat him in a holistic fashion.
In the updated Dr Clout report, Dr Clout opined that the present offences appear to have occurred in the context of the offender ceasing his depot medication and inconsistent compliance with his oral medication regime. Dr Clout reported that the combination of the reduced efficacy of oral medication and his inconsistent use are likely to have significantly contributed to his relapse. It was noted that the offender’s behaviour is best understood in the context of his mental illness. Dr Clout expressed concern that the offender was able to cease his depot medication almost immediately following his sentence for the 2020 sentences. Dr Clout stated that it is imperative that mental health services and other treating practitioners understand his pattern of relapse and offending and maintain the safety net of ongoing depot medication.
Dr Clout opined that if the offender experiences a relapse with respect to his erotomanic delusions and psychotic symptoms, his risk of similar reoffending is high. Dr Clout reported that the risk of reoffending is best addressed through appropriate management of his mental health, including ongoing pharmacological treatment in the form of depot injections. It was noted that the offender is unlikely to appreciate factors around specific deterrence during acute periods of mental illness. Dr Clout stated that the stress involved in a period of fulltime imprisonment could place the offender at an increased risk of relapse, which would also make his condition more difficult to manage upon release.
Dr Clout made the following recommendations to reduce the offender’s risk of relapse and reoffending:
(a) The offender should be placed under a guardianship order for a minimum of three years, in relation to his medical and mental health treatment and decision-making. Dr Clout noted that a guardianship order would allow for a longer period of enforced depot medication as opposed to the renewal of Psychiatric Treatment Orders every six months. Dr Clout opined that the appointment of a public guardian should assist in ensuring increased monitoring of the offender’s compliance with oral medication and provide a mechanism for increased communication between relevant parties and stakeholders. A guardian could also provide a mechanism for the forced return to hospitalisation or treatment if required for the offender. At the time of the updated Dr Clout report, an application for a public guardian had been submitted and was under review.
(b) Mental health services should ensure that any practitioners working with the offender are familiar with his pattern of relapse and reoffending, and the early warning signs of relapse that may be observable in that context. Dr Clout noted that ensuring mental health services appreciate the harm of repeat offending will assist in a collaborative and consistent approach to manage the offender’s mental health.
(c) The offender would benefit from support to access National Disability Insurance Scheme (NDIS) services.
(d) The offender would benefit from continued therapeutic engagement.
Letter from Ms Leesa Morris
Ms Leesa Morris, a forensic psychologist, prepared a letter at the request of the offender’s counsel dated 30 March 2021. The letter from Ms Morris sets out the attendance of the offender to appointments. The letter also contains the following treatment plan for the offender:
(a) Medication compliance being the most significant component in ensuring the offender does not return to a psychotic state. It was recommended that the offender seek a Public Guardian in relation to his mental health treatment. Ms Morris noted that the appointment of a guardian would enable a coordination point for the offender’s treatment providers into the future in case there was another episode of noncompliance. Ms Morris further referred to the capacity of a guardian to assist the offender in accessing supports through the NDIS.
(b) Ongoing psychological input to the offender’s mental health including intervention and monitoring to provide support and strategies to navigate additional external stressors. Ms Morris noted that this would include cognitive behavioural and acceptance therapies as appropriate. Ms Morris further noted that intervention will be intensive over the next two years with two to three weekly appointments, depending on the sentencing outcome for the present offences.
Letter from Dr Christopher Lee to Dr Ian Chan
Counsel for the offender also tendered a letter from Dr Christopher Lee, of the Belconnen Mental Health Team, that was addressed to Dr Ian Chan dated 27 May 2021. In this letter, Dr Lee noted that the offender had prepared an advance agreement involving his parents and his own preference for reinstating depot antipsychotic treatment, should his Psychiatric Treatment Order be revoked by the tribunal in the future or should the offender become unwell again and decline ongoing voluntary treatment. Dr Lee also stated in the letter that the offender was agreeable to and was organising NDIS daily medication on a voluntary basis.
Dr Lee recommended that the offender’s current combination of medical treatment, including the depot injections, continue as lifelong treatment, that the offender continue to see his psychologist and finalise his NDIS application.
Material addressed to the ACT Civil and Administrative Tribunal Concerning an Application for an Appointment of a Guardian
Included in the bundle of material provided to the Court on behalf of the offender are various documents that relate to an application to appoint a guardian for the offender, made to the ACT Civil and Administrative Tribunal (the ACAT). This includes submissions under the hand of Ms Leesa Morris dated 24 May 2021, a notice of hearing from the ACAT for a hearing on 29 June 2021, a statutory declaration of the offender dated 2 June 2021. For present purposes, it is not necessary to set out this material in full. It is sufficient to note that it also describes the offender’s mental health conditions and the importance of the medication being administered via depot injection to ensure effectiveness.
When this matter first came before me on 4 June 2021, the parties submitted that it was appropriate that the sentencing exercise take place after the outcome of the guardianship application was known. To that end, the matter was adjourned to 31 August 2021.
On the second occasion on 31 August 2021, counsel for the offender informed the Court that the application made to the ACAT for a guardian had been refused. It was noted that a second application had been made to the ACAT for the appointment of a guardian and that the second application was part heard due to recommence on 21 September 2021. Counsel for the offender made a further application for the sentence proceeding to be adjourned pending the outcome of the second guardianship application. This adjournment was granted and the sentence was listed for a further occasion on 8 November 2021.
On 8 November 2021, counsel for the offender notified the Court that the ACAT had declined to appoint a guardian for the offender as he did not fit the criteria for this appointment.
Advance Consent Direction
The bundle of material tendered by counsel for the offender included an Advance Consent Direction made pursuant to s 27 of the Mental Health Act 2015 (ACT) (Mental Health Act) signed by the offender on 19 May 2021. The Advance Consent Direction provided that the offender consented to psychiatric hospitalisation if he became unwell and unable to make decisions due to mental illness, as well as consenting to his medication regime of Abilify administered via depot injection, Clozapine, and Lithium. The Advance Consent Direction also records that the offender consents for Dr Lee, Ms Morris and his father to be provided with information pertaining to his treatment, care or support required for his mental illness in the event he came unwell and unable to make decisions due to his mental illness.
Intensive Correction Order Assessment Report
When this matter first came before me on 4 June 2021, I determined that I should give serious consideration to the sentence being served by way of intensive correction order (ICO). An ICO is an available sentencing option for the present Commonwealth offences by virtue of s 20AB of the Commonwealth Crimes Act. I note that while the PSR had assessed the offender’s eligibility for an ICO, s 46C(4) of the Crimes (Sentencing) Act 2005 (ACT) requires a Court to order the Director-General of ACT Corrective Services to prepare an intensive correction order assessment before sentencing the offender to a sentence of imprisonment by intensive correction. To that end, I referred the offender for assessment.
The intensive correction order assessment report (ICOAR) is dated 24 August 2021 and provides an update of information that is contained in the PSR. The ICOAR states that the offender reported no drug or alcohol use during the period of assessment. It was however noted that ACT Corrective Services were unable to conduct any drug testing during the assessment period due to the offender’s curfew bail conditions.
The ICOAR notes that the offender has continued to recognise his diagnosed mental health conditions as the primary actor leading to his repeated offending. The offender reported the continuation of his prescribed medicated treatment through the assessment period which includes daily home medication monitored by his father and a monthly depot injection administered by Belconnen Mental Health.
On 20 August 2021, the offender’s forensic psychologist reported the offender to have been positively engaged in treatment with her since December 2020. The psychologist reported the offender’s engagement as meaningful and suggest the offender to understand that avoiding further decline in his mental health and associated risk of reoffending depended largely on his continued treatment and medication for his diagnosed condition. The psychologist suggested that indicators of possible decline could present in his personal care and noted that further inclusion of a community-based support worker may not only support his basic needs, but present potentially as an opportunity to identify any concerning behaviours in a timely manner should they become apparent. The offender’s treatment with his psychologist was referred to as ongoing. The offender’s motivation for treatment was suggested to be focused on limiting his likelihood of further offending via maintaining his current treatment regime, with a long-term goal of reforming his relationships with his two children.
The ICOAR noted that the offender made himself available for appointments as directed and had taken the initiative to contact ACT Corrective Services of his own accord. The offender engaged appropriately throughout the assessment period. Provided the offender remained compliant with medical treatment, no factors were identified that would suggest an inability to comply with an ICO. The offender had verbally confirmed his willingness and intention to comply with reporting obligations and has signed the ICO consent form.
The ICOAR stated that the offender’s parents agreed to the offender residing at their address for the duration of an ICO. The ICOAR reports that the offender’s protective factors continue to include his supportive family and stable accommodation, as well as treatment to manage his diagnosed health conditions. Some of the offender’s support network had indicated concern relating to the sharing of information between involved services in instances where his mental health may deteriorate. While the ICOAR was unable to conclude whether information sharing between different services is possible, the report still concludes that the offender is currently engaged with treatment as required and suggested at every opportunity planning to continue to do so. The ICOAR maintains the recommendation that the offender is suitable for a community service work condition.
The ICOAR concludes that the offender has been assessed as suitable for an ICO and the offender has signed an undertaking to comply with all the obligations of an ICO. The ICOAR notes that the following factors associated with the offending would be targeted if an ICO is made:
(a) Engagement with mental health and health treatment;
(b) Education and employment; and
(c) Compliance with treatment or court orders.
The ICOAR recommends the following additional conditions be added pursuant to an ICO:
(a) To engage with ACT Corrective Services staff, only for the period of his ICO through means identified as appropriate and as directed by ACT Corrective Services.
(b) To report any changes in compliance with health treatment as soon as possible but within a maximum of two business days.
(c) Do not directly or indirectly contact the victims of the current offences.
(d) Abide by the conditions of any protection order that names the offender by his name or his alias (Sky Black).
(e) To sign consent for any interested and relevant parties involved in health treatment or care of, including family should he continue to reside at his parent’s home, to share information related to health and/ or wellbeing.
(f) Remain compliant with medication regime as directed by health services.
(g) Remain compliant with any court or health treatment order.
(h) Abide by a curfew condition as deemed appropriate by ACT Corrective Services, to be present at his approved address for the stated period and to present himself at the front door if requested by ACT Police or ACT Corrective Services at any time during the stated period.
Letter from the Offender
A signed letter from the offender dated 4 June 2021 was tendered by his counsel. It includes the following:
I write to express my sincere remorse for my actions which have led me to this courtroom. I accept full responsibility for my actions and want to apologise from the bottom of my heart to both the victims for the harm that I have caused.
Ever since my discharge from hospital on 9 November 2020, I have been on very high doses of medication and now have a clear mind to see the harmful impact that my actions would have had on the victims. I feel physically sick now knowing how I made them feel and how they must have felt as a result of my behaviour. Apprehension and fear was the polar opposite of what I intended at the time of offending. I can see clearly now that my feelings were not reciprocated and I just wish I could turn back time to prevent my behaviour from ever having happened.
I have since put all measures in place that are in my power, to ensure there is no relapse of symptoms of my mental illness (delusional disorder – erotomanic type; schizoaffective disorder). This includes an Advance Consent Direction (consenting to depot injections should I again become unwell and lose decision-making capacity), applying for a guardian to oversee decisions relating to my mental health, including long term depot injections, and attending appointments with both my psychologist and psychiatrist at regular intervals.
In the event my Psychiatric Treatment Order lapses and is not reapplied for, I undertake to remain on my medication (monthly Abilify injection; nightly Clozapine and Lithium tablets). Should I fail to present for my monthly depot without contact to reschedule, my guardian will be notified by the practitioner administering the depot. The guardian will then notify the treating team and if upon assessment by the treating team it is considered necessary a further Psychiatric Treatment Order will be applied for. These procedures have been put in place to reflect my decisions when well, and to prevent unbefitting decisions being made if unwell.
I sincerely promise there will be no repeat of my offensive behaviour and you will not see me before this Court again. I reiterate my sincere apologies to the victims and to our community.
My future rests in your hands. I respectfully ask for your mercy in my darkest of days.
NDIS Plan: Support and Goals
On 8 November 2021, counsel for the offender tendered a further bundle of documents that went to the offender’s subjective circumstances. Included in this bundle is material that confirms the offender has an approved NDIS plan that commenced on 3 August 2021 and will be reviewed by 3 August 2022. A NDIS Access Request – Supporting Evidence Form dated 23 June 2021 also formed part of the NDIS material. The offender’s NDIS plan includes his short, medium, and long-term goals, how he will achieve those goals and how he will be supported to achieve them. The offender’s NDIS package also provides for the offender to obtain support from Building Lives Services to undertake prosocial activities, develop new skills, and improve his mental and physical health to achieve his goals.
Letter from Ms Ivette Gonzalez – ACT Disability Aged and Carer Advocacy Service
Included in the further bundle of material tendered on behalf of the offender was a letter under the hand of Ms Ivette Gonzalez dated 5 November 2021 addressed to counsel for the offender. Ms Gonzalez is a senior advocate at the ACT Disability Aged and Carer Advocacy Service (ADACAS). Ms Gonzalez’s letter confirms that the offender approached ADACAS on 9 August 2021 to assist him to develop an Advance Consent Direction and to connect with services to support him living in the community.
Ms Gonzalez confirms that the offender completed a My Rights, My Decision Kit which contains the plan for treatment and support teams in the event the offender’s decision making capacity becomes impaired. Ms Gonzalez refers to an Advance Agreement and the Advance Consent Direction that have been registered with Mental Health Services and have been provided to ACT Policing.
In respect of ACT Policing, Ms Gonzalez notes that the Disability Justice Liaison Officer from the Community Engagement Team confirmed that if the offender comes to the attention of ACT Policing in the future, they will call his Nominated Person, being his father, his treating team at Belconnen Mental Health services, and Ms Leesa Morris.
My Rights, My Decisions Form Kit
Also included in the further bundle of material was a My Rights, My Decisions Form Kit completed by the offender. The My Rights, My Decision Form confirms that the offender has appointed a Nominated Person, an Advance Agreement, and an Advance Consent Direction.
The My Rights, My Decision Form notes that a Nominated Person is a person a consumer appoint to help them make decisions, express the consumer’s views and receive information about the consumer’s treatment, care and support. The My Rights, My Decision Form states that a consumer does not have to appoint a nominated person, but it is a recommended course. A Nominated Person is appointed under s 19 of the Mental Health Act and the My Rights, My Decision Form further confirms that a Nominated Person is able to receive information about a consumer and attend the ACAT if required. The offender has appointed his father as his Nominated Person.
An Advance Agreement is made pursuant to s 26 of the Mental Health Act. The My Rights, My Decisions Form states that an Advance Agreement allows a consumer to provide information that may be useful if the consumer’s decision-making capacity become impaired. It can include the consumer’s preference for treatment, information about dependents and any other relevant information. The offender has noted the following under a heading asking a consumer to record what they would like their treating team to know and when they would like to be supported to make decisions:
It is of extreme importance, for my safety and the communities, that if or when the Australian Federal Police, or any of my treating or support team, raises issues (e.g. ACT Policing calls Mental Health Services) in relation to my offending behaviours, that my parents are informed immediately. My entire treating and support team members must be notified as soon as possible, and an urgent assessment of my mental health be undertaken. If it is determined that this would be best done in a hospital setting, I authorise this to be done.
My offending behaviours are connected to a decline in my mental health and it means that I need assistance to receive appropriate treatment. On three separate occasions over a five-year period, I have relapsed whilst off depot administered medication, and I need to prevent this happening again.
…
The My Rights, My Decision Form also contains the Advance Consent Direction, made pursuant to s 27 of the Mental Health Act. The offender provided consent for his current treatment therapy to be followed, unless his treating psychiatrist and or the Forensic Mental Health Service prescribe otherwise in which case his support team are to be notified. The offender noted that the only change to his current regime should occur if more appropriate treatments are developed and are recommended by his treating team, or if there are medical reasons why the treatment is no longer appropriate. The offender also recorded that the best procedure to follow if he becomes unwell is to inform his parents and his treating team and for all parties to put in place his action plan. Counsel for the offender noted that the Advance Consent Direction was made in light of the applications for guardianship being refused.
Under the heading “Action Plan”, the offender recorded the following:
I acknowledge that when I am well I have a clear understanding of the need to maintain my current treatment regimen, including the method currently in place as prescribed by my treating team – of treatment by monthly depot injection. For the benefit of not only myself, but also the community and past victims.
Any deviation from this treatment or any request made by me to change my treatment is to be taken as a sign that I am becoming unwell and require urgent assessment by my treating team, and this needs to be done with full and open communication between my treating and support teams which I authorise. Any deviation includes, but is not limited to, missing a scheduled appointment for depot injection and or blood monitoring without approved reason, not filling chemist scripts for my additional oral medications, and/ or not taking my prescribed oral medication as directed by my mental health treating team.
Should anyone, including the AFP, identify or have a suspicion (or be informed by others) that I am becoming unwell, or deviate from the treatment as prescribed by my treating team, all members of my treating team and support team will be informed immediately, and an urgent assessment of my mental health state be made in consultation with all members of my support group… I give consent for this assessment to be made in a mental health/ hospital setting if deemed necessary by my treating team.
All members of my treatment and support team need to be fully informed at all times of any assessment and its outcome and recommendations from that assessment.
It was noted by counsel for the offender that if the offender was to receive an ICO, the offender’s ACT Corrective Services assigned officer ought to receive a copy of the Advance Consent Direction.
Prosecution Submissions
Mental Condition
The prosecution accepted that the offender lives with a delusional disorder and that there is a connection between his mental condition and his offending. However, counsel for the prosecution submitted that protection of the community must be the paramount consideration in sentencing the offender. It was emphasised that the present offences are his third set of like offending and despite presenting a treatment plan for his mental condition to the Magistrates Court for the sentencing of the 2020 sentences, the offender voluntarily ceased his medication and engaged in further offending within three months of being sentenced for the 2020 sentences.
The prosecution referred to the updated Dr Clout report, in particular where Dr Clout had noted that the offender had said he decided to go off the depot medication when his bail conditions allowed in early 2020, and that the delusions then started returning thereafter. It was submitted that the instant offending together with his report of ceasing his medication in early 2020 demonstrates that the offender has little insight into his mental illness.
The prosecution also noted that the offender had informed Dr Clout that he understood the importance of maintaining his medication. It was submitted that against the background of his self-ceasing of medication, this statement of the offender could not be afforded significant weight. Reference was also made to the letter by Ms Morris, whereby Ms Morris noted that medication compliance is the most significant component in ensuring the offender does not return to a psychotic state. The prosecution submitted that this was particularly concerning in the context of the offender’s ability to manipulate mental health professionals by being secretive, so they think he is well, which significantly reduces the presence of early warning signs that indicated non-compliance with oral medication.
Remorse
The prosecution accepted that the offender has expressed remorse for the present offending. However, it was highlighted that this remorse must be considered against the background where expressions of remorse were made in 2018 and 2020 but the pattern of similar offending has continued to occur. The prosecution further submitted that the remorse must be considered in light of the fact that the offender was aware he was mentally unwell at the time of the offences giving rise to the 2018 and 2020 sentences, and that he was medicated for that illness, but made a deliberate choice to be non-compliant with his medication, further putting the victims at risk.
Rehabilitation
The prosecution noted that the offender’s prospects of rehabilitation are significantly contingent on the intensity of the management of his mental health. The prosecution referred to the updated Dr Clout report, in particular Dr Clout’s recommendations that the offender be placed under a guardianship order for a minimum of three years, mental health service to ensure familiarity with the offender’s pattern of relapse and reoffending, access to NDIS and continued engagement with Ms Morris. When counsel for the prosecution provided written submissions, the outcome of the first guardianship application was unknown. As referred to in the material above, both guardianship applications were unsuccessful. The prosecution submissions also noted that at the time of writing, it was unknown whether the offender was eligible for the NDIS. It is noted that the further material before the Court establishes that the offender now has support from the NDIS.
The prosecution submitted that the Court would be highly circumspect in accepting that the offender has significant prospects of rehabilitation, in circumstances where there was insufficient information before the Court addressing this point.
Defence Submissions
Mental Condition
Counsel for the offender submitted that the offending behaviour is directly connected to the offender’s delusional disorder. Reference was made to reports that after the offender’s arrest, the offender’s mental state had deteriorated, and he was psychotic. It was submitted that the offending must be considered in light of the offender’s mental illness, which is a significant mitigating factor.
Remorse
Counsel for the offender referred to the various statements of remorse made by the offender to Dr Clout and Ms Morris. Emphasis was also placed on the letter from the offender to the Court. It was submitted that the offender had expressed significant shame, guilt and distress about his offending behaviour, as well as having acknowledged the impact his behaviour has had on the victims.
Rehabilitation
It was submitted that the offender had good prospects of rehabilitation in light of the significant changes to his treatment. Counsel for the offender referred to the conclusions of both Ms Morris and Dr Clout that medication compliance will be the most significant factor in ensuring the offender does not return to a psychotic state. In light of the Advance Consent Direction confirming that depot treatment will be maintained even where the offender declines depot, it was submitted that the offender’s rehabilitation would not be jeopardised as it has previously. Further emphasis was placed on the ongoing lines of communication that has facilitated a collaborative approach to the offender’s treatment.
Counsel for the offender submitted that despite the offender’s relapse on three occasions, he continues to have good prospections of rehabilitation. It was submitted that the offender does not offend while on depot injections and that this regime has stabilised.
It was further submitted that the offender’s work with Ms Morris in dealing with issues around reconnecting with his two children was providing the offender with strong motivation for him to continue to comply with his treatment regime and remain well.
Application of Verdins and De La Rosa Principles
In R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins), the Victorian Court of Appeal identified six ways in which impaired mental functioning may be relevant in sentencing at [32]:
Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentence in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both (Payne at 444, [43]).
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
In DPP (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at [177], the New South Wales Court of Criminal Appeal set out the relevant principles as follows:
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: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. 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: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].
● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].
● 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: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].
● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].
● 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: Israil at [24]; Henry at [28]. 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: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].
Prosecution Submissions
Counsel for the prosecution submitted that for the first limb of Verdins to be relied upon in mitigation, the offender must establish that his mental functioning was impaired involuntarily: DPP (Cth) v Boyles (a pseudonym) [2016] VSCA 267 (DPP (Cth) v Boyles). Maxwell P and Osborn JA observed at [42]-[43]:
Where [the first limb of] Verdins…is relied on in mitigation, the offender must establish that his mental functioning was impaired involuntarily. This is, his ability to reason or make decisions was adversely affected by a mental condition beyond his control, such that he should be regarded as less morally culpable for the offending than someone who had not been so affected.
In the present case, the fundamental cause of the active bipolar state in which RB committed the offences was his own choice not to take medication prescribed by a specialist medical practitioner. He well knew the nature of the condition he was suffering from and he knew that, in the absence of medication, his mood and behaviour might be affected.
(emphasis original)
The prosecution noted that as in DPP (Cth) v Boyles, the offender in this matter made a choice not to take medication as prescribed by his medical practitioner. The offender elected to stop depot injections and then missed his oral medication. The prosecution submitted that the offender well knew the nature of the condition he was suffering from and that in the absence of medication his mental stability may be affected, and consequently he may continue to offend. The prosecution submitted that it was the offender’s own choice to stop the depot administration and his choice to fail to comply with his oral medication, at least initially, which may then have in and of itself led to further non-compliance.
The prosecution submitted that the offender’s voluntary cessation of his depot injections and oral medication, in full knowledge that it may adversely affect him, could not enliven the first limb of Verdins to reduce his moral culpability.
Counsel for the prosecution further submitted that both specific deterrence and general deterrence are significant factors in the present sentencing exercise, in relation to the third and fourth limbs of Verdins. It was submitted in respect of general deterrence, that the community must understand that continued disregard for the fact that persistent unwanted contact via social media and telephone is an offence that will result in condign punishment.
As to specific deterrence, the prosecution submitted that the need for the offender to be deterred may be greater in light of “the failure of more moderate penalties as a deterrent”: R v O’Brien [1997] 2 VR 714 at 718.The prosecution emphasised that this is the third set of like offending in a reasonably short period of time, despite mental health interventions and opportunities for community based sentences having previously been afforded to the offender.
Finally, in oral submissions, counsel for the prosecution acknowledged that it was highly relevant to other Verdins limbs that the offender is back on a depot injection regime. The prosecution also accepted that the while the ceasing of the depot injection was at the request of the offender, it was at the discretion of his treating psychiatrist (T14.23-25 4.6.2021). I interpolate to note that this concession is important in terms of assessing moral culpability.
Defence Submissions
Counsel for the offender submitted that because of the causal connection between the mental illness and the offences, the degree of the offender’s moral culpability may be diminished in line with the first limb of Verdins. It was submitted that the offender’s treatment team had allowed the offender to transition from depot injections to oral medication, which then led to the non-compliance. It was submitted there was no evidence before the Court to show that the medication was effective prior to 18 May 2021. Counsel for the offender submitted that it was unrealistic to expect the offender to make decision or choices to do with his mental health treatment that were better than his treating team.
Counsel for the offender also referred to the third and fourth limb of Verdins, being the consideration of general deterrence and specific deterrence respectively, in submitting that less weight should be attributed to these sentencing considerations. It was submitted that as the offender’s delusional disorder encompassed a range of impairments of the offender’s cognitive, emotional, and behaviour functioning. It was further emphasised that the presence of delusions inhabits the offender’s rationality judgment and intention. Counsel for the offender submitted that the offender is not an appropriate vehicle for both general deterrence and specific deterrence because his mental functioning at the time of the offences was significantly impaired.
Consideration
In my view, on the evidence the reduction of moral culpability still has a role to play in this case and therefore, the role of general deterrence is reduced. The Advance Consent Direction concerning the depot medication is important in this case on the issue of specific deterrence. I also note the significance of the evidence concerning imprisonment weighing more heavily on the offender in this context.
References
A signed letter of the offender’s parents dated 4 June 2021 was tendered in support of the offender and includes the following:
We are Steve’s parents and have known him all [of his life]. We are aware of the charges before the Court and Steve’s unusual and unacceptable behaviours which brought him to this day. We are writing to provide a character reference and to pledge our ongoing support for Steve, and indeed both of our identical twin sons who tragically have both been diagnosed with severe mental illness.
Steve was raised in a loving household with strong family values. We raised our sons in a stable, loving, caring and peaceful home with both parents. Dad working, and Mum staying home during the first five years and being there to take and pick up from school and to various after school enrichment activities, whilst performing casual work within school hours.
They were stoic whilst heavily bullied at school, both emotionally and physically, including Steve having his rib broken, at the time never saying anything until reflecting as adults. We also now recognise that, although remaining undiagnosed as under treatment for schizophrenia, they may both be high functioning on the autistic spectrum. When young, our sons had some problems with social interaction, some problems with communication and listening, and were highly focused in their interests. They displayed some behaviours similar to that which we see as volunteers at Pegasus Riding for the Disabled.
When well, Steve is self-motivated, intelligent, thoughtful, and kind. He is fit and healthy, caring of family pets, participates in a diverse range of interesting topics and conversations, and enjoys chess.
He was developing his career in the Commonwealth Public Service and purchased his first home. Married, with two children, he was devoted to his family, a proud father and dedicated provider. He deeply cared about right and wrong in society, careful and considerate of others.
His life has been devastated by a slowing and silently developing a severe mental illness.
Steve in many respects presents well and is a higher achiever both with his previous employments and ongoing tertiary studies. However, as he became unwell, stoically, he was very used to letting no one see his turmoil. His condition as it developed was poorly understood, and therefore he did not always receive the appropriate treatments necessary for him to control it.
As the saying goes… to he who is wrong in mind, they can do all the right things and it will still turn out wrong. Steve was raised to do right and had every intention to do right.
With ongoing stressors, both of our twin sons have succumbed to severe mental impairments, resulting in Steve having done wrong by the law…repeatedly so, as his condition leading up to these intermittent and unintendingly offending behaviours has been poorly understood, and under managed. This was never any intent by him to harm, even though, very regrettably, harm was the outcome.
Steve’s current diagnosis is ‘Schizoaffective Disorder and Delusional Disorder’, and these unfortunate mental health conditions induced in Steve a distorted perception of behaviours and responses which were very different from reality. The nature of his mental illness masked his ability to recognise what was wrong with some of his unintendingly inappropriate behaviours towards those he deeply cared about.
Steve chose to resign from his most recent employment, as he did not want any co-workers to feel uncomfortable around him. This was after staff became aware of an unfortunate, and sensationalised, article about his case in a local tabloid newspaper. His managers wanted him to stay.
His treatment has developed with better understanding over time, and he now relies upon three strong medications that are monitored to be maintained at therapeutic blood levels, as well as psychological support to maintain more normal neural pathways. With the current intensive treatment protocols, Steve has begun to see the impact of his condition on his behaviours and perceptions, and of his behaviour on others. He is deeply remorseful of the harm he has caused and intends to remain on his treatment protocols. He recognises the need to remain on injectable medications to avoid unintentional relapses.
We are developing, together with his treatment team, all the supports and supervision necessary to assist Steve in maintaining treatment compliance throughout his lifetime. This is critical not only to protect our son’s mental health but also to protect those in the community that may become the targets of maladaptive behaviours that could present if he once again becomes unwell.
As devoted parents who care for our sons and our community, we are spending into our retirement savings to support Steve in his legal matters. We are deeply committed to helping him in every way whilst we ourselves are able. He has the resilience and strength of character necessary to forge a path forward despite setbacks. We welcome him with open hearts into his childhood family home whenever he wants and needs to be home and encourage him to redevelop his capabilities.
To this end, we commend and fully support the consideration of an appropriate intensive corrections court order to release him from the pressures and duress of being caught up I the adversarial criminal justice system. Our caring society provides for those that are sick and/ or are living with a disability with compassionate understanding and appropriate supports to enhance their lives and connection to community.
Counsel for the offender tendered an addendum reference letter under the hand of the offender’s parents dated 7 November 2021. The addendum letter confirms that the offender’s parents continue in their ongoing support for the offender. The letter notes that the offender is maintaining his medication regime by the monthly depot injection, as well as oral medication administered nightly by his parents. The letter refers to the development of an Advance Consent Direction that was lodged with ACT Police, Belconnen Mental Health, the offender’s treating psychologist and general practitioner. The letter further confirms the offender’s ongoing NDIS support, as well as the offender’s parents ongoing commendation of consideration of an ICO. The letter concludes as follows:
Our caring society provides for those that are sick and/ or disabled with compassion, understanding, and appropriate supports to enhance their lives and connection to community.
I take the references of the offender’s parents into account on sentence.
Conditional Liberty
At the time of committing the present offences, the offender was on conditional liberty in the form of suspended sentences having been sentenced in the Magistrates Court in the form of the 2020 sentences.
In R v Tran [1999] NSWCCA 109 at [15], Wood CJ at CL stated:
Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.
The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor on sentence.
Criminal History
In relation to criminal history, as already mentioned, it is a matter of great significance that the offender has previous convictions for offences against both Ms Foster and Ms Cooper.
Pleas of Guilty
The offender entered pleas of guilty on 16 March 2021 following negotiations with the prosecution. The pleas of guilty were entered when the matter was in the Magistrates Court. The prosecution accepted that the pleas were entered early on in the matter.
In 2020, s 16A of the Commonwealth Crimes Act was amended with effect for any sentence imposed on or after 20 July 2020. As a result of this amendment, the Court is now required to take into account, if an offender has pleaded guilty to a charge, the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g)(i)-(iii) Commonwealth Crimes Act. Previously, ACT authority in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 prohibited a court from taking into account the utilitarian value of a plea.
In providing a discount for a plea of guilty, the Court is neither required or prohibited from specifying the discount provided. Nevertheless, in Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 at [279]-[280] the full Court of the NSW Court of Criminal Appeal observed that while there is no mandate requiring a Court to specify the discount, in the interests of transparency, the quantum of the discount ought to be specified. The Court confirmed that a failure to specify the discount would not amount to an error.
Taking into account the relevant matters, in my view, a discount of approximately 25% is appropriate.
Time in Custody
The offender has spent 12 days in custody from 31 July 2020 to 11 August 2020 solely referable to these offences. Pursuant to s 309 of the Crimes Act, the offender was taken to AMHU, as an approved mental health facility, as the Magistrates Court had reasonable grounds for believing that the offender required immediate treatment or care because of mental impairment.
After being released from AMHU and being granted bail, the offender was then subject to onerous bail conditions. It was noted that the offender’s bail conditions prevented him from leaving his parents’ home unless he was in the company of a parent and only for the purpose of medical treatment or to attend court. The offender’s bail conditions were amended on 31 August 2021 to allow him to leave the house for any other purpose, but still only in the company of a parent. It was accepted by counsel for the offender that the onerous bail conditions were appropriate in the circumstances of this matter.
I take these matters into account on sentence.
Comparable Cases
Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
The prosecution did not refer to any comparable cases. The position of the prosecution was that there was not a sufficient breadth of intermediate appellant authorities available in circumstances that are comparable to the circumstances with respect to the offender. The prosecution noted that this may be a result of the majority of such offences being dealt with in the Magistrates Court and therefore being unreported. It was noted that cases dealt with in the Supreme Court and other superior courts tend to deal with offences of this type coupled with serious sexual or other offending and would therefore be of very limited assistance as a “yardstick” in this case: Hili at [53]-[54].
Counsel for the offender referred me to the case of R v Thomas (No 2) [2021] ACTSC 73 (R v Thomas (No 2)). R v Thomas (No 2) is a matter concerning a breach of a suspended sentence and good behaviour order. In R v Thomas (No 2) at [24], Mossop J proceeded to re-sentence the offender, rather than impose the suspended period, having regard to the offender’s chronic nature of schizophrenia. Mossop J observed at [25] that re-sentencing by increasing the period to be served by 30 days ensured there were consequences from the offender’s failure to comply with the terms of the suspended sentence:
But also recognises the lack of utility in sending him to prison for a much longer period in circumstances where the real difficulty that he faces is his ongoing chronic schizophrenia and the likelihood that, within the scope of the current medication regime, there will be periods of non-compliance with that regime and hence deterioration in his condition.
I note that the offender in R v Thomas (No 2) was observed by Mossop J to be managing his mental health on a “voluntary basis and his condition means that such a course carries with it the risk of non-compliance”: at [23]. In contradistinction in the offender’s case, I note the Advance Consent Direction.
Statutory and Other Relevant Considerations
In sentencing the offender, the Court is required to take into account those matters under s 16A of the Commonwealth Crimes Act that are known and relevant. I have referred to the relevant matters above.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308; Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; A Crim R 38.
The prosecution submitted there should be a degree of accumulation between the first and second offences, notwithstanding they were against the same victim, Ms Foster, and within a similar time period. It was submitted that there should be a degree of accumulation to recognise the individual harm done by the persistent direct contact via telephone together with the ongoing posts to social media and follow requests. It was further submitted that the third offence against Ms Cooper, although occurring within a similar time period, requires a sentence that is cumulative on the sentences for the first and second offences.
The prosecution’s submission on the sentencing disposition was that an immediate term of full-time imprisonment ought to be imposed in relation to each offence and that no other sentence is appropriate in the circumstances of this matter. The prosecution accepted that a sentencing outcome that involved a length period of supervision would be appropriate, so to continue to support the offender’s rehabilitation. Counsel for the prosecution noted that the offender had had the benefit of suspended sentences which incorporated mental health treatment as prescribed previously but accepted that the Advance Consent Direction was promising. Counsel for the offender submitted that a term of imprisonment could be served by way of ICO.
Sentence
It must be recognised by the Court that the offences committed against both Ms Foster and Ms Cooper have had a serious and significant impact upon them both. The short and long-term consequences of being a victim of these offences must be acknowledged.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences having regard to the nature and circumstances of the offending, as well as the subjective circumstances of the offender. In particular, his mental condition and the Advance Consent Direction concerning the depot regime.
In my view, the appropriate sentence for the first offence (the 117 phone calls to Ms Foster) is 18 months of imprisonment. reduced to 13 and a half months on account of the plea of guilty. The appropriate sentence for the second offence (the Facebook posts and Twitter follow requests to Ms Foster) is also 18 months of imprisonment, reduced to 13 and a half months on account of the plea of guilty. Finally, the appropriate sentence for the third offence (the Facebook posts and Instagram follow requests to Ms Cooper) is 18 months of imprisonment, reduced to 13 and a half months on account of the plea of guilty. The discount for each offence is approximately 25%. The sentences of imprisonment are to be served by way of an ICO.
I note that in coming to the conclusion that an ICO is appropriate, I have had regard to all the sentencing factors including in accordance with s 11(3) of the Sentencing Act: (a) the level of harm to the victims and the community; (b) the question of whether the offender poses a risk to people in the community, including the victims; and (c) the offender’s culpability for the offence, having regard to all of the circumstances.
It is appropriate that the sentences are partly concurrent and partly cumulative taking into account the principles concerning concurrency discussed above at [165]. There will therefore be approximately three months concurrency respectively as between the first and second sentences and as between the second and third sentences.
As I noted in R v Elson [2020] ACTSC 264 (R v Elson) at [85], it must be remembered that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be a “significant punishment, coming second only to a term of full-time imprisonment”: R v Srna [2018] ACTSC 337 at [13]. Its content will require strict adherence and if this is not followed. could result in a period of full-time custody. It will also allow the offender to continue his mental health treatment in the community, which is in his best interests, as well as the interests of Ms Foster, Ms Cooper, and the broader community.
Relevantly, as I stated in R v Miller [2018] ACTSC 244 at [57] in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
Further, I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
Finally, I note that in R v Elson at [52] I discussed that an ICO cannot be backdated and that on one view, an offender who is sentenced to an ICO receives no credit for the time spent in custody. However, in setting the length of the ICO, I can take into account the fact that the offender has spent time in custody in relation to these offences and I do so: see R v McDowall [2020] ACTSC 184 at [17] and R v Jabal [2020] ACTSC 230 at [52].
Orders
I make the following orders:
(a) I record convictions in relation to the offences.
(b) In respect of CAN9151/2020, the 117 phone calls to Ms Foster, the offender is sentenced to 13 months’ and 14 days’ imprisonment commencing on 21 January 2022 and concluding on 6 March 2023.
(c) In respect of CAN9152/2020, the Facebook posts and Twitter follow requests to Ms Foster, the offender is sentenced to 13 months’ and 15 days’ imprisonment commencing on 26 December 2022 and concluding on 9 February 2024.
(d) In respect of CAN9153/2020, the Facebooks posts and Instagram follow requests to Ms Cooper, the offender is sentenced to 13 months’ and 15 days’ imprisonment commencing on 6 December 2023 and concluding on 20 January 2025.
(e) The sentences of imprisonment are to be served by way of an Intensive Correction Order pursuant to s 11(3) of the Sentencing Act for a period of 3 years. The offender is to abide by the core conditions under s 42 of the Crimes (Sentence Administration) Act 2005 (ACT).
(f) Pursuant to s 11(5) of the Sentencing Act, the offender is to comply with the following additional conditions:
(1) Engage with ACT Corrective Services staff, only for the period of his ICO through means identified as appropriate and as directed by ACT Corrective Services.
(2) Report any changes in medication and compliance for health treatment to all persons/ parties named in the Advance Consent Direction as soon as possible but within a maximum of two business days.
(3) Not directly or indirectly contact the victims of the current offences.
(4) Abide by the conditions of any protection order that names the offender by his name or his alias (Sky Black).
(5) To sign consent for any interested and relevant parties involved in health treatment or care of, including family should he continue to reside at his parent’s home, to share information related to health and/ or wellbeing.
(6) Remain compliant with his medication regime as directed by ACT Mental Health Services and/ or treating health practitioners.
(7) Remain compliant with any court or health treatment order.
(8) Abide by a curfew condition as deemed appropriate by ACT Corrective Services, to be present at his approved address for the stated period and to present himself at the front door if requested by ACT Police or ACT Corrective Services at any time during the stated period.
(9) Comply with the Advance Consent Direction.
Recommendation
I make a recommendation that a copy of the Advance Consent Direction dated 19 May 2021 be provided to the Director-General of ACT Corrective Services.
| I certify that the preceding one hundred and seventy-eight [178] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 21 January 2022 |
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