R v Brown
[2015] ACTSC 65
•5 March 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Brown |
Citation: | [2015] ACTSC 65 |
Hearing Date: | 5 March 2015 |
DecisionDate: | 5 March 2015 |
Before: | Burns J |
Decision: | See [11] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – Particular Offences – dishonesty offences – perjury – non-conviction order. |
Legislation Cited: | Criminal Code 2002 (ACT) s 703 (1) |
Parties: | The Queen (Crown) Alexandra Brown (Offender) |
Representation: | Counsel Mr D Sahu-Khan (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number: | SCC 280 of 2014 |
Burns J:
Background
Alexandra Brown, you have pleaded guilty to one offence of perjury. This is an offence contrary to s 703 (1) of the Criminal Code 2002 (ACT), as punishable by imprisonment for seven years. On 28 November last year, you pleaded guilty to the charge now before the Court whilst it was in the Magistrates Court. I accept that the plea was an early plea. I accept that the plea was an indication of your remorse for what you had done and I also accept that it had significant utilitarian value. I note that you have maintained your plea in the proceedings before me today.
An Agreed Statement of Facts has been put before me, which I will not recite. It is sufficient to note that you accept that you gave false evidence in the bail application involving a young man by the name of Daniel Ruspandini in the Magistrates Court. Your motive in doing so was to give him an alibi with respect to an allegation of assault that had been made against him. It was alleged that he had assaulted his mother. I accept that he had assaulted you sometime prior to the alleged assault on his mother.
Psychological report
At the time of this offence, you were in a relationship with Mr Ruspandini. The nature of that relationship is set out very clearly in the very useful report from Dr Michael Barry, a clinical psychologist, which has been tendered in these proceedings. I will not recite at length the contents of that report, although I do believe that parts of it are important to acknowledge.
As part of his report, Dr Barry was asked whether any impairment or illness or condition that you may have been suffering from at the time of this offence may have explained your offending behaviour to any extent. I note that Dr Barry’s opinion was that you were suffering from a major depressive disorder of moderate severity with anxiety features at the time that you were in a relationship with Mr Ruspandini. With respect to the question that was asked of Dr Barry about the effect any condition that you were suffering from may have had upon your commission of this offence, Dr Barry said:
At the time of the offence, Miss Brown had been in an emotionally and physically abusive relationship for over two years. She described a gradual deterioration in her mental health, reporting low self-worth and feeling overwhelmed, feeling that she did not “fit in anywhere” and she described a “sense of loss in the world”. She reported that despite Mr Ruspandini’s treatment of her, she felt that he was the only one who she could rely on.
Domestic violence and emotional abuse are behaviours used by one person in a relationship to control the other. Research into the cycle of domestic violence suggests that it is common for victims of domestic violence to blame themselves for the abuse and to experience major disruption in their self and world view. Domestic abuse can have a serious impact on the way a person thinks and interacts with the world around them. The chronic exposure to violence, or the threat of violence, and the stress and fear resulting from this exposure, can cause not only immediate physical injury, but also mental shifts that occur as the mind attempts to process trauma or protect the body.
Domestic violence affects a person’s thoughts, feeling and behaviours, and can significantly impact on mental stability. While the effects of physical abuse are obvious, the effects of emotional abuse are easier to hide and harder to repair. It is common for victims of emotional abuse to blame themselves and minimise their abuse, particularly when they are repeatedly told that it is their fault that their partner becomes angry or aggressive.
It is my opinion that not only was Ms Brown fearful of Mr Rupandini in a physical sense, she was also dependent on him for emotional support because he had isolated her from other social supports. Rather than providing her with emotional support, Mr Ruspandini manipulated her into believing that she was to blame for his actions and that she was obligated to support him.
(Citations omitted)
Consideration
I accept the opinions and statements which I have just quoted from Dr Barry’s report. In my view, those matters to which I have referred make this case very different from those which the Crown has put before me by way of comparative sentencing. I will come back to that in a moment.
As I have already said, I take into account your early plea of guilty. I also take into account the fact that you have no prior convictions recorded against you, a matter which entitles you to significant lenience in these proceedings. I also take into account that this offence, whilst a serious offence, is towards the lower end of the range with respect to offences of this nature. I am satisfied, as I have said, that you were suffering depression at the time of these events, and I am satisfied that that affected your judgment. That was compounded by the fact that you were very young. You were only 18 years of age at the time that this offence occurred. You were also in a controlling relationship with Mr Ruspandini
I take into account your testimonials which demonstrate that this behaviour is out of character. They speak of the change they observed in you, both in terms of your behaviour and your attitude to life after meeting Mr Ruspandini and whilst you were in a relationship with him. They also speak of your very significant potential. I am satisfied that you have excellent prospects for rehabilitation. You are currently studying to become a teacher. You have very strong family support and I note that you have taken the step of terminating your relationship with Mr Ruspandini.
The Crown has taken me to a number of authorities dealing with the offence of perjury. It cannot be said that the offence of perjury is not a serious offence, as is noted in a number of the authorities to which I was taken. It is an offence which strikes at the heart of the justice system. Such offences will quite commonly, if not ordinarily, involve the imposition, not only of a conviction, but also a term of imprisonment. The motive for giving false evidence before a court will usually be irrelevant to the sentencing process, in the sense that it will not usually be a significant mitigating factor. If, for example, you had simply given evidence because of the fact that you were in love with Mr Ruspandini, or simply because of your intimate relationship with him, that would not be a ground for mitigation in relation to the sentence for this offence. That now said, in my view, the report from Dr Barry makes it clear that this was not a case where there was a simple motive such as misplaced loyalty in play when you gave evidence. This was a case in which you were suffering from a mental illness and in which you were in an abusive and manipulative relationship with Mr Ruspandini.
There is always a place for the exercise of mercy for a sentence if the court considers that an offender is in a position in life such that an opportunity afforded to them will lead to rehabilitation, which can only be to the benefit, not only of the offender, but also of the community. In the presence case, a number of factors convince me that rehabilitation should be given primary sentencing weight, with general deterrence given a much lesser role. Those circumstances are your age, the fact that you were suffering from depression at the time of this offence, the influence that Mr Ruspandini had over you at the time of this offence, the substantial steps that you have taken to extricate yourself from that relationship, your significant potential for becoming a useful member of the community and the fact that I am satisfied that there is virtually no prospect of you reoffending.
For those reasons, I am going to take the unusual step which was suggested by your counsel, and proceed without recording a conviction.
Sentence
I find the offence proved without recording a conviction. There will be a Non-Conviction Order requiring you to enter into a Good Behaviour Order for a period of 15 months with a conditions:
(a)that you are to accept the supervision of ACT Corrective Services for a period of 12 months or such lesser period as deemed appropriate by your supervising officer; and
(b)that you are not to associate with Mr Ruspandini.
I have given you an opportunity not to have a conviction recorded against you in this matter. Undoubtedly your counsel and others have spoken to you about the effects that having a conviction recorded against you can have upon your life. Something like this does not go away; it stays with you for the rest of your life. As I have said, I have given you this opportunity and it’s up to you whether you take the opportunity or not.
Relationships with people like Mr Ruspandini are often characterised by a very significant degree of manipulation. You will have to be careful, because it is quite possible, if not indeed probable, that he will attempt to reconnect that relationship. It is quite common in these circumstances that there will be protestations that he has changed, that he is going to behave in a different way. You have to be mature enough to understand that that is not what is going to happen. You have to make your own life away from Mr Ruspandini.
If you comply with the terms of the Good Behaviour Order that I propose, then at the end of the term of that Order, the matter will have been disposed of without there being any conviction recorded against you. On the other hand, if during the period of that Order you commit some further offence, or alternatively you don’t comply with the terms of the Order, you may be brought back before this Court to be dealt with on a breach of this Order, at which time a conviction and further penalty may be imposed.
A record will be kept of the fact that you have been given this opportunity not to have a conviction recorded against you. If you come back before this Court or any other court in the future, that court will be told that you were given this opportunity and that you did not make the most of it. You may fully expect that you will not receive the same opportunity twice.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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