R v Elliott (No 2)
[2022] ACTSC 390
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Elliott (No 2) |
Citation: | [2022] ACTSC 390 |
Hearing Date: | 4 October 2022 |
DecisionDate: | 6 October 2022 |
Before: | Refshauge AJ |
Decision: | (1) Christopher Elliott be convicted of contravening a Family Violence Order and be sentenced to 8 months and 10 days imprisonment to commence on 6 October 2022 and end on 15 June 2023. (2) The sentence of 8 months and 10 days imprisonment be served in the community by intensive correction. (3) The conditions of the Intensive Correction Order be (a) The core conditions set out in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT); (b) That Christopher Elliott undertake such programs of counselling, rehabilitation or other interventions to address his use of illicit drugs and, especially, relapse prevention, as may be directed from time-to-time by the Commissioner of ACT Corrective Services of his delegate; (c) That Christopher Elliott submit to an assessment for a program for perpetrators of family violence as directed by the Commissioner of ACT Corrective Services or his delegate and, if found suitable and admitted to that program, admit himself to the program and, until he has completed it, not leave the program without the permission of the Commissioner or his delegate or the Court; and (d) That, if a program as specified in condition 3 (iii) is either not available, Christopher Elliott is assessed as unsuitable for it or is otherwise not admitted into the program, he undertake such programs of counselling, rehabilitation or other interventions to address the issue of family violence as may be directed from time-to-time by the Commissioner of ACT Corrective Services or his delegate. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – contravening a Family Violence Order – subjective circumstances – drug use – sentence of imprisonment – Intensive Correction Order – rehabilitation conditions |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 42, 108 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 11, 12A, 33, 35, 46J, 78, 80G, 80J Family Violence Act 2016 (ACT) ss 43, 119, 124 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (Vic) v Ristevski [2019] VSCA 287 Singh v The Queen [2017] ACTCA 17 |
Texts Cited: | Eason, Anne, ‘“He said sorry” - Well that changes everything.’ Academia Letters, Article 1095 (June 2021) |
Parties: | The Queen ( Crown) Christopher David Elliott ( Offender) |
Representation: | Counsel S Whitfield ( Crown) J Robertson ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) JDR Law ( Offender) | |
File Number: | SCC 215 of 2021 |
REFSHAUGE AJ:
Introduction
Christopher David Elliott appears for sentence for the offence of contravening a Family Violence Order.
As explained in R v Elliott [2022] ACTSC 211 at [2]-[5], such orders are an important part of the community’s response to the serious problem of violence between intimate partners. This widespread problem is now recognised for the scourge that it is to a civilised community. It is also, as described in R v Bell [2005] ACTSC 123 at [30], “a pernicious and evil phenomenon”. See also R v Bonfield [2021] ACTSC 362 at [3].
The Crown has tendered, without objection, the Crown Tender Bundle. It contains the prescribed cover sheet, a valuable aid to the sentencing court. It also contains the Magistrates Court Bench Sheet setting out the charge on which Mr Elliott was committed to this Court for sentence. The other documents were an Agreed Statement of Facts, six images of texts sent to the victim, an image of a photograph also sent to her via text message, Mr Elliott’s Criminal History, an updated Pre-Sentence Report dated 2 July 2021 and an Intensive Correction Order Assessment Report dated 1 September 2021.
As Mr Elliott had asked that consideration be given for him to serve any sentence under a Drug and Alcohol Treatment Order (Treatment Order), created by s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the Bundle also included a Drug and Alcohol Treatment Assessment Report dated 29 October 2021 prepared by ACT Corrective Services and a Drug and Alcohol Sentencing List Suitability Assessment Report dated 6 November 2021, prepared by Alcohol and Drug Services. These are Drug and Alcohol Treatment Suitability Assessments (Suitability Assessments) under s 46J of the Sentencing Act.
There was also included in the Bundle the bench sheets and police Statement of Facts for certain offences dealt with in the ACT Magistrates Court on 28 May 2019. These were described as “breach documentation”. Although they did disclose acts of violence Mr Elliott earlier committed, the Good Behaviour Order then made for those offences was not breached by the commission of this offence.
One offence for which there was a Bench Sheet did not appear to have been dealt with at that time, namely a charge of unlawfully choking, suffocating or strangling a victim. On the other hand, another charge of common assault was dealt with at the same time in the Magistrates Court but there was no Bench Sheet for this offence.
The Crown explained that the charge of unlawfully choking, suffocating and strangling the victim did not proceed and was replaced by the charge of common assault. It is not necessary to explore the procedural issues further. For this offence, Mr Elliott had been sentenced to six months imprisonment, suspended on the day of sentence with a Good Behaviour Order for 18 months.
On 14 October 2020, he was resentenced for an unspecified breach of the Good Behaviour Order and a further Good Behaviour Order was made for 12 months from that date. He was then further dealt with in 2021. This offence constitutes a breach of that Order and will be dealt with in these proceedings.
Because the Intensive Correction Order Assessment Report included in the Crown Tender Bundle expressed that it was valid for three months from the hearing date, namely 6 September 2021, and so is no longer valid, an updated Report was prepared and that was tendered separately, without objection.
Finally, the criminal record included in the Crown Tender Bundle only showed his record in the ACT. He had, however, a record in Queensland and New South Wales. In addition, he had, since the record in the current Tender Bundle had been prepared, also been dealt with for additional offences in the ACT Magistrates Court. Those offences, however, were committed in April of 2021, prior to these offences. The additional record was, without objection, tendered and it will be considered to replace that in the Crown Tender Bundle.
Further, updated Suitability Assessments were ordered to be prepared and the Crown tendered those updated Reports without objection. They were a Report from ACT Corrective Services dated 29 September 2022 and one from Alcohol and Drug Services dated 23 September 2022.
From Mr Elliott, a certificate of completion of the Level 3 Foundations Connect program dated 18 February 2022, a program conducted by the Canberra Recovery Services, which is a rehabilitation facility operated by the Salvation Army, was also tendered without objection.
Various medical information was also tendered for Mr Elliott, without objection. These were a letter dated 13 October 2020 from Dr Sarah Martin, senior specialist and director of the Canberra Sexual Health Centre, a letter dated 25 June 2021 from Dr Laurance Watson, a resident medical officer of The Canberra Hospital, a letter dated 28 October 2021 from Dr Dikshata Rangarajan of the Belconnen Medical Centre and progress notes from 24 May 2011 to 24 October 2012 prepared by Dr Augustine Monaghan, consultant psychiatrist at The Canberra Hospital.
Later in the proceedings, Mr Robertson, counsel for Mr Elliott, tendered, without objection, a prescription for dexamphetamine tablets, showing the prescription issued by registered medical practitioner, and a letter from Mr Elliott’s former partner.
None of the contents of any of these documents were challenged.
Both the Crown and Mr Robertson prepared very helpful and targeted written submissions supplemented by thoughtful oral submissions.
From this material, the following findings are made.
The facts
On 7 December 2018, a woman with whom Mr Elliott then had a relationship applied for, and was granted, a Family Violence Order.
On 29 December 2019, before the Order could be served, Mr Elliott went to the applicant’s residence, assaulted her a number of times and damaged a Samsung speaker in the home. She ran out of the house and a neighbour called the police, who attended, and she was later taken by ACT Ambulance Service to hospital where her injuries were assessed.
The next day, Mr Elliott sent the applicant 17 text messages threatening her and abusing her. These matters provide background and refer to the earlier offences including that for which the Good Behaviour Order was originally made.
Subsequently, on 28 April 2021, a Family Violence Order was made by a Local Court in New South Wales. The Order was served on Mr Elliott on 7 June 2021. Regrettably, a copy of that Order was not included in the Crown Tender Bundle. Under s 119 of the Family Violence Act 2016 (ACT), it became a recognised Family Violence Order, which, under s 124, is enforceable in the Territory and a contravention is enforceable as if the Order had been made in the ACT.
Inter alia, the Order is said in the Agreed Statement of Facts to have prohibited Mr Elliott from assaulting or threatening the victim or stalking, harassing or intimidating her. It also included another named person and anyone with whom either of them were in a domestic relationship. There was no challenge to this assertion.
On 10 June 2021, however, Mr Elliott sent 13 messages abusing her and saying, “I’m actually gonna kill ya”. Later, the victim sent him a short response saying that she, didn’t “want to be screamed out down the fucking phone”. Mr Elliott then sent her four further messages threatening her. The victim rejected his approach and suggested she would, “block” him.
The exchanges continued into the next day and, later, at a time not quite certain from the material in evidence, Mr Elliott sent her a photograph of a noose hanging from the roof of his garage with a message, “I'm about to make you realise how serious I am”.
Early in the morning on 11 June 2021, the victim contacted police requesting that they check on Mr Elliott as she was concerned about his welfare. Police then attended Mr Elliott’s residence and had a conversation with him, in which he denied any suicidal ideation.
When the police reported this to the victim, she repeated that she was concerned about him and sent them the messages and photographs he had sent her.
The police then returned to Mr Elliott’s residence on 11 June 2021. Because they considered that the messages breached the Family Violence Order, they arrested him and took him to the watchhouse. The victim declined to provide a statement to police.
Mr Elliott, however, admitted in an interview to the police that he had sent the photograph to the victim, but denied that it was intended to intimidate her. He said that it was a “cry for help”. He also said that he could not recall sending the messages, including that which had threatened to kill the victim.
He said, however, rather inconsistently, that he thought that they were taken out of context and were not threatening or intimidating to her. He also said that, while he was aware of the Family Violence Order, neither he nor the victim wanted it. He said that it was promoted by the victim’s family.
The proceedings
There is no doubt that Mr Elliott was arrested shortly after 2:00am on 11 June 2021. Bail was refused and he appeared in the ACT Magistrates Court later that day.
The material before the Court does not show the offence with which he was then charged. He remained in custody, however, until 30 June 2021. He was then granted bail, but the proceedings were adjourned a number of times thereafter.
In any event, he then appeared in the ACT Magistrates Court on 13 September 2021 and the present charge was preferred. He then entered a plea of guilty to it and sought to be committed to this Court so that a Treatment Order could be considered.
He appeared in this Court on 24 September 2021 and, after an Eligibility Assessment (as to which, see R v McHughes [2021] ACTSC 92 at [7]) was made, finding him eligible to proceed to Suitability Assessment, directions were made for the preparation of Suitability Assessments. He signed a consent form for a Treatment Order to be made.
Unfortunately, the proceedings were delayed because of various other proceedings. He was bailed in New South Wales for offences still pending, a condition of which was that he live in Tamworth, New South Wales, preventing him from coming to Canberra to appear in Court. The proceedings in this Court were, accordingly, delayed from March to June 2022 when that condition was varied, the variation allowing him to appear in this Court.
On 5 August 2022 some submissions were made by counsel for the parties. It became clear that, if Mr Elliott were to be sentenced to a term of imprisonment to be served by an Intensive Correction Order or a Treatment Order, further reports would have to be prepared, especially as, while Mr Elliott maintained his consent to the making of a Treatment Order, his preference was for an Intensive Correction Order. Those further Reports were ordered to be prepared and they have now been tendered, as noted above (at [11]).
The proceedings were then adjourned for those Reports to be before the Court, for final submissions to be made and for a date to be set for sentence to be imposed.
This explains why there has been such a delay, a small, but not insignificant, part being his involvement in proceedings in New South Wales and the then completion of an eight-month Intensive Correction Order imposed by the ACT Magistrates Court in response to the breach of the earlier Good Behaviour Order, which was also breached by the current offence.
Mr Elliott has served 20 days in custody for this offence and that will be taken into account.
The offences
In determining the appropriate sentence to be imposed, s 33 of the Sentencing Act sets out certain matters which must be considered where relevant and known by the Court.
The first of these are the nature and circumstances of the offence. This involves the Court having regard to a number of issues. The first will, of course, be the actual facts of the offending behaviour that has been found by the Court and set out above, at [18]-[29].
Next, the Court must have regard to the maximum penalty for the offences. This is because it is prescribed by the legislature for the offence. It invites comparison with the worst category of case of the offence and it provides the Court, taken and balanced with all the other the other relevant factors, a yardstick for the sentence to be imposed: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]-[31].
The third issue is the practice of the courts in assessing the seriousness of the offence by identifying particular factors in the way the offence is actually committed, which the courts sentencing offenders or determining appeals from sentencing decisions have recognised as aggravating or mitigating factors.
Contravening a Family Violence Order is prohibited by s 43(2) of the Family Violence Act and renders Mr Elliott liable to a maximum penalty of five years imprisonment or a fine of $80,000 or both. Clearly, such an offence is intended to reinforce the value of Family Violence Orders as a protective device for persons, largely women, who have experienced family violence which, without this protection, they may suffer further.
The offence is, therefore, an important part of the attempt to deal with family violence in the community and protect the victims of such violence. Hence, the offence is one for which a significant penalty is prescribed. Although such orders are known as Family Violence Orders, it is also known that family violence is not limited to the infliction of physical harm, but can include mental harm, such as may be caused by menacing, threatening or intimidating behaviour or, indeed, coercion. It is an exercise of power over, and instilling powerlessness in, the victim. See Roberts v Smorhun [2013] ACTSC 218 at [2]-[4]; R v BG(Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 1 December 2010).
Here, the contact was by electronic means, but still threatening, as shown by reading the texts. They included abuse, including some degrading abuse and threats to do harm, including to kill the victim. There was, however, no evidence from the victim, but just reading the texts and her responses shows that they were threatening or intimidating and seen by her as such, as well as making threats against her family, and certainly they were harassing.
She did contact the police, but requesting a check on Mr Elliott’s welfare, after she had received a photograph of the noose. Nevertheless, it was clear that she did not enjoy the messages, initially saying that she did not “want to be screamed out” and then describing him as “heartless” and saying that she did not deserve to be spoken to like that. She did not wish the texting in this way to continue.
The nature of the texts, which continued after the photograph, were part of the degree of coercive control and, thus, if not actually threatening and menacing, at the very least, significantly harassing, especially after she had expressly asked him not to send them. They were aggressive and, certainly, threats were made. Given the victim’s concern for Mr Elliott’s welfare, she clearly was concerned that there was some truth in them.
It is, in the absence of evidence from the victim, difficult to evaluate the precise effect that they had on her, save that she wanted him to stop sending them and described him as “heartless”. Victims sometimes do not want the perpetrators of family violence prosecuted. Many times, they still have some strong feelings of affection for the perpetrator, but just want the violence to stop. Sometimes, however, they are afraid of the perpetrator and that fear even extends to being fearful of consequences if they cooperate with the authorities, such as police. No inference about any of these motivations can be made, one way or another, in the absence of any evidence.
Mr Elliott’s description that the victim did not want the Family Violence Order to be made and that it was her family’s wish may be true, but it should not be accepted just by his assertion without proper evidence from her or her family, unless the Crown concedes it, which it did not do.
Mr Robertson submitted that Mr Elliott was under the influence of methamphetamine at the time of the offending. That was not controversial and the parties accepted that judicial notice could be taken of the effect of such usage, namely to make the consumer aggressive. That, of course, does not mitigate the offence. Indeed, it might be said to make the threats somewhat more likely to be carried out where he was under the influence of that drug.
Further, the breach documentation shows that he had earlier assaulted another victim to the extent of requiring medical assessment.
The offence is a serious one. It is more serious because of the threats made, but there is no evidence to suggest that he took any steps to come to the victim’s place, where threatening behaviour would have been more serious, nor was there any actual violence. It is difficult to assess whether it was a deliberate breach of the Order, though at least he must have known that what he was doing breached the Order, as he had been served with it only four days beforehand. See R v Rogers [2021] ACTSC 355 at [52]-[55].
Further, some of the texts certainly imply that the issue of the Family Violence Order was of concern and was a cause of him threatening “payback”. That inference cannot be drawn beyond reasonable doubt on the present state of the evidence.
Subjective circumstances
Mr Elliott is 37 years of age. He was born in Queensland, the second of his parents’ two children. His father was violent to his mother and left the home when Mr Elliott was two months old.
His mother re-partnered and he has a young stepsister. His stepfather was, however, dependent on alcohol and also violent to his mother and they separated when Mr Elliott was a teenager.
Mr Elliott became very close to his grandparents and they provided significant support during his “tumultuous” childhood years. He lived with them for much of the time and viewed them as his second parents. His grandmother died in 2020 and this had a significant impact on him. He maintains close contact with his grandfather, who lives in a retirement facility, and Mr Elliott was said to drive him to medical appointments for his significant health conditions, as well as providing other support. That is a little odd, since it appears that he currently does not have a driver licence.
Mr Elliott had a strained relationship with his mother for many years because of his behaviour. Recent positive changes in his behaviour have led to an improved relationship. His siblings live interstate and he has had limited contact with them. Their relationship is not positive, though he suggested to the author of one of the various reports that there was some improvement in the relationship with his stepsister.
Mr Elliott is not a wholly accurate historian, which is not unusual for people trying to recall history and dates.
He attended school, but was bullied and performed badly. One report suggested that he left school at Year 8, but he apparently returned. In any event, it is accepted that he completed his Year 10 certificate.
After leaving school he gained various employment in labouring. He changed jobs frequently, he says because he was bored. His longest employment was as a rigger for two years. A workplace injury, about which there is little information in the evidence before the Court, led to him ceasing employment about five years ago, though he also suggested that COVID-19, being in custody and his drug rehabilitation interrupted his employment. In any event, he has now returned to some employment as a roof restorer.
Mr Elliott has had two significant relationships. The first commenced when he was about 24 years old. He has two children from that relationship, now 13 and 11 years old. The relationship ended sometime after the birth of his daughter and led to him returning to more significant drug use.
The children’s mother has denied him access to his children, but he has had some limited contact for some time. The letter from her confirmed that during the last six years he has had some limited contact, but in the last few months he has had contact twice a week. She adds that the children are happy to see their father and “return happy and content” after seeing him.
A further relationship was with the victim of his current offence. Their relationship lasted about 12 months, but Mr Elliott was still suggesting in November 2021 that they were still a couple. He blames the parents of his ex-partner for the making of the Family Violence Order and [redacted for legal reasons].
Mr Elliott said that he had an accident at work about five years ago. There is little detail of that in the evidence, but it is said to have been a significant factor in him ceasing employment. There is no evidence of any ongoing consequences from it.
In 2019, however, he was the victim himself of an aggravated burglary, an assault occasioning actual bodily harm and a theft when an associate thought that he had not paid a debt. He suffered “significant injuries” in the incident. See R v Folauhola [2020] ACTSC 341 at [7]-[8]. The offender was sentenced to a term of imprisonment.
Mr Elliott, however, was later also imprisoned and, because he had given evidence against the burglar who had assaulted him, was assaulted in custody himself a number of times and was sent to hospital. Most recently, in 2021, he suffered a fractured nose and severe pain and bruising from being set upon and kicked. He also lost consciousness briefly. He says that he still suffers some pain.
Mr Elliott has also been diagnosed with a serious illness, [redacted for legal reasons]. He has, however, managed to comply with his treatment and engage with clinical care.
Mr Elliott has received some mental health assessments and treatments over the years. Most recently, he consulted a psychiatrist at The Canberra Hospital. He has been diagnosed with Attention Deficit Hyperactivity Disorder, a diagnosis confined to that occasion. He has been prescribed medication. He was then also diagnosed with comorbid anxiety. Though he has had a diagnosis of Borderline Personality Disorder, the psychiatrist concluded that there was “[n]o clear evidence of personality dysfunction”. Mr Elliott says that, since he has seen his children, his mental health has improved.
It is important not to treat diagnoses of mental challenges as necessarily identifying unalterable conditions which can and not change over time and not to use such diagnoses inappropriately to stereotype people who have suffered the conditions identified.
Mr Elliott’s drug history is long lasting. He has had little usage of alcohol, but he began smoking tobacco when he was about 14 years old and currently smokes about 10 cigarettes a day.
He started using cannabis between the ages of 14 and 16. There are three different dates given in the evidence He was soon using daily. He said that he ceased use in 2011.
He began using methamphetamine at about the same time, again increasing his use to about daily by the age of 16 or 17. He said he has now ceased using it. The evidence is mixed for this, but it can be properly construed as supporting this conclusion.
His other drug of choice has been gamma hydroxybutyrate (GHB), which he commenced using between about age 17 and 22. His last use was in 2021.
His current usage of drugs is not entirely clear. The most recent report of ACT Corrective Services states that, on 16 June 2021, he tested positive on urinalysis for amphetamines and methamphetamines. On 9 June and 15 September 2022, however, testing showed just amphetamine, and this was consistent with his prescribed medication.
Of course, this could be used to hide the use of amphetamine by using the prescribed medication, but this seems unlikely, especially as there was no result for the more common methamphetamine.
In 2021, he commenced the day program at Canberra Recovery Services, but ceased attending the program when he broke up with his then partner. He subsequently returned and, on 18 February 2022, completed the program, as shown in the certificate tendered in evidence. He says that, since then, he has been drug free.
In further support of that, the letter from his former partner reports that recent contact with his children:
…is bringing a positive change to Christopher. He seems motivated to be a positive example to the children and provide a stable environment where they can thrive. He is making a lot of effort to engage with the children in positive ways and rebuild the bond between them.
This supports the submission that he has now taken a better course and is likely to be drug free at the moment.
Mr Elliott has a concerning criminal history, [redacted for legal reasons]. He has a total of 34 offences on his record in New South Wales, Queensland and the ACT. The majority of these are traffic offences, though some are related to his drug use and some are dishonesty offences. Of the 34 offences, six are drug related.
Of most concern is that eight of the offences are family violence or similar offences, the first being committed in 2013 when he was convicted of stalking. This does suggest a history of coercive control. More recently, a series of violence offences have been committed by him against his partners. This rather undermines the approach he asked the Court to take for the current offence, but it is not as serious as suggested by the Crown and that submission by him cannot be accepted.
Mr Elliott has a patchy record of complying with community-based orders, breaching them in 2016, 2017, 2019, 2020 and 2021. Indeed, as noted earlier, this offence breaches a Good Behaviour Order itself made when he breached an earlier Good Behaviour Order.
His history of childhood disadvantage, however, is very relevant to this. The research clearly suggests that early exposure to violence can normalise this for young children and this seems likely in the case of Mr Elliott. Such persons carry this into their adult years.
Current sentencing practice
Section 33(1)(za) of the Sentencing Act requires a court sentencing an offender to consider current sentencing practice. Part of that has already been considered when identifying the relevant factors of the way in which an offence has been committed may be aggravated or mitigated in its seriousness.
In addition, the sentences imposed are also part of that consideration as it provides the Court with what has been described as “‘the collective wisdom of sentencing judges” (R v Oliver (1980) 7 A Crim R 174 at 177).
There are two bases for that consideration. This Territory is fortunate to have a Sentencing Database which collects statistics on the sentences actually imposed. While there are significant limitations on this information, it is of value and should not necessarily be ignored.
The limitations include that, while a number of important factors are identified, such as whether the offender pleaded guilty or was found guilty after a trial and whether the offender has a criminal record, it does not record many of the important specific factors. Even with the information given, it is limited. Thus, the fact of the plea of guilty is recorded, but when it has been entered is not given, nor is the length, nature and severity of the criminal record.
A significant failing is that the sentencing remarks of the Court are not always linked to the remarks summarised in the Sentencing Database. The Database does provide a useful summary of the remarks, including the age of the offender, whether a plea of guilty has been entered and the number of offences dealt with at the same time. The actual remarks of the sentence can be very important to understand the actual factors taken into account, the principles applied by the Court and the way in which the sentence was crafted.
The records are limited to a summary so that a sentencing court can read and consider them, but, increasingly, they do not seem to be linked to the actual remarks of the sentencing Court, despite that the information actually recorded seems to have come from them. All are published by the Russell Fox Library but they are not easy to access via the Database, since the Database does not record the names of offenders.
In the Supreme Court, there were eight sentences recorded in the Database for the offence of contravening a Family Violence Order. This is clearly because many of the offences are dealt with in the ACT Magistrates Court.
In the Supreme Court, seven of the eight sentences were of imprisonment, though all but three were partially or fully suspended. The terms of imprisonment were from three months to 12 months.
In the ACT Magistrates Court, 619 sentences were recorded for that offence. The majority were sentences of a Good Behaviour Order, the vast majority were between 7 and 18 months imprisonment, most being of 12 months imprisonment. Of the 131 sentences of imprisonment, the range of terms of imprisonment was between 1 month and 18 months, with the majority being of less than 6 months imprisonment.
Of course, such information does not set boundaries nor prescribe the length or nature of the sentence to be imposed.
As noted, the sentencing remarks of judges who actually impose the sentence are the most helpful to a sentencing court. Most useful are comparative cases. Neither party provided any, and the only remarks readily available to the Court were from decisions of the Drug and Alcohol Sentencing List, being R v Tonna (No 1) [2020] ACTSC 360 and R v Rogers. A number of other sentences, however, were managed to be accessed through the Supreme Court library and reference can be made to the following decisions: R v Michalopoulos [2020] ACTSC 27, R v EN [2020] ACTSC 302, R v Smith [2021] ACTSC 114, R v KS [2021] ACTSC 109 and R v Elson [2020] ACTSC 264. All have been read and considered.
Consideration
In order to achieve what the Court of Appeal has described in Singh v The Queen [2017] ACTCA 17 as a just and adequate sentence, the Court needs to have regard to the objects for which the sentence is to be imposed. As many courts have described this, since the New South Wales Court of Criminal Appeal in R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274, it is “the protection of society”.
In order to achieve this, various purposes have been identified by the legislature in s 7 of the Sentencing Act. The Court must have regard to them and will do so.
Thus, the serious nature of family violence means that the integrity of the mechanisms available to prevent it, especially the Family Violence Order, requires that the breaches of such an order should be punished.
Such punishment will also denounce the conduct of the offender. It may also deter both the offender and others likely to commit such crimes from committing them. Thus, the community will be protected, and further crime prevented. The experience of judges, but also criminological research, is important to ensure that such sentences are seen to be effective, not just in their apparent severity, but in the actual achievement of these purposes, such that recidivism, either of these or other offences, is stemmed. It also reinforces the standards expected of a member of a peaceful and civilised society.
Similarly, the harm done to the victim must also be recognised, as must the harm done to the community. While no Victim Impact Statement was provided, the Court can, in general terms, understand from experience the effect of crimes on victims, as explained in R v Ridley [2014] ACTSC 382 at [42]-[43]. In this case, the Court also had in evidence the text response from the victim, showing that there was some distress caused by the text, not just her concern for Mr Elliott’s welfare. As she said, “I do not deserve this”.
Rehabilitation is also a purpose required to be considered. In this case, Mr Elliott has taken some steps since his arrest to rehabilitate. He appears to have remained abstinent from drugs, reconnected with his children and their mother, who had refused him access while he was on drugs, and obtained employment.
This progress is one of the reasons why delay can be relevant to the sentence, namely the offender has taken advantage of it to engage in rehabilitation: R v McMahon [2014] ACTSC 280 at [98]-[107]. As noted, this is relevant even where the offender has been wholly or partly responsible for the delay.
In addition, Mr Elliott’s attitude to the offence is relevant. He seems to minimise the offence to some extent, telling the author of the updated Intensive Correction Order Assessment Report that he “did not believe he had acted in a hostile manner towards his former partner”. He said that she “knew he was suicidal and had requested that ACT Police conduct a welfare check”.
While that can be accepted in relation to when she saw the noose, his characterisation of the texts does not align with her expressed concern in her responses: “I don't want to be screamed out,” describing him as “heartless” and saying that “[t]here is no feeling for that chat” referring to another male.
Further, it is difficult to accept this with regard to his texts to her, such as “I'm actually gonna kill ya”, “YOUE GONNA TO GET YOURS [emphasis in original]”, “U [sic] watch what happens to your family” and “I'm gonna get my payback”. Then she said, “[p]lease don't do this”, with a crying face and a broken heart emojis. That the victim did not express fear, so far as is known on the evidence, does not mean that the messages were not threatening. They could hardly be regarded as a joke or light-hearted, especially in the context of the abuse and swearing in many of the texts.
There was no evidence of remorse. That does not aggravate the offending. As the Victorian Court of Appeal held in Director of Public Prosecutions (Vic) v Ristevski [2019] VSCA 287 at [74], “the absence of remorse does not aggravate the respondent’s offending, but it represents the absence of a feature which often significantly mitigates sentence”.
Indeed, there is some authority to suggest that the absence of remorse, though it cannot aggravate the sentence, should be mentioned: Caporn v Western Australia (No 2) [2008] WASCA 26 at [97]. There was no apology to the victim, though courts must be careful not to assume that saying sorry eradicates the offence. See Anne Eason, ‘“He said sorry” - Well that changes everything.’ Academia Letters, Article 1095 (June 2021).
The Court takes into account, also, the nature and circumstances of the offence, as described above (at [18]-[29]).
It is also necessary to take into account the personal circumstances of Mr Elliott. Again, these have been described above (at [54]-[82]). All those matters described are important. Three, however, require particular mention. In the first place, his childhood disadvantage requires particular consideration in the sentencing process. See Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-5; [41]-[44].
Further, Mr Elliott clearly has some mental health challenges. While, as the Crown submitted, they do not seem to rise to the level that would attract the full extent of the principles articulated in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32], his condition is still relevant to the sentence to be imposed, though care must be taken not to stereotype the effect of mental ill health.
Finally, Mr Elliott’s early introduction to drug use, though not as young as for some offenders, is relevant. While it does not mitigate the offending, despite Mr Robertson’s submission that the use of methamphetamine was the cause of the escalation of his aggression, it is still relevant to his culpability. See R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 397-8; [273], Douglas v The Queen (1995) 56 FCR 465 at 470.
Mr Elliott was subject to a Good Behaviour Order when he committed the offence. This has two aspects, as explained in R v Mathews [2020] ACTSC 364 at [35]-[40]. That is, the sentence for the breaching offence is more serious because he breached the opportunity that his grant of conditional liberty gave him to serve his sentence in the community subject to his Good Behaviour Order, rather than in custody.
Ordinarily, the Order would also have to be cancelled and he would have to be resentenced for the original offence for which the Good Behaviour Order was imposed: s 108 of the Crimes (Sentence Administration) Act 2005 (ACT).
That Order has already been cancelled by Magistrate Lawton. He imposed eight months imprisonment and directed that it be served by an Intensive Correction Order, as mentioned above (at [37]). He has completed that Order.
Nevertheless, the sentence must recognise the fact that he has breached, by committing this offence, that Order which granted him the privilege of being in the community for that time. Mr Elliott also pleaded guilty. As noted above (at [32]), this was on the day that he was charged with the offence. Though the evidence is not entirely clear, it appears that this charge did replace an earlier charge that did not proceed. Nevertheless, it was a very early stage, and he is to be given appropriate credit.
The discount to which he is entitled under s 35 of the Sentencing Act is rather reduced, however, in this case because the evidence against him was very strong, given that it was the text messages provided to police by the victim. Section 35(4) of the Sentencing Act does not deny him a discount, even in these circumstances, but it does mean that it will have to be moderated.
Mr Elliott’s history of family violence offending is of concern. This requires a more stern sentence than the circumstances of the offending in this case might otherwise have allowed.
Mr Elliott’s efforts at rehabilitation are also important, as is the fact that the sentencing has now been delayed and he has engaged in rehabilitation in the meantime. The offence is over 12 months old, but he has taken the opportunity to engage in rehabilitation, which appears to have been successful to date.
Nevertheless, taking all the relevant matters into account as set out in these sentencing reasons, and considering all the reasonable sentencing alternatives, no sentence but a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
The Court must also take into account the 20 days of pre-sentence custody. If, as requested, a Treatment Order is to be made, the sentence can be backdated. See R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111]. That is not available, however, for an Intensive Correction Order: R v Folauhola at [31]. Thus, the pre-sentence custody can be taken into account in that case in determining the length of the actual sentence: R v McCallum [2020] ACTSC 15 at [81]-[82].
Sentence
[His Honour then spoke directly to the offender]
Mr Elliott, please stand.
(1) You are convicted of contravening a Family Violence Order and sentenced to eight months and 10 days imprisonment to commence today, 6 October 2022, and end on 15 June 2023. Had you not pleaded guilty, you would have been sentenced to 10 months imprisonment.
Please be seated.
Intensive Correction Order application
The question of how the sentence should be served has also been raised. As the sentence for the offence of contravening a protection order has not reached the statutory minimum of 12 months imprisonment, he is not eligible for a Treatment Order.
Since his preference now is not for a Treatment Order to be made, this is consistent. Indeed, the updated Suitability Assessment of Alcohol and Drug Services recommended that he is not suitable for a Treatment Order. While principally relying on his employment, which would potentially make it impracticable to complete such an Order, it also refers to his recently completed Canberra Recovery Services program and the current access to his children.
While the Suitability Assessment of ACT Corrective Services does find him suitable, concerns were expressed about his ability to comply, given that he had breached a number of community-based orders and suggests that, because he has already completed the Canberra Recovery Services program, he may not benefit from the intensive treatment that this Treatment Order provides on sentence.
Accordingly, consideration should now be given to whether Mr Elliott should serve the time of imprisonment by an Intensive Correction Order, by Good Behaviour Order or by full-time imprisonment.
Given his progress in rehabilitation and the nature of his criminal record, the service of the sentence by full time imprisonment is not appropriate unless no other alternative is available.
Experience in the Drug and Alcohol Sentencing List suggests that, despite his progress in rehabilitation, further intensive support may be necessary for him to address the relevant drug issues. It will also give support and supervision of a more intensive kind to address his family violence and relationship issues. Accordingly, it is preferable that he serve a sentence under an Intensive Correction Order. A Good Behaviour Order will not provide those benefits and, in the light of his record, is likely not to be a just and adequate sentence.
The sentence for the offence is less than two years, so he is eligible for an Intensive Correction Order: s 11(2) of the Sentencing Act.
Such order has been comprehensively considered in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]-[28]. The process described there (at [23]) has so far and will now be followed.
Thus, s 78 of the Sentencing Act requires that an Intensive Correction Order Assessment Report be prepared and that it and any Pre-Sentence Report be considered by the Court before making the Order. That has been done.
The approach to assessing whether an Intensive Correction Order should be considered is set out in R v Ngerengere (No 2) [2016] ACTSC 155 at [69] and it requires certain findings. In this case, it can be accepted:
(1) That Mr Elliott has been sentenced to a total of eight months and 10 days imprisonment.
(2) That the offence, while a serious one, did not, on the evidence, cause a level of harm to the victim and the community such as to justify not making an Intensive Correction Order.
(3) Mr Elliott does not pose a risk to the victim or to the community such as would justify not making an Intensive Correction Order.
(4) That, while Mr Elliott’s culpability is high, it is not such as to justify not making an order for preparation of an Intensive Correction Order Assessment Report.
Accordingly, the assessment was directed and prepared.
Mr Elliott was polite and cooperative with the assessment and attended each of the three interviews for the Report.
The Pre-Sentence Report suggested that he was not suitable for such an Order, but it is now nearly 15 months old. It is noted that, of the conditions suggesting that he is not suitable, many may no longer be valid.
He has become, hopefully, long-term abstinent from drugs and his clinical case seems to be under control. Further, he has now completed an Intensive Correction Order which was made in the Magistrates Court. Unsurprisingly, the more recent Intensive Correction Order assessment report assesses him as suitable for a medium level of intervention.
As explained in R v Bartlett (No 2) [2017] ACTSC 51 at [22], unless other matters come to the Court’s attention after an assessment has been ordered for an Intensive Correction Order which assesses an offender as suitable, it would be inappropriate not to make one.
Accordingly, Mr Elliott is eligible and suitable for an Intensive Correction Order to be made and to the Court will make one.
No matters have been brought to the Court’s attention to suggest it would be inappropriate to proceed in that way. There are certain conditions that may be included. The core conditions set out in s 42 of the Crimes (Sentence Administration) Act must be included.
The Intensive Correction Order assessment report recommends that a community service condition not be made. Section 80J of the Sentencing Act permits a court to impose a rehabilitation condition. Such a condition is defined in 80G to mean a condition that requires the offender to undertake a rehabilitation program, which itself is defined to mean a program prescribed by regulation. Regrettably, there appears to be no such regulation. The Crimes (Sentencing) Regulation 2006 (ACT) does not prescribe any, though it does for a Good Behaviour Order, and there do not appear to be any other regulations.
The Intensive Correction Order assessment report, however, does recommend that he:
· Engage in interventions to address illicit substance use (particularly around relapse prevention) as directed; and
· Participate in assessment for a program for perpetrators of domestic violence. If deemed suitable, complete that program and not exit yourself or cause yourself to be exited for any reason, without the prior permission of ACT Corrective Services.
It is appropriate to make such conditions.
Intensive Correction Order
[His Honour again spoke directly to the offender]
Mr Elliott, please stand again.
(2) The sentence of eight months and 10 days imprisonment is to be served in the community by intensive correction.
(3) The conditions of the Intensive Correction Order are:
(a) The core conditions set out in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT);
(b) A condition that you engage in such programs of counselling, rehabilitation or other interventions to address illicit substance use, especially relapse prevention, as directed from time to time by the Commissioner of ACT Corrective Services or his delegate;
(c) A condition that you participate in an assessment for a program for the perpetrators of domestic violence as directed by the Commissioner of ACT Corrective Services or his delegate and, if found suitable and admitted to the program, admit yourself to the program and not leave the program until you have completed it without prior permission of the Commissioner or his delegate; and
(d) If a program, as specified in condition (3)(iii) is either not available, or you are assessed as unsuitable or you are not otherwise admitted to the program, you are to undertake such program of counselling and rehabilitation or other interventions to address the issue of family violence as may be directed from time to time by the Commissioner of ACT Corrective Services or his delegate.
Mr Elliott, it was not a huge offence, in one sense, but given your history and given your relationships, it was a serious offence and it is sufficiently serious to justify a term of imprisonment. I would have imposed that, but you have taken the steps. You have seen the writing on the wall. You have understood that your drug use is a no-no. It is going to lead you to the Alexander Maconochie Centre where you have not really had much experience yet. That experience has been really bad and you do not need to repeat it.
If you can get these two issues under control, namely issues relating to drugs, and you are well on your way to that, and issues in relation to your intimate partner relationships then, hopefully, you can lead a very productive life. You can be, importantly, a role model to your kids. You can have a successful life. You can obviously get employment and that will assist you in doing so.
The best this Court can do is make an Intensive Correction Order. That will give you some direction, and you will have to obey that. Your record on that is not flash. It is pretty poor, in fact. You need to understand that you are coming to the stage where leniency will not be offered to you much more.
Magistrate Lawton made what, in my view, with respect, was the right decision and said you had made some progress and therefore, instead of imposing that four months imprisonment and sending you back to gaol, he gave you an Intensive Correction Order.
This time you completed that without a problem, so I am hopeful, I am optimistic that you will be able to do this. This Order is much longer. It is eight months and 10 days, but it is a sentence that is appropriate for this offence and your history and your circumstances. I hope that you will not have to serve any of it, certainly not all of it, in custody. It will mean, however, that you will have to comply. That is number one.
Further, take this as an opportunity. The people who will supervise you will be people of professional experience who will be able also to assist you through the times when it will be tough. They will either be able to help you themselves or direct you to ways that will help you and you should take advantage of that.
That is a privilege in the sense that the community has given you this opportunity because it has an investment in you not committing further crimes. That is what will best protect society at the end of the day, so you must do that. It will be tough.
It will be more difficult because you will have to confront things that you might think are normal about your understanding of relationships and how you behave in those relationships. The programs that are around, like EveryMan or Room4Change by the Domestic Violence Crisis Service are very good programs, but they are challenging and they will make you think about yourself and what you are doing and how you see things. Hopefully, you will see a better way to go and how to be more respectful and appropriate in the community.
At the end of the day, this is, I hope, an opportunity for you to stop committing offences. So far, they have not been serious enough to justify imprisonment, but you have had very little of that. The risk is that, if you keep going, it will get worse and worse and you will end up in prison for more of the time.
I hope this is the right sentence for you. I hope that you will take it and run with it and really make it work and use the opportunities that this gives you to succeed. Good luck.
You may be seated.
Addendum: Order 1 of the orders made on 6 October 2022 were amended on 20 October 2022 as follows: '16 June 2023' be omitted and '15 June 2023' substituted.
| I certify that the preceding one hundred and fifty-three [153] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: I Harris Date: 22 September 2023 |
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