R v EN
[2020] ACTSC 302
•12 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v EN |
Citation: | [2020] ACTSC 302 |
Hearing Date: | 27 June 2019 |
DecisionDate: | 12 November 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [80] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – contravene family violence order – attempt to pervert the course of justice – stalking – deferred sentence – rehabilitation – mental health – post traumatic stress disorder |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12, 13(2A), 33 Crimes Act 1900 (ACT) ss 27 and 35, Ch 8 Family Violence Act 2016 (ACT) s 43 |
Cases Cited: | DD v Ilevski [2016] ACTSC 115 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 |
Parties: | The Queen (Crown) EN (Offender) |
Representation: | Counsel M Dyason (Crown) A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 65 of 2018, SCC 294 of 2018 and SCC 74 of 2019 |
LOUKAS-KARLSSON J:
Introduction
On 19 November 2018, EN (the offender) pleaded guilty to one offence of contravening a family violence order contrary to s 43(2) of the Family Violence Act 2016 (ACT) (Family Violence Act) (CC18/7682) (Count 1). The maximum penalty for this offence is 500 penalty units, imprisonment for 5 years, or both.
On 25 October 2018, the offender pleaded guilty to one offence of attempting to pervert the course of justice contrary to s 713(1) of the Criminal Code 2002 (ACT), by way of s 44 (CC18/3534) (Count 2). The maximum penalty for this offence is 700 penalty units, 7 years imprisonment, or both.
On 2 April 2019, the offender pleaded guilty to the following further offences:
(a)One offence of stalking, contrary to s 35 of the Crimes Act 1900 (ACT) (Crimes Act) (CC19/2638) (Count 3). The maximum penalty for this offence is imprisonment for five years if the offence involved a contravention of an order made by a court, or two years if no such contravention was involved.
(b)One further offence of contravening a family violence order, contrary to s 43(2) of the Family Violence Act (CC19/2639) (Count 4). The maximum penalty for this offence is 500 penalty units, imprisonment for 5 years, or both.
Counts 1,3 and 4 are rolled up charges representing a course of conduct over a period of time.
Agreed Facts
The agreed facts are set out in the Statement of Facts. The agreed facts may be summarised as follows.
The offender and the victim were in a relationship for approximately nine years. The relationship ended in June 2016. On 7 August 2017, the victim took out a Family Violence Order (FVO) against the offender. The FVO named the victim and her son as protected persons. Following service of the FVO, and in contravention of it, the offender continued contacting the victim between August and October 2017 by phone call, email, text message, Skype, Viber, and Facebook Messenger.
On 19 August 2017, the offender sent an email to the victim. He was arrested on 5 September 2017 and charged with contravening the FVO. The offender continued to contact the victim following this arrest. At no point in time did the victim initiate any contact with the offender. This conduct constitutes Count 1.
Between 25 September 2017 and 5 November 2017, the offender regularly contacted his 18-year-old son in relation to the 19 August 2017 email and the resulting criminal charge. The Statement of Facts reveals a number of communications in which the offender seeks to make arrangements for his son to provide a sworn statement that it was in fact the son who sent the email from the offender’s account while the offender was sleeping. This conduct constitutes Count 2.
On 6 January 2019, the victim contacted police in relation to social media posts by the offender, identifying 258 Twitter posts related to the victim and the relationship between the victim and the offender. The posts revealed specific details of the victim, her children, her new partner, and her new partner’s children. The offender also made contact with the victim’s new partner on Facebook. The victim told police she feared for her physical safety based on her experience with the offender; she receives ongoing psychological treatment due to his behaviour. This conduct constitutes Count 3.
The conditions of the FVO against the offender included a prohibition against behaviour that constitutes family violence towards the protected person, including but not limited to: harassment, intimidation, stalking, property damage, emotional or psychological abuse, and offensive behaviour. By engaging in the conduct constituting Count 3, the offender contravened the conditions of the offender’s FVO. This breach constitutes Count 4.
Victim Impact
While no victim impact statement was provided in this matter, the prosecution submitted that the offences caused the victim “considerable distress” (T 39.12-15). The Court recognises the distressing nature of these offences for the victim.
Further, the Court recognises the serious and long-lasting effects of such crimes on victims.
Objective Seriousness
The prosecution submitted that the offences reflected, in part, “a form of obsessive behaviour” and this was the “concerning feature” in this matter (T 8.38-44). It was noted that three of the offences were rolled up charges and represented conduct over a period of time (T 39.3-12).
These were serious offences. 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 agree with the identifying features outlined by the prosecution.
Subjective Circumstances
In evidence before me is a pre-sentence report (PSR) dated 10 January 2019 prepared in relation to the offender. The PSR contains the following information.
The offender was born in 1971 and was raised in Victoria with four siblings. He reported a stable childhood and continues to maintain supportive familial relationships. The offender completed school up to and including Year 10 and has two further qualifications. He moved to Canberra in 2015 due to his employment in the Australian Defence Force (ADF).
The offender has had a lengthy and distinguished career in the ADF including multiple overseas deployments. He joined the Australian Army at the age of 18 and by 2019 had obtained the rank of Warrant Officer. Most recently, he worked with the Army Intelligence Corps as an Intelligence Analyst Operations Manager. Documents tendered by counsel for the offender showed that the offender was discharged from the army in May 2019, following these offences. The offender was deemed medically unfit for service with the ADF.
The offender has three adult children from his first marriage, which ended in 2006. The offender remarried in 2009. That relationship broke down in June 2016.
The offender reported commencing social alcohol use as an adult. At the age of 37, he reported problematic consumption of alcohol to assist him to sleep. In 2014, his drinking increased to up to three bottles of wine per night. The offender claims to have remained abstinent from alcohol since 20 August 2017.
The offender reported being diagnosed with and treated for mental health conditions, including post-traumatic stress disorder, major depressive disorder, substance disorder, and anxiety. This is discussed in further detail at [33]-[39]. Material tendered by the offender’s counsel suggest that the offender was “a different person” following a deployment to Afghanistan in 2007. He reported to psychologists that, after he returned home, he “was angry all the time”.
In respect of his attitude to the offending, the offender acknowledged the impact of his actions on his family and ex-partners, but attempted to partially deflect some of the blame onto his son, suggesting that it was his son who had suggested making a sworn statement (Count 20.
The PSR concludes with the following:
[The offender] is a 47 year old man who has no previous criminal history. He has otherwise maintained employment/a career, supported his family and led a pro social life. He has documented mental health conditions and alcohol abuse/dependency issues. [The offender] now finds himself before Court in relation to a serious offence against the administration of justice.
He has been assessed as a low risk of general reoffending.
An updated PSR was produced on 24 June 2019 in relation to the offences of stalking and contravening a family violence order (Counts 3 and 4). In addition to the existing PSR, the updated PSR notes the following:
(a)As at June 2019, the offender was enrolled in a hospitality course at the Alexander Maconochie Centre. He began employment as a food attendant at the AMC on 6 June 2019.
(b)The offender reported, although it could not be confirmed, that he had been approved by the Department of Veterans’ Affairs for a 12 week program in Victoria to address his mental health issues. If released, the offender had plans to reside with his mother in Victoria to await entry into the program.
In respect of his attitude to these offences, the updated PSR states that the offender appeared to take responsibility for his actions and expressed some victim empathy. He engaged in some minimisation of his conduct by asserting he was unaware it was contrary to the FVO.
Counsel for the offender submitted in June 2019 that the offender “now completely understands and agrees that the relationship is over and finished” (T 9.9.39-40). It was further stated that: “There is no excuse and there is no victim blaming … [the offender] takes all the responsibility for himself” (T 5.41-46).
The updated PSR further states that a deferred sentence may be beneficial for the offender to allow him to address his mental health issues.
References
A number of letters and references were tendered on behalf of the offender.
A signed letter dated 17 June 2019 and under the hand of the offender’s mother includes the following:
[The offender] joined the Army as a very young man and made me very proud on the day he marched out of Kapooka after his initial training. He was so excited to commence his career with the Army as was most of his family. Before him, so many family members also served in the Boer War, Gallipoli, Light Horse in Egypt and Borneo and Vietnam. Military service in his family also extends to Britain and the Army there and a close relative in the family was an esteemed Chelsea Pensioner.
…
[The offender] was working in Sydney and the children were living with their mother when he left to deploy in Afghanistan. This is when he came back a different person. He then married his second wife and the children all went to live with him and her. … All through these times, he still remained committed to his children and continued to try and save his marriage.
[The offender’s] second marriage ended in about July 2016, but at that time he remained on good terms with his wife.
He was already experiencing mental issues but I know that he thought the how best to handle things was to put them at the back of his mind and not deal with it. … He started to suffer night flashbacks and insomnia, could not function at work, [could] not remember what he was doing, arguing with his sons as his coping mechanism just went out the door.
His PTSD was exacerbated by the breakdown of his marriage and he so persevered to try and make it work. This was unsuccessful and from there on his whole mental health deteriorated … To make matters worse his older brother, who he greatly respected and looked up to, died suddenly. This was just another issue for him to deal with.
[The offender] was living in Canberra on his own, extremely lonely, depressed, suicidal and unable to cope. Rarely leaving the house, he suffered with panic attacks and severe anxiety. …
… He had always wanted the Army to be his life long career, but that is not going to happen, after 30 years of service to his country. He cannot see what he will do after his job in the army and who knows if he will be capable of working again due to his mental issues and the list of physical injuries caused by his service.
…
Hopefully, with treatment and a safe loving environment, his health and life will improve substantially.
A signed letter dated 17 January 2019, written by a former colleague in relation to the offender’s show cause notice within the ADF, includes the following:
I was [the offender’s] intelligence supervisor during the period Jan 2007 to Jun 2008, during which I was the S2/Intelligence Officer for the 4th Battalion (Commando), the Royal Australian Regiment (now the 2nd Commando Regiment), and he was the S2/Supervisor Intelligence Operations for Tactical Assault Group – East (TAG-E). In this role, [the offender] supervised an Analyst Intelligence Operations (CPL) and Multimedia Technician in providing sensitive, timely and accurate intelligence to support high-end tactical counter terrorism operations, regularly at very short notice and in highly stressful conditions. This role works directly to the Officer Commanding TAG-E, his platoon commanders and team leaders. [The offender] was also responsible for establishing and maintaining liaison with police tactical operations groups in the eastern states, most notably the NSW POL Tactical Operations Unit. As a consequence, [the offender’s] role in TAG-E is arguably the most challenging that any Australian Intelligence Corps NCO can perform.
[The offender] was an effective and proficient intelligence NCO who performed his duties well, and was well regarded by his supervisors and peers. At all times, his conduct was professional and discreet. I especially appreciated the close relationships he forged with his counterparts in the NSW Police. I had no cause for concern whatsoever with his conduct and performance.
… [The offender] conducted his relationship with [the victim] in a loving manner and with genuine care and affection. At no time did I observe him conduct himself in a manner that was threatening, violent or malicious towards [the victim] and/or her son.
[The offender] is an experienced intelligence NCO who has performed a variety of postings. I believe he has a deep desire to continue serving in the Army and can continue to contribute to Defence in a range of intelligence or non-corps roles.
A letter dated January 2019 from one of the offender’s former colleagues includes the following:
[The offender] was the only supervisor I have ever met who took the time to mentor and guide me one-on-one. He displayed great patience as I struggled to grasp complex tactical scenarios. He identified professional development opportunities and forced me out of my comfort zone as a means of developing my physical and mental resilience. … Most importantly he taught me the value of family and humour, two ideas which have helped me incredibly as I reintegrated back into normalcy after two warlike deployments.
I am forever grateful for the time and effort [the offender] spent guiding, developing and challenging me. He saw potential in me that no one else believed existed, not even me. I would gladly serve with [the offender] again.
A signed letter from the offender’s sister, dated 23 January 2019, includes the following:
[The offender] is nine years older than me and has always been a big influence in my life. He is a loving family member and is happiest when surrounded by his children and grandchild. When our eldest brother passed away suddenly in May of 2017, [the offender] was the rock of our family. He put his own grief aside to be strong and supportive to our mother and sister-in-law.
[The offender] has dedicated 30 years of his life serving in the Australian Defence Force and has been on many tours of duty. He is now battling with his mental health as a result of his deployment/s and also as a result of, I believe, serving time in a correctional facility. He is being proactive however, in his approach to regain control of his mental health and is seeking treatment and searching for answers surrounding a questionable anti-malaria medication that was received during a deployment in East Timor that has been the subject of much controversy.
… I believe with the right family support and love, [the offender] can successfully begin the next chapter of his life. He has so much to offer; he is funny, intelligent, caring, loyal, a passionate cook and avid reader. I am privileged to have him as my brother.
A signed letter dated 17 January 2019 from one of the offender’s friends includes the following:
I have known [the offender] for nearly 18 years in both a professional and personal context and am proud and confident to provide a character reference in support of him.
[The offender] and I initially served together in the Australian Army Intelligence Corps. I worked for [the offender] and was impressed and inspired by his level of professionalism, diligence, integrity and interpersonal skills. I was fortunate to have the opportunity to subsequently work alongside [the offender] for a number of years, including a challenging deployment to Afghanistan. My respect and admiration for [the offender], both personally and professionally, has never wavered. [The offender] is widely respected and highly regarded for his trustworthiness, calmness under pressure, interpersonal skills and willingness to help. An example is the support and camaraderie I observed from [the offender] following the death of an Australian soldier in Afghanistan in 2007, a member of our deployed unit. While [the offender] was certainly also impacted by the death, he went above and beyond to ensure that his colleagues and associates were properly supported in a highly stressful time.
I understand the seriousness of the circumstances … confronting [the offender], however, I deeply believe his recent actions are out of character and remarkably inconsistent with the man I’ve known for many years. … Notwithstanding the need for the matter to be resolved justly, I sincerely hope that [the offender] is given the opportunity to demonstrate his considerable strength of character and remorse. I firmly believe [the offender] accepts responsibility for his recent faults and seeks a positive and meaningful path to amend and progress.
Psychologist Reports
A treatment report dated 8 January 2019 under the hand of Tabitha Frew, clinical psychologist, and also signed by Douglas Boer, clinical psychologist, was tendered on behalf of the offender.
The report notes that the offender has previously been diagnosed with PTSD, major depressive disorder, anxiety, panic, and alcohol use disorder by two independent psychiatrists – Dr Adesanya in 2017 and Dr Walker in 2018. In 2018, the offender attended South Coast Private Hospital as an inpatient on three occasions for his mental health issues.
The report includes the following in relation to the significant trauma the offender was exposed to:
[The offender] reported significant trauma exposures on both peace keeping and in conflict-zoned operations with the Army, in both infantry (combat) and intelligence roles. He said he experienced threat from improvised explosive devices (IEDs) while on armed convoy, with repeated exposure to rocket, small arms, and mortar fire. He was rendered unconscious due to an IED explosion in Afghanistan. [The offender] processed human remains for repatriation to Australia and had to personally recover human remains. He said he repeatedly witnessed unmanned aerial vehicle (UAV) footage of fatalities, on occasion involving traumatic losses such as the injuries and deaths of Australian colleagues/coalition forces. He disclosed that he personally killed and wounded enemy combatants in combat, as well as planned and executed the killing of a number of enemy combatants (and witnessed the death of non-combatants in instances of ‘collateral damage’). On peace keeping missions he said he had witnessed mass human degradation and suffering, including disease, starvation and mass murder. Some of his colleagues and close friends had died as a result of suicide. No reports from [the offender’s] operational deployments were sighted to confirm his self-report of trauma exposures due to the security classification of this information.
In relation to the offender’s mental health at the time of the offending, the following opinion was given:
I began psychological treatment with [the offender] on the 14 March 2018. Therefore, I cannot comment on his mental state or functioning from an assessment of him at the time of the offences. However, if his self-report of symptoms is reliable, the literature would support the following opinion on his mental health at the time of the allegations:
· His judgment and reasoning may have been affected by his psychiatric symptoms. Posttraumatic stress disorder often impacts the brain areas responsible for critical thinking and inhibiting antisocial behaviours. … Dysfunction in these critical brain regions can contribute to psychosocial problems such as difficulties with emotional regulation, poor impulse control, illogical thinking and it can also foster antisocial behaviour.
· [The offender’s] repeated exposure to trauma events is likely to have led to the development of alcohol dependency. …
· There is research that supports the relationship between excessive alcohol consumption and a worsening of PTSD symptoms. Excessive alcohol consumption often makes it more difficult for a person to cope with their PTSD symptoms such as distressing memories, nightmares, anger and irritability, emotional detachment from others, hypervigilance and low mood. Potentially his mental state at the time affected his capacity to judge the impact of his behaviour on others and to have empathy for the complainant’s personal and legal boundaries.
(Citations omitted).
In relation to the offender’s mental health history, the report includes the following:
[The offender] denied any mental health conditions in childhood or adolescence. He described the first onset of his mental health symptoms occurred in 2000. He reported insomnia, intrusive memories of past trauma events, low mood, poor motivation, difficulties concentrating, suicidal ideation, nightmares, anxiety and panic attacks. He said he did not seek any treatment at the time as “I did not want to lose my security clearance and I felt ashamed because of the stigma about mental illness”. [The offender] expressed that he continued to struggle with symptoms of trauma and he got progressively worse after his deployment to Afghanistan in 2007, saying “I could no longer contain my anger and frustration, distressing memories and inability to sleep. I started to self-medicate with alcohol so that I could sleep, but this began to impact on my life. I shut off from all of my friends and began having problems with my step-son and other members of my family”. He said he started to recognise he was not coping at work and that he took long service leave for seven months to try and improve his coping in 2009.
The report concluded with the following remarks:
[The offender] presents with complex mental health conditions and these conditions are likely to have been caused by his repeated exposure to traumatic events while on deployment with the Australian Defence Force. He did not seek psychological support for management of his symptoms and ‘self-medicated’ with alcohol, which developed into a substance dependency. If his self-report is reliable, [the offender’s] mental state was likely to have been impaired by his symptoms and alcohol dependency at the time of the offences. His relation breakdown is likely to have exacerbated his pre-existing unstable mental state. He would benefit from ongoing psychological treatment for his mental health conditions and he is at risk of further deterioration if he does not engage with his medical and psychological supports. A forensic risk assessment and a neurocognitive assessment would be beneficial for his legal matters before the Court.
It was submitted by counsel for the offender that, given the history of the matter, the self-reporting of the offender could be relied upon. The prosecution did not cavil with this submission and it was accepted by both parties that the offender was facing difficult mental health issues associated with his post-traumatic stress disorder.
Merilyn Seddon, clinical psychologist and the offender’s treating psychologist in Victoria, provided updated reports in August, September and November 2020. An updated psychology report dated 5 November 2020 includes the following:
Further to previous correspondence dated 11 August 2020 and 14th September 2020 pertaining to [the offender’s] psychological presentation and engagement with treatment, I confirm that [the offender] continues to experience the debilitating effects of severe and longstanding Posttraumatic Stress Disorder and Major Depressive Disorder. He has maintained abstinence from alcohol since 2018 and his Alcohol Use Disorder continues to be in remission. [The offender’s] mental health conditions have been diagnosed as arising from multiple combat related traumas experienced on deployments over his 30-year career with the Australian Defence Force (ADF). He now experiences these conditions within the context of significant loss, grief and adjustment including medical discharge from the ADF, loss of career, divorce, social isolation and criminal prosecution for breach of AVO.
[The offender] commenced treatment for these conditions with the Austin Health, PTRS in August 2019 following his release from detention on remand at the Alexander McConachie Centre in Canberra in June 2019 and his subsequent move to live with his mother and stepfather in Melbourne, Victoria. [The offender] has maintained engagement with the Austin Health, PTRS since this time for psychiatric treatment and has had numerous inpatient admissions as well as regular outpatient psychiatric consultations to optimise psychotropic medications and stabilise his symptoms. [The offender] reports consistent compliance with prescribed medication use.
[The offender] has engaged well with psychological treatment since the commencement of therapy in September 2019 and has regularly attended twice weekly psychology appointments. He has engaged in a genuine, open, and reflective manner and has been conscientious in learning and applying psychological strategies within his capacities. He is in the initial stabilisation phase of treatment for a complex trauma condition and continues to be highly symptomatic, with chronic active suicidal ideation. [The offender] reports having experienced the consequences for his breach of the AVO issued in 2017, including 6 months in prison on remand, as significantly adverse. He reports being exceedingly careful to not have breached any of the current bail and AVO conditions. [The offender’s] mental state remains very susceptible to stress and he has reported planning and intent to act on suicidal ideation in the context of adverse final sentencing outcomes. Provision for prompt psychiatric assessment is recommended following sentencing should this be the case.
[The offender] has indicated he is hoping the outcome of the final sentencing hearing will bring him some sense of “closure” regarding these events and allow him to move on with rebuilding his life. He has verbally indicated his commitment to ongoing engagement with psychiatric and psychological treatment and his engagement over the past 15 months has consistently reflected this commitment.
In summary, [the offender] is suffering a complex trauma related mental health condition. He has engaged well with psychiatric and psychological treatment. His symptoms remain significant and his functioning impaired. He reports compliance with bail and AVO conditions and is hopeful of no further adverse legal consequences and being able to start rebuilding his life. He has indicated his commitment to further treatment to support him to attain, and to sustain the level of functioning and social reintegration he desires.
In sentencing the offender, the Court is entitled to take into account the psychological effects of active service in the armed forces of our country. I am satisfied the psychological effects of service contributed to the commission of these offences. On the evidence before me, his mental illness thereby reduces his moral culpability. It is a matter which militates in favour of leniency, in accordance with the principles set out in R v Hemsley [2004] NSWCCA 228 at [33]-[36], DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177], and R v Verdins [2007] VSCA 102; 16 VR 269. Like so many who have served in overseas deployments in hostile environments, the offender clearly requires ongoing psychological assistance and treatment.
Conditional Liberty
The offender was on bail pending sentence in relation to Counts 1 and 2 at the time of the commission of Counts 3 and 4.
The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence: R v Bandy [2018] ACTSC 261 at [27]-[30]. I take the conditional liberty into account as an aggravating factor on sentence.
Counsel for the offender accepted that it was “very bad” that Counts 3 and 4 were committed while the offender was facing charges for the earlier counts. It was submitted, however, that the behaviour was “consistent” with the offender’s mental state at the time (T 26.1-9). Counsel for the offender submitted that the offender was “a person who was lost, really lost. And, yes, that’s not an excuse; it’s context” (T 26.19-20).
Criminal History
The offender has no adult criminal history.
Pleas of Guilty
The offender has entered pleas of guilty:
(c)For Count 1, on 19 November 2018 in the Magistrates Court after the provision of the brief of evidence;
(d)For Count 2, on 25 October 2018 in the Supreme Court before the Criminal Case Conference listing; and
(e)For Counts 3 and 4, on 2 April 2019 in the Magistrates Court after the provision of the brief of evidence and, for Count 3, before the charge negotiation.
Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
I allow a 25% discount for the pleas of guilty for Counts 1, 3 and 4. I allow a discount of approximately 20% for Count 2.
Time in Custody
The offender has spent approximately 150 days in custody referable to these offences.
The offender was arrested on 5 September 2017 and released on bail on 6 September 2017 (2 days). He was then arrested on 20 November 2017 and released on bail on 15 December 2017 (26 days). He was then arrested in 2019 and spent 122 days in custody between 26 February 2019 and 27 June 2019.
Deferred Sentence
At the sentence hearing, it was submitted by counsel for the offender, and accepted by the prosecution, that a deferred sentence under s 27 of the Crimes Act was one of the sentencing options available to the Court (T 8.16-20).
Counsel for the offender submitted that “the court may consider that the prisoner’s PTSD contributed to his offending behaviour and that an appropriate sentence would be one that encourages him to work with the health professionals to ensure that he will not reoffend”: at [22]. It was noted at the sentence hearing that the offender had been in custody for approximately 150 days. Counsel for the offender submitted that an appropriate sentence would allow the offender his liberty “as soon as possible” in order to access mental health rehabilitation (T 5).
The offender’s mother gave sworn evidence in relation to the offender’s opportunity to attend a mental health rehabilitation facility in Victoria. At the time of the sentence hearing, the offender’s referral had been sent to the ward within Heidelberg Repatriation Hospital that offers services specifically for veterans who suffer from post-traumatic stress disorder (T 19).
When questioned about her ability to provide support to the offender if bailed, and what she would do should he “go off the rails”, the offender’s mother stated the following (T 22.39-43):
I’ll make sure that doesn’t happen, believe me. We have a good relationship and I’ll make sure that he’s comfortable and he’s warm and everything’s fine and he can just get well and be the person that he used to be.
The offender’s mother further gave evidence that the family unit would assist the offender to comply with any conditions of a deferred sentence (T 24.1-2).
Section 27 of the Sentencing Act relevantly provides as follows:
27 Deferred sentence orders—making
1) This section applies if—
a)an offender has been convicted or found guilty by a court of an offence punishable by imprisonment; and
b)the court has not sentenced the offender for the offence; and
c)the offender is neither serving, nor liable to serve, a term of imprisonment for another offence; and
d)the court considers the offender should be given an opportunity to address his or her criminal behaviour, and anything that has contributed to the behaviour, before the court sentences the offender for the offence; and
e)the court is satisfied that it may release the offender on bail under the Bail Act 1992.
2) The court may make an order (a deferred sentence order) requiring the offender to appear before the court at the time and place stated in the order to be sentenced for the offence.
3) If the court makes a deferred sentence order for the offender, the court must release the offender on bail under the Bail Act 1992.
4) A deferred sentence order applies to all offences for which the court may sentence the offender, whether or not they are punishable by imprisonment.
The application of deferred sentence orders is governed by Chapter 8 of the Sentencing Act.
Taking into account the background of post-traumatic stress disorder and other subjective circumstances and noting that there was no objection from the prosecution, I deemed it appropriate to impose a deferred sentence order in this matter. To that end, I granted the offender bail on 27 June 2019 on the following conditions:
(a)Reside in Victoria with his mother.
(b)Accept supervision of ACT Corrective Services.
(c)Submit to counselling treatment and, if required, enter and remain at the Austin Health Heidelberg Repatriation Hospital in Victoria.
(d)If discharged from treatment, to report to the Registrar of the ACT Supreme Court within 24 hours.
(e)Not contact the victim under any circumstances, except through legal representation in relation to divorce proceedings.
(f)Accompany his mother to Melbourne by 5pm Friday 28 June 2019.
(g)Attend his appointment with Warrant Officer Shawn Goodbody from the ADF on Friday 28 June 2019.
In making this decision, I relied on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 that rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest. I further noted the statement by Murrell CJ in R v Hill [2016] ACTSC 310 that: “Where a person has good prospects of rehabilitation, the court, by supporting those prospects in the sentence imposed, thereby also addresses likely future harm to the community and protection of the community”.
Section 118 of the Sentencing Act provides that, if the court makes a deferred sentence order, the court must state, in general terms, the penalty that the offender might receive if the offender complies with the order and any bail conditions, and the penalty that the offender might receive if the offender does not comply with the order or a bail condition.
I indicated at the sentence hearing that, if the offender undertook the rehabilitation as directed, I would not impose a sentence involving a period of full-time custody. I further indicated that, if the offender did not comply with the order and associated bail conditions, then the offender could expect to receive a term of full-time imprisonment (T 27.31-39).
The matter was adjourned to 26 June 2020.
Deferred Proceedings & COVID-19
By June 2020, the situation in Victoria in relation to COVID-19 was serious, and the offender was unable to travel to Canberra due to border restrictions. To accommodate this change in circumstances, the June listing was vacated, and the matter was adjourned to August 2020.
On 11 August 2020, the matter returned to Court, however, the offender was still unable to travel to Canberra. The prosecution accepted that it was appropriate for the matter to be heard in the offender’s absence given the COVID-19 situation. I indicated on that occasion that, as the offender had complied with all bail conditions, a sentence of full-time imprisonment was not being contemplated. The matter was adjourned to November 2020 for hand-down of sentence and, following a further mention, the offender was granted leave to appear via audio-visual link for the hand-down of sentence.
Section 13(2A) of the Sentencing Act provides that, during a COVID-19 emergency, an undertaking to be of good behaviour may be signed or given before the court. If given before the court, the undertaking must be recorded by the court.
In R v Watts [2020] ACTSC 91, an offender entered into a good behaviour order following the imposition of a suspended sentence while appearing remotely via Webex. As such, the offender’s inability to appear in court in person does not prevent the sentence from being handed down.
Relevant Statutory & Other Legal Considerations
In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
The prosecution submitted that “there is a prominence to be placed in relation to both general and personal deterrence, and also to signal a powerful message to the community in relation to the denunciation of these types of offences” (T 39.3-7). Counsel for the offender accepted that general deterrence in particular is important in relation to the contravention of the family violence order: at [16]. In this respect, the cases of R v Hamid [2006] NSWCCA 302; 154 A Crim R 179 and DD v Ilevski [2016] ACTSC 115 are relevant.
Rehabilitation is also a key consideration in this case. The prosecution submitted that it would ultimately assist the community if the issues faced by the offender are addressed, noting the caveat that the possibility of a sentence of imprisonment would act as a “Sword of Damocles” to deter the offender from further offending (T 40.5-9).
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.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, five months have already been served in custody and I am satisfied that no further imprisonment is called for. It is appropriate that any term of imprisonment be suspended forthwith.
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] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59, R v Meyboom [2012] ACTCA 48 at [66] and Zdravkovic at [71]. Counsel for the offender correctly submitted that there is “significant overlap” between Counts 1 and 2. Similarly, it was correctly submitted that there is also overlap between Counts 3 and 4.
I take into account the offender’s excellent record with the ADF, his good character, the lifetime of service he has given our country, and his attempts to rehabilitate himself. These matters are all relevant to sentence and will be taken into account: see R v Chapman [2001] NSWCCA 457 at [14].
Sentence
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 and subjective matters relevant to the offender. I have also taken into account that the offender has been subject to bail conditions for over 12 months now and there have been no breaches and no further offending. The offender, on the evidence, is ready to move forward with his rehabilitation. He should be given the opportunity to move forward with his life.
The appropriate sentence for Count 1, contravene family violence order, is 12 months of imprisonment, reduced to 9 months on account of the plea of guilty.
The appropriate sentence for Count 2, attempt to pervert the course of justice, is 13 months of imprisonment, reduced to 10 months on account of the plea of guilty.
The appropriate sentence for Count 3, stalking, is 12 months of imprisonment, reduced to 9 months on account of the plea of guilty.
The appropriate sentence for Count 4, contravene family violence order, is 12 months of imprisonment, reduced to 9 months on account of the plea of guilty.
Taking into account the principles relating to concurrency and accumulation, there will be an overall sentence of two years. The sentence of imprisonment will be suspended after a period of five months, which the offender has already served. The balance will be suspended upon entry into a good behaviour order for a period of two years.
Orders
I make the following orders:
(a)For Count 1, contravene family violence order (CC 18/7682), I record a conviction. The offender is sentenced to 9 months of imprisonment, commencing on 17 June 2020 and ending on 16 March 2021.
(b)For Count 2, attempt to pervert the course of justice (CC 18/3534), I record a conviction. The offender is sentenced to 10 months of imprisonment, commencing on 17 December 2020 and ending on 16 October 2021.
(c)For Count 3, stalking (CC 19/2638), I record a conviction. The offender in sentenced to 9 months of imprisonment, commencing on 17 April 2021 and ending on 16 January 2021.
(d)For Count 4, contravene family violence order (CC 19/2639), I record a conviction. The offender is sentenced to 9 months of imprisonment, commencing on 17 September 2021 and ending on 16 June 2022.
(e)Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentence will be suspended after serving five months of imprisonment. The sentence is therefore suspended from today upon the entry into a good behaviour order for a period of two years.
Pursuant to s 13(2A) of the Sentencing Act, the offender has given an undertaking in Court to enter into the good behaviour order. In accordance with that section, the undertaking has been recorded by the Court.
| I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
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