R v EP (No 3)
[2019] ACTSC 242
•28 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v EP (No 3) |
Citation: | [2019] ACTSC 242 |
Hearing Date: | 26 June 2019 |
DecisionDate: | 28 August 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [99] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to menace, harass or cause offence – threatening to distribute an intimate image – acts of indecency – sexual assault in the third degree – stalking – where domestic violence context – where no relevant criminal history |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 35, 53, 60, 72E Crimes Act 1914 (Cth) ss 16A, 19AC |
Cases Cited: | Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 Beniamini v Craig [2017] ACTSC 30 |
Parties: | The Queen (Crown) EP (Offender) |
Representation: | Counsel R Christensen (Crown) R Thomas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Offender) | |
File Numbers: | SCC 197 of 2018; SCC 198 of 2018 |
LOUKAS-KARLSSON J
Introduction
Prior to the commencement of the trial of EP (the offender), on 3 April 2019, the offender pleaded guilty to the following two charges on the indictment dated 29 August 2018, which contained six counts:
(a)threatening to distribute an intimate image of another person contrary to s 72E of the Crimes Act 1900 (ACT) (Crimes Act) (CC2018/3185) (Count 5). The maximum penalty for this offence is imprisonment of 3 years, 300 penalty units, or both; and
(b)using a carriage service to menace, harass or cause offence, contrary to s 474.17 of the Criminal Code1995 (Cth) (Criminal Code) (CC2018/3188) (Count 6). The maximum penalty for this offence is imprisonment of 3 years.
On 23 April 2019, the offender was found guilty by a jury of three offences, being:
(a)two charges of committing an act of indecency contrary to s 60(1) of the Crimes Act (XO2018/31417; XO2018/31418) (Counts 2 and 4). The maximum penalty for this offence is imprisonment of 7 years; and
(b)one charge of sexual assault in the third degree contrary to s 53(1) of the Crimes Act (CC2018/4646) (Count 3). The maximum penalty for that offence is imprisonment of 12 years.
The offender was found not guilty of Count 1.
On 26 June 2019, before me, the offender pleaded guilty to the following transferred charges:
(a)common assault (CC2018/3886) contrary to s 26 of the Crimes Act. The maximum penalty for that offence is imprisonment for 2 years; and
(b)stalking (CC2018/3887) contrary to s 35 of the Crimes Act. The maximum penalty for that offence is imprisonment for 2 years.
Facts after Jury Trial
The High Court in Cheung v The Queen [2001] HCA 67; 209 CLR 1 (Cheung) endorsed the NSW Court of Criminal Appeal’s approach in R v Isaacs (1997) 41 NSWLR 374 (Isaacs) in relation to the Court’s role in sentencing and interpreting a jury’s verdict of guilty following a trial. The Court in Cheung at [14] quoted the summarised principles from Isaacs (at pages 377-378) as follows:
1.Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …
2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. …
3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.
4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. …
Taking into account these principles, I make the following factual findings.
The Trial Offences
The offender and the victim (TC) were in a de facto relationship for approximately 6 years, ending in April 2017. They have a daughter for whom they share care. Following the breakdown in their relationship they maintained an amicable relationship.
On 9 February 2018, TC attended the offender’s house to discuss arrangements for their daughter. While there, the offender and TC commenced an argument. At one stage the offender grabbed both of TC’s arms and held them behind her, holding her wrists with one hand. The offender then ran his hand over her chest and breasts. This conduct amounted to Count 2.
Subsequently, the offender forced TC downstairs into a bedroom. There, he pushed her onto a bed with her arms pinned behind her back. The offender then lifted up TC’s dress and started pulling down her underwear. The offender was then interrupted by the sound of the couple’s child crying in another room. This conduct amounted to Count 3.
The offender released TC and left the room when he heard their daughter crying. TC went into a bathroom. When TC emerged from the bathroom the offender grabbed the front of her dress and pulled it, ripping both her dress and her bra. This conduct amounted to Count 4.
On 15 February 2018, the offender arrived at TC’s house and spoke to TC briefly before leaving. A short time later TC received a text message stating “makes a nice poster” after which she walked outside and found a photo of herself, naked from the waist up, on the ground near where the offender had parked on the driveway. On 18 February 2018, TC visited the offender’s house to collect items for their daughter, as the offender provided the items to TC, five laminated intimate images of TC fell to the ground. Later that night, the offender sent a message to TC saying “Oh there[’s] more of those in her school bag”. This conduct amounted to Count 5.
From 9 February 2018 to 24 February 2018, the offender sent a number of abusive and threatening text messages to TC, causing TC to report the matter to police. This conduct amounted to Count 6.
The Transferred Offences
A charge of common assault (CC2018/3886) and a charge of stalking (CC2018/3887) are also before me. Sections 68D and 68E of the Supreme Court Act 1933 (ACT) provide for backup and related offences. Section 68E requires that the court deal with a back-up or related offence without a jury, and on the basis only of evidence given during the trial and any additional evidence pursuant to that section.
In respect of the common assault charge, the prosecution relies solely on evidence given by TC during trial regarding the offender grabbing her arms behind her back and manoeuvring her downstairs this, occurring in the time between Counts 2 and 3. The victim’s evidence was that the offender stated “it’s not rape if I don’t come in you”.
In particular the prosecution relies on the evidence of TC in examination in chief and cross-examination on 15 and 16 April 2019 and the evidence of TC’s employer on 16 April 2019. It was submitted that it is clear from the jury’s verdict that they accepted TC’s version of the incident, so the Court “would also accept TC’s evidence that the events occurred as she described them” as she “gave clear unequivocal evidence”.
Section 68D(2) of the Supreme Court Act provides as follows:
68D Back-up and related offences
…
(2) The court must deal with any back-up or related offence with which the accused person has been charged if the court considers that it is in the interests of justice.
…
In my view, it is not in the interests of justice for the Court to deal with this matter separately and accordingly I dismiss the information. I have formed the view that it is not in the interests of justice to deal with this charge separately for the reason that the facts in relation to this transferred charge form part of the facts in relation to the other charges for which I now sentence the offender. Any separate sentence I might have imposed would, in any event, be concurrent.
In these circumstances any further separate sentence is inevitably otiose and not in the interests of justice.
Regarding the stalking charge, it was submitted that between 18 February 2018 and 25 February 2018 the offending was made out with respect to a number of events including:
(a)A faked suicide: on 19 February 2018, the offender had a conversation with the victim where he suggested he would “neck himself” on the victim’s birthday. The following day the offender sent the victim text messages suggesting he was going to kill himself. On 21 February 2018, the offender sent a message to his co-worker asking the co-worker to contact the victim suggesting the offender had killed himself. The co-worker sent the victim a message saying “prepare yourself as the worst possible thing has happened”;
(b)Communications relating to EM: on 21 February 2018 the victim accepted a friend request on Facebook from EM. On 22 February 2018, the offender contacted a third party requesting that third party to tell EM that the victim was “batshit crazy and to do himself a favour and not have anything to do with her”;
(c)Sexually transmitted disease (STD) accusation: in the same communication as referred to in (b) the offender described the victim as “easy”, as having a mental illness, an STD and having a vendetta against all men. EM subsequently blocked communication with the victim; and
(d)Communications on 24 February 2018: following the victim and her daughter leaving Canberra the day before, the offender sent numerous offensive text messages including: “you get everything you fucking deserve…” and “…I hope you burn in hell”.
Victim Impact Statement
In evidence before me was a Victim Impact Statement from the victim of the offence. The Victim Impact Statement was read out by the victim at the sentence hearing.
The extent of the impact upon the victim was made clear by the Victim Impact Statement. The reading of the Victim Impact Statement was important as the offender heard what the victim had to say. Courts understand the extremely serious effects of such offences as these. Nevertheless, it is valuable to hear the words of the victim. The Court heard and understood the impact of the offending on the victim.
The Court acknowledges the significant impact that the offences have had and continue to have on the victim.
Objective Seriousness
The prosecution’s submissions
It was submitted by the prosecution that as to the offending generally, it should be considered to be aggravated as it was committed in a family violence context, differentiated from other crimes in the sense that “the victim never feels truly safe” (citing R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [47] (Dunn)). The prosecution submitted that crimes committed in this context involve breaches of trust, abuses of power and control over a vulnerable person, where commonly the offender expresses an irrational belief they have been wronged by the victim (Xue v R [2017] NSWCCA 137 at [53]). In the present case, the prosecution noted the breakdown of the long-term relationship and that the victim was seeking to maintain a positive parenting relationship.
With respect to Count 3, the prosecution noted the observations of Mossop J in R v GG [2017] ACTSC 137 at [26] regarding the disparity between the maximum penalty for this offence and that of common assault, reflecting the “gravity with which violence in aid of sexual coercion is treated”.
With respect to Count 5, the prosecution submitted the offending was aggravated by the premeditation and significant planning involved, that is, printing the images, laminating them, alleging there were more in their daughter’s backpack and writing captions on certain images. It was submitted that premeditation can be an aggravating factor where significant (R v Carmody [2016] ACTSC 382 (Carmody); R v Morabito (1992) 62 A Crim 82). In addition to Count 5, the prosecution submitted Count 6 and the stalking charge also demonstrated a degree of preparation and deliberation, rather than being spontaneous actions (cf R v Mobbs [2005] NSWCCA 371 at [50]).
Also with respect to Count 5, the prosecution noted the concerns expressed in the Explanatory Statement to the Crimes (Intimate Image Abuse) Amendment Bill 2017 (ACT) which introduced the s 72E offence, regarding the widespread nature of its occurrence, submitting that this highlights the importance of general deterrence. The prosecution submitted that this offending is rendered more serious by the fact that the offender pleaded guilty to the more serious mental element of intention (rather than recklessness), the offender knew of the victim’s concern over his possession of the images, TC having previously requested he delete them. It was further submitted that the offending was a course of conduct in which the threats increased, using “increasingly graphic images”. The prosecution also submitted that the images were “at the highest level of intimacy”.
The offender’s submissions
Counsel for the offender submitted that Count 2, Count 4 and the common assault charge were are the “lower end of objective seriousness” and Counts 3, 5 and 6 and the stalking offence were all “below mid-range in objective seriousness”. It was submitted that the offending constituted a mixture of reckless and intentional acts by the offender.
With respect to the aggravating factors outlined by the prosecution, counsel for the offender submitted that the family violence context was not an aggravating factor of the offending but was rather relevant to the importance of deterrence and denunciation. I accept that the breach of trust is relevant to the objective seriousness across all offences (see: R v Kilic [2016] HCA 48; 259 CLR 256; R v Wright [2018] ACTSC 58 at [37]). Moreover, references to common features of family violence such as the offender “often has” a genuine belief of being wronged, is not supported by the evidence in the present case. I accept this submission as this particular matter is not established beyond a reasonable doubt.
With respect to the planning involved in Count 5, it was submitted this was not supported by the evidence. While it was accepted there was “a degree of planning” involved, it was submitted it was not to the level of that relevantly considered in R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 at [69], referred to in Carmody at [57]. In addition, it was submitted that the evidence also did not support a finding of deliberation and preparation with respect to Count 6 or the stalking offence. To establish this factor as an aggravating feature of the offending, it was submitted the conduct must be akin to “organised criminal activity”. I accept there was a degree of planning.
It must be stated that references to low range, middle range and high range objective seriousness are unlikely to be helpful. As has previously been expressed in this jurisdiction, “it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] (Toumo’ua)).
I have discussed the identifying features referred to by the prosecution and defence above. Broadly, I have accepted the prosecution submissions in relation to objective seriousness with the particular caveats I have discussed above in reference to the submissions from counsel for the offender.
Subjective Circumstances
In evidence before me is the pre-sentence report (PSR) prepared for the offender.
The offender is 48 years old. He is the youngest of six children born of his parents’ marriage. He completed year 12 and entered the work force. The offender is estranged from three of his siblings, but close with one sibling who lives in Western Australia and his sister who lives in Canberra. He resided with this sister prior to entering custody in April 2019 and would be able to return there if released.
The offender has two daughters from a previous marriage, with whom he has regular contact. He also has a four year old daughter with TC.
The offender has worked as a self-employed technician prior to custody, though has been off work over at least the last six months due to struggles with his mental health. He suffered financial distress as a result, was evicted from his residence and had his vehicle repossessed. He has outstanding debts and detailed two failed business ventures since 2017 involving significant financial loss. He reported that the “last few years” had been stressful for him.
The offender reported infrequent social use of cannabis “for decades”. He reported consuming five to six standard drinks, three times a week, and occasionally up to nine standard drinks. His self-reported alcohol use over the last year was assessed as “risky” by the author of the PSR.
The offender’s sister reported that the offender’s best friend passed away from cancer in late 2018. It was noted the offender played a significant role in nursing this individual. This loss was coupled with the loss of a pet and two failed businesses and the breakdown of his relationship. The offender’s sister reported the offender was depressed and not working from this time. The offender attended a GP on his sister’s encouragement, and has found the prescribed antidepressant medication helpful. He attended one counselling session before he was remanded, and stated an intention to continue.
The offender agreed with some of the Statement of Facts, and admitted that TC would have been fearful of him and that he behaved poorly. He disputed some of the Statement of Facts, stating TC fabricated some matters. He denied an intention to share the images of TC, citing it as a misunderstanding. He attempted to place some blame on TC for his behaviour.
The offender has been assessed at medium-low risk of general reoffending. His dynamic risk domains are alcohol and drug use, mental health issues, financial and employment issues and family violence issues. The offender showed some insight into the impact of his offending on TC, but the author commented that it is “concerning that he minimised and justified some of his actions”. The offender’s treatment for depression is described as “positive”, and continued counselling upon release was recommended. As the offender and TC have a child together, the author of the PSR noted it is “important that the offender engage in some form of intervention to address his family violence offending”. The offender has been assessed as a low risk of sexual reoffending, and the author recommends, if found suitable, completion of the Adult Sex Offender’s Program or other interventions as required.
Also in evidence before is a Mental Health Plan dated 25 March 2019 indicating the offender was being treated for symptoms of depression.
Remorse
The prosecution submitted that a late plea of guilty ought not to be construed as remorse without further evidence (R v Derbas [2003] NSWCCA 44 at [23]). The prosecution also noted the references in the PSR that the offender attempted to make justifications for his actions and place some blame on the victim and submitted that “limited genuine remorse had been demonstrated”. Moreover, it was submitted that in the absence of direct evidence the Court is entitled to be sceptical of statements of remorse to third party report authors (Toumo’ua at [63]).
Counsel for the offender submitted responsibility and remorse were indicated “to the extent that pleas have been entered”.
The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 (Butters) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8]; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 (Mun) at [36]; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18]; Mun at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v The Queen [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not in error in rejecting the offender’s self-serving untested statements as evidence of remorse.
Accordingly, I do not ascribe significant weight to the remorse expressed.
Criminal History
The offender has no relevant criminal history. The prosecution conceded that the offender had “effectively no relevant criminal history”.
I take the lack of criminal record and prior good character into account on sentence.
Pleas of Guilty
As noted above, the offender entered pleas of guilty in respect of two charges prior to the commencement of the trial and the two further transfer charges in the course of the sentencing hearing.
The prosecution submitted that the pleas entered in this case should not be considered as early pleas, the pleas to Counts 5 and 6 (to which the Crown referred in submissions as Counts ‘4’ and ‘5’, there being a not guilty verdict in respect of Count 1), came after all witnesses had been subpoenaed, and pre-trial proofing and after significant resources had been invested in the trial prosecution. The pleas also came after the opportunity for Criminal Case Conferencing. It was accepted there was some utilitarian benefit of the pleas, but that this was reduced by their late timing.
Counsel for the offender submitted that the pleas, particularly Counts 5 and 6 “materially” assisted the course of justice, shortening the trial and preventing cross-examination of the victim. It was submitted that a discount in range of 10% to 15% would be appropriate for those offences.
Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (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. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48]; see also Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 in relation to the utilitarian value of pleas of guilty in Commonwealth matters.
Pursuant to s 16A(1)(g) of the Crimes Act 1914 (Cth), the Court must take into account a plea of guilty for federal offences.
I note Count 5 and the transferred stalking offence are ACT offences and the ACT sentencing regime applies and that Count 6 is a Commonwealth offence and the Commonwealth sentencing regime applies.
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
In each case I will allow a discount of approximately 10%.
Time in Custody
The offender has remained in custody since the jury verdicts of 23 April 2019.
The offender has spent a total of 127 days in custody solely referable to these offences.
Cases and statistics
Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54]. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:
Considerations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
Both parties referred to the following cases in their submissions.
In R v KD [2019] ACTSC 62, the 24 year old offender pleaded guilty to one count of attempted sexual intercourse without consent. The offending was found to be approaching mid-range in objective seriousness. The offender had a number of mental health issues, had a limited criminal history and had expressed remorse. Following a discount of 15%, the offender received a sentence of 2 years and 4 months imprisonment with a non-parole period of 1 year and 2 months.
In R v NO (No 2) [2018] ACTSC 37, the 31 year old offender was found guilty by a jury of one act of indecency, one count of sexual assault in the second degree and one count of sexual intercourse without consent. The offender was also found guilty of a transfer charge of stalking. Each of the four offences was found to be approaching mid-range in their objective seriousness. The offender did not express remorse for the victim and did not concede any need for rehabilitation. The offender had a limited criminal history. The offender received a total sentence of 5 years and 3 months, which included the imposition of previous suspended sentence. A non-parole period of 3 years was set.
The prosecution also referred to the following cases.
In R v Wyper (No 2) [2017] ACTSC 103, the 56 year old offender was found guilty of engaging in sexual intercourse without consent. The offender maintained his assertion of innocence but had no criminal record, was found not to be a risk to the community and was assessed as suitable for an intensive corrections order (ICO). The offender received a sentence of 2 years and 6 months imprisonment to be served by ICO with a community service condition. A Crown appeal against the manifest inadequacy of the sentence was dismissed (Wyper v The Queen; R v Wyper [2017] ACTCA 59).
In R v Stanley [2015] ACTSC 322 (Stanley), the 20 year old offender pleaded guilty to two counts of sexual intercourse without consent, two counts of assault occasioning actual bodily harm and one count of damaging property. The offender was found to have made some progress in terms of rehabilitation and found to be remorseful. Following a range of discounts across the sentences, the offender received a total sentence of 6 years imprisonment with a non-parole period of 3 years and 3 months.
Counsel for the offender referred to the following cases.
In R v Haddara [2018] ACTSC 70, the offender pleaded guilty to 9 offences relating to 3 victims, including one count of sexual intercourse with a person under 16, one count of sexual intercourse without consent, one count of sexual assault in the third degree and one count of threatening use of a carriage service. The offender attempted to minimise his conduct, was found to be of high risk of sexual reoffending and a medium to high risk of general reoffending. The offender had a criminal history but no prior convictions for sexual offending. Following a discount of approximately 15%, the total sentence imposed was for a period of 5 years, 2 months and 25 days. A shorter non-parole period of 30 months in relation to the Territory offences was imposed taking into account the offender’s youth.
In R v UG [2018] ACTCA 64 (UG), the 28 year old offender pleaded guilty to one count of burglary, one of sexual intercourse and one count of an act of indecency without consent. The offender had no criminal history, was remorseful and was found to have strong subjective circumstances. Applying a discount of 25% (and in respect of the sexual intercourse offence, one third, due to assistance to authorities) the Court of Appeal re-sentenced the offender received 22 months imprisonment for the burglary, 22 months for the sexual intercourse offence and 6 months for the act of indecency. The sentences for the burglary and the sexual intercourse offences were partially suspended after 3 and 9 months respectively. Overall, the offender received a term of 10 months’ full-time imprisonment.
In R v Hanslow [2002] NSWCCA 161, the offender who was 19 years old at the time of the offending, was found guilty of one count of assault with intent to have sexual intercourse and an act of indecency. The latter offence was described as being at the “bottom of the range” of seriousness. The offender was 16 at the time of the offending. The offender was re-sentenced to 1 year of imprisonment.
In R v Lakiss [2018] NSWDC 309 (Lakiss), the offender pleaded guilty to one count of stalking and one of harassing use of a carriage service (a further offence of the same kind was taken into account). The former offence was found to be below the mid-range (but towards the upper end of the lower range) in objective seriousness and the latter offence towards the lower end of objective seriousness. The offender received sentences of 22 months and 6 months respectively, each served by way of a Community Corrections Order.
In respect of the authorities referred to by the prosecution, it was submitted they are of “little comparative value” given the offending in those cases were isolated incidents (T 39.26).
Totality and Structure
Both parties provided further written submissions on the structuring of sentence for the offending.
The prosecution submitted that the offending could be viewed as three series of offences:
(a)physical and sexual violence offences: Counts 2, 3 and 4 and the common assault (Series A). The context of family and sexual violence, and consideration of deterrence and denunciation were submitted to be relevant sentencing factors with respect to Series A;
(b)privacy violation and harassment offences: Counts 5 and 6 (Series B). The nature of the offending, specific and general deterrence and prevalence of the offence were submitted to be relevant sentencing factors with respect to Series B; and
(c)the stalking offence (Series C): The context of family and sexual violence, specific and general deterrence and considerations of denunciation and nature of the offending were submitted to be relevant sentencing factors with respect to Series C.
It was submitted that the offences in each Series formed a single criminal episode and it was open for the Court to order that each offence be concurrent with each other offence in the same Series. However, it was submitted that given the distinct nature of each Series and the relevant sentencing factors, consecutive sentences are then appropriate for each Series, and it was open to the Court to make each wholly consecutive. Should some concurrency apply, the prosecution submitted it should be minimal and noted that Series A differs significantly from Series B and C.
By contrast, counsel for the offender sought to delineate the offending into two ‘series’, the first being Counts 2 to 4 and the common assault, and the second, Counts 5 and 6 and the stalking. Nevertheless, it was submitted there was a “significant degree of overlap” between these two series and as such the sentences imposed between the two series should be either wholly concurrent or with “minor” accumulation (citing Mill v The Queen (1988) 166 CLR 59 at [63]; Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]; Beniamini v Craig [2017] ACTSC 30 at [165]; O’Brien v The Queen [2015] ACTCA 47 at [26]; UG at [66]).
It was submitted that the prosecution’s approach to grouping offences by general characterisation of type does not assist in arriving at an appropriate aggregate sentence (ZA v R [2017] NSWCCA 132; 267 A Crim R 105 at [70] (ZA); Markarian v The Queen [2005] HCA 215; 228 CLR 357 at [39] (Markarian); Muldrock v The Queen [2011] HCA 89; 244 CLR 120 at [26]). It was further submitted the total criminality must be considered and regard is to be had to the fact that the offending occurred with respect to the one victim, in a series of interrelated events and in the context of their sexual relationship. It was submitted that the two series of offending could not be wholly separated, the second arising out of the offending of 9 February 2018 (Mill; ZA, Pearce v R (1998) CLR 610). Accordingly, it was submitted there should be a “significant degree of concurrency”.
Counsel for the offender submitted that attention must also be paid to issues of double counting (Nguyen v R [2011] NSWCCA 111; Cicciarelo v R [2009] NSWCCA 272), particularly given the overlap in time periods between Counts 5 and 6 and the stalking charge, each offence constituted by a long series of text messages.
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 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
In sentencing for multiple offences, the Court also needs to take into account the principle of totality. That is particularly so where there are several counts representing different episodes. However, it must not be applied so as to suggest the offender is receiving a discount for multiple offending (R v M.A.K; R v M.S.K [2006] NSWCCA 381 at [18]). Additionally, double punishment must be avoided.
I have taken these principles into account in assessing totality, concurrency and accumulation.
Statutory and Other Relevant 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, rehabilitation, denunciation, and recognition of harm to TC are important sentencing considerations. The prosecution in particular highlighted the need for both specific and general deterrence with respect to this kind of offending.
In relation to the Commonwealth offence (use of carriage service to menace, harass or cause offence) I am required to consider the matters relevant and known to the court in s 16A(2) of the Crimes Act 1914 (Cth). I have referred to the relevant matters above.
Counsel for the offender submitted that, by reference to the PSR and to the offender’s lack of criminal record, the offender should be viewed as a low risk of reoffending and as having “good prospects of rehabilitation”. I accept that the offender has potential for rehabilitation.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. The prosecution submitted that only a sentence of fulltime custody would reflect the gravity of the offending and achieve the aims of the sentencing purposes. In this case, an alternative to full-time custody is not appropriate in my view.
Counsel for the offender accepted a sentence of imprisonment may be appropriate but that it was not “inevitable” that it must be by way of fulltime custody. It was submitted one option may be a suspended sentence with a bond (referring to cases of UG; R v TL (No 2) [2016] ACTSC 289; Lakiss).
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian.
In relation to family violence offences, I note the observations of Refshauge ACJ in Stanley at [62]-[63], referring to the observations of Johnson J in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 193 as to family violence being a serious problem in the community:
[D]omestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship …
Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime.
I also note the observations of Adams J in Dunn at [47] in this context.
The Courts have made it clear that women must not be treated by men as property.
Sentence
It must be recognised by the Court that all the offences committed against the victim have had a serious and significant impact upon her. Both the short and long-term consequences of being the victim of these offences must be acknowledged.
In coming to a sentence by way of instinctive synthesis, I have taken into account all of the matters discussed above, including the objective seriousness of the offences and subjective matters.
The appropriate sentence for the first offence of an act of indecency is 6 months’ imprisonment;
The appropriate sentence for the second offence of an act of indecency is 8 months’ imprisonment;
The appropriate sentence for the offence of sexual assault in the third degree is 16 months’ imprisonment;
The appropriate sentence for the offence of threatening to distribute an intimate image of another person is 9 months reduced to 8 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of using a carriage service to menace, harass or cause offence is 9 months reduced to 8 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of stalking is 9 months reduced to 8 months on account of the discount for the plea of guilty
Overall there will be a sentence of 3 years with a non-parole period of 18 months for the Territory offences, taking into account appropriate periods of concurrency and accumulation.
Pursuant to s 19AC(4)(b) of the Crimes Act 1914 (Cth), I decline to make a recognizance release order with respect to the federal offence as the offender will still be serving a period of imprisonment for the Territory offences after the expiration of that offence.
Order
I make the following orders:
(a)I dismiss the charge of common assault (CC2018/3886).
(b)I record convictions in relation to the remaining offences.
(c)In respect of the offence of threatening to distribute an intimate image of another person contrary to s 72E of the Crimes Act (CC2018/3185), the offender is sentenced to a term of 8 months of imprisonment, commencing on 23 April 2019 and ending on 22 December 2019;
(d)In respect of the offence of using a carriage service to menace, harass or cause offence, contrary to s 474.17 of the Criminal Code (CC2018/3188), the offender is sentenced to a term of 8 months of imprisonment, commencing on 23 May 2019 and ending on 22 January 2020;
(e)In respect of the offence of stalking (CC2018/3887) under s 35 of the Crimes Act the offender is sentenced to a term of 8 months of imprisonment, commencing on 23 August 2019 and ending on 22 April 2020;
(f)In respect of the offence of sexual assault in the third degree contrary to s 53(1) of the Crimes Act (CC2018/4646), the offender is sentenced to a term of 16 months of imprisonment, commencing on 23 January 2020 and ending on 22 May 2021;
(g)In respect of the offence of committing an act of indecency contrary to s 60(1) of the Crimes Act (XO2018/31417), the offender is sentenced to a term of 6 months of imprisonment, commencing on 23 April 2021 and ending on 22 October 2021;
(h)In respect of the offence of committing an act of indecency contrary to s 60(1) of the Crimes Act (XO2018/31418), the offender is sentenced to a term of 8 months of imprisonment, commencing on 23 August 2021 and ending on 22 April 2022;
(i)For the Territory offences, I set a non-parole period of 18 months, commencing 23 April 2019 and ending on 23 October 2020.
| I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson Associate: Date: |
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