R v Kayin (a pseudonym)
[2022] ACTSC 164
•7 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kayin (a pseudonym) |
Citation: | [2022] ACTSC 164 |
Hearing Date: | 7 July 2022 |
DecisionDate: | 7 July 2022 |
Before: | Norrish AJ |
Decision: | See [90] |
Catchwords: | CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — Offence of assault occasioning actual bodily harm — Assault committed against daughter of offender — Where offender had extraordinary background circumstances — Whether to impose non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) — Good character — Extenuating circumstances — Mental disability at time of offending. |
Legislation Cited: | Crimes (Sentencing Administration) Act 2005 (ACT), s 86 Crimes (Sentencing) Act 2005 (ACT), ss 5, 7, 10, 13, 17, 33, 34B |
Cases Cited: | Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 Veen v The Queen (No 2) [1998] HCA 14; 164 CLR 465 Bennett v Daley [2021] ACTSC 159 |
Parties: | The Queen ( Crown) Imani Kayin (a pseudonym) ( Offender) |
Representation: | Counsel E Priestly ( Crown) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Prudential Legal ( Offender) | |
File Numbers: | SCC 18 of 2022; SCC 19 of 2022 |
NORRISH AJ:
Imani Kayin appears today for sentence in relation to an offence of assault occasioning actual bodily harm committed on New Year’s Day 2021 when the offender assaulted her 15 year old daughter in circumstances I will outline shortly. The offence of assault occasioning actual bodily harm carries with it a maximum penalty of five years’ imprisonment.
I sentence the offender now shortly after the completion of the evidence and the submissions only on the basis that I shall not be sitting in Canberra for at least another month and a half and I do not believe the matter should be delayed longer than is necessary. It is to be borne in mind as a relevant matter in this sentencing exercise that the offender has been awaiting the finalisation of these court proceedings for a period of over 18 months although, to be fair, she has been on bail during that period of time.
It is to be noted as well that, of course, the victim has been awaiting the outcome of the matter for the same period of time. The offender has two other children, one older and one younger than the victim. She gave evidence today of their ages.
She lives with their father, her husband. She pleaded guilty before trial having been committed, as I understand it, to the Supreme Court in relation to a range of charges. There was case conferencing and she entered a plea to the particular charge with which I am now concerned which does involve, as the Crown pointed out to me, consideration of facts that were said, initially, to be relevant to other offending committed at the same time.
She is entitled to consideration of a discount upon what would otherwise be the appropriate penalty if it is to be measured in particular terms in accordance with s 35 of the Crimes (Sentencing) Act 2005 (ACT) which I will hereinafter refer to as “the Act”. There are a number of provisions in that legislation that are required to be considered in the sentencing of this offender.
The plea of guilty does represent, in my view, substantial utilitarian benefit and a facilitation of the course of justice. It has, most importantly, saved the requirement of the victim to give evidence about the ordeal to which she was subjected by the offender.
The offender has no prior criminal convictions and I accept that, apart from this event, she is a person of good character. She has had what can only be described as a most extraordinary background that is rarely seen in courts in Australia.
In my experience, I have seen very few people appear at court charged with criminal offences with as extraordinary a background as this offender save for people that have survived civil war in the Sudan and Ethiopia and First Nations people that I have had the misfortune to sentence over a number of years.
Her upbringing, to a large extent, puts her offending with which I am concerned into proper context. The way the matter has been conducted, having regard to the submissions of the parties, this is a case where it is not suggested that the Court should dispose of this matter in any other way other than by some form of community-based order.
I am of the view, and I have not heard any argument to the contrary, that the “s 10 threshold” has not been passed. The Crown’s written submissions and oral submissions were most helpful. The submissions of the Crown in writing particularly referred the Court to the character of the injuries suffered by the victim being at the lower range of injuries contemplated by the concept of assault occasioning actual bodily harm.
The Crown specifically referred me to other features that are relevant to the assessment of the objective gravity of an offence involving the assault upon a child, even a child of the offender, such as the age of the victim as well as other particular matters arising under s 33 of the Act to which I will refer later.
The Crown in its written submissions put to the Court that imprisonment was not the “only available sentencing option in the instant matter”. But the Crown, in writing and orally, submits that a s 17 “non-conviction order” is not appropriate. Counsel for the offender presses such an order both in his submissions, primarily relying upon matters such as the good character of the offender and the significance of a conviction for the offender as it may affect her employment and particular accreditation that she may need from time to time both for her employment and for involvement with her church activities.
Acknowledging the detail of the submissions made by the parties I turn to the resolution of the matter. To come back to the facts of the matter which are at the very heart of every sentencing exercise, the victim, on New Year’s Day left her family home and went to a nearby park to spend time with a male friend.
She arrived home sometime after 2 pm and after initially giving her mother an account of why she was away from the house she confessed to her mother that she had not be truthful about that and had been to a local park. There is no way other than to describe the offender’s reaction to this interchange with her daughter as being a totally uncharacteristic loss of self-control by her as exhibited by the facts of the matter which the offender still has difficulty embracing.
The offender slapped the daughter across the left cheek and, as the Crown pointed out reminding me of the detail of the facts, the victim collapsed to the ground and curled up in a ball at which point she was punched and kicked by the offender before being told to go to her room. When the victim was in her bedroom the offender obtained a belt and proceeded to strike the victim with the belt, described on one account as being “countless times” as well as continuing to hit and kick the victim, pulling her hair and also throwing her around notwithstanding unsuccessful attempts by the victim’s father, the offender’s husband, to restrain the offender. This he endeavoured to do unsuccessfully on a number of occasions. It is quite clear, having regard to the evidence available through the statement of facts, that the offender believed that the victim had been engaged in some form of sexual activity and possibly sexual assault.
She demanded to inspect the vaginal area of the victim and, in fact as the Crown points out, in the course of that inspection touching that area. Although, in my view, it would not be possible to prove a case of indecent assault or an act of indecency given the fact that clearly the conduct of the offender did not have any sexual connotation whatsoever.
Subsequently, the offender retrieved a football boot after the inspection and struck the victim about the body with the boot causing the victim to have red marks on her hand, wrist and her bottom. She grabbed the victim by the back of her neck, pulling it tightly, ripping the jumper in the process and this act impeded the capacity of the victim to breathe. The victim had difficulty being able to say anything because she could not breathe.
During this time the husband was still unsuccessfully trying to restrain the offender who appears to have been completely oblivious to his interventions. When the victim tried to leave her bedroom, having put on a skirt, the offender grabbed the skirt to prevent her getting away, ripping it. Ultimately, the victim managed to escape the house putting on her underwear as she left.
The offender continued to try and stop her leaving the house and, again, the husband and father tried to intervene. Again, unsuccessfully. At various times the siblings of the victim were standing nearby watching what was going on. The victim ran off and made a complaint to a neighbour. She was seen to be breathing heavily, crying, perspiring and highly agitated with torn clothing, no shoes and socks.
She spoke to a counsellor on a “Kids’ Helpline” later in the afternoon, making complaint about the conduct of the offender and was interviewed by police at 9 pm that day. She was examined by a paediatrician the following day as I have understood the facts. The injuries she suffered were swelling of a knuckle in the right index finger of her hand and a circular red bruise on her hand, two approximately 1 cm diameter circular red bruises over the back of the left hand, one with an abrasion, and three approximately 1 cm diameter circular red bruises with abrasions over the lateral right buttock. There were also red bruises with associated abrasions on her right thigh. There was a 2.5 cm linear red bruise over her left upper facial cheek. There was a 3.5 cm red linear bruise over her anterior neck and there were blisters on her left and right feet.
Bruises with a distinct circular pattern were consistent with being struck by a studded sole such as that of a football boot. The offender seemed to try to suggest that some of these injuries must have been pre-existing before her attack. I do not accept that that could be true. It is, however, fair to say that notwithstanding the ferocity of the assaults, the injuries suffered by the victim were not as serious as they may well have been.
None of the injuries, of course, were life threatening and in the written submissions and in oral submissions today, the Crown fairly concedes that they can be described at “the lower level of objective seriousness” of the range of possible injuries that fall within the definition of actual bodily harm. The Crown draws my attention, particularly in the written submissions and to some extent in the oral submissions, to the incapacity of the victim to defend herself at various times when she was assaulted by the offender.
Another relevant matter to take into account as submitted by the Crown, is the period of time over which the assaults occurred. The precise period of time is not known but it is clearly a period of some minutes, although not some hours. I am to take into account, in assessing the objective seriousness of the offending, the use of implements such as a belt and the football boot and the escalation of the assault by the offender and its persistence.
After finishing assaulting the victim with the football boot, the offender continued to try and drag the victim back into the house to stop her leaving, I am reminded both in written and oral submissions from the Crown that this is to be seen as a “family violence offence” which involved, on the part of this offender, a breach of trust arising out of the parent/child relationship.
The offence was committed in the presence of other children. It requires, thus, consideration of s 34B of the Crimes (Sentencing) Act. It is also to be borne in mind as was submitted in the written submissions of the Crown that the offender had opportunities to stop the assault upon the victim. Other people tried to stop her, as I said, particularly her husband. But their efforts were unsuccessful.
Apart from having no prior criminal history, the offender has a lengthy history of responsible employment, both here and overseas. I accept that she is in responsible employment at the present time. She described in her evidence today that she is a business manager with a private company and has worked in that employment since December 2021.
Her employment has been somewhat disrupted over the last couple of years because of the COVID crisis and because a position that she had held for eight years had to be relinquished in 2020.
When one looks to other aspects of her background it can be seen how her upbringing and her life experiences very much intersect with the circumstances of her offending. The offender was born in Zimbabwe. I understand she is the 20th of 22 children fathered by her father who practiced polygamy and had five wives. Her mother, one of those five wives, had nine children to her father. Her father and five of her siblings with whom she shares a mother, apparently are dead. She had a twin brother who she believes was murdered in Zimbabwe.
I have available to me a report from Corrective Services and a psychological report prepared on behalf of the offender at the request of her legal representatives. Both reports note a history of sexual abuse of the victim by a close family member when she was between the ages of nine and 12. This abuse went unreported. If it was known to her parents, it was ignored and no action was taken.
This aspect of the matter is extremely significant in my view to explain what could only be described as the complete over reaction about which the offender is still in denial, in response to her belief that her daughter had been involved in some form of sexual activity.
The psychologist who assessed her in May 2022, preparing a report dated 8 June 2022, noted that on her examination the offender had criteria in her presentation consistent with the presence of post-traumatic stress disorder, an assessment in the oral submissions of the Crown today, not disputed. Full details of her family history are set out in that report and I need not dwell upon them, but the character of her family upbringing is quite extraordinary by what I would call general Australian standards.
The most important matter that emerged from the Corrective Services report and the psychology report taken together is the history of sexual abuse and the importance of the reaction of her mother, or lack of response by her mother, to that abuse perpetrated upon her by a half-sibling. The offender in reporting this matter before she gave evidence, stated that she believed her daughter had either been involved in sexual activity or had herself been “sexually abused” and she said, inter alia, that “A voice in my head said, ‘Don’t be my mother,’ so I looked”, explaining in part the reason for her physical inspection of the genitalia of her daughter. In other words, what she was saying is that she was prepared to take a step that her mother was not prepared to take many years ago. The impact upon this offender in response to what I have just described cannot be underestimated.
The offender met her husband, who was born in Australia, in 2001 and moved to Australia in October 2002. She became an Australian citizen in 2009. Although she has not taken any of her children to Zimbabwe, she and her husband have been regular visitors back to that country. She explained to the psychologist that when reminded of her own sexual experiences, she continually feels “anger” and “panic”, as she described it. She has underlying symptoms of anxiety and depression and does have regular bouts of depressive symptoms that affect her capacity to cope and this has been the case for some time before the commission of the offence with which I am concerned.
According to the psychologist, she does not have any psychopathic personality traits, and she is considered at a low risk of re-offending according to the actuarial instrument that was used by the psychologist. She is not in need of intensive management or counselling but has expressed a wish to engage with psychological therapy to deal with her own trauma. She gave evidence today in her dealings with the Corrective Services department that they are prepared to fund five sessions of counselling, but that counselling has not begun.
The psychologist opined that in the context of the offender’s strong connection with her church and her active involvement in church and other community activities, she has been able to avoid much of the psychological distress that arises from her upbringing. She herself has expressed the view that she was “taken by surprise” when her trauma memories were “triggered” by the confrontation she had with her daughter.
The psychologist expressed the view that in a state of fear and arousal, the offender attempted to act in a protective manner and in a manner which she wished her mother had taken in defence of her. Of course, in the context of her children getting older and developing relationships with others and possibly becoming more involved in sexual activity, this could provide an increased opportunity for her trauma memories to resurface.
The psychologist believed that, bearing in mind that aspect, the offender would need professional assistance to address her own trauma so as to avoid her on a future occasion playing out the impact of her trauma upon one or other of her children, as she did on 1 January last year. The psychologist was of the view that without her traumatic upbringing:
“It was unlikely that (the offender) would have responded to her daughter in the manner that transpired.”
In the absence of any other history of violence, the exceptional conduct of the offender is to be understood. The Corrections report, whilst noting some avoidance by the prisoner of a responsibility reflected again in her evidence today, reflects upon the fact that the offender’s response on 1 January was consistent with reflecting a “trigger” similar to that caused by post-traumatic stress disorder sufferers.
The offender explained to the Corrective Services officer that her violence against her daughter was a “mechanism”, that is the word used by the reporter, not the offender, for her to have the victim tell her what the offender thought was the “truth” about sexual activity undertaken by the daughter which the mother suspected was a form of “sexual abuse”.
The Corrections report notes the pro-social lifestyle of the offender before committing the offences, reflected not just in her professional working life, but in various community involvements including international humanitarian efforts and her strong involvement with her local church. It is understood by the offender that if a conviction is recorded, this will have an impact upon her in a range of ways, not just in relation to her employment but will also affect her capacity to undertake work that she has performed in the past in the nature of missionary work in Zimbabwe, giving motivational speeches and the like.
She and her husband have been involved in sponsoring a school in Zimbabwe and supporting disadvantaged children in that country. It is suggested by the offender, and I will comment upon this in the context of the cross-examination of her by the Crown this morning at a later time, that a conviction will affect the offender’s capacity to obtain a “Working with Vulnerable Persons” clearance card.
If she was not able to obtain that card, this would prevent her being involved in continuing church and charity work in Australia. There is another aspect of the circumstances of the offender that are relevant in this sentencing exercise. Because of the COVID interruption to her employment and her relatively recent re-attainment of permanent work, she and her husband are in a difficult financial position. My understanding from the information made available to me is that the offender and her husband rent their property in Canberra in which they live with their children.
However, they own another property elsewhere in New South Wales which is in need of repair and is rented for a relatively modest amount of money. The property is described as a “hobby farm” but recent financial difficulties have prevented any renovation or repair of the property. Also, it is reported that recently, that is before the report from Corrective Services was prepared, the offender's motor vehicle had been stolen. Although it was returned it was damaged. The vehicle was uninsured and the taking of the car and the damaging of the car has placed further financial pressure on the family.
She also has reported that legal representation for her has been costly and her financial capacity is limited. She does not use illicit substances of any kind. She does occasionally have low levels of alcohol, either when cooking or dining out, but she is not a person with a significant alcohol problem. She has contemplated self-harm on occasions but her religious beliefs have prevented her from carrying out such acts. It is correct to observe that the contrition of the offender is limited and this was displayed again today as it has been displayed to the reporters to whom I have referred earlier.
She has a very firm belief that she commenced her examination of the victim for proper purposes and only will acknowledge part of the severity of the beating she inflicted upon the child. To my mind, however, this aspect of the matter has to be judged through the prism of the offender's life experiences, the perception of the matter in the context of having past trauma triggering the response evidenced by her conduct on 1 January and understanding, as I have said earlier, that the offender quite clearly on the facts completely lost control of her senses.
It must be said about the attack upon her daughter that it was not pre-meditated nor planned. It was obviously a response to a particular crisis situation. That having been said, the assault can be characterised as sustained in circumstances where the offender was able to resist interference from her husband on multiple occasions. She was, to be frank, possessed of mood or beliefs that were not only irrational and uncontrollable but, most importantly in considering this matter, uncharacteristic. She is aware now that is so to some extent and this does provide some safeguard against further events of this type.
Often when sentencing somebody who, by reason of mental imbalance, has acted in a particular way, it may be the case that less weight may be given to both general and personal deterrence having regard to the character of that imbalance. Here I am satisfied on the evidence available to me that the offender's reaction and then conduct towards her daughter arose out of what I have earlier described as a triggering of past experiences.
The New South Wales Court of Criminal Appeal in a decision of Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 considered, in the context of a range of other issues requiring a five judge bench of the New South Wales Court of Criminal Appeal, the relevance of mental imbalance or illness in the sentencing process. This was particularly addressed in the judgment of the then Chief Judge at Common Law, McClellan CJ at CL at [177]-[178]. His Honour drew upon a range of authorities both from within New South Wales and interstate dealing with this important aspect of sentencing.
Amongst other matters that his Honour concluded from previous authority, were firstly that the state of a person's mental health where it contributes to the commission of the offence in a material way may reduce the moral culpability of the offender for the particular offence. Thus, the need to denounce the crime may be reduced as may the need for full weight to be given to general and personal deterrence. He said amongst other things the consequence may be that the offender, by reason of their mental condition contributing to the offending, will be an inappropriate vehicle for the weight of general deterrence which would result in the reduction of the sentence that might otherwise be imposed.
Here I believe those propositions ought be applied. I appreciate, of course, that regard to s 7 of the Act is a very important matter in every sentencing exercise. What weight will be given to the competing purposes of sentencing in a particular case very much will be determined by the facts of the case. It is correct to say, by reference to s 7 of the Act, that the purposes of sentencing, of themselves, are like guideposts, sometimes pointing in opposite directions (Veen v R (No 2) (1988) 164 CLR 465).
Those “purposes” dictate the need in the appropriate case to ensure the offender is adequately punished to prevent the offender and other people from committing similar offences. There may be a need to protect the community from the offender, promote the rehabilitation of the offender, make the offender accountable for, in this case, her actions, denounce the conduct of the offender and recognise the harm done to the victim of the crime. In this matter, apart from what I have already said about lesser weight being required for general and personal deterrence purposes of sentencing, there is a need to consider the promotion of the rehabilitation of the offender. I do not believe that the facts of this case represent evidence of the fact that the offender is a danger to the community and that the community requires protection from her.
I bear in mind in relation to this offender that the matters of which I have spoken have never been properly addressed before she committed the offence with which I am now concerned. This is not a case where there have been warning signs that have gone off before that might have properly attracted attention. There is nothing in the evidence available to me to suggest a hint of the character of the reaction that ultimately led to the commission of the offence.
I understand, in the context of the appropriate disposal of this matter, that the protection of children from parents or from other people is a very important matter to be considered in sentencing and I bear in mind no parent has the right to inflict punishment upon a child, particularly as occurred in this case, even if the parent in a totally misguided way at the time, and to some extent subsequently, believes that action was needed to either effect appropriate discipline on the child or action was needed to be undertaken for the protection of the child, which is the position of the offender still.
The Court does not seek to act in any way to indicate to the offender or to the community that it condones the conduct that has been established against this particular offender.
Here, of course, there are a range of matters that are pointing in different directions that I have to take into account. In the defence case, there were some references tendered, three before today and another two that were produced this morning. One reference is from a counsellor and family therapist practising under a business name of “Restoring Dignity” who has known the offender for five years. She described the offender as being a person who generally “loves, protects and provides for her children.” I am prepared to accept that this is so, but for this incident.
That referee confirms the offender’s commitment to her Christianity and her great involvement in local church activities as well as missionary work in Zimbabwe. She states in the reference that in recent times, that is since the commission of the offence with which I am concerned, she has been a spiritual mentor for the offender, providing guidance regularly every Friday.
Another referee, who is a ‘pastor’ and registered nurse deeply involved in ACT community work and who has known the offender for five years, speaks of the offender’s integrity, genuineness and “gentleness.” She outlined a number of the offender’s achievements including her involvement with a local college, her involvement with prayer groups at Parliament House and elsewhere, her leadership at her church and leadership positions in business. The offender, to this referee, expressed her “deep regret” for her conduct.
Another referee who had known the offender for seven years and was largely in contact with her through common religious group connections, describing herself as “an African community leader”, referred positively to the character of the offender although this reference seeks to, in my view, tend to lay the blame upon the daughter by repeating the concerns that the offender has expressed about her daughter’s conduct.
Today, I had an important reference from the husband of the offender I will refer to in some little detail, in the context of the evidence of the offender today. He noted that the events on 1 January 2021 caused “a big rift” in the family but that after professional and community assistance, the family was in the process of healing and moving forward.
He noted that since the day in question, the child’s behaviour, as he described it, has been “significantly better”, that she had grown up a lot and does not struggle with anxiety and depression that she had previously struggled with before she was assaulted by the offender. He points out that the victim has, in his observation, grown into a “thoughtful and kind person consistently demonstrating related qualities”. He and his wife have been able to engage with her much better than they did up until 1 January 2021. He also, in his reference, refers to what he believes will be the effect upon the family and the career of the offender by the recording of a conviction.
The other reference produced today is from the mother of a person who is described as a “former boyfriend” to the victim and she speaks of the fact that she has developed a relationship with the victim and the offender since 1 January 2021. It is a little unclear to me whether her son’s connection with the victim was the precipitating event that gave rise to the assault committed upon the victim, but certainly her reference provides in great detail the degree of contact between the boy’s family and the offender and her family, and a process of healing that has occurred in that particular context.
This referee speaks positively of the offender’s character since the commission of the offence. She notes that her son is spending a lot of time with the victim’s family, as well as the offender, and that she has been a supporter of the offender being appointed as a parent representative on a local college board, describing the offender as a “trustworthy person with high integrity and a strong moral compass.” She noted as a mother the pressures upon the offender raising children and conducting work in challenging occupations and she, as with some of the other referees, notes regret expressed to her by the offender for the offending with which I am now concerned.
I turn now to the evidence given by the offender today. That evidence was somewhat surprising in the circumstance of the character of the proceedings. The offender declined to embrace the facts upon which she has to be sentenced and steadfastly sought to justify her conduct by reference to, if I can distil it in an expression, her need to “protect her child”. She gushed out a large number of matters that she claimed acted upon her mind in acting the way she did on 1 January 2021. In part, she seems to shift the blame of her conduct to the victim.
It is certainly the case that it is difficult to reconcile her evidence today with the facts of the matter and also difficult to see in her evidence any form of contrition or remorse which could be regarded as genuine. Such expressions of remorse she made in Court only arose really at the end of the evidence when she was directly asked by me if she was in fact sorry for what she had done.
I would have thought, with the greatest of respect, that the only purpose of calling her to the witness box I would have thought would be to have her say that she was sorry for what she had done. Rather, her evidence was largely concerned with what impact upon her a conviction would have and the character of her employment and the like, as the significant matters she wished to address.
I accept she is concerned as to the effect upon her of a conviction, both as to her employment prospects and her opportunity to obtain relevant accreditation from relevant authorities in respect of employment that requires “security clearance” and also in association with “Working with Vulnerable People” particularly with the offender’s involvement in church activities and the like.
I accept, as it emerged in the cross-examination of her, as the offender understands, that a conviction is not the only matter that will need to be considered to determine whether she is a suitable person for relevant accreditation. The fact of the finding of guilt itself and the circumstances of her offending will need to be considered by appropriate authorities.
The matter of maintaining employment and having proper accreditation is not settled simply by avoiding a conviction. I also, however, accept from her evidence that she still believes that what she did was in the pursuit of the protection of her daughter and she does not accept or see that her reaction, as she describes it herself, which is far short of what is described in the facts, was disproportionate to the situation that she had to confront.
It seems to me, with respect, that the way in which she gave evidence about the facts of the matter was entirely consistent with my view of the reality in this matter. That being that this offender has completely taken leave of her senses on 1 January 2021 and is still trying to understand what occurred. The evidence establishes that the reason she had taken complete leave of her senses is very much embedded in the traumatic experiences of her upbringing.
On one view of it, it may be said, to use a colloquial expression, she did not do herself any favours by giving evidence. On the other hand, the detail of her evidence reveals the deep-seated myopia which was at the heart of her reaction to her belief that her daughter had been engaging in sexual activity which offended her greatly.
Notwithstanding her difficulty, or incapacity, to specifically address particular questions asked of her seeking to have her recognise her criminal responsibility, the detail of the evidence ultimately does not detract from the significant matters to which I have earlier referred to which, in my understanding, inform the character of the conduct towards her child on the day in question.
In ordinary circumstances this would raise concerns about either the safety of the daughter into the future or for the capacity of the offender to reconcile her differences with her daughter. However, there is evidentiary material independent of the offender that there have been taken steps within the family and by the offender to come to grips with the underlying causes of the offender’s extreme reaction and to repair the offender’s relationship with her daughter.
There is no evidence of any continuing threat to the daughter but, particularly, I found impressive the material contained within the husband’s reference. It supports the proposition that despite the avoidance of the offender, both explicit and implicit, steps have been taken to provide the victim a safe and caring environment. The husband, in his reference, notes that the offender has been receiving assistance to help work through her trauma from her childhood experiences.
This is obviously a work in progress with considerable distance to be travelled noting that the assistance has helped the offender thus far “not to be constantly worried about our children experiencing what she experienced in her childhood” which is, as I said earlier, at the heart of the explanation of the offender’s conduct.
The father and husband notes that there have been new approaches taken to engage the victim allowing her space when parties are upset with one another, as will occur in families from time to time, and this has resulted in disagreements and arguments decreasing. The father noted that the family “consistently, respectfully and positively speak to one another and there is now peace in our home”.
Although it was not specifically addressed in the offender’s evidence, her husband has observed that the offender struggles with anxiety, stress, insomnia, depression and suicidal thoughts and has been consistent since she was charged in relation to this matter. He sees this as a reaction to the circumstances of the offending and the inevitable charging that arose. I also see it as evidence of the fact that she does not make light of this matter.
The offender has also suffered a number of physical ailments that the husband believes have been driven by stress arising out of being charged and the court processes which have taken some time to be completed. The husband said this in his statement:
“The fear of potential punishment for her trauma influence response at observing what very much appeared to her to be the rape of her daughter on 1 January 2021 and the flashbacks of her own similar childhood experiences that were ignored by her family and never dealt with has been a lot (for her to bear).”
Having close regard to the evidence of the offender, in the context of the submissions properly made by the learned Crown Prosecutor, I have concluded that the assessment of that evidence requires consideration of the fact that the offender’s conduct and her explanation for her conduct, as I heard it today, which may be viewed at first instance as being a state of denial, has to be viewed in the context of the offender acting as she did in the circumstances that she perceived them in reaction to the deep seated trauma she suffered as a child.
This brings me then to the ultimate disposal of the matter. I bear in mind that not only have I had regard to the “purposes of sentence” pursuant to s 7 of the Act to the extent that they are particularly relevant but I have had regard to various matters that arise under s 33 of the Act that I need not dwell upon nor particularise at this juncture.
The Crown in its submissions brought the Court’s attention to a number of supposedly “comparative” cases that might assist the Court to determine the ultimate disposal. There was a Tasmanian case which I felt was of little assistance for a range of reasons but particularly two ACT decisions. The decision of ZL v Corey [2020] ACTSC 143 and a matter of Murray v IA [2020] ACTSC 288.
Each of these decisions, I point out, are appeals from the Magistrates Court, two of them being Crown appeals, including the Tasmanian matter. One ACT matter involving an appeal by the Crown which was an unsuccessful application to set aside the Magistrate’s order not to record a conviction. These judgments are, in some respects, of assistance but, of course, there are a myriad of distinctions that could be made both by regard to the objective facts and the subjective circumstances of the relevant parties that require the Court to approach the cases provided to me with some circumspection. Consideration of comparative cases can provide a sharper focus for the final disposal of a matter noting particularly the differences between each case.
It is to be borne in mind, of course, that in sentencing one is to have regard to a range of matters by way of instinctive or intuitive synthesis as was discussed by the High Court in the decision of Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, particularly in the judgment of McHugh J at [51]. What, in my view, distinguishes this case from those that were brought to my attention is the way in which the subjective circumstances of the offender, or at least the background and history of the offender, have particular pertinence in understanding the objective facts informing the Court as to what was the true catalyst for this totally uncharacteristic behaviour.
A decision provided to me today by learned counsel for the offender was that of Burns J in Bennett v Daley [2021] ACTSC 159. This judgment is another appeal from the Magistrates Court where the learned Supreme Court Judge set aside orders pursuant to s 17 substituting convictions in respect of two assaults committed by the respondent to the Crown appeal. The detail of the basis of setting aside the orders in the Magistrates Court need not be dwelt upon.
What is important in the judgment was the discussion concerning the operation of s 17 Crimes (Sentencing) Act. One needs in this matter in consideration of whether one should exercise discretion under that section, to have regard to the terms of the section itself. Section 17 provides for a power not to record a conviction or make a “non-conviction order” either by dismissing the charge or by ordering an offender to enter into a good behaviour order pursuant to s 13 of the Act. It is not submitted to me that I should dismiss this matter pursuant to s 17. Section 17(3) of the Act relevantly provides indeed:
In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender's character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
Furthermore, the Court may, pursuant to s 17(4) of the Act also consider anything else that the Court considers relevant. I pause for a moment to point out, as I pointed out to the learned Crown Prosecutor, that the issue of the significance of a conviction for the employment of the offender and in relation to any certification she may require from government agencies is a matter that does not arise under s 17(3) but arises under s 17(4). I am not persuaded that the threat of the loss of opportunity to be properly accredited or, for that matter notwithstanding the financial circumstances of the offender and her husband and the family, any threat to her current employment is, of itself, a matter that requires consideration of a non-conviction order. It is one of a number of matters to take into account. But is not decisive.
I bear in mind as relevant to exercise the discretion to make an order pursuant to s 17 of the Act what I have concluded in relation to the circumstances of the offending and its relationship to the background of the offender, as well as the positive aspects of her character, notwithstanding the seriousness of the offence. I also take into account the offender's character and antecedents, her mental health or mental condition and, in my view, the resultant extenuating circumstances in which the offence was committed. These are relevant matters to take into account in conjunction with any suggestion that a conviction may have impact upon the offender's opportunities for employment and the like.
I accept, as the Crown submitted to me, that the evidence is not persuasive that the fact of a conviction is as significant as suggested. As the Crown pointed out in careful cross examination of the offender and pointed out again in helpful submissions, the truth of the matter is that any future consideration of the offender for particular accreditation will require someone or some organisation to have regard to the fact of the finding of guilt and to the circumstances of the offending.
The basis in part for delving so deeply into the detail of the case to provide an understanding of the character of the offending, serious though it is, is to explain more important matters to consider. That noted I also point out that his Honour, in the decision of Bennett to which I have referred (at [54]) pointed out that, “Having a conviction recorded for criminal offending will have some impact on the life of most offenders”, pointing out some circumstances to justify that comment. He said, in the course of that paragraph, that consequences of the type he contemplated were expected for particular types of offending. He said:
“In order to justify the imposition of a non-conviction order because of the effects of the recording a conviction upon the offender or their family, there must be evidence that those consequences fall outside the range of consequences that will ordinarily be expected. Such cases may be expected to be rare. In the present case the evidence of potential consequences for the respondent if convictions were recorded was thin and speculative. It could not carry any significant weight.”
That may not be said in this case. However, it is not the only basis upon which one could conclude that a non-conviction order may be entered pursuant to s 17. Thus, having had regard to all the material available to me and having fully ventilated the seriousness of the conduct of the offender, I have concluded that I should exercise the discretion available to me to make a non-conviction order pursuant to s 17, not on the basis of the potential for disruption to the offender's employment or for the potential for a conviction to have an adverse effect upon her capacity to obtain particular credit, but by giving full weight to a proper understanding of the extenuating circumstances of the offending in the context of what I have described, the other matters I have identified and because there has been repair to the relationship between the offender and her daughter as evidenced both by the husband and by the reference of the mother of her former boyfriend.
I bear in mind, as I said earlier, the way in which the purposes of sentencing in s 7 of the Act have to be considered in the context of the matters that arise from the offender’s background that inform her mental state at the time of the offending. Thus, I have concluded that the orders I should make in this matter are as follows.
1) In respect of the offence of Count 2 - assault occasioning actual bodily harm - CC2021/2755 - direct that the offender is to be subject to a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act;
2) Order that the offender is to enter a two-year Good Behaviour Order, commencing on 7 July 2022 and expiring on 6 July 2024, under the core conditions set out in s 86 of the Crimes (Sentencing Administration) Act 2005 (ACT), as well as the condition that the offender is to obey all reasonable directions provided to her by the ACT Corrective Services in respect of psychological counselling deemed appropriate for her.
3) The following transfer charges under SCC 19 of 2022 are withdrawn:
a. CC2021/6527 – common assault;
b. CC2021/6528 – common assault;
c. CC2021/6529 – common assault;
d. CC2021/6530 – common assault.
4) Grant leave for the Crown to file in Court the notice of declining to proceed in respect of the following counts on the indictment dated 3 May 2022:
a. Count 1 - CC2021/2903 - act of indecency without consent
b. Count 3 – CC2021/6531 – choke/suffocate/strangle
Now, Ms Kayin, I have determined ultimately not to record a conviction against you. That reflects no approval whatsoever of your conduct and does not in any way indicate to you that the Court feels in any way that you were justified to act the way you did. I have endeavoured to try and understand your state of denial which is adamant, I understand that. But notwithstanding those issues, I have concluded that the justice of the case and the interests of the community can be served by you being placed on a good behaviour order for a period of two years without having to record a conviction against you.
What that will mean for your employment and your accreditation of course, as the Crown has eloquently pointed out to you, and again in submission, I cannot say. But you must understand that you must be of good behaviour for the following two years, from today, and if you fail to be of good behaviour or fail to comply with the core conditions you will discover that the conviction of you for this offence will be recorded and other orders will need to be made by the court. So you are ultimately to bear responsibility for yourself in the near future, particularly in the next few years.
| I certify that the preceding ninety-two [92] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish Associate: Date: 15 July 2022 |
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