R v Leach
[2014] ACTSC 306
•28 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Leach |
Citation: | [2014] ACTSC 306 |
Hearing Date: | 28 October 2014 |
DecisionDate: | 28 October 2014 |
Before: | Burns J |
Decision: | See [19] – [24] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – driving offences – attempt to choke – drive motor vehicle without consent – assault – possess offensive weapon – effect of mental illness on sentence – sentence |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 27, 381 Criminal Code 2002 (ACT) s 318 |
Parties: | The Queen (Crown) Nathan Leach (Offender) |
Representation: | Counsel Mr Hickey (Crown) Mr Whybrow (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Numbers: | SCC 172 of 2014; SCC 173 of 2014; SCC 174 of 2014 |
Burns J:
The offences
Nathan Leach, you have entered pleas of guilty to one charge that one the 9 April 2014 you intentionally and unlawfully attempted to choke Gillian Marie Napier so as to render her unconscious (CC2014/3788) and one charge that on the 9 April 2014 you did dishonestly and without consent drove a motor vehicle belonging to Gillian Marie Napier (CC2014/3790). You have also pleaded guilty to a number of summary charges which have been transferred to this Court pursuant to the provisions of s 68Eof the Supreme Court Act 1933 (ACT). Those offences are also offences that occurred on the 9 April 2014. There are two charges of assault (CC2014/3785; CC2014/3786) and one charge of possessing an offensive weapon, namely, a 20 cm stainless steel bladed knife with black handle in circumstances which indicated intent to use the weapon to commit an offence involving actual or threatened violence (CC2014/3787).
An Agreed Statement of Facts has been put before the Court and I do not propose to rehearse that here. It is summarised at paragraph three of the Statement of Facts, which provides that on 9 April this year, you were at the home that you shared with the victim when you lunged at the victim with a knife, threw her to the ground, wrapped both your arms around her neck and started to choke her. You chased her when she ran outside. You grabbed her by the hair and dragged her on the ground. You then entered her car and drove away.
All of these events occurred as part of the one incident. I note that the maximum penalty for the offence of attempting to choke so as to render a person unconscious contrary to s 27 of the Crimes Act 1900 (ACT) is 10 years’ imprisonment. The maximum penalty for the offence of dishonesty and without consent driving a motor vehicle belonging to another, contrary to s 318 of the Criminal Code 2002 (ACT), is five years’ imprisonment. A court may also make a driver license disqualification order for the period considered appropriate with respect to that offence. The maximum penalty for the offence of assault, contrary to s 26 of the Crimes Act 1900 (ACT), is two years’ imprisonment and the maximum penalty for the offence of possessing an offensive weapon with intent, contrary to s 381 of the Crimes Act 1900 (ACT), is one year imprisonment.
Offender characteristics
I note that you gave evidence during the course of the sentence hearing. In that regard I note that whilst you admitted to having an issue with smoking cannabis for a significant period leading up to the commission of this offence, you say that you have now ceased smoking cannabis and have not smoked it for some months. I accept that evidence which you gave.
You said that at the time of these offences you were fixated on the relationship that you had with Gillian Napier and that, effectively, you were willing to do anything in order to try and ensure that that relationship continued. These offences occurred in the context of a breakdown in that relationship when Ms Napier had decided that she no longer wanted to continue in that relationship with you.
The reality of any relationship is that it takes two people to make it. You can’t have a relationship in which only one person wants to be involved. It appears to me from the evidence that you have given that you are developing an understanding of the fact that your behaviour was not only unacceptable and criminal but it was also behaviour which, in the long run, ensured that you could not get back together with Ms Napier. Having done what you did the prospects of you being able to continue in that relationship or to reignite that relationship was zero.
I take into account the fact that you have voluntarily accepted appropriate treatment since the time of these offences. I take into account the fact that you spent some 36 days in custody before you were released on bail. You have been on onerous bail conditions since you were released from custody. I note that there has been no breach of bail conditions except to the extent that you, in your evidence today, gave evidence of an incident where you saw the complainant at a service station. Strictly speaking you should have, in order to comply with your bail conditions, immediately left the area, but I accept that that was a relatively minor lapse of judgment which ultimately did not result in any increase in the complainant’s levels of fear because of the fact that she had already seen you in circumstances where it could not be suggested that you were deliberately breaching your bail. As such, I am prepared to accept that that was a very small lapse of judgment on your part, which did not have any significant consequences.
I accept from the evidence that you have given that you are remorseful for what you did. The contents of the Pre-Sentence Report also suggest that you have demonstrated remorse to the author of that Report.
There is very clear evidence before me that you suffer from a number of mental health conditions which are described in the report of Dr Michael Barry, a psychologist who assessed you as suffering from major depressive disorder and a cannabis use disorder. He also felt that you displayed features of borderline personality disorder.
I accept the evidence from your father that in the months leading up to these offences you showed signs of deterioration in your mental health such that on 27 March this year you were taken to the secure mental health unit at the Canberra Hospital. You were released the next day to stay with your father, despite the fact that he was concerned about the fact that they were releasing you at that time. Your father then had lengthy discussions with mental health authorities about your deteriorating condition in the days that followed because he felt that your thinking, particularly in relation to your relationship with the complainant in this matter, was irrational.
Consideration
There is no suggestion that your psychological disorders entirely relieve you of responsibility for your actions on this occasion, but I am satisfied that the state of your mental health as at 9 April this year was such that you were not to be held as responsible for your loss of control and your behaviour as a person who did not suffer from those disorders.
I am satisfied that these disorders contributed directly to the commission of these offences. The fact that your mental disorders contributed to the commission of these offences calls for a moderation of the degree to which general deterrence should influence the sentence which I impose. I accept the submission which has been made by the Crown that deterrence, including individual deterrence, still has a role to play but it should be sensibly moderated to take into account your mental health condition.
I take into account the fact that you have no previous convictions. That is a matter which entitles you to a significant degree of leniency in these matters. I note that you are 23 years old and that you come from a good family background, albeit that there was some instability in your family when you were about 12 or 13 due to the breakup of your parents’ marriage.
You have completed your education to Year 12 and you have worked from time to time in areas such as the public service and also as an IT sales person and I accept on the evidence before me that you have found it somewhat difficult to maintain employment because of your mental health. You are currently on a Disability Support Pension, although again I accept that you have hopes of being able to return to the workforce in due course.
You do not consume alcohol apparently but you have, as I have already noted, consumed cannabis in the past. Illicit drugs and mental health problems is a very bad combination. It is very difficult to treat mental health issues when the patient is consuming illicit drugs so that if you return to the use of illicit drugs you do so in the knowledge that it will make it more difficult for you to be treated and that presents a greater risk of you then losing control again in the future.
I give very significant weight to the fact that you have family support and that they continue to provide you with support in seeking treatment in relation to your mental health issues.
This was an isolated incident and I am satisfied that it was spontaneous with little planning. I am not prepared to infer, as suggested by the Crown, that you hid the knife in the lounge with a view to threatening the complainant with it during the course of this incident. It appears to me equally consistent with the proposition that has been put forward in your evidence that you had the knife earlier contemplating self harm and that you remembered that it had been on the lounge. So, as I have said, I am satisfied that there was little by way of planning involved in this incident. Doubtless, you had planned to confront the complainant in relation to your suspicions that she was seeing somebody else, but that is very different to the proposition that you had planned to commit these particular offences.
I, of course, take into account your pleas of guilty. I accept that they were early pleas, although they were not made at the earliest opportunity and I will reduce by approximately 20 percent the sentences that I would otherwise have imposed.
Sentence
In my opinion the offences of possession of an offensive weapon and the offences of assault and also the offence of taking a motor vehicle do not justify or call for the making of the imposition of a term of imprisonment, however, the offence of attempting to choke is in a different category and in my opinion a sentence of imprisonment is appropriate with respect to that offence. However, I am satisfied that you have good prospects for rehabilitation if you maintain the path that you have commenced on. I am also mindful of the fact that you have no previous convictions and which I will suspend the sentence of imprisonment which I would make in relation to that charge.
On the charge of possession of an offensive weapon (CC2014/3787), you will be convicted and there will be a Good Behaviour Order for a period of six months. In light of the other sentences which I intend to impose I won’t impose any conditions on that Good Behaviour Order.
On the first charge of assault (CC2014/3785), you will be convicted and there will be a good behaviour order for a period of nine months.
On the second charge of assault (CC2014/3786), you will be convicted and there will be a good behaviour order for a period of 10 months.
With respect to the offence of taking a motor vehicle without consent (CC2014/3790), you will be convicted and there will be a good behaviour order for a period of six months.
With respect to the charge of attempting to choke (CC2014/3788), you are convicted and you are sentenced to seven months’ imprisonment. Now, I have reduced that from 10 months and have also taken into account in arriving at that period of seven months the 36 days that you have already spent in custody and your plea of guilty. That sentence will be suspended forthwith. There will be a Good Behaviour Order for a period of three years with the following conditions:
(a)first, that you are to accept supervision of ACT Adult Corrections for a period of two years or such lesser period as deemed appropriate by your supervising officer;
(b)secondly, that you are to obey all lawful directions given to you by officers of ACT Adult Corrections or their delegates for that period of two years or such lesser period as deemed appropriate by your supervising officers;
(c)thirdly, that you are to undertake such counselling or treatment for mental health issues as directed by officers of ACT Corrective Services for that period of two years or such lesser period as deemed appropriate by your supervising officer and I would recommend that you be directed to continue in the course of treatment that you are currently undertaking;
(d)fourthly, that you are to undertake such counselling or treatment for cannabis abuse as directed by ACT Corrective Services or its delegate for that period of two years or such lesser period as deemed appropriate by your supervising officer;
(e)fifthly, that you are, for that period of three years, not to contact either directly or indirectly Gillian Napier, except via a legal practitioner. I doubt that there will be any need for that to occur but if there is it at least gives you an opportunity or a mechanism for contacting her without having to do it personally and through a professional person; and
(f)finally, for that period of three years, you are not to be within 100 metres of Gillian Napier.
Mr Leach, I have imposed a sentence of seven months’ imprisonment. I have suspended that and placed you on a Good Behaviour Order for a period of three years. I have read out to you the conditions. Basically, they are conditions that you have to accept the supervision of Corrective Services and to comply with the directions that are given to you by Corrective Services over that period of two years.
Now, if you do not commit any offences within that three year period, if you comply with the directions that are given to you by Corrective Services over that two year period and, of course, if you do not have any contact with Ms Napier or deliberately come within 100 metres of her within that three year period, then at the end of the three-year Good Behaviour Order the matter is concluded and that means, of course, that you will not have to serve that seven months’ imprisonment. But if you breach the Good Behaviour Order by failing to accept the supervision that is given to you by Corrective Services, by failing to comply with the directions that are given to you by Corrective Services or by having some contact with Ms Napier or coming within that 100 metres of Ms Napier, then you will be dealt with for a breach of the Good Behaviour Order at which time the sentence of seven months’ imprisonment may be imposed upon you.
You have made a good start in terms of dealing with the issues that are likely to lead you to reoffend. Do not go away from the Court thinking that this is the end of the matter. You have still got a lot of work to do in front of you but I have no doubt that you can maintain that commitment if you wish to.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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