R v Lonergan

[2022] NSWDC 423

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Lonergan [2022] NSWDC 423

Hearing dates:

21 September 2022

Date of orders:

21 September 2022

Decision date:

21 September 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 52 – 53

Catchwords:

CRIMINAL LAW – severity appeal from local court – domestic violence offence – offence of distributing intimate image

Legislation Cited:

Crimes Act 1900 (NSW) s 91Q

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 9, 10, 99

Cases Cited:

Einfeld v R (2010) 200 A Crim R 1

Kearsley v R [2017] NSWCCA 28

R v Beissel (1996) 89 A Crim R 210

R v Zerafa (2013) 235 A Crim R 265

Texts Cited:

Odgers, ‘Sentence’ (5th edition)

Howie & Johnson, Criminal Practice & Procedure NSW (Lexis Nexis Online)

Category:

Principal judgment

Parties:

Ms T Lonergan (appellant)
ODPP

Representation:

Solicitors:
Conditsis Lawyers for the appellant
ODPP

File Number(s):

2022/00187629

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Wyong Local Court

Jurisdiction:

Local Court of NSW

Date of Decision:

11 August 2022

Before:

Magistrate A Railton

File Number(s):

2022/00187629

REASONS FOR JUDGMENT          

1. On 11 August 2022, following pleas of guilty, the appellant was convicted and sentenced in the Wyong Local Court of the offences:

1. H 89597828/1

1. that at 2:23pm on 20 June 2022 at Kanwal, the appellant did intentionally distribute an intimate image of the victim without consent, contrary to s 91Q(1) of the Crimes Act 1900 (NSW) (what I will sometimes refer to as the ‘image offence’).

2. H 89597828/2

1. that at 2:50pm on 20 June 2022 at Kanwal, the appellant did intimidate the victim with the intention of causing him to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

2. The maximum penalty for the first offence on indictment is 100 penalty units ($11,000) or imprisonment for 3 years, or both. Summarily, the maximum penalty is 100 penalty units ($11,000) or imprisonment for 2 years, or both.

3. The maximum penalty for the second offence is 50 penalty units ($5,500) or imprisonment for 5 years, or both. Summarily, the maximum penalty is 50 penalty units ($5,500) or imprisonment for 2 years, or both.

4. For the first offence, the appellant received a Community Corrections Order for 18 months. For the second offence, the appellant received a fine of $500.

5. The appellant appeals against the severity of these sentences.

Circumstances of Offending

6. The Local Court sentenced the appellant on the basis of the facts outlined in the Police Facts Sheet. At the hearing of the severity appeal, those facts were amplified when the appellant gave evidence.

7. The appellant and the victim had known each other for approximately 20 years at the time of the offending. They had a chance encounter in December 2021. Both were keen golfers. In May 2022, the appellant and the victim began exchanging messages that developed into discussion of intimate matters during which both parties consensually sent explicit images to one another. One of them was the subject of the first offence.

8. The relationship between the parties continued to develop and they became physically intimate with one another on one occasion. However, the relationship began to deteriorate when the appellant became aware that the victim was in a continued relationship with another person, [redacted]. The appellant explained that the victim had breached a verbal promise of exclusivity. She said she ended the relationship.

9. The victim had earlier sent 3 – 4 pictures of his penis to the appellant, one of which was sent on 11 May 2022.

10. At or around 8:50am on 20 June 2022, the victim attended the residence of the appellant in response to their deteriorating relationship. It is noted that the victim’s attendance at the appellant’s residence was the subject of a separate police investigation and prosecution; and apparently has now been dealt with.

11. On 20 June 2022, the appellant sent numerous messages via Facebook Messenger to [redacted]. At 4:23pm on that day, the appellant intentionally distributed the intimate image of the victim’s penis to [redacted] stating, “sorry just need you to see this wasn’t just one fuck.” The appellant then sent a screen shot of the same image a short time later stating, “So you can see the date stamp.” This is the offending conduct making up the first offence. As a result of previously blocking the appellant from any communication, by chance, [redacted] did not see these messages.

12. At or around 8:20pm on 22 June 2022, the appellant contacted police to report the victim’s attendance at her property on 20 June 2022, the same date that the subject offending took place. Police subsequently attended the appellant’s property and, with her consent, reviewed the messages on the appellant’s phone which she had also sent to the victim on 20 June 2022.

13. Police identified a message from the appellant to the victim stating:

“I sent your dick picks with date stamps to her too. Laugh at that I will expose you for the fraud you are I hope she is sensible to not take you back and ever come within sight of me or near my home and the police will be on to you so quick your head will spin. I hope Parkinson’s takes hold and you die a slow painful death.”

14. With the appellant’s consent police also made a video record of the text conversations between herself, the victim and [redacted] occurring on 20 June 2022. Police considered that the excessive amount of text messages sent by the appellant would constitute a degree of harassment, causing the victim to reply:

“Will you go get a life for fucks sake its becoming laughable me and [redacted] will be fine its getting boring I will never be with you get over it.”

15. When asked, the appellant showed the intimate image she had sent to [redacted]. The appellant was subsequently cautioned and made full admissions to sending the intimate image without the consent of the victim. When asked why she had sent the image, she stated that she did so “to prove my association with [the victim] on a particular date because he was claiming I was only a one-night stand.” Apparently, [redacted] informed the appellant that the victim had told [redacted] not to believe the appellant, and described the appellant as being an “obsessed fuckwit”.

16. On 23 June 2022 the victim provided police with a written statement in which he asserted that he did not provide the appellant with consent to distribute the intimate image he had sent her.

17. Under cross-examination, aspects of what the appellant said were tested and challenged. She understood that the victim’s ‘dick – pics’ that the victim had sent to her were for her eyes only. She acknowledged that having ended her relationship with the victim herself, it was unnecessary for her to communicate with [redacted] and in particular, accepted that there was no need for her to send the ‘dick pic’ to convey information. She did not say that [redacted] had said anything to suggest that she did not believe the appellant in what the appellant had said about the victim. Further, [redacted] did not ask to see the photograph that the appellant sent her.

18. Both the appellant’s legal representative and the Crown submitted that the offending in relation to the distribution of the image was at the low end of the range. The Crown emphasised that the image was sent with malice and characterised the appellant’s behaviour as unacceptable and immature. The appellant’s legal representative said that the image did not identify the victim by face or any other identifiable feature and the recipient was already familiar with the victim’s intimate features. Fortuitously, the recipient did not actually see it. Only one photograph had been sent whereas other similar photographs had been sent to the appellant by the victim.

19. I find that the offending for the image offence was at the lower end of the range. Questions of motive are more directed to her subjective case. I also find the offending for the second offence was below the mid-range.

SUBJECTIVE CASE

Age and background

20. The appellant was 50 years old at the date of the offending.

21. In a report from a clinical nurse, Mr Lee Knight, tendered at the hearing of this appeal, the appellant was reported as having explained that her motivation was to prove to [redacted] that she was in a relationship with the victim at the same time that she believed that he was in a relationship with [redacted]. She told Mr Knight that she did not believe that her actions were illegal. These were statements that she reiterated when she gave evidence in Court.

22. There was no suggestion of any disabling or incapacitating mental condition which contributed to the offending.

23. The appellant’s background was otherwise extensively chronicled in Mr Knight’s report. It showed a life history which, with no disrespect, was unremarkable and generally consistent with a mature professional. The appellant is currently self-employed as a mortgage broker and is a member of the Finance Brokers Association (FBAA).

Antecedents

24. The appellant has no prior convictions. There is scope for leniency, which appears to be reflected in the sentences that were imposed in the Local Court.

Prior Good Character

25. Five character references were before the Court. The first of these references was composed by Mr Bryant, the appellant’s manager at her place of employment. Mr Bryant, stated that he had known the appellant for over 25 years in her role as a mortgage broker and opined that the appellant was an honest and community minded individual, willing to help others and is capable of making a positive change in people’s lives. Mr Bryant recalled the appellant indicating genuine regret and remorse for her offending and opined that such behaviour was out of character for her. He further explained that the subject offending could have a significant impact on the earning capacity and ability to operate as a professional mortgage broker.

26. The second of the references appears to be from one of the appellant’s clients who she has provided financial services to for the past 25 years. Ms McAlpine, an Inspector for NSW Ambulance, stated that she held the appellant in the highest regard and that the subject offending was significantly out of character. Ms McAlpine stated that the appellant had indicated the seriousness of her offending as well as her associated remorse and regret.

27. A reference from the appellant’s golf coach and mentor also indicated the uncharacteristic nature of the offending as well as the appellant’s generous and kind nature. In line with the previous references, the appellant’s golf coach recalled the appellant expressing her embarrassment and remorse for her behaviour.

28. Two other clients of the appellant provided character references attesting to her generous, kind and respectful nature. The first of these references stated that the appellant had been involved in a serious automobile accident and was recovering from surgery at the time of the offending. He opined that the strong pain medication she was required to take may have had an influence on her better judgment. However, that evidence is not supported by expert medical opinion. The second of these references was composed by a Corrective Services NSW Governor who manages two female correctional facilities. Both references noted the appellant’s expression of remorse and regret for the subject offending and spoke to the appellant’s professionalism and ability to maintain confidentiality. The person is plainly a person of prior good character.

Guilty Plea

29. The appellant is entitled to receive a 25% discount for her guilty pleas to each offence.

Extra-curial punishment

30. The appellant said that, as a licensed credit representative, amongst other things, each year she is required to make a declaration to the FBAA as to whether she has been subject to a criminal offence. She indicated, very clearly, that she is apprehensive that disclosure of a criminal offence will mean that she may lose her membership of the FBAA and therefore will be unable to remain as a licensed credit representative. That would mean that she could no longer operate as a mortgage broker. Independently, she said that certain lenders were also making certain checks of mortgage brokers, like her, about criminal convictions. As indicated, the appellant had been a self-employed broker since 1999.

31. Under cross-examination, the appellant indicated that she had to make the declaration annually and was given no assurance that she would not suffer adverse action; though accepted that that had not yet materialised.

32. Extra-curial punishment can amount to a mitigating factor and as Mr Odgers explained in his text ‘Sentence’ (5^th ed, at [4.211]), the prospect of suffering extra-curial punishment suffices for this purpose. I accept that the prospect of not being able to renew her membership of the FBAA because of either the fact or circumstances of any conviction has operated to substantially dilute the force of the consideration given to personal deterrence; especially having regard to the length of the appellant’s experience (Einfeld v R (2010) 200 A Crim R 1 at [86]). This is not the type of case, such as occurred in R v Zerafa (2013) 235 A Crim R 265, where it might be thought that the risk of professional ramifications consequent to offending might be taken to have formed part of an offender’s cost-benefit analysis preceding offending. The offending here was to a large degree spontaneous and largely impulsive. Notwithstanding the serious nature of the offending, as indicated by the maximum penalty, given the relative impulsivity, it could also not be inferred that a loss of professional qualification would necessarily flow from the offending (cf Kearsley v R [2017] NSWCCA 28 at [76]-[77]). Even so, I expect that this has been the principal matter weighing very heavily on her mind.

Contrition and Remorse

33. All five of the appellant’s character references detailed the appellant’s expressed remorse, regret and embarrassment in relation to the subject offending.

34. In the hearing of this appeal, the appellant also indicated her embarrassment and humiliation. She acknowledged that she should not have done what she did. I find that she is remorseful, but in saying so, I did not discern any regret, or empathy, whatsoever, for the effect of her offending on the victim. That is an important qualification, to be developed further in the next section of these reasons.

Rehabilitation Prospects and likelihood of reoffending

35. Mr Knight said that he did not see a need for any treatment for the appellant.

36. The appellant promised that she would not reoffend. She maintained that, at the time, she did not realise that what she had done was illegal. I accept that she did not appreciate that what she had done was illegal. It is another thing to say, however, that, a mature self-employed professional of good character would not have appreciated that what she had done was immoral and harmful to the victim. I was less than satisfied in the credibility of the appellant’s explanation that she was only motivated to supply the image out of a disinterested sense of providing information to a third party; even one who was previously intimate with the victim. To my mind, that bespoke some minimisation of the offending, which suggests that the sentencing consideration of specific deterrence retains salience; and also denunciation. That said, for someone with the appellant’s intelligence and her prior good character, I find that the appellant’s prospects for rehabilitation are excellent. The prospects of reoffending are also very remote.

INSTINCTIVE SYNTHESIS

37. I take into account the maximum penalty for the offences. In particular for the image offence it is noted that the offence could have been tried on indictment.

38. I take into account the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Offending of this kind, in relation to the image offence, requires a penalty which will recognise the affront to the victim’s dignity and the deliberate and gross violation of his dignity. Plainly general deterrence and denunciation have a role to play. Some leniency should be extended because of the appellant’s hitherto good record, guilty pleas and her prior good character, which substantially reduce a need for specific deterrence. But noting the qualified finding made concerning her contrition, the need for specific deterrence is not entirely spent.

39. The second offence was less serious in nature. The community does not need protection generally and the victim already has the benefit of an ADVO. The prospects of further interaction between victim and appellant are very remote. There is less force to general and specific deterrence and, in view of what appeared to be some provocative conduct by the victim, also less force to retribution and denunciation.

40. I apply the principle of totality. There are two offences with the same victim, on the same day and within a short period of time. That is indicative of concurrency. But the nature of the offending is distinct and the motivation in the appellant different: whilst there was an aspect of imparting information, that was not the predominant motive. The image offence was substantially designed to humiliate the victim, and incidentally, or perhaps collaterally, embarrass [redacted]. The latter offence served the purpose of harassment of the victim illuminated by the large number of messages sent that day. Given the penalties I propose to impose, the offending overall is adequately punished by penalties that run wholly concurrently.

41. In this Court, the parties jointly submitted that an appropriate sentencing option would be a conditional release order under (CRO) s 9 of the Crimes Sentencing Procedure Act.

42. The appellant’s legal representative emphasised that a CRO would fulfil the requirement for general deterrence; that the appellant presented no real risk of reoffending (the circumstances of the offending being highly specific), that the consideration of making her accountable for harm she has caused has been fulfilled in various ways, including being subject to an AVO herself and inferentially the process of criminal justice for a person of hitherto good character. Although harm to the victim could be presumed, the victim did not actually complain; that the recipient of the offensive image was already intimate with the victim.

43. The Crown did not cavil with any of this. Ms Crown submitted that the Court could find that the offending was out of character for a person with no prior criminal history.

44. I will deal first with the first offence. I agree that a discharge under a CRO is available. The main issue to my mind is whether that be done by proceeding to a conviction (under s 9(1)(a)) or by not proceeding to conviction (the latter under s 10(1)(b)). The matters are finely balanced.

45. I accept that the appellant is of good character, has no prior record, but that there is nothing to say that issues of health or mental condition contributed to the offending. I am unable to accept that the offending was trivial. It was entirely unnecessary for her to send the photograph. I regarded it as malicious, an inference supported by the content of the text message she later sent the victim. The appellant’s legal representative argued that the purpose of the first offence was consistent with ‘revenge porn’. Whatever her protestations about the legalities, the offender’s conduct aptly fitted that description. Other than his cheating on her, the victim presented no threat to her that could provoke any response in her.

46. I am not convinced that there were extenuating circumstances. As was put by the Crown, accepting her evidence of having ended the relationship with the victim, and that she had blocked the victim and [redacted], there was no need for the appellant to have engaged with [redacted] at all. She had after all, ended the relationship. On her own account, why should she have concerned herself with what the victim was saying about her to [redacted]? Why should she care what [redacted] thought about her?

37. The Court is sympathetic to the appellant’s predicament, that being a person of good character and a lengthy record of professional service in the broking community, she may face sanction. However, in R v Beissel (1996) 89 A Crim R 210 the Queensland Court of Appeal [1] held that for the purpose of assessing this type of sentencing option, the Court should not attempt to minimise the seriousness of criminal conduct with a view to influencing third parties, such as licensing authorities, to disregard or overlook offending to determine the appellant’s continued suitability to hold a position and pre-empt or influence the exercise of that function.

    1. Cited at [5 – 5.10.1] of Howie & Johnson, Criminal Practice & Procedure NSW (Lexis Nexis Online)

38. In the circumstances, I am unable to accept that it is appropriate for the CRO to be imposed in relation to the first offence to discharge her without proceeding to conviction.

39. As to the second offence, this offending may be viewed more sympathetically from the appellant’s point of view. I repeat what I have said regarding her character and antecedents. She was in a volatile period, at the end point of a relationship in which she felt, with apparent cause, she had been cheated. She had received reports of abusive matters said about her by the victim. Inferentially, it appears that the victim was giving as much as he got from the appellant. I would be inclined to order that she be conditionally released without proceeding to conviction.

40. In terms of conditions, I do not consider any need for additional conditions under s 99(2) of the CSP Act to complement the standard conditions under s 98.

41. Orders

42. Ms Lonergan, please stand.

43. The severity appeal is allowed and the sentences imposed by the Local Court are set aside.

44. In lieu of those earlier sentences:

1. for the offence H89597828/1, I impose a conditional release order discharging you whilst proceeding to conviction, pursuant to s 9(1) of the CSP Act, for a term of 18 months, subject to the conditions that:

1. you must not commit any offence; and

2. you must appear before the court if called upon to do so at any time during the term of the conditional release order.

2. For the offence H89597828/2, I impose a conditional release order discharging you whilst not proceeding to conviction, pursuant to s 10(1)(b) of the CSP Act, for a terms of 18 months, subject to the same standard conditions referred to in order 1. This order is wholly concurrent with order 1.

55. Having considered s 4A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and noting that the second offence is a “domestic violence offence”, I remain satisfied that the sentence I imposed is appropriate.

**********

Endnote

Amendments

23 September 2022 - Amendment made to coversheet

Amendment made at [15]: "image" added

Amendment made at [32]: "consequent to offending" added

Amendment made at [45]: "consistent with" added

Decision last updated: 23 September 2022