R v Smith (No 2)
[2022] ACTSC 246
•22 August 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Smith (No 2) |
| Citation: | [2022] ACTSC 246 |
| Hearing Date(s): | 19 July, 22 August 2022 |
| Decision Date: | 9 September 2022 |
| Before: | Loukas-Karlsson J |
| Decision: | See [154] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Pervert the Course of Justice – Contravene Family Violence Order – parity principle – family violence context – section 10 threshold crossed – sentences of full-time imprisonment imposed |
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 34 Criminal Code 2002 (ACT) s 44 Drugs of Dependence Act 1989 (ACT) s 169 Family Violence Act 2016 (ACT) s 43 |
| Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 |
| Director of Public Prosecutions v Dalgliesh (a pseudonym) | |
| [2017] HCA 41; 262 CLR 428 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Green v The Queen [2011] HCA 49; 244 CLR 462 Hili v the Queen [2010] HCA 45; 242 CLR 520 Jimmy v The Queen (2010) 77 NSWLR 540 Leach v The Queen [2007] HCA 3; 230 CLR 1 Lowe v The Queen [1984] HCA 46; 154 CLR 606 Marinellis v R [2006] NSWCCA 307 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 | |
| O’Brien v The Queen [2015] ACTCA 47 | |
| Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 The Queen v Kilic [2016] HCA 48; 259 CLR 256 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 R v Bandy [2018] ACTSC 261 R v Campbell (No 4) [2019] ACTSC 240 R v Elson [2020] ACTSC 264 R v EN [2020] ACTSC 302 R v Evans; R v Reid [2020] ACTSC 169 R v Formosa [2005] NSWCCA 363 R v Giang [2001] NSWCCA 276 R v Glen (unreported, NSW Court of Criminal Appeal, 19 December 1994) | |
| R v Holliday [2015] ACTSC 222 | |
| R v Jones [2019] ACTSC 124 R v KS [2021] ACTSC 109 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Michalopoulos [2020] ACTSC 27 | |
| R v O’Brien [2014] ACTSC 156 | |
| R v Pangallo (1991) 56 A Crim R 441 R v Pham [2015] HCA 39; 256 CLR 550 R v Pikula [2019] ACTSC 6 R v Porter (No 3) [2022] ACTSC 236 R v Smith [2021] ACTSC 114 R v Summers; R v Miller (No 2) [2019] ACTSC 11 R v Tonna (No 1) [2020] ACTSC 360 R v Tran [1999] NSWCCA 109 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Shaw v The Queen [2008] NSWCCA 58 Stephens v The Queen [2022] HCA 31 Urlich v The Queen [2019] ACTCA 30 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14; 212 CLR 629 | |
| Zdravkovic v Queen [2016] ACTCA 53 | |
| Texts Cited: | Australian Law Reform Commission, Family Violence – A |
| National Legal Response (Final Report No 114, 2010); New | |
| South Wales Law Reform Commission, Family Violence – A | |
| National Legal Response (Final Report No 128, 2010) Explanatory Statement, Crimes Legislation Amendment Bill 2021 (ACT) | |
| Sentencing Advisory Council (Victoria), Sentencing Practices for Breach of Family Violence Intervention Orders (Final Report, June 2009) | |
| Parties: | The Queen (Crown) Kynan Smith (Offender) |
| Representation: | Counsel |
| T Hickey (Crown) S Whybrow (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Boxall Legal (Offender) | |
File Number(s): | SCC 149 of 2021 SCC 150 of 2021 |
| LOUKAS-KARLSSON J: | |
| Introduction | |
| On 23 November 2021 Kynan Leigh Smith (the offender) entered pleas of guilty to the following offences: |
(a)
An offence of contravene family violence order, contrary to s43(2) Family Violence Act 2016 (ACT). The maximum penalty for this offence is five years imprisonment and 500 penalty units.
(b)
An offence of attempt to pervert the course of justice, contrary to s44(1) of the Criminal Code 2002. The maximum penalty for this offence is seven years imprisonment and 700 penalty units.
| Additionally, the following summary charge was transferred from the Magistrates Court: |
(a)
An offence of possess drug of dependence contrary to s 169(1) of the Drugs of Dependence Act 1989. The maximum penalty for this offence is 2 years imprisonment and 50 penalty units.
Agreed Facts
Background – March 2020 offences
| The offender was sentenced in June 2021 to 32 months and 12 days imprisonment for the offence of sexual intercourse without consent, and 21 months and 15 days imprisonment for the offence of contravene FVO, with the total period of imprisonment commencing on 10 December 2020 and ending on 21 April 2024. A non-parole period of 2 years and 4 months was set, ending on 9 April 2023. |
| The facts surrounding those offences were set out by Mossop J in his Honour’s |
| remarks on sentence: see R v Smith [2021] ACTSC 114. These facts were also included in the agreed facts before me. It is appropriate to set out a summary of these facts as they are relevant context to the offences for which the offender is to be sentenced by me. It is self-evident that a Court must not and does not sentence again for previous offences. |
| In late 2018, the offender and the complainant commenced a relationship. On 24 March 2020, the complainant decided to leave the offender. She packed up some of her belongings and took a taxi to a hotel. |
| After she checked in, the complainant sent the offender a text message telling him where she had left him the key to their unit. The offender began calling and texting her. |
| Over the next few hours, the offender sent the complainant numerous text messages. The offender also called the complainant and threatened to kill himself and promised he would change and pleaded with her to return. |
| Upon her return to the unit the offender walked up to her angrily and accused her of taking drugs. Once inside the offender continued to accuse her of using drugs and slapped her on the face. A little while later, the offender got up grabbed her by the front of her jacket and thumped her up and down on the bed as she lay on her back, pushing his clenched fist into her throat which affected her ability to breathe. While he was doing this, he questioned her. This went on for about 10 minutes. Afterwards the offender then pulled down her pants and underpants down and inserted his index and middle fingers inside her vagina. The complainant did not consent to this. |
| Later the offender slapped her on her face. The complainant was too frightened to |
| leave or call anyone for help due to the offender’s previous violence towards her. |
| The next morning, on 25 March 2020, the offender told the complainant that they were going to pick up her things from the hotel. When they came back down with her suitcase the complainant handed him the car keys and told him she would check-out while he put the bags in the car. The complainant approached the receptionist and asked reception to hide her. |
| The offender was subsequently charged, on 27 March 2020, with sexual assault and sentenced for this offence. |
Current Offences
| While the offender was on bail for the above offence, between 27 May 2020 and 10 December 2020 the complainant made contact with the offender by text message. The relationship recommenced and the pair were in contact by text messages and face-to- face contact, in contravention of the FVO. During that period the offender and the complainant discussed the complainant withdrawing her statement to police about the above sexual assault committed by the offender, in exchange for him completing courses focussed on his rehabilitation. The details of these facts are set out below. |
| On about 25 May 2020, the complainant, using an anonymous profile on the website |
| “Plenty of Fish”, identified the offender as being active on that website. The |
| complainant was aware that the offender’s bail conditions and FVO did not permit |
| him to have contact with her. Nevertheless, on 25 May 2020 she contacted the offender. |
| Thereafter the offender and the complainant continued to communicate with one another. By late September 2020, the offender and the complainant were residing with |
| each other at the complainant’s residence. |
| During the relationship, the offender and the complainant both engaged in manipulative and accusatory behaviour towards the other. They were both often |
| paranoid about each other’s activities, alleging transgressions and infidelity on each |
| other’s part. At one point the complainant engaged a private detective to recover her |
| car from the offender and to report his activities to her. |
| On 27 July 2020 the complainant wrote a letter to the ACT Director of Public Prosecutions seeking to withdraw her statement about the March 2020 offences outlined above. In that letter the complainant urged the DPP to discontinue the charges against the offender and (amongst other things), asserted that she had been suffering a dissociative event from 24 March 2020 and for several days following, that she was suffering from untreated anxiety and depression and was not in a fit state to have given the statement on 25 March 2020, and that she and the offender both became physical during the course of fighting on 24 March 2020. |
| On 10 December 2020, the complainant contacted police and complained about the offender being in breach of the FVO. A short time later the offender was arrested and was remanded in custody. |
| On 11 December 2020 the offender was charged with contravening a family violence order. He was refused bail. |
| On 19 December 2020, the complainant spoke to police again and told them that the offender had pressured her into retracting her evidence in relation to the March 2020 offences. She stated that he did this in person and by text messages between May and August 2020. |
| The complainant also alleged that the offender sexually assaulted her during the period 9-10 December 2020. I pause to note that the offender was found not guilty of five counts of sexual assault, one count of attempt sexual intercourse without consent, and one count of forcible confinement by jury verdict on 17 December 2021. |
| During the subsequent trial, on 6 Dec 2021, the complainant gave evidence that each of the statements in her letter (outlined above at [16]) were not true. She also stated that she had drafted the letter without input from the offender. |
| In January 2021, the complainant provided police with her phone to assist with their investigations. Phone data which was collected showed in excess of 50,000 text messages between the offender and the complainant between September 2018 and December 2020. The messages sent by the offender after April 2020 were in |
| contravention of the offender’s bail conditions and FVO. |
| The text messages included messages from the complainant reminding the offender to seek legal advice about the March 2020 charges, requesting he book into the rehabilitation courses he had indicated he would undertake and referencing the letter to the DPP in that context. Various messages show the offender attempting to coerce the complainant into retracting her evidence about the March 2020 incident, including: |
‘Oh yes it can be it all comes down to U I’m telling you I m not doing another days jail’
(27/05/2020 21:26)
‘I’ll do a program on the outside if U fuck off this bullshit I’m not going back I promise you
that U get rid of this bullshit I’ll do any program but I’m not doing no program till U fuck this
off’ (27/05/2020 21:34)
‘I can’t tell me lawyer we been talking so we have to work it out between us bub just come
see me and we talk nothing to worry about’ (28/05/2020 11:53)
‘U need to fuck these charges off and I’ll do what Eva course U want’ (28/05/2020 12:03)
‘Retract it all and I’ll do what I have to it won’t work through the Court’ (28/05/2020 16:03)
‘It has to be done B4 it goes any further bub nothing will happen to U I promise you that omg
U have nothing to worry about bub‘ (28/05/2020 16:42)
‘U have nothing to worry about just say U not going to court and U don’t want the avo bub
and they will drop it U not don’t have to say anything about liein and I’ll get a job and start
my course and find some where to live I’ll do the right thing and Finnish them but it can’t be
done like this if it goes past tuesday where enter ple then it can’t be stopped I told you that’
(29/05/2020 15:14);
‘But he said it will be str8 forward tomorrow just quick but now is when we need to sort this
out the other lawyer said b4 it goes to supreme‘ (20/07/2020 18:55)
‘That’s what the lawyer said but then U go in and make a formal statement he said’(26/07/2020 18:50)
‘That’s why U say U won’t give everdance or U go make another statement he said so it
clears it all up’ (27/07/2020 20:54).
| The agreed facts state that the complainant has not been charged with any offence arising out of any of the facts outlined above concerning the current offences. |
Further Relevant Dates
| On 27 March 2020 police charged the offender with sexual assault. The offender did not appear in court and a warrant was issued for his arrest. |
| On 15 April 2020 police arrested the offender for the March 2020 offences. The offender was granted bail on strict conditions which (among other conditions) included the following: |
7. Not assault, harass, threaten or intimidate [the complainant].
8. Not to contact, directly or indirectly, by any means [the complainant].
9. Not to be within 100 metres of [the complainant].
| On the same date, the Magistrates Court granted the complainant a family violence order which was in force for 12 months. At the time the offender and the complainant were no longer in a relationship. The FVO prohibited the offender from: |
(a) being on the premises where the protected person lives;
…
(c) being on the premises where the protected person is likely to be;
(d) being within 100 meters of the protected person;
(f) contacting the protected person; and
(g) engaging in behaviour that constitutes family violence towards the protected person
| On 25 October 2021, at criminal case conference, the offender offered to plead guilty to both the contravene FVO charge and attempt pervert the course of justice charge in full satisfaction of the indictment. However, the offer was rejected by the prosecution. As I outline below at [111] I made an order that the notes from the criminal case conference be unsealed to resolve disagreement between the parties as to whether an offer had been made by the accused at the criminal case conference. |
| On 23 November 2021, the first day of the trial, the offender pleaded guilty before the jury to the two charges that I am to sentence for. As stated earlier, on 17 December 2021 the jury found the offender not guilty of all other remaining charges on the indictment. |
Victim Impact Statement
| A Victim Impact Statement was tendered. In her statement, the complainant describes |
| the impact of the offender’s behaviour on her throughout their relationship, including |
| the effects on her physical and mental health, and her shame at falling for the |
| offender’s manipulation and intimidation. |
| The Victim Impact Statement includes the following: |
…I cannot express the pressure that I was subjected to, to retract my statement, to save
him at my own cost. At the endless requirements for me to prove myself to him, regardless of the possible effect or consequence to me, prove my devotion, my loyalty, my faithfulness
by doing as I was ordered or suffering the consequences. … I have grieved the relationship,
I have grieved a person that never was, I have grieved a future that was never going to be, I have grieved the person I was before all this. I will never be that person again, I can't go
back to her, I can't replace what I have lost…
| There was some discussion at the sentencing hearing regarding portions of the Victim Impact Statement which were referable to conduct for which I am not sentencing. |
| As agreed by both counsel for the prosecution and defence, it is a matter for the court what weight to give to what is contained in a Victim Impact Statement. |
| Counsel for the offender did not object to the Victim Impact Statement, although counsel pointed to parts of the statement which, in his submission, were in relation to matters not before me (T2.35 19/07/2022). However, counsel for the offender agreed |
| with the prosecution’s submission that these comments provided a background context |
| relevant to the current offending before me. I will take into account matters contained in the Victim Impact Statement in this manner sensibly agreed as between prosecution and counsel for the offender. Counsel for the offender also pointed to a portion of the statement containing assertions which were not accepted by counsel for the offender (that the offender convinced the complainant if she was dead that the charges against |
| him would disappear). Counsel for the offender did not cavil with the prosecution’s submission that the statement expressed the complainant’s feelings about the matter, |
| and can be taken into account as such as an expression of the victim’s feelings and I |
| take the Victim Impact Statement into account on that basis. |
| I have recently discussed the relevant principles concerning Victim Impact Statements in R v Porter (No 3) [2022] ACTSC 236 at [51]-[94]. |
Sentencing and Objective Seriousness
| Broadly in relation to both offences, the prosecution correctly submitted that, first, the offences committed by the offender are serious breaches of the criminal law. Second, the offender is a repeat family violence offender. Third, deterrence is important in sentencing for family violence offences which are unacceptable in any form; and, finally, the court is required to have in mind the maximum penalties and to use the purposes of sentencing to protect domestic partners, involving a sentence directed at the specific deterrence of the offender, and general deterrence to denounce his conduct, deter other would-be offenders and recognise the harm to the victim and the community. |
| Specifically in relation to objective seriousness, concerning the contravene FVO offence, the prosecution emphasised the domestic violence context and the length of time of the breach including living together, arguing that it was a serious example of this offence. Counsel for the offender correctly submitted that the complainant initiated the contact with the offender in breach of the FVO, and this context must form part of the evaluation of the seriousness of the offence (T52.21-22 19/07/2022). |
| Ultimately, counsel for the offender’s submissions in relation to objective seriousness |
| emphasised the mutuality of the offending conduct in relation to both offences. Counsel for the offender compared this context to a different situation wherein a complainant was under duress or physical manipulation by an offender. Nevertheless, as counsel conceded, the mere absence of an aggravating feature is not a mitigating factor. |
| The submissions from the prosecution and counsel for the offender on the topic of objective seriousness were extensive and detailed. While it was agreed by both counsel that the offending occurred in the context of a toxic relationship marked by controlling and abusive behaviour, the prosecution cavilled with counsel for the |
| offender’s submission that the victim’s complicity in the offences reduced the objective |
| seriousness of the offending conduct. Initially, in oral submissions, counsel for the offender relied on the principle of equal justice and the parity principle, and referred to general comments in the decisions of Lowe v The Queen [1984] HCA 46; 154 CLR 606 (Lowe) and Green v The Queen [2011] HCA 49; 244 CLR 462 in this regard. In further written submissions, however, counsel for the offender acknowledged that this principle is not engaged. Counsel for the offender then properly submitted that a prosecutorial discretion to charge someone implicated with a lesser offence, or in this case with no offence at all, is not something the court can consider in terms of trying |
| to address the other person’s legitimate sense of grievance as to what may be unequal |
| treatment, and therefore this situation cannot be understood as unequal treatment in the Lowe or Postiglione sense: see also R v Formosa [2005] NSWCCA 363 at [44]- [50]; Jimmy v The Queen (2010) 77 NSWLR 540 at [119]-[123] and [125]-[203]. |
| Counsel for the offender submitted that while the parity principle per se is not specifically engaged, the complainant has not been charged with any offences notwithstanding that she was criminally implicated in these offences and is therefore neither a co-offender in that sense nor facing any similar charges. Counsel for the offender submitted that this circumstance is nonetheless a relevant consideration to take into account pursuant to s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). |
| Counsel for the offender submitted that the complainant was as interested in having the earlier charges withdrawn as the offender and played the more significant role in the attempt to pervert the course of justice. Counsel for the offender submitted that the Court would not find the complainant was acting under any form of duress or even reluctance when she wrote the letter to the DPP seeking to have the charges against the offender discontinued. Counsel for the offender referred to the language used by the complainant, and noted that she sought no input from the offender to the contents of the letter, drafted it and sent it herself and did not even show him its contents. Counsel for the offender also submitted that while it was acknowledged that it was a somewhat sophisticated and sustained effort to pervert the course of justice, this was only because of the sophistication and lies of the complainant rather than the offender. |
| Counsel for the offender submitted that all the factors outlined above are relevant matters to be taken into account in assessing the criminality of the offender. |
| In response to counsel for the offender’s submission that because the victim engaged |
| in conduct that facilitated his offending, it should make his conduct less objectively serious than other forms of unwanted conduct, the prosecution submitted that while that is true to a limited degree it does not work to lessen the objective seriousness here. The prosecution submitted that this is because of the family violence context |
| relevant to both the offender and complainant’s behaviour. |
| In support of this point, the prosecution outlined, in a general sense, the “complex and pernicious” nature of family violence offending, wherein victims often act contrary to |
| their own interests and welfare. The prosecution submitted the following: |
A feature of family violence, which is most commonly associated with women, is the ‘cycle
of abuse’ which generally progresses through phases including a period of loving and
remorseful behaviour by the perpetrator that seduces the victim to remain in the relationship (which is what happened here). It is also characterised by repeated manipulative and
controlling behaviour which limits, directs and shapes a victim’s thoughts, feelings and
actions. Perpetrators often combine subtle and overt methods to maintain their control over a victim or to have them do their bidding (again as the offender did here: see text messages).
| Relevantly, the prosecution drew the court’s attention to the case of Shaw v The |
| Queen [2008] NSWCCA 58. In this case, Fullerton J (McClellan CJ at CL and Grove J agreeing) at [27] quoted with approval the comments of Simpson J in R v Glen (unreported, NSW Court of Criminal Appeal, 19 December 1994): |
… It is a fact known to the courts and to the community that victims of domestic
violence frequently, and clearly contrary to their own interests and welfare, forgive
their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been he) could attain the victim's forgiveness.
(emphasis added)
| The prosecution submitted that while these remarks were in the context of family violence victims who forgive their perpetrators they are pertinent to the present facts. |
| The prosecution submitted that the offender shouldn’t get the benefit of a lesser |
| sentence for manipulating the victim’s conflicted feelings towards him. |
| The prosecution submitted that the offender’s manipulation of the complainant |
| increases the objective seriousness of the offending conduct. In particular, with regard to the pervert the course of justice charge. The prosecution submitted that the offender manipulated the complainant to write the letter for his own benefit in order to have a sexual assault charge withdrawn. Counsel for the offender submitted that this is the sort of offence objectively where one takes into account the fact that the offender did not write the letter, and the extent that it was sophisticated and serious on the part of the complainant. The prosecution accepted, as counsel for the offender submitted, that the complainant wanted the relationship to continue and that complainant wrote a good letter. However, the prosecution submitted that the offender took advantage of this, |
| arguing that these features of manipulation and taking advantage is the ‘missing link’ in counsel for the offender’s submissions. The prosecution submitted that it is clear |
| from text messages in evidence that the offender had input into the letter and was aware that a more convincing letter would make a difference in helping get the charges |
| dropped. I note in this context that the prosecution also submitted that it “may not arise to an aggravating feature” (T38.29 19/07/2022). |
| Counsel for the offender, whilst accepting these general propositions about the nature of family violence, contended somewhat abstrusely that this does not mean that because elephants are grey and this matter is grey, it is an elephant. Rather, counsel for the offender emphasised the need to look at the specific facts of this offending. Counsel for the offender submitted that the offending was not a one-way street: both the offender and the complainant were knowingly involved in activities which were breaches of the FVO and attempts to pervert the course of justice. Counsel further submitted that the context of the breach involved the complainant purposely seeking out the offender in circumstances where he had not to that point made any contact with |
| her and had, as counsel submitted, “moved on” from the relationship. Counsel |
| submitted that there is evidence in this case of abusive, aggressive, manipulative texts from both of them to each other. |
| Ultimately, in summary, counsel for the offender made the following submission: |
We only have the objective fact that she sought him out, criticised him and abused him for
seemingly moving on, had him move into her house, went around to visit him at his parents’
place and then both of them were involved in writing a letter – sorry, she wrote the letter,
she drafted the letter, she sent the letter. He discussed the letter with her.
He is to be sentenced for those matters. In my submission, her involvement here, her conduct here does not increase his criminality. It does not increase the seriousness of the offence.
| Ultimately in summary the prosecution stated the following concerning the pervert the course of justice offence: |
It’s not her involvement, your Honour, it’s his manipulation of her. That’s what has been lost
here. So in my friend’s submission, in an ordinary offence where the conduct was not
unwanted, absolutely it would lessen the objective seriousness, but not in a family violence context. And if your Honour looks at the messages in our first lot of submissions, he was
promising her he’d stop the courses and he’d do these other things. That’s manipulation.
| Self-evidently, the prosecution did not cavil with the fact that the complainant initiated contact in relation to the contravene FVO offence, nor that the complainant wrote the letter concerning the pervert the cause of justice offence. |
| In relation to the pervert the course of justice charge, the prosecution drew the Court’s |
| attention to the decision of R v Pikula [2019] ACTSC 6 at [14], where Elkaim J referred to some of the principles when considering objective seriousness in relation to a similar offence. These are: the seriousness of the offence the offender attempted to conceal, and the motive for the offender is doing so. The prosecution correctly submitted that on the present facts, the offence was sexual assault without consent, a serious charge. |
| The prosecution further correctly submitted in relation to the contravene FVO charge that this was a serious example of this offence, having occurred over a sustained period of time. The offender moved in with the complainant despite the order prohibiting such contact. The prosecution ultimately submitted that this was not an |
| instance in which an offender contravened an FVO simply by going to someone’s |
| house or calling them on one occasion; rather, the contravention occurred over a period of at least five months. |
| The prosecution submitted that while it was agreed that the complainant initiated contact and that features of duress or physical manipulation were absent, this must be seen in context of the domestic violence and the emotional context to the offending behaviour. Counsel for the offender correctly did not cavil with this characterisation. |
| Further, the prosecution correctly emphasised that regardless of the fact that the complainant made the first contact, it was the offender restrained by the court-ordered FVO prohibiting contact with the protected person and so must be seen in that relevant context. |
| It must be stated that references to low, mid-range and high-range are unlikely to be |
| helpful in this jurisdiction. As has previously been expressed “it is preferable for a |
| sentencing judge to confine themselves to identifying features of the case that inform |
| the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR |
| 103 (Toumo’ua) at [24]. |
| Ultimately despite all the extensive and detailed submissions, both written and oral, by the parties set out above, it boils down to this. |
| First, the complainant’s forgiveness of the offender and initiating contact does not |
| undermine the objective seriousness of his conduct thereafter. Her involvement is part of the factual matrix. The offender is to be sentenced for the seriousness of his conduct and his conduct alone. The relevant identifying features concerning objective seriousness are as follows: |
(a) The breach was initiated by the complainant. (b)
The offence must also be viewed in the broader context of the complexity of their relationship marred by domestic violence as referred to in the agreed facts (T51.20-30 19/07/2022).
(c)
The breach of FVO occurred over a sustained period of time of approximately 5 months.
| Second, similarly, concerning the pervert the course of justice offence, it is common ground that the complainant wrote the letter to the DPP. It is also common ground that the offender wanted the complainant to write the letter. The offender is to be sentenced for the objective seriousness of the offence he committed. He is to be sentenced for his actions and intentions concerning this offence. The relevant identifying features concerning objective seriousness are as follows: |
(a) The domestic violence context to the offending as referred to in the agreed facts (T51.20-30 19/07/2022). (b) While the complainant wanted the relationship to continue and wrote the letter, the text messages outlined in the agreed facts set out the offender’s
clear encouragement and insistence.
(c) Also relevant is the seriousness of the offence that the offender attempted to conceal being sexual intercourse without consent, and his motive being to avoid jail. (d) I also note the text messages dated 28 May 2020 concerning retraction of the allegations where the complainant indicated she “would not
compromise on morals for [the offender] ever again and [the offender]
should never have asked” (T59.19-20 19/07/2022). Whilst at the same time
I also take into account the texts of 6-7 July 2020 later referred to at pages 114 and 115 of the trial transcript dated 29 November 2021 referred to by counsel for the offender, of the complainant recommending a lawyer and being proactive in that regard (T70.32-33 19/07/2022).
| The two offences are both objectively serious offences. The identifying features for |
| each offence are set out above: Toumo’ua. |
| A court may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: The |
| Queen v Olbrich [1999] HCA 54; 199 CLR 270 (Olbrich) at [27] – [28]; Leach v The |
| Queen [2007] HCA 3; 230 CLR 1 at [41]; Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) at [64], [66]. The offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour: Filippou at [64], [66]; Olbrich |
| at [27] – [28]. |
| Framing the fact-finding process by using terms such as the onus and standard of proof may give a misleading impression that all disputed issues of fact related to sentencing must be resolved for or against the offender: Weininger v The Queen [2003] HCA 14; 212 CLR 629 (Weininger) at [19]. Some disputed issues of fact cannot be resolved in a way that goes either to increase or decrease the sentence that is to be imposed: Weininger at [19]. It is sometimes not possible for the court to ascertain everything that is relevant. Where that occurs the court must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard: Filippou at [70]. |
| These are the principles that I have applied in coming to my conclusion as to objective seriousness. |
Defence Tender Bundle
| Counsel for the offender tendered a Defence Tender Bundle containing three certificates of completion on behalf of the offender. |
(a) Keeping Myself Well, dated 04/03/2021 (b) Conflict Resolution, dated 04/03/2021 (c) Goal Setting, dated 04/03/2021
| The Defence Tender Bundle included, additionally, two sets of transcripts containing examination-in-chief and cross examination of the complainant during the trial proceedings referred to earlier. |
Subjective Circumstances
| In evidence before me is a pre-sentence report (PSR) prepared for the offender which |
| includes the following in relation to the offender’s subjective circumstances. |
| The offender was born and raised in Canberra as one of three children. He reported a positive childhood and maintains a positive relationship with his family. |
| The offender reported that he remains single following the dissolution of his relationship with the complainant of the offences before the court. There is a current two-year FVO, dated 2 July 2021, for the protection of the complainant in which the offender is named as the respondent, and it includes non-contact conditions. |
| The offender has been incarcerated at the AMC since 11 December 2020. Prior to this |
| he was reportedly residing at his parent’s property for about 12 months. The offender |
| expressed an intention to return to this address upon his release from custody, and his mother confirmed she was supportive of this plan. This address was previously found suitable for the purpose of an ICO during the preparation of a previous PSR. The report |
| author noted at the time of writing that the offender’s earliest release date is 9 April |
| 2023, requiring a suitability assessment closer to this time. |
Education and employment
| The offender reported that he completed year 10 and went on to work as a brick labourer for his father for around three and a half years. He later became a qualified car spray painter and has remained in the industry since. He stated to the PSR author that he was operating his own spray painting business for around six months before his incarceration in 2020. A previous PSR dated 1 June 2021 indicated that the offender was also supplementing his business income with Jobseeker payments from Centrelink. At the time of writing of the PSR report, the offender was employed within |
| the AMC as a ‘sweeper’ and expressed satisfaction with this role. |
Financial situation
| The offender claimed he was financially stable prior to his incarceration and had some savings in the bank which have since been depleted while in custody. He advised his mother has provided him financial assistance whilst he has been incarcerated. The offender stated that his outstanding fines had been paid off by the time he was in custody. |
Companions
| The offender acknowledged that he had some anti-social associates who he planned to avoid upon release from the AMC. He indicated that he had some pro-social friendships that would resume once he was back in the community. |
Alcohol and Drug use
| A previous PSR dated 1 June 2021 indicated the offender reported a past problem with alcohol consumption that began at the age of 16 and lasted until his early 20s. The offender stated that during this time, he would consume half a case of beer daily. The offender claimed that he no longer has a problem with alcohol and, whilst in the |
| community, only consumes a “couple of beers” after work each day. |
| The PSR dated 1 June 2021 further advised that the offender reported that his illicit substance use began with methylamphetamine at the age of 26 or 28 years old, where he would use anywhere from one point to one gram every couple of days. The offender reported that he continued this use on and off for 10 years. The offender stated that he attended a rehabilitation program in 2011, however he relapsed one year after completing the program. |
| The offender advised that he is currently receiving the Buvidal injection which is typically an opioid pharmacotherapy treatment. The PSR authors note that it was unclear why the offender was initially prescribed this medication as he claimed to have only tried heroin a number of times when he was around 25 years old and did not become addicted to the substance. The offender claimed that he was initially prescribed with methadone upon his incarceration but was later changed to Buvidal. The offender indicated the Buvidal treatment was effective for treating his methamphetamine addiction and that he remained abstinent from illicit substances while in the AMC. The offender advised that he would be willing to complete drug and alcohol counselling upon his release into the community although he would prefer not to enter a residential rehabilitation program. The offender suggested that the significant length of time he spent in custody was akin to a residential rehabilitation stay and that he would prefer to return to paid employment upon his release. |
Medical, Emotional and Mental Health
| The offender disclosed that he has a type of cancer on his lip and that a decision that not yet been made about what time of treatment would be required. Further, the offender stated that he had a cyst in his brain and was still undergoing medical investigations to determine whether the growth was cancerous and what type of treatment would be necessary. He stated the cyst was causing some symptoms such as headaches. |
| The offender disclosed a diagnosis of depression although indicated that his mental health has improved during his incarceration, due to ceasing illicit substance use and engaging in regular exercise. The offender stated that he was prescribed medication for his mental health which he planned to continue long term. |
| The PSR dated 1 June 2021 indicated a family member raised concerns about a previous history of suicide attempts by the offender. During the preparation of this report the offender denied any prior self-harm behaviour or suicide attempts and was unsure what the family member was referring to. |
| Canberra Health Services provided no formal diagnosis for Mr Smith. They verified his ongoing prescribed pharmacotherapy treatment and mental health medications. |
Attitude to offences
| The PSR author noted that the offender demonstrated a lack of any empathy towards the complainant, appeared to see himself as a victim of sorts and at times, referred to the complainant in a derogatory manner. The offender told the PSR author he felt 'not guilty' of the sex offence he was currently imprisoned for which involves the same complainant. He claimed he only pleaded guilty because his lawyer at the time recommended this to him. |
| It is noted that the previous PSR, dated 1 June 2021, advised that although the |
| offender disagreed with the Statement of Facts and details from the complainant’s |
| statement, he had agreed the offence had occurred. When challenged about this the offender stated he would have only made those comments during the PSR interview on the recommendation of legal advice. |
| Despite this attitude he claimed he was willing to complete offence specific treatment including the Sex Offender Treatment Program and Domestic and Family Abuse Program or equivalent. |
| In relation to the offence of contravention of family violence order, the offender acknowledged he contravened the FVO by being in company of the complainant although minimised his part in this, stating the complainant initiated them getting back together. |
| In relation to the offence of attempt to pervert the course of justice, the PSR author noted that the offender failed to accept responsibility for this charge, stating the |
| complainant told him if he did ‘all the courses’ she would drop the charges against him |
| and that she wrote the letter to the DDP of her own volition. |
| With regard to the offence of possess drug of dependence, the offender accepted the Statement of Facts as they related to this charge and acknowledged he was using drugs at the time of offending. |
Remorse
| The pre-sentence report author noted that the offender did not appear to display remorse for his actions. Instead, he shifted blame from himself to the complainant. |
| I do note counsel for the offender’s submission that comments made by the offender |
| to the pre-sentence report authors regarding remorse must be understood in light of the offender undergoing a two-week trial on contested allegations which were not proved, and for which he was ultimately found not guilty. |
| The offender has not expressed any remorse for his offending in relation to the two offences before me. I must sentence the offender on the basis that no remorse has been demonstrated. |
Conditional Liberty
| The offender was on bail at the time the offences were committed. |
| In R v Tran [1999] NSWCCA 109 at [15], Wood CJ at CL stated: |
Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.
| Conditional liberty is relevant to the determination of the appropriate punishment as it is an aggravating factor on sentence: see R v Bandy [2018] ACTSC 261. |
| The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as such. |
Criminal History
| The offender has a significant criminal history, including the previous conviction for sexual intercourse without consent referred to above. The record also includes common assault, previous contravene FVO and damage to property. |
| In relation to the breach of the FVO, it is clear that this was not the offender’s first |
| serious family violence offence. This is also not his first offence against this same |
| victim. The prosecution pointed to the offender’s criminal history, with his first family |
| violence offence occurring in 2006, and offences including family violence involving other partners. |
| Counsel for the offender correctly conceded that the offender is not entitled to leniency |
| based on his criminal history. Counsel for the offender conceded that the offender “has a significant criminal history particularly in the context of domestic violence” (T37.31- |
| 33 19/07/2022). |
| The relevant principles concerning how a court may take into account an offender’s |
| criminal history in sentencing were set out by the NSW Court of Criminal Appeal in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 (McNaughton). These include first, that the criminal law principle of proportionality requires that a sentence should neither exceed nor be less than the gravity of the crime, having regard to the objective circumstances (Veen v The Queen (No 2) (1988) 164 CLR 465). Second, prior offending is not an objective circumstance for the purposes of the application of the proportionality principle; third, prior convictions are relevant to deciding where a sentence should lie, within the boundary set by the objective circumstances. |
| As explained in Weininger at [32]: |
Taking all aspects, both positive and negative, of an offender’s known character and
antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration
| I will take into account the offender’s record in the manner set out in the authorities |
| discussed above. |
Section 34B of the Crimes (Sentencing) Act 2005
| The prosecution submitted that the court must have regard to s34B of the Sentencing Act as this is a family violence offence. |
| The prosecution noted that the provision was inserted to remind the Court of the |
| legislature’s commitment and intent for family violence matters to be treated as serious |
| matters with complex but well documented dynamics that are not present in other types of offending. In relation to the present facts, the prosecution referred to the |
| “counterintuitive behaviour of a victim who has been violently beaten by [the offender] |
| and then sexually assaulted by him to want to go back to him” as “not the realm of a |
| normal healthy relationship, but is unfortunately not uncommon in domestic violence |
| contexts”. |
| Section 34B inserted the following: |
34B Sentencing—family violence offences
(1) In deciding how an offender should be sentenced for a family violence offence, a court must consider the nature of family violence and the context of the offending, including the following:
(a) the matters mentioned in the preamble to the Family Violence Act 2016;
(b) whether the offending occurred at the home of the victim, offender or
another person;
(c) whether the offending occurred when a child was present;
(d) if the offence is a serious family violence offence—whether the offender has
1 or more other convictions for serious family violence offences.
(2) A court must not reduce the severity of a sentence it would otherwise have
imposed because—
(a) the offence is a family violence offence; or
(b) a family violence order under the Family Violence Act 2016 or a protection order under the Domestic Violence and Protection Orders Act 2008 (repealed) is in force against the offender in relation to the family violence offence
| The preamble includes the following: |
(a) anyone can be a victim of family violence: it occurs in all areas of society, regardless
of location, socioeconomic and health status, age, culture, gender, sexual identity, ability,
ethnicity or religion;
(b) family violence is predominantly committed by men against women and children; (c) family violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years;
(d) children exposed to family violence are particularly vulnerable and the exposure may
have a serious impact on their current and future physical, psychological and emotional
wellbeing.
| The explanatory statement makes clear that the new section was not intended to |
| reduce a judicial officer’s discretion when considering sentencing factors, but to ensure |
| they consider additional factors (see p 22). |
| A question arose during the sentencing hearing about whether the provision applies to these proceedings. The prosecution submitted that it does as it is procedural. In response, counsel for the offender noted that the amendment should not be seen to have a retrospective effect (T70.4-5 19/07/2022). |
| The High Court recently considered the applicability of retrospective legislation in Stephens v The Queen [2022] HCA 31. At [33], the majority stated the following: |
The underlying principle concerning how to interpret the temporal operation of legislation is based on reasonable expectations
| The majority held that the distinction between substantive and procedural law “can … distract from the underlying principle” (at [32]). The presumption against retrospective |
| operation is more likely to apply in circumstances where the law disturbs such expectations. |
| In my view, as I explained at the sentencing hearing concerning the applicability of s 34B, it is something of a moot point as courts have recognised over time the same matters as the matters set out by the legislation |
| In any event, the prosecution submitted that s 34B does not justify a higher penalty (T74.36-41 19/07/2022). |
Pleas of Guilty
| Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. |
| The offender entered pleas of guilty on the first day of the trial. |
| During the sentencing hearing on 19 July 2022 there was some disagreement between counsel about whether there had in fact been an offer by the offender to plead guilty to the charges before me prior to the first day of the trial, at the criminal case conference. Consequently, I made an order directing that the notes from the criminal case conference be unsealed. The notes revealed that the offender indicated at the conference on 25 October 2021 that he would plead guilty to both the charges in full satisfaction of the indictment. This offer was refused by the prosecution. |
| The prosecution initially submitted that notwithstanding this offer from the offender to plead guilty to these two charges in full satisfaction of the indictment at the conference, the plea cannot be regarded as an early plea; rather, it was a plea at a late stage. |
| I referred counsel to the Court of Appeal decision of Urlich v The Queen [2019] ACTCA |
| 30. As the court stated at [77], the authorities suggest that account “must be taken of an unaccepted offer to plead which matches the verdict at trial”. |
| The prosecution conceded that the plea, if it had been accepted, would have been entered at the case conference. |
| In Blundell v The Queen [2019] ACTCA 34 at [12], the ACT Court of Appeal stated that |
| the utilitarian value of pleas indicated at criminal case conferencing is such that “a |
| discount in excess of 10%, and almost always within the range of 15 to 20%, is |
| required”. |
| Counsel for the offender submitted that a discount of approximately 15% was appropriate in these circumstances. Prosecution did not cavil with this figure. |
| The prosecution submitted that this case can be described as “overwhelmingly strong”. |
| The prosecution submitted in relation to both charges that the offender was caught text messaging the victim and there are discussions contained in text messages involving discussions regarding the complainant withdrawing the charges. Counsel for the |
| offender disagreed with the prosecution’s submission that the case was |
| overwhelmingly strong for the purposes of s 35(4) of the Sentencing Act. |
| Counsel for the offender submitted the following: |
I accept that it was a strong case. I do not concede overwhelmingly for the purposes of 35(4). 15 per cent does not fall foul of making a significant reduction, even if it was overwhelmingly strong. Noting that 10 per cent plea on the day was made earlier. If it had
been accepted, one could imagine it would’ve been quickly then followed up by being
arraigned and proceeding to sentence.
Fifteen to twenty per cent at plea at case conference I accept in relation to the extent that
subsection (4) might come into play and the circumstances that it wouldn’t fall in 20 per cent but it shouldn’t be less than 15 per cent and that does not fall foul of 35(4). And it even, to
some extent, recognises that it was a strong-ish case. Strong case in relation certainly to
the breach of FVO. And not so in much for the pervert the course of justice. It’s a strong
case but we have sworn evidence from the complainant that she wrote the letter. She did
not run it by him. Et cetera et cetera. But it’s still a strong case and I’m only talking about a
small percentage difference. So I would be submitting, your Honour would be justified and
it’s appropriate in all of the circumstances to reduce because of the plea of guilty and to the
extent that admissions are made, it doesn’t really arise in the trial because he was acquitted
of the other offences, but there was a facilitation by text messages going in, CCTV, identity
not being in dispute for certain aspects that a 15 per cent reduction is certainly within the –
bang smack in the middle of what one would expect for a plea at case conference. Albeit late. And I do note that the Crown know themselves, have indicated in the background that there was earlier a plea of guilty to the breach of a family violence order. And then a multiple of other offences were laid relating to this same conduct and the plea was withdrawn. And
that’s at a time when, no doubt, people are looking to see are there any defences, et cetera.
But I don’t add that in to the mix other than to say what the answer was. My submission,
your Honour, is 15 per cent reduction is appropriate
| In accordance with s 35 I would allow a 15% mathematical discount for the plea of guilty. |
| As to s 35(4), there was a somewhat arid debate as to whether the cases concerning |
| the two offences were “very strong” as opposed to “overwhelmingly strong”. Clearly |
| the cases were very strong against the offender. I am not persuaded to apply the epithet overwhelming, although it must be said that both cases approached such nomenclature. See also Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [44] regarding the utilitarian value even in an overwhelmingly strong case. |
Time in Custody
| As a result of being charged with contravention of the FVO, the offender was remanded in custody on 11 December 2020. He subsequently pleaded guilty to the March 2020 assault and was sentenced to a term of imprisonment of 3 years 8 months and 12 days, backdated to 10 December 2020. |
| Accordingly, the offender has spent no time in custody strictly referable to these offences. |
Comparable Cases
| 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. 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]: |
[C]onsiderations 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.
| 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].
| I was referred to the following cases by the prosecution: | ||
|
the offenders kicked and punched the victim and caused wounds to the victim’s
body. The offender later attended the Canberra Hospital and told the victim that he would get him his vehicle back if he dropped his statement to the police. The
victim, feeling frightened and unsafe, agreed to the offender’s request. The
offender was sentenced to 18 months imprisonment for the attempt to pervert
course of justice charge, reflecting a 10% guilty plea discount.Counsel for the offender submitted that this was a more serious example of the offence than on the present facts.
(b)
R v EN [2020] ACTSC 302 (EN) involved a victim and offender who were in a relationship for approximately nine years. The relationship ended and the victim took out an FVO against the offender prohibiting contact. The offender emailed the victim and was arrested. Subsequently, the offender regularly contacted his 18-year-old son to have him provide a sworn statement saying the son sent the
email from the offender’s account while the offender slept. The victim later
contacted the police about 258 twitter posts related to the victim and the relationship between the victim and the offender. The posts revealed specific
details of the victim, her children, her new partner, and her new partner’s children. The offender also made contact with the victim’s new partner on Facebook. This
constituted the stalking charge and also breached the FVO. The offender was sentenced to 10 months imprisonment for the attempt to pervert the course of justice charge, reflecting a 20% discount on account of the plea of guilty, and nine months each on 2 counts of contravene FVO reflecting a 25% discount on account of the plea of guilty. The sentence was suspended after a period of five months upon the entry into a good behaviour order for two years.
(c) R v Jones [2019] ACTSC 124 (Jones) involved a 15-year-old victim and 25-year- old offender. They considered themselves in a relationship and frequently engaged in sexual activity and methylamphetamine use. The victim became pregnant. On two separate occasions the offender hit the victim in the face causing injury. On a later occasion, the offender struck the victim with a backhand closed fist to the abdomen. After that common assault, the victim participated in an interview with police. Whilst in custody, the offender got his father to obtain the victim’s number. The offender then called the victim and asked her not to come to
court “ever”. She agreed. The next day, the offender told the victim that he was
going to plead not guilty and she said that she would not attend court and the
offender responded “yeah good. You fucking … you stick to your word, but, all
right? Don’t fucking let me down”. The next day the offender confirmed with the
victim he had yet to enter a plea, and that she had told the prosecutors that she would not give evidence. She confirmed that she would not give evidence but expressed some uncertainty. The offender reiterated that she should not give evidence. The sentencing judge found the offending to be at the lower end of objective seriousness as it did not involve the delivery of a serious threat, it was unlikely to have overborne the victim as the relationship was over and the offender was incarcerated at the time, and it was unlikely to have a significant impact on the administration of justice as the complainant had already given her evidence- in-chief interview. The offender was sentenced to 10 months imprisonment for the attempt to pervert the course of justice charge, reflecting a discount of approximately 16% for the guilty plea.
Counsel for the offender submitted that the sentences imposed by this court in EN and Jones provide a useful comparison for this matter. Both occurred in a Family Violence context. It was submitted by counsel for the offender that the circumstances of this case make the offending less serious than in those cases.
Counsel for the offender submitted that the seriousness of the facts in EN can be
distinguished as there was only one ‘moving’ party in that case. In the case
currently before me, counsel for the offender emphasised the behaviour by both the offender and the complainant amounting to the conduct of perverting the course of justice, each for their own benefit. However, counsel conceded that the facts in EN involved compelling and favourable subjective circumstances which are absent on the facts of the case before me in relation to this offender.
Counsel for the offender submitted in relation to Jones that the facts of the offending involved overbearing conduct and the use of a position of power by the offender, while the case before me involves the aspect of mutuality.
In relation to both cases, the prosecution submitted that the pervert the course of justice offence is more serious on the present facts than the facts in those cases, as the offending occurred over a longer period of time. Further, the prosecution submitted that these were one-off offences and the offenders in those cases did
not have the “poor or appalling background” of the offender before me.
(d) R v Summers; R v Miller (No 2) [2019] ACTSC 11 involved the offender’s mother, who was the primary caregiver of the offender’s child since birth and had sole parental responsibility for the child. The relationship deteriorated to the point of
little or no contact. The offender’s grandmother and her husband took the child to
visit the offenders and the offenders took the child during the visit, through deception. The offenders were charged with unlawfully taking a child by deception.
Approximately 6 months later, the offender’s grandmother visited the offenders,
and after dinner the offender became very upset and agitated towards her. He
asked her to “put a stop to all this by changing [her] statement”. She agreed to do
so because she was too frightened to refuse. Murrell CJ stated at [34] that while general deterrence was an important sentencing consideration it was diminished
in this case due to the offender’s mental health condition. Specific deterrence was a relevant consideration in that case due to the offender’s criminal history. The
offender was sentenced to 12 months imprisonment for the attempt to pervert the course of justice charge, fully suspended upon the entry into a good behaviour order for the period of sentence.
Counsel for the offender submitted that this was also a more serious example of the offence, pointing to the involvement of children and threats of kidnapping.
(e) R v Holliday [2015] ACTSC 222 involved an offender on remand in the AMC awaiting sentence for sex offences against two males. The offender incited another inmate to kidnap the two respective males’ brothers. This was to force
them to recite a prepared script designed to exculpate the offender for the offences for which he was awaiting sentence and to record that recitation and provide the recording to his lawyer and apply to withdraw his pleas of guilty. The offender hoped that the DPP would withdraw the charges in light of those recordings. The offender prepared a number of written documents seeking assistance with the plan and setting out the scenarios he wanted the proposed victims to recite while being recorded. The offender was sentenced to 18 months imprisonment for the attempt to pervert the course of justice charge.
(f) R v O’Brien [2014] ACTSC 156 involved an offender who sold cocaine to friends, acquaintances, and the partner of his victim. The police, acting on information provided by the victim, found $39,900 in one bag and 931g of cocaine in another
under the offender’s neighbour’s house. Further, on one occasion the offender
choked the victim in front of her child. Later again, the offender punched the victim in the face while they were in his car. The offender then followed the victim into the house and engaged in a sustained violent attack over several hours resulting in significant soft tissue injuries. The offender physically restrained the victim for over 24 hours and forced her to take prescription sedatives. The offender took the victim to the hospital eventually and encouraged the victim to tell staff she sustained the injuries at the Hellenic club. The victim told the truth and the offender was later arrested.
The offender later rang the victim from the AMC and suggest she not attend his trial for unlawful confinement. The offender told the victim that the DPP could not pursue the case without her. He told her that she did not have to attend court and she could simply not show up. He also suggested that she go to a psychologist and say that she was in no fit state to be giving statements when she was interviewed by police. Later, the offender has a further telephone conversation with the victim where he encouraged her to decline to answer questions at any trial. The offender also knew the victim was vulnerable at the time as she was short of money. The offender was making arrangements for the victim to be supplied with money while he was in custody. The offender was sentenced to 19 months imprisonment for the attempt to pervert the course of justice charge, reflecting a 10% guilty plea discount.
| In relation to the contravene FVO offence, neither counsel specifically brought the | ||||
| court’s attention to comparable cases at the sentencing hearing, although counsel | ||||
| noted that both EN and Jones occurred in a family violence context. | ||||
| The following cases provide a useful yardstick in relation to offending of this nature: | ||||
|
attending the victim’s residence on two occasions and banging on the door while
she was sleeping. The offender returned a short time later and pulled the flyscreen off her bedroom window, waking her. The offender accused her of having a man in the room. The victim told him not to come in and leave and he ran away. He returned again, this time throwing a brick through the window, and smashing a class in her room. The second breach involved the offender sitting in a vehicle and yelling abuse to the victim. The victim ran across the road and the offender hit her with her car, causing the victim to be trapped under the car and dragged forward until the offender stopped. The offender was sentenced to five months imprisonment for the first breach, reflecting just above a 25% discount for the guilty plea, and 3 months for the second breach, reflecting a 25% discount for the guilty plea.
(c)
R v Campbell (No 4) [2019] ACTSC 240 involved the offender and the complainant engaging in a drug deal at a KFC outlet in Fyshwick, Canberra. The complainant drove with the offender and another person to the KFC for the purposes of this drug deal. The offender was subject to an FVO with the complainant at the time. It was apparent that the complainant consented to the breach, and the offending was accordingly in the low range of objective seriousness. The offender was sentenced to a 3-month good behaviour order for the breach of FVO, noting that the offender was also sentenced for other offences including aggravated robbery, unauthorised use of a prohibited weapon, wounding, and assault occasioning actual bodily harm.
| I further note that on the day of sentence hand down, the prosecution forwarded a table of comparable cases including R v Michalopoulos [2020] ACTSC 27, R v Smith [2021] ACTSC 114, Elson, and R v KS [2021] ACTSC 109. |
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. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the complainant, and rehabilitation are important sentencing considerations. |
| As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357. |
| The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that the contravene FVO offence does not necessarily cross the s 10 threshold, in the context of offending where the contact was not initiated by the offender but was rather |
| ‘encouraged’, voluntarily, by the complainant, and there was a mutuality. |
| However, while counsel for the offender initially submitted that a sentence of imprisonment would not be appropriate for the contravene FVO charge, taking into account the relevant circumstances as outlined above, counsel later conceded in oral submissions that in light of other factors, including the offender being on conditional |
| liberty at the time of the offence, the offender’s prior criminal history, and the lack of |
| remorse, this court may take the view that the s 10 threshold has been crossed. I have taken that view in light of the facts in this case. |
| Offences such as perverting the course of justice require strong deterrent sentences. |
| As stated in R v Pangallo (1991) 56 A Crim R 441 at [443], they “strike at the very heart of the justice system”: see also Marinellis v R [2006] NSWCCA 307. |
| In relation to this offence, it was sensibly conceded by counsel for the offender that it will be exceptional cases where a sentence of imprisonment is deemed to be not appropriate, referring to the case of R v Giang [2001] NSWCCA 276. It was not in contention that the s 10 threshold had been crossed in relation to this offence. |
| In this case, in relation to the contravene FVO offence and the pervert the course of justice offence, an alternative to full-time custody is not appropriate in my view because of the seriousness of the offences discussed above. |
| Counsel for the offender and the prosecution correctly submitted that in relation to both charges, the context of these offences should recognise a degree of concurrency, as they occurred over the same period, despite being distinct offences (T47.29-31, T66.43-44 19/07/2022). There will be an appropriate level of concurrency discussed below. |
| Counsel for the offender submitted that the offender is already serving a lengthy sentence of imprisonment with a non-parole period, of approximately 70% of the head sentence. Counsel submitted that if there is to be any further period of imprisonment imposed, this should involve recognition of the desirability of the offender being subject to a longer period of supervision on parole. Counsel for the offender also submitted that this court should take into account delays in sentencing and the fact that the offender has a period of custody remaining for a separate offence. I take these matters into account. |
| Counsel for the offender made oral submissions concerning the length and nature of the sentence imposed. Counsel stated the following: |
In my submission, your Honour might well find that this is a matter where 12 months imprisonment is not outside of either too lenient or too serious. Let us say for the point of argument, your Honour, that you then have, on my submission and I am not trying to lead your Honour up any garden paths, but then 12 months arguably for that, six months arguably for the other one.
| I note the following with respect to domestic violence generally. In The Queen v Kilic [2016] HCA 48; 259 CLR 256, the High Court has recognised a societal shift in relation to domestic violence. The court said the following at [21]: |
… current sentencing practices for offences involving domestic violence depart from past
sentencing practices for this category of offence because of changes in societal attitudes to
domestic relations
| Further, as stated by the Sentencing Advisory Council (Victoria) in their Sentencing Practices for Breach of Family Violence Intervention Orders: Final Report (2009): |
Clearly, courts may generally take into account the contribution of the victim to any breach of intervention order. However, given the unique dynamics of family violence situations, courts need to be cautious in assessing the degree to which victim behaviour may mitigate the seriousness of the offence.
| Similarly, the Australian Law Reform Commission, in association with the NSW Law |
| Reform Commission, in its Family Violence – A National Legal Response: Final Report, |
| discusses whether and how “consent” to breach of protection orders, by the protected |
| person, may be a relevant factor in mitigation on sentencing. |
| The Commissions conclude that a victim’s consent to prohibited contact is a relevant |
| factor in sentencing. The question of whether the victim initiated contact in breach of a court order prohibiting such contact is a relevant, although not necessarily mitigating, consideration in consideration all the circumstances of the offence (p 531). However, the report noted the following at [12.90] |
The Commissions do not agree that allowing a court to take into account all of the circumstances of a breach of protection order amounts to making a victim accountable for a
respondent’s breach of a protection order. The responsibility for obeying a court order
remains on the respondent to the order. A victim’s free and voluntary consent to contact
prohibited by a protection order is not relevant to the guilt of the respondent in breaching the
order—but it is relevant in determining the objective seriousness of the particular offence
and therefore the sentence that ought to be imposed by the court. To disallow unequivocally the consideration of such factors in sentencing would be unfair to those being sentenced for breach of protection orders.
| The matters noted above by the Victorian Sentencing Advisory Council and the Australian and NSW Law Reform Commissions are matters that courts are cognisant of and matters that are taken into account in determining objective seriousness as I discussed above. |
| 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 Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38. |
| In relation to concurrency, I refer to the following passage from O’Brien v The Queen |
| [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27]: |
[W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.]
| The prosecution correctly submitted that a full-time sentence of imprisonment is necessary to punish the offender, to deter him and others from committing this type of offence, and to recognise the harm to the victim and to denounce the conduct. |
| The prosecution further correctly submitted that general deterrence is important in this matter. The prosecution submitted that specific deterrence is of particular importance. |
| I agree that general and specific deterrence are important in the case of the offender. |
Rehabilitation
| On the evidence, the offender’s prospects for rehabilitation are very much guarded. Counsel for the offender did not cavil with the prosecution’s characterisation of the |
offender’s limited prospects of rehabilitation (T68.6-11 19/07/2022).
Sentence
| In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and subjective matters of the offender. |
| The appropriate sentence for the offence of contravene FVO is 12 months imprisonment, reduced to 10 months on account of an approximately 15% discount for the plea of guilty. The appropriate sentence for the offence of pervert the course of justice is 17 months imprisonment, reduced to 14 months and 13 days on account of a 15% discount for the plea of guilty. The offence will be backdated to commence on 9 February 2023 as a matter of totality. |
| The sentence allows for three months concurrency as between the offence for pervert the course of justice and the breach of FVO offence. |
Orders
| I make the following orders: |
(a) I record convictions in relation to the offences. (b) In respect of the offence of perverting the course of justice (SCCAN2021/106) the offender is sentenced to 14 months and 13 days imprisonment commencing on 9 February 2023 and ending on 21 April 2024. (c) In respect of the offence of contravene family violence order (CC2021/4483), the offender is sentenced to 10 months imprisonment commencing on 22 January 2024 and ending on 21 November 2024. (d) In respect of the transferred offence of possessing drug of dependence (CC2020/14252) the offender is sentenced to the rising of the court. (e) I set a non-parole period of 15 months commencing from 9 February 2023. The offender will be eligible to be released on parole on 8 May 2024. I certify that the preceding one hundred and fifty-four [154] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas- Karlsson.
Associate: Rebecca Emder
Date: 14 September 2022
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