Roncevic v Boxx

[2015] ACTSC 53

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: 

Kirk v Hicks

Citation: 

[2024] ACTSC 363

Hearing Date: 

24 October 2024

Decision Date: 

15 November 2024

Before: 

Mossop J

Decision: 

See [122]

Catchwords: 

APPEAL – CRIMINAL LAW – Sentence – charge of stalking –

evidence that appellant suffered from Autism Spectrum Disorder

not before magistrate – whether absence of evidence describing

mental health condition of appellant resulted in a miscarriage of
justice

Legislation Cited: 

Crimes Act 1900 (ACT), s 35
Evidence Act 2011 (ACT)
Magistrates Court Act 1930 (ACT), ss 207, 208(1)(d), 208(1)(e),
214(3)
Personal Violence Act 2016 (ACT), s 35(2)

Cases Cited: 

AK v The Queen [2022] NSWCCA 175; 300 A Crim R 559
Green v R [2022] NSWCCA 230
Kristiansen v Yeats [2022] ACTSC 351
Nudd v The Queen [2006] HCA 9; 80 ALJR 614

O’Rafferty v R [2024] NSWCCA 189

Roncevic v Boxx [2015] ACTSC 53
R v Verdins [2007] VSCA 102; 169 A Crim R 581
Shortland v R [2024] NSWCCA 174

TKWJ v The Queen [2002] HCA 46; 212 CLR 124

Parties: 

John Owen Kirk (Appellant)
Samuel James Hicks (Respondent)

Representation: 

Counsel

K Ginges (Appellant)

M Howe (Respondent)

Solicitors

Hugo Law Group (Appellant)
ACT Director of Public Prosecutions (Respondent)

File Number: 

SCA 13 of 2024

Decision Under Appeal: 

Court/Tribunal:	Magistrates Court of the ACT
Before:	Chief Magistrate Walker
Date of Decision:	19 January 2024
Case Title:	Hicks v Kirk

Court File Numbers: CAN 4585/2023

CAN 10030/2023

CAN 10031/2023

MOSSOP J:

Introduction

1․	The appellant is John Owen Kirk. He appeals against sentences imposed by the
Magistrates Court in relation to convictions for aggravated stalking, contrary to s 35 of
the Crimes Act 1900 (ACT), and two charges of contravention of a protection order,
contrary to s 35(2) of the Personal Violence Act 2016 (ACT). Each charge carried a
maximum custodial penalty of five years’ imprisonment. The personal violence offences
could also be punished by fine of up to $80,000.
2․	On 19 January 2024, a magistrate made the following orders:

a)	On charge [CAN 4585/2023], John Owen Kirk is sentenced to imprisonment for three years from 19 January 2024 to 18 January 2027.
b)	On charge [CAN 10030/2023], John Owen Kirk is sentenced to imprisonment for nine months from 19 January 2024 to 18 September 2024.
c)	On charge [CAN 10031/2023], John Owen Kirk is sentenced to imprisonment for twelve months from 19 July 2026 to 18 July 2027.
d)	A head sentence of three years and six months [is imposed] with a non-parole period of twenty-two months from 19 January 2024 to 18 November 2025.

Grounds of appeal

3․	The appellant appeals from all orders imposed by the magistrate on the following
grounds:

a)

The learned [magistrate] erred in imposing partly-cumulative sentences of 6 months between charges CAN 10031/2023 and CAN 4585/2023 in circumstances where:

i.	The existence of the Personal Protection Order the subject of charge CAN 10031/2023 was relied upon as an aggravating feature of charge CAN 4585/2023, thereby occasioning double-counting;
ii.	The prosecution accepted that the sentences should be wholly concurrent;
iii.	Her Honour failed appropriately to apply the principle of totality.

b)

The sentence imposed was manifestly excessive;

c)

The learned [magistrate] erred in rejecting subjective material on the basis that the material contained opinions, in circumstances where the Evidence Act 2011 (ACT) did not apply.

d)

The learned [magistrate] erred in permitting a victim impact statement to be admitted into evidence which went well beyond the scope of detailing harm suffered by the victim, thereby having regard to irrelevant considerations in her sentencing discretion.

4․	The appellant does not press grounds c and d.
5․	Further, by way of application in proceeding dated 18 June 2024, the appellant seeks
leave to amend the grounds of appeal to include the following ground, which would
constitute appeal ground e.

The proceedings before the learned [magistrate] miscarried as a result of the failure of the

appellant’s legal representatives:

i)            To make reasonable enquiries concerning the appellant’s mental health conditions, including his diagnosis of Asperger’s Disorder;

ii) To adduce evidence of the appellant’s mental health conditions, including
his diagnosis and history of Asperger’s Disorder.

6․	The application in proceeding also sought for the court to receive a psychological report
by Professor Douglas Boer dated 30 April 2024 and material relied upon by
Professor Douglas Boer in the preparation of that report on appeal.

Jurisdiction

7․	This is an appeal by way of rehearing pursuant to ss 207, 208(1)(d) and 208(1)(e) of the
Magistrates Court Act 1930 (ACT).

Application in proceeding dated 18 June 2024

8․	The proposed additional ground of appeal relating to the appellant’s mental health arises
from enquiries made by the appellant’s current lawyers following the appellant’s
sentence, revealing a significant recorded history of schooling and social issues arising
from diagnoses of Asperger’s Disorder, more contemporarily referred to as Autism
Spectrum Disorder.
9․	In that application, the appellant seeks leave to rely upon new evidence. This evidence
was obtained in a manner outlined by the affidavit of Thomas Tiffen-Oakes dated
18 June 2024, and the new evidence is contained in the report of Professor Boer dated
30 April 2024.

Relevant facts

10․	The periods covered by the various charges to which the appellant pleaded guilty were
as follows:

(a)	Stalking charge: May 2019 to May 2023.
(b)	First protection order charge: 23 June 2021 to 12 August 2022.
(c)	Second protection order charge: 12 September 2022 to 20 April 2023.

11․	Relevant facts were set out in detail by the magistrate at first instance and are also
contained in an agreed Statement of Facts, which was admitted before her Honour
without objection. They can be summarised as follows.

Events of 2019

12․	The appellant, from mid-2019 until his arrest on 9 May 2023, repeatedly engaged in
unwanted efforts to contact the victim and did so in a variety of ways. This included
unwanted gift-giving, phone calls, letters, getting tattoos relating to the victim, placing
stickers on her car with her initials on it, and attending areas where she was known to
be present.
13․	On 11 May 2019, the victim attended a birthday party for her friend, Ms U, at the Burns
Club in Kambah. The appellant was also present at this party. At no stage has the victim
engaged in an intimate relationship with the appellant, and the appellant was only known
to the victim as a mutual friend from this party. The victim agreed to take a photo with
the appellant at this party, at the request of other friends at the party, in order to make
the appellant’s girlfriend jealous.
14․	The following weekend, the victim attended a games night with the appellant and others,
and the appellant obtained the victim’s Snapchat account details with the victim’s
consent.
15․	On 1 June 2019, the appellant began renting a room from Ms U in Queanbeyan. Around
this time, the appellant began buying gifts for the victim, which were occasionally well
received.
16․	Over the following months, the appellant wrote messages to the victim in an overly
complimentary manner, stating that he wished to marry the victim. He also asked for the
victim’s phone number and home address from both the victim and her friends, all of
whom refused to give this information. The victim became increasingly uncomfortable
upon receipt of the appellant’s messages; initially replying in a short and blunt manner
to indicate a lack of interest and later not replying at all.
17․	The appellant had sent messages purportedly from his partner, which would say that she
was jealous of the way the appellant loved the victim instead of her. The appellant also
created fake Snapchat accounts which would speak of the victim in derogatory terms.
The appellant would then message the victim on this platform to state that he had spoken
up against these accounts.
18․	On 26 June 2019, Ms U asked the appellant to move out of her residence. The victim
and Ms U dropped the appellant’s belongings at his address, at which point the appellant came out and prostrated himself behind Ms U’s vehicle to prevent them from leaving. He
was forcibly removed by Ms U’s ex-partner.
19․	After requests from the victim and Ms U to cease contacting the victim, the appellant
sent the victim a Snapchat video of himself crying and holding a knife to his throat while
threatening to kill himself. The victim blocked the appellant on Snapchat in August 2019.
20․	Later, the appellant used two new Snapchat accounts, titled “JohnKirk_1993” and
“Dough Douggan” to message the victim about the appellant being a “good guy”, who is
“probably about to kill himself”.
21․	In late 2019, the appellant began leaving gifts for the victim. This was initially done by
leaving gifts at the residence of a Ms T and Ms X, being the victim’s best friend’s mother
and the victim’s best friend respectively. Ms T was a psychic medium, and the appellant
commenced as her client; they formed a close enough relationship to the point that the
appellant moved in with Ms T.
22․	The victim told Ms T to stop accepting gifts from the appellant, but they nonetheless
continued to arrive. Using Ms T and Ms X’s address, the appellant sent the victim flowers,
teddy bears, chocolates, football jerseys, a framed collage of the victim and her dog, and
Swarovski crystal bears. These gifts were accompanied by notes of the appellant
declaring his love for the victim.
23․	From 2019 until his arrest, the victim received many handwritten and typed letters from
the appellant which ranged in tone, some confessing the appellant’s love for the victim
while others were threatening in nature, containing personal images of the victim from
her social media accounts.
24․	The appellant ultimately moved out of Ms T’s house and in doing so, left another bag of
gifts for the victim.

Events of 2020

25․	Ms T introduced the appellant to a Mr Rosemont, who was Ms T’s psychic medium
mentor and resided in Queensland. Mr Rosemont called the victim, asserting that the
appellant’s behaviour did not constitute stalking, and that the appellant had good
intentions.
26․	On 22 December 2020, Mr Rosemont messaged the victim, wishing her a Merry
Christmas and, on 27 December 2020, Mr Rosemont messaged the victim offering
“information that may help”.
27․	The victim regularly exercised at a Club Lime branded gym in Greenway, ACT. On
multiple occasions, the victim returned to her vehicle parked in the car park and found
unwanted gifts.
28․	In 2019 and 2020, the appellant regularly attended the victim’s gym in order to be with
her. He was seen during this time to be wearing clothing with the victim’s initials inscribed
on them, and leaving unwanted gifts at the gym.
29․	On one occasion, the appellant wrote the victim’s name on a mirror and was spoken to
by the gym’s manager. The appellant also showed photos of the victim to other gym
members, stating that the victim was his girlfriend.
30․	On 10 November 2020, the victim was exercising at the gym, when the appellant entered
the gym and approached her, dropped a bag of unwanted gifts at her feet and ran from
the premises. The appellant had jumped the turnstile to enter the gym and was wearing
sunglasses. Ten minutes after the appellant left, he called the victim on an unknown
number. After recognising the voice, the victim hung up.
31․	The appellant also contacted the victim’s mother on 23 August 2020, asking if he could
meet with her.
32․	From 20 November 2020, the appellant left gifts at the victim’s home and her mother’s
home.
33․	On 20 December 2020, someone named “Andrew” sent the victim a message indicating
that he had left the victim a bag of gifts from the appellant.
34․	During 2020, the appellant sent multiple letters to the victim directly or via her friends or
her mother. Those letters regularly asked for the victim’s parents’ approval of marriage,
spoke of the appellant’s good intentions, compliments and derogation of the victim’s
body, threats of people watching the victim’s family, threats of police prosecution, and
insistence that the appellant be forgiven.
35․	The appellant contacted the victim’s workplace and made a false complaint that she had
verbally abused him while she was working in Phillip. This led to an internal investigation
by the victim’s workplace, which confirmed through GPS tracking that she was not at the
location at the time alleged. Later that week, the appellant contacted the victim’s
workplace again, asking that the complaint be withdrawn. He continued to contact the
victim’s workplace and made further allegations about the victim’s conduct. The calls
were sufficiently consistent and concerning that the victim’s employer organised for all
calls from the appellant’s mobile number to be diverted to the security office at first
instance.

Events of 2021

36․	Sometime in 2021, the appellant purchased gifts and sent them to the victim’s workplace
in Mitchell. On 12 July 2021, the appellant contacted the workplace via phone in an
attempt to speak with the victim; he also made allegations that the victim was following
him whilst at work, despite there being no reason for their paths to cross. Handwritten
and typed letters of varying tone were continuing at this time.
37․	Police obtained records of purchases made from an online flower company called
‘Sarah’s flowers’, which showed a total of nine orders sent between 27 November 2020
and 5 January 2021 to the victim’s address. These orders cost $1232.80 and were
identified as having been sent by the appellant.
38․	On 3 January 2021, the victim received an SMS from ‘Amy,’ who contacted the victim on
behalf of the appellant and requested that she meet with the appellant; the victim refused
and asked to be left alone.

Protection order from June 2021 to August 2022

39․	The victim applied for a protection order on 5 January 2021. An interim personal
protection order was in force from 24 June 2021 and became final on 11 August 2021,
with an expiry of 11 August 2022. The first protection order charge related to the whole
of the period of the interim and final protection order.
40․	Conditions of the protection order included a prohibition on being present where the
victim lived, worked, or at the gym she attended, and generally not being within
100 metres of the protected person. Despite those conditions, during 2021, the appellant
continued to send unwanted letters and gifts to the victim’s address, but they were
disguised as being from other people. Threats in those letters included:

(a) threats stating that the victim will lose any court proceedings and go to prison

where she will be assaulted and raped;

(b) threats that the court proceedings will cost large amounts of money, putting the

victim in debt; and

(c) threats that police will take action because the victim was “lying” in her court

testimony.

41․	On 25 May 2021, the victim received a letter from the appellant demanding that she “drop
the AVO” and threatening to send unspecified things to the AFP. The letter contained
threats about the victim’s liability for legal costs from “10-100k”.
42․	On 2 June 2021, the victim received a text message from the appellant posing as an
“arbitrator,” requesting that she attend a meeting alone at Club Lime Phillip to avoid
“wasting of courts time and the loss of money for you.” On the same day, the victim
received a letter from the appellant posing as “Chloe”, who said it was her stalking the
victim, and she was framing the appellant.
43․	On 3 June 2021, the victim received a letter from the appellant posing as her friend and
her friend’s mother, saying that she should withdraw her protection order application or
information would be sent to the police, courts and “the ACT weightlifting association”.
44․	In October 2021, the appellant moved to an address that was only 900 metres away from
the victim’s residence. This move occurred only two months after being served the first
protection order.
45․	In the week leading to the lapse of the protection order, the appellant posted images on
his social media account “counting down” to the lapse of the protection order.

Protection order from 12 September 2022 to 4 May 2024

46․	On 9 September 2022, the victim applied for and was granted another interim protection
order against the appellant. It was served and effective from 12 September 2022. A final
order was granted from 4 May 2023 to 4 May 2024. The second protection order charge
related to the whole of the period from which the interim protection order was effective
until 20 April 2023. This end date appears to reflect the time at which the last of the text
message communications, described later in these reasons, with Mr Rosemont about
letters to be sent to the victim occurred.
47․	That order had conditions in similar terms to the previous order, with expanded scope to
include restrictions on publishing social media posts relating to the victim and attempting
to locate the victim.
48․	On 14 February 2023, the victim received from the appellant 12 white flowers, a bear
and a handwritten note.
49․	A large number of letters, some threatening, were still sent to the victim while this order
was in force. Many had postage markings which indicate they travelled through the
Northgate Mail Centre in Queensland before arriving in the ACT.
50․	Upon the appellant’s arrest, police lawfully accessed the appellant’s mobile phone, which
revealed a large number of messages between the appellant and Mr Rosemont.
Mr Rosemont had been receiving payments from the appellant to write letters to the
victim. Messages from the appellant to Mr Rosemont contained the same information
that is then contained within the letters drafted to the victim, accessible to both the appellant and Mr Rosemont through a One Drive account. Mr Rosemont would often
reply to the appellant with an attached Word document, which contains documents that
have been identified to be the same letters received anonymously from Queensland by
the victim.
51․	The letters sent from Mr Rosemont at the appellant’s direction included:

(a)	demands that the victim drop the protection order;
(b)	threats stating that the victim will lose any court proceedings and go to prison,

where she will be assaulted and raped;

(c) threats that the court proceedings will cost large amounts of money, putting the

victim in debt; and

(d) threats that police will take action, as the victim is “lying” in her court testimony.

52․	On 8 June 2023, police conducted a digital download of the appellant’s phone, including
a screen recording of the contents on the phone. Police identified through this download
a conversation between the appellant and ‘tr’, a number previously used by Mr
Rosemont. Financial records also indicated that the appellant sent $23,570 to Mr
Rosemont via bank transfer.
53․	The text message conversation with Mr Rosemont indicates letters sought to be sent by
the appellant to the victim on various dates, including:

(a)	two letters on 5 October 2022;
(b)	6 October 2022;
(c)	7 October 2022;
(d)	31 October 2022;
(e)	two letters on 15 January 2023;
(f)	31 January 2023;
(g)	23 February 2023;
(h)	11 March 2023;

(i)       1 April 2023; and

(j) 19 April 2023.

54․	The letters were sent via a hyperlink in the text message chain and produced a typed
Word document located on a One Drive account. The conversations included messages between the appellant and Mr Rosemont requesting various changes to the letter,
including the appellant replying to Mr Rosemont stating:

carnt send that mate it’s points the fingers straight at me if you drop the dates out of it parts

to do with myself out of it and add the fact she has a one night stand with someone more obsessed with her then myself paid Karen Katie bucket loads plus hand delivered notes to her mail box and then send photos of other stuff like Christmas cards proving that Karen sent them Karen has dumped [the victim] in a pile of shit Karen deliberately savertaged kirk and

[the victim’s] friends ship knowing kirky would always live cherrls adoor [the victim] he’s hole

life ect bud

55․ Mr Rosemont then replied, “Sure a bit of editing on its way :-)”.

Victim’s engagement with police

56․	On 25 February 2021, the victim attended Tuggeranong Police Station to report that she
had received a parcel from the appellant.
57․	On 13 July 2021, the victim attended Tuggeranong Police Station to report that the
appellant had called her place of work.
58․	On 21 June 2022, the victim attended Tuggeranong Police Station to report that the
appellant had made several posts on social media regarding her.
59․	On 15 November 2022, the victim attended Tuggeranong Police Station to report that
the appellant had continued to post about her and send gifts.

60․ Between March and May 2023, the victim participated in a number of recorded

conversations with police and detailed letters she had received; she provided police with

some of these letters. The letters were of identical appearance including font, layout and

content, to the letters viewed on the One Drive located on the appellant’s phone.

Conduct at unspecified times between May 2019 and September 2022

61․	The appellant, since first meeting the victim, has received a total of four tattoos relating
to the victim. These include:

(a) a compass with her initials inscribed on the South East point located on his right

arm;

(b)	the initials of the victim with a date located on the appellant’s left arm;
(c)	a word referring to a nickname of the victim on his right leg;
(d)	a replica of a tattoo that the victim has on her own leg, being a quote “inhale the

future exhale the past” located on the appellant’s left thigh.

62․	The appellant also has a sticker with the victim’s initial on the rear windscreen of his
vehicle.
63․	Since 2019, the appellant has made many social media posts, particularly on Instagram
and Facebook. The majority of these posts state that he is in love with the victim.
Examples include:

(a)	Images of the victim’s initials written on a mirror by the appellant.
(b)	Images of aforementioned tattoos relating to the victim.
(c)	Photos of the victim with words over the top of the image.
(d)	Relationship memes with the victim’s initials included in the post.
(e)	Screenshots of the appellant’s screensaver on his mobile phone showing a

photo of the victim.

(f)	Photos of the victim’s car from a short distance away.
(g)	An image stating that he has obtained three or four tattoos relating to the victim.
(h)	An image of the appellant with the words “Would I brake my avo to us

Tuggeranong gym… yes I would yes I would”.

(i)       An image of the appellant with the words “I’VE BEEN STALKING AGAIN”.

(j) An image of the appellant’s ute with the aforementioned sticker.

Arrest

64․	On 9 May 2023, the appellant was arrested after police tracked his vehicle along the
Monaro Highway. Inside the appellant’s car was a homemade calendar with pictures of
the victim covering each month, along with copies of letters received by the victim and
sent by the appellant. The appellant also participated in a record of interview, where he
made partial admissions to engaging in conduct which would constitute stalking.

The psychiatric evidence for the magistrate

65․	As a result of the bizarre nature of the conduct and the absence of expert evidence that
might explain it, on 19 October 2023 the magistrate requested the preparation of a
forensic psychiatric report. That was done by Dr Anthony Barker, a consultant forensic
psychiatrist working for the ACT Government. The documents that he had available to
him were the Statement of Facts, the bench sheets and the offender’s electronic mental
health record. Dr Barker recorded a very limited psychiatric history: an admission to the
psychiatric unit in Goulburn in 2019 in relation to which the offender said “Something to do with, I was trying to commit suicide mate”. The offender also provided some
information about his Asperger’s syndrome, which is recorded in the report as:

He also stated that he had been advised by his general practitioner as a teenager that he

might be suffering from “Asperger’s syndrome”. When asked about symptoms that supported

this diagnosis he stated: “My room’s gotta be clean, I don’t really deal with being confronted

very well”.

66․	The offender’s electronic health record (which I infer was limited to records held by the
ACT Government) did not reveal any information relevant to his mental health. Amongst
other matters that Dr Barker recorded were the offender’s work history and the fact that
he had previously been involved in two long-term relationships. The summary and
opinion of Dr Barker included:

Mr Kirk is a 30-year-old Australian male who does not have a mental illness or mental impairment as defined by the Criminal Code 2002. Whilst Mr Kirk has reported that a general

practitioner may have advised him that he suffers from “Asperger’s syndrome”, and he was

reportedly admitted to a psychiatric unit in 2019 with suicidal ideation or a suicide attempt, the information currently available to the author is not sufficient to support the diagnosis of a mental illness or mental impairment. Accordingly the author is not able to identify a relevant application of the Verdins principles, in the absence of a diagnosed mental health condition. Nonetheless, it does seem apparent that Mr Kirk experiences difficulties with distress tolerance, and with managing interpersonal relationships appropriately, and would benefit from psychological input.

Proceedings before the magistrate

67․	At the sentencing hearing on 19 January 2023, the magistrate dealt with objections to
some of the material that was to be tendered. That included statements that the offender
“struggles in social environments; can misunderstand intentions or interests; can be
perceived as forward” which were admitted by the magistrate: tcpt 4. However, after
some discussion of a reference letter provided by the appellant’s mother, counsel for the
offender accepted that the magistrate should not place any weight upon the statement
in that letter that:

[The appellant] was diagnosed with Asperger’s syndrome, ADHD at preschool age.

A disorder characterised by impulsivity, inability to control and monitor his behaviour, inability to recognise social norms and act accordingly, and obsession with particular subjects.

68․	The reason for taking that approach was that the statement was unclear as to which of
Asperger’s or ADHD was being described and was inconsistent with the medical opinion
provided by Dr Barker.
69․	The prosecution tender bundle was then tendered along with the forensic psychiatric
report prepared by Dr Barker, which had been prepared at the request of the magistrate.
Counsel for the offender tendered a bundle of references for the offender. The prosecutor then read victim impact statements of the victim of the offending and her mother, which
described the significant impact of the appellant’s offending upon the victim and her
family.
70․	Counsel for the offender then made his submissions to supplement written submissions
that he had provided earlier. Because of the earlier discussion about the reference letter
from the offender’s mother, he indicated that he did not rely upon that part of the written
submissions which referred to the appellant having been diagnosed with Asperger’s
syndrome.
71․	Counsel for the prosecution then made submissions. She also had provided written
submissions, which included a table of comparable cases.
72․	The magistrate proceeded to sentence. She recounted the agreed facts in some detail.
She assessed the stalking and personal protection order offences as being “very serious
examples of this type of offending”: tcpt 22. She noted that aspects of the conduct
constituted both stalking and breaches of the personal protection orders. She
summarised the subjective circumstances of the offender. His basic personal details
were as follows:

He is a 30-year-old man from country New South Wales with no prior criminal history. He describes that he and his mother were exposed to aggression by his birth father, his parents

divorcing when he was 12. He remained in his father’s care alone until he was 14 when he

moved to a different country town to be raised by his grandparents to adulthood. He is estranged from his father. He has a positive relationship with his grandparents and continues to assist them on their farm regularly. He has reconnected with his mother and half brother, with whom he recently moved in.

73․	There is then reference to him having two deceased children but there being an absence
of “evidence as to any particular impact beyond what one would ordinarily expect by way
of grief for such events”.
74․	The findings as to his personal circumstances continued as follows:

The offender has a current partner who is aware of these proceedings. The offender apparently experienced some learning difficulties at school but completed year 10 and post school qualifications. He is a diesel mechanic, fully employed in that trade. He is well-regarded by his employer. He has no drug or alcohol addictions. He is physically fit and regularly attends a gymnasium.

I have been provided with a plethora of supportive character references. The offender’s close

friends, Mr Adam Duggan, Matthew Burke and Jamie Wall all speak of his helpfulness and reliability as a friend. They also made assertions in identical words in their references which

are now not relied on by the defendant. References from the offender’s former employer,

Mr Terry Stewart and there being an updated reference from him, and employer Mr Lenny

Maggiow speak to the offender’s reliability as an employee. As does former client, Mr Ken Mitchell. Ms Kirsty Edwards, the offender’s partner refers to him as a hard-working and

responsible person.

75․	The magistrate then turned to the evidence about the offender’s mental health. The
reasons were as follows:

The offender reports that he was diagnosed before the age of 12 with Asperger’s Syndrome and Attention Deficit Hyperactivity Disorder at the Westmead Children’s Hospital. He was

medicated, he says, for three years but ceased this due to his father failing to pursue that

care on his behalf. A document was tendered from the offender’s mother, Ms Ursula Oseda,

who is presumably a registered nurse, RN being the details attached to her signature. That

is a document dated 31 March 2023.

Ms Oseda reported that the offender was diagnosed with Asperger’s Syndrome and ADHD

at preschool age and made observations as to symptoms associated with what she

describes as ‘a disorder’ without reference to which of the disorders she meant. She noted

that medications failed to assist the offender with his condition and that she observes that as an adult, he benefits from routine, physical exercise, employment, family support and

structure. I can attach little weight to this letter from the offender’s mother. It is not clear upon

which basis the diagnosis is said to have occurred or the observations that she has made as
to the symptoms and how they relate to each of the particular diagnoses referred to.

The offender reported to the pre-sentence report author that he has engaged with psychologists and psychiatrists in the past, including a counselling in 2019. He states that for about eight months in that year, he reportedly experienced suicidal thoughts. I note that he spent some time in the Goulburn Hospital during that year.

At my request, a report was prepared in respect to the offender’s mental health. This was

sought in an attempt [to understand] what appears on the face of it to be bizarre conduct. Dr Anthony Barker, Consultant Forensic Psychiatrist, provided a report dated 12 January 2024. There, in that report, the offender stated that he had been physically abused as a child and sexually abused at the age of 17. He reported being suspended from school 10 to 12 times and leaving permanently during year 11. The offender reported to Dr Barker that he experienced fear of the prospect of imprisonment and questioned his ability to cope were that sentence imposed.

Dr Barker concluded that the offender does not have a mental illness or mental impairment as defined in the Criminal Code. Dr Barker did not have a sufficient basis to confirm a

diagnosis of Asperger’s Syndrome. He did note that the offender ‘experiences difficulties with

distress tolerance and with managing interpersonal relationships appropriately and would

benefit from psychological input.’ Dr Barker opined that the offender would be at an elevated

risk of suicide if sentenced to imprisonment, given his previous history of suicidality and the

generally increased prevalence of suicide amongst prison populations.

76․ The magistrate’s conclusion as to the offender’s mental health was as follows:

Despite the bizarre nature of the [offending] before me, there is nothing to suggest any

correlation between it and the offender’s mental health. It follows that the Verdins principles

have no application in this case. The Bugmy principles recognise the ongoing impact of childhood trauma where that is established on the evidence. I have a generalised report of exposure to childhood violence and a one-line reference to sexual assault on the offender [as] a teenager, however this information is scant and insufficient to support an application of those principles.

77․ Her Honour went on to note that:

The offender appears not to appreciate the significance of his offending conduct and according to the assessment of the pre-sentence report author, attempted to justify or minimise his actions.

78․	When her Honour was considering the appropriate sentences, she referred to the table
of comparable sentences that had been provided to her and said, “I note that there are
no examples which come anywhere near the seriousness of that for which I am to
sentence this offender.”
79․	She made specific reference to the circumstances of Roncevic v Boxx [2015] ACTSC
53, which involved a sentence of 16 months’ imprisonment for an offence which carried
a maximum penalty of two years’ imprisonment.
80․	Her Honour referred to the need for general and specific deterrence. She said that the
prospects of rehabilitation were guarded. So far as rehabilitation prospects were
concerned, she said:

Furthermore, there is no clear pathway for rehabilitation in the absence of a clear diagnosis of mental illness and any defined correlation between it and the offending behaviour. Additionally, there has been no effort to explore or engage in any rehabilitative process pending sentence. I have no hesitation in arriving at the conclusion that a sentence of imprisonment is the only appropriate sentence for this offender and this offending.

I have considered whether a sentence in the form of an intensive corrections order served in the community adequately meets the objectives of sentencing in this case. Given the degree of lenience that it reflects and the observations I have made as to the prospects [for] rehabilitation it does not. I come to that conclusion with some reluctance, noting the

offender’s lack of prior criminal history and Dr Barker’s expressed concern for the offender’s

increased risk of suicidality.

81․	Her Honour then made orders imposing the sentences on the three charges. The first
charge of contravening the personal protection order was wholly concurrent with the
stalking sentence. The second charge of contravening the personal protection order was
cumulative as to six months on the stalking sentence.

Submissions on appeal

82․	The ground that counsel for the appellant invited the court to engage with first was
proposed ground e, that a miscarriage of justice occurred by the failure of the appellant’s
former lawyers to obtain or adduce evidence of his mental or cognitive impairments.
Counsel framed the argument in this way because if ground e was upheld, there would
be no requirement to decide the remaining grounds. Conversely, if ground e was not
upheld, it would next be appropriate to consider the grounds of manifest excess and
ground a concerning alleged flaws in the magistrate’s reasoning process.
83․	The appellant submitted that the magistrate demonstrated initiative in light of the “bizarre”
nature of the appellant’s offending in ordering a forensic mental health report, that was
ultimately completed by Dr Barker. The appellant claimed that had the new evidence that
the appellant seeks to adduce, that was provided to Professor Boer, also been relied
upon by Dr Barker, then Dr Barker would have come to a different conclusion and most
likely, a different sentence would have been imposed on the appellant. Whilst the
appellant’s solicitors at first instance did write an email dated 24 August 2023
encouraging the appellant to obtain medical reports in relation to the impact of his prior
diagnosis upon the offending conduct, the appellant now contends that his solicitors’
conduct fell far short of inquiries necessary to provide the court with sufficient information
of his illnesses and impairments upon sentencing.

Additional psychological evidence

84․	The additional evidence sought to be put before the court in order to demonstrate that
there had been a miscarriage of justice was a report of Professor Douglas Boer, a clinical
psychologist. Those reports were prepared with the benefit of information going beyond
that which was available to Dr Barker. It included:

(a) medical records from Goulburn Base Hospital and the Royal Far West

Children’s Hospital;

(b)	psychiatric report prepared by a Dr Bongers dated 18 April 2005; and
(c)	102 pages of New South Wales Education Department records.

85․	Professor Boer also administered testing and conducted interviews with the offender.
86․	The report of Professor Boer dated 30 April 2024 includes the following points:

(a) The offender did not appear to be insightful regarding his criminal behaviour but

had an apparent desire to understand the events.

(b) He met the diagnostic criteria for a DSM-5 diagnosis of Autism Spectrum

Disorder (ASD) requiring support (level 1) without accompanying intellectual

impairment or language impairment.

(c) Although health records disclose diagnoses of Attention Deficit Hyperactivity

Disorder (ADHD) in 2002/2003 and Asperger’s Syndrome in 2005/2006, the

symptoms demonstrated were more typical of a person with ASD as opposed

to ADHD that had been referred to by earlier clinicians.

(d) The offender’s diagnosis of ASD contributed significantly to his offending

conduct. At the time of the offending, the offender appeared to not understand that his behaviour was wrong and appeared unable to control his persistent

attempts to engage in a relationship with the victim.

(e)	The offender was open to participating in further psychological treatment.
(f)	The lack of genuine remorse noted by the magistrate “is typical of a person with

ASD who views the world through a different lens”.

(g) “[The offender’s] offending certainly looked remorseless as it included a lack of

respect for his victim’s rights, a lack of ability to recognize the harm he was

causing to the victim, a lack of ability to empathize with his victim’s suffering due

to his behaviour, a lack of ability to see his behaviour as offensive after being

charged, and, since being sentenced, ongoing confusion and lack of insight

about what he did wrong. I would argue that these deficits are not due to the

common criminal lack of remorse but due to the affective and cognitive

limitations associated with the offender’s ASD traits and the consequent

associated difficulties he has had throughout his youth and adult life in coping

with social situations, social communications and social interactions.”

(h) He would benefit from offence-specific therapy that is specifically designed for

someone with his psychological profile.

(i)       His limited ability to interpret social cues will very likely impact his custodial

experience negatively.

Proposed ground e: Was there a miscarriage of justice?

87․	The starting point is that an offender is bound by the way in which their lawyer conducts
the sentencing proceedings. The lawyer is the agent of the offender and has substantial
discretion as to the manner in which a sentence hearing is conducted. There will be no
miscarriage of justice just because a sentencing hearing may have been conducted more
effectively or because one forensic decision was made rather than another.
88․	Where a ground of appeal asserts a failure on the part of counsel appearing for the
accused at trial, the approach to be applied is described in the judgment of McHugh J in
TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [74]-[85]. Such a miscarriage may
arise:

(a) from conduct which means that the appellant has not had a fair trial according

to law: TKWJ at [76]; or

(b)

from conduct which:

(i)	results in a material irregularity; and
(ii)	there is a significant possibility that the material irregularity affected the

outcome of the trial: TKWJ at [77], [79].

89․	The formulation that required determination of whether there was “a material irregularity
at the trial”, and whether there was a significant possibility that the acts or omissions of
which complaint is made affected the outcome of the trial, has been adopted
subsequently: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [24] (Gummow and
Hayne JJ); AK v The Queen [2022] NSWCCA 175; 300 A Crim R 559 at [9] (Beech-Jones
CJ at CL).
90․	The examples given by McHugh J in TKWJ in relation to conduct depriving the appellant
of a fair trial according to law indicate that this circumstance will not commonly arise. The
examples were a failure, without a valid reason, to cross-examine material witnesses or
a failure to address the jury.
91․	The more usual case is one in which the conduct of counsel has given rise to a material
irregularity which may have affected the outcome of the trial. For that category of case,
whether or not the conduct is negligent or otherwise remiss is an intermediate or
subsidiary issue: TKWJ at [79]. It may help explain why the material irregularity arose.
However, the issues for determination are those set out above: whether there was a
material irregularity and whether there is a significant possibility that the irregularity
affected the outcome of the trial. A material irregularity will not be found to have arisen
just because an appellant’s trial may have been differently or more skilfully conducted.
Similarly, it will not be found to exist where the course taken by counsel at trial can be
understood as arising from a forensic choice.
92․	The same approach can be adopted in relation to sentencing proceedings. A failure on
the part of lawyers acting for a sentenced person may be seen as giving rise to a
miscarriage of justice in the same way as conduct of a trial may. The ultimate question
will be whether or not there is a miscarriage of justice. Although the ground of appeal is
supportive of an allegation of negligence (see the references to “failure” and “reasonable
inquiries”), that is not essential to the ground of appeal which may be established by the
ultimate conclusion that there was a miscarriage of justice. The decisions of the New
South Wales Court of Criminal Appeal in Green v R [2022] NSWCCA 230 at [38]-[40],
Shortland v R [2024] NSWCCA 174 at [46]-[50] and O’Rafferty v R [2024] NSWCCA 189
at [47]-[51], which were relied upon by the appellant, appear to be consistent with this
approach.
93․	In the present case, the material irregularity is the absence of admissible evidence as to
the offender’s symptoms and diagnosis of Asperger’s/ASD, and the causal link between
that condition and the offending conduct.
94․	The decision not to follow up on instructions that the appellant had been diagnosed with
Asperger’s as a child was not one which resulted from a clear forensic decision not to
put the material before the court. Rather, it resulted from a combination of circumstances:

(a) The fact that the stalking charge was originally limited to a single day and

amendments to the charge so as to make it substantially more serious only

seem to have been foreshadowed in August 2023 and formalised in

October 2023. The proposed amendments to the charge prompted the

appellant’s former solicitor to brief counsel for the sentence.

(b) The decision not to obtain a forensic psychological report.

95․	I accept the former solicitor’s evidence that at an early stage, there was some discussion
of the possibility of obtaining a forensic psychological report, but a decision was made
not to obtain one. While I accept the evidence of the appellant that he was in a position
to pay for such a report, I consider it likely that cost was a consideration and that the less
serious nature of the charges at that stage reduced any imperative to obtain such a
report. I consider that the appellant’s evidence that he was not advised about that option
is likely to be influenced by the adverse result of the sentencing exercise and the
knowledge with the benefit of Professor Boer’s report of what might have been disclosed
in such a report.
96․	It is likely that only limited information was put before the magistrate for the following
reasons:

(a) The former solicitor requested from the appellant any documentary material

about the appellant’s medical condition in August. The documentary material

provided by the appellant to the former solicitor in September 2023 did not refer

to a diagnosis of Asperger’s but rather to ASD or ADHD.

(b) On 18 October 2023, the court had ordered the preparation of a forensic mental

health report by a government psychiatrist, which was understood by the

lawyers then acting for the appellant to be likely to properly explore any relevant

mental health history and diagnose any relevant mental health condition. With

the benefit of hindsight, it would clearly have been desirable that Dr Barker be

provided with such documentary material as was available to the appellant’s

former solicitor, including the letter from the appellant’s mother. However, it is

understandable that, given the limited nature of the documentation, reliance might have been placed upon the comprehensiveness of the process for

preparation of that report.

(c) By the time of the sentencing, that forensic mental health report had disclosed

no relevant mental health condition, notwithstanding the author having

considered the possibility of a diagnosis of Asperger’s/ASD.

97․	The material now before the court establishes that the offender does suffer from such an
impairment and that there was a causal connection between that condition and his
offending.
98․	The issue of mental impairment and any causal connection between a mental impairment
and his offending conduct was, quite properly, a significant concern for the magistrate.
That is because the lengthy and disturbing course of stalking conduct was unexplained.
It was for that reason that the magistrate ordered the forensic mental health assessment,
and the absence of any mental impairment disclosed in that assessment was a
significant matter referred to in her Honour’s sentencing decision.
99․	In the absence of that evidence, the appellant was sentenced on the basis that he did
not suffer from a mental health condition that would explain his conduct or was relevant
to sentencing. Therefore, he was sentenced without regard to any of the Verdins factors:
see R v Verdins [2007] VSCA 102; 169 A Crim R 581. In particular, he was sentenced
on the basis that:

(a) there was no reduction in his moral culpability, in a manner that would reduce

punishment or denunciation as sentencing objectives;

(b) there was no consideration of whether the mental health condition should affect

the kind of sentence that is imposed and the conditions in which it should be

served;

(c) there was no consideration of whether the importance of general deterrence as

a sentencing consideration should be moderated or eliminated by reason of the

condition of the appellant at the time of offending or at the time of sentence;

(d) there was no basis upon which the need for specific deterrence should be

moderated or eliminated as a sentencing consideration based on his mental

health at the time of offending or sentence;

(e) there was no consideration of the effect of the mental health condition upon the

burden imposed by service of a sentence of imprisonment when compared with

a person of normal health;

(f) there was no consideration of whether there was a serious risk of imprisonment

having a significant adverse effect on the appellant’s mental health.

100․ Of particular significance for the sentencing decision of the magistrate was:

(a) there was nothing to suggest any correlation between the offending and the

appellant’s mental health and, hence, the Verdins principles had no application;

(b) the offender did not appreciate the significance of his actions and attempted to

justify or minimise them;

(c) in the absence of a clear diagnosis of mental illness or any correlation between

mental illness and offending, there was no clear pathway for rehabilitation.

101․ In the circumstance of the present case, the evidence of Professor Boer would be

significant for these factors because he found:

(a) there was a causal link between the appellant’s mental health condition and the

conduct;

(b) the apparent lack of insight or empathy was affected by the mental health

condition;

(c) the mental health condition would make service of imprisonment more

burdensome than for a person without that condition.

102․ In circumstances where the new evidence would demonstrate that the magistrate

sentenced the appellant on the basis of an incorrect factual finding, that is, not suffering

from the ASD condition diagnosed by Professor Boer, and where that incorrect factual

finding was of significance for the consideration of what sentence to impose and the

sentence actually imposed, I consider that the admission of the new evidence in

Professor Boer’s report would disclose that there has been a miscarriage of justice. In

those circumstances, like Baker J in Kristiansen v Yeats [2022] ACTSC 351, I consider

that it is “necessary or expedient … in the interests of justice” within the meaning of

s 214(3) of the Magistrates Court Act to admit the evidence contained in Professor Boer’s

report.

103․	Having done so, I am satisfied that there has been a miscarriage of justice by reason of
the fact that the appellant was sentenced without regard to his living with ASD in
circumstances where that fact had a material effect on the sentence imposed.

104․ As a result, it is appropriate to grant leave to amend the notice of appeal to include

ground e and to allow the appeal on that ground.

Other grounds of appeal

105․	Given that ground e has been established and the appellant must be resentenced, it is
not necessary to address grounds a or b, which were the only other grounds of appeal
that were pressed by the appellant.

Resentence

106․ For the purposes of any resentence, the appellant tendered a second report from

Professor Boer dated 18 August 2024. It indicates that he has completed five two-hour

sessions of offence-specific therapy with the offender. Part of that process involved him

examining his responsibility for the offending. He was given homework projects.

Unfortunately, the appellant continues to record versions of events inconsistent with the

agreed facts. Professor Boer indicates, however, that he has developed a significant

amount of insight regarding relapse prevention strategies as part of his treatment.

However, the interactions recorded in Professor Boer’s report indicated that he was

unable to express empathy or understand why the victim felt offended against.

Professor Boer remained optimistic about his rehabilitation. While he thought that the

understanding that the offender gained was more cognitive and logical than emotional

and empathetic, that may be sufficient for risk management purposes. He recorded that

the offender is now accommodated in a cottage at the Alexander Maconochie Centre

and that this will be less stressful than being in the remand unit. Professor Boer was of

the opinion that the offender was struggling with socialising in prison and experiencing

anxiety as a result.

107․ For the purposes of any resentence, the respondent tendered a statement of the

informant. The informant had listened to a selection of telephone calls made by the

appellant while in custody. The telephone calls related to the period from 9 April 2024 to

13 October 2024. The statements made in the calls (which were to family or friends):

(a)	blamed the victim for putting him in jail;
(b)	alleged that the victim had gained financially from having him and others jailed;
(c)	maintained he had been in a relationship with the victim, which is inconsistent

with the admitted facts;

(d)	included other matters inconsistent with the admitted facts;
(e)	were consistent with an absence of remorse; and
(f)	involved derogatory description of the victim.

108․ The additional evidence in Professor Boer’s first report is significant because it:

(a) provides some explanation for the conduct engaged in, which reduces the

appellant’s moral culpability;

(b) indicates the nature of the issue to be addressed as part of any rehabilitative

treatment;

(c)	provides some explanation for the appellant’s lack of insight into his conduct;
(d)	indicates that the burden of imprisonment will be higher for the appellant than

for a person without that condition.

109․	The evidence does not significantly reduce the suitability of the offender as a vehicle for
general deterrence.

110․ So far as the extent of the causal contribution is concerned, Professor Boer does not

quantify it. He says that the offender “appeared not to understand that his behaviour was

wrong and appeared unable to control his persistent attempts to engage in a relationship

with the victim”. His report discloses personality and behaviour traits consistent with

obsessive behaviour and difficulties with social cues, but does not identify a condition

which provides any more than partial explanation of the lengthy and disturbing stalking

behaviour. The evidence of the effects of the ASD has to be understood in the context

of other evidence, which discloses a life which is not clearly impaired by that condition.

Specifically, the appellant has a number of friends. He has a history of maintaining

long-term relationships with women. He has been able to maintain employment and is

recorded as being a good worker. Although the evidence does establish some

contribution to his bizarre conduct from his ASD condition, there is insufficient evidence

to establish that he did not understand that what he was doing was unwanted and wrong.

In those circumstances, the ASD diagnosis and evidence of Professor Boer explains and

moderates the culpability of the offender only to a modest degree.

111․ Further, although the evidence is explanatory, to some extent, of his conduct, to the

extent to which his mental condition was causal, it is a lifelong condition and an

entrenched part of his psychological make up. It is, therefore, something which tends to

entrench the risk of such conduct occurring in the future.

112․	The existence of the ASD condition is, therefore, something which both tends to mitigate
the culpability for the offending but also increase the need for specific deterrence.
113․	I accept that the presence of the ASD condition makes and has made dealing with the
prison environment more difficult for the appellant than for somebody without that
condition.
114․	The extent to which the offender’s culpability is reduced by the existence of the ASD is
less in relation to the personal protection order charges, as those involved breaches of
a court order of which he was aware. However, there may have been some contribution
to his conduct by reason of his tendency towards obsessive behaviour.

115․ The existence of the condition goes some way toward explaining the lack of empathy

expressed by the appellant.

116․ The second report of Professor Boer, which is admitted for the purposes of the

resentence, indicates that the offender has made some progress as a result of

one-on-one counselling. Any such rehabilitative progress must be considered in light of

the lifelong nature of the condition. I consider that it is unlikely that the treatment will be

continued following the conclusion of his sentence, given the lifelong nature of his

condition, the absence of an incentive provided by court proceedings, and the full life

which he is otherwise capable of. Because of this, there remains a significant need for

specific deterrence as part of his sentence.

117․	My conclusions about the effectiveness of treatment and the need for specific deterrence
are contributed to by the additional evidence in the statement of the informant admitted
on the resentence about the statements made by the appellant in telephone calls from
9 April 2024 to 13 October 2024, in which the offender expresses adverse views about
the victim of the offending and narratives inconsistent with the admitted facts. They
included specific statements, referring to what had occurred in counselling, indicating his
resistance to the messages being delivered.

118․ The appellant submitted that, having regard to the time already served in full-time

custody and the availability of accommodation and employment outside the ACT, the

sentence imposed upon a resentence should be structured so as to allow his release

into the community. I do not consider that such a disposition is possible. That is because

of the serious and disturbing nature of the offending and the need for protection of the

victim and the community, and specific deterrence.

119․ Having regard to the fact that:

(a) the stalking offence is subject to a five-year rather than two-year penalty

because the conduct involved breach of personal protection orders; and

(b) the stalking offence encompassed more than the whole of the periods covered

by the breach of the protection order offences,

it is appropriate that the sentences on the protection order offences be wholly

concurrent with the sentence on the stalking charge.

120․	The sentences that I will impose involve a modest reduction in the head sentence on the
stalking charge and a reduction in the period that must be served prior to the offender
being eligible for a grant of parole. Each of the sentences includes a 25 percent reduction
on account of the plea of guilty. It appears to me important that the offender have a
significant period in the community where he is subject to supervision. The reduction in
the non-parole period also reflects an additional degree of leniency which recognises the
contribution of his mental condition to his offending. The length of the non-parole period
still reflects the minimum term that justice requires that he serve in full-time detention.
121․	The overall sentence that I will impose is a sentence of two years and nine months with
a non-parole period of 17 months. A sentence of two years and nine months reflects a
starting point of 44 months in the context of a maximum penalty of 60 months. That is a
significant portion of the maximum penalty, which is unusual for a person with no criminal
history. However, it is appropriate in the circumstances of the present case because of
the length and gravity of the offending and taking into account that substantial periods of
the offending involved breaches of personal protection orders.
122․	The orders of the court are:

1.       Leave is granted to amend the Notice of Appeal to include ground e set out in

the application in proceeding dated 18 June 2024 and the Notice of Appeal is

taken to be so amended.

2.       Appeal allowed.

3.       The orders of the Magistrates Court made on 19 January 2024 are set aside.

4.       The offender is resentenced as follows:

(a) On charge CAN 4585/2023, the charge of aggravated stalking, the

offender is convicted and sentenced to imprisonment for 2 years and

9 months commencing on 19 January 2024 and ending on

18 October 2026.

(b) On charge CAN 10030/2023, contravention of a personal protection

order, the offender is convicted and sentenced to prison for 9 months

commencing on 19 January 2024 and ending on 18 October 2024.

(c) On charge CAN 10031/2023, contravention of a personal protection

order, the offender is convicted and sentenced to imprisonment for

12 months commencing on 19 October 2024 and ending on

18 October 2025.

(d) The non-parole period is 17 months commencing on 19 January 2024

and ending on 18 June 2025.

I certify that the preceding one hundred and twenty-two [122] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 15 November 2024