DPP v Linsley [2023] ACTSC 255

Cases Cited: R v Bonfield [2021] ACTSC 362 R v Robert Borkowski [2009] NSWCCA 102 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

Parties: Director of Public Prosecutions (DPP) Thomas Linsley (Offender) Representation: Counsel L Etheredge (DPP) T Lee (Offender) Solicitors ACT Director of Public Prosecutions Legal Aid (Offender) File Numbers: SCC 204 of 2022 SCC 205 of 2022 BERMAN AJ: Introduction

1. When dealing with another offender yesterday I made reference to how it was that courts attempt to protect the community, that being the ultimate purpose of sentencing. Usually that purpose is achieved by imposing significant, sometimes even harsh, sentences. The idea is that this will deter both the offender and others from committing further offences, which results in fewer members of the community becoming the victims of crime.

2. But sometimes the protection of the community is best achieved by imposing a sentence which focuses on an individual offender’s rehabilitation. If the sentence aids in bringing about a situation where the offender commits no further crimes, then the community benefits.

3. This is one of those matters where it is appropriate to focus on rehabilitation, despite the serious nature of the offender’s misconduct.

4. Before I describe the offence, let me say something important. I will be referring to the victim of the offence as “the complainant”. I do this to protect her privacy. I recognise that it is a very impersonal way to refer to the person who has been the victim of a serious crime. I am fully aware of the likely consequences for her of the offender’s criminal behaviour.

5. The offender and the complainant had been in a relationship. As at 15 February 2022 they had separated but would spend time together.

6. That evening they stayed together at the complainant’s home which is part of a complex run by Barnardos Australia. The following morning, as the offender was leaving, he packed up his clothes and an Xbox which was at the complainant’s home. There was an argument about who owned the Xbox. The complainant pushed the offender’s shoulders. His grossly excessive response was to take the complainant into her bedroom, onto her bed, put his right hand on her neck and choke her.

7. He walked away, but the argument continued. The offender grabbed the complainant by her throat and pushed her back against the wall using his right hand. The complainant blacked out. She regained consciousness a few seconds later to find herself on the ground. The offender still had his right hand pushing down on her neck. The complainant thought she was going to die and told the offender that she could not breathe. He got off her and walked into the kitchen.

8. The complainant fled her home. She was seen to be crying by a youth support worker who called her into her office. The complainant told her “Tom strangled me and tried to kill me”.

9. The complainant was taken to police, who interviewed her and arranged for a medical examination. The doctor took a number of photographs showing abrasions, bruising and redness to the complainant’s neck. There were a number of separate injuries visible on the photographs tendered yesterday.

10. The offender was arrested a few days later and spent two days in custody before being granted bail.

11. He now faces sentence for one offence of choke and render insensible or unconscious. The maximum penalty for that offence is 10 years imprisonment. It is to be noted that this offence under s 27 of the Crimes Act 1900 (ACT) is more serious than the offence under s 28 because the complainant was rendered unconscious.

12. This was a serious example of a serious offence. Adapting the list of matters referred to in R v Bonfield [2021] ACTSC 362, I make the following findings: (a) The charge to which the offender pleaded guilty covers more than one act of choking – in the bedroom which stopped when the offender walked away, the hallway which caused the complainant to become unconscious, and while she was on the ground until she regained consciousness and told him that she could not breathe; (b) A considerable amount of force must have been used. The injuries visible in the photographs tendered to me are testament to that; (c) The complainant’s breath was restricted to the extent that she could not breathe; (d) The offender made no verbal threats, nor did he use any aids; (e) I have already mentioned the injuries which she suffered; (f) The offender released the complainant after she told him she could not breathe; (g) The complainant was alone and in her own home; and (h) Further, although they had separated, the offender and the complainant were “family members” under s 9 of the Family Violence Act 2006 (ACT). Subjective Features

13. The offender was 20 years of age at the time of his offence. He is now 21. His criminal history is limited to driving matters with no offences of violence on it.

14. He was born in Canberra but moved with his mother to Brisbane when he was a year old so that she could escape a violent relationship. He found himself often getting into trouble with his stepfather who was a strict disciplinarian. He told a psychologist that he was kicked out of home at the age of 14 or 15 and moved to live with his aunt and uncle in Canberra. This went well at first, until he started associating with the wrong crowd and began using drugs. His aunt and uncle kicked him out of their home as a result. He lived on the streets for a few months until he was offered a place in a refuge. Since being charged with this offence he has moved back to Queensland to be closer to his family who are supportive of him.

15. He has experienced symptoms of anxiety and depression throughout his life and has a history involving reasonably constant suicidal ideation. He has difficulty in social settings and was diagnosed with ADHD when he was seven years of age. A preliminary screening test conducted by the psychologist suggested a potential diagnosis of autism as well.

16. His mental health has improved since relocating back to Queensland where he is employed full-time as a mechanic. A reference from his employer describes him as “reliable, honest and hard-working”.

17. A statement which he wrote was tendered to me in which he speaks positively about being back with his mother, stepfather, and sister to whom he says he is very close. The offender contrasts the situation he is in now, to how he was when living on his own in Canberra. He says he is not proud of his actions and does not want to repeat them.

18. For obvious reasons it is better for the offender’s prospects of rehabilitation that he remains living with his family in Queensland rather than returning to Canberra where he would be, once again, alone. He has turned his life around and I accept Ms Lee’s submission that he is a significantly different person to the one he was when he offended.

19. Ms Lee submitted that his moral culpability was reduced because of his background. He is a young man who faced many challenges in his life as he was growing up. Depression, anxiety, ADHD, and possibly autism as well, have been with him for most of his life. However, that does not necessarily mean that his moral culpability should be reduced. The psychological report upon which the offender relies draws no such conclusion and indeed makes no comment at all about any connection between the challenges he faced and his decision to choke his partner during an argument.

20. On the other hand, I will take into account significantly in the offender’s favour that he was quite a young man at the time he did what he did. Although he was an adult for the purposes of the criminal law, there is not some bright line of maturity that someone crosses on his 18th birthday.

21. The offender pleaded guilty on a Friday, when his trial was due to commence the following Monday. I have to assess the utilitarian value of that plea of guilty and discount the sentence I would otherwise have imposed accordingly. There is a disagreement between the parties about the extent of this discount which is important that I resolve.

22. Ms Lee submitted that I should not accept the prosecution’s submission that the appropriate discount was one of 10%. She submitted that the plea was entered at the first reasonable opportunity. I do not agree.

23. The offender was originally charged with six offences, counts 2, 3 and 4 being alternatives to the first count which was a charge of robbery with an offensive weapon. He pleaded guilty to count three. I was told from the bar table that this was after he made an offer to the prosecution which led to negotiations, which in turn led to the outcome I am dealing with today. When that happened was not the subject of evidence.

24. It may not have been forensically wise for him to offer to plead guilty to count 3 shortly after he was charged with it, but it cannot be denied that when I assess the utilitarian value of his plea, and in addition consider whether the plea is evidence of remorse, pleading guilty on the Friday before the trial on the Monday has a limited utilitarian value and says little about whether the offender is sorry for what he did. As far as the utilitarian discount for pleading guilty is concerned, the offender is not to be treated in the same way as someone who offers to plead guilty earlier than 3 days before his trial to an alternative count and whose offer is only belatedly accepted by the prosecution.

25. The discount for pleading guilty is based on the pragmatic need to encourage those who are guilty to plead guilty as early as possible. Early pleas are important in helping the criminal justice system operate as efficiently as possible, in particular by avoiding delays which are a significant source of injustice. Efficiency will not be promoted if offenders who enter pleas of guilty on the last working day before their trial is due to start are given the same utilitarian discount as those who plead guilty much earlier.

26. One of the reasons for the NSW Court of Criminal Appeal’s decision to hand down a guideline judgment on discounts for pleading guilty was that there was widespread scepticism that an early plea of guilty led to a higher discount (see R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [20]). Decisions of this court should not allow such sentiments to arise in this jurisdiction.

27. The suggestion that a plea of guilty which was delayed in order to get a forensic advantage should result in a similar discount to an earlier plea is contrary to the restatement of principles to be found in R v Robert Borkowski [2009] NSWCCA 102 at [32(9)]: … 9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98… (emphasis added)

28. For this reason, the sentence I impose will be about 10% less than it would otherwise have been. As it turns out, the discount is actually 11.1% to account for rounding off of the number of months.

29. The prosecution relied on some comparative cases. I make no criticism of the prosecution at all when I say that each of the four cases was very different to the one before me today.

30. Ms Lee submitted that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) had not been crossed, and that a sentence of imprisonment was not required. I disagree.

31. The objective gravity of the offender’s conduct is such that nothing less than a sentence of imprisonment would properly reflect what the offender did. At the risk of repetition, the complainant was in her own home, he choked her more than once and with enough force to cause her to lose consciousness and be unable to breathe. She had obvious injuries and, even in the absence of a victim impact statement, I am satisfied that she would have suffered psychologically as well. All this, simply because they were arguing over who owned the Xbox.

32. So, having decided that a sentence of imprisonment is required, and the length of it, the question becomes how that sentence should be served.

33. Because the offender lives in Queensland, an Intensive Correction Order (ICO) is not an available sentencing outcome. It would clearly interfere with the offender’s rehabilitation for him to return to Canberra where an ICO would be a possibility. Not only that, but a full-time custodial sentence would also be detrimental to the offender’s mental health and would only exacerbate his suicidal ideation and feelings of hopelessness.

34. The options which are thus available to me are starkly different; either full-time imprisonment or a suspended sentence of imprisonment. This is one of those cases where I will impose the least worse option.

35. In my view, the least worse option is the imposition of a suspended sentence of imprisonment. That will promote the offender’s rehabilitation and make it much less likely that he commits further offences in the future. As I began these remarks, that is of great benefit to the community.

Orders

36. I make the following orders: (1) The offender is convicted. (2) Taking into account 2 days pre-sentence custody, the offender is sentenced to 16 month’s imprisonment to have commenced 2 days ago on 10 September 2023 and expire 9 January 2025. (3) I suspend the entirety of the sentence under s 12 of the Crimes (Sentencing) Act 2005 (ACT) from 10 September 2023 until its end on 9 January 2025. (4) I impose a Good Behaviour Order under s 13 of the Crimes (Sentencing) Act 2005 (ACT) for a period of 16 months, commencing on 10 September 2023 and expiring 9 January 2025 with the following additional condition: (a) The offender is to engage in psychological treatment to explore his anxiety and depression and to develop strategies to manage these conditions.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Acting Justice Berman. Associate: Date: