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[2017] ACTSC 171
Supreme Court of the ACT
2017-05-26
Mossop J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Sentence of fifteen years, one month and twenty-five days with a non-parole period of nine years and six months: see [113]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - contravene protection order - sexual intercourse without consent - recklessly inflict grievous bodily harm - unlawful assault with intent to engage in sexual intercourse (sexual intercourse in the third degree) - making threat to kill - rolled-up counts- prior offences - late plea of guilty - offender intoxicated on methamphetamine at time of offence - effect of prospect of rehabilitation on nonparole period
Crimes Act 1900 (ACT), ss 20, 30, 53(1), 54(1)
Domestic Violence and Protection Orders Act 2008 (ACT), s 90(2)
R v Forrest (No 2) [2017] ACTSC 83
Director of Public Prosecutions v Watson [2016] VSCA 73
1. A week before his trial was due to commence the accused pleaded guilty to eight charges.
Domestic Violence and Protection Orders Act 2008 s 90(2)
Unlawful assault with intent to engage in sexual intercourse (sexual intercourse in the third degree)
3. The offender has also pleaded guilty to a charge of possession of a drug of dependence, namely methylamphetamine contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) (CC2016/1916). The maximum penalty is 50 penalty units or 2 years imprisonment or both.
4. The circumstances of this case are quite confronting. They represent what, in layman's terms could be described as a woman's worst nightmare - a methylamphetamine-affected former partner attending her house in breach of a protection order, confining her and raping and assaulting her over a number of hours in circumstances where she justifiably feared for her life.
5. The charges are rolled up charges in that they incorporate, with the consent of the defendant, a number of offences under the umbrella of a single charge. The use of rolled up charges is discussed R v Forrest (No 2) [2017] ACTSC 83 at [161]-[164] and Director of Public Prosecutions v Watson [2016] VSCA 73 at [110].
6. In these reasons I have not referred to the name of the victim and have anonymised the names of some of the witnesses as there appears to me to be no necessity for the purposes of this sentencing exercise that they be publicly identified.
7. The facts were agreed and set out in a Statement of Facts which became Exhibit 1. The Statement of Facts was supplemented by some additional evidence. The evidence discloses the following facts.
8. The offending conduct took place between 5.30am and 9am. The events that preceded the offences were unusual. They indicate that the offender was affected by methylamphetamine and behaving in an unusual, sexually-aroused and disinhibited manner. At about 1:08am on Tuesday, 14 July 2015, the offender went to Anytime Fitness gym Weston, where he was a member. He used his swipe access card to enter the gym. There was no-one else in the gym at the time. The offender went immediately to the change rooms and remained in there for about 2½ hours before coming out naked from the waist down and wearing only a T-shirt.
9. He then walked around the gym masturbating himself while at times using some gym equipment. This lasted for about half an hour and was recorded by closed circuit television cameras. His activities involved a mixture of exercise, stretching and masturbation.
10. At about 3:54am the offender left the gym wearing only a T-shirt and jumper. However, in doing so he locked himself outside because he left his swipe card in the gym. The offender tried to re-enter the gym without success which was again recorded by CCTV cameras. He was given some assistance by a shift worker KC ('the bystander') who had been refilling his car with petrol at a nearby petrol station. The offender was allowed to sit in that person's car and was driven back to the gym so that he could collect his belongings. The offender spoke about ecstasy and ice and made comments that led the bystander to think that the offender had sex on his mind. The offender's behaviour was sexually disinhibited and he made what was understood to be a sexual advance to the bystander. The offender got out of the car and walked back to the gym. He did not approach the exercise of attempting to regain access to the gym and retrieve his belongings in a rational manner. The offender walked over to the gym and angrily banged on the windows and yelled, "I want my fucking stuff back". Understandably the two men inside the gym did not open the door. The offender found his bag outside the gym door with his tracksuit pants which he put on.
11. The bystander continued to watch the offender and saw him sit on the bonnet of a car and pull his pants down and stroke his penis. The bystander approached the offender and said, "that's not a good look for you, these guys are trying to help you, don't make it harder for yourself". At this time other people arrived at the gym. The offender stopped all of them and asked for help. However, no one let him into the gym.
12. The bystander approached the offender again at about 5:20 am and told him that he could not stay there. The offender said that his ex-girlfriend lived in [redacted] and asked the bystander if he could give him a lift there. He stated that he had some spare keys, shoes and clothes there. The offender got into the passenger seat and the bystander started driving.
13. The offender gave the bystander directions to where he was going. A few minutes into the drive the bystander noticed that the offender was again stroking his penis. The bystander didn't say much because they were nearly there and he wanted him out of the car. They arrived at the address to which the offender had directed him at between 5.30 and 5.45 am. As the offender got out of the car he said, "I hope she lets me in" and laughed.
14. The address was one which the offender was not permitted to approach. On 16 March 2015 the victim had obtained an Interim Domestic Violence order under the Domestic Violence and Protection Orders Act 2008 (ACT). The order was amended on 15 May 2015. The offender and victim were present in court when the court amended the order by consent. The amended order relevantly stated:
a) Causes personal injury to the aggrieved person;
b) Threatens to cause personal injury to the aggrieved person;
...
e) Is offensive or harassing to the aggrieved person;
2. [The offender] be prohibited from:
e) Harassing, threatening, or intimidating the aggrieved person;
...
15. As a consequence the offender would breach the order by being on the premises or being within 100 metres of the victim.
16. At about that time the victim was asleep alone at her home in [redacted], when she was awoken by someone banging on the windows. She heard a man yelling, crying and begging for her to come to the door before recognising it was the offender's voice. She went to the glass sliding doors and unlocked them. The offender let himself inside the house and said, "I love you, and if you just take me back this won't have to get out of hand". But the victim repeatedly said, "You can't be here Adam" and they started to argue. The victim said, "I don't want you here" and repeatedly asked him to leave.
17. However, the offender asked the victim to have sex with him. She said "No" and that she wouldn't be having sex with him ever again. The offender stated that he would do it anyway. He then grabbed her, picking her up so she could not move her arms and carried her into the lounge room. The offender put her on the floor on her back. He ripped at her one-piece nightwear, which she was wearing, to take it off her and used his arms and knees to pin her to the floor while he tried to kiss her. As he was trying to pin her down he kept saying things like "now that he's fucked it he may as well do whatever he wants" and kept kissing and touching her. He screamed at her to open her legs but she wouldn't so he tried to force them open. The victim was trying to fight him back and they were wrestling around on the lounge room floor. Eventually he flipped her over and inserted his penis into her anus and had anal intercourse with her. He then told her that he could do what he wanted to now because it was too late. The victim told him that he'd gone too far and had "fucked it now" and kept fighting him. But he kept pinning her down.
18. Often the offender used his forearm over the victim's mouth and she couldn't breathe and she bit him a few times. At one point she bit him really hard on his bicep so he would get off her but he just kept having sexual intercourse with her. If he wasn't having penile-vaginal sexual intercourse with her he would flip her over and have penile-anal sexual intercourse with her and knee her side. He then started punching her saying things like, "if he couldn't do it ever again he may as well make it worth it, what if he just came back and shot me in the face and then he could rape my dead corpse".
19. At times the offender forced the victim's legs open with his shoulders and spat on her thrusting his penis into her vagina.
20. The offender engaged in numerous other acts of intercourse with the victim throughout the incident. On at least two occasions he performed cunnilingus on her by forcing her legs over her head and licking her clitoris and the inside and outside of her genitalia. On one occasion he used his hands to force her legs apart before performing cunnilingus on her. On several other occasions throughout the incident he forcibly inserted his penis into her vagina and had sexual intercourse with her.
21. At another point during the incident the offender licked and inserted his tongue into the victim's anus.
22. At other times the offender flipped the victim onto her stomach, grabbed her by the hips and jammed his penis into her anus. He also inserted his fingers and his tongue into her anus. He would flip her onto her back and lick her clitoris or punch her in her side or drop his knee into her chest or force his penis into her mouth. On other occasions he opened her legs and forced them over her head and inserted his penis into her vagina. When she tried to close her legs together he would force them open again. There was no rhyme or reason to what the offender was doing.
23. At some point the offender told her, "I'm going to put ice inside your cunt so you will relax and enjoy it".
24. At other times he kneed her in the back or kneed her in the ribs if she moved too much or tried to fight back. She had trouble breathing because of this. When he put his forearm over her nose and mouth to the point where she could not breathe he told her that he didn't understand why she was doing this to him. He stated that someone had recently shot him and that she should stand by him and be with him and he didn't understand why she didn't love him and want to be with him.
25. Throughout this ordeal the victim repeatedly told the offender to leave and that if he was found at the house he would get into trouble. But the offender stated that he would shoot her in the face before he would leave. And that if she tried to speak the offender would punch her. At other times he told her that she should let him do what he wanted and said, "If you just do what I want it will go quicker".
26. At a later point during the incident he said, "I've got no intention of going anywhere today. I'm going to stay here all day and I'm going to rape you until you can't move".
27. At some point the victim started to scream for help. But the offender punched her in the face. He then again inserted his penis into her vagina and had penile-vaginal sexual intercourse with her.
28. At other times he repeatedly tried to put his penis in the victim's mouth. She tried to block him by covering her face with her arms but he kneed her in her head or in her side.
29. At one point the victim was lying on her stomach on the floor when the offender sat on her back and masturbated himself. While he was doing this he used his other hand to insert an unknown object into the victim's vagina. He also passed wind on her and spat on her while he sat on her.
30. He also inserted an unknown object into the victim's anus and bit her on the back.
31. At some point the victim told the offender that if she didn't 'check in' with her friend that her friend would get concerned. The offender said "You're not going anywhere. We're going to stay here. I'm going to rape you all day". She said "But Adam you'll get in trouble because she'll call the police ... You don't want to get in - you know, what if the police came?" The offender said "Then I would shoot you in the face and I would rape your dead body"
32. The victim asked the offender if she could go to the toilet. He agreed and she ran quickly down the hallway to grab her phone which she tucked into the dressing gown that was still partially on her. On her way back to the toilet the offender was standing in the hallway. The victim squeezed past him into the toilet and tried to shut the door. However, he kicked the door open and said "What the fuck are you doing?" the victim said, "Oh I just need to go to the toilet Adam". He told her to give him the phone and said, "No I've changed my mind you can't go". The victim stated that she really needed to go to the toilet but the offender refused.
33. The numerous assaults on the victim during the incident form count 7.
34. The numerous acts of vaginal sexual intercourse with the victim during this part of the incident form count 2.
35. The offender's numerous acts of anal sexual-intercourse with the victim during this part of the incident form count 3.
36. After the offender refused to let the victim go to the toilet he picked her up and carried her into her bedroom. She begged the offender, "Please don't do it in the bedroom Adam, do it anywhere, if you want to do it outside, if you want to do it in the kitchen, just don't do it in the bedroom". However, the offender started yelling, "Have you got a boyfriend? Are you fucking someone?"
37. He then pushed her onto the bed and punched her in the face. He then looked in a drawer near the bed and found some condoms. He punched her in the face multiple times and said, "I can't believe you're fucking someone here".
38. The victim crawled up to the end of the bed with the pillows. The offender continually demanded that she get up onto all fours and come towards the end of the bed. When she didn't he punched her in her ribs or hit her with a 'hammer fist' on her back. Every time she refused to get up onto all fours he punched her. He then inserted his penis into her anus and her vagina. He continued to punch her during this time.
39. Whilst the victim was on all fours the offender also performed cunnilingus on her and inserted his tongue into her genitalia. He also licked and inserted his tongue into the victim's anus.
40. The offender then forced the victim over and punched her repeatedly in the nose and mouth. The force of the punches caused two of the victim's teeth to break and fall out of her mouth.
41. The victim said, "Adam I think I've broken my teeth". the victim was trying not to cry because she did not want the offender to keep hitting her. The offender said, "You're fucked now. We're going to stay here all day". He then told the victim to get on 'all fours' which she did and continued to thrust his penis into her vagina into her from behind.
42. The offender told the victim that he wanted her to take him back. But he told her that he was certain that she wouldn't take him back so he would have to shoot her. At another point during the incident the offender said, "If you just let me fuck you until I came I will leave you alone".
43. The victim still had her mobile phone hidden in her dressing gown. At about 7:53 am whilst she was on all fours with the offender behind her she secretly called her friend, BU. She said, "Adam, please don't hurt me anymore" and other things in the hope that BU would hear it on the other end of the phone.
44. At about 7:56 am the victim attempted to call BU again.
45. On her third attempt at 8:05 am BU answered the phone. At the time BU heard the victim, the victim was crying. She heard other noises in the background and after about 3 minutes she heard the victim say that she needed help before the phone was disconnected.
47. At about this time the offender asked the victim if she was on the phone. The victim hung up the phone. The offender punched her in the face near her eye causing her immediate pain. He said, "You've pushed me to do this. You have two weeks to make things better before I come back and shoot you in the face". The victim stopped talking or attempting to resist after this punch as the offender continued to alternate thrusting his penis into her vagina and anus.
48. Finally the offender ejaculated in the victim's anus or genitalia.
49. He then went into the kitchen and got something to eat and drink. He returned to the bedroom with a drink of water and lay on the bed. He looked at the victim and said, "You are so fucking putrid, look at yourself. I can't even stand the sight of you anymore". She was crying and said, "You did this to me Adam".
50. The offender said, "Oh no ... you did this to yourself ... There's no point crying. What are you crying for? You're fucking disgusting. I can't even stand the sight of you".
51. At about that time the victim's phone rang. The offender told her to answer it. She answered it and a woman from police communications centre said, "I just need to know if Adam Cranfield is there". The victim said, "Yes, but I can't talk to you right now. I have to go" and ended the phone call.
52. About 8:10 am the phone rang again and the offender told the victim to answer the phone. The victim recognised the phone number displaying on her phone was her friend, BU. She answered the phone and said, "I can't talk to you right now I've got to go" and ended the call.
53. Afterwards the offender asked the victim if she had "dogged" him to the police. the victim told the offender that BU rang and that she had told her that she couldn't talk. He told her to stay where she was and he began to pace around the house.
54. The numerous assaults causing grievous bodily harm on the victim during this part of the incident form count 6.
55. The numerous acts of vaginal sexual intercourse with the victim during this part of the incident form count 4.
56. The offender's numerous acts of anal sexual intercourse with the victim during this part of the incident form count 5.
57. The offender's numerous threats to kill the victim throughout the morning form count 8.
58. The offender's attendance at the victim's house in breach of the protection order and numerous threats to, and assaults on, her throughout the morning form count 1.
59. In response to the telephone call from BU, police attended the premises. Some police went to the front door of the house. Other police went around the back of the house and knocked on the rear glass sliding door but there was no response. A short time later police knocked on the door again and the offender told the victim to answer the door. She asked him if she could put some clothes on but he said: "No, fucking go to the door".
60. After about a minute the victim opened the glass sliding door. Police saw that she was crying and was completely naked apart from a towel or blanket that she was covering herself with. Police also saw that she had blood across her face, chest and shoulders with blood still running from her nose and mouth area.
61. Police asked the victim if the offender was still in the house and she nodded her head. She then walked out of the house and into the care of other police.
62. Two police officers entered the house, with weapons drawn, and directed the offender to come out of the bedroom. The offender said something which was not clear to understand and then said: "You guys better get in here cause in about 5 seconds there is gunna be a bang".
63. The two police officers quickly entered the bedroom where they saw the offender sitting on the bed completely naked. Police told him to get on his stomach which he did and they arrested him. The offender put on a pair of tracksuit pants before police took him away from the house and put him in a police caged-car. While being escorted to the car, the offender yelled obscenities towards the victim. He also yelled out to police: "You better go in and check on [the victim]. She is the victim here".
64. During the car trip the offender said: "Mate, I have been hitting the ice hard" and "I can't remember the past three days". Police saw that the offender appeared to have a bite mark on the inside of his right bicep.
65. In the meantime the victim went back into her house with other police and sat on the couch. Police saw that her nose was very swollen and bleeding and that she had a swollen upper lip. She was crying and shaking and told police what had happened.
66. At about 9:05 am police took the victim to The Canberra Hospital for treatment. In the meantime at about 9:30 am on Tuesday, 14 July 2015, crime scene investigators attended the address and took swabs and photos from areas in the lounge room and bedroom. Police saw a large quantity of blood on top of the bed in the master bedroom. Police also saw that a single lounge chair in the lounge room was tipped on its side and clothing scattered around the floor.
67. The victim was assessed by staff at the Canberra Hospital who arranged imaging to assess her condition. At about 11:00 am that day, approximately 4 hours after the incident, she was examined by a doctor who noted she had the following injuries:
(a) swelling and bruising around her right eye
(b) swelling on the right side of the forehead, which included pinpoint bruising and a 10mm x 5mm red bruise.
(c) swelling on the bridge of the nose including 4mm linear abrasion
(d) swelling and bruising on outer aspect of her right upper lip and inside of her lip
(e) fractures to two teeth in her upper right jaw
(f) swelling with faint 50mm x 50mm bruise along lower jaw
(g) linear abrasion running on the left upper back close to base of the neck about 50mm long
(h) bruising to her left shoulder and left middle back
(i) six bruises each 5mm x 5mm on her right middle back
(j) abnormal blue appearance to her nipples which were tender
(k) blue bruise to her upper inner left thigh
(l) blue bruise on her right lower inner thigh
(m) 4mm vertical linear split to the lower vaginal entrance (at 6 o'clock position) and a 3mm x 3mm abrasion (at 7 o'clock position)
(n) swollen perianal folds
(o) 5mm shallow perineal laceration (at 6 o'clock position) and 10mm shallow perineal laceration (at 12 o'clock position)
(p) anal lacerations (at 7 and 11 o'clock positions).
68. On Thursday, 16 July 2015, Dr Catherine Sansum conducted a followup examination of the victim which revealed further bruising, particularly around her left eye and right upper arm.
69. On Thursday, 23 July 2015, the victim underwent surgery to her nose to repair fractures to it. The victim also underwent dental work to cap her two broken teeth.
70. Since the incident, the victim has experienced persistent nasal pain along with a loss of sense of smell and partial loss of taste. Expert medical opinion is that it may take 6-12 months for the victim's conditions to settle.
71. Police subsequently obtained items that had been left by the offender in the Anytime Fitness gym. This included an access card registered to the offender, shoes and a packet of cigarettes in one of the shoes.
72. On 31 July 2015 police examined the items and opened the cigarette packet and saw a clip-seal bag which contained a crystalline substance which was later determined to be 3.1 grams of methylamphetamine. The possession of this substance gives rise to charge CC 2016/1916.
73. The victim of the offence read a victim-impact statement to the court. The statement indicates that she has, understandably, been significantly changed by the experience. She describes herself as a shell of her former self. She continues to fear the day when the offender will be free and living in the community. She describes the ongoing effects of anxiety and wariness and her loss of the joy of life. She recorded that she has to deal with the physical and emotional scars from having been assaulted by the offender. She pointed to the impacts on the relationships which she has with her children and the damage that she has suffered to any chance of future intimate relationships.
74. Counsel for the offender did not cross examine her on this statement.
75. Because of the gravity and depravity of the conduct I have set the events out in some detail as any simple summary formulation of the conduct of the offender would fail to fully express its awfulness or adequately bring home the likely impact of that conduct upon the victim.
76. As I have indicated earlier these offences involved an extremely grave course of conduct. The aggravating features of the conduct included:
(a) The course of conduct involved a sustained violent and sexually degrading series of assaults upon the victim.
(b) They were undertaken with force and over at a substantial period.
(c) The offender exploited his superior physical capacity to physically and mentally harm the victim.
(d) The sexual acts themselves were performed in a degrading manner.
(e) Each of the acts of sexual intercourse was unprotected and the offender ejaculated carrying with it the risk of disease and pregnancy.
(f) The threats and abuse made to the victim were such that they would be taken seriously.
(g) The offences occurred when the victim was home alone, minding her own business and entitled to feel safe. The offender obtained access to her home only because of the previous relationship with the victim.
(h) The nature of the conduct is such that is likely to have a significant impact upon the victim for the whole of her life.
(i) The offences were committed when the offender was subject to a suspended sentence of imprisonment and a good behaviour order as a result of orders made by the Supreme Court on 1 August 2013.
77. The four charges of sexual intercourse without consent (counts 2, 3, 4 and 5) are clearly at the upper end of objective gravity for this offence. That is because they occurred on numerous occasions and were accompanied by physical violence, threats, domination and degradation of the victim.
78. In relation to the charge of sexual assault in the third degree (count 7), this involved the assaults in the lounge room. The assaults formed part of a course of violent conduct to control and subdue her notwithstanding her resistance. Having regard to the availability of offences where the consequences of the assault involve actual (s 52) or grievous (s 51) bodily harm the assaults are in the upper range of objective seriousness for this offence.
79. The charge of assault occasioning grievous bodily harm (count 6) arises out of the assaults in the bedroom. The parties did not specifically identify which of the assaults in the bedroom occasioned grievous bodily harm. However the assaults to the victim's head including the loss of teeth, which caused substantial bleeding from her mouth and nose and required surgery upon her nose, are sufficient to constitute the offence. Although the harm itself is not in the upper range of seriousness for this offence, the circumstances in which it was inflicted puts this in the mid to upper range of objective seriousness for this offence.
80. The offender made a number of threats to kill the victim (count 8), each of which involved threats to shoot the victim in the face. Given the wrapped up nature of this charge I assess these to be in the mid to upper range of objective seriousness for this offence.
81. Count 1 involved the contravention of a protection order. This conduct involved not only attending the victim's address, approaching within 100 m of her, but also the numerous threats and assaults to her which were in breach of the terms of the order (set out above at [14]). It is, however, necessary to recognise that the conduct covered by the other offences cannot be punished again through this offence. Thus, excluded from the assessment of objective gravity must be the acts the subject of the other charges. Even when that conduct is excluded much of the conduct involves conduct which was offensive, harassing or would cause personal injury to the victim. I assess the combination of conduct falling within the scope of this charges being in the upper range of objective seriousness for this offence.
82. In relation to the charge of possession of methylampehamine I assess this as being in the low end of objective seriousness. While there is a substantial quantity of the crystalline substance which was found to contain methylamphetamine, there is no evidence as to the purity of the substance either in absolute terms or by comparison with what might be expected in the illicit drug market.
83. The evidence relevant to the offender's personal circumstances comes from:
(a) a presentence report dated 25 January 2017;
(b) an updated presentence report dated 12 May 2017;
(c) a report of Dr Anna Farrar forensic psychiatrist dated 10 March 2017;
(d) a report of Dr William Knox, consultant psychiatrist, dated 5 April 2013;
(e) certificates of completion of the "RUSH" program at the Alexander Maconochie Centre (AMC) Mental Health Services and a report of his participation in that program;
(f) a statement of attainment in relation to a first aid course;
(g) a statement of attendance of the completion of the seven-week Smart Recovery Australia program;
(h) a statement that he has participated in an education program relating to blood and body spills, blood-borne viruses and management of spills;
(i) a letter from a clinical psychology registrar at the AMC in relation to his treatment there;
(j) a certificate of achievement from an anger-management program at the AMC;
(k) two letters from a resident medical officer in relation to the condition of the father of the offender;
(l) documentation from the Department of Health in relation to the care needs of his father; and
(m) a letter from an employee of Directions in relation to the offender's participation in counselling and group sessions.
84. The offender is 38 years old. He was born in Sydney and was an only child. His mother frequently abused alcohol and died in 2008. His father is very old, had a stroke in February 2016 and resides in an aged care facility. He describes his son in the following manner: "He is not a violent person, but he changes completely when in the grip of that damned ICE."
85. Prior to the offences he had been involved in two long-term relationships in the five previous years. He was involved with both the women at the same time. One of the women was the victim of the offence. He has a son now aged four with the other. Both women have been victims of violent offending by the offender.
86. He completed year 12. He has been employed in a variety of jobs, rugby development officer, removalist, Harvey Norman dock manager, bank teller at Westpac, lender at Westpac. He moved from Westpac to the Commonwealth Bank as a lender in 2010 but was terminated from the Commonwealth Bank in 2012. He then worked for Aussie Home Loans for six weeks until his arrest on domestic-violence charges. He completed a business-related course in 2014 by distance education. While in custody he has enrolled in a tertiary preparation package at the University of Southern Queensland. He hopes to enrol in and complete a business diploma in management or marketing.
87. He has significant financial liabilities, $30,000 of credit card debt and $100,000 of debt from a mortgage that was foreclosed. While engaged in an illicit-substance abuse he mainly associated with antisocial peers.
88. He has a history of illicit-substance abuse including alcohol, cannabis, amphetamines and methylamphetamine. He commenced using methylamphetamine at least as early as 2010. He supported his addiction by selling drugs. He has also used synthetic mephedrone also known as "meow meow" or "bath salts" on two occasions another illicit drug, gamma hydroxbutyrate ('GHB'), six or seven times.
89. In 2011 he was hit by a car when riding his motorcycle. He suffered a loss of consciousness and a right ankle injury. While he suffered ongoing pain and disability in his right ankle, in the hip and right shoulder, it is not clear how long this persisted.
90. He was the victim of a shooting in March 2015 and his use of methyl amphetamine increased significantly up until the time of the offences. He was shot in the foot and shoulder with a shot gun. He had surgery to remove the bullets in his shoulder and the pellets in his foot but discharged himself from hospital early. He reported chronic pain and a loss of strength in his left arm, some remaining pellets in his right foot and leg as well as pain and nerve damage. He was taking prescribed opiates for pain including Endone and OxyContin.
91. There is evidence that he has obtained illicit drugs or legal but nonprescribed drugs while in custody. In particular he admitted smoking buprenorphine which had not been prescribed for him.
92. He has not attempted counselling or rehabilitation for his drug use. He has stated that he is open to participating in drug rehabilitation programs whilst a sentenced prisoner.
93. While he stated that he did not remember the offences due to his level of drug use he accepted the allegations made against him. He expressed to the author of the presentence report appropriate empathy for the victim. He recognised that in regard to his history of family-violence offending he should not enter further relationships without having undertaken treatment to address that behaviour.
94. The author of the presentence report identifies him as being at a high risk of general reoffending. That is because he has many criminogenic risks including illicit-substance abuse, mental health issues, uncertainty around his accommodation, family violence and sexual offending, unemployment and financial issues.
95. He has a history of outpatient treatment for mental health problems.
96. He was diagnosed with attention deficit hyperactivity disorder when eight years old. That diagnosis was repeated by Dr Knox in 2013. He had emotional problems as a teenager. He has overdosed on drugs on multiple occasions. He perceived a worsening in his mental condition after the motorcycle accident in 2011 although he did not have specific psychiatric or medical treatment for his head injury.
97. Dr Knox made a diagnosis of post-traumatic stress disorder ('PTSD') in 2013 relating to the motorcycle accident. After the gunshot injury he suffered from PTSD and was prescribed drugs to address that.
98. He first developed psychotic symptoms in 2013. Although he sought some treatment for them he minimised his symptoms in order not to be hospitalised.
99. In relation to his mental state at the time of the offending conduct he reported that he was using methylamphetamine at the rate of half a gram to one gram daily and had used GHB some nights before and meow meow in the previous week. He described having auditory hallucinations and delusions that a group of people were following him. Dr Farrar makes a number of diagnoses in relation to his condition at the time of the offending conduct:
(a) Substance-Induced (methamphetamine) Psychotic Disorder;
(b) Post-Traumatic Stress Disorder;
(c) Stimulant (Methamphetamine) Use Disorder
(d) Borderline Personality Disorder
(e) Antisocial Personality Disorder;
(f) a pain disorder following his gunshot injuries.
100. She expressed the opinion that the offender was intoxicated with methamphetamine at the time of the offences. She expressed the opinion that methamphetamine use could cause sexual disinhibition such as that involved in the incidents at the gym. She also recorded that the Substance Induced (Methamphetamine) Psychotic Disorder would have likely affected his judgment although the degree to which they disorder contributed to the offences was not clear from the history and evidence. I do not find that the offender was subject to psychoses at the time he committed the offences because the only basis for this opinion is the uncorroborated history given by the offender to Dr Farrar and those statements are not proved by evidence of the offender or otherwise corroborated. Dr Farrar expressed the opinion that methamphetamine intoxication was likely to increase his alertness, sexual drive, aggression and disinhibition at the time of the offences. It would also impair attention and concentration, his memory, judgment and decision-making skills.
101. The offender has a criminal history. While the criminal history does include some crimes of violence and some crimes involving family violence, there are no charges of the gravity of the present charges. The record includes a number of juvenile offences as well as offences committed as an adult. The offences committed as an adult include common assault, damage property, drive whilst disqualified, assault occasioning actual bodily harm, possession of a prescribed restricted substance, drink-driving and contravention of an apprehended violence order.
102. He was convicted of two offences of assault occasioning actual bodily harm committed in November 2012 in relation to his other partner. He served time in custody on those charges and upon resentencing as a result of breach of associated good behaviour orders. He was also convicted of a contravention of an apprehended violence order which occurred on 5 January 2014.
103. On 15 July 2015 the offender was charged with these and other offences arising out of this incident. On 4 August 2015 he pleaded not guilty and the matter was listed for case-management hearing. The police prepared the brief of evidence and served it on the offender. On 8 February 2016, at a case-management hearing, the offender maintained his plea of not guilty and was committed for trial. On 22 August 2016 the matter was listed for trial in the week of 21 November 2016.
104. On 16 November 2016, the week before the trial and following negotiations between the parties, the offender pleaded guilty to the charges set out above, charges in full satisfaction of the indictment.
105. There is clearly utilitarian value in his plea due to it sparing the victim the necessity to relive the events during a trial. However having regard to the physical and forensic evidence corroborating the evidence of the victim, the Crown case was an extremely strong one. Because of the lateness of the plea of guilty and the strength of the Crown case I consider that only a modest discount of 5% upon the custodial sentences than would otherwise have been imposed is appropriate.
106. The offender was in custody from 14 July 2015 and remanded in custody by the Magistrates Court on 15 July 2015. Of the 682 days he has spent in custody before today he was subject to sentences of imprisonment arising from resentencing for earlier offences totalling 152 of those days. I consider it appropriate to backdate the sentence to take into account the balance of the time spent in custody namely 530 days. This gives a backdate date of 13 December 2015.
107. Having regard to the nature and gravity of the conduct this is clearly a case in which, so far as counts 1 to 8 are concerned, the only appropriate sentences are sentences of imprisonment. Further, it is appropriate that the sentence of imprisonment be served by way of full-time detention.
108. The gravity of each of the offences and the gravity of the overall course of conduct requires a substantial term of imprisonment. Punishment, general and specific deterrence require this. In the circumstances of this case, the prospect of rehabilitation which I will deal with further below, is not such as to significantly lessen the overall penalty. Rather it is a matter to which consideration is given in the setting of a nonparole period.
109. Under the Crimes (Sentencing) Act 2005 (ACT) the Court is required to take into account whether the offender was affected by alcohol or a controlled drug when the offence was committed in the circumstances in which the offender became affected: s 33(1)(p). Neither party submitted that intoxication with methylamphetamine could be a mitigating factor in this case. However it is certainly a factor that explains the context of the crime. The evidence in the report of Dr Farrar permits a conclusion that the effects of methylamphetamine were to increase his alertness, sexual drive aggression and disinhibition at the time of the offences. It also impaired his judgment and decision-making skills. While the evidence of intoxication and the bizarre behaviour of the offender prior to travelling to the victim's house indicates an absence of premeditation, the fact that the offender was a long-time user of methylamphetamine and must have been familiar with its effects means that its ingestion cannot be treated as a mitigating factor.
110. A consequence of imprisonment for the offender is that he is likely to remain in custody until his father dies and will be unable to assist him in his final years. That is an unfortunate consequence of the gravity of the offender's conduct.
111. I accept that the offender has taken steps whilst in custody to rehabilitate and educate himself. Having regard in particular to his Borderline Personality Disorder and Antisocial Personality Disorder whether or not he is able in the long-term to get himself into a position where he can lead a law-abiding life is not clear. The report of Dr Farrar indicates significant risk factors for reoffending as well as some positive prognostic indicators. It is not possible to say at this stage what his prospects of rehabilitation are. That will only be able to be better assessed when his conduct in detention is assessed over a longer period. Further, it will really only be tested when he returns to the community and is confronted with the challenges of living and socialising in the community. Thus the steps that he has taken so far whilst in detention can only be considered as tentative steps indicating a positive attitude rather than clear indicators of the prospects of long-term rehabilitation.
112. The sentences I impose have taken into account the wrapped-up nature of each of the charges. They recognise that there should be a substantial degree of concurrency because of the fact that the offences were committed during a course of criminal conduct over a relatively confined period. However, on the other hand there must be some cumulation to recognise that each additional form of offending conduct deserves recognition within the overall sentence imposed. I have paid particular attention to the totality of the sentence imposed when considering the extent of concurrency.
1. Adam Carlisle Cranfield is convicted on each charge.
2. For Count 1, contravene protection order, I impose a sentence of 2 years, 10 months and 6 days commencing from 13 December 2015 and expiring on 18 October 2018.
3. For Count 7, sexual assault in the third degree, I impose a sentence of 1 year, 10 months and 24 days commencing from 26 May 2017 and expiring on 18 April 2019.
4. For Count 2, sexual intercourse without consent, I impose a sentence of 7 years, 7 months and 5 days commencing from 14 September 2017 and expiring on 18 April 2025.
5. For Count 3, sexual intercourse without consent, I impose a sentence of 7 years, 7 months and 6 days commencing from 13 March 2018 and expiring on 18 October 2025.
6. For Count 6, recklessly inflict grievous bodily harm, I impose a sentence of 3 years, 9 months and 17 days commencing from 2 July 2022 and expiring on 18 April 2026.
7. For Count 4, sexual intercourse without consent, I impose a sentence of 7 years, 7 months and 5 days commencing from 2 July 2022 and expiring on 6 February 2030.
8. For Count 5, sexual intercourse without consent, I impose a sentence of 7 years, 7 months and 6 days commencing from 1 January 2023 and expiring on 6 August 2030.
9. For Count 8, making a threat to kill, I impose a sentence of 1 year, 10 months and 24 days commencing from 14 March 2029 and expiring on 6 February 2031.
10. On charge CC 2016/1916 the offender is convicted and fined $400. He is allowed seven days to pay that amount.
11. The overall sentence I impose consists of a nonparole period of 9 years and 6 months commencing from 13 December 2015 and a term of sentence of 15 years, 1 month and 25 days. The offender will become eligible to be released on parole on 12 June 2025.
I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
R
Cranfield [2017] ACTSC 171