The offender, Ms Jolley, stood trial before a jury between 15 June and 22 July 2021 on an indictment originally containing 20 counts. All of those counts arose on the Crown case from actions said to have been carried out by the offender in sending letters of a threating or intimidating nature either to herself and/or to the University of Technology Sydney where she held the position of dean in the faculty of Science. However, at the end of the Crown case I directed that verdicts of not guilty be returned by the jury in relation to counts 12 to 20 as I was not satisfied that there was evidence to support those counts.
On 22 July 2021 the jury found the offender guilty of all remaining 11 counts on the indictment. She therefore must be sentenced in relation to those 11 offences which are as follows: 10 counts under s 93Q(1) of the Crimes Act 1900 of conveying false information likely to make the recipient fear for the safety of a certain person. The maximum penalty for each of those offences is five years imprisonment. Also one count under s 192E(1)(b) of dishonestly causing a financial disadvantage by deception, the maximum penalty being 10 years imprisonment.
[2]
FACTS
In sentencing the offender it is necessary for me to make findings as to the relevant facts which must be consistent with the jury's verdicts. Any matters in aggravation must be established beyond reasonable doubt while any matters as to mitigation need only be satisfied on the balance of probabilities.
I find the following facts.
On 8 August 2018 the offender commenced an employment contract with the University of Technology Sydney or UTS as Dean of the science faculty. In early 2018 a course viability review had been conducted by UTS which identified the Traditional Chinese Medicine also known as the TCM course as being one of the least financially viable courses in the faculty of science. This review process continued in 2019.
After the offender commenced as the Dean of science she became a sponsor of the course review. There was some resistance to the idea that the TCM course might be discontinued, which was being expressed by members of the external TCM community and also by students and staff who might be affected by any course closure.
Between about May and July 2019 the offender participated in a series of meetings with various stakeholders at UTS. Ultimately she made a recommendation to close the TCM course but that recommendation did not at that stage have the support of the majority of the UTS board, due to some members of the board being concerned that the closure plan had not adequately taken into account students being able to finish their degrees.
A petition opposing the closure of the TCM course had been started in May 2019 and several protests occurred about a month later. The offender claimed to have been approached on more than one occasion by people concerned about the closure of the course. The offender also reported having received a handwritten letter threatening to give her photo to the Chinese mafia, which she threw out. There was also an incident in which gas taps had been left on in one of the UTS science labs.
On 31 July 2019 the offender contacted UTS security and reported that she had located a yellow envelope containing at typed letter or note amongst some papers in her bag while she was in an academic board meeting. The letter said, "chop our future, we chop yours". This letter or note is the subject of the offence in count 2.
The offender also told security that about six weeks earlier she had received a similar handwritten threatening letter which she had thrown out. Police were contacted by UTS security on that day and the offender told the police about the circumstances of her finding the letter. The offender also told police about the two different occasions she had been approached by members of the public who were hostile toward her for attempting to close the TCM course, as well as the "Chinese mafia letter" which she said she had discarded.
In her evidence to the jury, the offender said that the letter must have been placed in her bag by somebody else, perhaps while the bag was in her office, however the jury's verdict of guilty on this count indicates that it was the offender who typed this letter and pretended to "discover" it during her meeting. It follows from the verdict that she did this knowing it would cause a member or members of UTS staff to fear for her safety.
As a result of this letter UTS increased security around the offender and began monitoring her mail. From 31 July until 16 September 2019, Mr O'Mara of UTS security escorted the offender to and from work on the train unless she left work after about 6.30pm in which case she was encouraged to take a taxi. However after 16 September 2019 a hire car was used to drive her to and from work. Also on 1 August 2019, the day after this first letter was reported, CCTV cameras were installed in the level 7 office area where the offender worked and a security officer was arranged to escort her on campus.
Turning then to the facts concerning count 3.
On 6 August 2019 the offender contacted UTS security and told them she had located on a table in the staff room a white envelope addressed to her after just having left a meeting on level 7 and while accompanied by assistant site manager Mr Ricki Walsh who was escorting her while on campus. Inside the envelope was a greeting card with the words on the front "Goodbye, see ya, good luck". The card on its inside also included a photograph of the offender's face with a red cross written through it.
After this letter was found Mr Walsh contacted other members of UTS security who attended and collected the letter using gloves to handle it. Police were called and attended and collected the letter. On 22 August 2019 police followed up UTS security to ask if any CCTV material had been discovered to identify anyone of interest entering or leaving the meal room on 6 August.
Although the offender claimed that she had found the letter on the lunchroom table, the jury's verdict of guilty involves a finding that it was the offender who was responsible for this letter. I conclude therefore that she either left it on the staffroom table at some earlier time or pretended to discover it. I find that she did this knowing that it would cause a member or members of UTS staff to fear for her safety.
The facts relating to count 4 are as follows:
On 16 August 2019 while opening the offender's mail the offender's Executive Assistant, Ms Borg, found a note or letter inside an envelope addressed to the offender. The letter said, "You are so ignorant. I made you sick on 4/7 and more sick on 23/7. You have no clue what can happen. You can prevent it".
This incident was reported to UTS security and also to police who attended. The offender told police that she had become mysteriously ill on 23 July 2019 when she had collapsed while making a presentation at a science awards night.
I am satisfied, consistent with the jury verdict, that the offender was responsible for this letter and that she either sent it to UTS or left it on her assistant's desk knowing that it would be reported to UTS security and probably to police. I am also satisfied that she did this knowing that the letter would cause a member or members of UTS staff to fear for her safety.
The facts relating to count 5 are as follows:
On 23 August 2019 the offender again contacted UTS security and told them she had received a letter when collecting mail from her post office box in Wollongong. The offender said she was in Wollongong to see students at the university where she had worked prior to UTS. The letter said, "You are fucked racist bitch, China hating lesbian, we watch you, we see what you do, you're not safe and you know".
After being told of this letter, UTS security contacted police who attended UTS and collected it. After this the police officer then in charge of the investigation provided an update to his supervising inspector who arranged to meet with the Vice Chancellor of UTS to discuss the various incidents.
Consistent with the verdict of the jury, I conclude that the offender created this letter and told UTS security that she had found it in the Post Office box in Wollongong knowing or believing that this would cause UTS staff members to fear for her safety.
Turning to the facts for count 6.
About 11am on Saturday 31 August 2019 the offender left Australia on a university related trip to China with the Vice Chancellor. She returned on 10 September 2019.
On Thursday 5 September 2019 the offender's Executive Assistant contacted UTS security and told them that she had found a letter in her in-tray addressed to the offender in a grey envelope. The letter said, "Dedication ignored? Losing your job? Career destroyed? Life shattered? You know who did this to you or your family. You know where to find her. Building 7, level 7, 75 Broadway Ultimo". The note or letter included a photograph of the offender underneath these words.
After this letter was found, UTS security attended and collected it and passed it on to police. On the day that the Executive Assistant, Ms Borg, found this letter the offender was still in China on the work trip. The Crown argued on sentence that the offender posted this letter shortly before or on the day of her departure for China and did so believing the letter would arrive whilst she was away, thus setting up some type of alibi.
Given the timing of this letter's postage and receipt there is a very strong suspicion that that is so, but I am not satisfied beyond reasonable doubt of this suggestion, in part because at that time there is no evidence that any person, whether security, police or anyone else, held any suspicion that the offender was sending herself threatening letters. In other words, there was no convincing reason why the offender needed to set up any sort of alibi.
Consistent with the jury's verdict on this charge, I conclude that it was the offender who created this letter and posted it before departing Australia. I conclude that she did this knowing that the contents of the letter would cause UTS staff to fear for her safety.
The facts concerning count 7 are as follows:
At 6.45am on 16 September 2019 the offender informed the manager of UTS security, Mr O'Mara, that someone had gone into her backyard overnight, cut up items of her clothing, and stolen a number of items of her underwear. She said that she had located an A4 note on her vehicle which said, "I know where you live". This was the first incident involving the offender's home address. The backyard of the offender's home where the incident occurred was accessible via an unlocked gate.
As a result of being contacted by the offender, Mr O'Mara of UTS security took a taxi to the offender's home and then contacted another member of security. Police attended the home and spoke to the offender. The offender claimed to have removed the note from the windscreen of her vehicle and placed it in a plastic envelope before Mr O'Mara arrived. The offender subsequently told police she did this in order to preserve any DNA or fingerprint evidence.
Police arranged the attendance of a crime scene officer to assess for DNA and fingerprints. Police also obtained a statement from the offender and took detailed photographs of the location. Police also completed a canvas of the surrounding neighbourhood to identify any witnesses or CCTV footage to assist in identifying persons of interest. The offender told police that she believed this incident was related to her efforts to close the TCM course at UTS.
Consistent with the verdict of the jury, I conclude that the offender created the A4 note and placed it on her car. It also follows from the jury's verdict that she cut up items of her own clothing and claimed that her underwear was stolen knowing that these claims would cause UTS staff to fear for her safety.
In response to this incident, Mr O'Mara arranged for the installation of a security system which comprised cameras, monitors and security lighting. The system was also going to be monitored by UTS security division and additional UTS security personnel were to be stationed at the offender's residence until the matter was resolved.
Turning to the facts concerning count 8.
On 24 September 2019 UTS mailroom staff intercepted an envelope addressed to the offender. This envelope was opened by security staff and found to contain a "sympathy card" with the words "sorry for your loss" on the front. Inside the envelope was a pair of woman's underpants that were red or pink in colour. The items were collected by UTS security and passed to police the next day after which police spoke with the offender who confirmed that the underwear was hers and had been stolen from her backyard on 16 September 2019.
The jury's verdict indicates that the offender was responsible for this letter and that she sent the card with her underwear in it knowing or believing that it would cause staff at UTS to fear for her safety.
Turning to the facts concerning count 9.
On 11 October 2019 the offender contacted police and stated that she had received a letter sent to her home address. The letter said, "I know where you work. I know where you live. I know what you wear and your smell. You know what you're doing and to stop it".
CCTV footage from the front of the offender's house on this day shows the offender walking from her front door to retrieve a garbage bin from the driveway, after which she walked onto the street and out of view of the CCTV camera. However CCTV footage shows the offender returning about a minute or so later holding some items in her hand, then picking up another item from the gutter near her driveway and then returning to her property with the various items. One of the items was the letter about which the offender later informed police.
The offender told the police that when she had walked out of CCTV camera view she had bumped into a man whose name she believed to be "Jim" and who lived in the vicinity. As part of the police investigation of this matter, police on 7 November 2019 canvassed the area near the offender's home looking for a person named Jim but identified no-one by that name.
In accordance with the verdict of the jury on this count, I find that the offender was responsible for this letter. Consistent with that verdict it follows that the offender created the letter herself, placed it with the local newspaper and then pretended to find the letter after which she alerted her husband, UTS security and police. I conclude that she created and conveyed this letter knowing or believing that it would cause fear for her safety.
The facts relating to count 10 are as follows:
On 22 October 2019 a UTS mailroom worker identified a suspicious letter addressed to the offender. As a result, UTS security attended the mailroom and used gloves to place the letter into a "suspected white powder incident box" which was a special sealed box with built-in gloves to permit letters or packages to be opened without risk of any contaminants injuring persons in the vicinity. Once opened the item was found to be the same type of "goodbye card" that is the subject of count 3. It also contained a green or grey-coloured pair of woman's underpants which were subsequently confirmed by the offender as belonging to her and which she said had been stolen from her home on 16 September.
This letter was subsequently forensically examined and in late October police were informed that on the reverse or sticky-side of the postage stamp a fingerprint which matched that of the offender was found. It was from this date that the police were no longer treating the offender as a genuine victim.
On 31 October 2019 police obtained a warrant to intercept the offender's telephone. On 5 November that year the offender emailed the officer in charge, Officer Rawlings, asking for any developments in the investigation. On 7 November Officer Rawlings replied, stating that he hoped to make an arrest in the near future.
It follows from the verdict of the jury on count 10 that the offender created this letter and sent it to herself at UTS along with an item of her underwear, knowing that this would cause UTS staff to fear for her safety.
Turning to the facts relating to count 11.
On 13 November 2019 the offender arrived at her work office on level 7 at UTS around 8am. Her arrival was recorded on CCTV by a camera inside her office and by another camera facing the outside of her office. The camera inside the offender's office recorded her typing on her laptop. Records indicate that shortly after this the offender used her staff ID to send documents for printing outside her office. The CCTV material also showed the offender highlighting a six line document and then deleting the text that she apparently just sent to the printer.
The offender was then captured on CCTV walking towards the printer area and then returning holding some A4 pieces of paper. Later that day the offender contacted UTS security and said she had found a six line letter or note in the unclaimed document tray next to the printer. The note said, "Dianne, we have removed a Dean before and we can do it again. You don't belong here. You are not wanted here. Either you leave or we will do it".
The pattern of the text on that letter was a close match to the form of the document that the offender had been recorded typing and apparently printing earlier in the day. At the trial the offender said that she had created this letter and left it at the printer but claimed that she did so with the intention or expectation that her actions would be detected by UTS security and that her employment contract would be terminated for misconduct. However the jury apparently rejected this explanation and consistent with their verdict I conclude that the offender created the letter and brought it to the attention of UTS staff knowing or believing that it would cause persons to fear for her safety.
On 15 November 2019 police executed a search warrant at UTS and arrested the offender. In an intercepted telephone call between the offender and her Executive Assistant, which was recorded later on the day of her arrest, the offender said:
"As things have gone on through the year I have found it really hard and as the various things have happened and the pressures have happened, threats have happened, I've found it really hard. And when the first lot of threats came in I was getting support and it was nice to know we had support but when things, support was disappearing, I made some bad judgment calls and two of the letters that were sent were sent from me because I wanted support and I should have gone and seen a psychologist but now they are accusing me of everything. They are accusing me of the gas taps, sending things to Attila, of the vandalism, of all these sorts of things that I haven't done".
Also, on 18 November 2019, the offender sent to the Director of Human Resources, Ms Jennifer Lacoon, a text message which said in part:
"I know I have cracked under the pressure. After a lot of reflection I think I can pinpoint exactly when. As a result I did a couple of things to piggyback on events to keep a sense of additional arms protecting me, things I'm not proud of. Obviously recently sabotaging myself I guess as a subconscious need to make it stop. Ironic, because I loved the job but the weight was too heavy, I am sorry I couldn't take it. But now I am the only suspect for all of the related safety issues and communications this year...I promise I didn't start all of this, didn't endanger the safety of anyone, was not out for financial personal gain, nor send communications to Attila or others who may have received threats. But I just need to work out how to prove it, as understandably everything is circumstantial will now point to me...".
I note that the name "Attila" is a reference to the then Vice Chancellor of UTS.
On that same day, Ms Lacoon spoke by phone with the offender and in this call she made similar comments, including that she had sent "a couple of letters" but that she "didn't do the gas taps".
Turning then to the facts concerning count 1.
In response to the various threatening letters which make up counts 2 through to 11, UTS engaged extra security measures. This commenced on 31 July 2019 with the first letter when Mr O'Mara started escorting the offender to and from work on the train, or if leaving UTS late, the offender being told to take a taxi. This arrangement continued until 16 September 2019 when the clothing incident happened at the offender's house. Also, on 1 August 2019, the day after the letter of 31 July 2019, CCTV cameras and some duress alarms were installed in the offender's workplace, which remained in place for the duration of the offences.
At the beginning of August Mr Walsh, who was an Assistant Site Manager employed by MSS security, commenced escorting the offender around campus. After the clothing incident on 16 September 2019 additional measures were put in place in the form of CCTV and using hire cars to drive the offender to and from work. In the trial a spreadsheet document was admitted as exhibit 2 and that document lists various security measures to a total value of $127,596.93.
It was submitted on sentence that the jury's verdict on this count is silent as to the quantum of loss about which it was satisfied, which of course is true. However while there was some limited cross-examination of Security Manager, Mr O'Mara, about the items making up the total in exhibit 2, he maintained that the costs set out in that document had in fact been incurred by the university. It was submitted by the offender that the university had made no attempt to "ameliorate the loss" by for example removing the CCTV cameras from the offender's home and her office area.
While this was not an issue which featured significantly in the trial I accept that some reduction in this amount might - and I stress "might" - have been achieved if items like cameras and duress alarms had been removed and returned, although it is unlikely, it seems to me, that this would have amounted to any significant reduction in the costs incurred. However, I intend to give the benefit of any doubt on this issue to the offender, and proceed on the basis that the costs referred to in exhibit 2 were at least $100,000.
[3]
OBJECTIVE SERIOUSNESS
In determining the appropriate penalties it is important that I make some assessment of the objective seriousness of the particular offences before the Court. Each of the offences carry potential prison terms with the offence in count 1 attracting a maximum of 10 years, and the offences under s 93Q a maximum of five years.
The maximum penalties are not only important guideposts to which I have had regard but they also mark these sorts of offences as involving some seriousness. However, the maximum penalties are of course reserved for the worst possible case and so it is important that I make an assessment of the objective seriousness of each of the particular examples of these offences based on the facts I have found.
In assessing the objective seriousness of the offences I will first consider each of the ten letters or notes that are the subject of counts 2 through to 11. The jury's verdicts on those counts amounts to a finding that the offender was herself the author and conveyor of each of those letters or notes.
There are a number of features that are common to all or at least many of these letters. I have taken care not to double-count these aspects as the objective seriousness of each offence must be considered on the basis of the evidence relating to that particular offence.
However I make the following observations:
Firstly, the information in each of the 10 letters was clearly taken seriously and created inconvenience, cost and considerable concern within the university. While each of the letters were directed at one person, that being the offender, the evidence at trial indicated that the letters created a level of concern within the university generally and in particular in the faculty of science area where the offender's office was located. However, the fact that the offender was the direct target of each of the letters is a matter that makes them less serious than they would have been if the letters had been directed at some innocent person who would not have known whether the threats were genuine or not.
Secondly, while none of the letters or notes contained direct threats of any specific form of physical violence or harm, many of them did carry an implied threat of harm. For instance, letter 3, which is the subject of count 4, referred to having made the offender "sick", and the fourth letter said that she was "not safe". Also the events of 16 September 2019 where items of clothing were cut up and supposedly stolen from the offender's home represented an escalation in the threatening nature of the activities because of the location where this took place and the accompanying note, "I know where you live".
This level of escalation was maintained in letter 7 on 24 September which enclosed a pair of the offender's underpants which she had reported stolen on 16 September, and with letter 8 which referred to knowing, "where you live...what you wear...and your smell", and again with letter 9 on 22 October which enclosed another pair of the offender's underpants. The concerns arising from the letter found at the offender's family home on 16 September is demonstrated by the installation of CCTV cameras at that location after that incident, as well as the other measures that were taken with respect to the offender's home. The concerns arising from each of the letters received after that date were therefore magnified - understandably - by the confirmation that the person responsible for the letters apparently knew where the offender lived.
Thirdly, many of the offences involved a degree of planning, such as in creating the typed notes, or purchasing greeting cards and then purporting to find them, or leave them to be found, or in posting them. The offence of 16 September 2019 at the family home clearly involved a higher degree of planning by the offender cutting up clothes in her own backyard and then later committing the offences in counts 8, 9 and 10 where the letters or notes were linked back to the backyard invasion or at least alleged backyard invasion.
Turning specifically to each of the offences.
The objective seriousness of count 2, which of course is the first letter, I make the following observations about that matter. This letter, while implicitly threatening, was rather non-specific as to the nature of its threat. However it did lead to measures such as the introduction of CCTV, duress alarms, increased security patrols, and to the offender being given an escort. I assess the objective seriousness of this offence as below the midrange and towards the lower range.
I assess the objective seriousness of the count 3 offence relating to letter 2 also as being below the midrange and towards the lower range. Again, it was taken seriously with security using gloves to handle it, police being called, and following up whether CCTV had recorded anything suspicious, however it did not involve any obvious threat of physical harm.
In relation to the objective seriousness of count 4, which relates to letter 3, I make the following observations. The objective seriousness of that count is greater in my view than the two earlier letters. This letter suggested that the author of the note had made the offender "sick" on prior occasions, and when police attended the offender told them that she had become mysteriously ill on 23 July, while making a presentation at an awards night. Also, when combined with the words, "you have no clue what can happen", this letter involved an implicit threat that some physical harm might be done to the offender which she could "prevent".
There is also the fact that the offender's Executive Assistant, Ms Borg, opened this letter with the obvious risk of distress being caused to Ms Borg. I assess this offence as being above the lower range and closer to the midrange.
The objective seriousness of count 5, I also regard as being above the lower range and closer to the midrange. In particular, this letter suggested the offender was being "watched" and was "not safe". Also, as this letter was said by the offender to have been located in her mail at Wollongong, it represented a geographical widening of the scope of the "stalking" behaviour to which the letter suggested the offender was a target. Again, police became involved and this resulted in a meeting with the Vice Chancellor to discuss the various incidents.
As to the objective seriousness of count 6, I make the following comments. This letter included a photograph of the offender and reference to her specific work location. In so doing, and in stating, "you know where to find her", it suggested that the supposed stalker might have been inviting others to target or harm the offender in some way. This letter also was found by the offender's Executive Assistant, Ms Borg, with the potential that it may have caused distress to her. I assess this offence as being above the lower range and closer to the midrange.
Turning to the objective seriousness of count 7 which relates to the sixth letter. Count 7 relates to the note left in the offender's backyard on 16 September 2019, when her clothes were found to have been damaged and items of underwear supposedly stolen. In my opinion this letter represented a significant escalation in the objective seriousness of the offending. It confirmed that the offender was being targeted not only at work but that the family home was known and had been entered illegally with her personal property being damaged or stolen.
The seriousness of this offence is confirmed by the fact that police treated the location as a crime scene, taking numerous photographs, looking for fingerprints and canvassing neighbours. It also led to CCTV and security lighting being installed at the offender's home as well as other increased security measures. I assess this offence as being around the midrange.
Count 8 relates to a "sympathy card" which said "sorry for your loss" on the front and which was addressed to the offender and opened by security staff and which contained a pair of red underpants that the offender said had been stolen from her backyard on 16 September. Given the link to what might be referred to as the home invasion incident on 16 September 2019 and the further police involvement I assess this offence as being just below the midrange.
The objective seriousness of count 9 is also to be assessed in light of its link to the home invasion event of 16 September 2019, given its assertion that, "I know where you work. I know where you live...what you wear and your smell...". It also follows from the jury's verdict that the offender in effect "staged" this event in front of the CCTV camera that was installed at her house which represented an escalation in the planning associated with the earlier offences. I assess this offence as being just below midrange.
The objective seriousness of count 10 is in my view similar to count 8, given that both this count and count 8 involved letters enclosing items of underwear supposedly stolen from the offender's backyard on 16 September 2019. I assess this offence as being just below the midrange.
As to the objective seriousness of count 11, I make the following findings. This letter or note is the one that the offender told the jury she had indeed created and left to be found. It stated, "We have removed a Dean before and we can do it again. You don't belong here. You're not wanted here. Either you leave or we will do it".
In my view the objective seriousness of this offence is somewhat less than the four letters that preceded it. It made no reference to the supposed home invasion event of 16 September and involved a threat to remove the offender as Dean rather than to cause her any physical harm. In my opinion the objective seriousness lies below the midrange and towards the lower range.
The objective seriousness of count 1 is linked to the offences in counts 2 to 11, given that it is those offences which resulted in the financial loss relied upon by the Crown for count 1. I do not consider that the offender committed this offence for the purpose of any financial benefit, however, that is not the essence of the offence of which she has been convicted. The offence is one of dishonestly causing a financial disadvantage by deception. Consistent with the jury's verdict, I am satisfied that she did by deception dishonestly cause a loss which I am satisfied beyond reasonable doubt amounted to at least $100,000.
While that is a substantial sum it is not overly significant when compared with many other cases involving offences of causing a financial disadvantage. However, it is necessary to take into account that the actions making up this offence involved the ten separate notes or letters which the offender produced over a period of three and a half months. The offence involved, in other words, a course of conduct which also involved a degree of planning. In my view the objective seriousness of this offence lies well above the lower range but below the midrange. I am conscious in relation to this offence of the need to avoid double counting on sentence, given that the offending in counts 2 through to 11 involves overlap with that making up count 1.
It was argued by the Crown that each of the offences before the Court involved a breach of trust, however I do not accept this submission. This was not a case in which the offender's senior position at the university enabled her or assisted her to commit any of the offences. While her senior position, and the fact that she was the target of the threatening letters, meant that she was an unlikely suspect, this does not in my view amount to a breach of trust.
While the Crown correctly told the jury that it did not have to prove a motive for the offences, it nonetheless did suggest a motive or motives. At the start of the trial, the Crown suggested the offender's actions were "related to in part the attempt to have the university approve the closing down of this course", (that is, the TCM course) and also to "enable her to be given support both physically and emotionally".
By the end of the trial, the motives suggested by the Crown had, however, changed slightly. In its closing, the Crown argued to the jury that the offender had, "found it very difficult to push through the Traditional Chinese Medicine course...and wanted a way out in the end and then to accomplish that she then sent letters to herself which led to the university imposing those security measures". The Crown submitted to the jury in closing also, however, that another reason for her sending the letters was linked to her employment contract which "had a bonus consideration that she would get based on performance" and that this "was another reason that she wanted to push through with the closure of the TCM course".
In its submissions on sentence, the Crown argued that the offender sent the 10 letters as she was originally under pressure to close the TCM course and was trying to protect her lucrative contract and bonus. The Crown further argued on sentence that once it became too much for her, the offender attempted to get out of her contract by sending letters to herself causing UTS to implement expensive security measures to protect her.
I have referred to the shifting nature of the Crown's attempt to suggest a motive for the offences not as any form of criticism of the Crown but rather as a demonstration of the difficulty in this case to come up with a plausible motive for the offending.
The offender in her evidence claimed - when I say "her evidence" I mean her evidence to the jury - claimed that she was the author of only one of the letters, that being the 10th letter. She claimed that she took this action as a means to get out of her contract by being terminated for misconduct, and that in doing so she had no intention to cause any person to fear for her safety, and no belief that any such fears might arise. However, the jury's verdicts in relation to all 11 counts appear to involve a rejection of this evidence.
The offender's claim that she was responsible for only this letter was contradicted by her admission to the Director of HR, Ms Lacoon, in a phone call and a text message on 18 November 2019 that she had herself, "sent a couple of letters". The offender's evidence before the jury about being responsible for only one letter was also contradicted by exhibit 28, which was a telephone intercept of a phone call on 15 November 2019 between the offender and her assistant, Ms Borg. In that call the offender said that during the year she had found it hard due to the pressures and threats and that while she was getting support when the first lot of threats starting coming in, that support then started to disappear and that she had made some "bad judgment calls" and "two of the letters that were sent were sent from me, because I wanted more support". Also in this call, the offender referred to having been "naughty twice" and referred to "those two mistakes".
In these circumstances, and given the evidence of the offender's fingerprint being found on the postage stamp accompanying letter 9, it is not surprising that the jury did not accept her claim to have been responsible for only one of the letters.
The suggestion that the offender was responsible for only one letter, and that she did this because she was overwhelmed with stress and wanting to get out of her contract, was something that the offender also maintained when she saw psychologist, Mr Kiris, on 25 November 2019, after her arrest on 15 November 2019.
Having considered all of the evidence, I do not accept that the offender committed any of the offences for the purposes of getting out of her contract of employment. The offender's CV, which was exhibit AW in the trial, demonstrates that she was a person who had excelled in her area of studies. She had been working as a scientist and academic for over 25 years, had published many scientific papers, was a member of various committees, was the supervisor of a number of PHD students and had risen to a very high level as Dean of Science at UTS and as an Associate Dean before that at Wollongong University. It is simply not credible in my view that she would have decided to throw away her career by intentionally being detected as the author of letter 10, being the letter of 13 November 2019.
The guilty verdicts and their confirmation that it was the offender who in effect sent threatening letters to herself tends, at first blush, to suggest that the offences might have arisen from some sort of psychological impairment, however this is given little support by the evidence.
The findings of the jury are that the offender sent all 10 letters and that she did so over a period of three and a half months during which she was holding down the very senior position of Dean ofSscience. It is implausible, in my opinion, that over this period she could have held down such a position and at the same time been so affected by some sort of psychological condition that she was driven to embark on such a concerted campaign of threatening actions in the form of the 10 letters about which the jury was satisfied beyond reasonable doubt.
It was argued by the offender that the verdicts of guilty amount to findings that the offender's motivation for the offending was no more than an attempt to "do her job" in reviewing and/or closing the TCM course. However, I do not accept that the verdicts do involve any such finding, especially given that the jury were told that the Crown did not have to prove any motive.
While it is plausible, as was put to the jury, that the offender sent the various letters to support her recommendation to close the TCM course, the evidence does not in my opinion permit me to reach any clear conclusion that this was the explanation or motive for the offending.
It was also argued by the offender that the offences might be seen as "attention seeking". In my view this does provide the most plausible explanation for at least some of the letters. This suggestion is given some support in the comments made by the offender to her Executive Assistant and to the Director of HR, Ms Lacoon, shortly after her arrest where she said that she had found it "very hard" and "cracked" under pressure. She also made similar comments to the psychologist, Mr Kiris.
I have difficulty, however, in accepting that this provides an explanation for all of the 10 false letters given that they spanned a period of three and a half months. I have even greater difficulty in accepting that personal stress or attention seeking behaviour provides an explanation for such extreme measures as the offender cutting up her own clothes and later sending items of her own underwear to the university.
Ultimately, the evidence does not permit me to arrive at any clear conclusion as to why the offender committed these somewhat bizarre offences. However, I do not accept the Crown's argument that the reasons for the offending lie in the offender's seeking to promote the prospects of receiving a performance based bonus. There is nothing in the offender's history to suggest that she was a person overly motivated by financial reward. In addition there is no, or at least negligible evidence, of any connection between the proposed closing of the TCM course and the offender receiving any bonus.
While I consider that I am unable to make any clear finding as to the reasons for the offending, I am not satisfied that the offences were committed with a view to obtain any financial benefit. Ultimately, I am left with the findings of the jury that the offender was responsible for all 10 letters. While there may have been some psychological element behind the offending, I am unable on the evidence to pinpoint what that element is, and exactly how it led to the offences, if indeed it did.
In my view, there is little which can be said to reduce the offender's moral culpability for the offences and I consider that her moral culpability is fairly high.
[4]
SUBJECTIVE MATTERS
Turning then to subjective matters.
The offender is now 51 years of age, has no criminal history and is a person of prior good character. She has been married to her husband for 25 years and they have two children who are now in theIR early 20s. Although the offender gave no evidence in the sentence proceedings, a selection of written materials were admitted into evidence which provide relevant background and information about her current circumstances.
A character reference from Dr Jenny Stauber, who has known the offender for over 20 years as a professional colleague and friend, speaks in glowing terms of her personal and professional qualities and of the very substantial efforts the offender has made in supervising numerous higher degree research students.
A report has been supplied by clinical psychologist, Dr Judy Pickard, who has been treating the offender since August 2020. Dr Pickard explains that the offender had as at 1 September 2021 attended 16 therapy sessions on an approximately fortnightly or monthly basis. The reason for her referral to Dr Pickard by her GP was to manage ongoing stress, that stress apparently arising primarily from these legal proceedings and the effects of a period of incarceration in January 2020.
The psychologist report indicates that the offender attended and engaged in these treatment sessions which involved a form of cognitive behavioural therapy in a consistent, reliable and respectful manner. The report also notes that the offender identified strong values relating to integrity, compassion and contribution, and that she had expressed significant concern for the wellbeing of her family arising from the events and also indicated grief and shame for the impact of the allegations on her career and social relationships.
The psychologist also noted that the offender reported symptoms of Post Traumatic Stress Disorder related to her incarceration for about two weeks in January 2020, which included experiencing intrusive distressing memories, hypervigilance, sleep disturbance and other effects.
I have exercised a degree of caution in relation to this evidence, given the psychologist's comment is based on the offender's self-report and given also that her report does not purport to make a clear diagnosis of Post Traumatic Stress Disorder, nonetheless, I have no hesitation in accepting that the offender's experience of custody would have been a very disturbing one for her and I have taken this into account in the overall sentencing exercise that I must perform.
A Sentencing Assessment Report has been placed before the Court which confirms that the offender retains strong support from her husband and children. This accords with my own observations in the trial, during which the offender's husband was present throughout, and during which the offender was also supported by various other family members, at least to the extent that the COVID conditions allowed.
An important aspect of the offender's case on sentence was that she has suffered significant extra-curial punishment. In other words, that she has suffered a loss or detriment that has been imposed or caused by persons or situations other than the sentencing Court.
In this regard, the affidavit of the 2 September 2021 by the offender's solicitor, Mr Kernaghan, sets out material to which the offender points in support of the submission that there has been significant extra-curial punishment to date, and that the effects of this are likely to be experienced by the offender for some time into the future.
The affidavit of the offender's solicitor indicates that by using a Google search of the internet he observed literally hundreds of articles relating to this matter. Most of these, he indicates, came into existence during the offender's trial or in 2019 and into the early part of 2020 and they continue up until at least 22 July 2021. In addition, he indicates that the offender has been widely depicted on television and in video broadcast media and that a very large number of video reports relating to this matter remain available on the internet. Furthermore, he testifies that when the offender first appeared in the Local Court there were incorrect initial reports that she had been refused bail and that this was a matter that caused significant distress to the offender and her friends and family.
The social media interest relating to the offender's case has also extended to aggressive and derogatory material being sent to her solicitor, and has included calls to "lock her up".
The consequences of the high profile nature of Ms Jolley's matter have not been limited however to media and other commentary but have extended to direct actions affecting her reputation and employment prospects. For instance, Mr Kernaghan's affidavit says that during the trial proceedings, his client received an email from the Executive Director of a global society relating to environmental toxicology and chemistry, indicating that the case had come to the attention of a staff member in Florida, USA. As a result of this, a meeting had been held which resolved to suspend the offender from her then position of the editorial board of the society's journal, a situation which apparently will become a permanent removal now that she has been convicted. Furthermore, there is the fact that the offender, after entering into a confidential agreement with the university, resigned her position as the Dean of science in about November 2019, a situation that apparently amounted in effect to a forced resignation.
It was submitted on the offender's behalf that her immediate prospects of employment remain uncertain. In my view her prospects of obtaining employment in her chosen field of expertise are even more uncertain, and probably most unlikely, at least in the near future. My conclusion in this regard is supported by the comments of character referee, Dr Stauber, who says that the offender's convictions will end her academic career and make it difficult for her to re-establish a career in environmental science which Dr Stauber says will be a major loss, not only to the offender but also to her peer scientific community. Dr Stauber also makes her own observations of what she describes as the "huge impact" that the charge process and the trial and media scrutiny have had on the offender.
In considering this aspect of the matter I have not overlooked the fact that according to the jury's verdicts it is the offender's own actions that have brought these adverse consequences upon her.
Nonetheless, I am satisfied in this matter that the offender has already suffered significant punishment by reason of the matters to which I have referred. I am also satisfied that these adverse consequences are likely to impact the offender, and to a lesser degree her family, for some years to come. I note that the Crown appropriately accepted in oral submissions that there has been extra-curial punishment in this case.
[5]
REMORSE
In terms of remorse, it is relevant to note that the offender effectively maintains the position that she adopted at trial, which was an admission to having produced only one of the subject letters, and having done so in order to initiate her own dismissal from her position at UTS. It is not possible therefore for me to find any real remorse except perhaps to the minimal extent that the offender conceded in her evidence at trial that she acted foolishly in relation to the one letter about which she made admissions to having produced.
[6]
INSIGHT AND PROSPECTS
The Sentencing Assessment Report however notes that the offender demonstrated appropriate insight into the impact that the offences would have had on work colleagues and the reputational damage likely incurred by the university itself. While I take this into account, it is of limited benefit to the offender, given that she maintained to the author of the Sentencing Assessment Report that the threats to her, presumably those in the nine letters which she denies authoring, were genuine threats.
Having regard to all of the evidence, and while I am unable to find any genuine remorse, I accept that the offender is, as the Sentencing Assessment Report suggests, a low risk of reoffending, a risk which in my view is probably better described as very low.
[7]
POSSIBLE SUMMARY DISPOSAL
It was argued on the offender's behalf that weight should be given to the possibility that the offences before the Court could have been dealt with by way of summary jurisdiction.
In Zreika v R [2012] NSWCCA 44 Johnson J said that it will generally only be in rare and exceptional circumstances that such a matter would be of significance in sentencing an offender in the District Court. And, as Basten JA said in Baines v R [2016] NSWCCA 132 at para 16, it is for the prosecuting authorities to decide not only who should be prosecuted and for what offences, but also "in what court". As his Honour went on to say, "the Court should impose the appropriate sentence for the offence as proved within the limits of the sentencing Court's jurisdiction and discretion".
While I have considered the submission as to the relevance of possible summary disposal, in my view it carries no weight. There is in my view nothing rare or exceptional, or even I would add, anything particularly unusual, in the offences being dealt with in this Court, especially given the monetary value of the loss alleged in count 1 and its link with the offences in counts 2 through to 11.
[8]
COMPARATIVES
There is little by way of relevant caselaw or statistics to provide guidance for sentencing in relation to the unusual offences before the Court. I have had regard to a number of cases including Kennedy v R [2018] NSWCCA 43, Jaques v R [2002] NSWCCA 444, Linney v R [2013] NSWCCA 251, R v Gambier [2009] QCA 138 and R v Korat [2021] NSWDC 29, a decision of Judge Bennett SC of this Court, each of which involved threatening behaviour, although with quite different facts and different maximum penalties. Nonetheless, these cases provide me with some guidance as to the assessment of objective seriousness and as to overall sentencing considerations.
[9]
DETERMINATION
It was submitted on behalf of the offender that the offences should be dealt with by a combination of fines and Community Correction Orders. However in my view such an outcome would be inadequate. I come to this view having regard to all of the matters I have noted but also the fact that none of the offences in counts 2 through to 11 can be described as spontaneous as they all involve some level of planning and organisation, albeit some more than others.
It also seems to me that offences under s 93Q are easy offences to commit because of the ease by which threatening information can be conveyed. They are also usually difficult offences to detect, again because false information can be conveyed by a variety of means, including as in this case by creating anonymous notes or letters. It is for these reasons that general deterrence is a very important consideration in sentencing for such offences.
I am satisfied, having regard to the circumstances of all of the offending, after taking into account the subjective circumstances and other matters that I have referred to, that a period of imprisonment is required in this case. In making that determination I have had regard to all of the objective and subjective matters as well as the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and relevant common law principles.
I have also taken into account in the offender's favour the fact that she has already spent 14 days in custody after being arrested for a second time on 8 January 2020.
Given there are a number of offences, I intend to impose an aggregate sentence. In those circumstances I am required to specify as indicative sentences the sentences I would otherwise have imposed. The indicative sentences are as follows; count 1, imprisonment of 15 months, count 2, imprisonment of three months, for count 3, imprisonment of three months, count 4, imprisonment of five months, count 5, five months imprisonment, count 6, imprisonment of five months, count 7, imprisonment of eight months, count 8, imprisonment of six months, count 9, six months imprisonment, for count 10, six months imprisonment and for count 11, three months imprisonment.
Instead of those sentences, I impose an aggregate sentence of two years, six months imprisonment.
In determining that aggregate sentence I have had regard to totality principles and also to the importance of not double-counting, given the overlap between count 1 and counts 2 through to 11. However, it seems to me that a degree of accumulation would be necessary given the number of discrete acts and the timespan between them, in relation to the various events referred to in counts 2 to 11.
I have given consideration to whether that sentence ought to be served by fulltime custody or whether it is more appropriate to order that it be served in the community be means of an Intensive Corrections Order. Section 66 of the Crimes (Sentencing Procedure) Act 1999 provides in part that community safety must be the paramount consideration when deciding whether to make an Intensive Correction Order. It also provides that when considering community safety I must assess whether making the order or serving a sentence by way of fulltime detention is more likely to address the offender's risk of reoffending.
In making these assessments I must also consider the purposes of sentencing set out in s 3A and any relevant common law sentencing principles as well as any other matters I consider relevant. I have considered community safety, however I do not consider that the offender is generally a person who presents a significant risk to community safety.
I have also considered the important purposes of sentencing set out in s 3A, including the need for adequate punishment, personal and general deterrence, the need to denounce the conduct and make the offender accountable for her actions, and to recognise the harm caused by her offences.
I have also taken into account the importance however of promoting the rehabilitation of the offender, which in my view would be detrimentally affected by her serving further time in custody.
Having balanced these various matters I am of the opinion that the offender's risk of reoffending would be better addressed by the imposition of an Intensive Correction Order.
I therefore impose an Intensive Correction Order for a period of two years, six months. That order will be subject firstly to the standard conditions, first one being that she not commit any offence, and the second standard condition being that she submit to supervision by Community Corrections.
I impose two additional conditions. The first one is that the offender undertake counselling as directed by Community Corrections. The second condition is that she perform 100 hours community service.
I direct that Ms Jolley report to the Sutherland office of Community Corrections by telephone within seven days.
[10]
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Decision last updated: 01 December 2021