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[2016] ACTSC 389
Supreme Court of the ACT
2016-12-21
Refshauge ACJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Sentencing - sentencing practice - threatening to kill - surrounding circumstances very relevant to the seriousness of the offence - Court to have regard to the background circumstances of the offence - offender drove car into lake to kill himself and the victim - offender threatened to kill the victim's dogs - unlawfully confining another person - assessment for unlawful confinement - period of confinement was relatively short - menacing driving - subjective circumstances - marriage breakdown - family violence offences - no premeditation or planning - guilty plea - general deterrence - sentenced to a term of imprisonment - partially suspended sentence - ineligibility for an Intensive Corrections Order due to full time pre-sentence custody - Good Behaviour Order
Crimes Act 1900 (ACT), ss 30, 34
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1), 33(1)(za)
Magistrates Court Act 1930 (ACT), s 90B
Supreme Court Act 1933 (ACT), Pt 8
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
R v Barbour (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 20 November 2013)
R v Berwick (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 26 September 2011)
R v Britt [2015] ACTSC 402
R v Carmody [2016] ACTSC 382
R v Cox (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 14 May 2012)
R v Dalton [2014] ACTSC 204
R v Deans (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 26 July 2011)
R v Desreaux (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 4 July 2002)
R v Di Bitonto [2016] ACTSC 280
R v DF (No 2) [2012] ACTSC 3; 257 FLR 31
R v East [2015] ACTSC 54
R v Eimerl [2015] ACTSC 72
R v Farraway (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 21 July 2009)
R v Gilder Rose [1978] Qd R 61
R v Gobin [2012] ACTSC 57
R v Gobin (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 29 June 2012)
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012)
R v IN (Unreported, Supreme Court of the Australian Capital Territory, Crispin J, 2 November 2001)
R v Keates (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 22 June 2011)
R v Kennedy (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 11 October 2010)
R v Laundes (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 25 February 2011)
R v Lewkowicz (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 28 April 2006)
R v Loulanting [2015] ACTSC 172
R v McNoe (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 17 August 2010)
R v Nagata and Massey (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 4 October 2011)
R v Ngerengere (No 3) [2016] ACTSC 299
R v Roberts [2005] ACTSC 43
R v Scanes (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 13 December 2013)
R v Stott (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 6 September 2011)
R v Thompson [2015] ACTSC 69
R v Troselj (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 30 September 2011)
R v Trotman (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 26 September 2011)
R v Walls (Unreported, Supreme Court of the Australian Capital Territory, 12 May 2011)
R v Ziebell (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 12 December 2011)
Walker [1996] 1 Cr App R (S) 180
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
1. The strong positive emotions of love and commitment that are a good basis for a loving and caring relationship between partners and spouses can translate into equally strong negative emotions of hate and despair when the relationship breaks down, especially when only one party accepts the breakdown, no doubt added to by the stress of separation.
2. The criminal courts are regrettably too frequently faced with having to deal with offenders who, spurred on by such emotions, commit crimes, often serious crimes, which are in part driven by such negative emotions.
3. Thus, appearing before me for sentence is Randall Shawn Williams, who has pleaded guilty to charges of threatening to kill the victim and unlawful confinement of the victim.
4. A summary only charge of menacing driving has been transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).
5. Threatening to kill someone is an offence against s 30 of the Crimes Act 1900 (ACT) which provides for a maximum penalty of 10 years imprisonment.
6. Unlawfully confining another person is prohibited by s 34 of the Crimes Act and renders the offender liable to a maximum penalty also of 10 years imprisonment.
7. The transferred charge of driving in a way that is menacing to another person is an offence contrary to s 8(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and attracts a maximum penalty of 100 penalty units (that is, at the time, a fine of $15 000) and imprisonment for one year.
8. The two indictable offences are particularly serious as evidenced by the legislated maximum penalties, though the precise circumstances of each offence, especially the latter of the two, will be very relevant to the determination of the particular sentence to be imposed. See Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-2.
9. I had a Statement of Facts, tendered by consent and from that, with the assistance of submissions from counsel, I can make the following findings.
10. Mr Williams and the victim had been married for 28 years and there are two adult children of the union. A child of the victim from a previous relationship was also raised by Mr Williams and the victim as his child.
11. The relationship, despite its relative longevity by contemporary standards, was apparently volatile and, by 2015, the couple had separated, with the prospect of the marriage coming to an end. The victim continued to live in the matrimonial home at Evatt.
12. The victim suffered from a Post-Traumatic Stress Disorder which had put significant stressors on the relationship. She was, however, taking prescribed medication and much assisted by the support provided by a therapy dog to which she was much attached and with which she had a very special bond. Mr Williams was aware of this.
13. In about June 2015, Mr Williams requested that he be allowed to return to live in the Evatt home as he was suffering from financial difficulties and had nowhere else to live. The victim agreed, and Mr Williams returned to live there. He also obtained work as a truck driver with a firm located in Fyshwick.
14. Previously in 2010, the victim had purchased a sports sedan motor vehicle for which she borrowed $35 000, but both she and Mr Williams made repayments of the loan over the years.
15. Mr Williams believed that, if the couple ended their marriage, he would take automatic possession of the car, but the victim denied any such agreement, maintaining that the car belonged to her. This dispute led to many arguments over the years.
16. On 31 July 2015, Mr Williams finished work at about 6:30pm and returned to the Evatt home in the semi-trailer vehicle he drives for his work. He was then told, however, that he would have to return the semitrailer to the workplace. He asked the victim to follow him in the sports sedan and to collect him from his workplace. She did so but, on arriving at the Fyshwick premises, the two had a heated argument for about five to 10 minutes and then they left, with Mr Williams driving, as he had insisted on doing.
17. He stopped at a nearby service station to refuel the car but his credit card was declined and, as he tried to sort out the problem with the bank, he continued to argue with the victim.
18. They eventually left and continued arguing, with Mr Williams demanding that the victim sign over ownership of the sports sedan to him. The victim refused to do so, asserting her ownership of the vehicle.
19. Mr Williams further said words to the effect of, "Fine, if you do not give it to me, no one will have it and I'll take the pair of us out and drive it into the lake".
20. His driving became erratic and he continued to threaten the victim that he was going to kill her. He turned sharply off Ginninderra Drive into Diddams Close and onto the boat ramp at the northern side of the northern car park there. The speed of his driving into the necessary turns caused pain to the victim's neck.
21. Mr Williams accelerated down the boat ramp but braked at the last minute, the braking locking up the wheels. The car slid and entered the water of Lake Ginninderra, the force of the impact between it and the water causing the front bumper guard to partially dislodge and for lake water to spray across the bonnet and front windscreen of the car.
22. The victim tried to get out of the car and had opened the door when Mr Williams suddenly reversed the car back up the ramp so that she could not do so.
23. Mr Williams then drove the car down the ramp back into the water so that the front wheels were submerged. He then attempted to reverse up the ramp, but the wheels lost traction and the victim used this moment to get out of the car and walk away.
24. These were the acts that constituted the offence of threatening to kill the victim.
25. Mr Williams reversed the car, managed to get off the ramp and began doing "burnouts" around the area. He drove towards the victim as she walked along the road. He drove past her and then turned and drove back towards her. He continued to do this a few more times while yelling out to her, demanding that she sign the car over to him, calling her names and making threats to kill her dog. The victim thought that he was going to kill her.
26. These are the facts that constituted the offence of menacing driving.
27. As he was driving past the victim, Mr Williams stopped from time-to-time and told her to get back into the car but she refused.
28. Finally, he drove off the road onto the grass where she was walking and said words to the following effect, "I've calmed down now, but if you don't get back into the car, I'll be home before you and I'll kill your therapy dog".
29. Because of her reliance on her therapy dog and the bond between them, the victim felt that the risk to the dog meant that she had no choice but to get into the car, which she did. Mr Williams then drove back to the Evatt home. On the way, the victim felt she could not leave the vehicle because Mr Williams would either drive erratically again and try to kill her or drive home and kill her dog.
30. When they arrived home, the victim "bolted out of the car" and went into the house, where she took all of her dogs, including the therapy dog, into the bathroom and locked herself in. She eventually left, going into her bedroom where Mr Williams confronted her and continued to abuse her, using his forehead to push her onto the bed. He also demanded her phone and that she sign over the sports sedan to him.
31. These are the acts constituting the offence of unlawful confinement.
32. These events are, as Ms L Taylor, counsel for Mr Williams, pointed out, tragic for both Mr Williams and the victim. It is likely that they are tragic for their children and grandchildren as well. Nevertheless, they constitute serious criminal offences.
33. Mr Williams eventually left the house. He slept that night at his son's place and told him of the incident, observing that he had "overdone it this time".
34. He later voluntarily participated in an interview with police which was electronically recorded. He made a number of admissions. He also expressed regret and despair at what he had done.
35. Mr Williams was arrested on 29 August 2015 and has remained in custody since then.
36. Mr Williams appeared in the ACT Magistrates Court on 31 August 2015 charged with making a threat to kill the victim and menacing driving. He was remanded in custody. After some adjournments, he was also charged on 13 October 2015 with unlawfully confining the victim and he entered pleas of not guilty to all three charges.
37. The matter was further mentioned on 24 November 2015 when a charge of attempted murder was laid. He pleaded not guilty to that charge also.
38. On 1 December 2015, he was committed to this Court for trial.
39. An indictment was filed on 17 February 2016 charging Mr Williams with four offences, namely the attempted murder, threatening to kill the victim, using against the victim an offensive weapon likely to endanger human life or cause a person grievous bodily harm, and unlawful confinement.
40. On 23 May 2016, the matter was listed for trial in this Court in the week commencing 27 September 2016.
41. The matter, however, returned to Court on 21 September 2016, when the parties sought the vacation of the trial date as they were attempting to resolve the matter without the requirement for a trial. The trial date was vacated and, on 30 September 2016, Mr Williams was arraigned and pleaded guilty to the charge of threatening to kill the victim and unlawful confinement.
42. It appears that the Crown accepted those pleas in full satisfaction of the indictment.
43. I note that no Notice Declining to Proceed in respect of the other counts on the indictment has yet been filed. No doubt that will be done in due course. See R v DF (No 2) [2012] ACTSC 3; 257 FLR 31 at 38; [45].
44. As noted above (at [5]-[6]), the maximum penalty for the two indictable offences shows that these are serious offences to be treated so by the courts. In addition, the offences committed by Mr Williams may be regarded as family violence offences even though the parties were no longer in a relationship. The relationship was, however, certainly an important part of the basis for the offending and this needs to be taken into account. As pointed out in R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at 192-6; [67]- [88], the attitudes that condone domestic violence are pervasive in the community and the courts must show that such conduct is entirely unacceptable.
45. So far as the offence of threatening to kill the victim is concerned, I pointed out in R v Loulanting [2015] ACTSC 172 at [37] that, while a threat to kill is a serious offence, the surrounding circumstances are very relevant to the seriousness of the offence. As pointed out by the UK Court of Appeal in Walker [1996] 1 Cr App R (S) 180 at 181, the Court must have regard to the background circumstances of an offence of threatening to kill.
46. In this case, the genesis of the dispute between the victim and Mr Williams seems to be the ownership of the car and the misalignment of the expectations of each about what the situation was. Though the car was a valuable item, the intensity of the dispute was concerning and a little puzzling.
47. Nevertheless, the fact that Mr Williams held what I regarded as a genuine belief that there had been an agreement about that does ameliorate to a limited degree the offence because of his sense of frustration and what he saw as his entitlement. This did not, of course, justify the actions he took, but they gave the relevant background.
48. As Ms Taylor eloquently put it, the separation of the parties and the impending end of the marriage had led to Mr Williams feeling hopeless and lost. He could not, as Ms Taylor stated, imagine a future without his wife. At the same time, he felt pressure from the inability to access the financial resources - he had been homeless until returning to the Evatt home - to begin his life over.
49. He was also angry and frustrated that he could not bring about a peaceful resolution of the conflict in the marriage dissolution, exacerbated by what he saw as the victim's increasing use of alcohol, which in turn aggravated her mental health issues.
50. The act of driving into the lake, though not fully, showed to the victim a real intent which must have been very frightening to her. While the use of a vehicle was different from the use of a more personal weapon, such as a gun (as in R v Gobin [2012] ACTSC 57), it seems to me that it was a means of showing a very direct, present, and effective means of carrying out the threat.
51. On the other hand, I accept that this was not premeditated in any relevant sense. See my comments on this in R v Carmody [2016] ACTSC 382 at [54]- [60].
52. The incident must have been terrifying for the victim and Mr Williams acknowledges this and the cruelty he displayed to her, as well as the degrading effect it had.
53. The offence of unlawful confinement is also a serious one. Nield AJ has outlined in R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012) some of the factors that are relevant to the assessment of the seriousness of this offence. From that decision and others, such as R v Dalton [2014] ACTSC 204, R v Thompson [2015] ACTSC 69, and R v East [2015] ACTSC 54, it seems to me that the matters relevant to that assessment include at least:
• the conditions under which the victim was confined, including the behaviour towards the victim, such as the level of restraint, any physical or verbal abuse committed and whether the victim was subjected to degrading behaviour;
54. In this case, the period of confinement was relatively short, being the time it took to drive from Lake Ginninderra to Evatt. While at the Evatt house, there was also a period of confinement but it seems to me to have again been relatively short.
55. The way in which it was effected was cruel, by threatening to kill the victim's therapy dog, but not as serious as, for example, using physical violence or a weapon or a threat of violence against her personally. It was not in any relevant sense premeditated or planned.
56. The purpose was unclear, though still related to the demand that the victim sign over the ownership of the sports sedan. Perhaps it was borne out of Mr Williams' anger and frustration at the circumstances as I have already described them.
57. There were, apart from the above matters, no conditions of the confinement that made it particularly serious or aggravated the offence.
58. The victim did not express any level of terror but was clearly concerned and felt seriously constrained. Her fear can be seen in the reaction when she returned home and, as she described, "bolted out of the car", but her ability to do so was relevant to an assessment of the seriousness of the confinement.
59. Finally, there were no physical injuries inflicted, though the emotional trauma of the whole event was very serious, probably not much aggravated by this particular part of the incident.
60. It was a serious offence but by no means the most serious version of the offence that has, regrettably, been seen in this Court.
61. The offence of menacing driving was also not a particularly serious version of the offence. While driving past the victim was clearly intended to threaten her and instil some fear and terror in her, there did not appear to be any direct driving at her but the menace consisted more of his presence and the anger that was clearly evinced by the continual driving past her.
62. I had a Pre-Sentence Report, Mr Williams' criminal record, a character reference and details of the programs he had completed while in custody. With this evidence and counsels' submissions, I make the following findings.
63. Mr Williams is now 52 years of age. He was one of three children and had a good upbringing. He was close to his mother until her death and he has a close relationship with his father and siblings. His father and his two siblings were present in Court on the sentencing.
64. He left school when he completed Year 10 at age 16 and later joined the Army where he served in the Infantry for six years. On his discharge, he worked as a truck driver until his arrest and remand in custody. While he is uncertain as to whether he can return to his former employment, he is reasonably confident of gaining employment when he is released from custody.
65. He has maintained links with friends he made while in the Army and they provide
66. As stated above at [10], he and the victim were married for 28 years and have two adult children and a stepchild of the union. Mr Williams has four grandchildren. He has a relationship with each member of his family and he values that. His daughter was present for the sentencing.
67. The marriage was positive for many years but, about six years ago, started to deteriorate. Mr Williams said that this was due to the victim's alcohol abuse and mental health issues which were, no doubt, somewhat related. There was no contrary evidence.
68. During this time, they separated on two occasions for periods of up to three months but reconciled and remained together. About a month before these offences, however, the relationship ended and divorce proceedings have now been commenced. Mr Williams accepts that the relationship is now over.
69. The separation clearly affected Mr Williams who became homeless and had to live out of his truck until he persuaded the victim to allow him to return to the family home at Evatt.
70. Mr Williams has no drug or alcohol dependency, though from about 18 to 23 years of age he did indulge in binge drinking of alcohol, consuming up to a bottle of spirits up to three times a week. He subsequently reduced his consumption to about two standard drinks a month prior to his arrest. He has been assessed as at a low risk for alcohol use.
71. He has abused prescription-based amphetamine drugs as part of his work, perhaps notorious among long-distance truck drivers. He began to use amphetamines and methylamphetamines from 1995, up to half a gram per week, but still primarily for his work. His use declined as his work hours reduced and he ceased using altogether from mid to late 2014. He has had no formal treatment for substance abuse but appears to me not necessarily to need it.
72. The Pre-Sentence Report noted that he had been diagnosed with a physical health condition which it coyly did not specify and which I therefore assume is not relevant to the sentencing exercise. It appears from other material that this was diverticulitis.
73. He has a history of depression and anxiety and, while on remand, has received assistance from the Corrections Psychological and Support Service.
74. Mr Williams has a criminal history but it is not particularly concerning. I have found his New South Wales record to be very difficult to decipher, but, doing the best I can, it appears that he has a total of 20 findings of guilt on his record. The vast majority are traffic matters, mostly of the regulatory and less serious kind. These clearly arise out of his employment. I also had what appeared to be a record of Traffic Infringement Notices. It seems to me that these should not be taken into account given the statutory provisions that prevent them from constituting a conviction or, indeed, any kind of admission. See R v Gilder Rose [1978] Qd R 61 at 63.
75. Somewhat more concerning is the commission of offences each of common assault and assault occasioning actual bodily harm. Worryingly also, they were, I was told, committed in a domestic situation, being offences of family violence. Nevertheless, the latter was committed in 1984 and he was dealt with by a non-conviction recognizance. The former was committed in 2006. They are relatively old offences and do not feature significantly in the sentencing process.
76. I do not consider that his criminal record has a significant bearing on the sentence that I must impose and I did not hear the Crown contend otherwise.
77. I had a very positive reference from a long-time friend who is an apparently successful business owner. She has known Mr Williams for 17 years and regularly travelled with him during his interstate trucking trips, and also from time-to-time with his family. She sees him whenever he passes through Coffs Harbour and she spent Christmas 2012 with Mr Williams and his family. She describes the family as loving and always having fun.
78. She said that she had never seen any aggression committed by Mr Williams towards the victim, a situation she would not have tolerated.
79. She also said that she had not seen any signs of aggression in him, though she did not say whether she was aware of his criminal record.
80. She said that she is honoured to be his close friend still. In general terms, I accept that she attests to his good character.
81. The referee was also prepared to have Mr Williams live with her on his release from custody which will address what may otherwise be a problem of homelessness for him.
82. Mr Williams has participated in Education and Training Programs while in the Alexander Maconochie Centre on remand. He has clearly taken the opportunity available to him while on remand to improve his health and his mind. This is to his credit. He has completed courses in Workplace Procedure Training and a Blood Borne Virus Awareness Course, and the standard procedures for the management of blood and body spills. He has completed eight modules of a program in Managing Depression and Anxiety and completed a Harm Minimisation Session. He has enrolled in a number of Certificate II Foundation Skills for Work and Vocational Pathways programs. He is also reported to have assisted other detainees in a positive mentoring capacity and is "a running candidate for [the education provider's] polite program for education Tutor for his location".
83. The assessment of his attitude to the offences set out in the Pre-Sentence Report is a little concerning. It is said that he has taken responsibility for his actions "to some extent". He acknowledged that he had not been taking care of his own mental wellbeing and mental health and that this contributed to the offending. I accept that, but he cannot pass all responsibility to that. I accept that this, no doubt, led to the frustration boiling up and that he snapped, whereas with better mental health he may have been able to control it better and manage and control his behaviour.
84. More worrying, however, is the assertion that his wife, the victim, played some part in him committing the offences. That is difficult to see. I can accept that it takes two to argue but the argument did not require, however acrimonious it was, that he commit these offences.
85. However troubled his wife was by alcohol abuse and mental impairment, this could not contribute in any meaningful way to him committing the offences he did. I was offered no particular explanation that would justify that.
86. I did not have the benefit of evidence from Mr Williams. His counsel did submit, however, that he had recognised that the conduct reflected poorly on him as a man, as a partner, and as a father. He accepts that the conduct was dangerous and was cruel and degrading to the victim. His counsel says that he is ashamed and remorseful. These sentiments were not challenged by the Crown and are to be accepted but in a more guarded way when they came from counsel rather than from the offender himself when he could have been cross-examined on them.
87. I was also told that the comments made to the author of the Pre-Sentence Report were not intended by Mr Williams to be related to what he saw as any responsibility the victim had for the incident, but it is difficult in the absence of direct evidence from him or the author of the Pre-Sentence Report to understand what else they could have meant. Indeed this must be so, given the comment by the author of the Pre-Sentence Report as to his lack of suitability for restorative justice because of his failure to accept responsibility for the offence. That is clearly what the author of the Pre-Sentence Report thought he meant. Perhaps I should accept that he continues to be frustrated with some aspects of the separation, but I am told that he now accepts that the responsibility for the offences is entirely his.
88. While his attitude is troubling and may require him to undergo some more relevant counselling, I do not consider that it creates a major problem for the assessment made by the author of the Pre-Sentence Report. I also do not consider that it creates a major problem for the assessment in the sentencing or my acceptance of it. I note that he is assessed as at a medium to low risk of general re-offending. I agree, too, that the supervision to which he will have to be subject on release from custody must address his mental health and his attitude to domestic violence.
89. The victim provided a Victim Impact Statement which was read. I was informed that Mr Williams was visibly emotional when he read it prior to the sentencing hearing.
90. The Statement shows the victim suffered severe emotional consequences from the offences. It has also led to the victim relocating interstate. She declined to say where, as she says that she fears that Mr Williams will harm her if she discloses that information.
91. I judge that this is unlikely, but it is of concern that she continues to believe this, which will constrain her capacity to engage fully with life. I trust that she gets the support and assistance that will help her manage these fears and destroy them.
92. She finds difficulty in coping with everyday activities and appears to have become something of a recluse, her only social interaction is with her parents and children. Her move has lost her most of her ACT friends.
93. She continues to experience nightmares, though now fortunately less frequently, and she is in constant weekly contact with her general practitioner, a good sign, though stressful. She has access to counselling through a Victim of Crime Service and I certainly commend her continuing to access that support and hope that it proves beneficial for her.
94. The move interstate caused financial stress as well and she has accrued debts which she has had to cover with assistance from her parents.
95. She did suffer some neck pain in the incident as I described above (at [20]), and some hip and back pain. While taking some time to settle, it appears that they have abated, though with some residual pain.
96. The Victim Impact Statement showed the special consequences of these offences and I take them into account.
97. No sentencing decision is, of course, a precedent (see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605; [57]), but comparable cases are important for a court to determine the appropriate sentence and to achieve that important value within the criminal justice system of consistency (see Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 at 74; [40]- [41]). In addition, the legislation in this jurisdiction has mandated that the Court should, so far as it knows it, have regard to relevant sentencing practice: s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT).
98. Neither party referred to prior decisions on either of the indictable offences. That is, perhaps, unsurprising, having regard to the diversity of circumstances that are available to constitute both of these offences.
99. Nevertheless, I have considered a number of decisions and read the remarks on sentencing in each case. This was helpful to distil some of the relevant principles applicable and to have regard to current practices.
100. So far as the offence of threatening to kill the victim was concerned, I had regard to R v Farraway (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 21 July 2009), R v McNoe (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 17 August 2010), R v Walls (Unreported, Supreme Court of the Australian Capital Territory, 12 May 2011), R v Ziebell (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 12 December 2011), R v Gobin (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 29 June 2012), R v Hatzis, R v Loulanting, and R v Britt [2015] ACTSC 402.
101. As I noted, there were a wide range of circumstances in which the offence has been committed and none seemed to me to be directly comparable, some being more serious and some less serious offences. The facts of each offence has made the utility of the decisions quite limited. They were helpful, however, for the relevant principles. Unfortunately, a number simply failed to describe or describe adequately the facts of the offences, which made their utility even less useful.
102. The sentences imposed range from three months imprisonment, fully suspended, to imprisonment for two years and six months. This range does not, of course, show the available range of sentences; that is shown by the maximum penalty provided by the offence. They do, however, show that in a case such as this offence, the seriousness of it suggests that ordinarily a sentence of imprisonment is almost inevitable, however served. Nevertheless, clearly it does not always have to be a lengthy term or fully served in fulltime custody.
103. So far as the offence of unlawful confinement is concerned, I have read a number of decisions and a number of them have been previously cited from time-to-time. I have regard to these and a number of others. They were R v IN (Unreported, Supreme Court of the Australian Capital Territory, Crispin J, 2 November 2001), R v Desreaux (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 4 July 2002), R v Roberts [2005] ACTSC 43, R v Lewkowicz (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 28 April 2006), R v Kennedy (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 11 October 2010), R v Keates (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 22 June 2011), R v Laundes (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 25 February 2011), R v Troselj (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 30 September 2011), R v Cox (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 14 May 2012), R v Hatzis, R v Barbour (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 20 November 2013), R v Scanes (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 13 December 2013), R v Dalton, R v East, R v Thompson, and R v Eimerl [2015] ACTSC 72.
104. A number of cases that were helpful as a comparison for the approach to degrees of seriousness of the participation in such offences arose out of an incident on 12 May 2009 where a number of offenders were involved in a particular incident. These decisions were R v Deans (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 26 July 2011), R v Stott (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 6 September 2011), R v Berwick (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 26 September 2011), R v Trotman (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 26 September 2011) and R v Nagata and Massey (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 4 October 2011).
105. These cases also showed a wide range of circumstances in which the offence was committed, perhaps because the period of confinement and the circumstances under which the victim was confined could vary so widely. None were particularly comparable but all were helpful to discern sentencing practice. They were also helpful in identifying relevant factors as noted above (at [53]).
106. For the reasons stated, it is unsurprising that the sentences also varied greatly; from six years imprisonment to sentences of imprisonment that were fully suspended to only a Good Behaviour Order. Thus, it is not so clear that a term of imprisonment is inevitable, though the vast majority of sentences did include, as would be expected for such a serious offence, a term of imprisonment, even if, in some cases, suspended. Many of the sentences were of periods of less than two years.
107. The fact that I have referred here to the sentencing range is not to say that this is the only feature of sentencing practice for which reference to the other decisions is useful. For the most part, I have elsewhere distilled the other principles to be gained from those decisions.
108. I did not have any decision relating to the offence of menacing driving.
109. I must have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act and I do so. General deterrence is an important component as these offences do disturb the peaceful life of members of the community and this is unacceptable. Though not offences of direct violence, these are, in the intent of such offences, violent and that is simply unacceptable in this society.
110. I have also noted the domestic context of the offending which also requires the Court to make clear that such behaviour is not to be tolerated.
111. I do not consider that specific deterrence plays a large part in the sentence as I have no doubt that the period of imprisonment, his first, will have taught a very salutary lesson to Mr Williams and that he is unlikely to re-offend certainly in this way again. I also consider that there is room for reform and that the terms of his release from custody must show that.
112. I do not consider that it is necessary to make a sentence that directly addresses the protection of the wider community. These offences were very situation specific and, unlike burglars and robbers, for instance, there is no suggestion that Mr Williams is a danger to the wider community.
113. There is a need to denounce the conduct and to recognise the consequences that the offending has had for the victim, though I hope that the support, to which she is entitled and which she seems to be getting, will allow her to recover and, indeed, to face her own challenges that pre-existed these terrifying events and that must have exacerbated the problems of a vulnerable woman.
114. I have regard to Mr Williams' plea of guilty. Though it was not made at an early time, that was obviously in part because of the most serious offence with which he was charged being preferred and which was continued to be prosecuted against him, but which did not ultimately proceed and for which a Notice Declining to Proceed will no doubt be filed in due course.
115. It saved the victim from giving evidence which would likely have re-traumatised her. It is also relevant that Mr Williams made extensive admissions as soon as he was interviewed by police shortly after his arrest.
116. In my view, he is entitled to a significant discount for the value of his plea.
117. It is also evidence of remorse, though, as noted above, there is only some credit for the remorse. The explanation given by his counsel, however, increases the value of that over what was available from a consideration of the Pre-Sentence Report. Here, however, I find it difficult to see, even were the victim to be obtusely objecting to his assertion of ownership of the vehicle, that this could reasonably justify the events or contribute to the offending.
118. I have regard to the matters set out in s 33(1) of the Crimes (Sentencing) Act to which I am required to have regard. So far as I know them, they are set out in these reasons.
119. I note that Mr Williams has been assessed as suitable for a community service work condition to a Good Behaviour Order.
120. Having given the matter careful thought, I am satisfied that no sentence other than a sentence of immediate full-time custody is appropriate but, of course, that needs to take into account the lengthy period he has already spent in custody on remand.
121. I have carefully considered that and do not consider that the period is yet sufficient to meet the purposes of sentencing that must be addressed.
122. I was also requested to consider having Mr Williams assessed for an Intensive Correction Order. That, relatively new, sentencing disposition has been described in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]- [27]. There is a problem, however, for such an order cannot be combined with a sentence of full-time custody and that may well prohibit a person who, like Mr Williams, has been remanded in custody before sentence from being eligible; see R v Ngerengere (No 3) at [59]-[62]. If that is not what is intended, then some legislative reform would be desirable to make that clear. It may be that the intent of the legislation can be construed not to prohibit such an outcome, but that is a matter that I do not have to decide today.
123. As there are multiple offences for which Mr Williams must be sentenced, I must ensure that various principles are respected. I have carefully considered the length of each of the sentences to ensure that, when there are overlapping common elements between any of the offences, Mr Williams is not punished twice.
124. While there are some common elements, the offences here relate to discrete acts and that means that this principle does not apply to any significant degree. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise.
125. That is relevant here, for the offences all arise out of the same course of conduct (see R v Di Bitonto [2016] ACTSC 280 at [93]- [94]) and are, in that case, part of the same enterprise. In my view, there must be a significant degree of concurrency in the sentences imposed.
126. Further, I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed but not more than that, that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of Mr Williams' goals when he returns to the community. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.
1. I convict you of threatening to kill the victim on 31 July 2015.
2. I sentence you to imprisonment for two years and three months to commence on 29 August 2015. Had you not pleaded guilty, I would have sentenced you to two years and 10 months imprisonment.
3. I convict you of unlawfully confining the victim on 31 July 2015.
4. I sentence you to imprisonment for 12 months to commence on 29 June 2017. That is to be cumulative as to seven months on the sentence for the offence of threat to kill. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
5. I convict you of menacing driving on 31 July 2015.
6. I sentence you to five months imprisonment to commence on 1 March 2018. That is to be cumulative as to four weeks on the sentence for unlawful confinement. Had you not pleaded guilty, I would have sentenced you to six months imprisonment.
7. That is a total period of two years and 11 months imprisonment.
8. I suspend that sentence on 29 January 2017 for two years.
9. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from 29 January 2017 with a probation condition that you be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising you deems appropriate, and that you obey all reasonable directions of the person supervising you especially as to your future employment, mental health, and attitudes to domestic violence.
128. Mr Williams, that is the formal order that I have made but it is important that I explain that to you. What I have said is that these offences justified you spending two years and 11 months in prison. That is the seriousness of them, more had you not pleaded guilty and accepted the level of responsibility you have. However, I do not require you to serve all that period and you will be released on 29 January 2017. That is not long from now and people might say, well, why don't I release you now? But that is the earliest I think is justified in all the circumstances.
129. This was a very serious series of offences, very terrifying to the victim and quite out of character for you and your history as I know it. However, that is the period that I would have set ordinarily.
130. Then rather than go through the parole process, you will be released on that day if you sign an undertaking. That undertaking has three aspects to it. The first is that you must be of good behaviour for a period of two years from 29 January 2017. That is, if you commit any further offences punishable by imprisonment, you can be brought back to Court, probably not to be heard by me because I retire in May, but before another judge and you can be re-sentenced, and that may include being re-sentenced to imprisonment for these offences, as well as being dealt with for the offences that may have been committed.
131. The second is a degree of supervision to be provided by a probation officer for two years, or a lesser period if they think everything is going well and you no longer require it. There are three aspects to that supervision. One is a degree of control so that you do not commit any further offences. I personally do not consider that problematic for you because, quite frankly, I do not see you committing any further offences, certainly not of this kind in the future.
132. I have no doubt that this has been a salutary lesson to you. It is a serious blot on your character but, I think, despite your age, and from where I sit you are still a relatively young man, you can redeem yourself in the future.
133. The second aspect of the supervision is that there is a person who is independent and who can assist you if things deteriorate again. This person has the knowledge of facilities and agencies that are available to assist you, so that if things are not going well, you have the capacity to nip those in the bud before they get out of hand, as they have here.
134. The third aspect is that the person supervising you can give you directions to undertake courses or seek assistance and I think you do need, perhaps, to address your mental health and your attitudes to domestic violence. They may not be major problems but certainly they ought to be addressed. If you have problems, and neither you nor I know what you will face, but in the community there may, for example, be problems obtaining employment. If that is the case, then there are facilities with which your probation officer can assist you.
135. This, as I say, has been a salutary lesson to you. I am satisfied on the evidence before me that you are unlikely to re-offend and therefore I can extend a degree of leniency, not by releasing you today, but very shortly into the community with the expectation that you will not re-offend, that you will be able to re-establish yourself with your family, who are obviously very fond and caring for you, and to provide a role model for your grandchildren, who need that in our community.
I certify that the preceding one hundred and thirty-five [135] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Williams [2016] ACTSC 389
(2014) 253 CLR 58
(1987) 163 CLR 447
(2001) 207 CLR 584