SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / R v Ellis
Citation: / [2014] ACTSC 389
Hearing Date(s): / 18 December 2014
Decision Date: / 18 December 2014
Before: / Murrell CJ
Decision: / Six month suspended sentence and 18 month good behaviour order imposed for contravene protection order. Fined for other offences.
Category: / Sentence
Catchwords: / CRIMINAL LAW – Sentence – contravene protection order – breach of good behaviour order – additional summary offences – trespass – common assault
Legislation Cited: / Crimes Act 1900 (ACT) s 26
Crimes (Sentence Administration) Act 2005 (ACT) s 110
Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33, 35
Domestic Violence and Protection Orders Act 2008 (ACT) s 90
Supreme Court Act 1933 (ACT) s 68D
Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11
Parties: / The Queen (Crown)
Gregory Stephen Ellis (Offender)
Representation: / Counsel
Ms S Saikal (Crown)
Mr S Whybrow (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Ben Aulich & Associates (Offender)
File Number(s): / SCC 200 of 2014; SCC 201 of 2014

MURRELL CJ:

Background

1.  The offender adheres to a plea of guilty to the offence that on 17 May 2014 he contravened a protection order. That offence against s 90(2) of the Domestic Violence and Protection Orders Act 2008 (ACT) carries a maximum available penalty of five years' imprisonment, a fine of $70,000 or both.

2.  The Court will deal with related summary offences pursuant to s 68D of the Supreme Court Act 1933 (ACT). The related offences are an offence of trespass, contrary to s11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) to which a fine of $1,400 attaches and an offence of common assault, contrary to s26 of the Crimes Act 1900 (ACT) to which a maximum available penalty of two years' imprisonment attaches.

3.  The plea of guilty to the principal offence was entered on the fifth mention in the Magistrates Court, as was the plea of guilty to the assault offence. The plea of guilty to trespass was entered on the first mention. The pleas of guilty to contravene protection order and assault matters were entered in the context of negotiations between the Crown and the defence. In these circumstances, discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) in the range of 20% to 25% is appropriate.

4.  The offender has spent three days in custody in relation to the principal offence. He was on a good behaviour order imposed by the Magistrates Court on 8 April 2014 when the offence occurred on 17 May 2014. The good behaviour order had been imposed in relation to a similar matter; that is, contravene protection order. That contravention involved the same protection order and the same complainant. I will deal with the offender for that matter pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act).

Facts

5.  The offender and the victim had been in a relationship for some years when they separated in May 2013. There was a daughter of the relationship who had been born in 2012. Following the separation, the offender was very upset and was drinking heavily. The victim obtained a protection order of 12 months duration from 8 January 2014 to 7January 2015. On 23 February 2014 the offender contravened the protection order by attending at the victim's premises at 10.15 at night, prowling around the rear of the premises, apparently switching off the power connection to the premises but then turning it back on when requested to do so by the victim. For that matter, on 8 April 2014 the Magistrates Court imposed a 12 month good behaviour order.

6.  On 17 May 2014 at about 10.30 pm the victim arrived home in the company of her new partner. Creaking noises were emanating from inside the roof space. The offender was in the roof cavity. His presence in the roof cavity constitutes the trespass.

7.  The victim's partner inspected a manhole. When he tried to push the manhole cover open he felt resistance and he shouted to the offender to come down. The offender entered the house through the manhole. He began to put on his work boots. He asked about his daughter and was told that she was asleep.

8.  The victim's partner repeatedly asked the offender to leave. The offender did not do so. Instead he walked towards the front door where the victim's partner was standing and lunged at the victim's partner, holding him in a head lock. The victim's partner grabbed the offender and both men fell to the ground. The head of the victim's partner hit the wall as he fell to the ground. The victim's partner overpowered the offender and let him go after the offender appeared to calm down. However, after a short break the offender again lunged at the victim's partner, who wrestled him for a second time and again overpowered him.

9.  The victim's partner offered to leave and he walked out the front door. The offender followed, calling after the victim's partner, "Burn in hell" and swearing. The offender then left the unit. The victim called the triple-0 emergency number.

10.  The offender's conduct breached a number of conditions of the protection order that had been imposed in January 2014; in particular, the order restrained the offender from being on the relevant premises, from being within 100 metres of the victim and from contacting her.

Subjective circumstances of the offender

11.  The offender is now 29 years of age. He had a good upbringing. He has a stable and supportive family. He is single, having separated from the victim in May 2013. As mentioned, the couple has a two year old daughter. The offender now resides with his parents. He has worked as a carpenter. At one stage he lost that employment because he had no driver's licence due to drinking and driving. However, he is now working as a carpenter and earning about $950 net per week from which he pays board to his parents and attempts to save towards the purchase of a home.

12.  The offender has long standing problems in relation to alcohol and depression. He has been described as an alcoholic. On the day of the offence he was very intoxicated, having consumed approximately 40 standard drinks. Between the break up in about May 2013 and the offence in May 2014 he drank 30 or 40 standard drinks a day. He is also described as a problem gambler.

13.  The offender also has a history of depression and, as is obvious from the commission of the offences, has had anger management problems. His depression has, over many years, been intermittent. It has been associated with non-compliance with treatment and with stressors in his life. Anger management problems have been associated with alcohol abuse. Dr Mullen, who provided a report, also pointed out that alcohol abuse exacerbated the jealousy that the offender felt at the time of the May 2014 offences.

14.  The offender says that he has been abstinent from alcohol since May 2014, but his psychologist suggests that he may not have been completely abstinent. He certainly continues to struggle with abstinence. He is still attracted to drinking alcohol although he also has good insight into his problems. He understands the difficulty that alcohol consumption has caused for him. Dr Mullen and his psychologist are convinced that the offender will not be able to manage "controlled drinking" and will need to sustain abstinence if he is to avoid problems in his life.

15.  The offender has consulted a general practitioner who has prescribed antidepressant medication. There was some difficulty with the type of medication that was originally prescribed and there was a problem with medication compliance. The anti-depressants were changed and for the past two months or so the offender has been compliant with his medication. That has made a great deal of difference to his feeling of wellbeing.

16.  The offender has been consulting a psychologist since June 2014. There have been eight attendances and two missed attendances. That treatment has focused on alcohol issues, although the psychologist has identified that the issues of depression and anger management also need to be addressed, presumably after alcohol abuse has been dealt with.

17.  The offender was non-compliant with bail conditions on several occasions when he did not provide a urine sample for analysis. The purpose for which the analysis was sought was to test that he was taking anti-depressants, they being a very important part of his treatment regime. He has been more or less compliant with taking his anti-depressants for the past couple of months.

18.  The offender has gained considerable insight into his unacceptable behaviour. He now understands that his conduct was very frightening for the victim and he appears to accept, at least at some level, that she was justified in expressing reluctance to allow him to have access to their daughter because of very volatile and unpredictable behaviour associated with alcohol abuse and understandable concerns about her daughter. Recently, with the support of grandparents, the offender has had access to his daughter and he now sees her three nights a fortnight. He is motivated to continue with and build upon the current level of contact.

19.  As far as his prior criminal history is concerned, apart from the matters before the Court, there are only two other matters. They are drink driving matters that occurred in 2007 and 2010. The nature of the offender’s criminal history is yet another reminder that the offender needs to be completely abstinent from alcohol if he is to lead a worthwhile life and avoid future contact with the criminal justice system.

Impact on the victim

20.  The victim provided a victim impact statement which illustrates just how frightening the incident was for her. She describes the fact that she was extremely frightened and she remained very frightened as long as she continued to reside in the residence where the incident occurred. She was particularly frightened when she arrived home late at night from work and she tried to avoid being in the premises alone at all costs. She successfully broke her lease because she could not enjoy the premises, and she moved out. Her current address is not known to the offender although it is known to his parents. Before she moved out from the premises she had sleepless nights because of the worry associated with the possibility of the offender returning to harass her. These are the sorts of fears that the Court would expect the victim to have felt, particularly because the incident of 17 May 2014 was the second night time intrusion by the offender.

Sentences imposed

21.  In sentencing the offender I have had regard to the relevant matters in s 33 of the Sentencing Act and to the sentencing purposes in s 7 of the Sentencing Act.

22.  The episode of 17 May 2014 is a very serious matter. It calls for a sentence of imprisonment. As the offender is in the early stages of rehabilitation and has a very good support system in place, and in the context of his prior criminal history and other relevant matters, I am prepared to suspend the sentence on a good behaviour order of a significant duration.

23.  I convict the offender of the offences of contravene protection order, trespass and common assault.

24.  In relation to the contravene protection order offence, I would have sentenced the offender to eight months' imprisonment but I have reduced that to six months' imprisonment for the plea of guilty under s 35 of the Sentencing Act. Pursuant to s 12 of the Sentencing Act I make a suspended sentence order suspending the entire period of the sentence. I also make a good behaviour order for a period of 18 months from today. The good behaviour order is subject to conditions that the offender report to ACT Corrective Services at Eclipse House by 4 pm today and submit to the supervision of Corrective Services for as long as they deem necessary, including undertaking any treatment and courses that they recommend.

25.  In relation to the trespass, the offender is convicted and fined $50. In relation to the common assault, that was a matter of considerable objective seriousness as it occurred late at night when the victim was attempting to persuade the offender, in a perfectly reasonable fashion, to get out of his partner's house but the offender repeatedly declined to do so. In relation to that matter, the offender is convicted and fined $1,000.

26.  In relation to the breach of the good behaviour order imposed by the Magistrates Court on 8 April 2014, that was a serious matter for which a 12 month good behaviour order was imposed. There is no point continuing that good behaviour order because the offender is now on a different good behaviour order. To recognise the sentencing objectives in s 7 of the Sentencing Act including punishment and accountability, the offender is fined. In relation to the good behaviour order imposed by the Magistrate on 8 April 2014, I find the breach established. I cancel the good behaviour order and I fine the offender the sum of $2,500.

27.  The offender is therefore required to pay fines totalling $3,550. He has six months to pay this sum.

I certify that the preceding twenty seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.
Associate:
Date: 3 February 2014

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