Citation: Police v Cameron Trevail [2012] NSWLC 1
Court: NSW Local Court
Date: 23 March 2012
Judge(s): Henson DCJ, Chief Magistrate
Background
The offender had been in a relationship with the victim (referred to as "V") from approximately December 2008 until November 2010. During the relationship, the offender secretly recorded a video of the two engaging in sexual intercourse using his mobile phone, without V's prior knowledge or consent. The video clearly showed both parties' faces and bodies.
After the relationship ended, the offender continued to contact V despite her requests that he stop. On 10 May 2011, he telephoned V and explicitly threatened to upload the video to the internet unless she agreed to have sexual intercourse with him that same evening. V recorded the call and activated her loudspeaker so that two witnesses present could hear the threat.
Police executed a search warrant on the offender's residence, seizing his mobile phone, a USB device, and other recording equipment. The offender was charged with several offences. Two charges were later withdrawn by the prosecution, after which he entered a guilty plea to a charge of stalking and intimidation with intent to cause physical or mental harm, contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.
Legal Issues
- What objective seriousness should be attributed to the offence, and what maximum penalty should guide that assessment?
- What discount, if any, was appropriate for the guilty plea, given it was entered only after the prosecution withdrew two other charges?
- What weight should be given to the offender's subjective circumstances, criminal history, and the aggravating features of the offending?
- Whether any sentence other than full-time imprisonment was appropriate, and specifically whether an Intensive Corrections Order (ICO) was a suitable alternative to full-time custody.
Decision
Chief Magistrate Henson noted that although the Local Court's jurisdictional maximum for this offence is 2 years imprisonment, the court was required, following R v Doan (2000) 50 NSWLR 115, to assess objective seriousness by reference to the 5-year legislative maximum. The Chief Magistrate found the offending to be objectively serious: the offender had planned the coercion, exploited the intimate video as a tool of intimidation, and directed threats at a victim who had already made clear she did not wish to resume contact.
The guilty plea attracted only a 17.5% discount. The court found that the plea was withheld until the prosecution withdrew the two other charges, significantly reducing its utilitarian value in accordance with the principles in R v Borkowski [2009] NSWCCA 102 and R v Thomson and Houlton (2000) 49 NSWLR 383.
The offender's criminal history, which included two prior convictions for contravening an Apprehended Domestic Violence Order and a further breach of a bond, substantially negated the mitigating factors ordinarily available to first offenders under the Crimes (Sentencing Procedure) Act 1999. The court also noted the escalating pattern of conduct and the planned nature of the offending as aggravating features. The probation report identified concerns about the offender's tendency to exploit power over others, and his continued use of prohibited drugs.
The court determined that no penalty other than imprisonment was appropriate. However, noting the offender's age, his prior exposure only to non-custodial sentences, and the significance of addressing his drug and alcohol dependency, the Chief Magistrate exercised discretion, consistent with R v Boughen, R v Cameron [2012] NSWCCA 17, to impose the sentence by way of an Intensive Corrections Order. A head sentence of 9 months imprisonment, reduced to 7 months and 12 days after the guilty plea discount, was imposed, to be served under intensive correction with mandatory drug and alcohol rehabilitation.
Orders Made
- The offender was convicted of stalking and intimidation with intent to cause physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.
- Sentence of 7 months and 12 days imprisonment, to be served by way of an Intensive Corrections Order.
- The offender was required to participate in drug and alcohol rehabilitation programmes during the period of intensive correction.
- The sentence was to commence within 21 days of 23 March 2012.
Key Takeaways
- Under R v Doan, a Local Court sentencing for a Table 2 offence must assess objective seriousness by reference to the full legislative maximum penalty, not the court's jurisdictional limit.
- A guilty plea entered only after the prosecution withdrew co-charges attracts a significantly reduced utilitarian discount; in this case the court allowed 17.5% rather than a higher discount that might have applied to an early plea.
- Prior convictions for breaching Apprehended Domestic Violence Orders do not directly aggravate the index offence, but they substantially negate the mitigating factors available to first offenders under the Crimes (Sentencing Procedure) Act 1999.
- The planned use of secretly recorded intimate footage as a coercive tool to compel sexual intercourse was treated as an aggravating feature indicating premeditation.
- Consistent with R v Boughen, R v Cameron [2012] NSWCCA 17, a sentencing court retains discretion to impose a predetermined term of imprisonment by way of an Intensive Corrections Order where rehabilitation, alongside general and specific deterrence, forms part of the sentencing rationale.
Legislation and Cases Referenced
Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Criminal Procedure Act 1986 (NSW), s 268(2)(f)
- Crimes Act 1900 (NSW)
Cases
- R v Borkowski [2009] NSWCCA 102
- R v Boughen, R v Cameron [2012] NSWCCA 17
- R v Doan (2000) 50 NSWLR 115
- R v Taylor [2000] NSWCCA 442
- R v Thomson and Houlton (2000) 49 NSWLR 383