KEEFE B J

STATE OF TASMANIA v BELINDA JAYNE KEEFE                       6 NOVEMBER 2019

COMMENTS ON PASSING SENTENCE                        PORTER AJ

 The defendant has pleaded guilty to one count of perverting justice.  The particulars allege a number of false allegations made to Tasmania Police about Shaun Brown, a man with whom the defendant had been in a significant relationship for a number of years.  At the time of the offending, the defendant and Mr Brown had one child. In October 2018 the relationship between the two was in difficulties, resulting in the defendant deciding to put an end to things.  At that time their only child was about three months old.  Mr Brown arranged for his things to be removed from the house on 20 October 2018.  That night he went out and was drinking.  Although the details of this were not explained, the defendant formed the belief that he was socialising with other women, and this belief led to an exacerbation of the unhappy situation between them.  At about 11.50am on Sunday 21 October 2018, the defendant telephoned police and said that her home had been burgled.  Officers obtained a statutory declaration from her in which she alleged that Mr Brown had verbally abused and threatened her, and said that he had broken into her house and destroyed property.  An investigation was conducted, which included forensic examination of the house. The next day Mr Brown went to the police station and was interviewed about the allegations made. He denied those allegations in all respects.  No charges were laid, but a police family violence order was made on the basis of the defendant’s assertions.  The conditions protected the defendant and prevented Mr Brown from going within 50 metres of the premises. About two months later, in mid-December, the defendant called police on the emergency line requesting help. She was found at a house different to her home address.  The defendant alleged that Mr Brown had been at the home contrary to the police family violence order, but she refused to formalise her complaint and no charges were laid.  Two days later, on 20 December 2018, the defendant again called the police on the emergency line but hung up.  Police went to the defendant’s home address and spoke to her. She alleged that she had called because Mr Brown had been at the address and had breached the family violence order.  She again made a statutory declaration stating that Mr Brown had gone to her house, damaged the front door and stole a CCTV hard drive.  Again, a police investigation was started and photographs were taken of the door allegedly damaged by Mr Brown.  Mr Brown was spoken to. He denied the allegations and undertook to go to the police station for interview after Christmas.  On 27 December 2018, he went to a police station. He declined an opportunity to be interviewed and was arrested on the basis of the defendant’s allegations.  He was charged, fingerprinted, photographed and had a DNA sample taken. He was detained in a holding cell for a period exceeding 10 hours.  At about 9pm that day, he was taken before a justice of the peace, charged with three counts of breaching a police family violence order, stealing and damaging property.  In court, Mr Brown protested his innocence.  Bail was opposed but it was granted on conditions, one of which involved a surety entering into a recognizance in the sum of $2,000.  On 13 January 2019 police responded to a domestic disturbance at the defendant’s home.  When police arrived, they saw Mr Brown inside with the defendant.  He ran away, and the defendant was unco-operative, telling police the two were back together, that she was then nine weeks pregnant with Mr Brown’s child and as she had let Mr Brown into the house, she should be the one locked up.  She made no complaint, but a family violence report and offence report were generated. Over the following days, police tried to find Mr Brown.  As part of that process, officers went to the defendant’s home on 21 January 2019.  While there, the defendant admitted that she had previously lied to police about Mr Brown’s actions concerning the theft of the hard drive and damage to her front door.  She said that he had been at her house on 13 January at her invitation as she wanted to resume the relationship and for Mr Brown to move back in with her.  On 22 January, the defendant was interviewed. She admitted making a false statutory declaration to police on 20 December 2018 and providing false information to police requiring an investigation. She said that she had maintained the lies about the theft and the damage, her motivation being that Mr Brown had “cheated on her” and she wanted revenge, and to take his freedom away by having him arrested.  Eventually, arrangements were made for Mr Brown to attend a police station on 29 January 2019. He again declined to be interviewed, saying he did not want to get the defendant into trouble for the lies she had told.  He denied stealing or causing any damage.  He was charged with two counts of breaching the family violence order and breaching bail; these charges relating to him being at the defendant’s home on 13 January 2019.  He was detained for court for a period of about eight hours.  Bail was again unsuccessfully opposed.  In early February 2019 the defendant applied to vary the police family violence order so as to enable Mr Brown to be at her home. In providing a copy of that application to police, the defendant disclosed that she had not only lied about Mr Brown stealing her CCTV hard drive and damaging the front door, but that she had also lied about the original incident on 21 October 2018, which had resulted in the making of the order.  When interviewed about this, she admitted lying, saying that she had caused the damage herself as she wanted to get him into trouble and take his freedom away.  In the meantime Mr Brown had been required to attend court on two occasions and was subject to continuing bail with conditions, one of which was that he not enter the relevant suburb. In the end, all charges against Mr Brown were dismissed on 17 June 2019.

The defendant is now 28 years old, now the mother of two.  She has a very poor record of driving offences, but no other offending of any significance.  In March 2016, on a drink driving offence, she was sentenced to three months’ imprisonment suspended on conditions for two years, while at the same time a previously imposed suspended sentence of one month for similar offending was activated.  As to further relevant circumstances and the circumstances of the offending, I have counsel’s submissions and a home detention assessment report dated 29 October 2019.  The defendant had an unfortunate upbringing, witnessing physical abuse of her mother by her father.  She has what are described as poor and confused relationships within the immediate family.  The defendant had a good work history after leaving school in grade 9, having worked in various positions ultimately obtaining a managerial position with a fast food outlet.  She is a long term cannabis user, having started at the age of 13 but ceasing only very recently.  Her father died from a heart attack when she was 16, an event which she witnessed. Her mother died some seven years later, having been nursed through an illness by the defendant.  Alcohol abuse and the abuse of other substances followed that event.  This seems to have been by way of self-medication for mental health issues, there being reports of depression, anxiety and post-traumatic stress disorder. But the polysubstance abuse exacerbated those conditions.  She was hospitalised in relation to her mental health in 2015.  She again began drinking heavily and using illicit substances, although not drinking alcohol while pregnant with the first child.  This was the situation during the period of the current offending. She was drinking and abusing substances. Since being charged, and of course having been pregnant, she has stopped this sort of behaviour.  The second child was born in early October.  In further explanation of the offending, I am told that Mr Brown had previously been married and has children from that relationship. The children and his ex-wife live in New South Wales. He visited with some regularity. Shortly before the relevant events, the ex-wife contacted the defendant to tell her that theirs was a sexual relationship. The defendant was devastated and extremely angry.  When confronted, Mr Brown denied it which worsened the defendant’s emotional state.  Being extremely angry, she set out to retaliate and cause pain to Mr Brown. Of course, this is in the background of the then increased polysubstance abuse.  I am told that the defendant has apologised profusely to Mr Brown; she has expressed her remorse, saying to the probation officer that she was shocked that she had allowed herself to make false claims and continue with them for the period of time she had.  In this context, I note that the defendant pleaded guilty on her third appearance in the Magistrates Court, a factor which operates in her favour.  The defendant is of course presently caring for her children. The recent pregnancy was a difficult one with a few periods of hospitalisation being required.  Mr Brown remains supportive of the defendant. He stays with her several nights a week to provide support for the children. The defendant has been assessed as suitable for a home detention order and is said to require a high level of supervision from Community Corrections.

I take into account the defendant’s personal circumstances.  I note the explanation for the offending; the triggers for which happened in the context of alcohol and drug abuse.  The defendant has insight into that situation.  At the same time however, I regard this offending in a most serious light.  The crime is one that undermines the integrity of the administration of justice.  Police resources were wasted as a result of the defendant’s claims.  So too were court resources. Mr Brown spent a total of about 18 hours or so in custody.  Fortunately, he was able to overcome the operation of s 12 of the Family Violence Act and was able to obtain bail, albeit with conditions which restricted his movements.  Of particular concern is that false claims of family violence have the capacity to seriously erode the position of those people seeking to make legitimate claims and allegations, and to protect themselves.  This type of conduct is a betrayal of those persons’ interests.  General deterrence and denunciation are prominent factors.

Ms Keefe, for reasons I have explained, what you did needs to be condemned. Deterring others who might do the same sort of thing is of particular importance.  You acted simply out of anger and the desire for retaliation.  You persisted with the falsehoods over a considerable period of time. Mr Brown was deprived of his liberty. Your record shows a rather casual attitude to compliance with the law and court orders. However, I take into account your personal circumstances and your plea of guilty.  Parliament has made provision for home detention orders as an alternative to imprisonment, suspended or not.  If I were not to make such an order, I would have sentenced you to imprisonment, although at least part may have been suspended.  I think an order is appropriate in all of the circumstances.  You are convicted of the crime.  On the basis of your consent given to the probation officer, I make a home detention order, the operational period of which is six months to commence on 7 November 2019. The core conditions of that order are those contained in s 42AD(1) of the Sentencing Act 1997, with the exception of subs (1)(j) which will not apply in the circumstances.  They will be specified in the written order that will be given to you.  The home detention premises for the purposes of s 42AD(1)(b) is [residential address]. The period for which you will be subjected to electronic monitoring as referred to in s 42AD(1)(g) is the whole of the operational period.  In addition, I make special conditions as follows:

1          You will report to Community Corrections at 114 Bathurst Street, Hobart immediately on release from this Court today.

2          You must maintain in operating condition an active mobile phone service, provide the details to your probation officer or prescribed officer, and be accessible for phone contact at all times.

I also make a community corrections order for a period of 12 months from today.  The core conditions of that order are those contained in s 42AO of the Sentencing Act and will be set out in the written order given to you.  For the purposes of this order, I again specify that you must report to a probation officer at the same address immediately upon your release from this Court. Special conditions of the community corrections order are that you submit to the supervision of a probation officer as required, that you undergo assessment and treatment for alcohol or drug dependency as may be directed, and that you submit to medical, psychological or psychiatric assessment or treatment as directed.