IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01902

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
KATHLEEN COURTNEY		

---

JUDGE:	HIS HONOUR JUDGE LYON	
WHERE HELD:	Melbourne	
DATE OF HEARING:		
DATE OF SENTENCE:	21 June 2023	
CASE MAY BE CITED AS:	DPP v Courtney	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1049	

REASONS FOR SENTENCE
---
Subject: 					    Criminal Law
Catchwords:
Legislation Cited:			    Crimes Act 1958 (Vic)
Cases Cited:
Sentence:					    Adjourned undertaking for a period of 3 years
---

APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms P. Thorp	Office of Public Prosecutions	
			
For the Accused	Mr T. Battersby	Marco Man & Associates	

HIS HONOUR:
1	Kathleen Courtney, you were found guilty by me after a Judge-alone trial on 
30 September 2022 of one charge of using a false document (Crimes Act 1958 s 83A(2)) on Indictment H12813136.2.  The maximum penalty for this offence is 10 years' imprisonment (Level 5).
2	You have no prior criminal history.
3	The facts and basis upon which you were found guilty are set out in my judgment and verdict of 30 September 2022.  I refer to and adopt my judgment as setting out the facts in this matter.
Objective Gravity and Moral Culpability  
4	I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.  
5	As I set out in my reasons for verdict, you used the document in two ways; to purportedly establish:
a)	An entitlement to ownership of the significant share of the Lorne property; and
b)	As the grounds supporting the caveat you lodged to prevent others from dealing with that property.
6	Your criminal use of the false document did not result in the transfer of ownership to you; nor is there evidence that you were able to occupy the property.  Rather, as I have just stated, you prevented others from dealing with the property in accordance with their lawful entitlement.
7	The Crown tendered the Victim Impact Statement of Meagan Courtney.  After submissions, I considered that it was appropriate to receive this statement.  Mrs Courtney was married to David Courtney at the time of his death.  
Mrs Courtney did not wish for her statement to be read in court, and so I must and will respect the privacy of its content.  Nevertheless, it is necessary for me to say that your actions have had a significant detrimental impact; both emotional and otherwise, on Mrs Courtney and her family.  I note also that Mrs Courtney speaks of your actions and conduct beyond the conduct of the subject of this charge.  I will be vigilant to keep the impact of this statement in perspective.
8	The Crown submitted that your offending attracts the principles of just punishment and deterrence.  After considering the whole of the circumstances of the case and the report of Dr Glowinski, the Crown submits that the principles of sentencing can be satisfied by the imposition of a non-custodial sentence, but submits that a fine is inappropriate.
9	Mr Battersby, who appeared on your behalf on the plea, initially submitted that in the circumstances of your offending, and of your personal circumstances, the imposition of a conviction and either a fine or a CCO would suffice to meet the sentencing objectives.  Mr Battersby later submitted that a fine would suffice and then later submitted that you have no means to meet a fine.
10	I consider that, ordinarily, general deterrence is the principal sentencing objective for this type of offending; but how it should be effected in this case requires some background and explanation.  I cannot assess the objective gravity of your offending and the sentencing objectives, including your moral culpability, until I take into account your personal circumstances and the report of Dr Glowinski. 
Chronology of the Plea Hearings
11	It is first necessary to set out the chronology of the plea hearings in this matter.  This is made necessary to help explain why what should be a relatively straight forward sentencing exercise has become complex.
12	The matter was first listed for a plea hearing on 1 December 2022 when a CCO pre-sentence report was ordered and the matter was adjourned for further plea to a date to be fixed.
13	The further plea in this matter was heard on 7 December 2022, when the CCO report was put before the court and assessed you as unsuitable for a CCO.  I then ordered a full psychiatric report from Forensicare.
14	The matter was next listed for further plea on 23 March 2023, where it was discussed whether imposing a CCO in light of the Forensicare report was available, and the matter adjourned for defence to obtain instructions about whether you would now consent to CCO.
15	The matter was next listed for further plea on 28 March 2023, where I was informed that you would still not consent to CCO, and the matter was adjourned to a date to be fixed for sentence.  The parties were ordered to file submissions regarding your financial circumstances.
16	Defence provided submissions to the Court outlining your financial circumstances on 2 April 2023.  The Crown provided their response to the Court on 11 April 2023.
Personal Circumstances
17	You are 61 years old, being born in September 1961.  
18	You were born and raised in Melbourne and have lived here for most of your life.  You currently live alone in the Melbourne area.
19	You have one adoptive brother who is two years older than you.  You have not had contact with him for 30 years and you are not aware of his whereabouts.
20	When you were aged around 12 years old your mother passed away.  You were then raised primarily by your father, grandmother and aunt.  Your father has also since passed away.
21	You describe your mother and father as 'great parents' and that you had a good childhood, save for losing your mother at a young age.  You reported to Dr Glowinski that you had no exposure to any abuse, trauma or illness as a child.
22	You attended St Phillips Primary School until Grade 6 and then St Thomas' for one year.  You then completed your secondary schooling at Kilmaire College in Hawthorn.  You say you experienced no issues at school and were never suspended or expelled.
23	You told your counsel that upon completing your formal schooling, you moved to Queensland and gained qualifications in theatre makeup artistry and design, interior design and real estate.  You stated that you had also worked as a model until your mid-forties in a range of campaigns and some television advertisements.  
24	You reported having had three significant partners in your life.  You were engaged to your first partner and sometime later you separated.  You then entered into a brief relationship with the father of your only child, Michael.  Upon the breakdown of this relationship your son did not have any contact with his father until after he was 4 years old.  Michael is now in his thirties and lives in Queensland, and you report having regular contact with him.
25	Your last significant relationship was your marriage to David Courtney.  It is Mr Courtney's property that is the subject of this offending.
26	Following your separation from Mr Courtney and his later death in 2015, you told your counsel you attempted suicide and were hospitalised at The Alfred overnight. 
27	You currently have a partner who also lives interstate.  He is the primary carer of young children.  You have reservations about this relationship due to the added responsibility of having to assist in raising these young children.
28	Since your late twenties you report having intermittent employment.  You have been unemployed and been in receipt of Centrelink Jobseeker benefits for several years now.
29	Your counsel submitted that your monthly income is spent entirely covering your living expenses.
30	In recent years you have had a hip replacement, you have suffered declining health after receiving the covid vaccination, and you have persistent jaw pain. 
Analysis 
31	I was provided with submissions and material being:
a)	A psychiatric report dated 20 July 2011 of Dr Donovan Moncur, provided to your family lawyers.  Dr Moncur commenced seeing you on 10 May 2011 for 'ongoing management of PTSD relating to an abusive marriage'.  The form of the report provided to me suggests that it has been redacted but I cannot form any concluded view about this;
b)	Two statements that you made to police dated 31 August 2011 alleging sexual abuse and domestic violence perpetrated by David Courtney in the course of the relationship; and
c)	The report of Jeffrey Cummins, forensic psychologist dated 
11 November 2022 referring to his earlier nine consultations with you between March and August 2016 and his earlier diagnoses of Adjustment Disorder with Mixed Anxiety and Depressed Mood and PTSD from extended and severe marital abuse.  In 2022, Mr Cummins concluded you display a mildly narcissistic personality style, and that you display symptoms of major depressive disorder with moderate severity with associated features of anxiety and traumatisation.
32	Essentially, Mr Battersby (who appeared on your behalf at the plea hearings, but not at the trial) submitted that your marriage to Mr Courtney had been unhappy; that you were the victim of domestic violence in the course of the marriage and that you applied for an intervention order against Mr Courtney in 2011.  He submitted that although your circumstances had once been comfortable, since your marriage the situation has changed considerably, and that you now lived within your means but in straitened circumstances.
33	I received character references from Dr Praveen Nathanial, prosthodontist, who refers to your good character and to a dental injury received when you allege Mr Courtney hit you approximately 12 years ago.  I also received a character reference from David Same, who reported that you had told him of the domestic violence and that you required surgery after injuries you sustained.  He also spoke of the volunteer work you had undertaken and of your good character.
34	Essentially, I was provided with material where you have reported:
a)	Being the victim of domestic violence, including physical, emotional and sexual abuse during your marriage to Mr Courtney;
b)	That you were treated unfairly in the financial settlement after your marriage dissolution; and
c)	(At the instigation of Mr Courtney) you were subjected to an orchestrated police raid on your apartment in 2011.
35	After the plea hearing on 1 December 2022, and in accordance with your counsel's submissions, you were assessed for a CCO.  You were assessed as unsuitable for a CCO as you stated you did not want to undertake the order but provided consent only to avoid receiving a custodial sentence.  The report stated that you presented as erratic and incapable of providing a sequenced timeline of events.
36	The concurrent mental health assessment conducted to further gauge your suitability to undertake a CCO reported that you:
Expressed multiple persecutory and query paranoid themes about [your] ex‑husband’s wife, ex-female friends who no longer acknowledge or recognise [you] in the street, people gossiping about [your] legal situation on the street.  
37	The assessment further noted your documented history of trauma, depression, anxiety and self-reported history of domestic violence and multiple psychosocial stressors secondary to social isolation and your legal situation.  
38	I then ordered a full psychiatric presentence report from Forensicare.  I received the report of Dr Remy Glowinski dated 15 March 2023.  It is necessary to consider this report in some detail.
39	Dr Glowinski concluded that during the assessment you were evasive and vague and provided answers which often bore little relationship to the questions asked.  You displayed a subdued and aloof effect with occasional appropriate reactivity, but there was no definite evidence of formal thought disorder.  You repeatedly and specifically denied significant symptoms of traumatisation.  You described a loosely organised persecutory system in which you are the victim of the police; and the Courts.  You appeared to externalise and blame others for adverse life events including the offending.  He concluded your account was often fantastic and quite possibly delusional.  Dr Glowinski reports that you seemed insightless into the unusual nature of your stories, such as that you thought it was '60% likely that you are a victim of organised police and court collusion'. Dr Glowinski considered your judgment seemed to be compromised.
40	You told Dr Glowinski that sexual intimacy with David Courtney continued past your separation in 2010 right up until his hospitalisation in 2013, and despite his relationship and marriage to Meagan Courtney.
41	Dr Glowinski characterised your descriptions of police intervention in your life as convoluted, but noted that you told him you were wrongly charged with these offences; that the witness Tony Macken perjured himself; and that the trial judge interfered with the trial process and dismissed your barrister, who you thought was doing a good job.  You described the trial judge as angry with your barrister.
42	You told Dr Glowinski that two of your witnesses died unexpectedly before they were able to provide favourable evidence, and it was likely that they were killed because of your case.
43	Dr Glowinski reviewed the CCO assessment, your police statements from 2011, the report of Dr Moncur, the report of Jeffrey Cummins and your mental health assessment report for the CCO. In his assessment, you do not present as someone suffering from genuine PTSD.
44	Rather, Dr Glowinski considers that your presentation to professionals in 2011 was the first expression of a gradually evolving low-grade psychotic illness, such as delusional disorder.
45	Dr Glowinski states:
Another possible explanation for her unusual beliefs about being targeted is that the narcissistic traits mentioned by Jeffrey Cummins are in fact more severe, and that she has significant psychological vulnerability combined with a propensity to fabricate.  If pressed, I'd say that I prefer the delusional disorder theory, but this is by no means a firm conclusion.
46	Dr Glowinski states that delusional disorder is notoriously difficult to treat, and usually ends up being treatment resistant.  He warns of the dangers of imposing a CCO, which is likely to increase your resentment, and that imprisonment would be more onerous for you than for an average person of normal health.
47	In light of Dr Glowinski's report and opinion, and notwithstanding the reports of Dr Moncur and Mr Cummins, I am unable to reach a firm conclusion about the veracity of your claims of violence and abuse perpetrated by Mr Courtney.  This is made difficult as the material I have seems to all post-date your separation from him, (suggesting that the reports were all made after the marriage had ended) and yet you told Dr Glowinski that sexual intimacy continued after the separation.  Indeed, your trial counsel put questions to witnesses (which I conclude were based on your instructions) that you continued a relationship with Mr Courtney for years after your separation.
48	On Monday 19 June 2023 I received a report from Dr Jane Addis, dated 
17 June 2023.  This report was not expected, nor accompanied by any submissions.  The report states that you consider that you have been inaccurately characterised in the earlier reports tendered on the plea hearing.
49	The report outlines your professional visits to Dr Addis in 2007, 2008, February 2010 and in 2011, and refers to further visits in 2012.  The report certainly confirms your reports of domestic violence; but again, I am not sure whether your reports to Dr Addis of physical violence (as opposed to drinking, erratic behaviour and verbal abuse reported by you on the part of David Courtney) are exactly contemporaneous, or reported after you had separated from David Courtney.
50	It is safer in my view to conclude that you suffer from a low grade evolving psychotic illness such as a delusional disorder, or some other psychological vulnerability combined with a propensity to fabricate. 
51	I note that Dr Addis concludes that you suffer from an anxiety disorder of a PTSD type, with paranoid features.  I assume Dr Addis did not see 
Dr Glowinski's report as she makes no mention of it.
52	Because of the conclusion I have just reached and stated, I wish then to make clear:
a)	Your mental health issues must considerably influence the sentencing consideration; and
b)	The matters I have set out in relation to what has been said by you about David Courtney and Meagan Courtney must not be read as concluded truths, but are set out only as circumstances to explain how I have arrived at my sentencing decision.
53	After the Glowinski report was provided to the parties, the Crown submitted that a non-custodial sentence was within range, but that a fine was not sufficient.  Ms Thorp, who prosecuted this matter throughout, informed me that:
a)	You have failed to pay costs orders from the Magistrates Court in relation to an IVO taken out by Meagan Courtney; and
b)	Failed to pay costs ordered against you in relation to the Supreme Court proceedings for the removal of caveats lodged by you.
54	In addition, there is the acrimony of your relationship with Meagan Courtney and there is a failure of you to accept that you do not live at or own the former matrimonial home in South Yarra.  Bizarrely, it seems that in August 2022, you changed the address on your licence to the South Yarra address where Meagan Courtney lives.
55	Further, I note that whilst you have no prior convictions, you have outstanding matters which are all, or almost all related to your ongoing acrimony with Meagan Courtney.  I will not increase the sentence for this matter by impermissibly taking into account other subsequent matters; especially when you have not even necessarily entered pleas to those matters.
56	As I have stated, initially your counsel submitted that you should not serve a period of imprisonment for this offending.  First, he submitted that a CCO or a fine was an appropriate penalty.  You made it clear that you did not freely consent to a CCO.  After the Glowinski report was received, at my urging, 
Mr Battersby took further instructions as to whether you would agree to a CCO.  You plainly stated that you would not.
57	Then, by written submissions dated 2 April 2023, Mr Battersby provided an outline of your financial situation.  You have instructed your counsel to the effect that you are fully financially committed, and that there is no money available to pay a fine.  
58	I note that by email dated 20 April 2023, you sent direct to my chambers a document purporting to set out assets by which you financially contributed to your marriage, but which you say were all dissipated through no fault of yours.  Of course, this document was not received as part of the plea – I am simply documenting a further aspect of your conduct in light of Dr Glowinski's report.
59	In the end, I am left with this – you have committed a serious criminal offence, which in normal circumstances could well lead to a period of imprisonment.  In this case however, I conclude that the usual sentencing objectives must be mitigated by your mental health issues, and the treatment resistant nature of your probable illness.
60	I add here that I consider the prospects for your rehabilitation are difficult to assess.  You have no prior convictions, and this stands as a matter which will not be repeated, that is the offending, but it is imperative that you put your time with David Courtney behind you, and get on with your life without contacting Meagan Courtney if you are to remain out of trouble in the future.
61	I made it clear to counsel that I did not consider that gaol was an appropriate punishment in this case; although I now put one rider on that.  The Crown at least conceded that a non-custodial sentence was open (and I think, appropriate) in light of Dr Glowinski's report.
62	The question then becomes what sentence should be imposed?
63	In my view, imposing a CCO without your consent is impossible.  This is all the more so when you have been assessed as unsuitable, and Dr Glowinski has underlined the potential this will heighten resentment (and likely noncompliance) in you, borne of your mental health problems.
64	It is readily apparent that if I impose a fine, you will fail or refuse to pay it.  The history of not meeting costs orders and your resentment at and distrust of these proceedings signals that the imposition of a fine is futile.
65	I have decided then that with a conviction recorded against you, you should be placed on an adjourned undertaking for a period of three years.  An adjourned undertaking requires you to appear back before me if called upon to do so.  It further requires that you must be of good behaviour during the period of the undertaking.
66	Let me tell you exactly what that means, Ms Courtney.  If you break the law and commit any further criminal offence in the next three years, you will be brought back before me and you may face a further penalty.  But what it means beyond that is that you must start to obey the law again.  If you do not, you will find yourself back in court, time and time again, and you will risk the unthinkable – the prospect of eventually going to prison.
67	I want to make this clear too.  I am not asking you whether you want to be placed on such an undertaking – it is something that I am imposing on you.  That is the coercive nature of sentencing and you do not get to opt out of it.  I also want to make it clear that your consent to the order is not vitiated by the fact that you face the prospect of a term of imprisonment.  The law and the decided cases have also made that clear.
68	I also want to make it clear that obeying the law is the obligation of every person in this State.  All you are required to do is to sign the undertaking that you understand your obligation.
69	If you refuse to do so, and if you say that you will not sign it, then given that the offence carries a maximum penalty of 10 years' imprisonment, given the seriousness of the offending, your lack of remorse and your rejection of other sentencing options, I will stand the matter down and reconsider the imposition of a sentence of imprisonment, notwithstanding your mental health issues.
70	The form of the undertaking has been prepared and I will stand down for a couple of moments while you explain that to Ms Courtney.
71	MR BATTERSBY:  As Your Honour pleases.
72		(Short adjournment.)
73	HIS HONOUR:  Mr Battersby, you are satisfied that Ms Courtney understands the terms of the undertaking?
74	MR BATTERSBY:  Yes, I am, Your Honour.
75	HIS HONOUR:  Thank you.  I have signed the undertaking.  Anything else?
76	MR BATTERSBY:  No, Your Honour.
77	MS THORP:  No, Your Honour.
78	HIS HONOUR:  Thank you to both counsel for your assistance.
‑ ‑ ‑