Clinton v R

Judgment 1LEEMING JA: I agree with McCallum J. 2McCALLUM J: Mitchell Clinton was arraigned in the District Court on an indictment containing 8 counts. He pleaded guilty to an offence of intimidation with intent to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (maximum penalty 5 years); an offence of intentionally damaging property contrary to s 195(1)(a) of the Crimes Act 1900 (maximum penalty 5 years) and an offence of using an offensive weapon (a knife) with intent to commit the indictable offence of intimidation contrary to s 33B(1)(a) of the Crimes Act (maximum penalty 12 years). 3He pleaded not guilty, but was found guilty by a jury, of a charge of common assault contrary to s 61 of the Crimes Act (maximum penalty 2 years) and an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (maximum penalty 5 years). He was found not guilty of the remaining three charges but pleaded guilty to a backup charge of contravening an apprehended violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act which had been transferred to the District Court upon his committal for trial, as required by s166 of the Criminal Procedure Act 1986. The maximum penalty for the breach of the apprehended violence order was imprisonment for 2 years. 4After the jury returned its verdicts the Crown submitted (in response to a question from the judge as to whether a pre-sentence report should be ordered) that a custodial sentence was required. Counsel for the offender accepted that was the case but sought an adjournment with bail for the purpose of obtaining a psychiatric report to address the applicant's accepted difficulty with anger management. The judge granted bail for that purpose. 5The report of the psychiatrist, Dr Richard Furst, recorded the applicant's description of injuries suffered in a motor vehicle accident when he was 8 years of age, which Dr Furst thought were suggestive of a significant head injury. When the proceedings came back before the court for the proceedings on sentence, counsel then appearing for the applicant sought an adjournment to investigate that issue further by having the applicant undergo an MRI to ascertain the extent of any neurological deficit. The judge granted a further adjournment for that purpose. The applicant was ultimately sentenced on 17 January 2014 after presenting further evidence and submissions that day. 6The facts found by the sentencing judge may be summarised briefly (much of what follows is drawn verbatim from the remarks on sentence). The offender and the victim had been in a domestic relationship which had been in difficulty for some time. Following earlier acts of violence by the offender against her, the victim had on 20 December 2011 obtained an interim apprehended domestic violence order for her protection. The terms of the order prohibited contact and prohibited the offender from approaching within 100 metres of her home and place of work. There had nonetheless been some ongoing communication between them. 7In late March 2012 the offender arrived at the victim's home with the intention of staying overnight. His purpose in coming to Sydney was to attend a concert. The charge of intimidation with intent to cause a person to fear physical or mental harm (count 1) was based on an incident which occurred in the victim's bedroom very shortly after the offender arrived at her home. He went into the bedroom, seized her around the neck, pushed her against the bedroom wall and told her that if she let any other man near her children he would kill her. 8The offence of assault of which the applicant was found guilty by the jury (count 2) was based on an incident which occurred after the offender returned from the concert later that night. He went to the bedroom, woke the victim and told her that he was intending to move to Queensland. Her response displeased him (she was insufficiently upset). He became upset and head butted her. 9The offence of assault occasioning actual bodily harm of which the jury convicted the offender (count 4) related to his conduct after the head butting. He struck the victim several times in the arms, legs and body. Her evidence was that he was punching her and kicking her and that she was sitting there crying while he kicked her and hit her all over. She had widespread injuries to several areas of her body including her neck, the right side of her collarbone, her left upper arm, under her right arm and to her left leg and knee. 10The charge of damaging property (count 7) was based on the applicant's admission that he smashed a mirror door on the wardrobe in the victim's bedroom. The charge of using an offensive weapon with intent to commit intimidation (count 8) was based on an admission made by the applicant in his record of interview relating to an argument in the victim's bedroom that same evening or the following morning. She was seated on the bed. The applicant grabbed a knife and stabbed it into the bed, telling her that he would kill another man he believed she was seeing at that time. The charge of breaching an apprehended violent order was based on the fact that all of the offender's conduct that night (in being in contact with the victim) was in breach of the apprehended violence order. 11The offender was aged 18 at the time of commission of the offences and 20 at the time he was sentenced. The judge noted the far greater emphasis to be placed on rehabilitation in the case of young offenders but found that concerns about rehabilitation were tempered in the present case by aspects of the applicant's history, to which I will return. 12The judge noted the submission put on behalf of the applicant that an appropriate sentence would be a "short, sharp sentence of imprisonment with a prolonged period of supervision in the community in order to address his difficulties with anger management". In considering that submission, his Honour observed that programs designed to address anger management are available in prison. 13The judge referred to Dr Furst's reports and had regard to his opinion that the offender probably did not have a frontal lobe syndrome or severe brain injury but that his propensity towards anger was at least partially explained by his mild acquired head injury and the long term effects of viral meningitis suffered during his childhood. 14The judge sentenced the offender as follows: