Hardwick v Tasmania [2020] TASCCA 2 (20 March 2020)

[2020] TASCCA 2

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Hardwick v Tasmania [2020] TASCCA 2

Criminal Law - Sentence - Sentencing procedure - Material relevant for determining appropriate sentence - Victim impact statements.

Attorney-General for Tasmania v B [2010] TASCCA 6, 20 Tas R 277; JWM v Tasmania [2017] TASCCA 22, followed.

R v Swift [2007] VSCA 52, 15 VR 497, referred to.

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Assaults - Estranged husband invaded home, attacked wife and choked her in front of children - Punching and biting of son defending mother - Sentence of 2 years 6 months' imprisonment, with 12 months suspended and non-parole period of 12 months not manifestly excessive.

Judgment Number: [2020] TASCCA 2

1. I agree that this appeal should be dismissed, for the reasons stated by Martin AJ. I also agree with the comments of Pearce J.

1. I agree that the appeal should be dismissed for the reasons stated by Martin AJ.
2. There is one matter about which I wish to add some comments of my own concerning the appellant's contentions about the way in which the psychologist's assessment and the pre-sentence report were considered by the learned sentencing judge. The contents of the reports were relevant to a number of related sentencing issues, principally the degree of insight and remorse demonstrated by the appellant, the extent of the risk he continued to pose to the victim, and the need for personal deterrence.
3. The appellant was sentenced on the basis that he had a "degree of insight" but continued to minimise the seriousness of his conduct. The sentencing judge was not satisfied that the appellant had a "true appreciation of the effect of [his] conduct on [his] wife and children". His Honour accepted that the appellant's co-operative and appropriate response to the charges and his early plea of guilty amounted to a practical demonstration of remorse. Based on the psychologist's assessment that the appellant posed a risk of perpetrating further family violence against the victim, his Honour found that personal deterrence "requires some emphasis in these proceedings".
4. The psychologist's assessment was prepared on 9 October 2019, about three weeks after the crimes. The pre-sentence report was prepared by a probation officer on 22 November 2019, after the appellant had been in custody for a further period. The author of the pre-sentence report, based on what she was told by the appellant and a risk assessment tool, assessed the appellant as posing a "low risk of future family violence". The appellant contended that the sentencing judge gave too much weight to the psychologist's assessment and insufficient weight to the pre-sentence report and the "sobering experience of custody".
5. There was no ground of appeal asserting, as a specific error, that the sentencing judge acted on a wrong principle, mistook a relevant fact, took into account an irrelevant matter, or failed to take into account a relevant matter. If specific error capable of affecting the sentence is demonstrated, the sentencing discretion miscarries for a different reason: Kentwell v The Queen [2014] HCA 37, 252 CLR 601; , per Porter AJ at [120]-[140]. I am perfectly satisfied that the sentencing judge made none of the errors asserted by the appellant. But, in any event, the single ground of appeal was that the sentence was manifestly excessive. That ground involves different considerations. It requires consideration of whether the Court should infer a failure to properly exercise the sentencing discretion on the basis that the sentence is unreasonable or plainly unjust. The appellant's argument that the judge failed to give sufficient weight to the appellant's claimed insight and remorse and gave too much weight to the future risk he posed to the victim and the need for personal deterrence can only be judged against the sentence. It cannot be said that the sentencing judge failed to give sufficient weight to any or all of those factors unless the sentence is manifestly excessive taking into account all matters relevant to sentence. The identified factors are to be considered with other relevant sentencing considerations, some of which are conflicting and contradictory, but all of which must be weighed by the appellate court in assessing whether the sentence is manifestly excessive or not: at ; , at ; at .

1. The appellant pleaded guilty to aggravated burglary and assault. He also pleaded guilty to the summary offence of common assault with which Brett J dealt pursuant to s 385A of the Criminal Code.
2. Brett J imposed a single sentence of imprisonment for two years and six months, but ordered that the sentence be suspended after service of one year and six months upon various conditions, including supervision by a probation officer and obedience as to directions concerning educational programs and medical treatment. In addition, with respect to the operative sentence, his Honour directed that the appellant not be eligible for parole before the expiration of 12 months of that sentence.
3. The crimes were committed in the context of a domestic relationship. The learned sentencing judge made a family violence order and directed that the crimes and summary offence be recorded on the appellant's criminal record as family violence offences.
4. The appellant appeals against his sentence. The sole ground of appeal asserts that the sentence is "manifestly excessive", but in submissions counsel for the appellant contended that, in a number of respects, the sentencing judge erred in his assessment and use of evidentiary material relevant to sentence.
5. For the reasons that follow, in my opinion the appeal should be dismissed.

1. The offending occurred on 20 September 2019 and the victims were the appellant's wife and 18 year old son. I will refer to the appellant's wife as the victim.
2. After a 22 year marriage, the appellant and the victim separated in May 2019. There are three children of the marriage who, at the time of sentencing, were aged 20, 18 and 10 years. After the separation the children continued to live with the victim in the former matrimonial home.
3. The sentencing judge was satisfied that the appellant was not coping well with the break-up of the marriage. Shortly after the separation, the appellant attempted suicide and the family was concerned about his psychological state. The victim changed the locks on the house, and there was an agreement in place that the appellant was not to attend at the home without the victim's consent. On that basis, on the day of the offending, the appellant was a trespasser.
4. During the separation, the appellant continued to maintain contact with the children, particularly the 10 year old. Arrangements had been made for this child to spend a weekend with the appellant, but on 19 September the appellant was advised by text message that the child no longer wanted to spend the weekend with him. An exchange of text messages occurred, during which the appellant blamed the victim for the child's decision. The sentencing judge was satisfied that the appellant was "clearly angry" and noted the submission from counsel that the appellant's psychological state was "unstable and deteriorating".
5. There is no suggestion that the sentencing judge erred with respect to the essential facts of the offending. His Honour described the offending in the following terms:

"You committed the relevant criminal conduct at about 6 am on the following morning [after the exchange of text messages]. You had consumed a considerable amount of alcohol. Your counsel informs me that you had attempted to gas yourself in your motor vehicle before going to the complainant's [victim] house. According to later statements made by you to a psychologist, this was not a genuine attempt at suicide, because it was your belief, based on what you had been told by a doctor after your earlier suicide attempt, that it was not possible to administer a fatal dose of gas by use of motor vehicle emissions. You told the psychologist that your intention was to use this act to communicate to the complainant that she was acting unfairly. In any event, after doing this, you went to the complainant's home. The complainant and the children were all present in the home at that time, although the youngest child was asleep. It is not clear what you intended to do or why you went there. I will accept that you did not premeditate doing what you subsequently did do. I suspect, and will give you the benefit of the doubt, that what happened - whatever your intention was in going there - you snapped, and then acted, as you counsel has said and I completely agree, in a completely appalling manner. You attempted to violently force your way into the home. This included by attempting to smash a sliding door by throwing outdoor chairs and a table at it. Eventually, you were able to gain entry by smashing through a double glazed bedroom sliding door.

The noise woke the youngest child. The complainant and your eldest daughter were awake and witnessed your attempts to enter the house. One can only imagine what the complainant and the children must have been thinking as you were attempting to smash your way into the house. The complainant and your daughters attempted to barricade themselves in your son's room. However, you chased them there, forced the bedroom door open and pushed the complainant onto the floor. She struck her head on an object as she fell. Your son attempted to stop you in order to protect his mother, but you pushed him away. You then got on top of the complainant placed both hands and arms around her neck and started to choke her. You squeezed tightly, which caused her to have difficulty breathing. The children, who all were present in the room while this was taking place, were distressed and screaming. Your son unsuccessfully attempted to pull you away from his mother. You then punched the complainant to the head and face a number of times and pulled her across the room by her hair, causing chunks of hair to come out of her head.

Your son continued his efforts to remove you from the house. It was at this stage that you committed an assault on him by placing him in a headlock and biting his right wrist, causing a break in the skin and bleeding. Despite this, he continued to struggle with you and eventually was able to restrain you to the point where he was able to convince you to let go of the complainant. You then ran from the bedroom, left the residence and drove away in your vehicle.

It seems that as you were driving away, you crashed your vehicle into a power pole. It is accepted that this was again an effort to harm yourself. You suffered minor injuries as a result of that collision."

1. To the description of the essential events provided by the sentencing judge, I add the following:
   • Counsel for the appellant informed the sentencing judge that during the evening before the offending, the appellant consumed a large quantity of alcohol and, at the time of the attempted suicide, he was affected by alcohol.
   • The appellant's first attempt to smash his way into the home involved throwing outdoor setting chairs and a table at the bedroom sliding door. Upon seeing the victim, he then attempted to smash the patio door nearby to her, causing minor damage. It was after that attempt that the appellant successfully smashed through a double-glazed bedroom sliding door.
   • When the victim and her daughters ran to the son's bedroom, they unsuccessfully attempted to barricade themselves in the bedroom. The attempt was unsuccessful because the appellant forcefully wedged the door open, and the force he used pushing on the bedroom door caused a hole in a wardrobe sliding door. It was inside the wardrobe that the appellant pushed the victim to the floor and she fell and struck her head against an object.
   • When the appellant got on top of the victim and choked her, he placed both hands and arms (including his forearm and elbow) around the victim's neck.
   • In the struggle with the son, and after the appellant placed his son in a headlock and bit him on the right wrist, the son punched the appellant numerous times and eye gouged him in order to restrain him from further assaulting the victim. The appellant said, "if you let me go, I'll let her go". The son replied "no, if you let her go, I'll let you go", and the appellant released his grip from the victim's hair.
   • The two female children initially left the bedroom to call police, but returned and witnessed the majority of the assaults.
2. As to injuries sustained by the victims, and the impacts of offending upon the victims and other children, the sentencing judge found as follows:

"As a result of your violence, the complainant sustained cuts, multiple bruises and swelling to her face and head, and to her right foot, chest and arms, back and left leg. She also suffered redness and swelling and soreness to both sides of the neck and upper chest as a result of being choked. She had abrasions on her upper lip, which caused bleeding. She was required to undergo a strangulation assessment. Your son received a laceration to his right wrist, caused by the bite. He also sustained some scratches to his neck.

I have received impact statements from the complainant and the children. Understandably, these statements express the impact of this criminal conduct within the context of your longer term behaviour. It is reasonable for them to express the impact in this way, but I must punish you only for the crimes to which you have pleaded guilty. It is clear from these impact statements, and completely predictable in any event, that your commission of these crimes has had a significant and devastating impact on all of them. The complainant describes the terror which she experienced when you were choking her. It is clear that she perceived this to be a potentially lethal attack and felt powerless to stop you. She has described in detail the ongoing physical and psychological consequences of your attack. So also have your children. Each has clearly been affected by your behaviour leading up to these crimes, but the unrestrained violence that characterised your conduct on the day in question has had a discrete and significant impact and caused ongoing fear and other significant psychological consequences. These consequences continue to affect their lives in a real and practical way, and this is likely to continue for the foreseeable future. When regard is had to the fact that your children were present and immediately witnessed what must have clearly been perceived by them to be an attempt to kill their mother, the severity of the ongoing impact is understandable. Of course, your son was directly assaulted and forced to struggle with you, his father, in order to protect his mother from you. It goes without saying that he should never have been put in this terrible position."

1. At the time of sentencing the appellant was aged 51. The sentencing judge noted that the appellant possessed "an industrious employment history", together with "a considerable amount of community involvement, including as a volunteer with the Tasmanian Fire Service and as a sporting coach". A number of references spoke well of the appellant's general character. The sentencing judge accepted that the appellant had a "significant potential for employment" following his release, and that he also had strong support from his extended family.
2. The appellant had not previously committed any criminal offences. His record of offending was comprised only of traffic infringements.
3. For the purposes of a bail application, a magistrate had ordered a Forensic Mental Health Assessment (the Assessment) which was provided to the sentencing judge without objection. His Honour accurately described the Assessment as "thorough".
4. The clinical psychologist who provided the Assessment concluded that there was no evidence of a serious mental illness, an opinion consistent with two psychiatrists who had examined the appellant after his arrest and remand in custody. In the view of the psychologist, supported by the opinions of the psychiatrists, at the time of the offending the appellant was experiencing an Adjustment Disorder, with Disturbed Conduct. The psychologist described the Adjustment Disorder as it applied to the appellant:

"Adjustment Disorder is an emotional and/or behavioural reaction to a stressor, which is out of proportion with the severity or intensity of the stressor, and results in functional impairment. There is no doubt [the appellant] has endured numerous significant stressors lately, including financial stress, separation from a long partnership, negotiating child custody, loss of employment and ongoing court matters relating to work he has contracted to do on a property in Ross. Most people would find these events very stressful, however, [the appellant] has reacted to these stressors with a degree of dysfunction that exceeds what would normally be expected, as evidenced by suicide attempts and an alleged assault. The stressors [the appellant] is experiencing is ongoing, and while they are present he continues to be at a risk of suicide."

1. As to the likelihood of future violence in the domestic situation, the psychologist used a "structured professional judgment tool" designed to predict intimate partner violence recidivism. That tool was the Spousal Assault Risk Assessment Guide (SARA) which identified and weighed risk factors. Based on the SARA, the appellant was assessed at being at "Moderate risk of further violence" towards the victim. In addition to the SARA, there were other "red-flag" risk factors identified which, in combination with the SARA, led the psychologist to the opinion that the appellant still posed a risk to the victim.
2. As to the appellant's insight into his conduct and the effects of his conduct upon the victim and children, the sentencing judge concluded that the appellant possessed a "lack of insight and remorse", which his Honour regarded was demonstrated by comments made by the appellant to mental health professionals. His Honour also referred to comments made by the appellant which were reported in a pre-sentence report.
3. The sentencing judge stated it was his "clear impression" from the comments made by the appellant that there existed a minimisation of the seriousness of his conduct and a lack of insight in this regard. His Honour found that the appellant possessed "a degree of insight", but said he continued to "speculate" about whether the insight extended to a "true appreciation" of the effect of the appellant's conduct on his wife and children. However, the sentencing judge accepted that the appellant had demonstrated remorse in a "practical way", and should receive credit for his early plea of guilty which his Honour regarded as a practical expression of remorse. His Honour also observed that the appellant's response to the proceedings generally had been co-operative and appropriate.
4. As to the need for personal deterrence, the sentencing judge noted the opinion of the psychologist that the appellant's personality traits, including narcissism, pre-disposed him to having "a severe explosive reaction to the relationship separation". His Honour inferred that those traits also pre-disposed the appellant to the specific behaviour involved in the commission of the crimes. His Honour was of the view that these traits provided "some explanation for the emotions which precipitated [the appellant's] conduct", and also provided information relevant to the assessment of the need for personal deterrence. His Honour concluded that personal deterrence required "some emphasis" in the exercise of the sentencing discretion.

1. Although the only ground of appeal is a complaint that the sentence was manifestly excessive, and counsel for the appellant specifically conceded that the sentence does not fall outside the established range of penalties for the appellant's crimes, counsel submitted that the sentencing judge made a number of specific errors. In addition the written submissions contended that his Honour fell into "general error when regard is had to the facts of this particular case".
2. No attempt was made to amend the notice of appeal by adding a complaint that that, in some specific respect, the sentencing judge had fallen into error. In these circumstances, in a process that largely amounted to an invitation to this Court to ignore the sentencing remarks and speculate that the sentencing judge might have proceeded on an impermissible basis, counsel for the appellant sought to identify errors which he suggested could explain why the sentencing judge imposed a manifestly excessive sentence.
3. Either the sentence was manifestly excessive, or it was within the range of the sentencing discretion. When the sole ground of appeal is that a sentence is manifestly excessive, in the absence of identified error, speculating about a process of reasoning that might have led to the imposition of a manifestly excessive sentence is not helpful.

1. Underlying much of the appellant's contention as to error was a complaint that the sentencing judge should not have relied upon the Assessment in preference to a pre-sentence report which concluded that the appellant was contrite and presented "a low risk of future family violence". Counsel pointed out that the Assessment was "an Assessment of risk by way of suicide and violent risk for the purposes of bail", rather than sentencing purposes. In addition, counsel pointed out that when the Assessment was conducted, the appellant had only been in custody for a few weeks. By way of contrast, the pre-sentence report was dated 22 November 2019, and that report "provided valuable insight into the change of circumstances of the appellant since the preparation of the [Assessment] and ought to have been given weight in determining the need for personal deterrence and the presence of remorse". Counsel submitted insufficient weight was given to the pre-sentence report because the sentencing judge did not give weight to the "sobering effect of time in custody", the effect on the appellant of being provided with the victim impact statements, and the impact of "going through the sentencing process in the Supreme Court".
2. On this basis, counsel urged that undue weight was placed on the Assessment in assessing the need for personal deterrence, assessing pre-disposition towards offending, and determining there existed a lack of insight and remorse.
3. In interviews with the probation officer, the appellant said he was not in a "good head space" when he attended at the victim's house, but did not attend with the intention of committing offences. He informed the probation officer:

"I wanted to see the kids and it escalated. It was a one-off and wrong and I regret it, I've never shown any level of violence before. It was alleged that I had threatened [the victim] prior to the offending but it was all taken out of context and misconstrued. I totally refute that I had made any previous threats and had never wished her any harm."

1. The appellant informed the probation officer that he had moved forward with his life and had no intention of interacting with the victim in any way in the future. He said prison had given him a chance to reflect on his life and begin making changes. The appellant advised the probation officer he wanted to apologise to the victim and, as he could not do so in person, he had written to the Court to apologise for his offending.
2. Based on her interviews, and utilising what was described as the "Spousal Assault Risk Assessment Tool", the probation officer assessed the appellant as being "at a low risk of future family violence".
3. The fundamental flaw in the appellant's submission is the proposition that the sentencing judge should have accepted the assessment of the probation officer in preference to the Assessment by the psychologist. Plainly, his Honour was not bound to accept the assessment of the probation officer. Nor was his Honour bound to accept the reliability of statements made by the appellant to the probation officer.
4. The probation officer was not provided with the Assessment. It appears that the probation officer accepted the statements of the appellant at face value. For example, the appellant told the probation officer that he "wanted to see the kids and it escalated". The probation officer did not explore this statement which was a significant misrepresentation of the true circumstances of the criminal conduct.
5. The inadequacy of the pre-sentence report was recognised during submissions before the sentencing judge. When his Honour suggested it appeared that the appellant had been persisting with efforts to minimalise the seriousness of his conduct, and demonstrating a lack of insight into its seriousness and impact on the victim and children, counsel for the appellant, who did not appear on the appeal, accepted that the report was superficial and appeared to have been done "rather quickly and without a lot of thought".
6. I agree with the sentencing judge that the Assessment by the psychologist was "thorough". That Assessment provided his Honour with a sound basis for his findings and I am unable to discern any error in his Honour's approach or the findings based on the Assessment.
7. It is appropriate to note the following matters from the Assessment which bear upon a conclusion that the Assessment provided a more reliable basis for findings relevant to sentence than the statements made by the appellant to the probation officer and the assessment of the probation officer:

"He was excessively circumstantial, and made frequent references to other people he considered important for his self-esteem (colloquially referred to as name dropping). He opined that the victim was 'supposedly frightened' because this would allow her to 'create a division' between him and his children. When pushed to discuss the alleged assault, it was evident his ability to recognise how the victim and his children might feel was markedly impaired."

• The appellant informed the psychologist that he drove to the victim's house because he wanted to see his children:

"He said he thought about knocking on the front door but decided there was no point as he was not likely to be let in, so instead he went to the back patio and smashed the sliding door. When asked why he did this given it was likely to scare his family, he said he just wanted to get in. He reiterated he wanted to see his children, and could not account for why, rather than attempting to speak with his children once he was inside the house, he directly approached and assaulted the victim. He explained 'circumstances changed' and that it all happened very fast. He denied hurting the victim, and minimised the seriousness of the event."

• At the request of the psychologist, the appellant completed a Personality Assessment Inventory (PAI), which is a 344 item personality inventory designed to assess whether the person has responded reliably, or attempted to portray themselves in an unrealistic positive or negative light. The appellant attended appropriately to each item, but in the view of the psychologist there was "clear evidence of positive impression management on the PAI, indicating that [the appellant] did not answer in an entirely forthright manner." The psychologist included in that view the appellant's tendency to portray himself as free of minor shortcomings and reluctance to recognise minor faults in himself. As to treatment considerations, the appellant "reported no problems with anger, and reported he controls his temper easily." In the view of the psychologist, the appellant's responses indicated that he was "satisfied with himself as he is, and likely sees little need for behaviour change."
• As to an assessment of family violence risks, in the psychologist's view, there were risk factors present for psycho-social adjustment, including a history of jealousy and information from interviews with the appellant which "consistently showed he had minimised the seriousness of the assault". This SARA led to a conclusion that the appellant was at moderate risk of further violence towards the victim.
• The psychologist noted a statement by the victim that the appellant had "always been a man of big ego" and was unable to receive criticism, even when constructive or in good humour. The psychologist described that statement as "remarkably consistent" with the psychiatrists' impression that the appellant possessed narcissistic traits. In her view the statement was also consistent with the results of the PAI which found that the appellant "was unable to admit minor imperfections which most people have and is unlikely to see any problems within himself that require change."
• It was only after multiple interviews that the appellant "started to verbalise responsibility for his actions - and this was likely in response to learning that this was what [was] required of him".
• Based on her interviews and all of the material available to her, including the PAI and SARA assessments, the psychologist expressed the opinion that the appellant "still poses a risk to his ex-partner". The psychologist explained that the risk is "dynamic and should be reassessed as circumstances change". In her view, the appellant should not have direct contact with the victim and would require "intensive support to assist him with adjustment to the multiple stressors" that he was currently experiencing.

1. In my opinion, not only were the findings of the sentencing judge soundly based in the evidence, they were correct. In particular, the material before his Honour led inevitably to a conclusion that personal deterrence was a significant factor in the exercise of the sentencing discretion. If anything, his Honour was generous to the appellant in finding that personal deterrence required only "some emphasis". His Honour accepted that the appellant had demonstrated remorse through his plea of guilty and co-operation in the proceedings, but his Honour was correct in finding that although there was a degree of insight, the appellant lacked a true appreciation of the effect of his conduct on his wife and his children.
2. As to the risk of future violence against the victim, plainly that risk existed. In the circumstances facing the sentencing judge, it was not possible to identify precisely the degree of risk, but the weight of the evidence clearly supported the view that the risk was "moderate" rather than "low".

1. The appellant submitted that the sentencing judge misused or gave undue weight to statements in the victim impact statements. These included statements that the appellant intended to kill her, and then would turn on the children, and a fatality was only prevented by the intervention of the appellant's son.
2. A number of opinions were expressed in the victim impact statements, none of which were challenged by counsel for the appellant. It is not uncommon for opinions to appear in victim impact statements, but sentencing judges well understand the proper use of victim impact statements and their limits. The practicalities associated with the use of victim impact statements, and their limitations, were discussed at some length in JWM v Tasmania [2017] TASCCA 22. In a judgment with which Pearce J (in this respect) and Porter AJ agreed, Brett J dealt with the legislation and cited with approval the following remarks of Crawford CJ in Attorney-General for Tasmania v B [2010] TASCCA 6, 20 Tas R 277 at [58]-[63]:

"[58] The legislative system has provided victims with a relatively simple and expedient way for them to communicate their suffering to courts, often publicly, without being challenged about what they say.

[59] I have no doubt that the contents of many victim impact statements are influenced by the emotional feelings of the victim, his or her dislike for the offender, and a desire for retribution. That comment particularly applies to statements asserting psychological injuries or difficulties as a result of a crime. The statements are never on oath and they require particular caution before they are wholeheartedly accepted.

[60] Offenders rarely challenge them, but that does not mean necessarily that they accept everything contained in them, and I am sure that also applies to judges who receive them, even if they are unchallenged. It is not infrequent that judges feel uncomfortable about accepting everything that is contained in them, for there is usually no way of knowing, or confirming, that what is complained of was in fact caused by the offence. Because they are not on oath and the court will often have no other information about the victim, and the influence that other life experiences have had on him or her, there is a need for pragmatism when dealing with them.

[61] If judges demonstrate a willingness to accept every fact in them that is not challenged, and a readiness to increase the severity of sentences having regard to every one of them, accused persons will be encouraged to challenge much of what is contained in them. As a consequence, victims may be forced to give evidence to support the contents of their statements, and the statements may need to be supplemented and supported with evidence from other witnesses, including medical and other experts. Such a course is not one that is generally desirable for the sentencing process. Victims will be deterred from providing their statements. Many, if not most, will not want to give evidence and to be exposed to the court's processes. Hearings will be prolonged by the dispute.

[62] On the other hand, many offenders may not have the personal or financial resources to be able to mount a comprehensive challenge to a victim impact statement.

[63] I think it true to say that for reasons such as those I have mentioned, sentencing officers tend to treat victim impact statements, when not supported by expert evidence or reports, or other corroborative evidence, with a degree of circumspection when it comes to psychological injuries and the like. That is not to say that they are disregarded, for they are not. But experience shows that they tend to be accepted in an extremely general sense, without resort to detailed fact-finding. Sentencing officers usually avoid making precise findings concerning the adverse effects an offence may have had on a victim. Thus, it is common that in comments on passing sentence judges often make general, non-specific, and extremely brief findings about them."

1. Brett J also cited with approval the following remarks from the judgment of Nettle JA (with whom Vincent JA and Habersberger AJA agreed) in R v Swift [2007] VSCA 52, 15 VR 497 at [6]:

"[6] The appellant's argument implies that a victim impact statement is to be equated to Crown evidence and, consequently, that the Crown has a responsibility to put the statement in admissible form. That is not the case. The purpose of a victim impact statement is to give the victim of crime the opportunity to place before the court his or her own statement of the impact of the crime on him or her and his or her family and to ensure that the sentencing judge is informed of the victim's concerns. Moreover, since victims of crime are usually lay persons with little understanding of the rules of evidence, and who are likely to be emotional about the subject of their statements, it is to be expected that they may include inadmissible material. As Vincent JA observed in DPP v DJK[1]:

'The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made'."

1. After citing those passages, Brett J made the following observations of particular relevance to the complaint under consideration at [76]-[78]:

"[76] These comments emphasise the point that a victim impact statement plays a particular role in sentencing proceedings. To a considerable extent, the purpose of such a statement, including the opportunity for its oral delivery by the victim, is therapeutic. However, its statutory function also includes the provision of information relevant to the formulation of sentence, to the court. The requirement for circumspection referred to by Crawford CJ seems to me to relate to the latter purpose, not the former. It would place an artificial and unrealistic fetter upon the clearly intended therapeutic nature of the right afforded to victims, if statements were required to be kept within the bounds of the forensic provision of information. It follows that the appellant's complaint about the content of the statement is unfounded. Ground 7 must fail.

[77] Grounds 8 and 9 address the second function of the statement, the provision of information relevant to the exercise of the judge's sentencing discretion. In this regard, the statute provides a mechanism to ensure due process before forensic use of that information: see ss 81A(7) and 81(2). However, as Crawford CJ explained in Attorney-General v B (above), there are practical reasons why the frequent use of those provisions is not desirable. Hence, the need for circumspection on the part of the sentencing judge, in the use of material contained in the statements.

[78] Of course, it is open and, indeed, incumbent on a sentencing judge to have regard to the information provided in the victim impact statement for sentencing purposes. Provided the judge exercises appropriate caution and circumspection, there is no reason why the court cannot make limited findings based on that information: Belbin v Bennett [2011] TASSC 23 [218 A Crim R 42] at [40]. In the vast majority of cases, the contents of the victim impact statement will simply confirm, perhaps in a partisan and emotional way, information provided to the court from other sources. Further, the statement will often describe the type of impact which would reasonably be expected as a consequence of the relevant criminal conduct."

1. Brett J then summarised the appropriate approach to the use of victim impact statements at [79]:

[79] "Having regard to the considerations discussed above, it seems to me that the following can be said of the appropriate approach to the use of victim impact statements in criminal proceedings:

(a) A court should be loath to limit the content or ambit of the statement, provided that it reasonably addresses the matters contained in s 81A(2), which include 'the effects on the victim of the commission of the offence'. It must be remembered that the statement is intended to provide a means of the victim furnishing this information directly to the court and that there is an underlying therapeutic purpose, in addition to the provision of information to the sentencing court.

(b) Of course, if the material is challenged in accordance with s 81(4), then the court must proceed in accordance with that statutory provision.

(c) However, where that is not done, then the court may use the information but, in doing so, it must exercise caution and circumspection of the nature described by Crawford CJ in Attorney-General v B.

(d) There will be little difficulty where the court draws and uses information from the victim impact statement which is confirmed from other sources, for example, trial evidence or the Crown statement of facts. There will, however, be circumstances in which fairness will require that the judge direct the attention of the defence to a particular matter, particularly if the judge considers that that matter will significantly aggravate the sentence. An example of such a circumstance would be an aspect of the alleged impact which is outside the ambit of what might be ordinarily expected in respect of the criminal conduct in question. In such circumstances, the judge should alert the defence as to the potential use of the material and provide an opportunity for challenge in accordance with the procedure set out in s 81(4)."

1. There is nothing in the material before this Court to suggest that the sentencing judge went beyond the proper limits. In particular, the sentencing judge observed that although it was reasonable for victims to express the impacts of the criminal conduct in the context of the appellant's longer term behaviour, the appellant was only to be punished for the crimes to which he had pleaded guilty. His Honour then dealt with the direct impacts of the appellant's conduct. There is no basis for concern that the sentencing judge misused the victim impact statements.

1. The appellant submitted that in the absence of medical evidence, the sentencing judge placed too much weight on the act of choking and the description of the effects given in the victim impact statement. Further, counsel contended that undue weight was given to "extraneous materials with respect to strangulation where there was no medical foundation for finding that those factors were present in this case".
2. In his sentencing remarks, the sentencing judge noted the victim's description of the terror she experienced when the appellant was choking her and said it was "clear" that the victim perceived the act of choking as a "potentially lethal attack and felt powerless" to stop the appellant. Later in his remarks, having described the violence as "unexpected, explosive, and unrestrained", and having concluded that the assault was "brutal" with the potential to inflict serious injury, the sentencing judge turned to the question of strangulation:

"In a recent sentence, the matter of Abel 29 August 2019, I made the following points about such conduct. The act of applying pressure to another person's throat can easily result in death or serious injury. Death is most likely to result not from the restrictions of breathing, but from the blockage of the arterial blood supply to the brain, usually as a result of pressure applied to the carotid artery. Attempted strangulation which does not result in death or physical injury, can still have long-term physical and psychological impact, and leave the victim susceptible to ongoing symptoms. In criminal assault such acts are generally used to subdue and force compliance by the victim without any real thought being given to the danger inherent in such conduct. Those dangers were clearly apparent in your actions in this case. Your rage and lack of restraint meant that you had no real capacity to judge or moderate your attack, and the complainant was therefore in real danger of serious injury or worse".

1. The appellant's complaint concerning the approach of the sentencing judge to the issue of choking is without substance. There was ample foundation in the material before his Honour to support and justify his Honour's remarks. Of particular relevance are the following:
   • This was not a case in which the offender briefly took hold of the victim's throat. The appellant got on top of the victim and placed both hands and arms (including his forearm and elbow) around the complainant's neck and choked her. He squeezed tight, causing the victim difficulty with breathing. The victim was unable to move.
   • As a consequence of the choking, the victim sustained redness, swelling and soreness to both sides of her neck and upper chest.
   • The victim was terrified and felt she could not breathe. In a victim impact statement she described the appellant as "so strong" that she felt "powerless" beneath him.
   • The victim described suffering from an "intermittent hoarse voice", together with neck and shoulder aches and a constant headache. She described severe psychological impacts which were ongoing.
   • The psychologist who compiled the Assessment provided the sentencing judge with evidence of both the prevalence and danger of choking:

"Of particular note, is the allegation that [the appellant] choked the victim. Non-fatal strangulation has received increased attention in family violence risk assessment in the last few years. This is because a large body of evidence shows 50% of female victims of family violence homicide had experienced non-fatal strangulation at least once before they were killed, and evidence from Australian death reviews of family violence have also identified that homicide was preceded by at least one occasion of non-fatal strangulation. Further, there are a number of health consequences associated with non-fatal strangulation, including neck injuries, breathing problems, loss of sensation and speech problems. Because of the potential lethality of strangulation, it can also induce trauma response in victims, including nightmares, flashbacks and anxiety. Based on this evidence, Queensland has introduced a stand-alone non-fatal strangulation offence specifically in the context of family violence, and other jurisdictions (SA, NSW, Vic), have also begun drafting new strangulation laws."

• In the matter of Abel to which the sentencing judge referred, the sentencing judge was dealing with a matter involving attempted strangulation, and other interference with the victim's capacity to breathe. It is apparent from the sentencing remarks that his Honour had been provided with "medical advice and scholarly articles concerning the dangerous nature of these acts". His Honour referred to evidence by a forensic pathologist confirming that death can easily result when pressure is placed against the neck through the placing of hands around the throat and the application of pressure.
• The sentencing judge also had the assistance of an article attached to the Assessment.[2] That article provided ample material for the conclusions reached by the trial judge.

1. The dangers attached to choking have been well documented over many years, particularly in homicide cases. Judges sitting in criminal law have become familiar with evidence of pathologists that death in choking cases is usually as a result of pressure applied to the carotid arteries, thereby blocking the arterial blood supply to the brain.[3] In addressing this issue, the sentencing judge was making general observations about the dangers associated with choking and how the application of pressure to the throat "can easily result in death or serious injury". It was appropriate, and indeed necessary, for his Honour to have regard to the dangers attached to the conduct of the appellant as part of his overall assessment of the gravity of the criminal conduct. As his Honour observed, the risk of death or serious injury, and of long-term physical and psychological impacts, "were clearly apparent" in the appellant's criminal conduct. Further, as his Honour correctly found:

"Your rage and lack of restraint meant that you had no real capacity to judge or moderate your attack, and the complainant was therefore in real danger of serious injury or worse."

1. In my opinion, the criticisms directed to the remarks of the sentencing judge concerning choking are without substance. His Honour was correct in regarding the choking of the victim as a "particularly concerning aspect" of the assault. In recent years, criminal courts across Australia have come to understand that choking of female victims by male offenders is a prevalent and dangerous feature of violence perpetrated in domestic circumstances.

1. The Family Violence Order (the Order) was made pursuant to Pt 4 of the Family Violence Act 2004. Section 3 of the Act provides that in the administration of the Act, "the safety, psychological well-being and interests of people affected by family violence are the paramount considerations." The Order was not part of the sentence imposed on the appellant. It was an order made with a view to the future protection of the victim and one of her children. It was not, as submitted by counsel for the appellant, "part of the penalty imposed upon the appellant".
2. In substance, counsel submitted that the Order imposed significant restrictions and onerous conditions upon the appellant which, for an indefinite period, will have a punitive effect which should have been taken into account in fixing the sentence. The ultimate proposition was that, in view of the Order and its punitive effect, this Court should find that the sentence was manifestly excessive.
3. In some circumstances, adverse consequences flowing to an offender as a result of the commission of a crime may be taken into account as a matter going to a degree of mitigation. In Mulholland v Tasmania [2017] TASCCA 2, 25 Tas R 313, the Court was concerned with a sentence for the crime of rape which was accompanied by an order that the offender's name be placed on the register under the Community Protection (Offender Reporting) Act 2005, and that he comply with the requirements under that Act for a period of 3 years following his release. In a judgment with which Tennant and Brett JJ agreed, Pearce J observed that an order made under that Act was not a sentencing order, but recognised that for some offenders the reporting obligations "can be relatively onerous and impinge on the liberty of a person made subject to an order" [25]. His Honour made the following general observations:

"[27] A loss or detriment suffered by an offender as a result of having committed a crime may, in some circumstances, properly be taken into account in determining sentence. Such a loss or detriment is sometimes referred to as extra-curial punishment. An example may be injury suffered by an offender in committing a crime, or inflicted on the offender as retribution or revenge, or some type of financial consequence. ... However, the weight to be attributed to extra-curial punishment depends on the circumstances of the case, and in some cases it may attract little or no weight." [Citations omitted.]

1. After referring to a number of authorities, Pearce J concluded at [31]:

"In my view, the principle which emerges from this line of authority is that imposition of the registration and reporting obligations on an offender is relevant to sentence, even though the purpose of the legislation is primarily protective and not punitive, but the weight, if any, to be attributed to it depends on the nature and extent of any actual punitive effect on an offender in the circumstances of each case, judged in the context of the nature and gravity of the offence. ... It accords with the comments of Crawford J (as he then was) in W v Tasmania [2007] TASSC 24 at [24], that a sentencing court could take a reporting order into account as a consequence of conviction, but it was ordinarily a factor which should not have much influence on sentence because the object of the legislation was primarily protective rather than punitive."

1. One of the authorities to which Pearce J referred was R v KNL [2005] NSWCCA 260, 154 A Crim R 268. The New South Wales Court of Criminal Appeal was concerned with the impact of mandatory registration under the Child Protection (Offenders Registration) Act 2000 (NSW), upon a young offender who had pleaded guilty to sexual intercourse with a twelve year old child. Latham J with whom Brownie AJA and Buddin J agreed, said [49]-[50], 277-278:

"[49] ... I doubt that, in the circumstances of this case, the requirements as to registration under the Offenders Registration Act could be properly characterised as extra-curial punishment entitling the Respondent to any mitigation of penalty. The Respondent was not, at the time of sentence, or likely in the future to be, pursuing an occupation which gave him access to children. Many pieces of legislation require persons to register their details with police or other public authorities, in the interests of public health and safety, for example, legislation relating to the possession of firearms. The cases which have thus far considered the notion of extra-curial punishment have been restricted to physical and/or financial penalties sustained by offenders, or loss of employment in which the offender was engaged or qualified to be engaged, arising out of the commission of the offence. (See generally R v Daetz: R v Wilson [2003] NSWCCA 216).

[50] I do not mean to suggest that there could never be a case where extra-curial punishment might arise from the requirements of the Offenders Registration Act, but this case fell far short of any penal consequence being visited upon the Respondent because of a conviction. Even allowing for some regard to the requirements of registration and the potential restriction on employment, that factor deserved very little weight; R v Daetz at par 62."

1. The primary features of the Order direct that the appellant must:
   • Not stalk, threaten, abuse or assault the victim and daughter.
   • Not be within 100 metres of the victim and daughter, or contact them directly or indirectly, except for limited purposes and by specific means.
   • Not enter premises where the victim and daughter are living or might be staying from time to time and not go within 1000 metres of the boundary of such premises.
   • Not be within 100 metres of a school where the daughter may be present from time to time.
   • When not in custody, submit to being electronically monitored and ensure that the electronic monitoring ankle tracking device is charged and kept safe and secure.
   • Comply with all reasonable and lawful directions given by a police officer or others in relation to electronic monitoring and remain contactable via telephone at all times.
2. In addition to the specific conditions, counsel submitted that the pathway to variation or discharge of the Order is difficult. He urged that the Order is likely to remain in force for a significant period.
3. Even accepting that the Order in its current form is likely to remain in force for a significant period, and accepting the obvious inconvenience attached to a number of conditions, particularly the electronic monitoring, in my opinion the Order will have little punitive effect for the purpose of sentence. As found in KNL, the Order "fell far short [of imposing] any penal consequence". Little, if any, weight should be attached to it.

1. For these reasons, in my opinion, counsel for the appellant was unable to identify any specific error in the approach of the sentencing judge to the task of arriving at an appropriate sentence for the total criminal conduct. In these circumstances, this Court can only interfere if a sentence is "unreasonable or plainly unjust". The relevant principles were helpfully identified by Pearce J, with whom Blow CJ and Porter J agreed, in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 at [8]:

"[8] As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': ; per Kirby J at 336. Excess or inadequacy is either apparent or it is not: (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: ; at 539."

1. As the sentencing judge observed, the appellant's crimes "constituted an extremely serious episode of family violence". His Honour noted a number of "serious aggravating features" which he described in the following passage:

"... The violence was unexpected, explosive and unrestrained. The assault on the complainant was brutal and had the potential to inflict serious injury. A particularly concerning aspect of that assault is your attempted strangulation of the complainant. [His Honour then spoke of the danger of death and long-term physical and psychological impacts in the passage cited earlier] ... Attempted strangulation which does not result in death or visible injury can still have long-term physical and psychological impacts, and leave the victim susceptible to ongoing symptoms. In criminal assault, such acts are generally used to subdue and force compliance by the victim, without any real thought being given to the danger inherent in such conduct. Those dangers were clearly apparent in your actions in this case. Your rage and lack of restraint meant that you had no real capacity to judge or moderate your attack, and the complainant was therefore in real danger of serious injury or worse. Further, your culpability is aggravated by the fact that you only desisted from your attack because of the courageous actions of your son. It is not at all clear that you would have desisted of your own volition.

A further matter of particular concern is the presence of the children and the effect of your crimes on them. All three children, including your 10-year-old daughter, were directly and immediately involved and affected by your violent conduct. You assaulted your son when he was forced to protect his mother. I have already discussed their perception of the impact upon them, but as raw and real as that impact must seem to them at the moment, I think it must be the case that it is still too early to predict the full extent and duration of the effects of such a disturbing episode. Although the eldest two are adults, each of them is still in an important formative stage of his or her psychological and emotional development. In my view, your actions involved a serious breach of the trust inherent in your parental relationship with each of them. Further, your actions have permanently affected their relationship with and perception of you. It is reasonable to observe that they have lost the paternal support and example which each was entitled to expect from you. Whether you are able to regain their trust and affection sufficiently to reinstate yourself into that position, I imagine that it is doubtful whether that can occur, but if it does occur, it will only be because of your positive efforts. This case is a very profound manifestation of the policy underlying the statutory provision which provides for family violence in the presence of children, and I do consider the young adults to be children for these purposes, to be considered an aggravating feature of such conduct."[4]

1. The prevalence and devastating impacts of violence perpetrated against women and children in domestic circumstances are well recognised across Australia by the criminal courts and the wider community. Victims in these cases are vulnerable. The crimes are often committed within the confines of the family home in breach of the sanctity and safety of the home. Choking is a common and dangerous feature. I agree with Estcourt J's observation in Director of Public Prosecutions v Foster [2019] TASCCA 15 at [26]:

"Strangulation is a form of power and control that can have devastating psychological long-term effects on its victims in addition to a potentially fatal outcome".

1. In Foster, Estcourt J emphasised that violent behaviour by men towards women in relationships "must be condemned and discouraged": [29]. As was said in Gregson v Tasmania [2018] TASCCA 14 at [37], women in domestic circumstances are particularly vulnerable to abuse of power and breach of trust by violent male partners. The community is greatly disturbed by this type of conduct, and every crime of this type diminishes the well-being of our community. Women generally, and particularly vulnerable women in domestic circumstances, are entitled to such protection as the criminal law is able to provide through the imposition of sentences that will act as both a personal and a general deterrent. Men who are minded to commit these crimes must understand that the criminal courts will respond by imposing significant penalties.
2. The appellant engaged in dangerous and distressing conduct against his wife and child. He smashed his way into the family home. He choked and punched his wife and pulled her across a room by her hair, tearing chunks of her hair from her head. The children were greatly distressed. The appellant assaulted his son who attempted to defend his mother and remove the appellant from the house. It was a terrifying ordeal for all of the victims which has caused ongoing physical and psychological effects.
3. Notwithstanding the appellant's prospects for successful rehabilitation, I agree with the sentencing judge that the need for personal deterrence was a significant factor. The appellant had demonstrated that there remained an ongoing risk of future violence being committed by the appellant against his wife.
4. In my opinion, bearing in mind the totality of the appellant's criminal conduct, the sentence of two years and six months was well within the range of the sentencing discretion. For good reasons aimed at future rehabilitation and, in this way, the future safety of the victims, the sentencing judge acted mercifully in suspending the sentence after service of one year and six months. It was open to his Honour to fix a non-parole period rather than suspending part of the sentence.
5. I agree with the additional reasons of Pearce J.

[1] [2003] VSCA 109 at [17].

[2] Strangulation, Domestic Violence and the Legal Response - Heather Douglas and Robin Fitzgerald.

[3] Director of Public Prosecutions v Foster [2019] TASCCA 15 at [26] and [27].

[4] As to the presence of children, see s 13(a) of the Family Violence Act 2004.