Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Two counts of assault during one incident - Domestic violence - Both counts involved pressure to the throat and neck - Where one involved use of a cord pulled tightly around the complainant's neck - Where lengthy delay before sentencing - Where much of delay attributable to appellant's conduct of the proceedings but some demonstrated rehabilitation - Where appellant subject to very restrictive bail conditions and with significant mental health issues - Global sentence of three years' imprisonment with 14 months suspended - Parole eligibility of one half on the operative term - Sentence not manifestly excessive.

Director of Public Prosecutions v Karklins [2018] TASCCA 6; (2018) 29 Tas R 373; Gregson v Tasmania [2018] TASCCA 14; Director of Public Prosecutions v Foster [2019] TASCCA 15; R v Edigarov [2001] NSWCCA 436, considered.

Respondent: Office of the Director of Public Prosecutions

Judgment Number: [2024] TASCCA 6

1. I agree that this appeal should be dismissed for the reasons given by Porter AJ.

1. This is an appeal against sentence. The appellant had pleaded not guilty to two counts of assault but on the second day of the trial before Wood J, he changed his pleas to guilty. Both counts relate to his then partner, Hayley Caulfield. They were committed during one incident on the same day, 24 February 2020. The particulars of the first count were that the appellant slapped Ms Caulfield to the face, pushed her onto a bed, put his hands around her throat and squeezed, and headbutted her to the head. The particulars of the second count were that he wrapped a dressing gown cord around her neck and pulled it tightly, and headbutted her to the head.
2. By way of a shortened chronology, after the prosecution facts were read, defence counsel told the sentencing judge that the particulars and other facts material to the sentencing process were in dispute. After a hearing at which the complainant gave evidence, her Honour found all disputed facts proved. On 7 December 2023, the appellant was convicted and sentenced on the indictment to three years imprisonment, backdated to 20 August 2023 to take into account the time the appellant had spent in custody. The execution of 14 months of that sentence was suspended on a number of conditions.
3. Those conditions are that he not commit an offence punishable by imprisonment for two years from the date of release, that he be subject to the supervision of a probation officer for that period and comply with the reasonable and lawful directions of that officer, and that during the same period he must undergo assessment and treatment for drug dependency, submit to testing for drug use and undergo assessment and treatment for alcohol dependency, submit to medical, psychological or psychiatric assessment or treatment -all as may be directed by a probation officer - and attend, participate in, and complete the Family Violence Offender Intervention Program if directed to do so.
4. As to the immediately operative term of imprisonment of 22 months, the sentencing judge ordered that the appellant not be eligible for parole until he had served 11 months which is, of course, one half, and the maximum parole eligibility which could have been ordered. In addition, the offences were ordered to be recorded as family violence offences and a family violence order was made under the Family Violence Act 2004
5. The sole ground of appeal is that the sentence is manifestly excessive. Counsel's submissions were confined to the immediate term of imprisonment. For the reasons that follow, I would dismiss the appeal.

1. The complainant and the appellant had been in a relationship since about April 2019 and began living at the defendant's home at Back River Road, Magra. Their relationship had been deteriorating for some months and the appellant was verbally abusive on a frequent basis. He had become very jealous and paranoid that the complainant was being unfaithful and bringing men into the house. He would record and watch the complainant's movements from an application on his mobile phone connected to the various CCTV cameras installed in and around his house. He would frequently confront the complainant about things he said he had seen on the cameras and ask her who she had brought to the house. The complainant repeatedly informed the appellant that she had not brought any men to the house
2. They had a son born in late January 2020. On 14 February 2020, the complainant had enough of the defendant's verbal abuse and took their baby and went to stay at her mother's house. She returned some 4-5 days later. The appellant had begged her to return and said he was going to shoot her horses if she did not, and that he had shot her dog. When the complainant returned to the property, her animals were unharmed. After about two days, the appellant again became abusive and paranoid.

1. The following is taken from the sentencing judge's comments on passing sentence. It is convenient and desirable that the description be set out in its entirety.

"At approximately 1:00 am on the 24 February 2020, the complainant was asleep and the baby was asleep in a bassinet next to the bed. The defendant was in his shed. For the next seven hours, she received abusive, threatening, and accusatory text messages from him, demanding to know who she had had at the property, some of which included:

'I'm prepared to go to jail for the next 40 plus years Hayley, B [son] will have foster parents cause you'll be dead...you best fucking come clean I knew it was happening and if I have to belt and belt you until you take ya last breath I will';

'Its starting to do my head in to the point I can't think do u wanna see a psychopathic fuck smash and destroy everything in front of you I'll turn your world upside down'; and

'Keep fucking lying to me and I'll make the rest of your [life] complete hell'.

The defendant also came into the house regularly to wake the complainant and confront her about who had been at the house, before returning to the shed.

At around 8:00 am, the defendant once again came into the bedroom. The complainant was in bed wearing a dressing gown and the baby was sleeping in his bassinet. The defendant showed the complainant a video on his phone and demanded the name of the man he said had been in the house. The complainant stood up and responded, saying she could not give him a name as no one had been in the house.

The defendant slapped the complainant hard to the face twice. This knocked the complainant onto the bed. The defendant showed her the phone again and demanded she watch a video recorded by one of the cameras. He became frustrated when she maintained that she had had no one in the house.

Mr Palmer then pushed her down on the bed and crawled on top of her, placing a leg on each side of her legs. He then grabbed the complainant's throat with both hands and squeezed her neck for a period. The complainant felt pain and struggled to breathe; and was unable to speak. The defendant then head-butted the complainant by striking her forehead with his forehead while she was lying down on the bed.

The defendant then told the complainant to go to the lounge room. The defendant followed her and, as he did so, he pulled the dressing gown cord out of the loops of the dressing gown the complainant was wearing. He put the cord around her neck and pulled it tight. The complainant thought quickly and put her fingers under the cord to relieve some of the pressure around her neck so she could breathe. The defendant moved her hand away and pulled the cord tighter. She could not breathe and felt as if she was losing consciousness. She said in her evidence before me that she saw stars. By this time, they were on a couch in the lounge room with the defendant on top of her, strangling her. The appellant was screaming at her, saying that her children would not see her again. He tightened and released and tightened the cord a number of times.

The complainant managed to get away from him but the defendant got on top of her on another couch, put the cord around her neck, and strangled her again. He held the cord very tight, while she struggled, was unable to breathe, and felt again that she was going to lose consciousness. While holding the cord tight, the defendant head-butted the complainant to the temple.

The defendant released the cord from around the complainant's neck and the complainant repeated that she had had no one at the house. He said to her, 'Why do you do this to me? You turn me into a monster'. He told her he hated being like this and that it was her fault. Again, he asked her for a name of who had been at the house and threatened to burn himself, the complainant, and the baby alive.

The defendant tightened the cord around the complainant's neck a number of times in the lounge room, and there were occasions when it was extremely tight and she could not breathe."

1. After that last act occurred, the appellant asked the complainant to lie down with him for a sleep. He said he was going to keep her phone for a week to see if anybody was messaging her. She agreed as she thought she might be able to escape from the house. At some point, the appellant had called his sister. She arrived at the house while he was asleep. The complainant took the opportunity to take the child and go with the appellant's sister to her mother's house. She then went to the police, and the appellant was arrested soon afterwards.
2. The appellant was interviewed. The sentencing judge watched the interview on the disputed facts hearing. As it is described in her Honour's comments, the appellant displayed an obsessive attitude about someone having been in the house, and anger towards the complainant for not admitting it. He appellant said the complainant kept lying to him. He admitted to police that he slapped the complainant once, but that it was "just a little tap" because she kept lying to him. He said he grabbed her by the mouth and made her look at him. He admitted that he might have headbutted her because he was "pretty wild" and upset. He admitted threatening to burn them alive but said he would never do it; he just wanted a confession. The sentencing judge observed that it seemed that during the interview the appellant felt justified in the admitted acts of violence, adding that at times he was very agitated and aggressive towards the police, and there was a significant level of paranoia apparent.
3. After the assaults, Ms Caulfield was examined by a health professional and a number of injuries was detected. There was bruising to the right temple, left side of the jaw, right side of the neck and right hand. There were abrasions to the left side of the jaw, neck and lower lip. Petechiae were present on both cheeks, the left ear and the right upper eyelid, caused by strangulation. She had a painful throat. Ms Caulfield's victim impact statement describes her panic and fear, and her thought that she was going to die. She has been adversely affected by the violence, and suffers ongoing symptoms and psychological and emotional harm which require professional intervention and support.

1. The appellant was 31 years old at the time of the offending, nearly 34 years at the time of sentencing. In January 2019, he was dealt with in the Magistrates Court in this State for five breaches of a police family violence order made in respect of a different female. The conduct included sending abusive and threatening messages via social media. He was convicted and fined $450. In 2017, he was fined in a Western Australian local court for a breach of a police restraining order, an assault occasioning bodily harm, and some other offending including drug offences and breach of protective bail conditions. In 2010, for assaults occasioning bodily harm whilst armed or in company, he was sentenced by a Queensland local court to a probation order with no conviction.
2. He also has numerous prior convictions for driving offences, including drive whilst disqualified or while licence suspended which, along with minor drug offences attracted a short suspended term of imprisonment in 2008. A further driving while disqualified was dealt with in the same way in 2018. In addition, there are offences for which he was sentenced after the offending the subject of this appeal, the sentence being an effective term of imprisonment of 8 months, backdated to April 2021. These offences included firearms offences committed before the commission of these crimes, as well as afterwards when he would have been on bail for them, and other offending, including driving with an illicit drug in his system.
3. The sentencing judge had the benefit of three pre-sentence reports. Two were essentially of a preliminary nature, dated 12 August 2021 and 24 August 2021, with the substantive report being provided on 24 November 2023. There is no dispute about the sentencing judge's statement of relevant personal circumstances. A summary is as follows:

(a) The appellant had an extremely difficult early childhood; his mother's former partner was an alcoholic and physically abusive and violent towards him. From the age of 13, he was raised by his grandparents. He maintains a positive relationship with his mother, her husband and his two sisters.

(b) He found school challenging and was diagnosed with ADHD when he was in grade 3, although he has good literacy and numeracy skills. As a young adult he worked in Queensland as a scaffolder and in Western Australia on fishing boats. He had a strong work ethic.

(c) In 2016, he had a life threatening accident while working on a fishing boat. That resulted in a leg amputation. Since then he has not been in paid employment. This obviously traumatic incident had a critical adverse impact on his life, requiring considerable adjustment and support and affecting his overall emotional functioning. His prosthetic leg presents added difficulties in prison, as it involves infections and wound management. He often experiences phantom pains which necessitates analgesic medication.

(d) As a result of a compensation settlement the appellant was able to buy is own home, which is where he and the complainant were living at the relevant time.

(e) The appellant began using methylamphetamine as a young person, and over the years his use has waxed and waned, depending on the status of his mental health. He also used cannabis. His use of methylamphetamine increased after his accident, and he was heavily addicted at the time of this offending, which manifested in the paranoia and agitation.

(f) He has a history of mental health concerns. He has been diagnosed with bipolar disorder, schizophrenia and post traumatic stress disorder. He engaged in episodes of self harm after his work place accident and attempted to take his life in April 2022 when he was confined to his home on strict bail conditions which related to this matter. He was hospitalised for almost three weeks in a psychiatric ward; he was acutely unwell at this time. As a consequence, he has since received attention for his mental health issues, which the sentencing judge described as a "positive development".

(g) The appellant's substance abuse and drug addiction were effectively addressed by his imprisonment and forced isolation at his home as a result of the very strict bail conditions. He had undertaken and completed an alcohol and drug course while in custody.

(h) These mental issues issues will mean that the prison environment will be more difficult for him than others. His prosthetic leg also presents added difficulties for him in prison.

1. The appellant was held in custody from 24 February until 6 March 2020 when he was granted bail. He was on bail for a short period after which, because of allegations of a serious nature akin to the present offending - but not involving Ms Caulfield - he was remanded in custody. He has pleaded not guilty to that matter and it is pending in the Supreme Court. From 9 April 2021, for summary offences, he served the eight months of a 12 month prison sentence with four months suspended, and then was admitted to bail on 22 December 2021. From 19 October 2023 he was remanded in custody awaiting sentence. He had spent 60 days in custody attributable to this matter

"These are very serious acts of violence carried out against a background of the defendant's ongoing abusive and possessive behaviour. In the hours before the violence, the defendant's agitation, aggression and sense of grievance was escalating. He had time and opportunity to remove himself from the situation but he did not do so. His moral culpability is very high.

His violence was motivated by a desire to punish, hurt, denigrate, and control the complainant.

The acts of strangulation are, on their own, extremely serious. These are acts perpetrated with the deliberate intention and purpose of terrorising the complainant, and they did. The appellant wanted her to believe that he would kill her, if he so decided. For a person to experience not being able to breathe and to believe that they may be about to die is a level of fear that is, in and of itself, a grave form of harm. Moreover, strangulation for even a short period of seconds is inherently dangerous and may cause severe injury or death. It is also likely to result in debilitating and long-term emotional and/or psychological harm. These factors bearing on the nature of the crimes must be reflected in the sentence."

1. Her Honour then set out the appellant's personal circumstances as outlined above, and referred to the delay in finalising the proceedings and to his bail with stringent conditions for much of that period. I will later deal separately with those issues. Her Honour then continued:

"... [T]hese are serious crimes and require a heavy sentence. They involve brutal acts of violence which caused significant harm to the complainant and placed her life in grave danger. An infant child was present and in close proximity to the violence. The sentence must reflect those matters and seek to deter other offenders in order to protect women and vulnerable members of community from harm in family and domestic settings. It could not be suggested that his pleas of guilty warranted any significant weight in mitigation. The complainant had to give evidence and be cross-examined at the disputed facts hearing.

There is very little about the circumstances of his offending which reduces the seriousness of his crimes and, as I have said, his degree of criminal responsibility is high. There is no suggestion that his mental health conditions contributed to a reduction in his moral culpability, and if there was, I would need a report from a psychiatrist or psychologist to endorse and demonstrate that. He was addicted at the time to methamphetamine, and features of his offending were his agitation and paranoia, which were attributable to his drug use. His drug use does not provide any form of excuse.

His addiction, however, is relevant to his rehabilitation, which remains a sentencing goal. If he does reform, the community will benefit. Also relevant is his relative lack of prior convictions for family violence offending involving actual violence. Because of the progress he has made in terms of his addiction and mental health, I consider that, with ongoing support and intervention, he has prospects of rehabilitation. The sentence must be heavy and involve a lengthy term of imprisonment, but it gives weight to these positive factors and will provide you with an incentive to reform."

1. The overarching submission made on the appellant's behalf is that in all of the circumstances, an individualised approach was necessary. In that context, counsel for the appellant identified two particular features. First, the matter had an unusual history involving significant delay. Second, during the period it took to resolve the proceedings, the appellant had either been remanded in custody or subjected to very strict bail conditions akin to house arrest, and which included electronic monitoring. It is submitted that the sentence failed to sufficiently recognise the time on bail with harsh conditions. The following additional points are made.
   • The appellant had significant mental health issues which were relevant to the harshness of the bail conditions, and to sentencing generally.
   • He was an amputee, a fact which exacerbated the harshness of imprisonment.
   • He had taken significant steps towards rehabilitation while on bail, in particular, he had taken steps to address his substance abuse and addiction.
   • There had been no re-offending while on bail.
   • He had a limited history of offending, and before these matters had no offences of family violence against a partner or former partner.
   • The offending, although serious, was not of a nature that required medical treatment.

1. The facts are as follows. Having pleaded not guilty in the lower court, the appellant was committed to stand trial in this Court and was remanded to 13 March 2020. After a number of directions hearings, he was indicted on two counts of assault, and his trial was commenced on 15 June 2021, with the empanelment of a jury only. The next day, 16 June, he pleaded guilty in the absence of the jury to the two counts on the indictment. The jury was directed to return verdicts of guilty which they duly did. The appellant was bailed to the next day for a sentencing hearing. On 17 June 2021, the prosecution facts were published and a plea in mitigation was presented by the defendant's then counsel. At the conclusion of the sentencing hearing, the matter adjourned to 25 August 2021 for sentence.
2. On 25 August 2021, previous counsel was granted leave to withdraw and alternative counsel appeared for the appellant. The matter was adjourned to allow time for disclosure and instructions. On 1 September 2021, counsel foreshadowed an application to vacate the pleas of guilty, and the matter was adjourned. On 15 November 2021, counsel for the appellant submitted that it was agreed that given jury verdicts had been returned, the appellant was unable to apply to vacate his pleas, and instead an appeal would need to be pursued.
3. On 7 December 2021, a notice of appeal was filed on behalf of the appellant alleging that the verdicts were "unsafe and unsound" in a number of respects, including a failure by previous counsel to act on his client's instructions and the provision of imprudent and inappropriate advice to plead guilty, and that the pleas of guilty entered by the appellant were improper in that they were not a free and voluntary confession of the crimes charged, having been obtained by harassment and improper pressure placed upon by his counsel.
4. In support of the appeal, on 8 December 2021 the appellant and his mother filed affidavits detailing interactions and discussions between the appellant and previous counsel. The State then requested an affidavit in reply from that practitioner. That was filed on 1 February 2022. In the meantime the parties had engaged in communications about legal professional privilege and the question of waiver.
5. On 23 August 2022, the appellant was granted leave by a single judge to withdraw his appeal and on 26 August 2022, counsel for the appellant indicated there would be a dispute about the facts. That dispute was heard on 31 October and 1 November 2022. During the hearing, counsel for the State indicated the State's intention to call previous counsel as a witness to give evidence of facts referred to in his affidavit filed on 1 February 2022. Counsel for the appellant indicated that his evidence would be objected to on the basis that it was subject to legal professional privilege. The matter then adjourned for written submissions to be filed on this point, and a ruling made on 8 June 2023: Tasmania v Palmer [2023] TASSC 21.
6. On 19 October 2023, the sentencing judge made rulings in relation to the disputed facts hearing. A further pre-sentence report was obtained on 24 November 2023, and after hearing further submissions on 30 November 2023, the appellant was sentenced on 7 December 2023.
7. As to the delay, the sentencing judge took the following approach:

"The crimes were committed almost four years ago. A factor that I take into account is that this matter has had a protracted history and I accept that has resulted in stress to Mr Palmer associated with living in the shadow of imprisonment for that time. [Her Honour then set out the essential timeline] While a significant proportion of the history of the matter has resulted from the position adopted by the defendant at various points, the end result is that it has a taken a very lengthy time to resolve the matter.

The most significant factor arising from this delay is that in that time, Mr Palmer has demonstrated compliance with court orders, bail conditions, and has made progress in relation to his drug addiction and mental health. In short, I now have a positive indication about his compliance, which I did not have at an earlier stage."

1. In the present case, the respondent notes that the time between August 2022 and October 2023 was spent resolving the issues from the appellant's decision to contest the factual basis of sentence. In addition, it is said that to the extent there had been rehabilitation during the period that the charges remained pending, this worked to the appellant's advantage given her Honour's comments about what the appellant had demonstrated in the relevant period.
2. It is well established that delay in an appropriate case can be considered a substantial "mitigating factor": R v Todd [1982] 2 NSWLR 517; Prehn v The Queen [2003] TASSC 55. But is it not mitigatory as such: Director of Public Prosecutions v Allen [2017] TASCCA, 27 Tas R 260 at [19]. Delay as a mitigating factor fixes on two particular points. The first relates to the anxiety and stress of the offender who waits for a considerable period of time before the determination of the charges. The rationale behind this seems to be that it amounts to a form of punishment. In this case, the Court was asked to infer anxiety and stress from the circumstances. As earlier noted, the appellant made a suicide attempt shortly before his appeal against conviction was to be heard and spent some time in hospital.
3. The second basis on which delay can be treated as a significant mitigating factor is where the offender has demonstrated rehabilitation during the period of delay, or at least what has occurred during the period of delay suggests favourable prospects of rehabilitation. See R v Whyte [2004] VSCA 5, 7 VR 397 at [25], R v Pickard [2011] SASCFC 134 at [95] and R v SP [2004] ACTCA 16 at [31]- [35].
4. A review of the authorities reveals two particular points that need to be considered in relation to the question of delay. The first is that the delay must be unnecessary: Pickard (above) at 95, Davidson v Tasmania [2018] TASCCA 9. That is to say, unnecessary in the sense that the resolution of the matter has taken more time than would usually be the situation given the nature of the matter. That involves considerations of the investigations necessary and of the complexity of the prosecution case: Davidson at [4] per Wood J.
5. The second point is that for it to be mitigatory, the delay must not be "self-inflicted" in the sense of the delay being fairly attributed to the accused where they had absconded from bail, fled the jurisdiction or otherwise avoided being brought to justice. "A delay must necessarily become of less significance, even to the point of given less credit for rehabilitation established during that period": R v Whyte (above) at [25].
6. Care needs to be exercised in discounting periods where accused persons have exercised their rights: see R v Fahda [1999] NSWCCA 267 per Simpson J (with whom Studdert J agreed). Even in circumstances where it might be said an accused "can hardly complain of the delay up to committal and from committal to trial when they could have pleaded guilty at any time", delay is not necessarily treated as totally irrelevant: R v Barker [2006] NSWCCA 20 at [78]- [80].

1. I have already set out the relevant chronology. The onerous nature of the bail conditions to which the appellant was subject over a considerable period before sentencing is said to be a weighty consideration in determining the ground of appeal. Although the particulars of the restrictive conditions changed from time to time, the essence remained the same until September 2023. Essentially, the appellant was confined to his home for much of the day and was only able to be absent in the presence of specifically named persons. In addition, he was not to be in the company of named persons at his home.
2. On 8 September 2023, many of the restrictions were removed although he was required to live at a particular address and was not to enter or drive through two suburbs of Hobart, and was to comply with any family violence orders made. He was still subject to a condition that he be fitted with an electronic monitoring device. However, that period of some respite was brought to an end when he was, as noted earlier, remanded in custody on these matters on 19 October.
3. In the comments on passing sentence, the sentencing judge noted the very stringent conditions, "essentially akin to house arrest" and with an electronic monitoring device, for a period of approaching two years. Her Honour accepted these conditions represented a significant punishment. Her Honour went on to say:

"He lived in an isolated area on his own and he was someone who was then struggling with his mental health. While on bail and subject to these conditions, there had been no further allegations of family violence or contact with the complainant. The defendant accepts that the relationship is over.

I take into account a number of other positive considerations. His drug addiction was effectively addressed by his incarceration and the enforced isolation at his home, resulting from the very strict bail conditions ... . I note, to, that he has undertaken and completed an alcohol and drug course while in custody, which gives me some confidence that he will be compliant with intervention if so ordered."

1. The respondent accepts that it is open to a sentencing judge to take into account onerous conditions of bail in assessing sentence, but is not obliged to do so: Hello v The Queen [2010] NSWCCA 311 at [47]- [50]. The respondent notes the sentencing judge described the conditions as representing a "significant punishment", and obviously took them into account. The point is also made that the bail conditions were imposed, in part at least, in response to a second unrelated allegation of family violence against another complainant. The respondent notes that during submissions, while accepting the bail conditions were "very, very, stringent", the sentencing judge observed that it was the "combination of two extremely serious matters that saw him granted bail when ordinarily one might expect him to be remanded in custody." That may well be a pertinent point, but the fact is that there were severe limitations on the appellant's liberty connected with the present matters.

Issues of delay/bail conditions in the context of the appeal

1. The appellant does not allege any specific error on the part of the sentencing judge. Her Honour was clearly alert to the relevance of them in the sentencing process as factors to be put into the equation when assessing the appropriate sentencing orders. I am not able to discern any flaw in her Honour's approach. In any event, because of the single ground of appeal of manifest excess, assertions of inadequate weight can only be assessed by reference to the ultimate outcome: TAP v Tasmania [2014] TASCCA 5 at [30]; Mulholland v Tasmania [2017] TASCCA 2 at [17].

1. This Court and other courts in Australia have made clear statements about the general approach to physical violence in the domestic context. In Director of Public Prosecutions v Karklins [2018] TASCCA 6, 29 Tas R 373 at 92, Geason J (with whom Blow CJ and I agreed) said:

"Domestic violence is properly regarded as a most serious form of offending, frequently hidden from view, and thus difficult to detect. The court has a symbolic function. Censure for domestic violence should be communicated through the sentences which are imposed. Community attitudes to it are changing: .. Strong denunciation is called for, and general deterrence is a primary consideration. For crimes which are difficult to detect, the consequences of discovery must be severe enough to counter the perception that their commission is a risk worth taking."

1. A short time later, in Gregson v Tasmania [2018] TASCCA 14 at [30] and [37], Martin AJ (Blow CJ and Geason J agreeing) said:

"Men like the appellant who are minded to use physical violence against their female partners must understand that the community is greatly disturbed by this type of unacceptable conduct. Such violence is prevalent and will be met with significant terms of imprisonment. General deterrence was also an important factor in sentencing."

... Women in domestic circumstances are particularly vulnerable to the abuse of power and breach of trust by violent male partners ... Women who become victims in these circumstances, and other potential victims throughout the community, are entitled to such protection as the law is able to provide through the imposition of sentences that will act as both a personal and a general deterrent."[1]

1. Similar remarks were made by the New South Wales Court of Criminal Appeal in R v Edigarov [2001] NSWCCA 436 at [41]. Wood CJ at CL, (Studdert and Bell JJ agreeing) said that "violent attacks in domestic settings must be treated with real seriousness." His Honour continued:

"In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence." [2]

1. A particular form of physical violence prevalent within the domestic violence context is choking and strangulation. That prompted Parliament to introduce s 178B of the Criminal Code, which created the crime of strangulation. That commenced on 22 August 2022. In Director of Public Prosecutions v Foster [2019] TASCCA 15 at [26]- [27], Estcourt J (with whom Brett J and Marshall AJ agreed) noted an academic observation "that 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." His Honour continued:

"Choking can cause loss of consciousness and can cause death quickly. It has been suggested that death can occur within seven to fourteen seconds. Additionally, underlying internal injuries caused by the pressure applied to the throat can cause swelling which may develop gradually over days and airways obstruction causing death may be delayed."

1. In the respondent's written submissions, aggravating factors and the absence of mitigating factors are detailed. Those submissions are as follows:

It is asserted the following were aggravating factors:

(a) The charges were matters of family violence which took place in the complainant's home.

(b) Both counts involved proved allegations of strangulation or choking.

(i) In respect of count 1, the complainant felt pain and was unable to breathe nor speak. She was also rendered less able to defend herself from the subsequent head-butt that took place while she was lying down on the bed.

(ii) The conduct which was the subject of count 2 was especially serious involving, as it did, the use of a ligature. The complainant felt as though she could not breathe and as though was going to lose consciousness on multiple occasions.

(c) The conduct was deliberately calculated to cause the complainant fear and to cause her to believe she would die. During the acts the subject of count two, the Appellant told the complainant that her daughter would not see her again.

(d) The acts of violence the subject of the charges occurred against a background of ongoing abuse and threatening behaviour. This had begun in September 2019 with the accused verbally abusing the complainant and confronting her about his belief that the complainant was bringing other men to their home. The Appellant also sent a string of abusive text messages to the complainant shortly before the offending took place. After count 1 occurred the Appellant followed the complainant out of the bedroom where count 2 then took place. It could not be said that the Appellant's conduct was isolated.

(e) The complainant suffered significant physical injuries.

(f) The complainant also suffered significant psychological and emotional impacts as a result of the offending. It is significant that those effects were still prevalent almost four years after the commission of the crimes.

(g) The offending (particularly that which was the subject of count 1) occurred in the presence of or near to the complainant's infant child and the Appellant knew that to be the case: Family Violence Act 2004, s 13(a).

It is asserted that the following mitigating factors were absent:

(a) The Appellant was not a youthful offender.

(b) There was no evidence of remorse, nor any submissions made on his behalf to that effect. The learned sentencing judge noted that in the course of the Appellant's video recorded interview the Appellant felt justified in committing the acts of violence that he admitted to. Further, those admissions did not reflect the full extent of his criminal conduct.

(c) Although he entered a plea of guilty to the charges, that was only after a trial had already begun and, because of the nature and extent of the matters later brought into dispute, the complainant was required to give evidence and be cross-examined, as were a number of other witnesses. In those circumstances the plea was deprived of its utilitarian benefit.

(d) The Appellant had substantial prior convictions, including for family violence. In January 2019 he was sentenced by way of conviction and fine for five charges of breaching a police family violence order in respect of a different partner. He also had prior convictions in Queensland and Western Australia for violent offending. It could not be said that the offending was an isolated aberration. Specific deterrence was clearly a relevant sentencing consideration.

(e) Although the Appellant had what was described by his counsel as a "history of mental health concerns" there was no suggestion made to the learned sentencing judge, nor was there any evidence put before the Court, that any of those concerns contributed to the Appellant's offending or to the level of moral culpability to be ascribed to him in respect of it."

1. Subject to two matters, those submissions can be generally accepted. The two matters were raised by counsel for the appellant. First, in relation to par 15(d) it was submitted that this view of things is not borne out by the approach taken by the trial judge. Her Honour noted that it was "not apparent from his record that he has a history of violence towards females, or any former partner." So much is true, at least to the extent of actual physical violence. There were, as previously noted, convictions in January 2019 for five breaches of a family violence order. They related to threatening and abusive messages all on the one day to the same women. There is no detail available in relation to the assault conviction in Western Australia in 2017.
2. The second matter relates to par 15(e). Counsel for the appellant suggested that the sentencing judge took into account the fact that his drug addiction, operative at the time of the offending, manifested paranoia and agitation. Although not explicitly put, I would understand this to be a submission that this factor is not adequately reflected in the sentence. The respondent's submission is correct in that there was neither evidence nor suggestion before the sentencing judge that the appellant's general mental health led to a reduction of moral culpability.
3. That said, the appellant's most unfortunate background and his drug addiction are general matters of relevance. As an offender raised in the community surrounded by alcohol and violence, this may mitigate the sentence because moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way. However, circumstances of deprivation "may" mitigate sentence; the circumstances may be taken into account but there may be countervailing factors: Bugmy v The Queen [2000] HCA 37, 249 CLR 571 at [40]; Banfield v Tasmania [2024] TASCCA 1 at 7. That the appellant was actually affected by drugs at the time of the offending is not mitigatory: see for instance Director of Public Prosecutions v CSS [2013] TASCCA 10 at [29], Director of Public Prosecutions (Acting) v Poole [2015] TASSC 10 at [32]- [33].
4. The appellant relies on what were described as significant steps towards rehabilitation while on bail; in particular his addiction to illicit substances had been addressed. It will be recalled that the underlying facts, as noted by the sentencing judge, were that the appellant's period of hospitalisation has lead to attention for his mental health issues, his drug addiction was "effectively addressed by his incarceration and enforced isolation at home", and that he had completed an alcohol and drug course while in custody. That was the extent of the material. Her Honour noted that the appellant's addiction was relevant to rehabilitation, which remained a sentencing goal, and if he did reform, the community would benefit. The respondent submits that the need for actual and potential rehabilitation to be considered in terms of the sentencing process, also calls for consideration of the appellant's response to the charges.
5. The respondent notes that at no stage during the lengthy sentencing hearing did the appellant express remorse for his conduct. In the pre-sentence report prepared for sentencing in 2021, the appellant made inappropriate comments about the complainant and engaged in "extreme minimisation and denial in relation to the offences for which he is being sentenced". In the updated sentencing report on November 2023, the appellant stated that he did not wish to discuss the matters. The point of the submission is that the absence of expression of remorse and/or insight together with his conduct of the proceedings did not call for rehabilitation to assume predominant weight in the sentencing process, particularly when the sentencing judge characterised his moral culpability as "very high".
6. It can be accepted that the trial judge properly took account, to an appropriate extent, the established facts supporting rehabilitation and the potential for that to continue. At the same time, it should be accepted that the appellant's attitude to the offending as so described, is a relevant consideration in terms of specific deterrence and rehabilitation. I accept that the appellant's attitude to the offending, as described by the respondent in the submission, is a matter that should not be overlooked.

1. In terms of the offending itself, the physical acts constitute quite appalling conduct. They were done in the context of an obsessive and possessive attitude on the part of the appellant. Those physical assaults, as is always the case with assaults in a domestic relationship, amount to breaches of trust. The second assault, involving strangulation by use of the dressing gown cord, is to be regarded in a particularly serious light. In an unstable state, physically and mentally, the appellant wrapped the cord around the complainant's neck and pulled it tight. At all times he had possession of the cord, and physical domination over the complainant. The impact on her has been considerable and it is fortunate she was not more seriously injured.
2. It can be accepted that there were aspects of the appellant's personal circumstances which warranted some leniency. They were properly explained and obviously taken into account by the sentencing judge. I did not understand counsel for the appellant to be mounting a strong challenge to the head sentence as such, but whatever the case, my view is that for the two counts of assault, in all the circumstances including the personal circumstances of the appellant and other factors, the head sentence is not one that bespeaks error. If the question then becomes whether the failure to suspend the execution of the whole of the term of imprisonment makes the sentence manifestly excessive, I am not persuaded that is so. A period of actual imprisonment was clearly called for.
3. The personal circumstances of the appellant, and the mitigating factors of delay - with its consequent stress and anxiety and the actual and prospective rehabilitation shown in that period - and the harsh bail conditions were properly reflected both in the suspension of the execution of the substantial period of 14 months of the head sentence, and in the order for parole eligibility to the statutory maximum available in respect of the period to be immediately served.
4. Overall, I am not satisfied that the sentence of imprisonment imposed was unreasonable or plainly unjust, to use the traditional test: Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8]. Error is not shown in the result. Putting it another way, the appellant has not established that the sentence was "outside the permissible range of dispositions": AB v The Queen [1999] HCA 46, 198 CLR 111 at [129]- [130] per Hayne J.
5. As stated at the outset, I would dismiss the appeal.

[1] See also Parker v Tasmania [2020] TASCCA 9, 32 Tas R 194; Brown v Jones [2021] TASSC 58, 34 Tas R 87.

[2] See also R v Fairbrother; ex parte Attorney-General [2005] QCA 105 per McMurdo P at [23].