Police v Poolman

Local Court of NSW|2014-02-18

Remarks on sentence 1The offender, Daniel Tai Poolman, stands for sentence having entered pleas of guilty on 22 October 2013 to the following charges - Seq. No. Date Offence

   2/6/2013  Assault occasioning actual bodily harm
             Section 59(1), Crimes Act 1900

   2/6/2013  Intimidation
             Section 13(1), Crimes (Domestic and Personal Violence) Act 2007

   2/6/2013  Assault
             Section 61, Crimes Act 1900

   2/6/2013  Damage property
             Section 195(1)(a), Crimes Act 1900

2It will be readily apparent that sequences 2 and 3 were withdrawn on an earlier occasion arising out of 'charge negotiations' with the prosecuting authorities. Initially, pleas of not guilty were entered to all charges and a brief service order made. This is of more than academic interest because pleas of guilty arising out of successful negotiations have quite a bearing on any available discount: see R v Stambolis [2006] NSWCCA 56 at [11]. 3A conviction upon indictment for assault occasioning actual bodily harm contrary to section 59 and damaging property contrary to section 195(1)(a) carries a penalty of imprisonment for 5 years. Common assault contrary to section 61 carries a penalty of imprisonment for 2 years. An offence of intimidation contrary to section 13(1) also carries a penalty of imprisonment for 5 years with the addition of a fine of $5,500 or both fine and imprisonment. Section 268 of the Criminal Procedure Act 1986 restricts the length of imprisonment the Local Court may impose to one of 2 years in each case and/or a fine of up to $5,500. 4I refer to the potential penalties to make clear the objective seriousness of the offences. These mirror the legislative intention of the Parliament to which sentencing courts (even District Courts hearing appeals from the Local Court) must pay strict regard.

Salient facts 5As is usual in the Local Court a statement of agreed facts signed by the offender and his solicitor was tendered to the Court and is Exhibit 1. Also tendered as Exhibit 2 is a bail report showing the offender has no criminal antecedents. I will set out my own brief summary of the facts. The complainant, Kylie Anne Whicker, resides at an address in Grenfell with her three children aged 13, 12 and 9 years. She suffers from a number of health problems and a spinal disease. She is semi-invalid and uses a wheelchair to get around. Her son and a daughter both suffer autism. 6The complainant and the offender have been in an on-and-off relationship for a number of years. On 1 June 2013 the offender stayed the night at the complainant's house. About 10.00am on Sunday, the complainant was woken by her 9 year old daughter as she wanted to be with her mother. The complainant agreed and indicated she was in a bit of pain and to just let her get out of bed. In so doing she made a noise waking the offender. He got out of bed in a huff and started throwing the blankets around before going to the toilet. He said, "This is not fucking fair. It's Sunday and parents should be allowed to sleep and not be woken by children. Kids should be able to amuse themselves." The complainant asked him to leave the house as he was continually screaming. 7The offender picked up the 9 year old girl and took her into a bedroom. The complainant told him to put her down. He said, "I have had fucking enough." He walked to the complainant and placed his open hand around her throat and pushed her neck backwards, pushing her off the chair on which she had been sitting. 8The daughter yelled out to the offender asking him not to hurt her mother. He replied, "I am not hurting her, shut your fucking mouth". The complainant said, "Don't speak to her like that." The offender picked up the child and put her in her bedroom. He then pushed the complainant and picked her up around the throat region before pushing her onto the bed. The 9 year old entered the room and said, "Do not do that to my mummy". The offender stopped and started yelling at the child. 9The complainant shoved the offender and was pushed to the ground for her trouble. She felt pain to her eye. The offender grabbed her hair in a pulling motion. He continued to verbally abuse her. He next grabbed her throat and placed his open hand up around her nose region. He threatened to break her nose. She was kneed to the face resulting in bruising to her right eye. She was by this time on the ground. The offender picked her up and threw her onto her daughter's bed in the presence of the children. He got on top of her and pushed down on her chest causing pain to her rib area. The eldest daughter covered her sister's face with her hands and put headphones over her ears so she could not see or hear what was occurring. The offender got off the bed, walked into the lounge room and left via the back gate. 10Some time later the offender returned to the house to retrieve his mobile phone battery. The front door was closed and he commenced banging on the door and window and yelling. The front window of the house was thus damaged. The complainant opened the door and the offender slapped her across the face as he walked past. Quite apart from the violence involved, I have no doubt it was intended to both insult and demean the complainant. He went to find his battery and during the process threatened to burn down the complainant's house. 11As a consequence of the assaults upon her by the offender, the complainant was taken to Orange Base Hospital where, upon examination, she was found to be suffering from a broken nose, several broken ribs and a swollen and blackened eye. 12Police spoke to the offender the next day. He admitted to pushing the complainant and pulling her hair and agreed his yelling would have scared the complainant and her children. He also admitted to leaving the house in the complainant's car with her wheelchair in the boot. He did not explain how the complainant received her injuries.

Pre sentence report 13The Court has the benefit of a report from Ms Capes of the Young Community Corrections Office dated 21 November 2013 that is now Exhibit 3. The offender reported a somewhat unsettled childhood but overall said he had a good upbringing free from major dysfunction and disturbance. He claimed that throughout the period of over three years he solely provided all the personal care the complainant required due to her medical condition. He is currently on unemployment benefits although had previously been in receipt of a carer's benefit while providing for the complainant. 14The offender acknowledged his need to address anger management. He indicated he had anger issues. During the adjournment he was referred to a general practitioner and a private psychologist, however, at the time of writing the report he had not made contact with the general practitioner as requested. He said he disagreed with the facts as read to him at interview. He agreed to the "yelling and screaming" and that he "pushed and pulled" the complainant. He said he "just snapped" at the events as they occurred that morning. 15When asked about the effect upon the complainant of the offences he appeared to have limited insight about the impact his actions had on the complainant. He appeared to minimise responsibility for his offences by blaming the complainant for the injuries received during the event. He has been assessed as a medium/low risk of re-offending. 16The offender said the one major relationship in his life was with the complainant but this had ended as a result of the present matters. I do not know if that is still correct judging by the noisy and disruptive conduct of the complainant in support of the offender both inside and outside the Court on the last occasion. Perhaps there has been a reconciliation to restore what passes for harmony in the relationship. Whether that is the case or not, what follows is out of the complainant's hands. When viewed through the eyes of the participants the nature of the offence could perhaps be seen as merely a private matter. The Court, however, cannot (and will not) take that view: see R v Yin (unreported, NSW CCA, 9 November 1988); Shaw v R [2008] NSWCCA 58 at [27]; R v Quach [2002] NSWCCA 173 at [28]; Rowe v R (1996) 89 A Crim R 467 at 472-473; R v Berry [2000] NSWCCA 451 at [32]. 17The offender is assessed as suitable for a Community Service Order and would benefit by a period of supervision by Community Corrections with referral to a medical practitioner and psychologist to access anger management counselling.

Defence submissions 18Mr Barron, solicitor, has said all that could possibly be said on behalf of the offender. In essence, he submits I would have due regard to his lack of prior criminal antecedents. Mr Barron submits the offender must have some insight into his behaviour as he is now seeing a clinical psychologist in Cowra for anger management. He has been placed on prescribed medication. Mr Barron advised the Court that the relationship is now over. 19It was submitted that I deal with the charges by way of a non-custodial sentence - preferably under section 12. Alternately, I should find special circumstances as this will be his first time in custody.

Objective seriousness 20The correct starting point is a level-headed assessment of the gravity of the objective facts of the offences with which the Court is dealing. There can be no doubting the objective seriousness of these offences - if only by reference to the penalties provided by Parliament. See also the decision of R v Dodd (1991) 57 A Crim R 349 at 354.

Plea of guilty 21The offender initially entered pleas of not guilty to all charges and a brief service order was made. Negotiated pleas as to charges and facts were entered on 22 October 2013 and adjourned for sentence until 3 December 2013 and ultimately to today. I remind myself of the judgment of Howie J in R v Stambolis [2006] NSWCCA 56 at [11] and will allow a pragmatic discount for the utilitarian value of the plea at 15%. There is a further allowance to be made of 3 days pre-sentence custody.

Domestic violence offences 22I have said this before but it is worth one more repetition. It is sad testimony indeed to the state of our society that instances of domestic violence, and serious domestic violence at that, continue unabated. It does not seem to matter what resources are employed to protect women (and it is almost always women) from violence in a domestic context. 23It is important, yet again, to stress the need for personal and general deterrence and denunciation in cases of domestic violence which inherently involve breaches of trust and vulnerability of victims. The people of the township of Young, supported by The Young Witness, showed strong support in a recent public campaign of awareness against domestic violence which condemned such conduct. They recognise that domestic violence is a crime against both the victim and the community. 24The complainant in this case was particularly vulnerable due to her physical incapacity and the offender was well aware of this. She was largely, if not entirely, defenceless. And she received her injuries in the presence of her children and in her own home (which are aggravating features in themselves: see Melbom v R [2013] NSWCCA 210; Montero v R [2013] NSWCCA 214). In the circumstances the offender's conduct was cowardly and, quite frankly, beneath contempt. 25It is worthwhile taking a little time to re-state what courts of higher and binding authority have said, time and again, as to what is required of subordinate courts in dealing with these cases. 26In approaching the resolution of sentencing in domestic violence cases, courts have made numerous statements about the importance of general deterrence. In R v Glen (unreported, NSW CCA, 19 December 1994), Simpson J stressed the importance of general deterrence in cases of domestic violence. Her Honour stated that victims of domestic violence will "receive the full protection of the law, insofar as the courts are able to afford it to them". (See also R v Greene [2001] NSWCCA 258 per Howie J - "general deterrence was a significant matter in sentencing the applicant simply because of the prevalence of violence by men against women in domestic relationships".) In R v Berry [2000] NSWCCA 451 the Court recognised that there was a need for "both general and personal deterrence in sentencing for a crime of domestic violence." 27In the landmark case of R v Hamid [2006] NSWCCA 302, (2006) 164 A Crim R 179, in the leading judgment of Justice Johnson, the Court noted that the importance of general deterrence in domestic violence cases, given the prevalence of violence by men against women in domestic relationships, had been emphasised repeatedly by the Court and the following passages were cited in support at [69]-[72]: In R v Ross (Court of Criminal Appeal, 20 November 1996, unreported), Adams AJ (Newman J agreeing) observed, in the context of a sentence appeal concerning an offence of assault occasioning actual bodily harm committed upon a domestic partner: "This was an act of frightening violence meted out to a woman [who] was entitled to the protection of the law. Until men such as the applicant understand that the law will treat with real seriousness cases which hitherto have been dismissed as having 'domestic' significance, this appalling series of violent acts meted out continuously to women in this community by men who suppose they have the right to do so will not stop." In R v Fahda [1999] NSWCCA 267, Simpson J (Studdert J agreeing) said at paragraph 26: "Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished." In R v Edigarov (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at 558 [41]: "As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. 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." In R v Dunn (2004) 144 A Crim R 180, Adams J (Ipp JA and Sully J agreeing) said at 195 [47]: "Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind." 28In Hamid the Court also said at [86]: In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. These principles flow from statements of this Court and are fortified by the enactment of Division 1A of Part 15A of the Crimes Act 1900 including the statutory objects recited in s.562AC. 29The Court also referred to criminological research, stating at [77]: An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control. 30More recently in Vragovic v R [2007] NSWCCA 46 the Court observed at [33]: It was once thought in some circles that domestic violence was somehow less serious than criminal violence inflicted in other circumstances. I do not agree. In many cases of domestic violence a distinguishing characteristic is the notion of the offender that he (and it is almost invariably a male) is entitled to act as he did pursuant to some perverted view of the rights of a male over a female with whom he is or was intimately connected. It is this characteristic of self-justification which requires particular emphasis to be given, in cases of this kind, to the elements of general and personal deterrence... 31Similar views have been expressed in other Australian jurisdictions with respect to sentencing of domestic violence offenders. (See, for example, R v Devine (unreported, Supreme Court of Tasmania, 5 July 1993); Gallegos v R [1999] WASCA 191; Ugle v R [2001] WASCA 268; Attorney-General for Tasmania v O [2004] TASSC 53.) 32Given that weight of judicial authority, it is abundantly clear that there is a serious obligation upon courts called upon to deal with cases of domestic violence to impose condign punishment in appropriate cases. The message needs be spread, and firmly, throughout the community, that that is precisely what will happen. The aspects of personal and general deterrence were stressed by the Court of Criminal Appeal in Hiron v R [2007] NSWCCA 336 and called for deterrent sentences to be imposed. 33What, then, is to be done with an offender who assaulted his domestic companion in her own home by breaking her nose, breaking her ribs and kneeing her in the face causing injury to an eye as well as slapping her across the face? And in the immediate presence of two of her children? While it is always possible to conjure up a "worse case" - I assess the AOABH charge at the upper end of the middle range of the scale of offending. I assess the criminality of the remaining charges at below the middle range of the scale of offending. 34It is worthwhile reinforcing the point about the presence of the children at the relevant time. A study by the Australian Institute of Criminology found that young people growing up in homes where there has been couple violence, that is, both male and female carers perpetrating and being victimised by domestic violence, were more likely to be victims of relationship violence and perpetrators of violence in their own intimate relationships.

Remorse as a factor 35Section 21A(2)(i) was amended by the Crimes (Sentencing Procedure) Amendment Act 2007, which commenced on proclamation on 1 January 2008. Where the new section applies, as it does here, remorse will only be relevant as a mitigating factor where the offender has provided evidence that he or she has accepted responsibility for his or her actions, and the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both): see section 21A(3)(i). 36This does not place any requirement upon an offender to enter the witness box and provide sworn evidence. I am able to take into account an expression of remorse from, for example, a Pre Sentence Report. Hereunder is an extract from the report, Exhibit 3 (p 2): When asked about the effect upon the victim of the offences, he appeared to have limited insight. Mr Poolman appeared to minimize responsibility for his offences by blaming the victim for the injuries received during the event. 37There is really nothing in the report as to anything remotely resembling remorse. Expressions of remorse heard for the first time today from the bar table are too little, too late. I am not prepared to accord him an acknowledgement that he is remorseful for his actions in any acceptable sense. 38I am obliged to give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. It is inappropriate to impose any sentence of imprisonment unless I come to the conclusion that imprisonment, and no other sentence, is appropriate. In the matters presently under consideration, I am very firmly of the opinion that no sentences other than sentences of full-time imprisonment are appropriate. 39In arriving at that conclusion I have regard to the nature of the offences committed, the objective seriousness of the criminality involved, the need for general and specific deterrence and the subjective circumstances of the offender. Taken together, I am of the view that this is not an appropriate case for a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. It follows from what I have just said that it is not appropriate for the sentences to be suspended: R v Zamagias [2002] NSWCCA 17; Blundell v R [2008] NSWCCA 92 per Simpson J. 40I must give proper effect to the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ (emphasis added): A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. 41There will be some partial cumulation of the sentences: see Nguyen v R [2007] NSWCCA 14. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of superior courts making it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R v MMK [2006] NSWCCA 272. The position was further explained in Cahyadi v R [2007] NSWCCA 1. See also R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52].

Penalties 42For the charge of assault occasioning actual bodily harm the offender is convicted and sentenced to an original term of imprisonment of 12 months. I apply a discount of 15% resulting in an actual term of 10 months and 6 days, however, in conformity with the decision in Rios v R [2012] NSWCCA 8, per Adamson J (Bathurst CJ and Simpson J agreeing) at [43], I will pragmatically round down the sentence in favour of the offender to one of 10 months. There will be a non-parole period of 3 months originally to commence on 18 February 2014, but backdated by 3 days commencing on 15 February 2014 and eligible for parole on 14 May 2014. There will be a balance of term of 7 months commencing on 15 May 2014 and expiring on 14 December 2014. 43Pursuant to section 50 of the Crimes (Sentencing Procedure) Act 1999, I direct the release of the offender to parole at the end of the non-parole period provided he is otherwise eligible. Pursuant to section 51 I direct as a condition of parole that the offender be subject to supervision by the Probation & Parole Service for such period as that Service deems necessary and undertake any programme or treatment recommended by the Service. Any failure to comply with this direction may be regarded as a breach of parole. 44For the charge of common assault the offender is convicted and sentenced to a fixed term of 3 months to date from 15 March 2014 expiring on 14 June 2014. The sentence is for a fixed term because it is subsumed in the earlier sentence imposed. 45I am prepared to find "special circumstances" owing to the offender's age, the need for supervision upon release, this will be his first time in custody and because there is some partial cumulation of penalty. 46For the charges of intimidation and damage property the offender is convicted and ordered to enter into bonds pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 12 months conditioned that he (1) be of good behaviour and appear before the Court if called upon to do so at any time during the currency of the bonds and (2) notify the Registrar of this Court of any change in residential address during the currency of the bonds. 47I make final orders in the Apprehended Domestic Violence Order Application in terms of 1, 4, 5 and 11 for a period of 2 years from today. 18 February 2014. The complainant's three children are to be added as protected persons. Given the facts of this case, they too are entitled to be considered and protected. The distance specified in order 4 is now 50 metres in lieu of the original 100 metres. 48Someone unfamiliar with the more commonplace anti-social dynamics of this community and responding, no doubt, to a case not put before me, might be persuaded to release the offender on appeal or reduce the sentence. Be that as it may. 49For my part, however, I will continue to apply the principles of binding authority which the higher courts have made plain are required in sentencing for offences of this type as well as according with legitimate community expectations. Until this message is spread and applied consistently at all levels of the justice system more women will continue to be assaulted and perpetrators will continue to thumb their nose at the law by evading their just desserts. Magistrate PS Dare SC Young Local Court 18 February 2014

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2014

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