HIS HONOUR: Jonathan Edward Beaver is before the Court to be dealt with in relation to nine offences. Seven are discrete counts with one further matter to be taken into account on a Form 1 attaching to one of the principal counts and a further matter to be dealt with at the conclusion of the proceedings because it is before the Court as a related matter on a certificate to s 166 of the Criminal Procedure Act. These reasons for sentence are delivered extempore in circumstances where I considered all of the written and oral evidence and written and oral submissions of the parties today at Campbelltown District Court.
The offences that Mr Beaver is before the Court for sentence on include one offence in breach of s 61 of the Crimes Act for which is provided a maximum penalty of two years imprisonment and no standard non-parole period has application. Three offences in breach of s 59 of the Crimes Act, in other words assaults occasioning actual bodily harm, for which maximum penalties of five years is provided in each instance and no standard non-parole period has application. One offence of intimidate in breach of s 13 of the Crimes (Domestic and Personal Violence) Act for which a maximum penalty of five years is provided and there is no standard non-parole period. One count of being armed with intent to commit an indictable offence, the indictable offence being intimidation in breach of s 114(1)(a) of the Crimes Act for which is provided a maximum penalty of seven years imprisonment and no standard non-parole period. Finally, an offence of doing an act with intent to influence a witness in breach of s 323(a) and 324 of the Crimes Act for which a maximum penalty of 14 years imprisonment has application. There is no standard non-parole period.
When dealing with the armed with intent matter, I will take into account a common law offence of escape police custody which is on a Form 1 for which ten years imprisonment is provided as the maximum penalty, if on indictment and there is no standard non-parole period. Additionally pursuant to s 166 I will deal with Mr Beaver for one count for contravening a prohibition in a domestic apprehended violence order in breach of s 14 of the Crimes (Domestic and Personal Violence) Act which has a maximum penalty in these circumstances of two years imprisonment. I will have regard to the maximum penalties as a guidepost or benchmark in the way contemplated by the authorities. It is inevitable in relation to the matter to which the Form 1 attaches that fact will place upward pressure on the penalty that would otherwise apply.
It is common ground between the parties that Mr Beaver pleaded guilty at an early stage and that he is entitled to a full utilitarian discount. I propose to ultimately deal with the matters by way of an aggregate sentence, so when I announce the indicative sentences the 25% utilitarian discount will have been applied to each of the indicative sentences. An aggregate sentence evokes notional principles of totality. I will have regard to the arguments that the parties put to me about partial concurrence or partial accumulation as the case maybe when I determine the aggregate sentence. Given none of the matters have standard non-parole periods applicable there is no need for me to articulate a non-parole period in relation to any of the indicative sentences.
Mr Beaver was committed for sentence to this Court on 29 August 2018 from Campbelltown Local Court. He has been in custody since the date of his arrest on 4 October 2017. Although he continues to serve the balance of parole from that date until 26 February 2020 and I will return to the arguments of the parties and a determination in relation to the considerations applied to any backdating of the commencement of the sentence imposed today.
The signed agreed facts are part of the Crown bundle on sentence and to them are appended some photographs that demonstrate in one case the nature of the weapon involved and in other cases some injuries occasioned to the victim, who was Mr Beaver's one time partner, Katrina Tuffy. I do not propose to read all of the facts onto the record, but will summarise them.
The offender and Ms Tuffy had been in a relationship since about May 2017. The offending comprised in the matters totally commenced on 18 September 2017 and concluded on 6 November 2017. Accordingly, there was a passage of offending of some months broadly broken into two categories. Offending generally of a physical kind against Ms Tuffy occurred whilst the offender was at large and on parole. Then further offending that occurred in the context of him being bail refused, having been arrested for the bulk of the offences. .
I am actually going to recite some general matters before I go through the facts, given that I propose to characterise the objective seriousness of the offending as I go.
It is accepted that all of the offences were committed in breach of conditional liberty, that is, the parole to which the offender was then subject. The majority of the later offences were committed at the time that there was an apprehended violence order in place to protect Ms Tuffy from the offender. Additionally, the offender had a record of prior conviction. In mitigation none of the offences were part of a planned or organised criminal activity. The offender demonstrated remorse and an acceptance of responsibility in proceedings before me today and I will come to that. He pleaded guilty. Those latter three matters are mitigating factors for purposes of s 21A(3) and the two earlier ones are aggravating factors for the purposes of s 21A(2) of the Crimes (Sentencing Procedure) Act.
It is accepted that the matters are made more serious in circumstances in which the offender had previously committed some actions that can properly be described as domestic violence offences and was on parole, as I have said, for those offences at the time of these matters. As I characterise the offences one by one, it is clear that there was a range of offences across a period of time and the whole passage of the offending must have been terrifying to Ms Tuffy from time to time.
The facts in relation to the common assault, which is sequence one are that at a time when the offender was driving the victim in her vehicle, in the course of an argument he slapped her to the left hand side of the face and then put his right hand around her neck and let go after a period of five seconds squeezing. I am satisfied that the objective seriousness of that matter in the context of all the other matters that I have adverted to is just above the midrange. Having retreated away from the vehicle, the victim then got back in the vehicle and the offender started to drive fast in a way that scared the victim. After the vehicle slowed down she ran away from the car and screamed for help. In the contest of the offender then saying that he was only joking around and that he would not hurt the victim. He said, "You are just being crazy and causing a scene". She eventually got back into the car and the offender started to drive off slowly. He then stopped the vehicle suddenly and reached over towards the victim. The offender used his left hand to grab the victim on the neck. He held her neck for about four seconds and then he pushed her away. After that assault the offender started to drive away and the victim became fearful for her safety. She unbuckled her seatbelt, opened the car door and jumped from the vehicle as it was moving. She felt immediate pain to her right foot and lay on the ground. Eventually the offender stopped the car, checked that she was okay and called for help. At the time emergency services arrived to assist the victim the offender drove off. As a result of jumping out of the car the victim suffered an incomplete hairline fracture to her right ankle which meant that she had to wear a Cam boot for three weeks. She also suffered soreness to her left foot, scratches to right arm and to her buttocks. There is no indication of any permanent, ongoing harm.
Those are the facts which give rise to sequence four which is the first offence in breach of s 59. Having observed the injuries that was occasioned to the victim and the length of the assault involved, I characterise the objective seriousness of that matter as being at the midrange.
I observed during the course of the sentence proceedings the fact that the victim felt moved to behave in that way shows how terrified she must have been.
The victim declined to provide a statement to the police at that stage, but the police applied for and obtained an ADVO to protect Ms Tuffy. Despite the existence of that AVO, the offender and the victim spent the following two weeks together. What that means is that the contravention and other actions were taken upon the offender having immediately contravened an AVO. In assessing the objective seriousness of that matter I do take into account that the victim, whether in fear or not, elected to continue the relationship and association with the offender at that time. That said, the breach was almost immediate. Those are the facts in relation to the matter on the s 166 matter and that is a matter that falls just above the midrange of objective seriousness.
In the context of the offender, upon the report of the victim, taking drugs with her and not sleeping across a number of days, the victim described to the police that the offender had become quite dark and suicidal. The offender drove he and the victim to his home. They argued in the car and during the course of that argument the offender put his hand around the victim's neck and choked her with his right hand, causing pain and red marks. They are the facts in relation to sequence seven.
The facts that I have just recited are the facts that relate to an offence of assault occasioning actual bodily harm on 2 October 2017. Given the other matters that I have referred to, the relatively short temporal compass of the offence and taking into account that there was further grabbing of the offender's wrist which also caused bruising, I consider that the objective seriousness of that matter is just below the midrange of objective seriousness.
Across the same passage of days, on 4 October 2017 in circumstances where the victim had determined to again stay with the offender. On the morning of 3 October 2017he was threatening suicide and saying bizarre things. After midnight on the same day, after the victim had attempted to get some help for the offender including having her mother speak to him, around midnight, that is in the early hours of 4 October 2017 she, the victim, asked the offender about some Oxycontin that was secreted in the offender's room. He said to her, "Shut the fuck up or I'll fuckin' bash you" and he raised his fist towards her. This resulted in the victim being very frightened. She indicated that she could not continue the relationship. She was happy to be his friend and the offender said they are either going to be a couple or "fuck off". They are the facts that relate to the intimidation offence.
Given the character of actions, both physical and verbal, that can amount to intimidation I take into account the threat made and the raising of the fists across the range of behaviour that these courts see attracting that criminal sanction. I find that matter to be below the midrange of objective seriousness.
About 1 o'clock, on the same morning, the victim was sitting on a chair beside the offender who was sitting on his bed. She got up to leave, the offender pushed her back down. She tried to move on multiple occasions and the offender grabbed her arm. On the last occasion when she tried to leave the offender grabbed he by the throat, pulled her hair and threw her onto the bed. Each time she tried to get back up he pushed her back and perhaps unsurprisingly the victim ended up screaming. They are the facts that constitute in a rolled up fashion the assault occasioning actual bodily harm. The objective seriousness of that matter is just above the midrange of objective seriousness for the reasons that I have identified.
The actions of the victim in screaming brought matters to the attention of the offender's parents who intervened. She was packing up her material and was asked to leave the premises. There was then an interchange where the offender ended up with the victim's car keys and he refused to get out of the vehicle. The offender eventually got out of the vehicle and everyone walked towards the house. The offender was at this stage yelling at his own family members, his mother and father and brother. After he went inside the house briefly the offender returned to the victim in her car and was now carrying a 30 centimetre knife, of which I have seen a photograph. The victim was scared, she ran behind the car and screamed. She told the offender to put the knife down and the offender threw the victim's keys and walked off towards the house. Those are the facts that give rise to the armed with intent to commit an indictable offence, being intimidation.
Given the weapon involved and the short temporal compass of that offence, notwithstanding the fear engaged in the offender, I characterise the objective seriousness of that matter as being just below the midrange. In doing so I take note of the fact that the threat that was made is part of making out the intention to intimidate the victim and I do not have further regard to that in a R v De Simoni (1981) 147 CLR 383 fashion. When I come to fix an indicative sentence for that matter I will take into account the common law offence of escape that I will come to in due course. I say that because ultimately the offender raised the knife towards the victim and said, "You're lucky that I haven't fucking killed you yet". It was after that the offender took the victim's keys and drove away from the scene.
In due course the police arrived and later that day Ms Tuffy gave a statement to a domestic violence liaison officer in relation to the offences that I have just been describing. On 4 October 2017 police attended the offender's home where he was arrested. He participated in a record of interview where he made denials and he was then bail refused.
The following day the offender was at the Campbelltown Hospital under police guard awaiting medical clearance from a doctor. On all the material before me it was clear that he was fairly unwell in terms of the lack of sleep and the amounts of prohibited drugs that he had been taking. At a time when he was awaiting that medical clearance the offender walked towards a sink to fill up his cup of water and then ran past a police officer who was standing next to his bed and left the room. He ran through the corridor, through an exit door into a public entrance area. Police gave chase and a male member of the public grabbed the offender and with police restrained him. He was then escorted back to the hospital bed and handcuffed. They are the facts in relation to the common law escape police custody.
Given the unsophisticated, spontaneous nature of the offence, the objective seriousness of that matter is in the lowest end of the range, although it is inevitable that there will be some upward pressure on the penalty. I will take into account that the offender has visited upon himself extra-curial punishment. That is because he has now got an escape on his record. That will have ramifications for his classification throughout his time in prison. So that means that the upward pressure for that offence will be lesser than it would be in other circumstances.
The offender called the victim's mobile phone on the evening of 5 October from custody. Across a range of days including 5, 6, 10, 11, 13, 23, 30 October, 1, 5 and 6 November 2017 the offender variously contacted the victim whilst in custody. Among other things he asked the victim to provide a letter to the magistrate so that he could be considered to go to rehab, including on one occasion, "Just a simple letter stating you support me going to a rehab facility and that we've both got drug problems, anything short, nothing bad, nothing good, just to help me, something to help at court". Included in and around his phone calls to the victim were communications with his mother where he asked his mother to assist the victim to draft a letter. Over time the character of the communications with the victim included requests that she withdraw her statement, including tell he the best thing she could do is not to turn up to court, "And saying if you show up to court you'll never see me again, erase from your life". Including communications such as, "Don't show up to court, write a letter, don't ever show up to court darl".
As another example on 1 November 2017 the offender called the victim and during the course of the phone call said, "Fucking write a letter and get out of the courtroom". Across all of the entries some of the entries have the character of somebody pleading for a chance and wishing a chance to go to rehab. Some calls are threatening and some others are designed to encourage the victim to retract or change the nature of her complaint. Those are the facts that are relied on in relation to sequence two which is doing an act with intent to influence a witness to procure an acquittal. Of course these actions and really all of the actions that I have described were committed in contravention of the prohibition in the AVO.
In assessing the objective seriousness of that offending, it was offending that was almost inevitably going to come to attention. The offender had been in custody before, must have known the calls were recorded. I note that the calls came to notice as part of the normal recording of calls between Corrective Services rather than a particular investigation in relation to these matters. That said they represent across a period of weeks upon the offender going straight into custody a campaign designed to improve his chances. The objective seriousness when one considers the various classes of behaviour that can be seen as acts with intent to influence witnesses, which often involve physical actions over and above communications, the objective seriousness of that matter, unsophisticated as it was, is just below the midrange of objective seriousness.
As I have said, the Court has regard to the seriousness with which intermediate courts of appeal and the legislature be used domestic violence matters, particularly in the context here of what must be seen as a serious repeat sequence of offending where the offender has in the past behaved in similar ways to an earlier partner. The seriousness with which these kind of matters is seen can be understood because of the promulgation of s 4A and s 4B of the Crimes (Sentencing Procedure) Act.
The offender's record commenced in 2006 with one isolated matter of destroy or damage property. The balance of his record but for these matters commenced in 2012 and, after a period in custody and in rehabilitation, continued in 2014. Those matters resulted in him being placed on an aggregate sentence for six years which commenced in 2014 with a non-parole period of three years, which meant that his earliest date of release was 26 February 2017. He was released to parole in relation to that matter and it is that parole that he was subject to at the time of these offences.
His record has a number of things to do in relation to the matter, apart from the way in which I have referred to it for purposes of s 21A(2). The record operates to deny him a leniency that would be available to somebody who committed these offences without any relevant criminal record. I do take into account, but for one matter, that up until 2012 he was able to lead a blameless life in terms of the criminal record indices. The aggregation of past matters, and I have seen the fact sheets that relate to some of those offences, as I have said, show a similar pattern of behaving in relation to his former partner.
The offender presented before me a powerful subjective case. His parents are in court today and his mother provided a testimonial and statement of their continued support. She also gave indications of remorse that has been expressed to her by the offender. The offender gave sworn evidence before me. He indicated that he had told the forensic psychologist who made an assessment of him, the truth and he had endeavoured to be truthful in his communications with his mother. He relied on a range of certificates showing that during this and past periods in custody he has undertaken as much rehabilitation in custody as was available to him. It is clear in the period 2013/2014 before he went back into custody that he undertook two continuous periods of six months fulltime residential drug rehabilitation which meant for 12 months he committed himself to that type of work and then he was in a halfway house for about two and a half months before he fell off the wagon and committed the 2014 offences that led partly to the imposition of the aggregate sentence that I have already referred to.
In relation to these offences he gave evidence that to my mind was guileless in terms of his expressions of remorse. He became overcome in a way that I assessed as being genuine when he described the victim of these offences and he effectively losing a wanted pregnancy to a miscarriage. I accept that it was that event that led him to recommencing to undertake prohibited drugs and indeed the victim doing so as well. Relevantly, in circumstances where his past problems have been with amphetamine and cocaine, this episode of offending represented his first involvement with methyl amphetamine, otherwise known as "ice". The central pattern of poor behaviour was that I have described earlier was committed alongside behaviour that is not unknown to these courts in terms of the use of this pernicious drug, that is, increasing levels of agitation, increasing periods of sleeplessness with consequent rising aggravation and contempt for those one normally treats well.
The offender was frank in saying that the sets of coping mechanisms that he has learnt, both in custody and in fulltime drug rehabilitation deserted him, that he did not have the power to implement them and felt himself powerless to the drugs and powerless to the violence that it occasioned in him. I accept that he is truly remorseful for his conduct and that his remorse is the deeper against a backdrop of the victim now being dead for an unrelated reason. He indicated his remorse that he will never be able to make good to her his misbehaviour. He impresses as somebody who now has a level of insight in relation to the triggers that cause him to offend. In proper testing of his motivations and attitudes by the Crown representative, it seemed to me that, although he did not remember in detail all of the incidents, he never moved away from an acceptance of criminal responsibility for them. He accepted that when he was affected by alcohol or drugs that he represented a danger to the victim of these matters. I think that he also accepts, at least by implication, that if he were to fail in the same way again it is possible that other people would be put at risk. I have no doubt about the earnestness of his expression of wanting to be drug free and return in due course to a law abiding life. The question just remains what ability he has to translate his theoretical knowledge into action to be able to stay totally clean. On his evidence, I accept that he now accepts that he really needs to be drug and alcohol free absolutely and those observations fit well with the general appraisals made of him by Ms Gumbert-Jourjon who undertook the psychological assessment of him. That author assesses as his, "in most significant presenting area of criminogenic risk is his substance misuse" and I endorse that observation and accept that finding.
Although the offender at the relevant time met the diagnostic criteria for having a stimulant use disorder that does not operate in the circumstances of this particular case to reduce his moral culpability.
As I have indicated he is entitled to the full 25% utilitarian discount.
I consider he has genuine remorse and he has significant levels of insight into what has led him astray in the past. I am not able to find, as invited by Mr Payten, that he has good prospects of rehabilitation. I have a guarded view about his prospects for rehabilitation simply because of the calamitous way in which he came unstuck on this occasion, notwithstanding having so much knowledge on board. It is clear that he is able to apply himself to be drug free and alcohol free in the community that his prospects of rehabilitation will then become good. Similarly I am unable at this stage to find that he is unlikely to reoffend, although he has certainly taken all the steps available to him in the community and in custody as conceded by the Crown representative to make good his hopes for remaining offence free.
I have had some assistance from the parties in terms of some cases. I have regarded what the Court of Criminal Appeal said in R v Hamid [2006] NSWCCA 302; (2006) A Crim R 179 in terms of principles to be applied in domestic violence cases and what was said in Evans v R [2017] NSWCCA 281 in the CCA in terms of the approach to take to offences of acts to influence a witness. Both provide relevant principles and are potentially analogous in terms of the sentencing range. I have had regard to the cases of R v Burton [2008] NSWCCA 128 and Cross v R [2016] NSWCCA 214 as provided by Mr Payten, both of which provide some assistance as to a range in relation to the act with intent. I accept the submission of the Crown that there are some differences in the factual circumstances described and I have had regard to those differences in relying on those cases to establish some appropriate range.
Although the Crown contended that the length of the sentence that I would impose meant that there was no need for me to find special circumstances I am ultimately persuaded by Mr Payten's submission that this is a case where it is appropriate to find special circumstances. This is an offender that needs a longer period of supervision in the community to return to a law abiding way of life. Additionally, because of an approach I have taken in relation to the backdating issue there will need to be special circumstances because of accumulation.
R v Callaghan [2006] NSWCCA 58 stands for the proposition that it is within a sentencing judge's discretion as to the extent to which a backdate ought to provide either accumulation, concurrency or a measure of both in relation to somebody who is in breach of parole. Generally where it is clear that the breach of parole relates to the commission of the offences for which somebody is to sentenced and a breach of conditional liberty is an aggravating circumstance that will operate in a fashion that would suggest more concurrency than otherwise. Although I am satisfied here that the principal reason for the revocation of this offender's parole was the commission of these offences. it is clear that he had not been compliant with all his reporting conditions and both substance of the facts and his frank evidence to court make it clear that he was using prohibited drugs in breach of another condition of his parole. I have ultimately taken the view that there should be a very modest level of partial accumulation and a vast degree of concurrency between the period of balance of parole to avoid an impression of double counting.
It is trite to stay that the non-parole period should represent the minimum period that can do all the work of punishment in the circumstances of this case. Of course I have regard to all the purposes of sentencing pursuant to s 3A of the Crimes (Sentencing Procedure) Act. I accept Ms Degnan's submission that in the circumstances of this case, although the protection of the particular victim is irrelevant given that she is deceased that the protection of the community, denunciation, retribution, general deterrence and specific deterrence have real weight in the sentencing equation, given of the pattern of one serious set of past matters against one victim and then a repetition of such conduct in relation to a further victim. That said, rehabilitation will always ultimately, if achieved, be in the protection of the community. That is, if people can be rehabilitated so that they stop offending, obviously that makes the community a safer place. Things cut in different directions in this sentencing exercise, but I am ultimately persuaded that I have struck the right balance between all the competing considerations.
Accordingly, what I am about to do is announce the indicative sentences in relation to each matter. I have had regard to the submissions of both parties and have structured the ultimate aggregate sentence to avoid imposing a crushing sentence on a man who is approaching his middle years and perhaps is at a crossroads in terms of his ability to effectively apply himself now to his rehabilitation. As I said, the aggregate sentences contemplate in each instance the application of the 25% discount.
In relation to the common assault there is an indicative sentence of 13 months and two weeks.
In relation to an offence of assault occasioning actual bodily harm which occurred on 18 September 2017 there is an indicative sentence of 18 months. In relation to the offence of armed with intent, taking into account on the Form 1 the escape police custody, there is an indicative sentence of 27 months.
In relation to offence of stalk and intimidate there is an indicative sentence of 15 months.
In relation to an offence of assault occasioning actual bodily harm in that same charge sequence occurring on 2 October 2017 there is an indicative sentence of 15 months. In relation to of act with intent to influence witness to procure acquittal there is an indicative sentence of three years.
In relation to the further offence of assault occasioning actual bodily harm which occurred on 4 October 2017 there is an indicative sentence of 18 months.
Having regard to all of those matters there is an aggregate sentence imposed of seven years to date from 1 January 2018 and to expire on 31 December 2025. Having found special circumstances there is a non-parole period of four and a half years which means that the earliest date of release to parole is 30 June 2022.
In relation to the contravene matter that is before the Court pursuant to s 166 I proceed to sentence on that matter. The offender is sentenced to a fixed term of imprisonment of 12 months to date from 1 January 2018 and that sentence expired on 31 December 2018. It was my intention to make that sentence wholly concurrent with the aggregate sentence for the purposes of totality.
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Amendments
31 May 2019 - Cover page amended to reflect the correct non parole period
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Decision last updated: 31 May 2019