R v Bell [2005] ACTSC 123

Supreme Court of the ACT|2005-12-01|Before: Higgins CJ

1. The offender be sentenced to two and half years imprisonment and be eligible for parole at the expiration of 18 months. Having regard to time spent in custody that sentence is to commence on 23 September 2004.

1. Craig John Bell has pleaded guilty to one count alleging that on 17 September 2004 he assaulted Kerrill Gail Hann occasioning to her actual bodily harm.

2. There is a factual dispute concerning the circumstances surrounding the assault. The offender does not deny the essential elements of it.

3. Ms Hann gave evidence in the proceedings. She is the mother of two children, a boy aged 12 and a girl aged 10. The offender is their father. The girl has some disabilities and attends a special school. The complainant and the offender lived together in a defacto relationship up until 1997 and, since then have maintained occasional contact.

4. Ms Hann deposed that, on 17 September 2004, she was "dragged out of bed by the hair of my head". She had no recollection of events preceding that occurrence for about one month. However, she expressly identified the offender as the person performing that act.

5. She then hit the floor, she said, "... turned around and I looked up and as I did I was hit twice in the face and he dragged me out by the hair of the head and I was just about on my feet and he hit me again in the face and then he let go; he put his hands around my neck and was saying filthy things and putting his thumbs into my throat with - like this and proceeded to push with his thumbs into my throat ... in the windpipe and then he proceeded with pressure and he cut my air supply off. I couldn't breathe."

6. The offender was saying something to the effect of "Slut, I'll kill you, I'll kill you."

7. She pleaded with the offender to let go, passed out and woke next morning on the bedroom floor.

8. Thereafter she walked around outside her house. She was in considerable pain. The offender was still about, following and verbally abusing her. Thereafter, to cut the account to its essentials, she reported the assault to police and attended at hospital for treatment of her injuries. Photographs of the complainant, taken on 17, 20 and 22 September 2004, corroborate her account of the nature and extent of her injuries.

9. In cross-examination, the complainant agreed that, for three months prior to the assault, the offender had undergone rehabilitation at Oolong House. She confirmed that she had no recollection of alleged contact between herself, the offender and others in the hours leading up to the assault.

10. The offender has an appalling record, including 28 prior assault matters going back to 1981. Some are said to have been a response to racial abuse. All or most follow alcohol abuse. The only ameliorating further feature, if it be one, is that none of those offences related to this complainant.

11. Other police statements were tendered. A neighbour heard the sounds of verbal argument emanating from the complainant's home on the early morning of 17 September 2004. It was not the first time he had heard similar noises, although it was not established that previous occasions had involved this offender.

12. After police enquiries the offender was arrested on 23 September 2004. He has remained in custody since then.

13. A Pre-sentence Report was tendered. The offender acknowledged that he had been the subject of a number of personal protection orders but claimed that he had, out of concern for his children, raised with ACT Family Services complaints about the complainant's alcohol abuse.

14. The offender acknowledged his own history of alcohol abuse but, following his attendance at Oolong House, it is reported that -

Mr Bell doesn't currently see himself as needing drug and alcohol intervention.

15. His demeanour and cooperation whilst in remand have been entirely satisfactory. Indeed, absent alcohol abuse, he presents as quiet, polite and cooperative.

16. As to the assault, he told Mr O'Brien of Corrective Services (Probation and Parole) -

... he had contacted his ex partner because he wanted to buy some clothing for his son. He said that he agreed to go out with her that evening and they had both consumed alcohol at a number of establishments. He said that when he assaulted the victim "I just lost it and blacked out". He said when he saw her with bruises and a cut lip he felt horrified by what he had done and that he cleaned her up and put her to bed. He said that violence towards women is not in his makeup and he has no excuses for what he has done, but added that the offence occurred in the context of a drunken blackout and was fuelled by resentment for the way his ex partner had treated him and his children over the years.

17. That account was supplemented by the offender in oral evidence.

18. The offender said that when he met the complainant that evening at the City Club, "she seemed part drunk". She engaged in a verbal altercation with another lady. He told the complainant he had "had enough" and walked out, "to get away from her". However, the complainant persisted in following him. The offender caught a taxi to Braddon; she jumped into the rear of it. He decided to return to Civic; she followed yelling and swearing. He went to the South Pacific Club and drank a beer. While drinking, the complainant grabbed the beer from him and stuck him in the eye with the glass. The bouncer came and removed her. He had more to drink and then decided to leave. He saw her outside and again attempted to lose her but heard her yelling and swearing behind him. He walked to P J O'Reilly's Irish Pub where some of his family members were. The complainant came in behind him whilst he was speaking to them; he attempted to ignore her. She got into an altercation with an unrelated patron and a bouncer forcibly removed her from P J O'Reilly's. The complainant wandered up and down outside banging on the windows.

19. After the pub closed, Mr Bell and his cousins walked off to another licensed establishment with the complainant still in pursuit, yelling abuse and kicking the offender.

20. He continued drinking at that night club. On leaving, he noticed the complainant being spoken to by two police officers; he agreed to take her home and they caught a taxi. On the way, the complainant continued to assault him. The offender acknowledged that by this time he was "pretty drunk". They eventually arrived at the complainant's home. There they sat outside smoking marijuana and drinking bourbon and coke.

21. They got into an argument over the children. The complainant struck the offender. Instead of withdrawing, as he clearly could have, he grabbed her by the throat and, it is apparent, severely beat the complainant about the head and shoulders with his fists. The complainant was rendered insensible in the attack which ensued. It was clearly a physical attack that was without any justification or excuse. The offender does not claim that he was simply endeavouring to restrain the complainant or that he was in fear of any significant injury.

22. He claims then to have repented of his actions, assisted the complainant, cleaned her wounds and put her to bed. He says that he then left.

23. It was suggested to the offender that he had concocted the story of the events preceding the assault. He denied that but conceded that his response was "vicious" and "horrible". That is a fair concession.

24. The offender's version of the events leading up to him and the complainant leaving Civic were substantially corroborated by Ms Michelle Phillips-Freeman and by Sandra Lee Austin. They are cousins of the offender.

25. Despite that, I did not get the impression that they were fabricating their account of the complainant's behaviour in the hours leading up to the assault.

26. I accept, therefore, that the assault occurred much as the offender deposes it did. In stating that, I do not believe the complainant to be fabricating her account. She was quite savagely beaten, she had had a lot to drink and it is unsurprising that some of the details became confused in her mind. Her recollection of being pulled out of bed could well have been a memory of being put into bed now conflated with part of the savage beating which the offender inflicted upon her.

27. Nevertheless, the essential truth is that the offender has perpetrated, with no lawful justification or excuse a savage beating upon the mother of his children. The preceding conduct, the alcohol abuse engaged in by both parties may serve to explain why this beating occurred. It does not excuse it.

28. I am obliged, in the circumstances, to accept that this offence was not the aftermath of some home invasion, nor that the complainant played any part in facilitating the circumstances in which the confrontation occurred.

29. However, that said, it was, as the offender concedes, a vicious attack. There was no suggestion that he feared the complainant physically.

30. It is true to say that most assaults on women are at the hands of their partners or ex-partners. It is a pernicious and evil phenomenon not only because of the immediate trauma to the victim. Its evil influence spreads to children as well. It is no coincidence that, in my experience, young offenders, more often than not, present with a family history of domestic violence. It used to be regarded as a family matter, to be kept private. Victims would be made to feel humiliated, and ashamed to complain; in truth it is entirely the criminal conduct of the perpetrator which is at fault. It is entirely in the public interest that such conduct be exposed and deterred.

31. I appreciate that personality disorders may often underlie the criminal behaviour of men who beat women. Alcohol or other substance abuse may sometimes be a triggering factor. Nevertheless, they must take responsibility for their actions and be seen to have done so. The offence is often hidden, so general deterrence is a factor that is quite prominent. So also is specific deterrence. No offender engaging in this kind of behaviour, nor their victims, should feel that it is to be treated lightly. Rather, it must be made the subject of condign punishment. That is not to say, of course, that any mitigatory factors or prospects for rehabilitation will be disregarded.

32. In this case having regard to the severity of the attack the offender's appalling record of violence, his history of alcohol abuse, no other sentence than that of full-time custody, is called for. No other sentence will say to men who abuse women that such conduct is abhorrent and will result in severe punishment whatever the status or record of the offender. Nevertheless, I acknowledge that there are some prospects for the rehabilitation of this offender.

33. Craig John Bell Stand: I sentence you to two and a half years imprisonment. You are to be eligible for parole at the expiration of 18 months. Having regard to time spent in custody that sentence is to commence on 23 September 2004.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Crown: Office of the Director of Public Prosecutions

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