Solicitors:
Director of Public Prosecutions (Cth)
Legal Aid Commission -Offender
File Number(s): 2015/196090
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SENTENCE
HIS HONOUR: In the decision of R v Hamid [2008] NSWCCA 302, Johnson J took some time to refer to statements in other Court of Criminal Appeal decisions, and in the decisions of other courts, in which the seriousness of offences of domestic violence was emphasised.
Many cases of domestic violence share a common feature. That is, the offender displays a sense of entitlement, a sense of ownership and a sense of justification for inflicting injuries, sometimes very serious injuries, on those with whom they are having a domestic relationship.
Often these events occur in the context of a breakdown in the relationship. It should go without saying, but I will say it anyway, that even where relationships break down for reasons which one of the parties finds upsetting, nothing can justify kidnapping someone and then inflicting serious injuries upon them.
The offender, William Betham, had been married to his wife, Melinda Betham, for 17 years. They lived together with their 15 year old son. The relationship had been deteriorating until one day when Ms Betham spoke with her husband about the possibility of her moving out to stay with a girlfriend.
After some more discussion between them, she decided to stay, in an effort to restore the relationship. Over the following week the offender made various comments to Ms Betham in which he accused her of seeing other people. She ignored him.
On 3 July, Ms Betham went and stayed with a friend of hers, Rachael. On the morning of 4 July, Ms Betham contacted the offender and told him that she would be home after she had had breakfast. She got back to the matrimonial home at about 10.45. Ms Betham, the offender and their son then left their home, dropped their son at work and did some shopping. The two of them, Ms Betham and the offender, then went home.
Ms Betham was in the kitchen, preparing dinner, when, apparently without warning, as she was standing at the kitchen bench cutting up some food, the offender came from behind her and grabbed her by her throat with both of his hands. He then turned her around and pushed her down the hallway with his hands still around her throat. Ms Betham tried to push back but the more she did so the tighter the offender squeezed her throat.
She was forced into the master bedroom, with the offender closing the door behind them. At that stage she saw that the offender was holding a large hunting knife. Not surprisingly, she asked him what was going on, to which the offender held the knife to her throat and said, "Where the fuck did you go last night?" Ms Betham responded, but the offender told her not to raise her voice or to scream. He produced some silver duct tape which he put over her mouth but she was still able to mumble. He told her to take her clothes off and when she asked him what he was doing, he said, "Take your clothes off and don't let me ask you again." She then, in compliance with his demands, backed up of course by the fact that he was holding a knife, removed her pants and the offender then cut her shirt off, so that she was completely naked.
He then taped her hands together with the duct tape and, as he did so, he lashed out with the knife, which hit Ms Betham's left hand and forearm. He then tied her hands behind her back with the duct tape.
Ms Betham said, "I can't talk to you like this. Take the tape off", to which the offender responded, "Now you want to talk to me. You didn't want to talk to me all week but you're just scared now 'cause I have the knife." Ms Betham continually asked the offender to put the knife down.
The offender began tapping Ms Betham on the breasts and said, "See these things? I will cut them out", clearly a reference to the breast enlargement that Ms Betham had undergone 12 months beforehand. He then slashed at her with the knife across her right breast, causing a wound which began to bleed. When Ms Betham protested, the offender looked angry that she had raised her voice and then slashed her out to the left side of her chest. Ms Betham looked down and saw that she had two cuts to her left breast, one horizontal across her chest and the other a vertical cut above her nipple.
Not surprisingly, Ms Betham was very scared. She stayed quiet. The offender was talking and crying but Ms Betham was so much in shock she heard little what he was saying. She did hear, however, him say, "There is no going back from this."
It is probably an appropriate time to consider the position that Ms Betham was in. She was tied up, she was gagged, she was naked and she had just sustained significant injuries to her chest. When the offender said, "There is no going back from this", her terror must have been enormous. She was clearly in a position where she could have justifiably thought that she was going to die.
At some stage the tape had come off Ms Betham's mouth and she said to the offender, "You promised you would never hurt me and look at me, look at my chest, look at what you've done." Mr Betham, the offender, apologised to her for going back on his word.
At this stage his mobile phone rang and when he did not answer it the home phone rang. Ms Betham could see that it was her daughter, calling. She looked back at the offender and he hit her on the head with the butt of the knife. She felt dazed and sat on the floor, resting against the bed. Mr Betham, the offender, picked her up and she sat on the side of the bed. She told him to sit down with her, clearly attempting to placate him. He was still talking and crying and said, "I will not be walking out of this room. I'm not sure if I am going to take you with me or not." Again Ms Betham was terrified that the offender might kill them both and so she began to reason with him and spoke to him about their son and how he needed both of his parents. She was begging for her life and trying to convince the offender not to hurt her any further.
This went on for hours, with the offender keeping Ms Betham in the bedroom, naked and bound. He would not let her go to the toilet. He would not let her have a drink of water when she was thirsty. When she told him that she was cold and she could feel the blood dripping down her body and her legs, he told her, "I want you to feel cold so you can feel how cold I'm feeling."
Eventually he put a blanket over her and at one stage he kissed her. She kissed him back, which seemed to calm him down. Ms Betham kept talking to him and tried to reassure him that everything would be all right, but she was still very frightened of what he might do as he had never left possession of the knife.
The offender told Ms Betham to lie on the bed but when she said she did not want to, he moved her legs onto the bed and sat on top of her, with his legs to either side. She asked him, "How are you going to kill me? I don't want to die painfully. I didn't get to say 'goodbye' [to the children] or mum". Ms Betham was very upset and crying as she said these things. The offender's response was, "Well, we both got the same 'goodbye' as we dropped him off at work." Ms Betham kept pleading with the offender, telling him she did not want to die.
It seems that at some stage, after about four hours had elapsed, the offender had something of a change of mind. Ms Betham asked if she could call her friend Rachael. The offender cut the tape off her hands, as she had told him how sore she was. He wrapped her wrists in a bandage, he put a top over her to cover her wounds on her chest and he got her a drink. He eventually dropped the knife, although Ms Betham did not see where he dropped it.
So, just before 5pm Ms Betham rang her friend Rachael. After speaking with her for some minutes, Rachael spoke to the offender, after which he took Ms Betham to the bathroom and helped her to get dressed. He told her, "It's okay, I'm not going to hurt you any more."
Just before 6pm Ms Betham and the offender drove to East Maitland where they collected their son, from work. The offender explained to their son that they needed to take his mother to hospital as, he explained, "I hurt your mum tonight." They then went to the Mater Hospital. They waited for Rachael, who was a nurse in the Mental Health Unit. She looked at Ms Betham's injuries and spoke to the offender. She then ensured that Ms Betham was being treated and called police.
Police did come and took photos of the injuries which the offender had caused to Ms Betham. The offender checked himself into the Mental Health Unit and underwent a mental health assessment. He was then taken to Waratah Police Station, where he was entered into custody and interviewed. He told police, "I just wanted her to tell me the truth. I just wanted to scare her so she'd tell me the truth." This scarcely explains the injuries that he inflicted upon Ms Betham. He told police his son was upset that morning when Ms Betham had not come home for breakfast and he said, "That just killed me".
The offender agreed that he had broken his promise to the victim, as he had told her that he would never hurt her. He admitted that he had a knife and he agreed that he had cut her on her hand and on her chest. He told police that he took her clothes off as he wanted her to feel cold. He told police that when Ms Betham had said she was not ready to die he told her that he was not going to take her life. He told police that when Ms Betham said she was in pain he cut the tape off. He said he never wanted to hurt anyone with the knife and he did not know why he grabbed it, but agreed he kept holding it throughout the afternoon as he felt, "If I let her go, she's gone."
Ms Betham's injuries were such that she required eight stitches to the laceration to her right breast. She had a superficial laceration to the left side of her neck, a laceration down her left chest wall and breast requiring closure with Steri-Strips and a 3 centimetre laceration to her left wrist, requiring three sutures.
The offender has pleaded guilty at the earliest opportunity to two offences. One is an offence of aggravated kidnapping, the circumstance of aggravation being that there was actual bodily harm inflicted. He has also pleaded guilty to an offence of reckless wounding. The maximum penalty for the kidnapping offence is 20 years imprisonment and the maximum penalty for the reckless wounding offence is seven years imprisonment with a standard non-parole period of three years. I will take both the maximum penalties and, where appropriate, the standard non-parole period into account in deciding the appropriate sentence to impose in this case. My reasons for not imposing the standard non-parole period appear in these remarks on sentence.
It is important that I do not breach the rule in R v DiSimoni (1981) 147 CLR 383, in particular as regards the offence of reckless wounding. After discussing this matter with the Crown, it seems that I am to sentence the offender on the basis that he intended to wound Ms Betham but not to cause grievous bodily harm. I note that s 4 of the Crimes Act includes in the definition of "grievous bodily harm", permanent disfigurement. Thus, I cannot sentence the offender on the basis that he intended to scar Ms Betham, his wife and the victim in this matter.
Because of his pleas of guilty to both matters, I will impose sentences which are 25 per cent less than they would otherwise have been. I also note that through his admissions made at the hospital and through taking his wife to the hospital in the first place, he has assisted the authorities. Whilst there are conflicting decisions in the Court of Criminal Appeal now as to whether that sort of assistance requires a specific discount, in order to avoid any possibility of error, I will say that I have discounted the sentence I would otherwise have imposed by 5 per cent to reflect the circumstance in which the offender took his wife to the hospital and the offender's admission to medical staff there as to what he had done.
Somewhat remarkably, the offender, who is now 52 years of age, has no prior criminal history, apart from an irrelevant driving matter. I say "somewhat remarkably" because these were terribly serious and violent offences. For an offender to reach the age Mr Betham was before committing such serious matters is notable and it does suggest his underlying good character.
He was born in Samoa and described his childhood to have been tough. He had mixed heritage, with lighter skin than his classmates and other members of his family. His sister gave evidence today. She and the offender, in a report to a psychologist, described a good upbringing, although Mr Betham was teased at school due to his light skin.
He has been a good worker too. He has worked most of his life and has never been made redundant. There was a period following the breakdown of his first marriage where he did not work after he began abusing alcohol to excess. The marriage to Ms Betham, the victim in this matter, was his second and had been ongoing for nearly 20 years. There is no suggestion that there has been any earlier incident of domestic violence.
It is important to assess the objective gravity of the offender's conduct and, in doing so, it is important to consider the effect of his behaviour on the victim of his crimes.
In an eloquent victim impact statement Ms Betham sets out the consequences for her of the offender's wrong doing. They are clearly both physical and mental. They are entirely foreseeable consequences of behaviour of the kind for which Mr Betham must shortly be sentenced.
One can easily understand how the victim of this matter, Ms Betham, has reacted the way she has. Her feelings of wellbeing, her feelings of safety and her feelings of self-security have all been affected by the frightening experience that she underwent on 4 July. Physically too she is affected. She is scarred and scarred in an area where she is now unable to wear the type of clothing she would have worn earlier.
It is noted that the offender attacked in particular Ms Betham's breasts. That is a common feature of domestic violence offences, attacking intimate parts of the victim's body, the implication sometimes being that there is a wish to damage the person with whom an offender had been in a relationship in a way that makes her less attractive to other people.
Both the Crown and Mr Krisenthal, who appears for the offender, referred to the decision of R v Speechley [2012] NSWCCA 130 which sets out the sort of things which are to be considered in determining the objective gravity of an offender's conduct in a kidnapping case. Ms Betham was detained for a significant period of time and the circumstances of that involved her being tied up and gagged for at least some of it. She was forced to be naked for all of that period too.
The offender disclaims that there was any sexual motive for requiring his wife to be naked and the Crown does not suggest otherwise, but it was unlikely to have been of any comfort to Ms Betham that the offender had no sexual motive, even if she had known that that was the case. It was part of the humiliation which she underwent that she was to spend four hours naked and tied up while the offender, armed with a knife, made threats that she would die.
There have been some suggestions made, certainly the offender told a psychologist, that his wife had been unfaithful to him in the past and this was part of what prompted these offences. I have a number of things to say about that.
Firstly, the offender himself did not give evidence and so all we have is the hearsay statements in reports to others. But, secondly, and this is of course much more important, even if true, unfaithfulness by one spouse in no way justifies or mitigates an attack of this nature. Relationships break down for many reasons and parties to a relationship are entitled to separate without fear that one party to the relationship, usually the man, reacts in a way which is so terribly violent.
There has been some difference in the evidence as to the extent of the offender's depression at the time of these offences. Dr Dayalan received reports from the offender which suggested that there had been longstanding and significant depression. However, the offender's sister said that she had not noticed that the offender suffered with low moods during his life and those who saw the offender soon after he appeared at hospital on 4 July did not consider that he was significantly depressed, certainly as depressed as Dr Dayalan would suggest. On the other hand, there have been threats of self-harm and suicide attempts in the past.
I will accept that the offender was in something of an emotional turmoil at the time of his offending and that one of the consequences for that was that he was depressed. That is not a difficult finding to make, in view of his history and the lack of any suggestion of domestic violence in the past. His mental state has improved, although he will still do his time in custody harder than would otherwise have been the case.
I do not consider that there is any need at all for any reduction in the extent to which general deterrence plays a part in the sentence that I have selected. As was made clear in the decision to which I first made reference, R v Hamid, general deterrence is of prime importance in offences of this kind. People - and again it is usually men - need to learn that they cannot carry on the way they would like to, just because they feel upset at the breakdown of a relationship.
I note that Dr Dayalan spoke about the circumstance that the offender was depressed, affected his ability to think rationally. I will accept that and so I will make a finding that the offender's moral culpability is reduced to a limited degree. Although I do have to say - and this is the reason it is only reduced to a limited degree - that it does not take much rationality to know that it is very wrong to wound your wife. Nor does it take much rationality to know that it is wrong to terrorise her by tying her up, stripping her naked and making her fear that she is about to die.
It does not take much rationality to know that it is wrong to act in such a way that demonstrates an exercise of dominion over another person, degrading her and showing her how he could treat her as he liked.
I accept that the offender is remorseful. Perhaps the best evidence of that is that he, as Mr Krisenthal pointed out, voluntarily ceased his offending behaviour. He seems to have come to his senses at some stage and, he took Ms Betham to hospital, fully aware of the consequences for him of her injuries being revealed. He told doctors there what he had done. I am, therefore, satisfied that he is remorseful and he is prepared to accept responsibility for his conduct. In those circumstances, I also make a finding that he has good prospects of rehabilitation.
I have to be very careful here in one particular respect and that concerns the overlap of these two offences. The criminality covered by the two offences does overlap to a significant degree. For example, the aggravating circumstance for the kidnapping offence involves infliction of actual bodily harm and the gravamen of the reckless wounding offence is, of course, wounding. That explains why there is a very limited degree of accumulation, much less than would otherwise have been the case.
I do have to say that I was assisted by the number of cases which the Crown collected and on which submissions were made by both the Crown and Mr Krisenthal. However, I cannot let this matter pass without noting how the actual sentences imposed do not, to my mind, reflect an offence carrying a maximum penalty of 20 years or, in some of the cases, 14 years.
I want to emphasise it is not for me to sentence according to what appears to be my own idiosyncratic view as to how seriously offences of this type should be treated. I will, of course, endeavour to ensure that the sentence that I have chosen is consistent with the sentences imposed in the various Court of Criminal Appeal decisions, to which reference was earlier made.
There are special circumstances in this case, the fact that it is the offender's first time in custody and his psychiatric condition.
Were it not for the fact that I will now impose an aggregate sentence, I would have imposed the following sentences: For the offence of reckless wounding, a non-parole period of two years and a head sentence of four years. For the detain with advantage offence, a sentence of six years.
I will impose an aggregate sentence, which consists of a non-parole period of four and a half years, with a head sentence of seven years. The non-parole period will thus expire on 4 January 2020, on which date the offender is eligible to be released to parole.
I am required to make an apprehended violence order. That order will extend for 10 years from today's date. The standard orders apply, together with the following additional orders which I specifically say are only to refer to Ms Betham as the person in need of protection and not her son.
So the additional orders are that
(1) the offender must not go within 100 metres of premises where Ms Betham lives or works and,
(2) he is not to approach or contact Ms Betham by any means at all, except through legal representatives.
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Decision last updated: 02 December 2016