R v Curtis [2013] ACTSC 291

(a) a probation condition, that he be subject to the supervision of the Director-General, or her delegate, for two years or such lesser period as the person delegated to supervise him determines as appropriate and that he obey all reasonable directions of the person delegated to supervise him, and

(b) in particular he obey all reasonable directions of the person delegated to supervise him as to counselling or treatment for his mental health and for his abuse of alcohol and other drugs.

1. Violence in our community is a serious matter, because it undermines the security and safety of its members, which they may be expected to enjoy by being part of the community. Domestic violence is particularly serious, as noted in a helpful exploration of the issues by Johnson J in R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at 192-6; [67]- [88].

2. Now appearing before me for sentence is Matthew Curtis, who has pleaded guilty to one charge of assault occasioning actual bodily harm. Assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT) which attracts a maximum penalty of five years' imprisonment.

3. Mr Clark and the victim had known each other for some years and commenced a relationship when she moved in to live with him on about 24 May 2013. On 1 June 2013, Mr Curtis became agitated and aggressive, making accusations at the victim. At about 2:00 pm, she was sitting with the younger sister of Mr Curtis when he entered the room where they were. Mr Curtis' sister left. Mr Curtis then approached the victim and suddenly punched her in the upper right leg with his closed fist. He then punched her upper right arm and her upper left arm about five or six times with both closed fists.

4. The victim yelled at him to stop but he would not do so and so she put both her arms in front of her chest to protect herself. Mr Curtis continued to punch her on the upper arms, torso and stomach, causing bruising on her upper arms and right thigh. Mr Curtis then swore at the victim and punched her in the right wrist which made her fingers tingle and become slightly numb. He continued to swear at her and punch her right wrist two or three times, making it swell. The victim began to cry and Mr Curtis stepped back. The victim complained that her wrist hurt and Mr Curtis went and got some ice which he put on her wrist.

5. Mr Curtis was interviewed by police and told them that the victim said she wanted him to teach her how to "stick up" for herself and that they were just "mucking around", but then he stopped when he thought that what was happening just did not "feel right". He appeared in the Magistrates Court that day and was remanded in custody. On 10 July 2013 he was committed to this Court for trial, but entered a plea of guilty on 11 October 2013. The plea followed representations that were made to the prosecution and a negotiation as to the content of the statement of facts. The prosecution accepted that it was not a late plea of guilty.

6. Mr Curtis was born eighteen years ago in Nowra, the eldest of his parents' two children. He also has four younger half siblings from his mother's subsequent relationship. Mr Curtis identifies as an Aboriginal man. The family relocated to Merimbula when he was eleven, but shortly after came to Canberra where he has since lived. His family life was unremarkable and stable until his father died when Mr Curtis was nine years old. This had a profound effect on him, creating instability in the family. His father was a very strong and important influence on his life. They would watch Rugby together and his father would take him to play the game. His father was strict, however, forcing him to do home schooling when he had been suspended from school.

7. He felt abandoned when his mother re-partnered very shortly after his father's death and began to drink excessively every day. His mother's new partner was violent towards Mr Curtis. There were, I was told, twenty-seven child concern reports made of the family during his minority. There was some lack of clarity about the information I had, however. The Pre-Sentence Report stated that a domestic violence order was made against Mr Curtis in 2011, requiring him to have no contact with his mother, sister and step-father. That is consistent with a picture of a troubled family. On the other hand, the report of the Court Alcohol and Drug Assessment Service (CADAS) states that he "enjoys a good relationship with his mother". It also states that his step-father facilitated contact with his daughter. This may be because of the lack of clarity in the understanding of what I was told, but it seems that his mother may have re-partnered twice.

8. Mr Curtis went to school in the public system in New South Wales and then to Lanyon High School, where his behavioural problems led to his eventual expulsion. He completed Year 10, however, at Lake Tuggeranong College. In the Alexander Maconochie Centre (the AMC), he has completed units of relevant courses and thereby using his time productively. He was initially unemployed on leaving school but obtained an apprenticeship, of which he completed twelve months. He then obtained some employment as a caravan detailer and a trolley collector "on and off" for about four years.

9. Mr Curtis entered into a relationship with a young woman in 2010, with whom he had a daughter, now aged twenty months. Mr Curtis is subject of a domestic violence order prohibiting contact with either of them except, in respect of his daughter, when supervised by a third party. That contact ceased when his step-father, who facilitated it, moved interstate, and, of course, when he was remanded in custody. He did say that he recognises that his continued use of alcohol and other drugs will compromise his access rights to his daughter, as he told the author of the CADAS Report that, "I think my daughter deserves better than what I had growing up". That is, of course, quite true, and if it is a strong motivation for him to address these issues he has a good chance of avoiding future criminal behaviour.

10. Mr Curtis is currently in a new relationship. His partner was present in court during the sentencing proceedings. She has visited him nearly every day in the AMC. This hopefully will also provide not only some stability for Mr Curtis on his release from custody but some motivation to stay free from crime.

11. Mr Curtis started drinking alcohol when he was twelve, presumably in part because of his mother's own use. By 2012, he was drinking eight bottles of beer a day, a massive amount of alcohol. He told the author of the CADAS report that he now only drinks two or three bottles of beer on special occasions, twice a year. He told the author of the Pre-Sentence Report that, by the time he was fifteen he was drinking a cask of wine a day, but that he now drinks a six-pack of beer every Friday night. Again, there is some uncertainty in the material that I have.

12. I am prepared to accept that his alcohol use is associated with the circumstances of his early life after his father died. See Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022 at 1032; [43]- [44]. I am also prepared to accept that he has moderated his consumption, though it does not appear yet to be at a manageable level. For example, he drank twelve bottles of beer on the day of the offence for which I am sentencing him.

13. Mr Curtis began using cannabis when he was thirteen, a young age. He was using about seven grams a day up until he was seventeen. He says that he reduced his use about two months before he was remanded in custody, though it was shown still to be present in his system when he was first drug tested at the AMC. Further testing showed no illicit drugs.

14. Mr Curtis has also used ice. He first used it in 2012 when his then partner and their daughter left him. His experience was not positive, however, but he persevered and was using it once or twice a week until he resumed contact with his daughter. He was still using in April 2013.

15. [Redacted for legal reasons] This is Mr Curtis' first offence as an adult. [Redacted for legal reasons]

17. He has, however, some history of mental issues. His first contact with Mental Health Services was when he was twelve, but it is unclear about any diagnosis. It may have been for attention deficit hyperactivity disorder, or a conduct disorder, or both.

18. More recently he has been a patient at the Winnunga Nimmityjah Aboriginal Health Service, where he has consulted the psychologist on at least nine occasions and the psychiatrist twice. The presenting symptoms seem to be drug and alcohol problems and a major depressive episode.

19. He has also had contact with ACT Health, and, there, a psychiatrist ordered blood tests, which showed some abnormality, but that has not been followed up, largely because Mr Curtis has not done so. I could not tell whether this was because he was in custody. He was assessed as requiring anti-psychotic medication when in Bimberi. While in the AMC, he is under the care of a Corrective Services health doctor and he has been prescribed Seroquel, also an anti-psychotic drug.

20. Although now, at law, an adult, Mr Curtis is still a young man. [Redacted for legal reasons] My attention was drawn to the principles set out by Batt JA with whom Phillips CJ and Charles JA agreed in R v Mills [1998] 4 VR 235. Those principles require that for youthful offenders rehabilitation is usually more important than general deterrence, especially when retributive punishment may in fact lead to further offending. A youthful offender should not be sent to an adult prison if it can be avoided.

21. These principles have been further considered by subsequent Courts of Appeal in Victoria. In Director of Public Prosecutions v Mourkakos [2007] VSCA 312, Dodds-Streeton JA, with whom Maxwell P and Nettle JA agreed, pointed out that the principles in R v Mills were general principles, and other considerations were also important. In R v Mills, it was pointed out, the appellant was a youthful first offender. In appropriate cases, her Honour pointed out, other considerations such as general deterrence may be required to play a part.

22. In Azzopardi v The Queen (2011) 219 A Crim R 369, the Court reaffirmed the general principles in R v Mills, noting in particular the relevance of immaturity in an assessment of how to evaluate an offence. The Court acknowledged that the degree of criminality may require the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent. It continued (at 384; [44]): "But only in the circumstances of the gravest criminal offending where there was no realistic prospect of rehabilitation could the mitigatory consideration of youth be viewed as all but extinguished".

23. It seems to me that this is not a case where the mitigatory considerations of youth, and thus the particular importance of rehabilitation, are all but extinguished. I also accept that, in part, because of the immaturity of a youthful offender, previous offences dealt with in the Childrens Court may not have the same effect as those in an adult court. As Lander J said in Duca v Police [1999] SASC 40; (1999) 73 SASR 15 at 20:

There is a significant difference between offences committed as a juvenile and those committed as an adult. Simply because the appellant had committed offences as a juvenile in my opinion does not necessarily mean he is beyond rehabilitation.

24. This approach has been accepted by the Court of Appeal in the Australian Capital Territory in EG v The Queen [2012] ACTCA 17. Accordingly, I consider that rehabilitation in this case is a significant matter.

25. In support of that, I note the motivators that I have identified: the need for a proper relationship with his daughter and the current relationship with a woman who is clearly showing him commitment. In addition, the more than six months that Mr Curtis has spent in the AMC has been significant. Mr Curtis has forcefully had impressed on him that adult imprisonment is significantly less manageable than juvenile detention. This may be the answer to the cautious scepticism not unreasonably expressed in the Pre-Sentence Report and the CADAS Report, though to a lesser degree in the latter, and to a certain extent echoed in the letter from Winnunga Nimmityjah that I had tendered before me.

26. In relation to the main criminogenic risk factors, Mr Curtis' alcohol and other drug use, he expresses reluctance to undertake residential rehabilitation. The reason for that is not quite clear. There are, of course, alternatives, and the possibility of the Arcadia House day program referred to in the CADAS Report would be a good option. As to his mental health, the other criminogenic risk factor, he has shown by his attendance at Winnunga Nimmityjah a commitment and willingness to address that. He has also made a very helpful bond with a counsellor from Relationships Australia and that should be continued. I further note that Mr Curtis has completed the First Steps Alcohol and Other Drugs Relapse Prevention Program and the First Steps to Anger Management Program while in the AMC.

27. The Pre-Sentence Report assessed Mr Curtis as at a high risk of re-offending, primarily due to his mental health and substance abuse issues. These would be addressed by the options referred to above. In addition, I was told that Mr Curtis had the distinct possibility of employment as a trolley collector and, in due course, as a labourer for a bricklayer. Employment also will reduce his risk of re-offending. He probably requires some grief counselling, but that may be being provided through the counsellor at Relationships Australia.

28. The offence was a serious one. The maximum penalty shows that it is not one of the more serious offences, but it remains one where ordinarily a sentence of imprisonment may well be imposed: see R v Oliver (1982) 7 A Crim R 174 at 176.

29. It was the more serious because it was committed in the context of a relationship. It could be described as a family violence offence. Of such offences, Higgins CJ said, in R v Bell [2005] ACTSC 123 at [30], "[i]t is a pernicious and evil phenomenon". His Honour continued (at [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.

30. I have also set out some of the relevant principles in R v Ivanisevic (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 1 July 2010). I rely on them here.

31. In this case, there were matters that elevated the seriousness of the particular offence. It involved a relatively sustained beating, and continued after the victim had told him to stop and that it was hurting her, and that she did not try to fight him back. There was no provocation for the beating. Mr Curtis told the police and repeated to the author of the Pre-Sentence Report that it was some kind of "play fighting" that the victim had sought, but that can no longer be sustained. Nevertheless, the injuries suffered by the victim were bruising and nothing more serious. I do not have a Victim Impact Statement. I accept, however, that the attack must have been very frightening and, of course, very painful.

32. A significant matter is that, at the time of the offence, Mr Curtis was on conditional liberty. This is, of course, a circumstance of aggravation, though it is not strictly relevant to the objective seriousness of the offence, but rather to the culpability of Mr Curtis, as explained in Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312; (2009) 198 A Crim R 565 at 574; [30]. It is also important to avoid any risk of double punishment.

33. I take into account the purposes of punishment as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT).

34. Mr Curtis has pleaded guilty, which is very relevant, and I accept that. As the Crown very properly conceded, it was a relatively significant plea because of the circumstances under which it was made.

35. I take into account the subjective circumstances of Mr Curtis and I accept these as above. I also take into account the objective seriousness of the offence as I have also described it above and the circumstances in which it was committed.

36. I accept that the youth of Mr Curtis and his rehabilitation prospects are very relevant to the sentencing exercise. I note that the prosecution did not submit that a suspension of any sentence of imprisonment would be out of range but that there should, it was submitted, in the case of that course, to be included a relatively lengthy good behaviour order because of the rehabilitation needs. In that context, I note the influence of excessive alcohol on the offending. I have regard to the approach to that set out in R v Meyboom [2001] FCA 861 at [52]- [56]; while not, in this case, mitigating of the offending, it is very relevant to rehabilitation, which in the circumstances is an important factor.

1. I convict you of assault occasioning actual bodily harm on 1 June 2013.

2. I sentence you to twelve months' imprisonment to commence on 5 June 2013. Had you not pleaded guilty I would have sentenced you to fifteen months' imprisonment.

4. I require you to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a) a probation condition, that you be subject to the supervision of the Director-General, or her delegate, for two years or such lesser period as the person delegated to supervise you determines as appropriate and that you obey all reasonable directions of the person delegated to supervise you, and

(b) in particular you obey all reasonable directions of the person delegated to supervise you as to counselling or treatment for your mental health and for your abuse of alcohol and other drugs.

38. [His Honour then spoke directly to Mr Curtis]

39. Mr Curtis that is the formal order. It is now my obligation to explain that order to you.

40. What I have said is that this offence, in all the circumstances, is worthy of twelve months' imprisonment. You have already served about half of that, and I am prepared to release you into the community now, but the balance of that sentence will be hanging over you for a period of two years. In that period of two years, you are under a good behaviour order, which means that if you commit any further offences which are punishable by imprisonment, you breach that order, and you can be brought back before me and I can re-sentence you, including sending you back to gaol.

41. I have made as conditions of that order a probation condition, that for two years, or a lesser period if you are going well, you are under supervision. That means you have to attend on a probation officer at Corrective Services, and that you also have to obey any reasonable directions that are given by that officer. If you breach those conditions by failing to comply with any of those directions, again, you can be brought back before me and I can re-sentence you, including sending you to gaol. Again, those directions are meant in part to control you or to assist you to control your own criminal behaviour, but it can be useful because those people know of opportunities that can assist you if things go wrong.

42. Life is never easy. There are always problems that occur, and those include relationship problems and other things. If there are difficulties, then your probation officer may be someone who can suggest some options that are available to you to deal with those so that you can address them properly, rather than taking them out on the community by continuing to commit offences.

43. In particular I think you need to address your mental health issues. You are doing that, or were doing that, at Winnunga, and I think you need to continue your assistance there and also with Mr Thomas, with whom you seem to have had a good relationship and he hopefully is making some progress with you and can help you work out those issues, but also your alcohol and drug issues.

44. It is not necessary, I suppose, for you never to drink again, although many people can live very happily in life without drinking at all, and if that is what gets you into trouble then you ought to think about that seriously. There are plenty of ways that you can enjoy yourself without drinking to excess and getting yourself into trouble, beating people up, robbing people and so on.

45. [Redacted for legal reasons]. You are starting in the adult court very early. You have had a taste of the AMC. I am told you do not like that. That is a place you will go back to if you continue the sort of behaviour that you have done in the past.

46. I have tried to create a sentence that will give you the assistance and the opportunities that you need to stay out of trouble, but you need to work on it, and then ultimately, at the end of the day, it is you who has to do that. You are responsible for yourself and you are responsible for what you do, and that includes committing offences. I hope that you will take this opportunity with both hands. You have got a partner who is very committed to you. Hopefully she can assist you to address the issues that you need to address and be a support to you to ensure that you do not continue to commit offences, which inevitably will lead you back to prison.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: Director of Public Prosecution ACT