R v Dane

Facts

1. For 18 years Dane was in a relationship with Ms Swinnerton. They have three children aged 10, 14 and 15. They separated. At the time of the offence they had been separated for a few years. There were ongoing disputes that preceded the separation and were continuing at the time of the offence. The material before me indicates that a considerable degree of resentment was felt by the offender towards his former wife. It is not for me in any way to blame her for that resentment or to engage in any way in arbitrating the material that was before other courts. It is enough that I recognise, as is recognised in the reports before me, that the breakup of the relationship had a considerable impact upon the offender. It needs to be stated clearly that there is nothing that she did which caused or precipitated the violence that was inflicted upon her on 5 December.
2. The offender had since his separation formed a domestic relationship with another woman, Ms Haydon. He appears to have had some problems in that relationship which, given his mental state at the time, is entirely understandable.
3. On the night of 5 December 2019 they met and were drinking together at her home in Blackbutt.
4. They were discussing the breakdown of their relationship. At some stage the offender became angry. He went to leave but he says she suggested he sleep there to avoid drinking and driving. Ms Haydon put her children to bed and told him he should go to sleep. The offender took hold of her arm. She pulled away and struck him in the face telling him to "Fuck off". The offender then punched her in the face. He used a closed fist. It connected with the bridge of her nose causing her to fall back onto the lounge and onto the floor. Her nose was fractured and she had bruising to both her eyes. A photograph of the injury is before me.
5. She tried to get the offender out of her house. She threw his car keys at him and told him to get out. He blamed her, but nevertheless left. The offender then drove a relatively short distance to Albion Park where his former wife and children were living. He arrived at their home about 10.30pm. By this time his former wife was in bed, drifting off to sleep. She heard a bang at the front door. The bang woke one of the children and one of their sons came out of his bedroom. She then walked to the front door. She and the offender were yelling from one side of the door to the other. The offender then pulled the screen door off the frame, smashed the stained glass panel and was banged on the wooden door. He then walked to the victim's vehicle, parked in the driveway, and began hitting it, smashing the windscreen and breaking the rear-view mirrors.
6. At that stage it appears the offender had calmed down a little. It is not clear how but the front door had been left open. When he noticed this he put his hand on the edge of the door. As he did so it became jammed against the doorframe. He then entered the house, came up to his wife and punched her multiple times in the head. Those assaults caused bruising to her face, head and bleeding to her lip. Her hair was pulled. She repeatedly asked him, "Please, stop". She tried to cover her face. He said he was going to "destroy her" and make sure she "got nothing". His daughter came out of her bedroom, she and one of his sons were screaming at the offender. He left soon after.
7. About an hour later he arrived at the home of his ex-wife's brother, in Rosemeadow near Campbelltown. He was seen by police pulling up at the address. He exited the vehicle and was seen to be holding a 6 inch alloy tyre wrench. He put it in his pocket and walked towards the house occupied by his ex-wife's brother.
8. When spoken to by police he said, "That's my ex-wife's brother's house who has previously threatened me. I was gonna confront him". He explained the tyre lever was for self-defence. "I was going from there to home. I was detouring here to confront him because I knew I'm in enough shit as it is to confront him". When asked the last time that the ex-wife's brother had threatened him he said, "Months". He said, "I know I'm in the wrong, I'm not denying that".

Objective seriousness

1. Ms Haydon received one blow full in the face. It caused her injury. There is no Victim Impact Statement her before me, but the absence of a Victim Impact Statement does not mitigate. She did nothing to deserve that blow and she suffered the consequences.
2. Ms Swinnerton read her Victim Impact Statement to the Court today. Nothing she did precipitated the events. She told me how she and her children were disturbed by what occurred. She was struck repeatedly to the head and suffered physical injuries. Those physical injuries have healed, although she suffered continuing pain. As is more commonly the case, than many in the community understand, the attack left lingering psychological scars which may never heal.
3. Although in part the Victim Impact Statement strayed beyond what is strictly set out and required by s 28 of the Crimes (Sentencing Procedure) Act, I will focus only on material that relates directly to the offences committed with her as a victim. She explained how she coped with the physical harm that was inflicted upon her, and the results of that physical harm. She then told me how tough it was dealing with the continuing psychological consequences of what occurred to her. She told me that this event was something that she would never forget nor get over, and how she has had to learn to live with the pain of it. She spoke of the impact of returning to her home that had been damaged and the subsequent impact on her of her fear and struggles that directly resulted from the crime that was committed against her.
4. It is accepted that there were disputes and legal proceedings between her and her husband prior to this serious offence. It is hard to distinguish the impact of the offence from the impact of those prior matters, but my job is to focus upon the consequences of the crimes committed against her on December 2019 and it is clear that the event did have serious consequences to her personally.
5. While each individual offence needs to be carefully delineated one from the other, the Court also takes into account the collective impact of those crimes upon her and the residual impact on the family.
6. Despite what is said out in her Victim Impact Statement and the crimes committed against her, while the offender has been on bail, she and he have done what they can to act in the best interests of their children. To that end she has not cut her husband off from his children, and there is evidence before me of the efforts being made by both parents to co-parent even though, as she says, personally she fears both for herself and that her children might be emotionally hurt if the offender does not keep to his promise put to me in the various documents that this was a one-off that will not be repeated.
7. She is entitled to fear that this matter will be repeated, and one of the matters raised in submissions by the Crown is how guarded the Court should be against the risk of repetition of this offence.
8. Mr Higgins, who appears for the offender, in careful submissions urged that I take considerable care when I come to assess the objective seriousness of each offence and the totality of each offending because there is always a danger if reference is made to the checklist provided by 21A(2) of the Crimes Act a court will, having taken matters into account in assessing objective seriousness of an offence, then add in, and effectively double count, matters in aggravation listed in s 21A(2). I have attempted not to do so, but to focus upon what was done, and the obvious impact of what was done to the victims.

Domestic Violence offences

1. It needs to be restated that it is never acceptable for anyone to commit offences of violence against a former partner. In The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 (2016) 91 ALJR 131 at [21] the High Court spoke of a societal shift in attitudes toward domestic violence, and the change in current sentencing practices. As someone who started his career as a lawyer prosecuting domestic violence matters, I am not so sure that there has been a significant a societal shift; domestic violence was always treated seriously, although penalties have increased. The Court, at [28], said, "The abuse of relationship of trust which such an offence necessarily entails must be deterred". The Courts recognise there are special dynamics after a relationship has broken down and that such actions mean, as here, that the victim is personally targeted and that the offence can be part of a larger picture of physical and mental violence, power and control: R v Burton [2008] NSWCCA 128 at [97].
2. The material before me shows both an acceptance by the offender that he went too far, and his attempts to justify or excuse what he did. When speaking with his psychiatrist and psychologist he attempted to paint himself as, somehow, a victim or someone who has been wronged. A continued belief by an offender that they have themselves been wronged carries with it the continued risk that the offence will be repeated.
3. The offences occurred in a residential community, they occurred in or outside each victims home. So far as his wife is concerned there was an additional crime of damage to her car. There was not just an entry into her home; there was the assault in her home in the presence of at least one of their children.
4. Proper recognition must be given to the real harm these crimes do; and to the real harm that the children of victims suffer and that the community suffers. Denunciation is required in any sentencing for such matters. Recognition of the fact that no matter what promises are made and what treatment is engaged in, a victim may never truly feel safe and that they might again be personally targeted has to be recognised.
5. In many cases, and this is one, an offender has to be removed from the community. But, this in itself creates a dilemma, particularly as is the case here, where the offender has been treated in the community and is responding well to that treatment. Any term in custody will disrupt the treatment he is presently receiving.
6. Community protection supported by growing community perceptions that demand men who assault women in their homes be punished severely, requires the Courts apply the traditional method of gaoling that person and removing him from the community. Yet all the empirical evidence is that as a deterrent to violent behaviour gaols have, and will continue to fail. Gaols break prosocial bonds and encourage links with criminals. Gaol is an intrinsically violent environment. Rather than discouraging violent crime, gaols can sometimes have a crime-producing effect, they are an ineffective way of addressing the underlying causes of crime.
7. That said, it would be wrong, as the High Court noted in Munda v Western Australia [2013] HCA 38, to somehow accept that a victim of violence in a domestic relationship is somehow less in need or deserving of the protection and vindication the criminal law provides. The criminal law is not limited to questions of general deterrence. Courts have to sentence appropriately to the objective seriousness of a crime, and have an obligation to vindicate the dignity of each victim and to express the community's disapproval.
8. The Court also has to consider community protection and in this regard it can and does here, require the removal of the offender for a period, but also a recognition that he must be returned to the community. If he can be returned to a prosocial environment, where he is supported by prosocial family and friends, where he can re-engage in treatment and where he can demonstrate that the lessons learned from treatment to date can be put to effect, that should also be encouraged. Everyone benefits from the proper rehabilitation of someone who has offended against individuals and the community.
9. I have had the benefit of the reports of Dr Wijesinghe and Mr Pisani. Although not accompanied by expert evidence certificates, and although not prepared by a professional forensic psychiatrist or forensic psychologist, as treating psychologists they enable me to have a picture of the offender and his mental state as it developed both before and after the offence. I also have had regard to references from prosocial relatives and friends.
10. The material before me, which is set out in full in the reports and carefully enunciated by Mr Higgins, indicates that for a period before the commission of this offence the offender suffered depression, characterises major depression and anxiety. There are also indications supporting a differential diagnosis of Post-Traumatic Stress Disorder. It is also clear that he was unmedicated and not caring for himself. There is evidence of a number of suicide attempts, some quite significant. He was abusing pharmaceuticals. The reports refer to his considerable emotional dysregulation. Mr Higgins summarises it succinctly by saying he was "unwell at the time".

Mental illness

1. Dane's mental state at the time of the commission of the offence is relevant. The causes of that mental state relate to a number of factors, but they do include the breakdown of his relationships. To his credit, he was trying to deal with those problems by engaging with a psychiatrist and a psychologist prior to the commission of the offences and he has continued treatment with them.
2. It is submitted that there is a causal connection between his mental state and the commission of these offences requiring consideration being given to an acknowledgment that his moral culpability is not the same as a person who did not have such a condition. While I am prepared to accept that submission it can so far as the offending itself is concerned, have limited value because it is also clear that he was well aware of what he was doing and the consequences of what he was doing.
3. From his comments to police at the ex-wife's brother's house, it seems absolutely clear that having committed one offence, his resentments were such, and his lack of concern both for himself and others was such, that he proceeded to commit the offences against his former wife and then her brother knowing, inevitably, the consequences that would flow to him from a breach of the criminal law.
4. It is possible that he will receive some treatment in custody, but he will have to join a queue. It is to his credit, as the certificates before me indicate, that he has engaged in treatment designed to, apparently with some success, to deal with his anxiety and anger management problems.
5. If on release he continues with that treatment, continues with his psychiatrist and psychologist, and continues with his medication, his risk of reoffending would be low. Should, however, he not continue treatment and not continue to take his medication, then his risk of offending remains something that will be, unfortunately, a lifelong concern, particularly to his former wife.
6. I am indebted to Mr Higgins and Ms McCosker for the Director of Public Prosecutions for their careful submissions. I trust these brief remarks do justice to them.
7. There will be an aggregate sentence here and there will be a significant finding of special circumstances. There must be accumulation of the individual sentences to reflect the fact that there were three victims of this spree of offending. The finding of special circumstances is significant, because community protection can only be met to a limited degree by removal of this offender from the community. The longer he is supervised, mentored and assisted while in the community the safer everyone will be.
8. In that regard, while this is not an R v Edwards (1996) 90 A Crim R 510, type exceptional case, the sooner he is able to have contact of some form with his children the better his chances of rehabilitation will be; and the chances of repairing the damage he has done to them will be. Current COVID-19 restrictions will however mean face to face visits will be impossible at least for the near future. The minimum term that must be served, however, must properly reflect the seriousness of the crimes that he committed.
9. No sentencing judgment can address every aspect of all the purposes of sentencing and every aspect set out in the statute or the submissions of counsel. I have sought to encompass and summarise them in coming to an ultimate synthesis of what the appropriate sentence will be.

Orders

1. In relation to each of the five matters you are convicted.
2. For the offence of Assault occasioning actual bodily harm (DV) - Kylie Swinnerton (2019/00384709-005) - I indicate a sentence of 1 year 6 months.
3. For the offence of Assault occasioning actual bodily harm (DV) Kim Heydon (2019/00385111-001) - I indicate a sentence of 1 year 1 month.
4. For the offence of Aggravated enter dwelling knowing people there (2019/00384709-006) - I indicate a sentence of 2 years 3 months.
5. For the offence of Destroy or damage property (DV) (2019/00384709-002) - I indicate a sentence of 9 months.
6. For the offence of Armed with intent to commit indictable offence (2019/00384709-003) - I indicate a sentence of 1 year 1 month.
7. Having regard to the principles of totality and my finding of special circumstances, there will be an aggregate sentence in this matter of three years and three months. There will be a non-parole period of one year and ten months to date from today, 27 November. You will be eligible for consideration for release to parole on 26 September 2020. There will be a parole period of one year and five months from that date. Total sentence will expire on 26 February 2024.

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: 16 February 2021