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[2015] ACTSC 54
Supreme Court of the ACT
2015-02-16
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - offender to be sentenced for forcible confinement of partner and associated common assaults - offences breached good behaviour order made in suspending part of sentence imposed for earlier offence in relation to same complainant - Victim Impact Statement - offender's traumatic childhood - significance of alcohol and drug abuse - offender's acceptance of counselling - need for general and specific deterrence - comments by another judge about facts of another forcible confinement offence are not statements of principle requiring imposition of any particular sentence in this or other cases - offender sentenced.
Crimes Act 1900 (ACT), ss 26, 34
Twerd v Holmes [2010] ACTSC 55
Legal Aid ACT (Offender)
SCC 43 of 2014; SCC 206 of 2014
1. Steven East has pleaded guilty to one offence of forcible confinement and one of common assault. Another common assault is to be taken into account in sentencing for the forcible confinement offence.
2. The offence of forcible confinement arises under s 34 of the Crimes Act 1900 (ACT) and carries a maximum penalty including imprisonment for 10 years. Common assault arises under s 26 of the Crimes Act and carries a maximum penalty including two years imprisonment.
3. The incident from which these charges arose took place in October 2013, and is described in the case statement as follows.
On Monday 14 October 2013, the complainant was at her flat [in Red Hill] with [Mr East] who was her carer and partner.
[Mr East] had been in an "on again off again" sexual relationship with the complainant since about September 2010 and had moved back in with [her] into the flat about one month earlier. The complainant was the sole lessee on the tenancy agreement with ACT Disability Housing
Since September 2010, [Mr East] had been the complainant's carer. [He] was responsible for assisting [her] with dispensing her medication, preparation of meals, providing support for her mental health, assisting her with day to day activities when her back pain was too debilitating and performing general housework.
At about 7.30am on 14 October 2013, the complainant was lying on a mattress on the lounge room floor with [Mr East]. The complainant and [Mr East] had an argument. At one point the complainant told [Mr East] to get his belongings and get out of the flat.
The complainant got up off the mattress and began to walk towards the front door. She said that she wanted him gone by the time she returned and walked out of the front door of the ground floor flat. [Mr East] followed her out, grabbed her by the arms and forced her back into the flat.
4. I understand that is the common assault that is to be taken into account in sentencing.
The complainant made a number of attempts to escape, including through the kitchen window. She was not successful. [Mr East] also took the complainant's mobile phone.
Over the following hours [Mr East] told the complainant he was not leaving.
At one stage [Mr East] agreed to pack his personal belongings and asked the complainant for some money. The complainant refused. [Mr East] then forced the complainant onto the couch in the lounge room. The complainant attempted to yell out and at that point [Mr East] grabbed [her] throat restricting the complainant's ability to breathe. The complainant was scared as she could not breathe and she pulled [Mr East]'s hair in an effort to get him to let go.
5. This is the common assault for which Mr East is to be sentenced.
At about 12.30pm [Mr East] returned the mobile phone to the complainant. Shortly after, a mutual friend of the complainant and [Mr East] arrived at the unit. [Mr East] left a short time later and the complainant was too scared to leave at this stage in case [Mr East] saw her leaving.
The complainant phoned her cousin ... and was crying. She told her what had happened and that she was scared. Her cousin arranged for the complainant to go to her residence in Queanbeyan.
6. I note that the conduct constituting the forcible confinement began when Mr East forced the complainant back inside the flat and continued until he left the flat for the second time.
7. Mr East has been in and out of custody since being first charged in November 2013, and as at today he has spent 121 days in custody in respect of these charges.
8. Mr East pleaded not guilty in the Magistrates Court and was committed to this court for trial. The trial was set down for 24 November 2014, but on that day he pleaded guilty on a new indictment which retained the original forcible confinement charge but downgraded two assault occasioning actual body harm charges to a single common assault, with another common assault being taken into account in sentencing. The prosecutor conceded that Mr East is entitled to some discount for his plea of guilty, and I note that, as well as its unarguable (although not maximum) utilitarian value, the plea of guilty can be taken as some demonstration of remorse.
9. Convictions on these offences will put Mr East in breach of a good behaviour order made in the Magistrates Court in relation to an earlier offence of a reckless threat to kill made to the same complainant in May 2012. That offence involved Mr East, apparently heavily intoxicated and distressed, threatening his partner with a knife, a hammer and a piece of concrete.
10. For that offence, Mr East was sentenced to six months imprisonment; the original sentence provided for two months to be served in fulltime custody and the remaining four months to be suspended subject to a two-year good behaviour order, but about a week after the sentencing the Magistrate amended the sentence, under what power is not clear, to require three months to be served as periodic detention with the rest suspended. I am told that the periodic detention was served, but that Mr East did not complete the Family Violence Cognitive Self Change program as ordered.
11. As well as the Statement of Facts in relation to the current offences and the earlier offence, the following material is in evidence before me:
(a) a Victim Impact Statement;
(b) Mr East's criminal history;
(c) the Pre-Sentence Report dated 23 January 2015; and
(d) a CADAS report prepared for court on 4 February this year;
all of which were tendered by the prosecution. The defence tendered a letter from St Vincent de Paul confirming that there would be a bed for Mr East at Samaritan House when he is released.
12. The Victim Impact Statement was prepared by a person identified as the complainant's current carer, and was admitted in part; that part identified various effects on the complainant:
(a) she was ashamed of her kids seeing her black and blue;
(b) she had suicidal thoughts for 12 months after the incident;
(c) she had suffered nightmares and anxiety and had isolated herself from everyone; and
(d) she had been re-traumatised, apparently by the current Supreme Court proceedings.
13. In considering the objective seriousness of the offence, I have had regard to the following matters:
(a) that, as defence counsel submitted, it may be somewhat less frightening to be confined in one's own home by a partner than to be confined in a strange place by a stranger; on the other hand, that might depend on one's previous experiences with the partner and what one believes he might be intending or be capable of;
(b) that during the five hours of the confinement, Mr East was on several occasions violent towards the complainant using his hands (I note, however, defence counsel's submission that the violence is charged separately and should not also be treated as an aggravating factor in the confinement offence);
(c) that Mr East was on conditional liberty at the time of the offence, in that he was subject to the good behaviour order I have already mentioned, and that the good behaviour was made in connection with an earlier incident of threatening behaviour towards the complainant;
(d) that the domestic relationship in my view put the parties into a position of trust in relation to each other, and to that extent Mr East has abused the trust inherent in his four-year domestic and sexual relationship with the complainant; however, given the nature of the relationship more broadly, that the complainant is some 14 years older than Mr East, and that Mr East, as will emerge, carries the weight of a very disturbed background, I do not assume that Mr East's role as carer means that his offence involved any extra abuse of a position of trust;
(e) that the offences obviously had a distressing and more than short-term effect on the complainant; and
(f) finally, that Mr East told the Pre-Sentence Report author that he accepts responsibility of his offences, that he understands that his actions have had a negative effect on the complainant, and that he is disappointed in himself; he has also offered an apology.
14. Objectively, both the charged offences are of mid-range seriousness.
15. However, I must also have regard in this sentencing to Mr East's subjective circumstances.
16. Mr East is 28. His criminal history consists of one common assault and the reckless threat to kill already mentioned. Defence counsel submitted, and I accept, that Mr East does not seem to have any particular tendency towards criminal behaviour except in the context of this particular relationship, although of course I also bear in mind that much of the violent crime committed within domestic relationships is committed by men who otherwise live entirely within the law.
17. The CADAS report provided information about Mr East's background along the following lines:
Mr East reported that he was born and raised in Canberra and he has four half-brothers. He stated that his biological father is unknown. His mother was Mauritian and suffered with severe mental illness and schizophrenia. Mr East described his mother as very unwell and unstable who would alternate between being a loving mother to becoming emotionally and physically abusive to her children, including Mr East. Mr East remembers Police and Mental Health Staff regularly attending the flats where the family lived in the City.
Mr East reported that his mother had children to three different male partners. One of these partners adopted Mr East and raised him with his three step-brothers. Mr East described constant arguing in the household. He stated that as a child, he tried to physically protect his mother who was targeted by males attempting to violate her and exploit her vulnerability. He stated that when he was 8 years old, his mother killed herself by pouring petrol over herself and setting herself alight. She died from the injuries associated with her burns. This was witnessed by Mr East.
Mr East said that following his mother's death, his adoptive father struggled to raise the four boys on his own. His father began drinking heavily to cope and he would belt the children. Mr East stated that his father was an engineer, he is now aged 67 and visits Mr East regularly in custody.
Mr East said that following his mother's death, he would get into "fights" at school and he was expelled for a period during year 2 in primary school. Mr East recorded he was diagnosed with ADHD at age 8 and prescribed dexamphetamine to manage this condition for some six years. He returned to school and successfully completed year 10 and commenced year 11.
Mr East left school during year 11 and commenced in the marketing field. He also maintained his job at Coles Supermarket, which he had commenced whilst still at school. He ... has also been employed at David Jones and also in metal roofing.
Mr East stated that he always remained employed up until he entered a relationship in 2010 with [the complainant]. He stated [the complainant] is significantly older than him. He stated that he became a fulltime carer ... over a period of about four years. ... [the complainant] required assistance with daily activities and preparation of meals. He [said] that she suffered with a number of debilitating mental and physical health problems.
Mr East described his relationship with [the complainant] as "on again and off again". He described it as characterised by drug use and conflict and he stated that she introduced him to "needles" and attempted to inject him with amphetamines. He reported that he has now separated from [the complainant]. Mr East reported to CADAS that [the complainant] attempted to enter the AMC on Saturday 24 January 2015 in order to "visit" him. He stated that this is despite a personal protection order being in place.
18. Defence counsel's instructions were that the complainant was permitted to visit Mr East at the AMC, despite the existence of a protection order in her favour, but turned out to have come only to gloat about Mr East's circumstances. Counsel also submitted that the relationship was dysfunctional and even toxic. This does not justify Mr East's use of violence, but may provide some explanation for it having regard to Mr East's own vulnerabilities.
19. Mr East has been diagnosed in the past with anxiety and PostTraumatic Stress Disorder and is currently prescribed medication for anxiety.
Mr East identified goals for his future. He reports [having] support from his father ... and should he be released from custody, he has accommodation organised after a successful application to Samaritan House. He also stated that he would like to re-engage in counselling treatment that he described as highly effective and he would also view residential [alcohol and drug] treatment as a future goal.
Mr East [showed] good insight and awareness into his current situation. He became stressed during the interview and repeatedly spoke about the changes in his life that he is attempting to make. He demonstrated ability to reflect on problems and difficulties confronting him and triggers for his substance use; and he also identified alternative strategies for managing stress and overwhelming emotions.
21. The CADAS report records Mr East's claim that at the time of the offences, he was affected by alcohol and dexamphetamines. He also claimed that he had assaulted the complainant in the course of an argument during which they had both "become physical", but this does not explain his refusal to leave the complainant's home or the extended confinement of the complainant.
22. Mr East has a history of experimental use of various drugs, regular use of cannabis since he was about 14, and extended period of alcohol abuse since his early teens. In early 2013, before the current offences, he began accepting counselling which seems to have been aimed at alcohol and drug rehabilitation but also dealing with the effect of his childhood traumas. He attended regularly throughout 2013 and, according to the counsellor, demonstrated a high level of commitment to his treatment and recovery. Mr East has indicated a wish to re-engage with his counsellor when he returns to the community - it seems that the particular counsellor is not available to him in the AMC.
23. I turn now to other sentencing considerations.
24. General deterrence must always be an important consideration in sentencing for domestic violence offences. Furthermore, given that this is the second incident of violent behaviour against the same complainant, I accept that personal deterrence also has a significant role in this sentencing, although it may be that the end of Mr East's relationship with the complainant will also reduce the risk of him re-offending.
25. As already noted, there will be some discount for the plea guilty, but by no means the highest discount.
26. The prosecutor referred me to the decision in Twerd v Holmes [2010] ACTSC 55, a decision of a single judge on an appeal from the Magistrates Court, describing it as an authority for principles of sentencing in a case of this kind. The unlawful confinement offence in that case had some similarity to the current one in that it involved the appellant having forced his former partner into a taxi and taken her to a house where she was held against her will for about two hours. The appellant had been sentenced to 20 months imprisonment with a 15-month non-parole period. Marshall J, noting especially the appellant's history of offending over nearly 20 years, held that the sentence was not manifestly excessive and that no other error by the Magistrate had been shown. In the judgment, Marshall J made several comments about the gravity of the events concerned, which the prosecutor sought to have me accept as authoritative statements of principle and, in effect, as requiring a particular sentencing disposition.
27. Even if a judgment of another single judge were generally authoritative (which it is not), his Honour's comments were made about the facts of the particular case, not about any principles of sentencing that might be applicable in this case. Nevertheless, I accept the general proposition that an offence of this kind is likely to require some prison time, and I am satisfied that in this particular case no sentence other than imprisonment is appropriate. I further note that Mr East is currently assessed as unsuitable to serve a sentence by way of periodic detention, due what is described as "unaddressed drug dependency issues".
28. Mr East, please stand. I record convictions on the charges of forcible confinement and common assault. I also note the scheduled offence of common assault, and I have taken it into account in sentencing for the forcible confinement offence.
29. Next, I cancel the good behaviour order made in the Magistrates Court in relation to CC2012/4753, the reckless threat to kill, and impose the suspended sentence, of which three months now remains to be served.
30. I now sentence you, for the forcible confinement offence, to imprisonment for 17 months, reduced from 20 months because of your plea of guilty, and for the common assault, to imprisonment for seven months, reduced from nine months, and to be accumulated so as to add one month to the forcible confinement sentence. That gives a total sentence for the new offences of 18 months, and that is to run concurrently with the last two months of the earlier sentence that I have just imposed as a result of the good behaviour order breach.
31. That gives a total sentence of 22 months imprisonment, which will backdated to 18 July last year to take account of three months of the 2013 sentence already served before it was suspended, and the 121 days of pre-sentence custody on the current offences, and so the sentence will run until 17 May 2016. For that 22-month sentence I set a non-parole period of 10 months; the effect of the backdating and the non-parole period is that you will be eligible for parole in three months, specifically on 17 May 2015.
32. Mr East, you've had a very rough time for most of your life and you've done well to keep out of trouble for so much of it. I urge you to take full advantage of everything offered to you in the way of counselling and other support, both in the AMC and while you are on parole, and especially to pursue further counselling to help you deal with the scars from your tragic childhood.
I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.
R
East [2015] ACTSC 54