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[2018] ACTSC 141
Supreme Court of the ACT
2018-05-11
Mossop J
Original judgment source is linked above.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - forcible confinement - common assault - unusual domestic violence context - specific deterrence - general deterrence - not suitable for intensive corrections order - partially suspended sentence
Cranfield v The Queen [2018] ACTCA 3
R v Eimerl [2015] ACTSC 72
R v Glen [1994] NSWCCA 1
R v Ndlovu [2017] ACTSC 244
R v Williams [2016] ACTSC 389
Shaw v R [2008] NSWCCA 58
1. The offender, Jovan Klickovic, has pleaded guilty to two rolled-up offences; the first being a count of forcible confinement, and the second a charge of common assault.
2. A person who unlawfully confines or imprisons another person is guilty of the offence of forcible confinement, contrary to s 34 of the Crimes Act 1900 (ACT), which carries a maximum penalty of 10 years imprisonment.
3. The offence of common assault carries a maximum penalty of two years imprisonment pursuant to s 26 of the Crimes Act.
4. In about 2011, the offender and the victim, [his partner], started dating and have been in an on-again, off-again de facto relationship since that time. In 2012, the victim gave birth to the couple's first daughter.
5. During the course of their relationship, the victim began taking the illicit drug methylamphetamine (ice), and although she attempted to enter rehabilitation, she found it difficult to stop her drug use altogether.
6. By January 2017, the victim was living in government housing in Braddon whilst the offender lived with his parents in Royalla, New South Wales (NSW). Despite not living together, the victim and the offender continued their relationship and the offender had a key to her unit. The offender, however, had sole care of their daughter.
7. At about 8:30pm on Tuesday, 10 January 2017, the victim was at her home in Braddon when the offender arrived with two teenagers. The offender entered the unit and began accusing her of giving sexual favours to another man for drugs. He slapped her face a number of times with an open hand. She fell to the ground and covered her face. The offender asked "how could you do this?" and picked her up. The victim repeatedly denied the accusations.
8. The offender told the victim that they were going to go for drive; the victim reluctantly agreed because she was worried that if she refused, she would continue to be assaulted.
9. As the offender, the victim and the two teenagers walked towards the offender's car, a silver Ford Falcon, the offender pushed the victim once from behind, grabbed her around the shoulders and walked her to the car. The victim was put into the front passenger's seat, the offender got into the driver's seat and the two teenagers sat in the back passenger seats.
10. The offender then drove towards Limestone Avenue, Braddon. As he was approaching the roundabout at the intersection of Torrens and Ipima Streets, and while the car was still moving, the victim opened her door and jumped out of the car. She ran towards Torrens Street screaming for help.
11. The offender stopped the car, got out and chased after her. The victim fell over about 20-30m away from where the car stopped. The offender caught up with her and picked her up by the hair. He called out to one of the teenager's to drive the car around to him. The victim was then forced into the back passenger's seat. The offender pushed the victim up against the child seat anchored in the back of the car and sat in next to her. The child lock of the rear door was turned on.
12. As a result of trying to escape and falling to the ground, the victim suffered a number of bruises to her legs and a graze to her right arm.
13. Several witnesses and passers-by called police saying they saw a woman being dragged into a silver Ford Falcon.
14. The teenager driving the car drove them to a remote location near Sutton, NSW. During the journey, the offender restrained the victim by keeping her wedged in the backseat between him and the child seat and confiscated the victim's phone, sending a text message to the person whom he believed the victim was giving sexual favours to in return for drugs.
15. The offender then got the victim out of the car and tied a rope around her waist. The victim was scared about what the offender intended to do and asked him if she was going to have to dig her own grave. The offender said "No" and walked up the road pulling the victim by the rope. The teenagers remained with the car.
16. The offender continued to ask the victim about the rumours, which she denied were true. After some time the offender accepted what the victim was telling him and they returned to the car where he removed the rope from her waist.
17. The offender then drove the group back to Queanbeyan where he dropped off the teenagers before taking the victim back to Braddon. During the drive the offender realised that his wallet was missing and told the victim that they needed to go back to where the victim had escaped from the car to look for it. The victim remained with the offender because she was worried about what he may do if she refused.
18. They returned to the roundabout and looked for the wallet but didn't find it. The offender then drove the victim to her unit. They both went inside and the victim cleaned up the graze to her elbow and bruise on her right hip that she sustained when she jumped out of the car.
19. Due to calls to police earlier that evening, police had been attempting to find the offender and the victim. At about 11:05pm, police became aware that the offender's car had been seen outside the victim's unit in Braddon and went to that address. The offender and the victim were approached by police who questioned them about the incident. The victim denied that she had been harmed or dragged into a car and told police that she had had a psychotic episode due to her methylamphetamine use. She did not truthfully inform the police of what had really happened because she was scared of what the offender would do if she told them.
20. Sometime over the following two weeks, the victim discovered that she was pregnant with another child to the offender.
21. At about 10:50pm on Tuesday, 24 January 2017, the offender arrived at the victim's address. He parked outside and sent her a text message to come out. She went outside and got into the offender's car. The offender told her that he had to go and withdraw money from an automatic teller machine. They drove together to Ainslie Place where the offender took the money from his account and then they drove off, the victim assuming that they were returning to her unit.
22. However, the offender drove to Constitution Avenue, Reid. While they were driving, they started to argue. When they got to the intersection of Constitution Avenue and Cooyong Street, the offender said "I've got a better idea", and pulled out a rope from behind the front passenger's seat which already had a loop tied into it. The offender told the victim to put her hands in the rope but she refused. She opened and kicked against the passenger's door to get out of the car but the offender grabbed her arms and legs preventing her from leaving. They struggled and he continued to drive along Constitution Avenue before turning onto the slip road on Anzac Parade. The offender then struggled with the victim, pinning his arm against her chest and neck, making it difficult for her to breathe. With his other hand, the offender put the rope around her hands and pulled it tight, binding her hands together despite her continual struggles. The victim then began to bang her head against the passenger's window and asked to be let out but the offender refused.
23. The offender then drove the victim towards his home in Royalla, NSW. He stopped the car nearby the house for a short period before driving back to Canberra. During the drive the offender said to the victim, "Why do you make me do these things". The victim told the offender that their relationship was over.
24. During the return car trip the victim fell asleep and the offender removed the rope from her wrists. The victim woke when the offender reached an empty house in Banks in which they had previously lived and which was owned by the offender and his parents. The offender took the victim upstairs and retrieved a mattress and a blanket, and they slept on the floor of their old room.
25. At about 6:00am the following morning, the offender and the victim woke and left the house. The offender directed the victim to get in the front passenger seat of his car and the offender drove them around Canberra while the victim fell in and out of sleep.
26. During the drive the victim overheard the offender speaking to his employer and later to a friend. The offender told the victim that his employer had given him the friend's number as "she's an ex-heroin user, ex-ice user" and she might be able to talk to him about her. The victim said, "why the fuck won't you let me go" and "I just want to go home".
27. Sometime later the offender offered to get the victim something to eat or drink but she refused and continued to tell him that what he was doing was wrong. She believed that at some point the offender stopped and bought food at a McDonald's restaurant while she was asleep.
28. During the car trip the offender continued to discuss the victim's drug use and told her that she was "killing our baby and killing yourself because of ice". The offender drove to and stopped at Tharwa before continuing to drive around.
29. That afternoon as they continued to drive, the offender told the victim that he would take her to his home at Royalla. The victim again asked the offender to take her home and he told her he would. At about 2:15pm, the offender drove the victim to her unit in Braddon. When the offender parked the car outside her unit, the victim asked the offender to return the keys he had to her unit but the offender asked her for a hug. The victim got out of the car and slammed the door before going up to her unit. The offender followed her to the front of her unit with the keys to her unit in his hand. She took the keys out of his hand and told him to "fuck off and leave me alone", before he backed away and she closed the door.
30. The victim called police and told them the offender had "kidnapped [her] last night" and told them what had happened. At about 3:30pm police attended her unit and conducted a Family Violence Evidence-in-Chief recorded statement with her. During that recording, the victim showed the police the injuries she received during the first incident on 10 January 2017 and the marks to her wrists which she said were caused by the rope the offender used to tie her up on 24 January 2017.
31. At about 8:40pm that evening, police went to the Banks property (referred to above at [24]) and arrested the offender.
32. A victim impact statement discloses that the victim has had a long struggle with methylamphetamine use and perceives she has had little help or support from outside organisations. The offender and his family have helped her a lot with getting off the drug and have helped her deal with her children. She said that manhandling her was out of character for the offender.
33. The offender has spent 20 days in custody, from 25 January 2017 to 14 February 2017, attributable to these offences.
34. The subjective circumstances of the offender are described in an intensive correction assessment report, in the oral evidence given by the offender and his mother, and a reference from a family friend who has known him for 10 years. The offender was born in Serbia and migrated with his parents to Australia in 1999 when he was aged 18. He has a close family unit. He, his partner (the victim of the offences) and their two children currently reside with his parents and his maternal grandmother in Royalla in NSW. The offender and his mother and father jointly own the property and are jointly financially committed to paying it off and developing it as a productive farm.
35. The offender and his partner have been in a relationship since 2010. It has been tumultuous and there have been multiple periods of estrangement due to his partner's use of illicit substances.
36. In 2016, the offender was the victim of an offence committed by his partner, namely conspiracy to defraud. This involved sending him threatening text messages suggesting that she was being held hostage, her life was being threatened and requiring him to pay money in order to have her safely returned when that was not in fact the case. The circumstances of this offence were very serious.
37. The offender reported to the author of the intensive correction assessment that if his partner was unable to abstain from use of illicit substances, then their relationship would end as he is exhausted and unable to support her any further.
38. They have had three children together, although tragically their second child died shortly after birth in 2015. At the time the offender unlawfully confined her on 24 January 2017, the offender was aware that the victim was pregnant with their third child. At the time of the offences he was, because of the victim's drug use, the sole custodian of their oldest child.
39. The offender has maintained ongoing employment since arriving in Australia and is currently employed as a truck driver in the scaffolding industry. He is financially stable. He has close friends who are law-abiding. He rarely consumes alcohol and does not use illicit substances. Outside of work, he has lawful pastimes. He has no history of mental illness.
40. He was assessed as unsuitable for an intensive corrections order because he resides in NSW. Although proceedings were adjourned to permit him to arrange accommodation within the Australian Capital Territory, the updated intensive correction assessment indicates that he intends to remain living in NSW and hence, remains unsuitable. He is assessed as suitable for a community service work condition.
41. The offender has a limited criminal history involving only a drink-driving conviction, a minor traffic conviction relating to the same incident and a conviction for contravening a direction to move on. Having regard to his age, the limited history is indicative of a person who is generally of good character. He is therefore entitled to considerable leniency.
42. The plea of guilty was entered on the first day listed for the trial. Notwithstanding that the offender had made significant admissions to police in a recorded interview, why there was such a late plea in the circumstances was not explained. The prosecution case was strong, particularly in relation to the events on 10 January 2017. Consistently with the decision in Cranfield v The Queen [2018] ACTCA 3, he will receive a reduction of 10 per cent on the sentence that I would otherwise have imposed.
43. There is a great variety of seriousness in cases of forcible confinement. As Lord Lane CJ observed in Spence v Thomas (1983) 5 Cr App Rep (S) 413 at 416, in relation to kidnapping offences, they extend from carefully planned abductions for hostage or ransom purposes to sequels to family tiffs or lovers disputes.
44. Counsel for the offender helpfully provided a table summarising sentences that had been imposed in this Court in other cases involving unlawful confinement. The cases in that table indicated a range of sentences from 14 months to three years and six months.
45. The decisions of Burns J in R v Eimerl [2015] ACTSC 72 at [14], Refshauge J in R v Williams [2016] ACTSC 389 at [53] and Murrell CJ in R v Ndlovu [2017] ACTSC 244 at [26]- [31] describe the factors relevant to take into account in assessing the seriousness of an unlawful confinement:
(a) the length of the confinement;
(b) the purpose of the confinement;
(c) the extent of fear instilled in the victim by and during the confinement;
(d) any injuries inflicted upon the victim;
(e) the extent to which it was premeditated or planned;
(f) the way in which it was effected;
(g) the conditions under which the victim was confined;
(h) whether the offences were committed in company.
46. In the present case, the first period of confinement was around three and half hours and the second period about 15 hours. On the first occasion, the purpose of confinement was retribution for or anger at alleged infidelity. On the second occasion, the purpose was less clear, although at least part of the motivation related to the offender's desire to stop her using drugs and hence protect their unborn child. During the first confinement, it is clear from the agreed Statement of Facts that the victim was in fear for her life. The level of fear instilled on the second occasion is less clear. On both occasions it is clear that the offender used his greater physical strength to subdue and control the victim. The victim suffered injuries to her legs and a graze to a right arm in the first incident. This is most likely to have occurred when she tried to escape from the motor vehicle. There are no references to injuries from the second incident, although there is some reference to marks on her wrist consistent with being bound. There is no evidence that either occasion was premeditated or planned. On each occasion the offender used his physical strength to confine and control the victim. Ropes were used to restrain her, but not in a dramatic or degrading way. The conditions under which she was confined were not significantly adverse. The first incident was committed in company.
47. Considering all of these factors, the unlawful confinement offence is, even having regard to the fact that it is a rolledup charge, just below the mid range of objective seriousness for this offence. The assaults occurred during the course of the two periods of confinement. They are closely related to the unlawful confinement and are, taken together, in the mid range of objective seriousness.
48. These offences occurred within a domestic violence context. They are by no means stereotypical domestic violence offences, but they do involve the use of physical strength to control a domestic partner. It is not clear what the longer term effect on the victim has been. The terms of the victim impact statement and other evidence suggest limited longer term consequences when compared to other events associated with methylamphetamine use. It is relevant to take into account the current relationship with the victim, although obviously bearing in mind the caution that must be applied in relation to any forgiveness or ongoing relationship in the domestic violence context: Shaw v R [2008] NSWCCA 58 at [27]. Once again, this case falls outside what might be considered a usual domestic violence situation because of the one-sided use of illicit drugs within the relationship and the bizarre exploitative conduct on the part of the victim in the months prior to the offending conduct which led to her being charged with conspiracy to defraud. There is nothing in the material before me to indicate, even adopting a sceptical approach to the evidence, that this falls into the category of case referred to in Shaw v R or the salutary remarks of Simpson J in R v Glen [1994] NSWCCA 1 [19]-[27]. Having said that, the use of physical violence by men against women to control their behaviour is a very significant problem in society generally in relation to which general deterrence will always be a significant consideration in sentencing.
49. Regard must also be had to the impact of a sentence of full-time imprisonment upon the family of the offender. In this case, there would be particular impacts upon his first child with the victim for whom he has parental responsibility. He also provides support for the victim and their other child. It will also have financial consequences for the offender's parents who rely on his income in relation to mortgage payments for the farm. Once again, these factors must be considered with a degree of caution in a family violence context and in this case, the impacts are not such as to preclude or weigh heavily against a sentence of full-time imprisonment. Nevertheless, they must still be taken into account.
50. The offender is otherwise a person of good character. He does not use illicit drugs, has employment and stable relationships with members of his family. He has no mental health problems. He has been assessed as at a low risk of general reoffending. All of those circumstances indicate that there is significant capacity for leniency.
51. I consider however that the gravity of the offence in the present case is such that only a custodial sentence is appropriate. I consider that the starting point is a sentence of 20 months imprisonment, reduced to 18 months on account of the plea of guilty.
52. As a result of the intensive correction assessments and the recommendation made therein that he is not suitable for an intensive correction order, I consider that it is not appropriate to make such an order, particularly in circumstances where he resides outside the jurisdiction. I consider that a partially suspended sentence is the appropriate manner in which to deal with the unlawful confinement offence. The period required to be served will be equivalent to the time served in custody on remand.
53. In relation to the assault charges, the appropriate starting point is five months imprisonment, reduced to four months and 15 days on account of the plea of guilty. That sentence will be wholly concurrent with the sentence for unlawful confinement and suspended in the same way.
I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
R
Klickovic [2018] ACTSC 141