[2019] ACTSC 386

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - burglary - unlawful confinement - unlawfully choking, suffocating or strangling a person - finding of guilt by jury - where offences occurred in a family violence context - guarded prospects for rehabilitation - consideration of deterrence and incapacitation

Crimes Act 1900 (ACT), ss 28(2)(a), 34

R v Laipato (Unreported, Supreme Court of the Australian Capital Territory, Acting Justice Neild, 16 September 2010)

A Williamson (10 December 2020); B Atkinson (20 December 2020) (Crown)

K Musgrove (10 December 2020); A McKenna (20 December 2020) (Offender)

1. David Laipato, on 17 September 2019 you were found guilty by a jury of the following offences:

• First, an offence of burglary (Count 1 - CC 2019/725) contrary to

s 311 of the Criminal Code 2002 (ACT), punishable by 14 years' imprisonment, a fine of 1,400 penalty units or both;

• Second, an offence of unlawful confinement (Count 2 - CC 2019/721) contrary to

s 34 of the Crimes Act 1900 (ACT) (the Crimes Act), punishable by 10 years' imprisonment; and

• Finally, an offence of unlawfully choking, suffocating or strangling a person

(Count 3 - CC 2019/726) contrary to s 28(2)(a) of the Crimes Act, punishable by five years' imprisonment.

3. Following a finding of guilt at a trial by jury, it is for the Court to determine the facts upon which an offender is to be sentenced. Any such finding must be consistent with the jury's verdicts and must be arrived at to the standard of beyond reasonable doubt. At your trial, you denied, through your Counsel, any wrongdoing. Clearly, this was rejected by the jury.

4. I am satisfied that you and the victim, your former partner, were engaged in conversation via SMS text messages about your relationship in the hours leading up to these offences. The victim was adamant that your relationship was over and that she wanted to be left alone. I am satisfied that you were angry as a result of this conversation.

5. Some time after midnight on 8 January 2019, you attended the victim's residence, entered the premises and dragged the victim from her bed into the neighbouring room. Once in that room you choked her. On multiple occasions you placed your hands around her throat and also covered her nose and mouth such that she could not breathe. The victim resisted for a while but stopped doing so when she thought that her resistance was only aggravating you. At one point the victim was on the ground shaking when you leaned towards her and said, "You're fine", while laughing. You also said words to the effect of, "I could fucking kill you" while you were choking her.

6. A Victim Impact Statement was prepared for the sentence hearing. The victim speaks of the impact of the domestic violence that she has suffered at your hands in this incident. She says that she has coped in part by disassociating from the violence inflicted on her and she has learned to detach from others as a means of coping. This has impacted on her relationships with her family. Her mental health has deteriorated.

7. She suffers severe anxiety, Post-Traumatic Stress Disorder and depression for which she has been prescribed medication. There are times when she feels very angry that her former partner hurt her so much, both physically and emotionally. Her feelings of

self-worth are low, and she lives with fear and distrust. During the course of these offences, she felt helpless, fearful and believed that she might die. She has also found it difficult to continue to live in the house where these offences occurred. These offences and the impact upon her have had a significant impact on her family.

8. You have a very lengthy criminal history dating back a number of years, including multiple convictions for burglary, assault occasioning actual bodily harm, aggravated burglary, recklessly inflicting grievous bodily harm, assault and drug and traffic offences. You have served multiple terms of imprisonment. I note that you have previously been convicted of offences against the victim of the present offences. Your criminal history disentitles you to any leniency in sentencing for these offences.

9. I accept the Crown's submission that it is a significant aggravating feature of these offences that they occurred in a family violence context. As the jury verdict on Count 1 indicates, you entered your former partner's residence on 8 January 2019 with intent to commit an offence involving causing harm or threatening to cause harm to your former partner. This is a particularly serious form of burglary. The offence occurred in the early hours of the morning and you remained in the premises for a considerable period. I would assess the offence of burglary in the midrange of such offences.

10. With regard to the offence of unlawful confinement, Count 2, I am satisfied that you confined your victim for a minimum of one and a half hours. I accept that this offending was impulsive and without any significant planning. The purpose of the confinement was to visit your anger on the victim for breaking up with you, and to exercise control over her. You also inflicted extreme violence on the victim during the course of this confinement. Considerable fear was instilled in the victim by your actions and she has continuing psychological consequences. I would assess this offence as towards the upper end of the midrange of such offences.

11. With regard to the offence of unlawfully choking, suffocating or strangling the victim, Count 3, I am satisfied that this offence was not transient. It involved a deliberate and sustained course of conduct that lasted for some time. The victim's ability to breathe was completely impaired at times. She thought that she may die. The offence was also accompanied by a threat to the effect of, "I could fucking kill you", which was calculated to increase the victim's fear. I would assess this offence as in the midrange of such offences.

12. A Pre-Sentence Report prepared for the sentence hearing notes that you have an extensive criminal history and that you have been subject to numerous community-based orders and imprisonment for various offences. Your response to supervision was described as unsatisfactory, resulting in breaches of many of the orders.

13. Your childhood was marred by a degree of instability as your parents separated and then reconciled several times. You reported this had a negative effect upon you and you attempted to abscond from the family home on multiple occasions. Your younger brother passed away in 2009 which also had a traumatic effect on you. You report that you now enjoy a supportive relationship with your family. You are able to reside with your family when you are released from custody.

14. You told the author of the Report that you had been in an intermittent relationship with the victim since 2012 and that you have a four-year-old son from that relationship. You stated that you have no intention to attempt to reunite with the victim. You claim to have been subjected to violence in that relationship. You plan to reunite with your son should you be released into the community, but it appears that there are formidable obstacles to this proposal.

15. You reported that you had completed your education to the end of Year 10, but you were suspended for disruptive behaviour. You stated that you have obtained qualifications in hospitality, hairdressing, government and IT. You told the author of the Report that you had been employed in various positions and that you had been employed prior to your latest period of incarceration. The author of the Report noted, however, that you were also in receipt of government payments.

16. You have work available to you when you are released from prison. Records from

ACT Corrective Services indicated that during your current period of incarceration, you have not participated in employment or education in the Alexander Maconochie Centre (AMC). It is heartening to note that you have offered, to other detainees, mentoring and assistance with finding employment upon their release.

17. You reported a history of alcohol and drug use from the age of 12 years. The present Report does not provide much information about your drug and alcohol use history, but considerably more material is found in the sentencing remarks of Neild AJ when

his Honour sentenced you on 16 September 2010 for offences of aggravated burglary and recklessly inflicting grievous bodily harm: R v Laipato (Unreported, Supreme Court of the Australian Capital Territory, Acting Justice Neild, 16 September 2010).

18. You have a history of Major Depressive Disorder which has been treated in the past and which was described as in full remission in 2017. Your physical health is satisfactory. You were assessed as a medium-high risk of reoffending. It was recommended that you undergo domestic violence intervention, alcohol and drug treatment, counselling and mental health assessment.

19. You were assaulted while in custody in 2017. Your injuries required more than

200 stitches and you were hospitalised for a short period. A short report from the

Victims Liaison Officer at Victims Support ACT, dated 2 September 2019, suggested that you had healed physically but not mentally or emotionally. I cannot give this opinion significant weight as suggesting that a custodial sentence will weigh more heavily upon you than other offenders, because there is no indication of the evidence upon which the opinion is based, or any indication of the qualifications or experience of the officer to give such an opinion. I will take the fact that you have previously been assaulted in custody into account as part of the relevant background information.

20. I take into account the letter written on your behalf by your mother. Your son spent a significant period of time with your parents and they believe that you have a healthy, loving relationship with your son. They also referred to their ability to assist you in obtaining employment, and that there is employment available to you when you finish your sentence.

21. Your prospects for rehabilitation are guarded at best. You have shown no remorse for these offences and your history of offending, including offending directed towards the present victim, give me real concern regarding your ability and commitment to avoid criminal offending and to achieving a stable, co-parenting relationship with the victim.

22. You have taken no steps during your present period in custody to address issues such as drug and alcohol abuse and your attitude to domestic violence. I recommend that the Sentence Administration Board carefully consider your progress within the AMC, particularly concerning participation in appropriate programs and counselling, before determining any release on parole.

23. At 31 years of age, you are no longer a young man. Your prospects for rehabilitation cannot be described as good. Other sentencing considerations, such as deterrence and punishment, must now be given greater weight. It is important that you understand this. From this point on, each time that you commit a further serious offence you should expect to serve a significant term of imprisonment commensurate with the offence you commit. Imprisonment may not rehabilitate you, and it may not deter you from committing further offences, but it will incapacitate you from committing offences during the period that you are imprisoned.

24. Having considered all possible sentencing options, no sentences other than immediate terms of full-time imprisonment will be adequate to act as a deterrent to you and to others, to appropriately punish you and to mark the community's disapproval of your conduct. The fact that these sentences occurred as part of the one incident involving one victim warrants concurrency of sentences.

25. I also note that some of the factors relating to some of the offences to which I have referred are common to a number of the offences. I also take into account the requirements of totality.

26. I propose to set a non-parole period of approximately 65 per cent of the aggregate sentence which, in my opinion, is the minimum sentence that justice requires that you are to serve. The aggregate sentence will commence on 8 January 2019, the day that you were remanded in custody.

27. On the charge of burglary (CC 2019/725), I record a conviction and you are sentenced to three years and six months' imprisonment, commencing 8 January 2019 and expiring 7 July 2022.

28. On the charge of unlawful confinement (CC 2019/721), I record a conviction and you are sentenced to two years and three months' imprisonment, commencing 8 June 2021 and expiring 7 September 2023.

29. On the charge of unlawfully choking, suffocating or strangling a person (CC 2019/726), I record a conviction and you are sentenced to one year and eight months' imprisonment, commencing 8 October 2022 and expiring 7 June 2024.

30. The aggregate sentence I have imposed is one of five years and five months' imprisonment, commencing 8 January 2019 and expiring 7 June 2024.

31. I set a non-parole period of three years and six months' imprisonment, commencing 8 January 2019 and expiring 7 July 2022.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.