R v Palmer [2020] ACTSC 13

Crimes Act 1900 (ACT) ss 24, 27

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10

1. On 1 April 2019 the offender was arraigned on an indictment dated 29 August 2018. The offender entered a plea of guilty in relation to Count 1, Count 2 and Count 4 in full satisfaction of the indictment.

2. A summary of the offences and their maximum penalties are:

(a) Burglary, contrary to s 311(1)(b) of the Criminal Code 2002 (ACT). This offence carries a maximum penalty of 14 years' imprisonment, a fine of $210,000, or both.

(b) Assault occasioning actual bodily harm, contrary to s 24 of Crimes Act 1900 (ACT). This offence carries a maximum penalty of 5 years' imprisonment.

(c) Choking a person and rendering them insensible, contrary to s 27(3)(a) of the Crimes Act 1900 (ACT). This offence carries a maximum penalty of 10 years' imprisonment.

3. There are also three transfer charges, all of common assault. Those charges were remitted back to the Magistrates Court on 1 April 2019. Upon finalisation of the substantive matters today the Crown has agreed to withdraw those charges.

4. The three offences were all part of the same criminal episode. The Crown, in it's submissions, correctly summarised the offences as follows:

In the early hours of the morning of 30 April 2018, the accused entered the house of his ex‑partner in Dunlop while she was asleep. He remained in the house despite her telling him to leave. After a short verbal altercation, he assaulted her causing bruising to her leg and choked her rendering her unconscious.

5. Burglary is always a serious offence because it involves breaching the safety and security of a person's home. In this case the victim was woken by the offender who would not comply with her order to leave. I regard this offence as just below medium objective seriousness.

6. The actual bodily harm relates to some injuries to the complainant's right leg. The injuries can be seen in photographs, although I do not think the photographs do justice to their severity. I also regard this offence as below medium objective seriousness.

7. I think the choking is the most objectively serious of the offences. Choking is an offence in which the victim will no doubt suffer a fear of loss of life. This is a product of interference with breathing. The action of choking also has the possibility of creating very severe long‑term effects.

8. However, although the victim has no memory of the choking for some time after the event, the Crown does not suggest that she was unconscious for the whole period in which her memory had lapsed. I can only assume that the period of unconsciousness was brief.

9. All of the offences are aggravated by being committed whilst the offender was on conditional liberty and in circumstances of domestic violence. The offences for which the offender was sentenced in the Magistrates Court relate to the same victim. I do not see that fact as in any way mitigating the seriousness of the offences.

10. The offender was born in 1983. He is one of four children who grew up in a supportive environment. His father has passed away but the offender remains close to his mother.

11. The offender has two children from a relationship which ended some time ago. He does not see his children. The other significant relationship in the offender's life was with the current complainant. They were together for six years. There is apparently no chance, not surprisingly, of reconciliation.

12. The offender completed Year 12 and has a number of after-school qualifications. He has been employed, but not since 2016. He says he does not have any problems with alcohol or drugs, at least for the last 10 years. He is now on a methadone maintenance program.

13. The offender suffers from an anxiety disorder and panic attacks. His father passed away in 2016 which seems to have had a significant effect upon the offender's behaviour. Dr Seidler said this at [60] of her report:

Mr. Palmer developed a relationship with the victim in or around 2013 and I note that this was also a generally vulnerable period in Mr. Palmer's life, as his father became terminally ill and subsequently passed away. Irrespective of this, the relationship was seemingly a dysfunctional one, which Mr. Palmer suggested was primarily driven by the victim's psychosocial difficulties within the context of her long history of trauma and abuse. This is relevant insofar as it seemingly set the stage for challenges in the relationship that over time, Mr. Palmer struggled to cope with emotionally, ultimately leading to his engaging in violent and abusive behaviour towards the victim, including the offences for which Mr. Palmer is presently before the Court. To his credit, Mr. Palmer has some insight into the antecedents to his offending behaviour but he does need some ongoing psychological treatment, which will be outlined below. Further to this, however, Mr. Palmer claims that he intends to remain apart from, including having no communication with, the victim and this will be important both for protecting her but also minimising his future risk of reoffending.

14. He has a significant criminal record. Examination of the record does reveal a period of apparently better behaviour before he began assaulting the current victim.

15. Although s 10 of the Crimes (Sentencing) Act 2005 (ACT) says full-time imprisonment should be a last resort, I can see no alternative here. Domestic violence is abhorrent. Choking a person is a particularly serious crime. The offender should not have been anywhere near his victim. He was already on bail for family violence offences against the same victim. When she told him to leave he should have done so. He should not have assaulted her and he certainly should not have choked her.

16. When the matter came before me on 26 August 2019, the offender requested a referral for an Intensive Correction Order ('ICO'). My first reaction was that the seriousness of the offences demanded full-time imprisonment. The then Crown however pointed out, extremely fairly, that the offender might benefit from programs which would give him some clue, which he clearly does not have so far, as to the complete inappropriateness of violence within and surrounding a relationship. I therefore reluctantly made the referral order.

17. The report which has emerged is dated 5 December 2019. It says the offender is not suitable for an ICO; he does not have appropriate accommodation, he has not completed a spousal abuse program and he has a history of poor compliance with community-based orders.

18. The offender is entitled to a discount of approximately 15% on his term of imprisonment as a result of his pleas of guilty. Although there was possibly some small disagreement about the number of days in respect of which the offender has spent in custody for the offences for which I'm sentencing him today, I will proceed on the basis that, without more, he is entitled to have his commencement date backdated by three months.

19. The offender submitted that I should backdate the offences by a greater period to take into account that a number of aggravating matters would have been dealt with by the magistrate when sentencing him for offences against the same victim. The Crown said I should not do so, but accepted that my discretion permitted such a course.

20. The offender also submitted that the sentence should be partially suspended. If I understood the submission correctly it was so that I could, through conditions of suspension, retain some control over the offender's path to rehabilitation. In particular it was suggested that a condition that he not approach the victim would assist. I do not see any reason why a similar condition could not be imposed by the parole authorities. Further, one would have thought that the offender had long ago realised he should stay away from this victim, let alone commit an act of violence upon any person.

21. The Crown has reminded me that although the offences are part of the same criminal enterprise, each offence should be recognised in the sentencing process. At the same time, I must conform to principles of totality. I must also recognise, and apply, the objects and principles of sentencing is set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT).

22. As envisaged, there is really no choice but for the offender to remain in prison. Domestic violence is completely unacceptable. Men must realise they cannot beat up, let alone choke, their partners or former partners. This is a message both to this offender and to men at large.

23. There will be a degree of concurrency in the sentences because the offending, as noted above, all took place at the same time and it is important to apply principles of totality to avoid an overly long sentence. I will also backdate the sentences by six months to take account of the submission, which I think has some substance, that there may be duplication of matters already taken into account in the Magistrates Court.

24. I think the appropriate terms of imprisonment are 12 months for the burglary, 6 months for the assault and 24 months for the choking. These will be respectively reduced to 10 months, 5 months and 20 months to reflect the discount mentioned above.

25. I will set a non-parole period of 18 months to reflect the offender's reasonable prospects of rehabilitation. This has to some degree already been demonstrated by the certificates in Exhibit 2.

(a) For Count 1, burglary (CC2018/8293)), the offender is sentenced to 10 months imprisonment commencing on 3 August 2019 and ending on 2 June 2020.

(b) For Count 2, assault occasioning actual bodily harm (CC2018/6215), the offender is sentenced to 5 months imprisonment commencing on 3 April 2020 and ending on 2 September 2020.

(c) For Count 4, choke person and render insensible (CC2018/8297), the offender is sentenced to 20 months imprisonment commencing on 3 June 2020 and ending on 2 February 2022.

(d) The total sentence is 30 months imprisonment.

(e) The non-parole period is 18 months to commence on 3 August 2019 and end on 2 February 2021.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.