R v Tisserand

District Court of NSW|2021-08-31|Before: Spigelman CJ

Director of Public Prosecutions (NSW) (Crown) McGirr & Associates (solicitors for the Offender) File Number(s): 2019/00319370

Introduction

These are sentence proceedings following the prosecution of the offender, Leon Tisserand who pleaded guilty ultimately in the District Court of New South Wales upon arraignment before Judge Huggett on 3 August 2021.

The Offence

The offence charged was in the following terms: that he on the 11th day of October 2019 at Kingsgrove in the State of New South Wales did use an offensive instrument, namely petrol, with intent to commit an indictable offence, namely intimidation, against RC. The offence was contrary to s 33B(1)(a) Crimes Act 1900. The maximum penalty specified for the offence is imprisonment for 12 years. There is no standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

The Plea

The plea of guilty was not entered at the first opportunity attracting a discount of 25%, however following negotiations and at a point proximate to the trial upon a more serious charge the plea was entered and accepted by the Crown in satisfaction, and thus by force of s 25D(2)(b)(ii) Crimes (Sentencing Procedure) Act 1999 he attracts a discount of 10% to the sentence that would have otherwise been imposed upon that offence.
There is a related offence arising from the same misconduct. It is an offence of contravening an apprehended violence order which was in place to protect the victim in this matter at the time of the misconduct leading to the prosecution for the principal offence. This offence is contrary to s 14(1) Crimes (Domestic and Personal Violence) Act 2007. The maximum penalty is imprisonment for two years and a fine represented by 50 penalty units. In respect of that offence the offender is entitled to a discount of 25% for utility. He entered a plea of guilty to that offence when the matter was before Judge Huggett on 3 August 2021. It was introduced into the proceedings as a related offence and that was the first opportunity for the matter to be dealt with.

Form One

There is a Form One offence of assault occasioning actual bodily harm contrary to s 59(1) Crimes Act 1900 for which the maximum penalty specified is imprisonment for five years. Again before Judge Huggett the offender confirmed that he wished that offence to be taken into account when sentence is determined for the principal offence and he admitted his guilt in respect of it. That offence will be taken into account in accordance with the guidance provided by Spigelman CJ in Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.
The additional offence shall impact upon the principal offence. There will be an appropriate increase in the sentence that would otherwise have been applied to the principal offence standing alone to reflect the need for greater weight be given to the purpose of sentencing of personal deterrence arising from the extent of the misconduct and the entitlement of the community to have retribution for the offences upon which the offender engaged in the events from which this prosecution arose.

Pre-Sentence Custody

At the time of the commission of these offences he was subject to an intensive corrections order. Upon his arrest for these matters the intensive corrections order was revoked and he was required to enter custody and he has been there ever since. The custody referrable to the intensive corrections order commenced on 12 October 2019 and expired on 18 July 2021, a significant period of time. He has been in custody with regard to or solely referrable to the present matters since 19 July 2021.
As both parties have reminded me there is discretion available when to order the date of commencement of this sentence that I am about to impose. The discretion is described by Simpson J in Callaghan v R [2006] NSWCCA 58. Her Honour said at para [22]: "22. I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23. It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. 24. However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences."
This is not a matter where the offender has had his parole revoked but has been required to serve the sentence that was before then being served in the community under the terms of the intensive corrections order. Even so, I am satisfied that the discretion to which her Honour spoke is available with regard to the commencement of the sentence I am to impose today.
It would not be appropriate in my view to commence this sentence upon the expiration of the custodial component to which he was subject, or until the expiration of the sentence served after revocation of the intensive corrections order, because one must bring to account the totality of the misconduct upon which the offender has engaged including the conduct which led to the intensive corrections order before the commission of the present offences. I have also taken into account that the intensive corrections order was imposed in respect of the misconduct relevant to the current victim. Bringing all of those factors to account, I have come to the view that the aggregate sentence I impose today shall be taken to have commenced on 12 October 2020.

Should the Offender Suffer Full Time Custody?

I comment at this point that it was urged with some force that I should consider a further intensive corrections order after determining the sentence appropriate in this case, but I agree with the Crown submission that it is not appropriate to take that course in the circumstances, including that the same victim was subject of the Prosecution on this occasion.
I intend to identify an appropriate sentence for the principal offence taking into account the assault occasioning actual bodily harm offence and an appropriate sentence for the contravention of the apprehended violence offence and I shall specify an aggregate sentence. I intend to find special circumstances to bring to account the custody to which the offender has been subject and also to allow him extended time on parole for pursuit of opportunities for rehabilitation, which are said to be supported by the evidence produced in the offender's case.

The Offender's Decision to not give Evidence

The offender did not give evidence and thus I am left to reach my decision upon representations attributed to him by others, including a psychiatrist, which were not under oath or affirmation, which have not been tested by cross-examination, and which are not entirely consistent with the agreed statement of facts upon which sentence is to be determined. Caution is required when assessing out of court representations for the purpose of determining sentence, as was noted by Smart AJ in R v Qutami [2001] NSWCCA 353. His Honour's view was expressed in terms consistent with the head note at item 4 in the reported version of the judgement: "Statements to psychiatrists and psychologists are admissible. But considerable caution should be exercised in a line of common where there is no evidence given by the prisoner."
Those observations were the subject of further consideration by Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour discussed the care required, with reference to Qutami (ibid) amongst other authorities. Beginning at paragraph [57], she summarised the statements that are derived from the authorities to which she referred, and once more reminded sentencing courts of the caution one must bring to bear when dealing with factual matters drawing upon representations that are not affirmed or unsworn and remain untested.

The Facts

The facts are signed by the offender; they bear the date 3/08/21.
He was born in 1973 according these and as at 11 October 2019 he and the victim were in a relationship and living together in Kingsgrove. Living with them were the victim's two sons, one born in 2003 and the other in 2005. The relationship between the victim and the offender had been extant for about three years.
As at 11 October 2019, the boys were on an overseas holiday. On the morning of that day, the victim went to work, she arrived at about 9am, and during the course of the day she and the offender exchanged a number of text messages in which he blamed her and her son for previous incidents between them, suggesting that the son and her ex-husband were manipulating her. The offender indicated that he was upset because the victim had not convinced her son to apologise to him. He said the victim had shattered his heart and dignity by not admitting that her actions and the actions of her son were wrong. The offender said that 22 October 2019 would be the end of their relationship.
The victim returned home from work about 5.30pm, and put on a grey cardigan and a blue robe which she wore over the top. At 6.30pm or thereabouts the offender and the victim had dinner together before retiring to the bedroom. There was no discussion about the text messages sent earlier that day. In the bedroom the victim lay on the bed and started watching a movie. The offender became agitated, got up from the bed and said, "I don't want to speak to you ever again." She walked out, went into the living room and slammed the door behind her and lay down on the couch. She was lying faced down with her feet closer to the door, the lights in the room were off but there was some light coming in from the outside. After about five minutes, the offender came into the living room holding a red petrol container in one hand. The container was about one third filled with petrol; the victim recognised it as the red petrol container which was usually kept in their backyard.
The offence on the Form One of assault occasioning actual bodily harm then was committed.
The offender put the container down. He approached the victim, took her by the hair with one hand and pulled her off the couch. This caused her immediate pain. The offender dragged the victim on to her knees so that she was facing the couch. The offender then knelt on the back of the victim's legs pinning her down, he then struck the victim to the jaw area a few times from behind.
Next described is the conduct upon which the principal charge is brought. The victim managed to free herself, stood up and ran into a corner of the room. There was an ironing board between the victim and the offender. The offender picked up the petrol container and held it in one hand with the other hand on the bottom of the container. The offender was also holding a cigarette lighter.
Para 13, I shall quote: "The offender then sprayed petrol from the container. In doing so, some petrol landed on the front of the victim's blue robe. The victim was saying, 'Stop, stop' and screaming the offender's daughter's name 'Maggie'."
Fearing that the offender was about to set the petrol alight she rushed towards a window in the opposite corner of the room. She removed her blue robe quickly in that process. She opened the window and jumped through the flyscreen head first. The flyscreen broke, separated from the window frame, and landed on the ground outside. She also landed on the ground. She ran to a neighbour's house to seek assistance. The neighbour came out and asked the victim what happened. The offender put his head out of the window and spoke in Arabic to the neighbour, and while the offender and the neighbour were speaking the victim ran into the house to get her bag, ran back to her vehicle and drove to St George Police Station. The victim described the incident to a police officer there. He could smell traces of petrol on her cardigan.
About 9.45pm the police officer and others attended the residence. The police smelt the strong odour of petrol throughout the house. They spoke with the offender and placed him under arrest. He denied assaulting the victim. He said that he wanted to burn himself with the petrol and that the victim had tried to stop him. He said that he did this because he was not happy. He said he suffered from PTSD and psycho-social issues. The offender was conveyed to St George Hospital for an assessment due to his indications of intended self-harm. He was allocated a bed in the emergency department of the hospital and remained under police guard when he was attended by medical staff. He also told hospital staff he wanted to burn himself.
After the police removed the offender from the residence on that night the victim returned home. The police attended about 5.45am on 12 October 2019. They there saw bruising to her face and chin. She later sent images to the police showing injuries. There is a series of colour photographs included in the material tendered. These show the victim standing with her right leg splayed. There are marks on her inner right thigh and toward the back of her right thigh. There is a photograph of her face showing marks on the left side of her chin and also the right side of her chin. There is a further photograph showing her legs. She is photographed from the rear and there is, what appears to be, a bruise to the inner aspect of the back of her left thigh; there is another photograph showing the bruise on the right side of her chin.
I find that these bruises are of significant dimensions. The robe was analysed by the Forensic and Analytical Science Service and found to contain petrol. The conduct was in breach of the apprehended violence order imposed at Sutherland Local Court on 19 July 2019.
The conduct, so described, might well have supported a far more serious charge but the Crown has accepted the plea of guilty to the charge on the indictment in satisfaction and therefore I focus upon the facts within the context of that allegation to obviate the risk of falling into error: R v De Simone (1991) 147 CLR 383.
The question that does arise though is the nature and extent of the intimidation. I observed in the course of the hearing upon what was the nature and extent of the intimidation or what was intended. It must be that the victim was intimidated for how could one explain the escape that she made from the premises otherwise. But in the context of the relationship as described in the agreed statement of facts, where there was some offence offered by the victim's son, as I understand matters said to do with him failing to clean up or perform some chore, and the offender's perception that the victim sided with the boy and did not support him in the position he took, whereupon he responded in the way that he did, violently assaulting this woman and then obtaining petrol to conduct himself in such a way intending to intimidate her.
In the course of hearing argument I referred to the term "coercive control" which I thought, upon the plain English meaning of those words, would apply to the circumstances that are before me. Counsel referred to the joint select committee of the New South Wales parliament that has published a report.
This process was undertaken in the hope of being able to provide a definition of that term for legislative amendment expanding the range of protections that should be made available to victims of domestic violence. I have not seen the report but counsel from her chambers, or wherever she is transmitting from, accessed the document online and provided me with a brief description of what she saw there of the description given to that term. Her submission to me was that the intimidation does not reach the level of coercive control contemplated in the document published by the joint select committee.
This might well be so and not wanting to be pedantic it would be better, I agree, to simply focus upon the term intimidation with which I am concerned and consider the nature and the extent of the conduct upon which the offender engaged the intimidation intended.
He did take hold of the victim's hair, he did drag her from the couch, he did kneel on her legs to pin her to the floor, he did punch her to the jaw leaving her bruised, he left her legs bruised, and thereafter once she sheltered behind the ironing board, he took the container of petrol and as described held it in one hand with his other hand on the base of it and sprayed petrol, some of which landed on her clothing.
Whether he intended to harm her in so distributing the petrol, whether he was intending to harm himself, or whether he was intending to harm both of them, the conduct could have had no other purpose other than intimidating her because of his perception of slight as a result of her failing to join with him against her child, who caused offence by not complying with his requirement to complete a chore.
It is necessary for me to assess where on the scale of objective seriousness I should place this misconduct; guidance has been offered by Johnson J in the decision Tepania v R [2018] NSWCCA 247. His Honour was dealing there with a standard non-parole period offence, but relevantly at para [112] said the following; "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statutory). Factors such as motive, provocation or non-exculpatory duress maybe taken into account in this way. Regard maybe had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law, that the motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence; .... [113] The concept of "moral culpability" was used by the sentencing judge in this case and submissions to this Court. The term "moral culpability" has been used (in a somewhat flexible way) as part of the general law of sentencing."
His Honour then referred to the well-known decision of Veen v The Queen (No 2) (1988) HCA 14 and observations that a mental abnormality may diminish moral culpability but an antecedent criminal history might illuminate moral culpability. His Honour then referred to the observations by the High Court in Muldrock v The Queen [2011] HCA 39 where reduced moral culpability might mean that retribution and denunciation did not require significant emphasis. His Honour referred to Bugmy v The Queen [2013] HCA 37 and the judgement at para [44] speaking of profound childhood deprivation, the effects of which do not diminish over time.

The Offender

The complexity in this case is revealed in this portion of the judgement dealing with the offender, and matters that might bear upon his moral culpability in the commission of these offences. The offender does not come before the Court without blemish; his record name is Fayez Taouk. He has been charged under that name, he has alias history recorded against him under the name in which he is charged on this occasion, and the name Leon Jean Tisserand and Leon Toke.
He was first before a court in August 1990 charged with an assault; he was required to enter a recognisance; that was a prosecution in the Children's Court. Then in October 1991, he was in the Children's Court for a street offence and in January 1993, was in the Local Court at Burwood for malicious damage; in February 1994 for an assault occasioning bodily harm, in June 2005 for passing a valueless cheque, in July of 2018 for driving with a prohibited drug present in his blood and stalking and intimidation intending a fear of physical or emotional harm, and assault occasion actual bodily harm. In that most recent offending he was sentenced to two years imprisonment to be served by a way of an intensive corrections order. Those proceedings were resolved on 19 July 2019, about three months before the offences on this occasion, with which the Court is presently concerned.
He has a record of punishment in the custodial setting; on 28 February 2021, he was ordered to spend seven days in his cell because of assaults; on 27 July 2021, he was ordered to pay compensation for damaging or destruction of property.
The offender was taken to St George Hospital on 19 July 2019, a little over a month before these offences.
A summary of care provided is described thus: "Leon is a 45 year old man with acute and chronic exacerbation of lower back pain and sciatica. Leon has a past medical history of PTSD, anxiety and depression T2DM, hypercholesterolemia and cirrhosis."
The history recorded on this occasion includes beatings and bashings throughout his childhood which he attributes to be the cause of his chronic back pain. There was a bone scan performed, a spondylosis at C8 and C7 was found and general deterioration of his spine was there discussed.
On 21 August he presented with acute and chronic exacerbation and discharged with Nurofen and Panadeine Forte; he disclosed substantial childhood trauma outlining neglect, physical and emotional abuse, and spoke of pain having made him suicidal without active plans, but for the protective factor of his partner. There was some prior episode with him ingesting excessive Valium; he is known to mental health services.
There is a report from Dr Olav Nielssen written on 10 July 2021. He provided a history to the doctor, confirmed that he was facing serious charges involving his former partner, the most serious of which was the allegation that he had splashed her with petrol in an attempt to set her on fire. He said that he intended to plead not guilty to the offence when the matter went to trial. He confirmed that he participated in an interview soon after his arrest but said he was in a confused state of mind and was unable to continue with it. He was taken to hospital and reported that his blood sugar level was found to be very high. The report includes: "When taken to the events leading to his arrest, Mr Tisserand said, 'It goes back to events in my childhood...I was neglected as a child...me and my younger brother and my sister...I copped it the most and I was treated worst...I was bashed and whipped with a power cable...I never got a birthday present or a party'".
He spoke of having confronted his father at some point several years ago, with an itemised list of his complaints about his upbringing. His father denied the abuse but then told him that he never wanted him and that he, the offender, did not deserve to be alive.
There was another occasion where he bought a watch for his aunt's birthday but was accused by his father of having stolen it. A shotgun was put to his head but then the receipt for the watch was found. He said "it hurts that your own parents see that you are worthless". He said he changed his name to distance himself from his father. He is attributed with information regarding the relationship with Ms Constantin: "He said that he met Ms Constantin on the dating website Plenty of Fish. He said that got (sic) on well and she invited him to move in with her and her two children. He said, 'She had two wonderful kids...I love them and treated them like my own...trying to be a good example'. He said, 'I furnished the house...I bought them things and talked to them...I would get them to do the chores'. He said, 'I repaired their relationship with their father' who he described as a 'deadbeat dad' and said this he helped Ms Constantin apply for child support, to which he had been told she was not entitled as she was not an Australian citizen".
He is then attributed with information that he was a self-employed builder, worked for most of the time in the relationship he had with Ms Constantin, but he could not work for three months after he was bedridden with a back injury leaving him with severe sciatic nerve pain. He spoke of her having nursed him and having looked after him.
He then spoke of the first incident; he said it followed a confrontation with one of Ms Constantin's teenage sons who was rude to him when he asked him to obey his mother and clean-up, followed by an argument with her in which she took her son's side. He said that "there was no apology, which upset him, as he felt it echoed his father's attitude towards him."
This was a reference to the conduct which led to the intensive correction orders.
He told Dr Nielssen of the sentence from those proceedings and that an apprehended violence order was put in place to protect her. He said that they continued living together and that she went to the police to try and vary the conditions; that carries the implication that she was intending or hoping to reduce the limitations. He then is attributed with the following regarding the further misconduct: "He said that there was a further incident in which Ms Constantin attacked him with a toaster, and was herself injured. He said that she was a heavy drinker, of as much as half a cask of white wine most nights, whereas he rarely drank alcohol. He said that Ms Constantin was charged over another incident whilst intoxicated, and had two drink driving matters as well".
It has not been put to me that the conduct which he attributed to Ms Constantin had any causal connection with the misconduct upon which I am to determine sentence today. The report continues: "Mr Tisserand said that prior to the incident that had been charged he had decided to move out, as he said he could not live with Ms Constantin and son unless he received an apology and there was a change in attitude, or 'that is how it played out in my head'. He said that he told his parole officer who he met as a condition of the ICO that he intended to move out when the boys returned from an overseas trip with their father".
It is clear that whatever was exercising his mind to engage upon this misconduct, the children, the boys, were not home, they were overseas, and the evolution of his decision to engage upon this misconduct arose in their absence. The report continues: "Mr Tisserand said, 'On the night everything happened I cooked dinner and she was helping me...we had lamb back strap and salad...afterwards we went outside to have a cigarette...she asked about text messages saying I was leaving...I said if I get an apology I won't...come bedtime she mentioned it again...I asked if she could speak to him and get an apology...she got up and walked into the lounge...I had a cigarette...I noticed the petrol can sitting on the verandah from where we had cut the grass the day before... I was thinking she is right... my parents were right...I am rubbish...I am nothing...I grabbed the jerry can and said, "You and my father are right...I don't deserve an apology," and I opened the can started pouring the petrol on myself...she wrestled with me and said, "Think of Maggie" [his daughter]...she said, "Give me the lighter"...some of the petrol has splashed on her and for some unknown reason she walks past me and jumps out the window.""
This does not sit comfortably at all with the facts signed by the offender and upon which I am to determine sentence. There is a stark contrast between the description given of her walking past the offender and for some unknown reason jumping out the window and the description given of the facts which has her fleeing from the circumstances and diving through the window after petrol issued onto her clothing which she removed in that process, hurriedly.
There is no reference in the description here to the serious assault occasioning actual bodily harm which he perpetrated as part of the sequence of events leading to the victim's escape from the premises. The report contains the following passage: "Mr Tisserand said that he had the same feeling and had doused himself in petrol once before with the idea of setting fire to himself, and on that occasion Ms Constantin had hosed him off. He said he expected her to confirm the previous incident when she gave evidence in court."
I have no further information before me regarding that past event. He represented that he had become depressed in the months before the offence attributed to the limitations from his back injury and the events in the relationship, and was very depressed in the months after he came to prison. He reported negative thinking, low self-regard, disturbed sleep in part due to back pain and frequent thoughts of suicide. He was prescribed antidepressant medication. He said that his earlier offences came from a fight from which he was assaulted with a bottle and the charge arising from the cheque was because he post-dated the cheque to pay for some building tools and asked the person not to bank the cheque until the end of the week when he expected to be paid. Again, I have no further information regarding that but if that was the case I would have thought he might have had the opportunity to resist the punishment that he received for that offence.
He spoke of his early development which was no different to that of his siblings but he left school early to help support the family. He said he was a slave. He didn't report contact with the school councillors or Child Welfare Service. He said teachers asked him about injuries but he was too frightened of his father to say how they were occasioned.
There is reference to the overdose he reported, taking excessive Valium in early 2019. In hospital, he had blood taken which revealed prescribed opioid medication and high sugar level. He reported no symptoms of schizophrenia. He did not report any prior suicide attempts, although then he was no longer thinking about suicide because of his daughter. He had assistance in the past from Dr Martin Reading, psychiatrist, and a psychologist, Diana Lisner.
There is reference to his Type-2 diabetes, cardiac arrhythmia for which he takes medication including aspirin to minimise the risk of clots. He had a serious head injury about which there seems to be no dispute in 1986 when he was aged 12. He was unconscious for several hours, surgery was required to move a blood clot that had formed on his brain, and he has a scar over his left temple. He had three weeks in hospital; he spent time in a wheelchair afterwards because of a broken leg. He had anti-convulsant medication as a precaution; he had no memory of any seizures. He said he had problems with memory and concentration. He said he was aggressive for a while but could not say whether it was from the accident or from his father.
A compensation award of $190,000 was paid but it is said that his father reappropriated that; the implication is that was misappropriated, I have no further information regarding that. I would note though that the proceedings at that time would have been by way of a tutor or next friend depending on where the compensation was sought, and I would have thought that there would have been arrangements in place to protect the corpus from dissipation by his parents, but I can express no view one way or another because I do not have enough information.
He did not drink alcohol apart from the occasional whisky. He denied the use of cannabis. He had taken stimulant drugs occasionally apart from methamphetamine; he denied any other use of illegal drugs. He gambled occasionally but not in large amounts. He spoke of his family history, qualifications as a concreter and a detail carpenter. He mainly worked as a sub-contractor including as a shopfitter and was continuously employed in some capacity or another since leaving school, apart from the three months he was bedridden with sciatica.
He married at the age of 29 to a woman also of the same heritage; they were together for 12 years and they have one daughter now 18 in her first year at university; his wife has re-partnered.
He was with the victim in this matter for three years and two months and they lived together for most of the time. He enjoyed making furniture and leather goods in his spare time. His plans for the future are to spend time with his daughter and to return to work.
The doctor had the narrative of the Crown case statement and the history of his treatment at St George Hospital and history of PTSD, anxiety and depression and he has had reference to the Justice Health records. I note that the reference to the Crown case statement is not a reference to the statement of agreed facts. The Crown case statement, I would expect, would have been prepared in anticipation of a trial on a more serious charge, which might explain, as was put to me by his counsel, the absence of any reference in this report to the assault occasioning actual bodily harm. However, I find it extraordinary that a psychiatrist with the experience of Dr Nielssen would not have explored the entire factual scenario from which this prosecution has arisen, including the assault occasioning actual bodily harm which must have had some relevance to his assessment of the offender and the opinion he ultimately offered.
There is no obvious sign of neurological disorder, no abnormal patterns of speech or beliefs. The depressive illness in partial remission was diagnosed with probable acquired brain injury. The question arises though as to whether or not the acquired brain injury at the stage of the offender's life extending back to before 2019 when these events occurred has any causal connection with the misconduct with which he is charged. It is not possible to conclude one way or the other upon the material I have.
In light of the work history and the progress in life that the offender made, which challenges any suggestion that whatever injury he suffered, at least in recent years or the more recent period in his life has not impacted so as to defeat him in his work experience and income earning activity.
In the opinion section of the report Dr Nielssen notes the diagnosis of probable acquired brain injury is based on the history of a traumatic brain injury at the age of 12 after which he suffered a period of unconsciousness.
He noted the offender's report of impairment and cognitive function in the aftermath of the accident and a possible increase in irritability.
He writes: "There was little in the way of clinical evidence of cognitive impairment during the recent interview. However, impairment in emotional regulation and impulse control are a common long-term complication of acquired brain injuries".
Further, "Mr Tisserand's alleged behaviour appears to be at least partly due to the catastrophic thinking associated with his perception of the course of his relationship with Ms Constantin. Based on his account of dousing himself in petrol first, and the reason for doing so, if he did carry out his threat or was accidentally set alight the outcome would inevitably have been severe and potentially fatal burns to himself".
I would observe that might have also included the victim in this matter. This passage is a fair reflection of the level of seriousness of this misconduct.
The further report was written on 20 August 2021. This was again by audio visual link. On this occasion the offender confirmed he would enter a plea of guilty to the offences in accordance with the statement of agreed facts and was due to be sentenced next week.
He confirmed that he had a serious head injury at the age of ten, which apparently is an error in the report on this occasion, that left him in a coma for three weeks and for which he required surgery to remove a blood clot from the brain. His scar was shown. He confirmed his association with a former neighbour, Ms Fitzpatrick.
He is attributed with the following: "He said, I can't believe I got myself in to this mess...but I have got good support...I will just get myself the counselling I need...stay on the citalopram...get out and start fresh".
He has support from his brother and his former neighbour, and the report continues: "Mr Tisserand said, I feel really sad for my ex-girlfriend to see me that way...it must have scared her seeing me trying to douse myself in petrol". He said, "I feel really remorseful...if I could turn back time but I can't...I would not want to traumatise anyone...I have had enough in my life".
The doctor then reviewed documents and then offered an opinion in this report, including reference to the diagnosis of depressive illness and the traumatic brain injury at the age of ten. Again, that should have been 12 as I perceive matters. He writes; "There is (as I see) a well-recognised association between traumatic brain injury affecting the frontal lobes of the brain, and emotional ability and impaired impulse control, and Mr Tisserand's behaviour in dousing himself in petrol after a dispute with his partner is consistent with the extreme emotional responses that can occur after brain injury".
I have difficulty accepting that opinion to the extent that it suggests that he has been suffering from or suffered from an extreme emotional response the consequence of the brain injury that he suffered when he was 12.
First, the description of having doused himself in petrol is not consistent with the facts and I do not accept that to be the case upon which sentence is to be determined.
There is no evidence of any symptoms or circumstances from a reliable medical source to support the representations given by the offender within this context, although there are laypeople who have offered their observations of him to which I shall come.

Consideration

All of that said, the evidence before me is sufficient to support a finding that he did have a difficult childhood, and that it would and must have had some impact upon his development through his formative years, with the added occurrence of the motor vehicle incident in which he suffered an acquired brain injury, so that to an extent one can explain why he evolved into the personality that he has, and responded as he did to the perceived insult by a young boy who did not apologise to him when he felt that he should have had an apology, and, when the boy's mother did not support him in that regard, he took the decision he made to seriously assault her and then to intimidate her in the way described in the agreed statement of facts.
There is an impact upon the assessment of moral culpability from his upbringing. Upon the authorities to which I referred drawing upon the judgement from Johnson J in Tepania (ibid) his upbringing provides a sound basis, in my view, for allowing him consideration of the history of his experiences during his upbringing to inform the extent to which was morally culpable in this misconduct.
There is some reduction in the level of moral culpability upon my assessment by reason of those factors, but I look at his age, I look at the achievements in life so far, including his employment history to which I have been taken by way of these reports, and it does seem to me that his moral culpability, though reduced, is not reduced to the extent that he can avoid a custodial sentence in this case.
Bringing that to account and taking into account the serious nature of this offending I find that the misconduct involved in the offence upon which I am to determine sentence falls about mid-range, perhaps a little below it but not by far.
The assault occasioning actual bodily harm offence I find is above mid‑range and will impact upon the sentence that I intend for the principal offence accordingly.
This occurred in the victim's home. She left the bedroom to find some privacy after there was some acrimony evolving because of the childish text messages that he sent to her threatening to leave if she would not support him in his demand for an apology. I bring those matters to account in the circumstances of the offending.
I am satisfied that is where the offences should be placed.

Evidence in Support of the Offender

The material he provides in support is first an affidavit, by Gregory Anthony, a friend of the offender, known to him since they were children growing up in Concord. He is surprised at the charges that he faced. He maintained contact with him by telephone. There are limitations because of COVID, more recently more challenging because of the infections that have been uncovered in the Corrective Services establishments. He has a home at Rydalmere where he lives with his two boys aged nine and 11, and he will provide a home for the offender once he is released to parole.
He attributes the offender with a description of the event involving him hitting her as well as breaching the AVO, that he was wrestling with the petrol and it sprayed a little on her gown. He said he would not have anything to do with her again, and expressed sorrow. The description of the event recorded in the affidavit by Mr Anthony does not include that he doused himself in petrol and that he had the intention to set himself alight. It is more in keeping with the statement of facts.
He has never known the offender to be violent with his partner or his daughter. He spoke of the diagnosis of the brain injury 35 years ago; when he came out of hospital from the event he was very changed. He began training and became really fit and he would, according to this witness, "lose the plot" when people made fun of him. He will provide all the support that the offender will need.
There is an affidavit of Patricia Fitzpatrick. This is a lady of 73 years, unrelated but who lived nearby to the offender when he was a child. She has known him since the middle nineteen eighties. Her children would play with him and his brother. She saw welts from where he said his father had whipped him with an electrical cord on his back, head, chest and arms. She tended to his injuries on occasions, some of which were bleeding. She reported this to the police but nothing was done by them. His father also humiliated him and said things such as "get fucked you cunt, you're rubbish and no good for nothing". He was humiliated by his father. He referred to this lady as mum.
He was always well behaved and respectful and she refers to the incident where he was struck by the car when he was aged eleven or twelve. She thinks he might have been hit by a bus but she is not sure. After that episode he would come to their home and stay for periods of time. His mother was unable to care for him because she also worked lots of hours. He became very disobedient with his parents and became known to the police at a young age, hence the record in the Children's Courts. He went to a special school at Prince Henry Hospital and to Christian Brothers at Burwood. He had medication to help him sleep. He suffered mood swings, he began not taking pride in his appearance and he complained of being neglected.
She said she has never seen him violent in her presence, never heard of him being violent. She said that he grew up to be a good person, a hard worker, at one time owning construction businesses worth millions. She clearly holds him in high regard and great affection.
Then there is an affidavit by Ms Gabriel Sledge who works for the Canberra Alliance for Harm Minimisation and Advocacy. She speaks of her qualifications with a Bachelor of Science, Mental Health. She has known the offender for some 40 years. She was informed that he had brain damage which she now understands to be an acquired brain injury. She has not seen the medical documents but noted that before this episode he was a healthy young boy, respectful of his family and so forth. Afterward he became depressed and withdrawn, lost a lot of friends, and could not navigate normal schooling, eventually dropping out of school. He is charged, according to her understanding, with pouring petrol on himself and at the same time intending to pour petrol on his girlfriend.
She said that she is not a psychiatrist and would need to have the assistance of a psychiatric assessment but in her professional capacity and with the knowledge that she has of him, she could say that he would not be able to form the intent for this offence due to his brain damage. I do not accept this. I believe it to be wrong when I consider it against all of the other material tendered; also the deponent has no qualifications which enable her to offer any such opinion.
She does speak of him in positive terms. She saw him go from a fully functioning young person to one who could no longer cope with life, in contrast to what was said by the other deponent and the success in his work life and what the offender described to Dr Nielssen. She was surprised that he said he intended on killing himself based on his history of previous attempts, of having no support in the community, the loss of his mother, a sole care giver against an abusive father, and being abandoned at such a young age.
Some of that background is supported, some is not. There was no previous attempt on his life, although he had thought of suicide according to Dr Nielssen but had not taken any steps toward it except when he took excessive quantities of Valium.
She is very supportive and obviously thinks well of him and that must be brought to account in support of him.

Victim Impact Statement

The parties provided written submissions which I shall come to in a moment but first I shall turn to the victim impact statement.
Before I turn my mind to give consideration to this document I formally convict the offender of the offence on which sentence is to imposed, using an offensive implement with intention to intimidate, and I formally convict him of the offence of contravening the apprehended violence order.
The victim impact statement has been modified to remove part of the ultimate paragraph. I shall read it when I come to that part of the document to make sure the record shows that I have taken into account that which is not excised from the document.
She speaks of the circumstances where she was the victim of domestic violence. She writes that one cannot imagine what she has been through because the reader is not her. She felt as if she was trapped, she was feeling insecure but more scared of being beaten, which happened at the hands of the offender she says. She did not deserve this at any point. She recalled being punched to the face and struck on the head.
Aside from the physical damage she was emotionally "stuck down a hole" to use her words. She had no support network here in this country. She had some close friends; a few work colleagues but no family. She cannot sleep at night and still wakes in response to the most minimal of noises. She is then unable to return to sleep; she now suffers from insomnia and has on occasions gone for days without sleep. She is prescribed sleeping tablet medication to help her but it has not worked. She has a fear of sudden noises and is always looking back to see if she is being followed. Not having slept has caused her to be more anxious, her productivity at work was impacted as a consequence of her lack of concentration from these events. Her relationship with her children is also impacted. She thought she was going to die at the hands of the offender, she prayed to God that her children would be okay. He was able to get petrol on her at that point in time. She believed that God saved her and saved her children from the person she described as a monster.
She found herself isolating from people after these events. She found it difficult to begin to trust anyone even to engage in conversation. The last paragraph I shall read: "The psychological damage caused by Leon is now a distant memory, but I've never forgotten the pain, torment and nightmares I still have about (him) beating me."

Submissions

On behalf of the offender I am reminded of the facts which I have rehearsed so far. Statistics were provided for me drawing upon outcomes in the Local Court which put the high watermark of sentences for these offences at 22 months, bearing in mind that the maximum penalty in that jurisdiction is one of two years; the benchmark relevant to the subject of sentence in this Court and indeed in the Local Court is one of 12 years although that is not a range that is available to magistrates in the determination of such matters. It was said to me that there were very few cases and insufficient to provide reliable statistics in respect of outcomes in the District Court. I find it surprising but be that as it may that I am told is what is available.
The only case that could be found was a decision of Greene. I do not have the citation for it but it appears from what I was told that it was from an event involving someone flicking a lighted cigarette toward a victim. It was a prosecution under the same provision and a sentence of five years was imposed with a non-parole period of two years. It was said to be a far more serious example of this type of misconduct in contrast with what I have before me here. I do not know enough about that case to comment and I would like to hear counsel's representations regarding that.
There is a range of authority now dealing with the significance of punishment by way of an Intensive Corrections Order and counsel have carefully provided summaries of the cases and the principles for which they stand quoting relevant passages. I am urged to the view that this is a case which requires the identification of a period of imprisonment up to three years and in respect of which I can then order the sentence to be served by way of an Intensive Corrections Order in the community to provide him with opportunities to be supervised, to pursue rehabilitation, bringing to bear of course the period of time that he spent in custody.
I have already expressed the view that I do not believe it is the appropriate course in this case and that a custodial sentence is to be imposed. However find special circumstances.
The guilty plea is addressed. General deterrence and offences of domestic violence were discussed. Clearly there is significant weight to be given to the aspect of general deterrence. Domestic violence is blight and the courts must make clear that if people engage upon it condign punishment, in which means appropriate punishment, will be imposed.
I have here the citation for Greene [1] to which I was referred. It is R v Greene [2001] NSWCCA 258, with specific reference to para [16] in the judgement of Howie J.
I accept the summary that is here provided; the application of this section to circumstances where a flammable liquid was used; his Honour stated the importance of general deterrence for domestic violence offences; the case concerned the offender who threw a lit cigarette to the victim and then repeatedly poured turpentine on her, kissed her goodbye, she ran to the bathroom and took off her clothes drenched in turpentine, thus the sentence of five years with a non-parole period of two years.
Upon that bare reading is a description of circumstances that do appear to be more serious than those with which I am presently concerned, absent of course the serious assault occasioning actual bodily harm that preceded the use of petrol on this occasion intending to intimidate.
Specific deterrence is addressed. The nature of his criminal history is described. He has thus become disentitled to leniency, but the extent to which it is an aggravating factor including that he was on an ICO at the time does not add to the objective gravity of the offending or the punishment that is proportionate to the offending, but it does address aspects of specific deterrence and, as I said, the loss of considerations of leniency.
I agree there are special circumstances in this case by reason of the prior custody to make sure that the ratio in s 44 Crimes (Sentencing Procedure) Act 1999 is not disrupted, but in addition he does need an extended period on parole in my assessment to address whatever his challenges are by reason of his depression, presently in remission, and whatever the effects have been from the mistreatment he suffered at the hands of his father as a child through his formative years.
It does appear from the material I have that he has demonstrated with his expressed attitude toward the victim's sons and with the progress he has made with his employment and with what is said of him by others, that he has been able to assimilate the abuse that he has described at the hands of his father, but these things, as is made clear by authority if not as a matter of common sense, do tend to impact continually upon people as they evolve through life regardless of the number of times they might be brought before Court; and thus they are always relevant. I am satisfied they form an adequate basis for the finding of special circumstances which I make.
He has expressed remorse. I am not satisfied though that he has satisfied s 21A(3)(i) Crimes (Sentencing Procedure) Act which requires evidence that he has accepted responsibility for the conduct upon which he engaged and acknowledged the harm caused. The evidence just does not allow me to go that far. I accept that he has pleaded guilty. That is relevant to remorse, amongst other things, but I am not satisfied that he has discharged the burden of proof he has in this regard and required by that provision.
Protection of the community from the offender it is said would be provided by use of an ICO with supervision. Similarly he will have this opportunity and the community will have protection from him when he is subject to parole because if he fails to meet the conditions of parole he will go back into custody. Rehabilitation: I accept the sentence should be structured so as to facilitate his rehabilitation. The sentence I am going to impose will denounce his conduct. It was deplorable and this woman should not have been exposed to this violence.
He is to be sentenced I am satisfied recognising the harm that the victim has suffered and the harm for the community generally by reason of such behaviour. It is submitted that the offence occurred in the victim's home and he was subject to the ICO at the time and those are additional aggravating factors. Mitigating factors advanced are that this was not planned or organised. I accept that this was spontaneous and based on emotion.
That he is unlikely to re-offend: I am not prepared to make a finding on those terms. His prospects for rehabilitation by reason of his age or otherwise: I believe that there are prospects. I am not prepared to make a finding that they are prospects that can be said to be good prospects for rehabilitation. His plea, I have taken into account.
I am urged to impose concurrent sentences including with regard to the breach of the AVO offence. There will be some accumulation though because of the fact that the AVO offence was when he was subject to an ICO imposed for prior misconduct against the same victim.
Totality: I am reminded of the principles that apply in relation to that and the Form One. It is said that he is at the crossroads. I do not make a finding in those terms in light of the disparity between the representations attributed to him by the doctor, and the agreed statement of facts.
The Crown has put in more succinct submissions that cover all that needs to be said. Again the history of the relationship as discussed. The sequence of the conduct as discussed. The need to denounce conduct such as this with appropriate weight to general deterrence and personal deterrence must be brought to account. The degree of violence is relevant in this case. It is a domestic violence offence and there is to be appropriate consequences for perpetrators of domestic violence to provide to the extent that the law can protection for those who live in these circumstances. I agree that the offending would have been terrifying for the victim. No other view could be taken of her response to what he was doing with that container of petrol. The same aggravating factors were advanced by the Crown, and the plea and the discount of 10% to the principal offence are acknowledged.
The offender has been in custody as noted, and that brings me now to the determination of the sentence.
The ultimate consideration must be what his intention was at the time he behaved in this way toward this woman. Did he intend only to harm himself? Did he intend only to harm her? Or did he intend to harm both of them? Did he intend to intimidate her only with a threat of either harming himself or her or both of them?
For the offence to which he has pleaded guilty he must be sentenced on the basis that his intention was to intimidate her by causing her to believe that he was going to set fire to the petrol that he caused to be splashed in the way that he did as described in the facts, some of which went onto her gown.
The misconduct as I have said falls to some slight degree below mid-range of objective seriousness. The contrasting versions attributed to him by Dr Nielssen and indeed others in the documents that have been tendered, or filed, leave me with the decision to determine sentence upon agreed facts signed by him attributing little weight to his expressions that might be thought to support a finding that he is insightful. I do not believe that, as the Crown said, he has demonstrated appropriate insight into the wrongdoing.
In the course of the submissions it was said to me by Ms Hawkins on behalf of the offender that his offence was the intention to intimidate spontaneously without planning. He did not douse her with petrol. I have already said that I will deal with this on the basis of the facts so describing his conduct. She urged much of what she had provided in her written submissions. She said that he did not have before these events the support that he now has. This may be so, although he must have had some capacity to achieve what he did with his work as described by the others who speak of him. He does have his brother available to him.
Ultimately Ms Hawkins said that this conduct is explained because he had a sense of humiliation from the circumstances involving the failure of the young boy to apologise unsupported by the boy's mother. There was a trigger for the recurrence of the humiliation that he recalled, suffered as a child. That is a succinct way I believe of saying what I have already said about the offender and his background to explain what he chose to do and did on this occasion.
There is one affidavit to which I have not referred. This is an affidavit by John Taouk, part of the offender's case, the offender's younger brother. He speaks of the car accident when the offender was 12, the nature of the impact, his induced coma of three weeks that followed, the significance of the head injuries, and that he was not the same person thereafter. He had been a happy enough child although he suffered brutal punishment at home. After the head injury he exhibited frustration, anger, lack of motivation and pain. He said his personality changed. He started doing silly things, would suddenly go off for no reason. It was difficult to talk to him, but being a child himself at the time he ignored the behaviour; he speaks of the need for the offender to get his mental health in order.
As I have said, this needs to be assessed against what the offender had demonstrated elsewhere.

The Sentence

I have already convicted him of the offences. I intend to impose an aggregate sentence; the aggregate sentence will consist of a non-parole period of 2 years commencing on 12 October 2020. The head sentence is one of 4 years and 3 months, the offender will be eligible for parole on 11 October 2022 and thereafter he will be subject to parole for a period of 2 years and 3 months.
I have taken into account the Form One offence and I shall certify the Form One to confirm that I have done so.
The sentences I identify as appropriate in this case are, for the offence of using the implement with intention of intimidation, a sentence of 4 years. I have rounded that down to that period abandoning some months and days upon the application of the 10% to the starting point.
For the offence of contravening apprehended violence order, I specify a sentence of 1 year, reduced by 25% for the plea of guilty.
To repeat those particulars, there is a non-parole period of 2 years, commencing on 12 October 2020, expiring on 11 October 2022 with the head sentence of 4 years and 3 months. The expiry of the head sentence will be 11 January 2025.
The indicative sentence for the offensive implement, to intimidate offence, is 4 years and the offence for the breach of the AVO is 1 year.

Endnote

This was retrieved by my Associate as I was continuing the ex tempore judgement. 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: 13 October 2021

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (10)

Cited By (2)