R v Van Duren [2017] ACTSC 132

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - assault occasioning actual bodily harm - assault on police officer - unlawful strangulation of RSPCA inspector - trespass and damage property on RSPCA premises - where offender's dog seized - where offender has PTSD as a result of defence service - relevance of mental health condition to sentencing

Crimes Act 1900 (ACT) ss 24, 28(2)(a), 116(3)

Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11(1)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 13, 33, 33(1)(m), 35

Legal Aid ACT (Offender)

SCC 119 of 2016; SCC 120 of 2016

1. The offender pleaded guilty to two offences committed on 30 December 2015:

(a) assault occasioning actual bodily harm (of Constable Damien Neit), an offence against s 24 of the Crimes Act 1900 (ACT) (Crimes Act) which carries a maximum penalty five years' imprisonment; and

(b) unlawful strangulation (of RSPCA Inspector Catherine Croatto), an offence against s 28(2)(a) of the Crimes Act which carries a maximum penalty of five years' imprisonment.

2. The Court is asked to deal with two transferred summary charges:

(a) trespass, an on offence against s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) which carries a maximum penalty of a fine of $1800; and

(b) damage property, an offence against s 116(3) of the Crimes Act which carries a maximum penalty two years' imprisonment.

3. The pleas of guilty were entered in the Supreme Court on 3 April 2017, the date when a trial was scheduled to commence. Under s 35 of the Crimes (Sentencing) Act 2005 (Sentencing Act), the offender will receive a discount of about 10 or 15 per cent for the pleas of guilty. Although they were entered extremely late, they had been foreshadowed about two weeks earlier. The prosecution had been able to advise witnesses. The running of the trial would have been very distressing to some witnesses, particularly the victim, Inspector Croatto. On the other hand, the Crown had a strong case.

4. The offender was arrested on 30 December 2015 and remained in custody until granted bail on 15 February 2016, having spent an estimated 46 days in custody.

5. On 11 November 2015, RSPCA Inspector Croatto attended the offender's premises and removed an Irish Wolfhound dog that was in poor condition. The offender was not home. Subsequently, Inspector Croatto spoke by telephone to the offender and told him that the dog had been seized.

6. The dog in question was not owned by the offender. He agrees that it was in poor condition, but says that he was attempting to nurse it back to good condition but was unable to afford veterinary care to expedite the process.

7. On 5 December 2016, the offender was found guilty of failing to alleviate an animal in pain and released pursuant to s 13 of the Sentencing Act on entering a 12-month good behaviour order.

8. On 17 December 2015, a member of the public found a black Belgian Shepherd named Kalu belonging to the offender and brought the dog to the RSPCA believing it to be a stray dog. As the RSPCA considered that the dog was thin, it was seized. There is no evidence that the dog had been neglected.

9. A search of microchip databases did not locate a registered owner, but the RSPCA suspected that the dog belonged to the offender. On 22 December 2015, the RSPCA wrote to the offender saying that they wished to interview him about Kalu. By this stage, the offender felt that he had been unreasonably targeted by the RSPCA and Inspector Croatto in particular.

10. At about 7.50 pm on 29 December 2015, the offender broke into the RSPCA premises at Weston by cutting the wire fencing around the perimeter of the premises. He then cut the wiring around the perimeter of the kennel area and the steel mesh on the door to the kennel housing Kalu. He removed Kalu.

Assault occasioning actual bodily harm and unlawful strangulation

11. On 30 December 2015, Constables Neit and Osathanonda attended the RSPCA premises and examined computer printouts of CCTV footage. They also located a Facebook entry in which the offender admitted releasing Kalu from the RSPCA premises.

12. The police attended the offender's residence, followed by Inspector Croatto and another RSPCA officer. The police entered the offender's residence. Initially, the RSPCA inspectors stood outside. After a period, they entered the offender's residence. This made the offender extremely upset.

13. The offender admitted to police that he had released Kalu. He said that, if the dog was seized that day and if the he himself was not taken into custody, he would release the dog from the RSPCA. The offender was very upset and somewhat argumentative with the police. The police attempted to negotiate with him.

14. The incident escalated when the offender became aware of the proximity of the RSPCA officers and of their intention to seize Kalu. He ran to Kalu. Constable Neit asked the offender to move away from Kalu and get on the ground. The constable moved towards the offender and took hold of him. The offender pulled free and punched the constable twice to the right side of his face. A struggle ensued. At one point, the offender held the constable in a headlock, causing actual bodily harm to the constable's ear, resulting in bleeding and the need for two sutures.

15. Inspector Croatto attempted to assist the constable. The offender began to struggle with the inspector. Constable Osathanonda (the second police officer) gave the inspector a can of oleoresin capsicum spray (capsicum spray). The offender placed his left hand around the inspector's neck, strangling her in an attempt to disarm her and take the capsicum spray.

16. The inspector's voice became increasingly strained, her face began to turn a dark red, and she experienced difficulty with breathing. She believed that she was on the verge of losing consciousness and had even contemplated the prospect that she might die.

17. The second police officer used a baton to repeatedly strike the offender's legs. Eventually, the offender released his hold on the inspector.

18. The offender then threatened the inspector saying, "you're fucking dead, bitch, this is only 50 per cent of what I can do," and, "you'll be dead inside a year." However, he was apologetic towards Constable Neit, acknowledging that the constable had been merely trying to do his job and apologising for injury caused to the constable's ear, which was, by that stage, visibly bleeding.

19. The offender was arrested and taken into custody.

20. The damage property and trespass offences were serious offences of their type and, in each case, the offence was premeditated. The offender must have taken an implement with him to assist in gaining entry to the premises. The damage to property involved several forms of damage.

21. The assault occasioning actual bodily harm to the constable was a moderately serious offence of its type. The injury was sustained while the police officer was attempting to perform his police duties. The Court must send a strong message of general deterrence in relation to assaults on police officers who are assaulted in the course of duty. The offender was responsible for turning the incident into a physical incident. It was he who instigated the struggle. The extent of the actual bodily harm (a bleeding ear and two stitches) was not insignificant.

22. The unlawful strangulation of the inspector is the most serious offence. It occurred in the course of the inspector's employment duties. Immediately after the strangulation, the offender made threats to kill the victim. The victim suffered significantly at the time; her voice became strained, her face began to turn dark red, she felt she could not breathe, and she believed that she was on the verge of losing consciousness. Although brief, undoubtedly this was a terrifying event. As a result of the offence, the victim had bruising to her throat. The Court has not seen a victim impact statement. However, I am sure that the incident would have had a significant psychological impact on the victim. The objective seriousness of the offence is moderate to high and calls for a significant sentence of imprisonment.

23. The offender was 41 years old at the time of the offences.

24. The offender's criminal record contains numerous entries. In 2004, in New South Wales, he committed an offence of aggravated break, enter and commit serious indictable offence, and was sentenced to one year and nine months' imprisonment with a three month nonparole period concluding in November 2006. The offender was released to be subject to supervision and undertake psychiatric treatment. In 2010, the offender committed an offence of assault occasioning actual bodily harm for which he was sentenced to seven weeks and one day's imprisonment. There was an offence of an assault occasioning actual bodily harm in 2010. The other matters on the offender's criminal record are of less relevance.

25. The offender was raised in Canberra. He is one of four children. His upbringing was not problematic. However, he has limited contact with his siblings and extended family.

26. In his 20s, the offender married, but the marriage ended after three years. There is one child of the relationship who is now about 18 years old. The offender is attempting to re-establish a relationship with that child.

27. In 2011, the offender remarried. He lives with his second wife, a stepdaughter (now 13 years old) and two children of the second marriage (now aged three and four years). The offender plays a very significant role in the children's upbringing. He is described by referees as a caring and patient father.

28. The offender completed Year 12. After leaving home, he joined the Australian Defence Force and was employed by various armed forces between 1997 and about 2003. In the course of his defence service, he was confronted with numerous traumatic events, particularly in Timor-Leste in the period 1999 to 2000. The offender's defence service has a continuing and significant psychological impact on him. The offender left the Defence Force and is considered totally and permanently incapacitated for military service.

29. The offender suffers from post-traumatic stress disorder (PTSD) as a result of his defence service. In the past, the offender has been treated for the condition, but he is not currently receiving treatment. The condition has not resolved.

30. After leaving the Defence Force, the offender commenced a university course, but did not complete it. He has not engaged in paid employment since leaving the Defence Force. He receives a pension through the Department of Veterans' Affairs and has limited financial resources. He is eager to obtain employment.

31. The offender's PTSD is relevant to the sentence proceedings in a number of ways.

32. First, the offender's condition partly explains why he reacted as he did on 29 and 30 December. Like many veterans and other psychologically vulnerable people, the offender benefits greatly from the companionship of his dog, Kalu. He finds walking Kalu to be very therapeutic.

33. Because of his dependence on his dog, the offender was particularly incensed by the intervention of the RSPCA in seizing Kalu, which he considered to be unjustified. From the RSPCA's perspective, based on the information it had, it was justified.

34. Fortunately for the offender, Kalu was returned to him in April 2017.

35. The offender's condition also reflects on sentencing purposes such as rehabilitation.

36. A psychiatric report confirms that a sentence of imprisonment could have a deleterious effect on the offender's psychological condition. I place considerable weight on this opinion because it is provided by an independent forensic psychiatrist. I take into account that a sentence of full-time imprisonment may impact more significantly on the offender because of his mental health condition: s 33(1)(m) Sentencing Act.

37. The offender was on strict bail conditions which, at one time required, that he not leave home unless accompanied. While I take these conditions into account, they do not significantly affect the sentence that I would otherwise have imposed.

38. References were provided from veterans and others. The offender is described as a calm, gentle and positive person. The references refer to the offender's intelligence, integrity, and commitment to improving his situation and contributing to the community. Generally, the offender is on a positive trajectory.

39. The offender is involved in various community groups that are connected with veterans. He has been mentored and supported by veterans and veteran groups. In turn, he has contributed to veterans and veteran organisations. Such organisations will continue to be an important source of support to the offender.

40. The offender has spent 46 days in full-time custody. I take this time into account in sentencing; it would have been a significant form of punishment for the offender.

41. I have considered the relevant sentencing purposes in s 7 of the Sentencing Act. These purposes include general deterrence, accountability, and denunciation and recognition of harm to the victims. Another important sentencing objective is rehabilitation. The offender has good prospects of rehabilitation.

42. I have referred to the relevant matters in s 33 of the Sentencing Act.

43. The offender is willing to participate in community service work, although the pre-sentence report suggests otherwise. The offender clarified that he prefers to undertake work that is meaningful and connected to a community group, but will comply with the terms of any community service order. I am not bound by the view of the author of the pre-sentence report that the offender is unsuitable for community service.

45. For the offence of trespass, the offender is fined $200, to be paid within six months.

46. For the offence of damage property, the offender is sentenced to a good behaviour order requiring him to sign an undertaking to comply with good behaviour obligations for six months.

47. For the offence of assault occasioning actual bodily harm, the appropriate starting point for the sentence is 12 months' imprisonment. Taking into account the offender's plea of guilty, I impose a sentence of 10 months' imprisonment from 18 January 2019 to 17 November 2019. This sentence is suspended immediately upon the offender entering into a good behaviour order for the period of two years and six months, from 18 May 2017.

48. For the offence of unlawful strangulation, the appropriate starting point for the sentence is two years and six months' imprisonment. Taking into account the 46 days the offender has spent in custody, and allowing a discount of around 10 per cent for the plea of guilty, I impose a sentence of two years' imprisonment from 18 May 2017 to 17 May 2019.

49. The periods of imprisonment are therefore partly accumulated to amount to a total sentence of two years and six months' imprisonment, entirely suspended.

50. The period of imprisonment for the strangulation offence is suspended immediately upon the offender entering into a good behaviour order for a period of two years and six months, from 18 May 2017. This good behaviour order is subject to the additional conditions that:

(a) the offender report to ACT Corrective Services by 4.00 pm on Friday 19 May 2017 and submit to their supervision for as long as they consider necessary, but for a period of at least six months;

(b) the offender undertake 200 hours of community service.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.