R v Watson [2014] ACTSC 395

Crimes Act 1900 (ACT)

Magistrates Court Act 1930 (ACT)

1. Michael John Watson, who was born on 3 April 1973 and is aged 41, appears for sentence. He pleaded guilty to counts one (intentional infliction of grievous bodily harm), three (assault occasioning actual bodily harm) and five (act endangering life) on an indictment for offences involving Ms Fizelle. Those pleas were made on 3 September 2014. As well as dealing with him for those offences, I am to sentence him in respect of one count of assault occasioning actual bodily harm on Mr Belmonte in respect of which he was committed to this court under section 90A of the Magistrates Court Act 1930 (ACT) on 18 March 2014.

2. The facts which gave rise to these matters (which come from the statement of facts tendered by the Crown) are as follows. The offender was in a relationship with Ms Fizelle. As at 28 December 2013 they had been in a relationship for about a year. She had become pregnant to him about 12 weeks before 28 December. At some time after 2 pm on 28 December, Ms Fizelle was asleep at the offender's residence at Narrabundah, when she was awoken by him. When she awoke she became aware he was pressing a knife over the knuckles of her left hand, and saying "I'm going to cut your fingers off and you're never going to play the violin. You've got five seconds to get out or I'll kill you."

3. At the time, she understood that he believed she had been unfaithful to him.

4. She left the premises and sought refuge at a neighbour's unit. The neighbour was Mr Belmonte. A short time after she arrived there, the offender also entered Mr Belmonte's unit. When he entered, Ms Fizelle and Mr Belmonte were sitting on a couch. The offender began verbally abusing Ms Fizelle. He called her a slut and a whore, and said, "You should kill yourself, you don't deserve this baby. The thing inside you is going to be killed" (referring to her then pregnancy).

5. The offender then grabbed her by the throat and lifted her up, such that her feet were not touching the floor. He held her against the wall in the lounge room. That manoeuvre caused her difficulty with breathing and speaking. He then said, "You're an alcoholic slut, bitch, and I hope the baby dies. This should be good enough." And while holding her off the ground by the throat, he raised his knee rapidly into her stomach with force, causing her immediate pain. After about 30 seconds, he dropped her onto the floor. (Those events make up the offence of intentional infliction of grievous bodily harm).

6. She said to him, "I'm going to fucking kill you," and tried to hit him with the back of her hand but she missed. Then he struck her, with considerable force, to the left side of her face, causing a loud noise as his hand made an impact on her face. (That incident is the assault occasioning actual bodily harm).

7. After the offender had struck Ms Fizelle on the face Mr Belmonte intervened and said, "No, that's enough," and tried to separate them. The offender said to him, "Do you want to go?" and Mr Belmonte said, "No." The offender then punched Mr Belmonte six or seven times to the face, causing a laceration, with bleeding above his left eye, and other injuries. The offender and Mr Belmonte then wrestled with one another, and at one point he tried to choke Mr Belmonte. Mr Belmonte then managed to get him into a headlock. They were still engaged in these manoeuvres when the police arrived.

8. Ms Fizelle was terrified, weeping throughout the whole incident. As she left the premises, and went by the offender, who was in the custody of the police, he said to her, "I hope the baby dies, you slut."

9. She was admitted to hospital and examined by a doctor, who noticed bruising on her face and neck and the back of the fingers of her left hand. He formed the view that the bruising was consistent with her being struck to the face and being choked. He found her foetus was no longer viable, and was likely to have been in that state for a few days prior to that day. Neither she nor the offender was aware the foetus was not viable prior to her admission to hospital.

10. The offender participated in a record of interview and made a number of admissions. He was granted bail on 30 December 2013. His conditions of bail included that he not contact Ms Fizelle or Mr Belmonte, that he not approach her or Mr Belmonte and that he not assault, threaten, harass or intimidate her or Mr Belmonte.

11. At about 2.30 am on 8 January 2014, the offender went to an address where Ms Fizelle and Mr Belmonte were both present. He began to yell at her, "You killed our child." He accused her of going to hospital to have the child killed. She then punched him in the face and said, "Don't you dare say I killed my child because I didn't." He then asked whose baby it was. Mr Belmonte gave a name.

12. The offender began to get angry. He straddled Ms Fizelle and sat on her chest. He placed both hands around her throat and squeezed hard. Whilst he was choking her, he said, "I'm going to kill you, bitch." Mr Belmonte intervened and said, "Get off her, calm down." But the offender stood up and placed a foot over her throat, applying considerable pressure. She was unable to breathe; she made gurgling sounds, and then defecated. She believed she was going to die. Mr Belmonte then put him into a headlock and wrestled with him. Eventually he left. A short time later, Ms Fizelle was taken to hospital by ambulance.

13. The records of Ms Fizelle's admission were later examined by a doctor, who formed the view that she had been choked, noting injuries to her neck were consistent with internal laryngotracheal trauma. She noted that compression to the neck is a potentially lifethreatening condition, which can result in death or irreversible brain damage. She noted that the involuntary defecation of a patient, as occurred here, typically only occurs in extreme cases of neck compression.

14. There was a victim impact statement tendered from Ms Fizelle and I have read that. One can only imagine how terrifying these experiences must have been for her. I have referred to the medical evidence. There was in evidence a letter from Dr Catherine Sansum, who said, referring to the neck compression, that the neck has a number of structures vital to human existence, namely major blood vessels to the head and brain, the breathing apparatus, the oesophagus and digestive tract, spinal cord and other major nerves which control movement of the body. Compression to the neck is potentially lifethreatening. Compression of the neck may result in loss of the circulation of blood to the brain. This may cause loss of consciousness, brain damage, or death.

15. Other vital structures to the neck include the major airway (trachea) and spinal column. Damage to the trachea may result in difficulties in breathing, causing a loss of consciousness, brain damage and, ultimately, death. Damage to the spinal column may result in permanent irreversible damage to the nerves supplying the body below the site of compression. Serious injury may occur without visible signs of external injury.

16. Ms Fizelle had attended with some visible evidence (redness and abrasions) of injury to her neck. There was a history highly suggestive of internal laryngotracheal trauma (pain with swallowing and pain with speaking). In addition to this, Ms Fizelle had been incontinent of faeces. Dr Sansum said that it was in extreme cases of neck compression where there may be a loss of consciousness and/or loss of bladder or bowel control.

17. There was in evidence a letter from the victim addressed to the offender wishing him well. There was also in evidence a letter from the offender to me explaining, or perhaps attempting to explain, his actions. I have read those letters and taken them into account.

18. The offender has a considerable criminal history for offences including drug offences, break and enter, and larceny. He has one conviction for common assault and has a record for some motor vehicle offences.

19. Evidence was given on his behalf by Ms Catherine Cleary, a former nun, to the effect that she has been visiting him in custody and that she sees some progress in his mood. She sees a calmer man now than she used to see.

20. According to the presentence report, the offender told the authors that he wanted to resume his relationship with the victim. However, I am told he now accepts that is no longer possible.

21. He pleaded guilty early to the assault occasioning actual bodily harm on Mr Belmonte. I find that plea was useful and that he is entitled to a discount for it. The other pleas were not as early. They were indicated apparently on 27 August 2014, for a trial then due sometime in September.

22. The offender did not give evidence. Mr Sabharwal, who appeared for the offender, accepted on his behalf that the relationship had ended. He put to me that he had no memory of the relevant offences. He said his client accepts that Ms Fizelle must have been terrified and that he is now medicated for anxiety.

23. The presentence report notes that the offender was born in New South Wales and had a difficult childhood. His parents were alcoholics. He took on the role of parent figure for two younger brothers. He felt burdened by this responsibility. He has irregular contact with his father and has not spoken to his mother for over three years. He has a child from a previous relationship but no contact with that child.

24. He left school after the completion of Year 8 to enter the workforce and held employment in the workforce for most of his adult life. He was unemployed at the time of the preparation of the report and had been relying on social assistance since 2011. He apparently began drinking alcohol at an early age but did not believe his use had been problematic until recently. Two months prior to the offences, his alcohol use increased to daily use and he would drink to intoxication each time.

25. He began using drugs, amphetamines and the like, from the age of 17 onwards. He completed various relapse programs. From time to time, he had a history of mental health issues. He was shown the statement of facts and agreed with them, although claimed that he could not remember the offences, due to the alcoholic intoxication. He is said to have told the authors of the report that he accepts responsibility. I am told that his custodial behaviour has been satisfactory.

26. Objectively, all of the offences involving Ms Fizelle were at least midrange to above. In my view, the section 44 Crimes Act 1900 (ACT) incident was a very significant example of that offence. The section 27(3) Crimes Act 1900 (ACT) offence was made so much worse by its being made in breach of the bail conditions which required that the offender not go anywhere near the victim.

27. This was a sad example of a man who apparently considered extreme violence was the way to deal with the perceived failings of his former partner.

28. Deterrence, both specific and general, are of special concern here. The section 44 offence involved an attempt, albeit futile, to bring about the end of the pregnancy. I have noted, in particular, what the victim said in her victim impact statement about that. The effects of the choking offence were very significant. That incident was, as the Crown put to me, a form of home invasion. There was the assault occasioning actual bodily harm on her as well.

29. The assault on Mr Belmonte was also significant, but not as significant as the assaults on Ms Fizelle. There was no victim impact statement from Mr Belmonte, but one can imagine that it must have been a very frightening experience for him as well.

30. Mr Sabharwal did not submit that there was any alternative to a term of imprisonment. There obviously is no reasonable alternative. The offender must serve a lengthy term before being eligible for parole. In determining the ultimate sentence from the sentences for each offence, I have imposed a certain amount of concurrency and a certain amount of accumulation. I have had regard for the principles from Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, totality being a significant matter in a case such as this where there is a multiplicity of offences.

31. Mr Watson, if you would stand, please, while I make these orders. In respect of the assault occasioning actual bodily harm on Mr Belmonte, you are convicted and I sentence you to a term of imprisonment of 12 months, after a discount of four months for the plea from 16 months, to run from 7 January 2014 to 6 January 2015.

32. As to the assault occasioning actual bodily harm on Ms Fizelle, you are convicted and I sentence you to a term of imprisonment of 20 months, which I reduce for the guilty plea to 18 months, to run from 7 July 2014 to 6 January 2016.

33. As to the intentionally inflict grievous bodily harm, section 44 and section 19 of the Crimes Act 1900 (ACT), I record a conviction and you are sentenced to a term of imprisonment of five years after a reduction from five years and six months. That is to run from 7 January 2015 to 6 January 2020.

34. As to the section 27(3)(a) matter, the intentionally unlawfully choke, you are convicted and sentenced to a term of imprisonment of four years after a deduction of six months for the plea. That is to run from 7 January 2019 to 6 January 2023.

35. The total term of imprisonment is nine years. You are to serve a minimum period of five years' imprisonment from 7 January 2014 to 6 January 2019. After that period, you will be eligible to apply for parole.

I certify that the preceding 35 numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley.