[2018] ACTSC 354

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - unlawful confinement - threat to kill - offence of inflicting actual bodily harm - two counts of common assault - aggravated dangerous driving - objective seriousness - criminal history - intensive corrections order assessment - likelihood of deportation - imminent deportation is a factor which bears upon the likelihood of being able to comply with the terms of an intensive corrections order - pleas of guilty - terms of imprisonment imposed

Crimes Act 1900 (ACT) ss 23, 26, 34, 374

Crimes (Sentencing) Act 2005 (ACT) ss 46D, 78

Road Transport (General) Act 1999 (ACT) s 63(3)

Road Transport Safety and Traffic Management Act 1999 (ACT) ss 7(1), 7A(1)

SCC 126 of 2018; SCC 133 of 2018

1. Kaanei Williams, you appear before me today for sentence with respect to the following five charges: one offence of unlawful confinement, one offence of threat to kill, one offence of inflicting actual bodily harm, two counts of common assault and one count of aggravated dangerous driving.

2. The maximum penalty for the offence of unlawful confinement, contrary to s 34 of the Crimes Act 1900 (ACT) (Crimes Act) is 10 years' imprisonment. The maximum penalty for the offence of threat to kill contrary to s 30 of the Crimes Act is 10 years' imprisonment. The maximum penalty for the offence of inflicting actual bodily harm, contrary to s 23 of the Crimes Act, is five years' imprisonment. However, pursuant to s 374 of the Crimes Act, the prosecution elected for that charge to be disposed of summarily, which makes the maximum penalty two years' imprisonment, a fine of $5,000 or both. The maximum penalty for the offence of common assault contrary to s 26 of the Crimes Act is two years' imprisonment and the maximum penalty for the offence of aggravated dangerous driving, contrary to ss 7(1) and 7A(1) of the Road Transport Safety and Traffic Management Act 1999 (ACT) is two years' imprisonment, a fine of $30,000 or both and an automatic license disqualification period of 12 months, or such longer period as the court considers appropriate.

3. A comprehensive agreed Statement of Facts was tendered in the sentence hearing. I will not now recite the facts in full. It is sufficient to note that on 26 February 2018, you were on bail in relation to family violence charges against your partner, KS, who is the mother of your baby daughter and your unborn child. Your bail conditions prohibited you from assaulting or intimidating KS, being near her, having contact with her or attending her home. On 26 February 2018, you were at KS' home, in breach of your bail conditions. While inside her home, you assaulted her and unlawfully confined her. You also threatened to kill her.

4. Police attended the location after neighbours reported that they could hear KS calling for help. When police arrived, you fled the location but later returned after police had left. KS attended KS' home with her ex-partner, ND, and you then assaulted ND before you drove your car in a way that was dangerous, striking ND with your vehicle and thereby recklessly inflicting actual bodily harm upon him.

5. There are a number of features which are common to the offences which bear upon the objective seriousness of each of these offences. There are, of course, other features which are relevant to the individual offences. With regard to the offence of unlawful confinement, I take into account that the confinement occurred for a relatively short period which I would assess as being under 20 minutes. However, I do note that you only desisted in that offence because of the arrival of police. This offence involved an attempt by you to control the victim by means of intimidation. Some factors which are relevant to determining the objective seriousness of this offence, but also relevant to all of the offences, were that the offences occurred in the victim's own home and, in fact, in her bedroom. With respect to the particular offence, there was force and intimidation used to stop the victim leaving the room. It occurred in the context of threats being made to the victim. The victim was five and a half months pregnant at the time with your child. There was also another child in the house at the time of the commission of these offences. The offences which occurred with regard to KS, in the first tranche of offending, involved a breach of trust because you were only able to gain access to the premises because you had been in a relationship with the victim.

6. Of course, it is also a factor involved in all offences relating to KS that she was a vulnerable person at the time; smaller and weaker than you. You were also on conditional liberty. I would place this offence as at the border of the low to mid-range of offences of this nature. With regard to the offence of common assault on KS, this of course was also a domestic violence offence, but I do take into account that it was constituted by simply pushing the victim to her arm, causing her to lose some degree of balance. I would describe this offence as being in the lower range of offences of this nature. With regard to the offence of threat to kill, it was of course committed in the circumstances to which I have already referred, and I would describe this as being in the lower range of offences of this nature.

7. With regard to the common assault on ND, I note that you attacked ND outside KS' home. It does not appear that there were any injuries occasioned to ND in that incident or that offence and I would describe this offence as being in the lower range of offences of common assault. With regard to the offence of aggravated dangerous driving, I am satisfied that the driving was extremely dangerous and that you put ND's safety at significant risk. I also take into account that it was a deliberate act of driving at ND in order to intimidate him. With regard to the offence of inflicting actual bodily harm on ND, I note that the injuries involved were mild to moderate, involving bruising, swelling and abrasions. I would describe both the aggravated dangerous driving and the inflicting actual bodily harms as on the border of the lower to mid-range of such offences.

8. I note that you have a criminal history. It is not a particularly lengthy criminal history, but you do have two prior entries for offences of violence. I take into account the contents of the Pre-Sentence Report that was prepared for the sentence proceedings. You are 29 years old and you are one of nine children. You are apparently born in New Zealand and educated to the equivalent of Year 10. There was some instability in your family due to your father's illness, resulting in you leaving your family home at an early age, although you were subsequently permitted to reside with an older brother. You currently have two children in New Zealand living with their mother, and of course you have two children to KS who are living in Australia. You told the author of the PreSentence Report that you had most recently been casually employed as a removalist. You expressed remorse and empathy for KS, at least to the author of the Pre-Sentence Report. You are described as at low to medium risk of reoffending.

9. The matter came before myself on 3 August 2018 for sentencing. At that time, having received the Pre-Sentence Report, I ordered an intensive corrections order assessment and varied your bail. On 4 September 2018, you breached bail by contacting KS. You had apparently been living at her address since 31 August 2018. You were bailed to reside at an address in New South Wales. You breached, in those circumstances, a number of conditions of the bail that were imposed upon you including a reporting condition in New South Wales. I note that this is not the first time you have breached bail with respect to these charges.

10. An intensive corrections order assessment was prepared and placed before the Court. You were assessed as unsuitable for an intensive corrections order. The report effectively assessed you as being unsuitable because it noted that your visa had been cancelled and you were liable to be deported to New Zealand.

11. It was submitted on your behalf by Mr Edmonds that I should nevertheless impose an intensive corrections order on the basis that the only reason you had been assessed as unsuitable was because of the pending deportation to New Zealand. Mr Edmonds drew my attention to a number of previous cases which stood for the proposition that in sentencing for criminal offences, the likelihood of deportation was a matter that should not be taken into account, at least insofar as determining the nature of the penalty to be imposed and whether to impose a non-parole period. Based upon those authorities, Mr Edmonds submitted that I should ignore the prospect of deportation in this case and that I should nevertheless impose an intensive corrections order as I am entitled to do under the provisions of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act), despite the fact that you were found unsuitable in the assessment.

12. In my opinion, this submission should be rejected. I am required by the Crimes (Sentencing) Act to consider indications of unsuitability in table 46D which is included in s 78 of that Act. One of those indicators is, and I quote, "potential impracticability of compliance with an intensive corrections order". In other words, there is a statutory provision which requires me to take into account any potential impracticability of compliance with an intensive corrections order before determining whether to make such an order. In my opinion, your imminent deportation from Australia, if you are to be released from custody at this time, is a factor which bears upon the likelihood of you being able to comply with the terms of an intensive corrections order.

13. There was no challenge to the proposition in the intensive corrections order assessment that your right to remain in Australia has been revoked and that you are liable to deportation and also that if you were to be released from custody at this time, you would be immediately taken into immigration detention pending your deportation to New Zealand. In those circumstances, I am satisfied that there is virtually no prospect of you complying with an intensive corrections order and it is beside the point that your potential noncompliance or likely non-compliance is outside of your control. I should also note that one of the indicators of unsuitability found in table 46D is a substantial non-compliance with previous court orders. It is quite clear that you have, on a number of occasions with respect to these proceedings, failed to comply with court orders and in particular the bail orders that were made. I am therefore satisfied that an intensive corrections order should not be made.

14. I take into account your early pleas of guilty with respect to these matters. The pleas were entered in the Magistrates Court and I will reduce by approximately 25 per cent the otherwise appropriate penalties in order to mark your pleas of guilty. I accept that you have reasonable prospects for rehabilitation based upon the material in the PreSentence Report and the intensive corrections order assessment, and also based upon your pleas of guilty to the present charges. I note also that there is a need to consider the totality with respect to the sentences which I impose. There were a number of overlapping elements in relation to a number of these offences and certainly, many of the offences occurred very close together in time.

15. In my opinion, nothing less than terms of immediate imprisonment will be appropriate in order to satisfy the objectives of sentencing with respect to these matters. General deterrence is the most significant sentencing consideration with respect to these offences but as I have said, I will balance that against your reasonable prospects for rehabilitation.

16. With respect to the charge of unlawful confinement (CC18/3254), you will be convicted and sentenced to 15 months' imprisonment, commencing on 16 June 2018; a date which I have determined in order to give you credit for the time that you have spent in custody pending sentencing and that sentence will then expire on 15 September 2019.

17. With respect to the offence of threat to kill (CC18/3256), you will be convicted and sentenced to 12 months' imprisonment, commencing on 16 January 2019 and expiring on 15 January 2020.

18. With respect to the offence of common assault relating to KS (CC18/3255), you will be convicted and sentenced to four months' imprisonment, commencing on 16 January 2019 and expiring on 15 May 2019.

19. With respect to the offence of inflicting actual bodily harm on ND (CC18/3258), you will be convicted and sentenced to eight months' imprisonment, commencing on 16 September 2019 and expiring on 15 May 2020.

20. With respect to the offence of common assault on ND (CC18/3350), you will be convicted and sentenced to six months' imprisonment, commencing on 16 January 2020 and expiring on 15 July 2020.

21. With regard to the offence of aggravated dangerous driving (CC18/6780), you will be convicted and sentenced to 12 months' imprisonment, commencing on 16 October 2019 and expiring on 15 October 2020.

22. The aggregate sentence is therefore one of two years and four months' imprisonment from 16 June 2018 to 15 October 2020. There will be a non-parole period of 14 months commencing on 16 June 2018 and expiring on 15 August 2019.

23. I should also note with regard to the aggravated dangerous driving, that by force of s 63(3) of the Road Transport (General) Act 1999 (ACT), you are disqualified from holding or obtaining a license for a period of 12 months.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.