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[2015] ACTSC 322
Supreme Court of the ACT
2015-10-12
Refshauge ACJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - sexual intercourse without consent - assault occasioning actual bodily harm - damaging property - domestic violence - victim impact statement
Crimes Act 1900 (ACT), ss 24(1), 54(1)
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1)
Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372
Halden (1983) 9 A Crim R 30
Knight v The Queen [2015] NSWCCA 222
Milner v AW [2014] ACTSC 231
Roberts v Smorhun [2013] ACTSC 218
R v Bloomfield (1998) 44 NSWLR 734
R v Boudelah [1991] FCA 124; (1991) 28 FCR 176
R v DF (No 2) (2012) 257 FLR 31
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
Legal Aid ACT (Accused)
1. Domestic violence is a scourge in the Australian community. It has become so problematic that significant efforts are being made at the Federal, State and Territory levels to address it.
2. Clearly, the courts have a part to play in denouncing such conduct and making it clear that in a civilised society it is completely unacceptable.
3. In sentencing offenders who commit domestic violence against their partners, the courts must use the objectives to be achieved in sentencing: general deterrence, specific deterrence, accountability of the offender and vindication of the victim, as well as denouncing the conduct.
4. Nevertheless, at all times a sentence for any criminal offence must be appropriate to the circumstances of the offence and proportionate to the criminality of the offence and the culpability of the offender.
5. On 24 June 2015, Patrick Stanley pleaded guilty to two counts of sexual intercourse without consent, two counts of assault occasioning actual bodily harm and one count of damaging property.
6. Sexual assault without consent is an offence prohibited by s 54(1) of the Crimes Act 1900 (ACT), which provides for a maximum penalty of twelve years imprisonment.
7. Assault occasioning actual bodily harm is an offence contrary to s 24(1) of the Crimes Act rendering Mr Stanley liable to a maximum penalty of five years imprisonment.
8. Damaging property is an offence under s 403(1) of the Criminal Code 2002 (ACT), attracting a maximum penalty of 1000 penalty units (that is, a fine of $150,000) and ten years imprisonment.
9. Mr Stanley and the victim had been in a relationship since August 2013 and, in about March 2014, they moved into an apartment in Macquarie, ACT.
10. On 12 May 2014, Mr Stanley and the victim were in the kitchen of the apartment when the victim went to bed as she had to start work early the next morning. Mr Stanley remained in the kitchen drinking wine. He drank about three bottles of wine.
11. Later in the evening the victim heard a loud smash from the kitchen and when she got out of bed to investigate, she saw an empty bottle of wine and a sauce jar smashed on the floor. In answer to her question of what happened, Mr Stanley said he smashed the bottle and jar because he was angry.
12. As a result, the victim thought she should stay the night at her mother's house and, grabbing her keys, left the apartment. Once outside, however, she felt that she should take Mr Stanley's keys as well and went back into the apartment. When she sought to take his keys he told her that she was not doing that and grabbed her by the hair throwing her to the ground.
13. He then stood over her and began "stomping" her face and chest and punching her face a number of times. The victim tried to defend herself by covering her face with her arms and yelling at him to stop but he continued to hit her, telling her, "This is what you get for lying to me." About half way through the incident he said, "I am going to kill you. I am going to kill you." and put his hands around the victim's neck starting to strangle her.
14. These are the facts that constitute the first count of assault occasioning actual bodily harm.
15. At some point during the incident, the victim, who had been screaming for someone to help her, grabbed her mobile phone to call someone for help. Mr Stanley, however, grabbed it from her and snapped it in half. This constituted the count of damaging property.
16. After about 15 minutes, the victim asked for a glass of water. Mr Stanley kept saying 'no' but eventually went to the kitchen. When he returned he grabbed the back of the victim's neck and smashed a ceramic mug over her head. He continued to hit her with the mug two or three times before it broke, nearly rendering her unconscious. He then went back to the kitchen and got another mug and again hit her on the head with it. This mug also broke and caused a large laceration to the victim's head. The victim felt pain and blood run down her face. The incident lasted about fifteen minutes. These acts constituted the second offence of assault occasioning actual bodily harm.
17. When Mr Stanley finally stopped there was a significant amount of blood running down her face and onto the carpet where she was sitting. The victim was too frightened to move but said, "Please, please can I have a shower?" Mr Stanley let her up and she went to have a shower. He stood in the doorway of the bathroom while she showered.
18. He then dried her with a towel and wrapped another towel around her and told her to lie down in the bedroom. The victim lay on the bed and Mr Stanley said, "Now that I have done that to you, we are going to do everything my way from now on. It is not your way. It is going to be my way, okay."
19. Mr Stanley then got on top of the victim and tried to kiss her mouth. The victim was petrified and unable to move. He tried to put his partially erect penis into her mouth but she turned her head away. Mr Stanley, however, did put his penis into her mouth and this constituted the first count of sexual intercourse without consent.
20. Mr Stanley then forced the victim's legs apart with his legs and inserted his penis into her vagina. He had sexual intercourse with her, thrusting his penis in and out of her vagina for a couple of minutes until he ejaculated. The victim was revolted and just lay there in pain and scared. This was the second count of sexual intercourse without consent.
21. When Mr Stanley got up on Tuesday, 13 May 2014, he saw the victim's face and said, "Oh my God, what happened?" and the victim told him that he had beaten her and wanted to kill her. She asked him to take her to hospital but he said, "No, I will take you when I get back home tonight." He then went to work and the victim stayed in the apartment all day because she was too sore and ashamed to leave.
22. At about 8.30 pm that night Mr Stanley drove the victim to the Calvary Hospital where she was admitted through the emergency department and kept in hospital overnight.
23. Initially, the victim told hospital staff that she had been bashed by two unknown men at the back of Charnwood.
24. I saw photographs of the injuries inflicted on the victim. They are severe and substantial. They show a brutal and sustained attack on her, causing widespread injury to her.
25. When she was discharged, Mr Stanley drove the victim back to the apartment and afterwards bought her a mobile phone and hired a commercial style carpet cleaner to clean the carpet. He attempted to clean the large amount of blood from the carpet with the carpet cleaner.
26. He later apologised to the victim and told her repeatedly that he loved her. He said also, "If you tell the police then we will not see each other again." He tried to discourage her from going to the police but she said that she had to go. Mr Stanley, at some stage, sent her a text message saying, "Protect me."
27. On Thursday, 15 May 2014, friends of the victim attended her apartment and saw her bruised and swollen face. She told them that two men had come up behind her and attacked her.
28. The victim and her friends went to the Belconnen Police Station and initially the victim told police that two unknown men had attacked her at the back of the Ginninderra Labor Club and dragged her into the bushes.
29. Later that day the victim was examined by Dr Vanita Parekh, whom she also told that she had been attacked by two men.
30. Later, after discussion with her two friends, they told her that they thought Mr Stanley had caused the injury and the victim began crying. She initially denied it, but then said, "Yeah, he did it. He is going to kill me. He is going to kill me." Her friends reassured her and told her that she needed to tell police.
31. As a result, the victim went back into the police station and told police that it was, in fact, her partner, Mr Stanley, who had assaulted her. She said that she lied because she was petrified of him and scared that he would kill her. She said that he beat her and then raped her.
32. She was then re-examined by Dr Parekh and explained that she had lied earlier and that it was Mr Stanley who had assaulted her and afterwards had sex with her. Dr Parekh noted forty identifiable injuries, mostly bruising and including lacerations to the victim's head, neck, shoulder, arms and legs.
33. Police then attended her apartment and seized a number of items and noted a large reddishbrown blood stain on the carpet.
34. Mr Stanley was later arrested and remanded in custody.
35. When interviewed by police he admitted to causing lacerations to the victim's head with a mug, saying that he was angry with her, because he believed she was having an affair with another man, and had smashed her on the head with the mug and beat her up. He admitted to throwing her to the floor and slapping her face a number of times and also to kicking her three or four times. He said that he stopped when he saw her head was bleeding. He also agreed that she went to the bathroom and had a shower afterwards and went to bed. He admitted to breaking her phone. He also admitted to penile-vaginal sexual intercourse but said to police initially that it was consensual.
36. Mr Stanley was remanded in custody but granted bail on 26 May 2014.
37. On 2 March 2015, he was arraigned and entered pleas of guilty to assaulting the victim on 12 May 2014 and thereby occasioning her actual bodily harm and of damaging her property, her mobile phone, on that date. The trial of the remaining charges was listed to commence on 29 June 2015. He was remanded in custody and he has remained in custody since then.
38. On 24 June 2015, in what seemed a somewhat odd procedural process, having regard to the earlier pleas of guilty, a further indictment was presented including the two charges to which Mr Stanley had already pleaded guilty and also an additional charge of assault occasioning actual bodily harm and the two charges of sexual intercourse without consent. On that day he pleaded guilty to all the charges on that indictment, though he had indicated a plea following some negotiations on 19 June 2015. It seems to me that a Notice Declining to Proceed should be filed in relation to the earlier indictments. See R v DF (No 2) (2012) 257 FLR 31 at 38; [45].
39. I received, on sentence, a Pre-Sentence Report which was admitted and which, together with his criminal record, some references, some certificates, a letter to me from Mr Stanley and counsel's submissions, enabled me to make the following findings.
40. Mr Stanley was born in Samoa and has 10 siblings, two of whom are deceased. He is now thirty-nine years old. Four of his siblings live in Australia and the others live in New Zealand or Samoa. He has a sister in Canberra and a brother who lives in Queensland and he appears to enjoy the support of both of them.
41. It is reported that "[h]is family experienced significant violence as a result of his drunken outbursts."
42. In 1995 he moved to New Zealand but returned to Samoa in 2004. He returned to New Zealand in 2007 where he began a three-year relationship that resulted in the birth of a son. This relationship ended in 2009, after he was convicted of a violent assault on his then partner. He no longer has contact with his former partner or his son.
43. He moved to Australia in 2012, initially to Brisbane, but moved to Canberra in 2013 in order to seek employment. While in New Zealand, he had maintained steady employment but he had difficulty in obtaining employment in Australia.
44. His relationship with the victim ended as a result of these offences. He has a friend, not a partner, who lives in Queensland.
45. Mr Stanley explained to the author of the Pre-Sentence Report that his alcohol use commenced when he was twenty years old as part of regular social gatherings. His brother, however, reported that he used alcohol problematically whilst in high school. This latter is consistent with the description in the Pre-Sentence Report of his violence at home.
46. He did say that his alcohol intake increased significantly about seven years ago when he began binge drinking to the point of blackout on a weekly basis. He claimed, however, that his alcohol abuse never affected his work and he only engaged in such behaviour when not rostered for duty.
47. One of the tendered references referred to his work as a wards person in the Canberra Hospital from November 2013. He was described as "a very reliable employee and one that had a great work ethic and his ability to work within a team was commendable."
48. Rather strangely, his work was described as one that needs him "to have great empathy and an understanding of the needs of vulnerable members of our community," and his referee said that this was a quality that he had and "was evident in the way he conducted himself in the workplace." It is a pity he did not use those same skills within his domestic situations.
49. Mr Stanley acknowledges the link between his alcohol abuse and his offending behaviour and since he has been in custody, he has completed the SMART Recovery Program to address his alcohol abuse. He has also completed the First Steps to Anger Management Program.
50. Mr Stanley denies using illegal drugs, although he has used cannabis in the past.
51. Mr Stanley has some history of depression and has attempted self-harm in the past. He suffers from gout as a result of his alcohol consumption.
52. Mr Stanley has a relatively short, but rather worrying, criminal record, all of it in New Zealand. It is relatively short for a man of his age but he has been convicted of two offences of drink-driving, confirmation of his alcohol abuse problem. He has a conviction for driving whilst disqualified. Of most concern is a prior assault offence which is, apparently, another domestic violence offence on a former partner, to which I have earlier referred (at [42]).
53. Mr Stanley agreed with the Statement of Facts and described the actions of the police and the resulting charges as fair. He says he has an alcohol problem and accepts that his excessive alcohol consumption has contributed to the offences. He did express regret to the author of the Pre-Sentence Report as to the offending and the impact of his behaviour on the victim.
55. His brother-in-law says that he is loved as an uncle to his nieces and nephews. His brother-in-law regards him as a brother. He says he has a good sense of humour, is helpful around the house and "respectful, honest and very dedicated".
56. He says that since Mr Stanley has been remanded in custody, he has noticed a big change in his life. He has developed his faith in God which has enlightened him and he respects and is obedient to those in authority. This is consistent with the Pre-Sentence Report which stated that he has been compliant with staff directions within the custodial setting and has been availing himself of education, support and rehabilitative options offered to him. His brother-in-law says he enjoys the rehabilitation program he is currently undertaking.
57. He has also expressed to his brother-in-law remorse for his offending and is determined to change for the better. His brother-in-law said that he "is working hard to become a better person and to be a good citizen".
58. The reference from his pastor stated that he had "shown great improvement in self-control in the areas of anger and violence". He continued that Mr Stanley was "very apologetic about what had occurred and is ready to start a new chapter in life". He assures, based on his own assessment, that Mr Stanley will not re-offend.
59. From his plea of guilty and the comments of his referees and his letter to me, I accept that Mr Stanley is remorseful and that he has some insight as to the effect the attacks had on his victim, though this remorse seems to have come to him rather late and certainly was not evidenced shortly after the time when the offences were committed, when he was more concerned, it appears, about protecting his own position than of treating the victim and ensuring that she got the appropriate medical treatment she deserved.
60. Since he has been in custody he has been compliant with staff directions and as noted above (at [56]), availed himself of the education, support and rehabilitation options offered to him.
61. Mr Stanley is assessed as at a medium risk of general reoffending, although an assessment of his risk of sexual reoffending is at a medium to high risk. I find the assessment somewhat contradictory. Such assessments are also likely to be more helpful where they identify the factors which need to be addressed to reduce the risk. This was not present in the material I had.
62. As I have noted, family violence is a serious problem in the community. As Johnson J pointed out in R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at 193; [77]:
An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship ...
Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime.
63. This belief about such offending, of course, is entirely untrue and it is important that the courts do not support any such attitude.
64. The description of the attitudes, expressions and actions of Mr Stanley on the night of these offences are accurately represented by what Johnson J had to say. They are to be rejected.
65. Assaults are serious offences. This can be seen from the injuries afflicted. See R v Bloomfield (1998) 44 NSWLR 734 at 739-40. They are also to be seen in the context of the choking and the terror that invoked in the victim. The smashing of a mug over the victim's head and then a second mug also being smashed over her head was a brutal attack coming on top of the stomping, which I understand to be Mr Stanley standing on the victim and assaulting her with his feet. The attacks were more serious because they were directed to her head, a vulnerable part of her body, which could lead to permanent and debilitating injuries.
66. The fact that these were offences in the context of a domestic relationship is an aggravating factor, although that will not always be so in the context of all offences. See Roberts v Smorhun [2013] ACTSC 218 at [133]- [135]. The victim was vulnerable because of those circumstances.
67. The offence of damaging property was, at first blush, not serious, judged by the amount of damage caused. See Halden (1983) 9 A Crim R 30 at 36. The circumstances, however, make it more serious, for the property was a mobile phone which the victim was using to seek help when her cries went unanswered. To deny a victim of a brutal assault the opportunity to gain assistance would have increased the terror she must have experienced and has aggravated the offence.
68. The sexual assaults were serious offences in themselves. There can be no doubt that the violation of the victim's integrity is a serious intrusion into her personal life. The community speaks with one voice condemning such violence, for such it is. See R v Boudelah [1991] FCA 124; (1991) 28 FCR 176 at 186.
69. That there was no additional violence does not mitigate the offence; see Milner v AW [2014] ACTSC 231 at [9]. There can be no doubt that the earlier violence had so petrified the victim and shocked her that she was in no position to resist. Unprotected sex and ejaculation are usually regarded as aggravating the offence, even when there has been a domestic relationship.
70. The whole of the events constituted a brutal, extended attack on a victim which not only left her with physical scars but with social and mental scars that will last for some considerable time. They were serious offences which the Court must treat accordingly.
71. The victim prepared a victim impact statement which the Crown Prosecutor read out. That can be important as it then is clear that the offender has heard what the victim has to say. It was difficult to hear that victim impact statement without experiencing some of the pain and hurt that the victim described. Courts know of the serious effects of such violence and invasions of the bodily integrity of victims but it is very valuable to hear the voices of the victims and understand how the hurt and damage can be different for each victim.
72. The victim in this case is clearly continuing to experience serious emotional trauma and the not uncommon feelings of shame and self doubt that are so inappropriate for the victim to feel and yet so common and so distressing. The effect that she has described also goes beyond her to the effect on her family and friends who have provided her with support and the blame they also feel for not intervening, though often that is unlikely to have actually been effective.
73. The impact was also exacerbated by the effect on her work where she was in an area where Mr Stanley's sister also worked. With what appears to be breathtaking insensitivity, her employer would not facilitate a transfer so that she did not have to face the obvious awkwardness that this would cause on a daily basis. Indeed, as often happens, her work colleagues appeared to have been unsympathetic and unhelpful and no doubt, because of their embarrassment, avoided her and made her socially isolated.
74. There were also financial costs. She was left with the cost of the cleaning of the apartment. She also had to shoulder the rent and a loan for furnishings in the apartment that she and Mr Stanley had taken out, though this was not really a direct result of the offences, but rather of the inevitable break up of the relationship.
75. The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). I have regard to them. The principal of these, which are applicable in this case, are general deterrence, though with Mr Stanley's history, specific deterrence must also play a part. It is also important to recognise the harm done to the victim and to make Mr Stanley accountable for his actions. The sentence I impose must denounce the offences that he committed.
76. Mr Stanley has clearly made some progress with his rehabilitation and this is to be encouraged and recognised but, in this case, cannot overbear the other purposes of sentencing. I consider that I can take that specially into account in the setting of the non-parole period.
77. I also have regard to the matters set out in s 33(1) of the Crimes (Sentencing) Act insofar as I know them and they are, for the most part, set out above. I take into account Mr Stanley's pleas of guilty which are, as I have said, some evidence of his remorse, though it came somewhat late. The pleas for one count of assault occasioning actual bodily harm and the count of damaging property were accepted as reasonably early pleas in this Court and the others were late, though not at the door of the court pleas, but did save the victim the ordeal of giving evidence, though I was told, without objection, that she had been in preparation for that challenging requirement at the time the pleas were entered.
78. There was not much provided to me by way of sentencing practice. While noting the proper caution with which statistics must be viewed, as explained in Knight v The Queen [2015] NSWCCA 222 at [86]- [89], I have had regard to the ACT sentencing database which is some very general guidance but no more than that. No sentencing principles, (see Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 at 379; [38]), were provided to me.
79. I take into account the seriousness of the offences as I have described them above. I note that Mr Stanley has been assessed as suitable for a community service work condition to be made for a Good Behaviour Order and to serve a term of imprisonment by periodic detention. In my view, however, neither of these dispositions is appropriate. In the light of Mr Stanley's subjective circumstances and the seriousness of the offences, only a sentence of full time imprisonment is appropriate.
80. The Crown Prosecutor and counsel for Mr Stanley agreed that he had spent a total of 233 days in pre-sentence custody. I see no reason why I should not take that into account and I do so by backdating the commencement of the sentences I propose to impose.
81. As there are multiple offences, there must be multiple sentences and I must be careful to consider each of the appropriate sentences and how they interact with each other. Accordingly, I have considered the length of each of the sentences to ensure that where there are overlapping common elements between any of the offences Mr Stanley is not punished twice.
82. I have also considered whether the sentences should be partly or wholly concurrent because here there is some case for the offences being regarded as part of the same events. That is not to say that they were not separate acts of criminality and they need to be recognised in the sentences as such, but they were, to some extent, parts of an extended brutal attack that lasted for the whole of the period of the offending.
83. I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of Mr Stanley's goals when he returns to the community. Where necessary to achieve this I have adjusted the cumulation or concurrency of the individual sentences.
1. I convict you of the first assault on the victim occasioning her actual bodily harm on 12 May 2014.
2. I sentence you to one year and eight months imprisonment to commence on 18 February 2015 to take into account pre-sentence custody. Had you not pleaded guilty I would have sentenced you to two years and six months imprisonment.
3. I convict you of damaging the victim's property; namely, her mobile phone, on 12 May 2014.
4. I sentence you to one year imprisonment to commence on 18 February 2016, that is to be cumulative as to four months on the sentence for the first assault offence. Had you not pleaded guilty I would have sentenced you to one year and six months imprisonment.
5. I convict you of the second assault on the victim occasioning her actual bodily harm on 12 May 2014.
6. I sentence you to two years imprisonment to commence on 18 February 2016. That is to be cumulative as to one year on the sentence for damaging property. Had you not pleaded guilty I would have sentenced you to two years and six months imprisonment.
7. I convict you of the first offence of engaging in sexual intercourse with the victim without her consent on 12 May 2015.
8. I sentence you to three years imprisonment to commence on 18 May 2017. That is to be cumulative as to one year and three months on the sentence for the second assault occasioning actual bodily harm. Had you not pleaded guilty I would have sentenced you to four years imprisonment.
9. I convict you of the second offence of engaging in sexual intercourse without consent on 12 May 2014.
10. I sentence you to three years and six months imprisonment to commence on 18 August 2017. That is to be cumulative as to one year and nine months on the sentence for the first offence of engaging in sexual intercourse without consent. Had you not pleaded guilty I would have sentenced you to four years and eight months' imprisonment.
11. That is a total sentence of six years imprisonment.
12. I set a non-parole period of three years and three months to commence on 18 February 2015 and to end on 17 May 2018.
I certify that the preceding eighty-four [84] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge.
The Queen
Stanley [2015] ACTSC 322
(2014) 88 ALJR 372
(1998) 44 NSWLR 734
(1991) 28 FCR 176
(2012) 257 FLR 31