Tighe, Paul v D.P.P

CATCHWORDS: Criminal Law - District Court severity appeal - common assault (x3) fail to appear (x4) - domestic violence related - drug and alcohol related - full time drug rehaabilitation program availaable locally - s.11 bail granted

PARTIES: Paul Anthony Tighe Director of Public Prosecutions

JUDGMENT

1. Paul Anthony Tighe is appealing from the severity of sentences imposed upon him on 16 August last at the Moree Local Court. On that occasion his Honour sentenced the appellant for seven offences. There was an eighth offence and that was possess prohibited 0.6 grams of cannabis, his Honour gave a s 10A conviction.
2. In respect of all other matters terms of imprisonment were imposed. They ranged from common assault, for which a nine month non-parole period and three months balance of term was imposed, and two other assaults and then four fail to appears. In respect of the four fail to appears six months fixed-term was imposed.
3. All of those sentences were said to date from 16 August 2010 and expire on 15 August 2011. In respect of those sentences slightly more than a month has been served and there is a further eight to go before he would be released. There was no stay granted but it is my intention to grant s 11 bail upon conditions that I will deal with shortly.
4. The fails to appear both relate to circumstances of a requirement to appear in respect of each of the assault offences and they were on two occasions when, in respect of each, the appellant failed to appear.
5. The victim in both assaults was KH and she and the appellant had been in a relationship for six months. He came home on 11 March 2009 having drunk alcohol fishing, nothing wrong with that. He had consumed seven cans of Bundaberg Rum and Coke and twelve cans of full-strength beer.
6. Legally there is nothing wrong with that but it would be devastating for his health and indeed my understanding is he has bad kidneys and bad liver. Well, if he has a history of drinking like that one could hardly be surprised. It is an attempt to kill himself by drowning in alcohol.
7. They began to argue after twenty or thirty minutes. They had taken their argument to the main bedroom, presumably because other members of the family were nearby. The complainant was trying to calm the appellant down, saying that they should not be arguing. He used his right fist to punch her to the left side of the face. She felt instant pain and pushed him backwards onto the floor as a result. She jumped onto the bed and onto the appellant's chest and hit him a number of times. She then left him and told him not to return.
8. He did in fact return and was yelling at her from the back door. They told the appellant that they were going to call the police and indeed rang the police. The police arrived and they saw the appellant in the backyard trying to jump a fence. The appellant tried to supply police with a false name when he was arrested.
9. The other offence was not unlike that if I can just find it. On this occasion, again there is alcohol involved. They were walking home from a night out at five minutes to midnight. The appellant, no doubt feeling insecure, approached his newish partner with "Do you want to fuck Jade Duncan". Jade Duncan, as I understand it, was the former partner of KH. That must have played upon his mind because when they arrived home a few minutes later he called her a "fucking slut".
10. Again they went to their bedroom, she lay on the bed, he was standing nearby; he pulled her hair, causing her head to move from side to side in a violent motion. She pulled away from him. He punched her to the right eye. He said to her "You're a slut. Go and have him if you want to be with him."
11. She retaliated. There was punching by her. She left the bedroom. She noticed when she looked in the mirror she had a large bump to her right eye and bruising to her head. She did not contact the police. There was also tension over the same topic earlier that morning. On 11 March he was arrested for the offence.
12. A look at his record will tell anybody who knows anything about crime that much of his offending is alcohol related. I said earlier in this court that the very early First Fleeters noticed that Aboriginal men did not treat their women well in Sydney, at least in the harbour that they then were. They also noticed that the men were basically unclothed and basically walked here and there.
13. As I noted this morning, those customs of being unclothed and of walking everywhere have been dropped. Aboriginal men and women do not want to live those customary ways anymore, and it is pretty clear that Aboriginal women do not want to live in this old custom of being belted by their husbands anymore.
14. To say that something is an Aboriginal custom and not examine the custom is a nonsense. Aboriginal women are making it clear and abundantly clear time and time again that they are not going to put up with Aboriginal men belting the living daylights out of them when they are drunk. And the real heroes for me and for many of my fellow judges are the women who have the courage to stand up and say, notwithstanding the risk of retribution, "We are not going to put up with this anymore". Those women are just tremendous.
15. So as with many things, Aboriginal customs are going to change. If they want to go back, Aboriginal people want to go back to walking barefoot and hunting with spears and hunting with nets and wearing no clothes there is an argument for saying that they can probably think about this one too. But if they want to move with progress, as they are, then one of the things that marks progress is the respect that men have for women in society.
16. The custom is made not just by the men, it is made by the women too. Anyone who understands anything about Aboriginal people understand that women's business is a very significant part of Aboriginal custom and now non-violence to women is becoming a very significant aspect of Aboriginal custom.
17. I have also heard from Aboriginal men that at the initiation ceremony, which I think probably is not practised as much as it used to be with men, but an undertaking was made by the men to speak softy to all and particularly to women. Well, if that be right, speaking with a fist is not speaking silently at all. You may not be using the voice but boy the action is so loud as to be deafening.
18. Now, the bail conditions will be these. The appellant will be of good behaviour. He will reside initially at Roy Thorne Substance Misuse Rehabilitation Centre and abide by all directions of his case manager at that centre. He will accept supervision by Probation and Parole and accept all reasonable directions of his case manager with Probation and Parole. Does the appellant know where he will reside when he leaves Roy Thorne?

MCCALLUM: I'll just find that out, your Honour. -- Boland Drive Moree.

HIS HONOUR: 19. Upon discharge from Roy Thorne he will reside at -- Boland Drive, Moree. He will continue with the Roy Thorne outpatients' program and he will continue with his supervision with Probation and Parole. He will abstain from the consumption of all alcoholic beverages for the duration of the bail period. I should indicate that the bail period will be one of twelve months. 20. He will submit to random testing, either by way of urine or breath analysis, for the detection of alcohol and/or illicit drugs as directed by Roy Thorne case manager or Probation and Parole case manager. Refusal to participate in a random test will be deemed a breach of bail and any dirty drug test or alcohol test will be deemed a breach of bail. 21. He will attend court at all times required by the court. He will seek to make himself available for some sort of community activity at least three hours weekly after release from Roy Thorne, whether that be with a football team or a sporting team or the Salvation Army, some sort of voluntary work, so that he comes in contact with people who are not necessarily drug users, probably not drug users. 22. He will attend Alcoholics Anonymous twice weekly once released from Roy Thorne. He will submit to random urine analysis as directed by Probation and Parole after leaving Roy Thorne no more than four times monthly for the purpose of detecting illicit drugs. Failure to attend any meeting, program or counselling required by either of his case managers will be deemed a breach of bail. 23. He will provide proof of completing or participating in these activities that form part of his bail conditions by providing reports from Roy Thorne and or any voluntary organisation that he is working with, and Probation and Parole reports will be ordered each time that he is before the court. 24. He will attend the court - I think I have said that, have I not? - at all times required, and we will just set those now.

25. Bail may be granted by the officer in charge of prisoners at the Moree facility, I do not know what it is called, provided he is released into the custody of an approved person, for the purposes of going to Roy Thorne.

26. The approved person will be Tom French or his authorised delegate. Mr Tighe, is there anything there you cannot do?

HIS HONOUR: Is there anything that I've just said you have to do that you think now "Gee, I can't do that"?

HIS HONOUR: So you're quite satisfied that anything you don't do is not because you can't do it, it's just because you didn't do it?

HIS HONOUR: And in those circumstances would you agree that it would be a fair thing to send you back to gaol?

HIS HONOUR: Okay, that's good. All right, off you go.

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