CRIMINAL LAW - Sentence - Family violence - Multiple offences.

Crimes Act 1900 (ACT) ss 24, 26, 28, 116

O'Brien v The Queen [2015] ACTCA 47

The Queen v De Simoni (1981) 147 CLR 383

1. The defendant is before the court for sentencing, having pleaded guilty to the following charges:

(a) CC 6924 of 2018 - intentionally and unlawfully did strangle another person, contrary to s 28(2)(a) Crimes Act 1900 (ACT)

(b) CC 13773 of 2018 - assault, contrary to s 26 Crimes Act 1900 (ACT)

(c) CC 6926 of 2018 - assault and thereby occasion actual bodily harm, contrary to s 24 Crimes Act 1900 (ACT)

(d) CC 6929 of 2018 - assault and thereby occasion actual bodily harm, contrary to s 24 Crimes Act 1900 (ACT)

(e) CC10069 of 2018 - assault and thereby occasion actual bodily harm, contrary to s 24 Crimes Act 1900 (ACT)

(f) CC 12535 of 2017 - assault, contrary to s 26 Crimes Act 1900 (ACT)

(g) CC 12534 of 2017 - other than by fire or explosive intentionally damage property, contrary to s 116(3) Crimes Act 1900 (ACT)

(h) CC 6932 of 2018 - intentionally and unlawfully choke another person, contrary to s 28(2)(a) Crimes Act 1900 (ACT)

(i) CC 13778 of 2018 - assault, contrary to s 26 Crimes Act 1900 (ACT)

(j) CC 6935 of 2018 - assault and thereby occasion actual bodily harm, contrary to s 24 Crimes Act 1900 (ACT)

2. The defendant entered those pleas of guilty on the morning of the first day of a three-day hearing. The defendant did not communicate that change in his position before the hearing. There were seven civilian witnesses and 10 police witnesses, including the defendant's partner who attended court expecting to give evidence. The briefs of evidence would have been prepared and court time had been allocated. The pleas of guilty were entered at a very late stage and provided only limited utilitarian benefit. However, ultimately witnesses did not need to give evidence and this is of some significance, particularly for the defendant's former partner. Due to the scale of the allegations, I estimate that the defendant's pleas of guilty saved his former partner from spending a considerable period of time in court giving evidence.

3. I take into account these pleas of guilty and will reduce the sentences, relative to what I would have otherwise imposed, by 10%.

4. The maximum penalties for the above offences are 5 years' imprisonment for those at subparagraphs 1(a), (c), (d), (e), (h) and (j), and 2 years' imprisonment for those at subparagraphs 1(b), (f), (g) and (i).

5. The 10 charges before the court involve eight separate incidents that arose across a six-month period between September 2017 and March 2018. All but one incident involve the defendant's then domestic partner directly, with whom he shared a brief nine-month relationship. The incidents are all characterised by significant violence, grossly disproportionate to any stimuli perceived by the defendant, and occurring in circumstances where the defendant experienced unjustified jealousy and anger, and where the defendant was determined to control his partner. The incidents occurred in a domestic context, between, or in the presence of, the defendant's intimate partner and on most occasions within the home of the partner. Individuals should be entitled to feel safe in the presence of their intimate partners and within the confines of their homes.

6. I note the following key features of the offences and make the following assessments:

7. The defendant's partner invited the defendant to a friend's home where she was socialising. When the defendant arrived, he found the door locked. This triggered a violent response that included him placing his hand on his partner's throat, pinning her against a wall and lifting her off the ground. Hispartner could not breathe nor talk. She was held there for approximately five seconds and experienced pain in the amount of five out of a possible 10.

8. The application of force to the neck is particularly dangerous. This offence covers a broad range of offending behaviour, which may vary in intensity and length of time. I assess this offence as falling at the mid-range of objective seriousness for an offence of this type.

9. The defendant and his partner were at home with a mutual friend. The friend made a reference to the partner's ex-partner and children. The defendant became jealous and angry stating 'Why did you do that? Now I have to deal with her.' He grabbed the friend with both hands by the throat and pinned him against a wall. Fortunately, the friend could still breathe. The defendant let go and left a short time later.

10. Clearly the force was applied to a particularly vulnerable part of the victim's body. I assess this offence as falling above the mid-range of objective seriousness for the offence of common assault.

11. The defendant and his partner were in a car outside their home arguing about her having sent messages to an ex-boyfriend. She was due to visit her children and indicated that she did not feel safe with him accompanying her. They went inside the home and the arguing continued. The defendant grabbed his partner, and pushed her onto a couch where her face was against a cushion. He punched her in the back and back of her head approximately 10 times. She experienced pain in the amount of eight out of 10. He then threw her, causing her to collide head first into a wall and fall onto a TV unit and hit her elbow. He then dragged her off the TV unit. She felt dizzy and her legs felt weak. While she was on the floor the defendant kicked her in the stomach and ribs four to five times. She experienced pain in the amount of six out of 10.

12. The defendant's partner then went to the kitchen and, while feeling despondent, held a knife to her forearm and threatened suicide. The defendant begged her to hand over the knife. He grabbed the knife and inadvertently cut her arm. (The defendant is not charged with an offence arising out of that action.) The laceration bleed significantly. The defendant then said 'look what you've done' and pushed his partner to the floor. He then kicked her approximately three times to the hip and leg. She felt numb and thought she was going to pass out from blood loss. She continues to have problems with her back as a result of this incident.

13. This attack by the defendant was intense and prolonged. It persisted after his partner suffered a significant injury and was particularly vulnerable to the actions of the defendant. It was a gratuitous and unjustified expression of anger and violence against an intimate partner who was immediately overpowered and wholly defenceless to the defendant's violent impulses. I assess this offence as falling towards the upper end of objective seriousness for an offence of this type.

14. The defendant wanted his partner to accompany him to purchase synthetic cannabis. As he was leaving she muttered the word 'junkie'. He ran back inside of the home and kicked her in the back and ribs five to 10 times. She experienced pain in the amount of seven or eight out of 10. During this incident her laceration from the earlier incident opened and bleed profusely. He then punched her in the head and arms. She experienced pain in the amount of seven or eight out of 10.

15. The defendant then got into his partner's van and started to leave. She followed him outside demanding the return of her keys. He drove the van towards her. He then got out of the van and chased her on foot around the unit carpark. She asked him to leave, and he left in the van. Police later attended and observed bruising on her biceps and swelling on her left forearm.

16. I assess this offence as falling above the mid-range of objective seriousness for an offence of this type.

17. The defendant and his partner had moved from one rental property to another. While in bed together the two discussed fixing the damage at the previous property, with him indicating that he would fix that damage. She rolled over to get her phone to find someone else to fix that damage. He said that it was disrespectful to look at her phone first thing in the morning and struck her in the left ear. She felt immediate pain and started to get a pounding headache. She later noticed blood had run from her ear down her cheek. She has since had daily problems with her ear including reduced hearing, experiencing painful popping and feeling as though there is fluid in her eardrum.

18. Once again this was a violent and inappropriate response to a perceived slight by the defendant's partner. He applied considerable violence upon his partner without warning, to a very vulnerable part of her body, while she was looking in the other direction, and at a time and place where she was entitled to feel safe and secure. It was however a brief application of force, in contrast to some of the other offences. Unfortunately, the incident resulted in ongoing pain and discomfort for the partner. I assess this offence as falling above the mid-range of objective seriousness for an offence of this type.

19. The defendant and his partner were arguing at home and she indicated that she was ending the relationship. She called police and a wrestle followed. He elbowed her in the eye. A cabinet was knocked over and he punched it five times. He then punched his own face four or five times.

20. Police attended and the defendant was arrested. He appeared in court the following day and was granted bail with conditions that included not to contact or approach his partner and not to be within the ACT.

21. Due to the first offence being common assault and not assault occasioning actual bodily harm, I have disregarded the reference in the Statement of Facts to a bruise under the partner's eye, in accordance with the principle in The Queen v De Simoni (1981) 147 CLR 383.

22. I assess the first offence as falling in the mid-range of objective seriousness for an offence of common assault, and the second offence as falling below the mid-range of objective seriousness for an offence of damage property.

23. The defendant attended court and, notwithstanding his bail conditions, contacted his partner, attended her home and stayed overnight with her. She woke up early the next morning feeling suicidal. At one point he found her in the lounge room. Words were exchanged. He grabbed her by an arm and dragged her back to the bedroom. He wrapped his arm around her neck from behind in a sleeper hold and held her in that position for a considerable period of time. She perceived it as being approximately 20 minutes. She pushed and kicked in an attempt to free herself. At times she could not breathe nor speak, felt dizzy and had shiny black stars across her vision. He made references to death and she thought she was going to die.

24. Eventually, his partner freed herself and got to her feet. She scratched the defendant and ripped his nose piercing. He held her down on the bed while sitting on top of her and dripped his blood onto her face and body. He eventually left the home.

25. This is another example of a prolonged application of violence upon the defendant's partner in a manner that was extremely dangerous. I note that the partner did not lose consciousness. The offences occurred while the defendant was on bail for earlier offences of violence, and therefore he was on conditional liberty at the time. The first offence relates to events up to and including the sleeper hold, and the second offence relates to him holding her down and dripping blood onto her face and body. I assess the first offence as being towards the upper end of objective serious for offences of that type, and the second as being in the mid-range of objective serious for an offence of that type.

26. The defendant returned to Canberra for court and spent the evening with his partner. She recalled the defendant receiving a call from his ex-girlfriend. The next thing she recalls is waking up the following morning in a great deal of pain. She was covered in bruises on her arms, legs, back and face. One eye had a bruise and was starting to swell shut. A medical officer later observed 34 separate bruising sites over her body.

27. When asked what happened, the defendant indicated to his partner that she had 'mouthed off' about his ex-girlfriend and stated 'I lost it and beat the shit out of you.' The partner attended hospital two days later and police became involved.

28. The offences also occurred while the defendant was on bail for the earlier offences and was therefore on conditional liberty at the time. The only available inference is that the partner lost her memory as a result of the violence applied to her by the defendant. While it remains unclear what precise violence was applied, the results demonstrate a sustained and brutal beating. The defendant's admission confirms the scale of the beating and total loss of control by the defendant. I assess this offence as being in the upper range of objective seriousness for an offence of this type.

29. The defendant comes before the court with a criminal history that does not assist him. He has convictions from NSW for breach apprehended violence order (domestic) that occurred in 2011, 2012 and 2013, damage property (domestic violence) that occurred in 2011, assault from 2013, affray from 2012 and stalking that occurred in 2013 and 2015. He has served a number of periods of full time custody. I take that history into account not for the purpose of increasing the sentence that should be imposed, but rather to determine what degree of lenience should be afforded to the defendant.

30. I have the benefit of a Pre-Sentence Report and take into account the information contained therein. I note that the defendant is 26 years of age and single with no dependants. His childhood is described as being 'rough' with his father committing suicide when he was an infant and his stepfather later abusing him. It was also suggested from the bar table that the defendant had been beaten by his mother. He was placed into foster care at the age of 12 years and started living on his own at 14 years. It is clear that the defendant suffered significant disadvantage during his upbringing, and I accept that there is likely to be a nexus between his disadvantage and his offending behaviour and I have taken that into account. This must reduce his moral culpability to some extent.

31. The defendant completed Year 7 at school, and Year 10 at TAFE NSW. He completed a Certificate II in Agriculture while in custody. He has worked in the past as a spray painter. He is currently employed at the AMC.

32. The defendant has been a daily user of cannabis and consumed methamphetamine periodically. There is nothing before me to suggest that the defendant's use of illicit substances directly contributed to his offending conduct.

33. The Pre-Sentence Report indicates that the defendant clarified that he has no medical or mental health issues. During submissions on behalf of the defendant it was suggested that the defendant may have an undiagnosed mental health condition. However it was conceded that there was no evidence before me to support that contention. My offer to adjourn the proceedings to allow a mental health assessment was not taken up.

34. The Pre-Sentence Report documents the defendant's acknowledgement of his anger management issues, their contribution to his offending conduct, and how he, in any event, should not have behaved in the manner he did. I note that defendant has also completed the First Steps to Anger Management course while on remand at the AMC.

35. As indicated above, these offences occurred in the context of disputes between the defendant and his domestic partner. The defendant's partner was entitled to expect support and protection from the defendant, and certainly not violence. She was also entitled to feel safe and secure in her home and in her bed. The offending represents a clear breach of the trust that exists implicitly between intimate partners. Violence in this context deserves clear denunciation by the court. The defendant and other offenders need to understand that they should not expect to be able to hide within the privacy of an intimate relationship and perpetrate such violence without public sanction. Sanctions need to be imposed that will deter the defendant and others, who may find themselves in similar situations, from committing such offences. Accordingly, specific and general deterrence must feature highly in this sentencing exercise. There is also the need to recognise the harm done to the defendant's partner. I note the contents of the Victim Impact Statement, in particular the physical and psychological difficulties the partner continues to suffer.

36. The Court of Appeal, in O'Brien v The Queen [2015] ACTCA 47 at [26], summarised the principles to be applied when sentencing an offender for multiple offences. That observation reads:

The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:

(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623-624.

(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is "just and appropriate" for all the offences: Mill at 63.

(c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 at [112]; R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18].

(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].

37. The defendant has been in custody continuously since his arrest on 25 May 2018, and also spent a night in custody on 14 November 2017. I will back date sentences accordingly.

38. As the aggregate sentence will exceed 12 months, I will fix a non-parole period. In determining how long that non-parole period should be, I have taken in to account all of the above factors, in particular the defendant's relatively young age and the contrition expressed in the Pre-Sentence Report, and note that the non-parole period still needs to reflect the objective gravity of the offending conduct, but may be mitigated in favour of the defendant's rehabilitation. Clearly the community's interests are best served if the defendant is given an opportunity to reform. To that end I will set a non-parole period that will enable the defendant to spend a period of time in the community and under the supervision of Corrective Services.

CC 6924 of 2018 - convicted and sentenced to nine months imprisonment, commencing on 24 May 2018 and concluding on 23 February 2019.

CC 13773 of 2018 - convicted and sentenced to four months imprisonment, with two months cumulative on the previous sentence, and therefore commencing on 24 December 2018 and concluding on 23 April 2019.

CC 6926 of 2018 - convicted and sentenced to 18 months imprisonment, with 12 months cumulative on the previous sentences, and therefore commencing on 24 October 2018 and concluding on 23 April 2020.

CC 6929 of 2018 - convicted and sentenced to nine months imprisonment, with five months cumulative on the previous sentences, and therefore commencing on 24 December 2019 and concluding on 23 September 2020.

CC10069 of 2018 - convicted and sentenced to nine months imprisonment, with five months cumulative on the previous sentences, and therefore commencing on 24 May 2020 and concluding on 23 February 2021.

CC 12535 of 2017 - convicted and sentenced to four months imprisonment, with two months cumulative on the previous sentences, and therefore commencing on 24 December 2020 and concluding on 23 April 2021.

CC 12534 of 2017 - convicted and sentenced to one month imprisonment, concurrent with the previous sentence, and therefore commencing on 24 December 2020 and concluding on 23 January 2021.

CC 6932 of 2018 - convicted and sentenced to 18 months imprisonment, with 12 months cumulative on the previous sentences, and therefore commencing on 24 October 2020 and concluding on 23 April 2022.

CC 13778 of 2018 - convicted and sentenced to two months imprisonment, concurrent with the previous sentence, and therefore commencing on 24 October 2020 and concluding on 23 December 2020.

CC 6935 of 2018 - convicted and sentenced to 18 months imprisonment, with 12 months cumulative on the previous sentences, and therefore commencing on 24 October 2021 and concluding on 23 April 2023.

Non-parole period of three years, commencing on 24 May 2018 and concluding on 23 May 2021.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston.