Contents

Table of Contents

Australian Capital Territory

Court of Appeal

Deng v Australian Capital Territory [2024] ACTCA 10 (15 March 2024) - Australian Capital Territory Court of Appeal

‘Appeal against jurisdiction’ – ‘Arbitrary detention’ – ‘Prevention order’ – ‘Family Violence Act’

Proceedings: Appeal against jurisdiction and finding that remand was not arbitrary.

Charges: 1x Breach of prevention order

Facts: The applicant was arrested in 2019 and charged with destroying or damaging property. The Magistrate initiated a prevention order pursuant to s 112 of the Family Violence Act (ACT), prohibiting the applicant from engaging in certain conduct “until all related charges are finalised’. Four months later, another Magistrate finalised the relate charge by convicting the appellant and fining him $2000. This had the effect of ending the restrictions imposed by the prevention order. Two months later, the appellant visited the house of his ex-partner and was subsequently arrested and charged for breaching the prevention order. The applicant was remanded in custody and released 58 days later as the restrictions on the prevention order had terminated months earlier:

As a result of the wording of the family violence order, there was, in fact, no prohibition upon his being at his former partner’s house … as the only “related charge” had been finalised before that date [14]

Grounds of appeal: The applicant contested the legality of the Magistrate’s order, arguing:

1.

The Magistrate(s) acted without jurisdiction by making remand orders for a breach of a restriction which had terminated;

2.

The primary judge failed to consider the effect s 40C of the Human Rights Act (which concerns legal proceedings in relation to public authority actions).

Decision and Reasoning: Appeal dismissed.

The Court (McCallum CJ, Mossop and McWilliam JJ) agreed with reasoning of the primary judge: the fact that certain restrictions of a prevention order might end does not mean the prevention order also ends. The prevention order is only ended by operation of the Family Violence Act:

The inclusion of a statement as to the circumstances in which the prohibitions would cease (“until all related charges are finalised”) was unnecessary because s 30 of the FV Act itself determined when the order ended. Section 30 describes four specific circumstances in which an SIFVO [Special Interim Family Violence Order] comes to an end. That these describe the only circumstances in which the order may be ended is made clear by the language of the section: “A special interim order ends only when the first of the following happens …” [33]

Giving full effect to the terms of the statute and the terms of the order meant that the prohibitions upon being at a particular address or within a specified distance of a particular person within the order came to an end when “all related charges [were] finalised”. But the order itself, without any operative prohibitions, would continue in effect until, by operation of s 30, it came to an end [35]

Further, it was within the jurisdiction of the Magistrates Court to hear any arguments related to the charge and deal with the applicant, including by making remand orders where appropriate:

If the elements of an offence under s 43(2) were not established in the Magistrates Court beyond reasonable doubt, then there would be no jurisdiction to convict the appellant or impose a penalty. However, that there may not ultimately be jurisdiction to convict the appellant or impose a penalty does not deny the Magistrates Court jurisdiction to commence to hear the proceedings, including making any decisions about bail in the meantime, and determine whether or not the appellant is guilty or not guilty [44]

Director of Public Prosecutions v Padreny [2024] ACTCA 4 (16 February 2024) — Australian Capital Territory Court of Appeal

‘Appeal against sentence’ – ‘Manifestly inadequate’ – ‘Factual error’ – ‘Physical violence and harm’– ‘Damaging property’– ‘Threat to kill’– ‘Strangulation/choking’– ‘History of domestic and family violence’

Proceedings: Prosecution appeal against sentence.

Charges: 1x reckless threat to kill, 1x forcible confinement, 2x act endangering health (choke/suffocate/strangle), 3x common assault, 3x damage property less than $5000 in value, 2x assault occasioning actual bodily harm, 1x damage property, 1x make a demand with a threat to endanger health, safety, or physical well-being.

Facts: The male respondent was convicted and sentenced to 5 years and 7 months’ imprisonment for 14 offences committed against his female intimate partner over an eight-month period (February–October 2020). [128]

Grounds of appeal: The prosecution appealed the original sentence on four grounds:

1.

The sentencing judge erred in allowing a 25% discount for the respondent’s plea of guilty with respect to the offence of making a demand with a threat to endanger health, safety or physical wellbeing;

2.

The sentencing judge erred in allowing a discount in excess of 10% for the respondent’s pleas of guilty with respect to the offences of making a reckless threat to kill, assault occasioning actual bodily harm, and two instances of common assault and

3.

The sentencing judge erred in the assessment of the objective seriousness of the offence of assault occasioning actual bodily harm, by failing to take into account and/or misstating the material facts relevant to that assessment; and

4.

The sentence imposed was manifestly inadequate. [58]

Decision and Reasoning: Appeal allowed. Respondent sentenced to 8 years and 9 months’ imprisonment. [171]

With respect to the first two grounds of appeal, the Majority (McWilliam and Abraham JJ) held that there was no ‘evident justification’ for the plea discounts. [90] The respondent’s plea of guilty were arrived at late [92]; [97].

With respect to ground three, the Majority held that the sentencing judge’s assessment of the objective seriousness of the conduct constituting the charge of occasioning actual bodily harm was premised on a factual error. The sentencing judge mistook the extent of the harm caused by the impugned conduct as requiring surgical procedures when it did not. [104]–[105]

With respect to ground four, the Majority held the sentences to be manifestly inadequate. In comparison to relevant cases, the sentence imposed for the offence of choking, threat to kill, making a demand with a threat to endanger life were ‘substantially lower’. [127]; [132]; [133]; [138]; [140]

With respect to choking, the Majority summarised the following relevant factors in assessing objective seriousness:

For this offence, without being exhaustive, the following have been referred to: (1) the length of time during which the “choking” persisted; (2) the amount of force used; (3) whether the victim’s breathing was restricted; (4) whether verbal threats were made at the time of the choking; (5) whether the victim sustained any injuries; (6) whether any aides like rope or cable were used; (7) the vulnerabilities of the victim; (8) whether the conduct was deliberate and sustained, designed to threaten and inflict harm; and (9) whether the conduct occurred in a family violence context [131]

In dissent, Loukas-Karlsson J regarded ‘leniency in sentencing’ to not ‘equate to manifest inadequacy’. [2] For Loukas-Karlsson, the Prosecution failed to demonstrate ‘that a successful appeal on … grounds one and two would amount to anything more than “tinkering” with the sentence, that is, nothing but a slight adjustment in sentence’. [13] In effect, the sentence was neither ‘unreasonable or plainly unjust’ [26]; [43]

Day v R [2023] ACTCA 39 (11 October 2023) — Australian Capital Territory Court of Appeal

‘Appeal against sentence’ – ‘Physical violence and harm’ – ‘Strangulation/choking’ – ‘Prevention order’ – ‘pro-social conduct’

Charges: 2x choke, suffocate or strangle, 1x threat to kill, 1x contravention of prevention order, 1x transfer offence (damage property)

Proceedings: Appeal against sentence

Facts: The applicant was sentenced to 4 years and 6 months’ imprisonment for offences committed in a domestic violence context. The applicant and complainant/victim had a short relationship 2015–16 that recommenced in 2019. In September 2021, the applicant, unprovoked, pushed the complainant off their bed, and manually strangled her on the floor. Despite demanding the victim to leave, the applicant obstructed her from doing so and strangled her again. [8]–[12] The complainant managed to escape the house, and three months later sought a prevention order against the applicant. [13] Grounds of Appeal: The applicant appealed the sentence on the following grounds:

1.

The sentencing judge failed to take into account the appellant’s subjective circumstances;

2.

The accumulation of the individual sentences was excessive or the sentencing judge failed to take into account totality; and

3.

The individual sentences, the aggregate sentence and the non-parole period imposed were manifestly excessive.

Decision and Reasoning: Appeal dismissed.

The applicant did not establish any of the grounds of appeal. With respect to ground 1, the sentencing judge demonstrated no error in their approach to the subjective circumstances of the applicant [48]:

In any event, the matters identified by the appellant as “strikingly pro-social” going to rehabilitation, which he submitted were not identified or taken into account in sentencing, or not having been dealt with appropriately were, save for one limited matter, expressly identified by the sentencing judge. It may be accepted that they were not referred to with the emphasis or in the manner that the appellant might have desired, but the references reflected the material before the sentencing judge. The matter not referred to is that he has had a stable housing record since 2016 and has a positive relationship with his neighbours. It is unclear how, in the context of family violence offences, this matter could be characterised as strikingly pro-social conduct such as to materially impact on the sentencing [33]

With respect to the remaining grounds, the Court upheld the sentence as not manifestly excessive nor in discordance with the principle of totality [66];[69]. In so doing, the Court stressed the limitation of considering current sentencing practice:

Current sentence practice is only one sentencing consideration. The Crown referred the sentencing judge to a number of other cases during the sentencing hearing but observed that they were not really comparable. Simply because a case has different features does not mean it may not provide assistance generally as to the range of sentences being imposed. Factually comparable cases are difficult to find, as the facts of the offence and the offender are both relevant. Given that reality, a sentence imposed in a factually more serious case (or less serious case) may, with other cases, provide some guidance. The assistance depends on the facts of the given cases. This is bearing in mind, the relevant inquiry for manifest excess is not just a comparison between cases. His Honour considered the cases referred to, analysing the circumstances in which the sentences were imposed [63]

Vuolo v Fall [2023] ACTCA 33 (3 August 2023) — Australian Capital Territory Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Stalking’ ‘Following, harassing and monitoring’ - ‘family law’

Charges: 1x stalking

Proceedings: Appeal against sentence

Facts: Before a Magistrate, the applicant was found guilty of one charge of stalking and placed on a good behaviour order for 12 months. The offence was proven in relation to the applicant stalking his ex-partner, with whom he had been married between 2010 and 2017, on ‘six occasions, in just over a three-month period in the same year’. [1] The stalking occurred following handover of their children per shared-custody arrangements. [7]

The sentence was appealed, and subsequently overturned by a single judge of the Supreme Court (‘primary judge’) in favour of the complainant: the applicant was resentenced by a conviction and a good behaviour order imposed for a period of 12 months backdated to the original date of sentence.

Grounds of appeal: The applicants seeks to quash or set aside the orders of the Supreme Court judgement, and reinstate the orders imposed in the Magistrates Court. The applicant sought to appeal the order on seven grounds, which can be summarised as followed:

•

Grounds 1 and 4: The primary judge erred in finding that the non-conviction order (made by the Magistrate) was ‘an outlier’ [13]

•

Ground 2: The primary judge erred in finding that the use of a vehicle (to stalk) was relevant and aggravating [48]

•

Ground 3: The primary judge erred in adopting the Magistrate’s summary of the facts, which noted that the victim “felt fearful and harassed” by the applicant [52]

•

Ground 5: The primary judge erred in reasoning that if the sentence was treated as a guide for future decision, ‘it would lead to a wide range of offending not attracting punishment’ [28]

•

Ground 6: The primary judge erred in finding that the original sentence was manifestly inadequate [61]

•

Ground 7: The primary judge erred in failing to find that the Court on a review appeal retained a residual discretion to decline to interfere with the sentence even where error has been established [62]

Decision and Reasoning: Appeal dismissed.

The Court (Backer, McWilliam and Abraham JJ) dismissed grounds 1 and 2. The Court found no error in the primary judge’s conclusion that the sentence was an outlier. Previous sentences were considered, each including a term of imprisonment where the offending was objectively serious [21] (Ground 1 and 4). The Court held that ‘using a motor vehicle to follow a person is objectively more serious than other conduct which may also fall within the definition of stalking’ [50] (Ground 2).

The Court upheld the fifth ground of appeal, finding that the primary judge’s reasoning was not ‘directed to explaining why the sentence [of the Magistrate] is manifestly inadequate, but rather at the consequences of failing to correct it’. [45] The impugned statement was that a failure to correct the sentence would ‘erode sentencing standards’. [40] Consequently, the Court considered grounds 3, 6 and 7 in light of reconsidering the sentence.

The Court held the primary issue in dispute to be whether a conviction should have been recorded. [70] Having regard to sentencing objectives and considerations (Sentencing Act ss 7, 33), the Court held the original sentence (i.e. a good behaviour order without conviction) was manifestly inadequate and insufficient to meet the need for general deterrence. [86]–[88] The offending is ‘punishable by two years’ imprisonment’ [72]: it ‘was sustained conduct … sufficiently concerning to prompt evasive action by the victim’ and occurred in the context of family violence [73]–[75].

NS v Hotchkis [2021] ACTCA 13 (2 June 2021) – Australian Capital Territory Court of Appeal

‘Breach of protection order’ – ‘Common assault’ – ‘Evidence issues’ – ‘Protection orders’ – ‘Self-represented litigant’

Charges: Common assault x 1; Contravening a Family Violence Order x 1.

Proceedings: Appeal from ACT Supreme Court against convictions imposed in the ACT Magistrates Court.

Facts: The male appellant and female complainant were married and living together. The appellant kicked the complainant’s leg during an argument. The applicant breached a family violence order by engaging in offensive or harassing behaviour towards the complainant or by harassing, threatening or intimidating her. The complainant made an audio-recording and a central issue in the appeal was whether the magistrate in the initial hearing had erred in ruling that the audio recording was admissible. The appellant’s appeal to the Supreme Court against his conviction was dismissed: NS v Hotchkis [2019] ACTSC 309 (8 November 2019).

Grounds of appeal: The primary appeal judge erred in dismissing the first appeal on grounds that:

1.

The magistrate erred in ruling that the audio recording made by the complainant was admissible (pursuant to ss4 and 5(2)(d)-(e) of the Listening Devices Act 1992 (ACT) (LDA).

2.

The convictions were unreasonable and could not be supported having regard to the evidence.

Held: Appeal dismissed.

Ground 1: There was no error in the primary judge’s conclusion that ss 4 and 5 were not breached, as the complainant believed, on reasonable grounds, the recording was necessary for the protection of her lawful interests. Further, there was no error in concluding there was no prohibition in s 10 for the admissibility of the conversation. No question of the application of s 138 of the Evidence Act arose.

Ground 2: The primary judge reviewed the evidence, set out findings of fact and reasons given by the magistrate, and referred to the appellant’s submissions that the statements made did not breach the family violence order. There was no error in the primary judge’s conclusion:

“I have no hesitation in agreeing with the Magistrate that the evidence established a breach of the family violence order. Having listening to the recording on numerous occasions, I am satisfied that his conduct was, and was intended to be, harassing and intimidating. I agree with the Magistrate that he was yelling at [the complainant], and that his tone was aggressive. His suggestion that he was talking to the dog is improbable, but in any event I am satisfied that his conduct was really directed towards [the complainant], and intimidating her.”

“In finding the appellant guilty of assault, the Magistrate was entitled to take into account the clear aggression demonstrated by the appellant at the time that [the complainant] says she was kicked. She was also entitled to find that the appellant had threatened to “snot” [the complainant], and that this was a threat to hit her. The Magistrate was also entitled to find that the accused had kicked the rubbish bin just before he kicked the complainant, although his intention may have been to scare the dog. These were all circumstances supportive of the evidence of [the complainant]. Finally, the Magistrate had the benefit of seeing and hearing [the complainant] cross examined and the appellant giving his evidence. Her finding that [the complainant] was a credible witness, and the appellant was not, should not lightly be interfered with. I am satisfied that there was ample evidence upon which the Magistrate was entitled to convict the appellant.”

TS v DT [2020] ACTCA 43 (27 August 2020) – Australian Capital Territory Court of Appeal

‘Accommodation’ – ‘Appeal of family violence order’ – ‘Exclusion from home’ – ‘Ongoing risk’ – ‘Past domestic and family violence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Protection orders’ – ‘Self-represented litigant’

Proceedings: Appeal of Family Violence Order.

Facts: The matter was an appeal to the Court of Appeal following a final Family Violence Order (FVO) made against the appellant by the Chief Magistrate, and upheld on appeal by the Primary Judge: TS v DT [2019] ACTSC 295 (25 October 2019). The appellant sought that the FVO made by the Chief Magistrate be quashed, and no further orders made excluding the appellant from the premises of the family home (where the respondent was living).

Issues: The male appellant applied to adduce additional evidence in the appeal. The appellant also raised 12 grounds of appeal: the decisions of the Chief Magistrate (Ground 1) and Primary Judge (Ground 2) were unreasonable and not supported by evidence; the Chief Magistrate erred in running a final hearing on the FVO application (Grounds 3 and 10), making an FVO that was too long (2 years from final hearing) (Ground 4) and applying the Browne v Dunn principle (Ground 5); the Primary Judge attempted to cover up the Chief Magistrate’s alleged misconduct (Ground 6); the Chief Magistrate erred in law by relying on 2018 convictions (Ground 7) and the 2007/8 incident to support the making of the FVO (Ground 8); there was judicial misconduct by the Chief Justice in the conduct of the final hearing (Ground 9); and there was failure to have regard to evidence including relating to “property law issues” and the accommodation difficulties of the appellant (Grounds 11 and 12).

Decision and reasoning: The application to adduce additional evidence was refused ([52]-[64]), and the grounds of appeal were dismissed ([65]-[162]).

On Grounds 1 and 2, the decisions of the Chief Magistrate and Primary Judge were not unreasonable and were supported by evidence (including specific instances of violence against the respondent and her son, further supported by criminal convictions of the appellant) ([66]-[87]).

On Grounds 3 and 10, there was no error in making a final order excluding the appellant from access to the family home as the proceedings were run as a final hearing ([88]-[100], [142]-[143]). On Ground 4, the FVO’s duration was grounded in statute. Further, the Chief Magistrate weighed the competing interests of the appellant and the respondent (including the appellant’s accommodation difficulties) but found these could only be remedied by excluding the appellant from the family home ([101]-[112]). On Ground 5, there was no error in application of the Browne v Dunn principle ([113-[122]) and on Ground 6, there was no evidence of judicial bias ([123]-[125]).

On Ground 7, there was no miscarriage of justice relating to the 2018 convictions (which confirmed findings of instances of violence and substantiated the respondent’s fear) ([126]-[131]) and on Ground 8, appropriate regard was had to an incident in 2007/8 ([132]-[137]). On Ground 9, the Chief Magistrate’s conduct during the hearing was unremarkable ([138]-[141]).

On Grounds 11 and 12, the Chief Magistrate and Primary Judge had due regard to the evidence presented by the appellant, including evidence relating to “property law issues” and the accommodation circumstances of the appellant ([142]-[161]). On the property law issues, at [153]-[154], the Court noted:

“The appellant contends that the respondent had an additional purpose in seeking as a condition of the final FVO that the appellant be excluded from the family house – namely, an objective on the respondent’s part to obtain sole ownership of the family home. As I noted earlier, irrespective whether this was the case, there was clear evidence before the Chief Magistrate that the respondent would have difficulty relocating her place of residence and, further, that there was a history of violent conduct on the part of the appellant towards the respondent which supported the final FVO being made.

Further, and notwithstanding the submissions of the appellant to the contrary, the ultimate proper disposition of assets is a matter for the family law proceedings. That the respondent may seek sole ownership of the matrimonial home in those proceedings does not mean that her claims under the FV Act had no basis.”

Laipato v The Queen [2020] ACTCA 35 (7 July 2020) – Australian Capital Territory Court of Appeal

‘Appeal against conviction and sentence’ – ‘Evidence’ – ‘Inconsistent verdicts’ – ‘People affected by trauma’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Unreasonable, unsafe and unsatisfactory verdicts’

Charges: Burglary x 1 (guilty); Unlawful confinement x 1 (guilty); Choking x 1 (guilty); Indecent assault x 1 (not guilty); Choking x 1 (not guilty); Intentionally causing property damage x 3 (not guilty); Stealing CCTV hard drive x 1 (not guilty).

Proceedings: Application for leave to amend notice of appeal and for leave to appeal (grounds 3, 4, 6 and 7) and appeal against conviction and sentence.

Facts: The trial court found that the appellant man broke into his former partner’s (the complainant’s) house before dragging her from bed and strangling her. The complainant’s evidence was that the appellant ‘made her stay’ in the room by threatening to strangle her if she tried to leave, strangling her multiple times and threatening to kill her. The appellant allegedly committed property damage. There was some delay before the complainant alleged that the appellant had indecently assaulted her. The appellant allegedly ripped out the CCTV hard drive before leaving. The appellant also allegedly slashed the tyres of the complainant’s car.

Grounds of appeal: (1) Verdicts were inconsistent; (2) Verdicts were unreasonable, unsafe and unsatisfactory; … (6) Trial judge erred in making factual findings; (7) Sentences were manifestly excessive.

Decision and reasoning:

Grounds (1)-(2) Dismissed. There were rational explanations why the jury may have acquitted the appellant of some charges while finding the appellant guilty on others. One factor identified was that the complainant was upset and frightened; she ‘may have misremembered matters or failed to appreciate details’, although the complainant did make some errors in her evidence and did not directly witness some of the alleged charges/events. Where there were inconsistencies in the complainant’s evidence, the jury may have accepted that this was because she had just ‘survived a gruelling series of events’ [101].

Ground (6) Allowed. Two of the trial judge’s factual errors did not reduce the objective seriousness of the offence to something less than ‘midrange’:

[155] The offence was committed in the complainant’s home, during the night. It was motivated by a desire to vent anger and assert physical control over the complainant in response to her termination of the relationship. The offence was of not insignificant duration. It was associated with violence and a threat to kill; whether the violence was properly described as “extreme violence” poses a semantic question that is unnecessary to answer.

A third factual error of substance required the Court of Appeal to resentence on Counts 1, 2 and 3.

Ground (7) Allowed. Total sentence reduced from 5 years and 5 months to 3 years and 6 months.

R v UG [2020] ACTCA 8 (27 February 2020) – Australian Capital Territory Court of Appeal

‘Alcohol abuse’ – ‘Children’ – ‘Damaging property’ – ‘People with mental health issues’ – ‘Physical violence - threat to kill child - suicide threat- weapon’

Offences: Common assault x2; possessing offensive weapon with intent x1; d amaging property x 2; make demand with threat to kill x1; aggravated dangerous driving x1

Proceedings: Appeal against sentence

Issues: The Crown submitted that the sentences were manifestly inadequate:

•

The length of sentence for the offence of making a demand with threat to kill failed to reflect the objective seriousness of the offence;

•

The very limited degree to which the offences were cumulative meant that the total sentence was manifestly inadequate; and

•

The actual imprisonment period of four months was manifestly inadequate having regard to relevant sentencing purposes.

Facts: R (the appellant man) and C (the complainant woman) were in a relationship at the time of offending. An argument had broken out after R told C he wanted to commit suicide. R grabbed C as she tried to leave their shared bedroom and pushed her onto the bed (first common assault). He then retrieved a large axe from their wardrobe. R pushed C to the ground while they struggled over the axe (second common assault) and swung the axe at her head, narrowly missing. R used the axe to damage items within the house before forcing the couple’s four children into his car. He left and returned several times to demand C get in the car. He eventually threatened to kill their eldest daughter with the axe if C did not get in but drove away once more as police approached his vehicle. This led to a large-scale search. The R was located and arrested later that evening. While all four children were physically unharmed, the eldest daughter was later assessed by a paediatrician who thought it was likely that the offences significantly impacted her emotional and behavioural wellbeing.

On the day of offending, the respondent had failed to take his prescribed antidepressant medication and had consumed a significant quantity of alcohol.

Initially R pleaded not guilty to all charges. Following discussions between the parties the respondent pleaded guilty to six charges and was committed to the Supreme Court for sentence.

The sentencing judge imposed a total sentence of 16 months’ imprisonment.

Judgment: In addressing the first aspect, the Court noted that while the offender’s mental health condition somewhat reduced his moral culpability, it was still necessary to consider the sentencing purposes of general deterrence and denunciation. By failing to reflect these purposes, along with the high objective seriousness of the offence, the sentence starting point of 18 months’ imprisonment for the offence of making a demand with threat to kill was "plainly unreasonable" [69-71]. For the second aspect, the Court believed the degree of cumulation failed to achieve a total sentence that was just and appropriate to reflect the overall criminality [73]. The Court did not make a decision as to the third aspect as they had found they had already found the sentences to be manifestly inadequate for other reasons. Despite finding the sentences manifestly inadequate, the Court refused to resentence the offender on the basis that the appeal raised no point of principle, had limited precedent value and would disrupt the offender’s rehabilitation [97].

The Court also discussed the preliminary issue of the correct approach to sentencing for family violence offences and the correct manner of dealing with the effect of a sentence of imprisonment on the offender’s family [44]. The Court rejected the Crown’s contention that family violence offences constitute a special category of offence in relation to which different sentencing principles apply, and instead provided that absent a statutory provision to the contrary, the same sentencing standards should apply to all offenders (Bugmy v The Queen) [48]-[51].

R v Wyper [2017] ACTCA 59 (11 December 2017) – Australian Capital Territory Court of Appeal

‘Appeal against conviction’ – ‘Complainant's credibility’ – ‘Crown appeal against sentence’ – ‘Intensive correction order’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Post-separation violence’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charges: Engaging in sexual intercourse without consent and being reckless as to whether the person was consenting x 1.

Appeal type: Defendant’s appeal against conviction and Crown appeal against sentence.

Facts: The complainant and defendant were in a relationship ([11]). The defendant asked the complainant to leave the house; she did not want to leave. The complainant alleged that the defendant held her down and digitally penetrated her ([13]). The defendant denied that he digitally penetrated the complainant, and alleged that she damaged a number of his belongings ([14]). The defendant called the police about the property damage, and the complainant called the police about the sexual assault 2 hours later ([20]-[21]). A medical examination of the complainant revealed abrasions consistent with assault ([23]).

The defendant was convicted at trial. He was sentenced to 2 years and 6 months’ imprisonment, served by way of intensive correction order (‘ICO’), and 100 hours’ community service ([2]).

Issues: The defendant appealed against conviction on 3 grounds: (a) the verdict was unsafe and unsatisfactory; (b) the trial judge caused a miscarriage of justice by failing to fairly put the defence case to the jury; and (c) the trial judge caused a miscarriage of justice by failing to direct the jury that the complainant had a motive to lie.

The Crown appealed on the ground that the sentence was manifestly inadequate.

Decision and Reasoning: Both the defendant’s appeal against conviction and Crown appeal against sentenced were dismissed ([8]).

Appeal against conviction

On ground (a), the defendant argued that the verdict was unsafe and unsatisfactory having regard to the unreliability of the complainant’s evidence. The Court (Murrell CJ, Bromwich J and Robinson AJ) held that while it was ‘somewhat implausible’ that the complainant did not cause the property damage, it was open to the jury to convict the defendant ([53]).

On grounds (b) and (c), the defendant argued that the judge should have directed the jury on the complainant’s possible motive to lie to avoid the consequences of her causing the property damage. However, the Court stated that the summing up was fair, given that the motive to lie was not a large issue in the trial ([66]-[68]).

Crown appeal against sentence

The Crown argued that by ordering an ICO, the trial judge failed to give adequate weight ‘to the principle that, for family violence offences, the sentencing purposes of general deterrence and denunciation are particularly important’ ([96]). The Court reiterated the importance of general and specific deterrence in sentencing family violence offenders ([97]), however, the Court emphasised the exceptional nature of the offending at [99]:

This was not a typical offence of family violence. There was no evidence of a history of domestic violence, controlling behaviour or psychological abuse. There were none of the typical indicia of power imbalance. Rather, the offence occurred in the context of a relationship ending, without those features apparently being present.

Imposing an ICO, while lenient, was justified by the defendant’s subjective circumstances, such as his lack of criminal history, and the fact that there was no history of domestic violence in the relationship ([129]-[130]).

O’Brien v R [2015] ACTCA 47 (15 May 2015) – Australian Capital Territory Court of Appeal

‘Assault occasioning bodily harm’ – ‘Double jeopardy- sentencing’ – ‘Exposing a child’ – ‘Perverting the course of justice’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation’ – ‘Sentence cumulation’ – ‘Sentencing’ – ‘Systems abuse’ – ‘Trafficking in cocaine’

Charge/s: Trafficking in cocaine, assault occasioning actual bodily harm (two counts), forcible confinement, perverting the course of justice. Grievous bodily harm.

Appeal Type: Appeal against sentence.

Facts: The sentence imposed at first instance related to three distinct instances of criminality: the drug offence, the domestic violence offences and the perverting the course of justice offence. The domestic violence offences involved the appellant severely beating his then domestic partner which caused horrific injuries. He also choked her in the presence of his young son, restrained her from leaving their premises and forced her to take prescription sedatives so as to prevent her from seeking medical treatment which would reveal the assaults. He detained her for 24 hours. The perverting the course of justice offence involved the appellant encouraging his (by then former) partner not to attend court in relation to the domestic violence charges and encouraging her to produce false evidence about her psychological frame of mind. The aggregate sentence imposed was 12 years and 11 months’ imprisonment with a non-parole period of 8 years and 4 months.

Issue/s: Whether the aggregate sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The appellant submitted that the domestic violence sentences should not have been made cumulative on the sentences for the drug offences. He also submitted that the sentencing judge did not apply the totality principle. The Court held that while the aggregate sentence could be considered by some to be somewhat harsh, it was not unreasonable and was appropriate having regard to all the circumstances. There was no overlap in the three instances of criminality, nor could it be said that the three incidents arose from a single episode or course of conduct, ‘such that the criminality involved in one of the incidents was subsumed or comprehended in the others’ (see at [29]). The sentencing judge did take accumulation, concurrency and totality into account and did impose a degree of concurrency.

Kien v R [2012] ACTCA 25 (24 May 2012) – Australian Capital Territory Court of Appeal

‘Choking so as to render unconscious’ – ‘Exposing a child’ – ‘Intentionally inflicting actual bodily harm’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Risk factor- strangulation’ – ‘Sentencing’

Charge/s: Intentionally inflicting actual bodily harm, choking so as to render unconscious.

Appeal Type: Appeal against sentence.

Facts: The appellant’s marriage with his wife ended and she obtained a domestic violence protection order against him (though this was not in place at the time of the offence). The appellant went to the family home and an argument ensued, which developed into a physical fight. The appellant then took a chair from his wife (which she was threatening to throw at him) and struck her with it so forcefully that it broke into pieces. He then choked her until she became unconscious. He then wrapped a towel around her neck and used both hands to pull the material down toward the floor. A domestic violence protection order was previously in place in favour of the victim. He was subject to a good behaviour order at the time of the offences imposed for a prior breach of the protection order. He was sentenced to a total of four years and seven months’ imprisonment with a non-parole period of three years and one month.

Issue/s:

1.

Whether the sentencing judge erred in finding that the offences were unprovoked.

2.

Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

1.

The appellant submitted that the fact the offences were not unprovoked should have mitigated the severity of the sentence. This argument was rejected — the actions of the victim were all in response to the appellant coming to the matrimonial home where he was not welcome. He was asked to leave but did not do so. His response to his wife’s actions were so disproportionate that they could not have been seen as provocative.

2.

Counsel for the appellant submitted that two comparable cases showed the sentence was manifestly excessive. This argument was rejected, with the Court holding that the offences were serious and resulted in severe facial injuries committed in a context where the appellant was not welcome in the house. While they were heavy sentences, they were proportionate to the criminality involved.

Stevens v McCallum [2006] ACTCA 13 (30 June 2006) – Australian Capital Territory Court of Appeal

‘Assault’ – ‘Contravention of a protection order’ – ‘Evidence issues’ – ‘Hearsay’ – ‘Hostile witness’ – ‘Incompetence of counsel’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Unco-operative witness’

Charge/s: Assault, contravention of a protection order.

Appeal type: Appeal against conviction and appeal against sentence.

Facts: The appellant was charged with assaulting his female partner (‘the complainant’) and contravening a protection order in her favour. He pleaded guilty to assault but not guilty to contravening a protection order. The offending came to light after a police officer (‘the informant’) attended the complainant’s premises. The informant observed that the complainant was very distressed and had bruises on her body. A conversation between the complainant and the informant was recorded. In this conversation, the complainant made some allegations that the appellant had hit her but she was largely unresponsive to questions and was affected to a considerable degree by alcohol (See [41]-[43]). At trial, the prosecution sought to prove the tape and transcript of this conversation only for its possible use in refreshing the complainant’s memory. However, counsel for the appellant, Mr Elmaraazey, tendered this document as evidence (‘exhibit 3’).

The complainant was called to give evidence after the informant. When asked about whether there was an incident between her and the appellant, she stated ‘I can’t remember the exact details’ and proceeded to give an account of the evening that made no reference to any physical violence. She agreed that she had a conversation with the informant but could not recall its contents. The prosecution then proceeded to cross-examine the complainant about the various bruises that had been observed on her that evening. The complainant said she could not remember how the bruises happened. The prosecution applied to the magistrate for leave to cross-examine the complainant on the basis that the witness had made a prior inconsistent statement with reference to exhibit 3. Mr Elmaraazey did not object. The complainant’s response was to accept that exhibit 3 accurately reflected what she had told the informant but she could neither confirm nor deny that it represented what actually happened (See [26]-[40]). Accordingly, absent the tender of exhibit 3 as evidence, there would have been insufficient evidence to convict the appellant (See [47]).

The magistrate found the appellant had assaulted the complainant and sentenced him to 12 months imprisonment for the assault and 3 months imprisonment for the breach of protection order. He was sentenced to an additional 6 months imprisonment for breach of an earlier imposed recognisance.

Issue/s:

1.

The incompetence of counsel for the appellant, Mr Elmaraazey, led to a miscarriage of justice.

2.

The sentencing magistrate erred in assuming that the injuries sustained by the complainant were the result of a ‘violent and prolonged’ assault.

Decision and reasoning: The appeal was allowed. First, in the absence of the tender of exhibit 3 by Mr Elmaraazey, it was, at the very least, unlikely that the statement would have been admitted as evidence that the appellant assaulted the complainant. It was open to the prosecutor to seek leave to give the statement to the complainant to refresh her memory, if s 32 of the Evidence Act were satisfied. However, the failure of this process to refresh the complainant’s memory meant the prosecutor could not tender the prior statement as evidence of the truth of its contents (See [145]-[180]). There was a resulting miscarriage of justice (See [181]-[191]).

Second, the sentencing judge erred in assuming that all the injuries resulted from the charged assault. Even if the terms of exhibit 3 had been properly proved, they included an allegation of assault that had occurred the previous evening. The only unequivocal allegation of recent violence was that the appellant hit her in the face on their return from the shops. It was an error not to attempt to distinguish between the violence inflicted the previous night and those in the hours preceding the interview with the informant (See [196]-[207]).

Supreme Court

DPP v Vaana [2024] ACTSC 46 (27 February 2024) – Australian Capital Territory Supreme Court

‘Sentencing’ – ‘Family Violence’ – ‘Coercive control’ – ‘Exposing children to domestic and family violence’ – ‘Damaged property’ – ‘Threat to kill’ – ‘Bugmy principles’

Proceedings: Sentence.

Charge: Aggravated damage x 1; possession of offensive weapon with intent x 1; aggravated threat to kill x 1.

Facts: The male offender engaged in a pattern of ‘overbearing, controlling behaviour’ towards his female partner (the complainant). [8] Attending a football match, the offender demanded the complainant hand over her mobile phone and passcode. When the complainant refused to do so, the offender left to the supermarket, purchased a knife and returned to puncture the complainant’s car tyres. [8]–[11] While wielding the knife, the offender threatened the complainant’s family, all of whom were present at the football match and witnessed the incident. [19]

The Registrar of the Magistrates Court refused to list the matter that day and the temporary application was listed a week later. The applicant was informed that the application in the proceeding must be served on the respondent. The applicant then appealed from the decision not to list the matter on an urgent basis and the requirement to serve documents on the respondent. The appeal was listed on an expedited basis.

Decision and Reasoning: Total effective sentence of 18 months’ imprisonment. [44] In sentencing the offender, Berman AJ spotlighted the delayed recognition of domestic violence offences as a serious offence:

For many years, domestic violence offences were not treated with the seriousness they truly deserved. This has now changed, and proper recognition is now given to the harm that such offences cause to the victims of it, and society generally [1]

Acting Judge Berman emphasised the seriousness of the offending, particularly that it occurred in a public space in front of the offender’s children. [24] His Honour took into account the offender’s dysfunctional and violent upbringing, and criminal history which included offences of stalking/intimidation and damaging property. [27]–[30]

DPP v Mastalerz [2024] ACTSC 30 (19 February 2024) – Australian Capital Territory Supreme Court

‘Tendency Evidence’ – ‘Relationship and context evidence’ – ‘Admissibility’ – ‘Family violence’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘breach of protection orders’ – ‘incidents of violence’

Proceedings: Application to adduce tendency evidence.

Charge: Aggravated sexual intercourse without consent x 6; aggravated common assault x 1; aggravated minor property damage x 1; contravention of protection order x 3.

Facts: The male accused and female complainant were in an ‘on-and-off relationship’ from April 2017 to December 2022. [9] The relationship was riddled with family violence perpetrated by the accused against the complainant. [9] The violence was physical, sexual and in disregard of several protection orders made by the complainant. [13]–[20]

On 23 November 2023, the prosecution filed an application to adduce tendency evidence (and subsequently, an Amended Notice). The evidence concerned prior incidents demonstrative of three tendencies: (i) the accused’s tendency to be violent towards and controlling of the complainant; (ii) the accused’s tendency to disregard court orders regulating his contact with the complainant; and (iii) the accused’s tendency to ignore the complainant’s protests when she declined sexual intercourse. [3] In the alternative, the prosecution sought to adduce the evidence as relationship or context evidence. [4]

Decision and Reasoning: The evidence of certain listed incidents is relevant and admissible as relationship or context evidence in support of counts 1–3 and 6–8 on the indictment. [5] Evidence of those incidents must not be used in support of the first two tendencies. Whether such evidence may be used in support of the third tendency is a matter for the trial judge. [6]

In arriving at these conclusions, Baker J made clear the distinction between context or relationship evidence and tendency evidence:

The reasoning process for context or relationship evidence is different to tendency reasoning. For example, evidence may be relevant as context or relationship evidence because it explains why the complainant did not respond to the alleged offending in a way that the jury might have expected if they were unaware of the broader context of the relationship. The use of evidence in this way does not engage tendency reasoning. It is concerned with the believability of the complainant’s response, rather than with the tendency of the accused [50]

Similarly, context or relationship evidence may also be relevant to a consideration of the accused’s state of mind without engaging tendency reasoning. For example, it may be necessary for the tribunal of fact to hear broader evidence of the relationship between an accused and the complainant in order for the tribunal of fact to draw accurate inferences about an accused’s state of mind, or their reason for acting in a particular way towards the complainant. Again, the use of evidence in this matter does not engage tendency reasoning. It is not reasoning which involves the tendency of an accused to have a particular state of mind or to act in a particular way [51]

Justice Baker held the uncharged incidents to be particularly relevant as context or relationship evidence, bearing a strong potential to provide assistance to the jury in understanding ‘why the complainant acted as she did’; specifically, ‘why the complainant permitted the accused to return to her in breach’ of the protection order. [62] This included those uncharged incidents which, when considered in isolation, seemed relatively minor:

In the present case, some of the incidents sought to be adduced by the prosecution may, when considered in isolation, seem minor. For example, as the prosecutor acknowledged, incident 13, where the accused is alleged to have thrown a cheeseburger at the complainant, may appear insignificant when considered alone. However, the relentlessness of the accused’s behaviour towards the complainant may be an important aspect of the complainant’s experience of the relationship, which in turn may be essential to an understanding of the complainant’s state of mind, and why the complainant responded as she did [68]

Accordingly, her Honour rejected the accused’s argument that the incidents should be rejected because they involved less serious conduct. [77]

With respect to tendency evidence, Baker J accepted that evidence of accused’s tendency to inflict violence on an intimate partner ‘may have significant probative value in assessing similar allegations of domestic violence’. [86] However, this is not determinative of the probative value of tendency evidence:

[T]he Court must consider two questions when considering the probative value of a tendency of this nature:

(1) Does the evidence that is sought to be adduced, either by itself, or considered with other evidence, strongly support proof of the tendency?

(2) Does the tendency strongly support proof of a fact that makes up the offence charged? [88]

In raising this test, Baker J had difficulty in determining how the tendency alleged is probative of the facts alleged in the relevant offences. [96]–[99]

DPP v Robertson [2023] ACTSC 383 (12 December 2023) – Australian Capital Territory Supreme Court

‘Sentencing’ - ‘Attempted murder’ - ‘Physical violence and harm’ - ‘Attempted breach of protection order’ - ‘fire’ - ‘jealousy’

Proceeding: Sentence.

Charge: Attempted murder x 1; attempted breach of a protection order x 1.

Facts: Unbeknownst to the female victim, the male offender was waiting outside her bedroom window, eavesdropping on her telephone conversations with her son and ex-partner. The offender entered the victim’s residence, snatched her phone and proceeded to inflict multiple, potentially life-threatening, stab wounds on the victim before attempting to set the victim on fire as she called out for help. [4]–[6] The nature of the relationship between the offender and victim is unclear. However, there was a protection order in place, which the offender attempted to breach prior to this offending by sending the victim a Christmas card. [15]

Decision and Reasoning: Twenty-seven years’ imprisonment with a non-parole period of 20 years. Chief Justice McCallum held the offence to fall within ‘the worst category’ of attempted murder:

The offence involved a degree of premeditation, having occurred in the contact that the offender, unbeknownst to the victim, was listening to her phone conversations outside her bedroom then going inside and grabbing a knife and walking into her bedroom to commence the attack [16]

The offending was aggravated by the offender’s previous assaults against the victim in 2017 and 2021, [25]–[26] and present lack of remorse and prospects of rehabilitation. [45]

Harbouring such contempt for the value of a supposed loved one’s life, knowing from past experience that it is a hair trigger for jealous rage, is no less morally culpable than harbouring a calculated intent to kill [30]

DPP v Jewell [2023] ACTSC 348 (23 November 2023) – Australian Capital Territory Supreme Court

‘Sentencing’ - ‘Strangulation/choking’ - ‘Physical harm and violence’ - ‘Following, harassing and monitoring’ - ‘Family Violence’ - ‘Protection order’ - ‘Threat’ - ‘Exposing children to domestic and family violence’

Proceeding: Sentence.

Charge: Making an aggravated threat to kill another person x 1; aggravated stalking x 1; contravention of a protection order x 1.

Facts: In the months after the breakdown of their two year relationship, the offender became ‘very possessive of, and paranoid about, the victim’. [6]

The offender repeatedly called the victim, incessantly sending text message every day [7]. The offender threatened to, and actually did, attend the victim’s home. On one occasion, the offender armed with a knife, forced his way into the victim’s home one night and threatened to kill her. The victim’s children were in the home at the time. [10]–[12]

The offender continued to stalk the victim after this incident, prompting the victim to seek a protection order. [22]–[23] The offender breached this order by persistently contacting the victim via phone and attending her home [25]–[26]

Decision and Reasoning: Total sentence of 7 years and 5 months’ imprisonment with a non-parole period of 3 years and 9 months imprisonment. [115] Judge McWilliam held the aggravated threat to kill was of the ‘most serious kind’. [44] The offender made the threat in person, in the victim’s home at midnight while pointing a hunting knife at the victim. Accordingly, the ‘subjective fear engendered in the victim was at its highest’. [44]

This characterisation extends to the offender’s aggravated stalking. The volume of communication and stalking conduct was ‘high’, with the offender making 138 phone calls, 950 texts messages and 10 house attendances. More than 300 of those messages were sent on one day. [52] These messages were sent with the clear intent to instil fear into the victim and her son. [55]

Her Honour took note of the offender’s dysfunctional childhood, PTSD diagnosis ([71], [111]) and guilty pleas as mitigating factors. [91]

DPP v Gale [2024] ACTSC 297 (17 October 2023) – Australian Capital Territory Supreme Court

‘Sentencing’ – ‘Strangulation/choking’ – ‘Following, harassing and monitoring’ – ‘Family Violence’ – ‘Bugmy prinnciples’ – ‘Threat’ – ‘Emotional and Psychological abuse’ – ‘Aboriginal’ – ‘Bail’

Proceedings: Sentence.

Charge: Threatening a witness x 1; intentionally and unlawfully choking x 2; aggravated stalking x 1; aggravated assault occasioning actual bodily harm x 1.

Facts: In July 2023, the male offender pleaded guilty to a series of offences committed against his former female partner (‘complainant’), with whom he had been in an intimate two year relationship. [3]

The offending occurred throughout their relationship, as early as May 2022 when the offender strangled the complainant. While detained in custody for this incident, the offender persistently communicated with the complainant via email in a ‘threatening manner’; specifically, the offender told the complainant ‘to retract her statement to police’ as she had lied due to ‘mental health’. [9]–[10] The complainant complied with these threats and the offender was released on bail. The offender continued to be violent towards the complainant, stalking, choking and verbally abusing her. [13]–[28]

Decision and Reasoning: Two years’ imprisonment. Judge Mossop took note of the offender’s guilty plea [60] and criminal history, with convictions for drink-driving, weapons and cannabis possession and previous conviction of choking the complainant. [58]–[59]

Further, Mossop J considered the offending to involve ‘serious family violence offending and other offending designed to control or manipulate the victim’. [63] Such violence was present throughout the offender’s childhood: ‘his father provided a role model involving violence against women and unlawful conduct’. [64]

DPP v Linsley [2023] ACTSC 255 (12 September 2023) – Australian Capital Territory Supreme Court

‘Sentencing’ – ‘Strangulation/choking’ – ‘Physical violence and harm’ – ‘Emotional and psychological abuse’ – ‘Rehabilitation’

Proceedings: Sentence.

Charge: Intentionally and unlawfully choking x 1.

Facts: The 20 year old male offender choked and rendered unconscious his female intimate partner. [5] The incident occurred at the complainant’s home, during an argument concerning who owned a gaming console. [7] The complainant regained consciousness, finding herself on the ground with the offender’s hands still pushing down on her neck. [7] The offender let go, and the complainant fled her home and informed a youth support worker of what occurred. [8]

Decision and Reasoning: Sixteen months’ imprisonment, Good Behaviour Order (16 months) and psychological treatment [36]. In sentencing the offender, Berman AJ regarded the protection of the community ‘best achieved’ by the imposition of a sentence focused on the offender’s rehabilitation:

If the sentence aids in bringing about a situation where the offender commits no further crimes, then the community benefits. This is one of those matters where it is appropriate to focus on rehabilitation, despite the serious nature of the offender’s misconduct[ 2]–[3]

Acting Justice Berman noted the offender’s young age (20 years old), anxiety, depression, history of suicidal ideation and ADHD-diagnosis, [15] balancing these considerations with the seriousness of the offence:

The objective gravity of the offender’s conduct is such that nothing less than a sentence of imprisonment would properly reflect what the offender did. At the risk of repetition, the complainant was in her own home, he choked her more than once and with enough force to cause her to lose consciousness and be unable to breathe. She had obvious injuries and, even in the absence of a victim impact statement, I am satisfied that she would have suffered psychologically as well. All this, simply because they were arguing over who owned the Xbox [31]

Groves (a pseudonym) v Everette (a pseudonym) [2023] ACTSC 27 (22 February 2023) – Australian Capital Territory Supreme Court

‘Appeal from decision of registrar not to list a matter on an urgent basis for the hearing of an application to temporarily extend a protection order’ – ‘Matter remains listed in magistrates court’ – ‘No decision to refuse to amend protection order’ – ‘Protection order’ – ‘Supreme court jurisdiction not enlivened’ – ‘Whether court has jurisdiction to hear appeal’

Proceedings: Appeal from Registrar of Magistrate Courts’ refusal to list application for a temporary extension of a final protection order for urgent hearing.

Facts: The female applicant sought an extension of a final family violence order (and temporary extension pending the hearing) due to expire the same day. She sought an urgent hearing of the application and that it be heard in the absence of the respondent.

The Registrar of the Magistrates Court refused to list the matter that day and the temporary application was listed a week later. The applicant was informed that the application in the proceeding must be served on the respondent. The applicant then appealed from the decision not to list the matter on an urgent basis and the requirement to serve documents on the respondent. The appeal was listed on an expedited basis.

Reasoning and decision: The matter was adjourned without making a decision on the application or appeal, as the judge found that the court did not have jurisdiction over the Registrar’s decision.

Loukas-Karlsson J considered the jurisdiction of the Supreme Court to deal with the matter under s 92 of the Family Violence Act, determining that the court would have power over a registrar’s refusal to make an amendment to the final order. However, Her Honour found the registrar’s decision in this case did not constitute a refusal and was effectively related to internal listing matters. The fact that the Registrar had listed the application for a week’s time was clear evidence that they had not refused the application.

The applicant had raised r 3803(c ) (Court Procedures Rules 2006 (ACT)), excluding family violence proceedings from appeals (r 6256), to argue that there was no avenue for an appeal in the Magistrates Court. However, Her Honour determined that the order could be varied at the Magistrate’s discretion as finding otherwise would leave the appellant with no avenue to challenge an order.

Her Honour considered that the appellant had taken reasonable steps to attempt to serve the application and affirmed that the Magistrate had the power to vary or amend the Registrar’s order requiring personal service.

In the addendum, Her Honour noted that the decision not to hear the application for a temporary extension on the day it was made was ‘remarkable’ and left the applicant with no protection.

DPP v McGary [2023] ACTSC 14 (2 February 2023) – Australian Capital Territory Supreme Court

‘Evidence’ – ‘Ground rules hearing’ – ‘Pre-trial application’ – ‘Sexual assault’ – ‘Special witness provisions’ – ‘Support person’ – ‘Victim fear’ – ‘Young people’

Proceedings: DPP pre-trial application for:

1.

An intermediary to be appointed for the complainant witness and a ground rules hearing be held

2.

The witness (complainant’s father) give evidence by audio-visual link

3.

The complainant’s father give evidence with a support person present

Facts: The respondent had been charged with two counts of sexual intercourse without consent and plead not guilty to each.

The respondent and complainant had been in a relationship for a few months. The charges related to an incident during the relationship where the respondent digitally penetrated the complainant’s anus and had anal intercourse with her despite her objections and resistance. She claimed that she continued in the relationship for a short time following the assaults as a matter of self-preservation, feeling it would be dangerous for her to end the relationship. She sought medical assistance and subsequently disclosed the sexual assault before ultimately making a police complaint.

The complainant’s father, whose evidence included the changes he noted in the complainant’s demeanour after the alleged incident, suffered from a significant cardiac condition.

Reasoning and decision:

•

The Director’s application under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for the appointment of a witness intermediary for [the complainant] is dismissed.

•

The witness, [redacted], give their evidence at the trial by audio-visual link from a place in the Australian Capital Territory (ACT) that is outside the courtroom, namely the Court’s remote witness room, pursuant to s 32(1)(a) of the Evidence (Miscellaneous Provisions) Act 1991(ACT)

•

The witness, [redacted], give their evidence at the trial with a support present, pursuant to s 49(1) of the Evidence (Miscellaneous Provisions) Act 1991(ACT)

a.

Baker J was satisfied that the complainant suffered anxiety, stress, PTSD and elements of depression. While there was no evidence of these conditions continuing, her Honour emphasised that the stress of giving evidence in court could lead to an exacerbation of the issues.

While the conditions were recognised as potentially affecting someone’s ability to communicate, HH found that there was no evidence from the police interview or medical records indicating that the complainant’s conditions had affected her ability to communicate. Her Honour highlighted that the purpose of a witness intermediary is not to reduce stress or be a support person but to facilitate communication and refused the application.

b.

Baker J found that it was in the interests of the administration of justice that the complainant’s father testify via audio-visual link on account of his cardiac condition, as giving evidence would exacerbate stress and impact his health. No unfair prejudice was found as the evidence was not likely to be contentious and the jury could be given appropriate directions.

c.

Her Honour was satisfied that it was in the interests of justice that a support person be provided as the father’s cardiac condition met the threshold of ‘disability’ and the impact of stress on his health would affect his ability to give evidence.

Alvin (a pseudonym) v Director of Public Prosecutions [2022] ACTSC 358 (20 December 2022) – Australian Capital Territory Supreme Court

‘Bail application’ – ‘Bail review’ – ‘Change in circumstances’ – ‘Domestic violence offences’ – ‘Drug rehabilitation’ – ‘Offending whilst on bail or facing charges for other offences’ – ‘People who are affected by drug and alcohol misuse’ – ‘Plea of guilty’ – ‘Review of decision of magistrates court’

Proceedings: Bail application.

Facts: The applicant had been refused bail by a Magistrate. He subsequently pleaded guilty to multiple charges, including domestic violence offences against his former partner. The applicant gave evidence that he had remained drug free while in custody, despite drugs being readily available. He was unable to enter a rehabilitation program unless he was released and had the powerful motivating factor that he has been advised by Child Youth and Protection Services he would not have care of his two children until he completed a course of residential rehabilitation.

Reasoning and decision: Bail granted.

The applicant’s recent plea of guilty to a number offences constituted a change in circumstances, removing the risk to the applicant’s partner that she would be prevailed upon by him to withdraw complaints.

Special and exceptional circumstances were also found in the new incentives for the applicant to undertake residential rehabilitation. McCallum CJ reasoned that the fixing of the sentencing date would motivate rehabilitation and, more significantly, Child Youth and Protection Services has notified him that he had to undergo rehabilitation before they would restore care of his two children. This included the infant child he had with his current partner who was victim to some of the domestic violence offences.

While there was evidence of a history of conflict with his current partner, this occurred while he was addicted to ice and the Court accepted that he appears to have remained drug free since being in custody. While some risk of him returning to drugs was identified, McCallum CJ found that it was warranted to allow the applicant the opportunity to rehabilitate.

DPP v Dunn [2022] ACTSC 355 (16 December 2022) – Australian Capital Territory Supreme Court

‘Breach of protection order’ – ‘Coercive control’ – ‘Past domestic and family violence’ – ‘Physical violence’ – ‘Protection order’ – ‘Rape’ – ‘Sentencing’ – ‘Separation’ – ‘Sexual abuse’ – ‘Strangulation’

Proceedings: Sentencing following a plea of guilty to:

1.

Common assault (s26 Crimes Act 1900 (ACT))

2.

Choking, strangling or suffocating (s28(2)(a))

3.

Sexual intercourse without consent (s54)

4.

Contravening a family violence order (s43(2))

Facts: The offender and victim were in a relationship. A protection order had been granted on application of the victim but was ‘consensually not complied with’ and the relationship between the offender and victim continued [4].

Common assault: After an argument, the defendant took the victim’s phone from her and she went into the bathroom to take a bath. Further argument ensued in the bathroom, during which the offender put his hands around the victim’s throat without squeezing, before pushing her back against the vanity unit.

Choke, suffocate or strangle: After a verbal argument, the victim tried to make the offender leave. He forced his way into the house and carried the victim over his shoulder into the bedroom while she screamed for help. The defendant shoved her and pushed her down onto the bed, telling her to be quiet and placing his hand over her mouth. The victim had difficulty breathing and sustained a minor lip injury.

Sexual intercourse without consent: The offender visited the victim’s residence after she had been drinking all day and was substantially intoxicated. The victim fell asleep and woke to find the defendant rubbing her vagina. She initially responded consensually to avoid a fight but then feigned being asleep in the hope that by letting it continue, the seriousness of the offence would allow her to leave the relationship. While she pretended to sleep, the defendant had sexual intercourse with her.

Contravene family violence order: Following the sexual assault, the victim blocked the offender’s contact and social media but he continued to contact her. One evening he visited her residence and the victim activated security sirens, making him leave. She later told him to return to take away food he had left outside the house. He attended the premises several times that evening and during one visit the victim’s sister told him to leave. He also spoke briefly with the victim.

Reasoning and decision: An aggregate sentence of 24 months’ imprisonment with a non-parole period of 14 months was imposed.

Mossop J considered the objective seriousness of the four offences and the offender’s subjective circumstances.

The common assault was found to be in the mid-range of seriousness, attributable to the act’s demonstration of dominance and control within an intimate relationship. The strangulation was determined to be in the low-mid range, given the apparently short duration and fact that the victim did not appear to have approached passing out or sustained significant injury. The unusual circumstances of the sexual intercourse without consent charge – being the victim’s deliberate behaviour to first indicate consent and then pretend to be asleep in the hope that the offender would commit an offence – in the context of a relationship which included sexual intercourse led to a finding of low range objective seriousness.

The offender was found to have some relevant difficulties in his background, having been brought up with an alcoholic and abusive father. This moderated the significance of general deterrence slightly subject to the countervailing necessity for specific deterrence given his significant history of past domestic and family violence. This included assaults of the victim and a past partner and her child, and multiple contraventions of protection orders. Mossop J highlighted that while the present offending was not objectively high on a spectrum of seriousness, his criminal history revealed a disturbing pattern of offending directed towards intimate partners, making denunciation, deterrence and recognition of harm significant sentencing purposes.

While the offender had expressed some empathy about the victim and indicated a willingness to engage in family violence intervention programs, the evidence of his ‘patchy’ prior engagement in similar programs weakened his prospects of rehabilitation [41].

TS v DT [2022] ACTSC 137 (10 June 2022) – Australian Capital Territory Supreme Court

‘Application to extend protection order’ – ‘Domestic and family violence’ – ‘History of extended litigation’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Protection order appeal’ – ‘Systems abuse’ – ‘Whether protection order no longer necessary’

Matter: Appeal of decision of a Magistrate to extend the term of a protection order granted to the respondent woman DT, which among other terms prevented the appellant man, TS from residing in the matrimonial home (which protection order was the subject of TS v DT [2020] ACTCA 43 (27 August 2020) and an earlier appeal) for a period of 12 months (it having been extended a number of times previously on an interim basis).

Facts: The protection order, among other terms, prevented TS from residing in the former family home (that protection order was the subject of TS v DT [2020] ACTCA 43 (27 August 2020) and an earlier appeal) for a period of 12 months (it had been extended a number of times previously on an interim basis). TS argued DT had the means to obtain alternative accommodation and TS could not afford alternative accommodation, hence should be allowed to reside in the former family home, envisioning either the parties living separately under one roof (as they had between 2008 and 2017) or DT vacating the former family home so that TS could reside there. TS claimed the protection order application was a tactic to force TS to accept an outcome in property proceedings contrary to his best interests. DT gave (largely unchallenged) evidence that TS continued to subject her to daily abuse, and that she remained fearful of TS, particularly if they were to reside under one roof. TS had not filed a response to DT’s then Federal Circuit Court application for property orders in relation to the former matrimonial home and orders had been made in that court that if he did not respond orders would be made unopposed in terms of DT’s application (granting DT sole ownership of the former matrimonial home or proceeds of sale thereof). DT submitted evidence of his psychiatric disorder.

Grounds: (Taken from TS’s application)

1.

The decision is unreasonable and not supported by evidence.

2.

cross jurisdictional issues. The magistrate was totally focused on issues with property settlement under the jurisdiction of the federal circuit court, than what was before him in his own magistrate court, kicking the can into another jurisdiction. It clearly shows that this is a property matter and not a safety issue. corruption of the Family Violence Act in order to get property.

3.

Evidence presented that was beneficial to me was totally ignored.

4.

my lack of accommodation and resulting hardships was not considered.

5.

my human rights and ownership rights have been abused by keeping me out of my house for the last 4 years and now with the order given becomes 5.

6.

sex discrimination by allowing my wife to stay in the house without moving out while i because i am male have to be out for 5 years because of my gender. If men and women are treated equally then she should have been in the house for 2.5 years and then move out because she is permanent APS employee earning higher income than me.

7.

disability discrimination as ample evidence was given about my depression while my wife does not have any disability.

8.

There was much more time spent in the court for property matters than on other matters.as such the court was corrupted by matters not in its jurisdiction and as such its decision is heavily flawed.

Issues:

Whether the only consideration in an application to extend a protection order is whether the protection order is no longer necessary to protect the applicant from family violence (s86 Family Violence Act 2016) or whether the requirement to consider “hardship” to a respondent in s14 of that Act is a relevant consideration on an extension application.

Decision and reasoning: Appeal dismissed, decision appealed from affirmed.

While the Magistrate erred in considering s 14 of the Family Violence Act 2016, TS failed to demonstrate that there was any change in the circumstances (including his attitude or the circumstances of the parties reducing or eliminating the risk posed by TS to DT) justifying the grant of the protection order which had been twice affirmed on appeal. Kennett J held that in fact TS’s conduct of the proceedings and focus on his “right” to reside in the home demonstrated a continued need for the protection order, as did his continued minimisation of the 2017 events which resulted in his conviction for common assault and the original grant of the protection order. The parties’ continued conflict in relation to property matters in Australia and in Sri Lanka also indicated a continued need for the protection order.

Morrison v Maher (No 2) [2022] ACTSC 63 (1 April 2022) – Australian Capital Territory Supreme Court

‘Character evidence’ – ‘Children’ – ‘Choking’ – ‘Coercive control’ – ‘Following, harassing monitoring’ – ‘Image abuse’ – ‘No prior convictions’ – ‘People with mental illness’ – ‘Property damage’ – ‘Protection order’ – ‘Re-sentence following appeal’ – ‘Sentencing’ – ‘Stalking’ – ‘Systems abuse’ – ‘Technology-facilitated abuse’ – ‘Totality’ – ‘Weapon’

Charges: Assault occasioning actual bodily harm x 5; Property damage; Possess offensive weapon with intent; choking (common assault x 2; Non-consensual sharing of explicit images; Trespass x 2; Property damage; Contravention of a Family Violence Order x 7; Aggravated stalking; Attempt to pervert the course of justice x 2; Stalking x 3; Attempt to contravene a Family Violence Order; Use of a carriage service to harass.

Proceedings: Re-sentence following appeal.

Facts: The male offender was 43 years old with no prior criminal history. The offending against his wife spanned nearly 10 years and included multiple offences on numerous occasions. The complaints came to light when the victim separated from the offender and sought a Family Violence Protection Order. The offender subsequently repeatedly breached the Family Violence Order, including whilst in custody.

The offender had a traumatic childhood and was diagnosed with Bipolar Disorder, Attachment Disorder and Complex Post-Traumatic Stress Disorder. He and his former wife married in 2000 and had two children. He successfully appealed his original sentence of a total period of imprisonment of nine years and eight months, with a non-parole period of five years and eight months in Morrison v Maher [2021] ACTSC 312 (8 December 2021) on the basis of conceded errors of reasoning in the original sentencing decision (Maher v Morrison [2020] ACTMC 26 (17 December 2020)).

Decision and reasoning:

1.

Appeal allowed.

2.

Charge CC2019/6240 is amended by deleting “between 24 March 2019 and 26 April 2019” and inserting “on or about 20 May 2019”.

3.

An aggregate sentence of imprisonment is nine years, four months and 26 days imposed, with a non-parole period to equivalent of 60 per cent of the total effective sentence. As the appellant did not wish the matter to be remitted to the Magistrates’ Court for resentence Mossop J was unable to consider new evidence the appellant sought to adduce, noting that the appellant’s statement and evidence before the first instance court sought to shift a degree of responsibility for his offending to the victim and the controlling nature of the offending meant such behaviours indicated likely entrenched attitudes, making it difficult to assess his prospects of rehabilitation [117].

Mossop J observed at [105]:

The offending involves serious domestic violence offending. It is offending directed to the maintenance of control over the victim. It occurred in the context of a relationship where physical and emotional tools were used to maintain that control. It occurred in the victim’s home. Some of the offences directly involved the children. Others indirectly involved the children through the creation of a climate of fear. The assessment of the objective seriousness of the offending must be made with due regard to that context.

R v Teel (a pseudonym) [2021] ACTSC 183 (17 August 2021) – Australian Capital Territory Supreme Court

‘Intimate images’ – ‘Intimate video footage’ – ‘Sentencing’ – ‘Stepchild’ – ‘Technology facilitate abuse’

Charges: Sexual intercourse without consent x 4; committing an act of indecency without consent x 8; committing an act of indecency in presence of a young person x 3; non-consensual distribution of intimate images x 7.

Proceedings: Sentence.

Facts: Between1 January 2011 and 22 April 2012 the male accused committed the first series of offences against his then partner, KD. Between 12 December 2017 and 28 September 2018 the accused committed the second series of offences against his then wife, NM. Following her separation from the accused NM discovered evidence the accused had taken photographs of her naked while she was asleep, which she later reported to police. Coincidentally KD’s mother discovered an SD card containing images and videos of the accused committing sexual offences against KD while she was unconscious. The execution of a search warrant on the accused’s premises revealed further images and videos of sexual offences committed against NM, including some committed in the presence of NM and the accused’s son. A number of the images and videos were uploaded to pornographic websites without the consent of either victim, and a number were distributed to another person via email.

The accused was a victim of childhood sexual abuse and multiple psychological report suggested he had symptoms consistent with PTSD, major depressive disorder, ADHD and alcohol misuse disorder, although it was apparent he did not disclose the full extent of his offending to all of the report-writers. He entered pleas of guilty at an early stage.

Decision and Reasoning: Aggregate sentence of 9 years and 10 months’ imprisonment, with a non-parole period of 5 years and 10 months’ imprisonment.

Only sentences of full-time imprisonment were appropriate and Burns J noted at [115]:

It is also important that the sentences I impose mark the community’s abhorrence of sexual offending, particularly against intimate partners. All women have the right to feel safe in their domestic relationships. Like all members of the community, they have the right to have their physical integrity respected.

R v Smith [2021] ACTSC 114 (3 June 2021) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Breach of protection order’ – ‘Coercive control’ – ‘Extensive criminal history’ – ‘History of domestic and family violence’ – ‘People affected by trauma’ – ‘Plea of guilty during trial’ – ‘Sentence’ – ‘Separation’ – ‘Sexual intercourse without consent’ – ‘Strangulation’ – ‘Suicide threat’

Charge: Sexual intercourse without consent; contravention of family violence order (FVO); the pleas in full satisfaction of the indictment on the basis that the facts relating to a charge of choking, suffocating or strangling, and three transfer charges of common assault, would be taken into account in relation to the contravention of the FVO.

Facts: The offences were committed by the male offender against his female partner over 2 days in March 2020. Their relationship involved domestic violence, including controlling and abusive behaviour by the offender towards the victim. An incident of assault by the offender against the victim in February 2019 led to criminal charges and an FVO was made by the ACT Magistrates Court on 7 May 2019 for 12 months. On the offender’s release from custody after serving a sentence of imprisonment for the assault the parties resumed cohabitation. The victim sought to leave on 24 March, booking herself into a hotel. In a series of text messages the offender threatened suicide and urged the victim to return, which she did. The offender repeatedly applied force to the victim’s throat over a period of 10 minutes causing her to become short of breath, then removed her underpants and digitally penetrated her vagina without her consent and wiped his hands on her face. The offender forced the victim to drive him to McDonalds, and when they returned questioned her, and not accepting her answers, slapped her face. The victim was too frightened to leave. When the offender woke in the morning he elbowed her as he got out of bed, then they went to the hotel to retrieve the victim’s belongings. On the way out the victim was able to seek help from the receptionist who hid her from the offender, and police were called. The victim’s victim impact statement described a range of trauma-related impacts of the offending.

Sentence: 40 months and 12 days (three years, four months and 12 days), with a non-parole period of 28 months, approximately 70 per cent of the head sentence.

Mossop J observed:

[44] The circumstances of this case involve a disturbing example of domestic violence. The offender has a criminal history, including previous offences directed to the current victim, that means he is not entitled to leniency. I do not place any significant weight upon the remorse communicated to the author of the pre-sentence report. I accept that statements unsupported by evidence that is able to be tested should be treated with great caution: see Barbaro v R [2012] VSCA 288; 226 A Crim R 354 at [38] and Imbornone v R [2017] NSWCCA 144 at [57].

R v Heijm [2021] ACTSC 17 (5 February 2021) – Australian Capital Territory Supreme Court

‘Grievous bodily harm’ – ‘Misuse of drugs and alcohol’ – ‘Past domestic and family violence’ – ‘Pregnancy of victim’ – ‘Sentencing’

Charges: Grievous bodily harm x 1.

Proceedings: Sentencing.

Facts: The male offender applied force to the face of his pregnant female partner during an argument. The following day the victim’s face was observed to be swollen and red, she had a cut lip and blood coming from her mouth and nose. She attended the hospital and underwent a CT scan which revealed a fractured right eye socket and a blood clot around her right eye. The Forensic Medical Officer opined that her injuries were the result of blunt force trauma. The victim was reluctant to report the incident to police.

Issues: Sentence to be imposed.

Decision and reasoning: An aggregate sentence of 21 months, suspended after 13 months, and a good behaviour order were imposed. This reflected the guilty plea and earlier breaches of good behaviour orders/suspended sentence.

The offending was at the low end of the mid-range of objective seriousness for grievous bodily harm. It was an example of domestic violence, occurred at the victim’s home and while she was heavily pregnant. The offender was on conditional liberty at the time ([11]). Other relevant circumstances included that the offender had a disrupted childhood and an early introduction to illicit drugs. However, notwithstanding the likely lifelong effects of this, the offender was not a young man and there was little evidence of strong motivation to address his drug and alcohol problems. He had a long criminal history, including previous domestic violence offending directed against the same victim. There was a high risk of re-offending ([30]-[34]).

The victim faced difficulty in reporting the offending:

“She disclosed to the hospital staff that she had been injured at home. She also spoke to police but did not want to disclose who had injured her or how it had happened. That evening the offender attended the hospital to see her but was refused entry. The victim told police that she was scared and wanted to speak to the offender in the presence of the police. She did so, before the offender left and she returned inside the hospital.

“DVCS members later contacted police on the victim’s behalf to report that she had been assaulted by the offender. The victim decided that she was prepared to make a statement to police and she participated in a family violence evidence-in-chief interview on 8 February 2020.

R v DQ [2020] ACTSC 352 (18 December 2020) – Australian Capital Territory Supreme Court

‘Attempted murder’ – ‘Family law proceedings’ – ‘Female perpetrator’ – ‘Initial charge of damaging property by fire with intent to endanger life’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Separation’

Charges: Attempted murder x 2.

Proceedings: Sentencing.

Facts: The case concerned the sentencing for the offender’s attempted murder-suicide of herself and her 2 children by setting the house on fire.

Issues: Sentence to be imposed.

Decision and reasoning: A total head sentence of 9 years and 5 months was imposed, with a non-parole period of 6 years and 4 months. This reflected the guilty plea and a degree of cumulation for 2 separate victims with a single set of acts.

The offending was above the mid-range of objective seriousness for attempted murder. It involved the offender’s children in “the most extreme breach of her parental obligations,” and exploitation of her parental authority to achieve the children’s compliance. There was a degree of premeditation. It was a persistent and serious attempt that, but for a neighbour and the fire brigade’s actions, would have been successful ([23]-[28]).

Further, the offending occurred in the context of a long and acrimonious breakdown of the offender’s relationship with her ex-husband and associated Family Court proceedings relating to division of property and custody of the children, which affected her mental health. The offender was diagnosed with a major depressive disorder which was given some weight as it was long-standing and had the potential to distort her thinking to an extent. It was not accepted that the evidence established a diagnosis of post-traumatic stress disorder or chronic adjustment disorder. She had no criminal history, and was at low risk of re-offending. However, the sentence also needed to reflect accountability, denunciation, and just punishment ([29]-[56]).

R v Tonna (No 1) [2020] ACTSC 360 (2 October 2020) – Australian Capital Territory Supreme Court

‘Aggravated burglary’ – ‘Assault occasioning actual bodily harm’ – ‘Breach of protection order’ – ‘Damaging property’ – ‘Driving whilst disqualified, repeat offender’ – ‘Plea of guilty’ – ‘Separation’ – ‘Weapons and threats to kill’

Charges: Aggravated burglary; Assault occasioning actual bodily harm; Possessing a drug of dependence; Driving whilst disqualified from obtaining or holding a driver licence as a repeat offender; Contravening a Family Violence Order committed on three occasions x 2.

Proceedings: Sentencing.

Facts: Mr Tonna was in an intimate relationship with the female victim of the assault for about four years, before it ended in mid-2019. Mr Tonna breached Family Violence Order (FVO) made for the protection of the victim by attending her residence twice while she was sleeping, accusing her of having a man in the room and damaging property. Mr Tonna subsequently hit the victim with his car, causing injuries. Separately, Mr Tonna also broke into a block of units and was in possession of methylamphetamine. He pleaded guilty.

Decision and reasoning: A total sentence of 2 years and 4 months imprisonment was imposed.

The breaches of the Family Violence Order were serious. Refshauge J said at [26]-[27]:

“The reported comment made by Mr Tonna when attacking the victim’s window on 23 July 2019, namely accusing her of having a man in her room, apart from being none of his business, does show he had not accepted the end of the relationship. Difficult though that may be, it is something that he has to confront and acknowledge.

“It should be noted that the actions on that morning also constituted at least three separate approaches to the victim though relatively close together in time, at 6 am, 7:10 am and 7:30 am. Each could have constituted a separate offence. While not formally described in these proceedings as a rolled-up plea, it is appropriate to treat them in this way. I have described that approach in R v John[2017] ACTSC 144 at [106]- [107] and will follow what I there said.”

The assault, a violence offence, was also serious. Refshauge J said at [28]-[29]:

“It was, in the circumstances, in the nature of a family violence offence. It is the duty of courts to denounce such offences. It also shows an exercise by Mr Tonna of power which is, in reality, an abuse of power, an abuse that is often exacerbated by the vulnerability of women. The assault is an example of escalation and the use of the car, which can properly be described in this situation as a weapon, a potentially lethal weapon. Thus, such offending can escalate and lead, as family violence offences often do, to the death of the victim.

“Further, a victim who, as in this case, is on the ground is in a vulnerable situation (R v Hodge[2015] ACTSC 214 at [15]). The victim must have been terrified as her Victim Impact Statement shows. These are serious offences as explained in decisions such as:

Roberts v Smorhun at [120]-[127] and Goundar v Goddard [2010] ACTSC 56 at [32]- [36]. In relation to the assaults in the context of family violence, see R v Stanley [2015] ACTSC 322 at [65]-[66].”

Kibblewhite v Buik [2020] ACTSC 132 (11 June 2020) – Australian Capital Territory Supreme Court

‘Autism spectrum disorder’ – ‘Breach of protection order’ – ‘People with disability and impairment’ – ‘People with mental illness’ – ‘Self-represented litigants’ – ‘Specific error’ – ‘Step-children’

Charges: Contravening a family violence order x 1

Case type: Appeal against conviction and sentence

Facts: The appellant man was convicted of contravening a family violence order protecting his female former partner (the victim) and her two children. A conviction was recorded and he was ordered to enter into a good behaviour bond for 12 months.

The family violence order prevented the appellant from being at the premises where the protected persons lived, being within 100 metres of them or engaging in behaviour that constituted family violence. He had attended her home at her invitation after mediation, they had rekindled the relationship and the police were called when the victim sent a text message to a friend asking her to call police. The victim said she sent the text message because the appellant "had begun playing psychological mind games on her and abusing her in relation to a number of morning after pills he had located" ([12]). The appellant claimed that because the victim initiated the contact, he thought that he did not breach the family violence order. The appellant was self-represented at the sentencing hearing. Further evidence of a forensic psychiatrist’s report was also admitted on appeal.

Grounds:

1.

The (self-represented) appellant was denied procedural fairness in being denied an adjournment by the learned Magistrate;

2.

Her Honour failed to consider whether a non-conviction order was appropriate;

3.

Her Honour placed undue weight on the need for general and specific deterrence and denunciation; and

4.

the sentence was manifestly excessive ([2]).

Held: The appeal was allowed, the Magistrate’s orders set aside and the appellant was ordered to enter into a good behaviour order for 9 months without conviction ([75]).

The appellant had faced prior charges of assaulting and resisting an officer and contravening a domestic violence order which were dismissed under the "Mental Health Act" ([18]). He suffered from autistic spectrum disorder which affected his thinking, increased his anxiety and interfered with his ability to maintain relationships. The offending was at the low end of the spectrum for this kind of offence. Extenuating circumstances included (1) the victim’s invitation to recommence contact; (2) the re-establishment of a physical relationship between the parties over a period of weeks before the conduct in question; (3) the victim’s consent to the appellant being at her home; and (4) the absence of any request for him to leave the house or cease contact prior to the police being called ([68]). Mossop J noted that the power in s17 Crimes (Sentencing) Act to not record a conviction will not often be deployed in family violence cases due to the need for general and specific deterrence, but the extenuating circumstances of the present case and the appellant’s personal matters meant a conviction should not have been recorded ([70]). The Magistrate made a specific error in failing to give consideration to the application of s 17 ([51]).

R v Palmer [2020] ACTSC 13 (3 February 2020) – Australian Capital Territory Supreme Court

‘Choking’ – ‘Guilty plea’ – ‘History of abuse’ – ‘Non-fatal strangulation’ – ‘Physical violence and harm’ – ‘Victim history of trauma and abuse’

Charges: Burglary x1; Assault occasioning bodily harm x1; Choking a person and rendering them insensible x1;

Proceedings: Sentencing

Issue: Appropriate sentence

Facts: The male offender was convicted on his pleas of guilty. The female victim was his former partner. He entered her house while she was asleep and remained in the property despite the victim asking him to leave. The offender assaulted the victim after a verbal argument and choked her so as to render the victim unconscious. The offender had a significant criminal history and had been dealt with in the Magistrate’s Court for other offending against the same victim. He attributed his violent and abusive behaviour towards the victim to his struggles to cope with the victim’s psychosocial difficulties due to her long history of trauma and abuse [13].

Held: Justice Elkaim sentenced the accused to 10 months imprisonment for the burglary, 5 months’ imprisonment for the assault, and 20 months imprisonment for the choking offence. The sentences were to be served concurrently.

Elkaim J found the offence of burglary to have "just below medium objective seriousness" [6]. His Honour noted that "Although s 10 of the Crimes (Sentencing) Act 2005 (ACT) says full-time imprisonment should be a last resort, I can see no alternative here. Domestic violence is abhorrent. Choking a person is a serious crime. The offender should not have been anywhere near his victim. He was already on bail for family violence offences against the same victim. When she told him to leave he should have done so. He should not have assaulted her and he certainly should not have choked her." [15]. The seriousness of the offence and the domestic violence were aggravating factors and a 15% discount for the guilty plea was allowed.

R v Laipato [2019] ACTSC 386 (20 December 2019) – Australian Capital Territory Supreme Court

‘Burglary’ – ‘Children’ – ‘Controlling behaviour’ – ‘Extensive criminal history’ – ‘Lack of remorse’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Persons with mental illness’ – ‘Poor prospects of rehabilitation’ – ‘Sentence’ – ‘Separation’ – ‘Threat to kill’ – ‘Unlawful confinement’

Charges: Burglary x 1; Unlawful confinement x 1; Unlawfully choking, suffocating or strangling a person x 1

Case type: Sentence

Facts: The male offender was found guilty by a jury of burglary, unlawful confinement and unlawfully choking, suffocating or strangling a person. He was acquitted of 6 other charges. The offender and female victim (his former partner) were engaged in SMS text conversation about their relationship in the hours leading to the offending conduct. The victim made it clear that the relationship was over, and the offender was angry as a result of this conversation ([4]). The offender attended the victim’s home after midnight, dragged her from her bed into the neighbouring room and choked her ([5]). The offence was accompanied by a death threat, calculated to increase the victim’s fear. The offender and victim had been in an intermittent relationship since 2012, and have a 4-year old son. In her Victim Impact Statement, the victim explained the impact of the domestic violence. She suffers severe anxiety, PTSD and depression, and sometimes "feels very angry that her former partner hurt her so much, both physically and emotionally". At the time of the offending conduct, she felt helpless, fearful and thought that she might die ([6]-[7]).

Held: The offender was sentenced to 5 years’ and 5 months’ imprisonment, with a non-parole period of 3 years and 6 months. The offender has a very lengthy criminal history, including multiple convictions for burglary, assault occasioning actual bodily harm, aggravated burglary, recklessly inflicting grievous bodily harm, assault and drug and traffic offences ([8]). A significant aggravating feature of the offences was that they occurred in a family violence context ([9]). The unlawful confinement lasted for a minimum of 1.5 hours, and this was "impulsive and without any significant planning". The purpose of the confinement was to manifest his anger towards the victim for ending the relationship and to exercise control over her. During the course of the confinement, the offender inflicted extreme violence on, and instilled fear in, the victim, who now suffers continuing psychological consequences ([10]). The choking conduct was deliberate and sustained, and the victim’s ability to breathe was sometimes completely impaired ([11]).

Although the offender’s childhood was marred by instability, he now enjoys a supportive family relationship ([13]). In a pre-sentence report, the offender indicated that he had no intention to reunite with the victim and claimed to have been subjected to violence in the relationship ([14]). He also has a long history of alcohol and drug use, as well as Major Depressive Disorder, which was described as in full remission in 2017. He was also assaulted while in custody that same year. He plans to reunite with his son, with whom he is believed to have a "healthy, loving relationship" ([17]-[20]).

The offender has also shown no remorse for his current and previous offending. This gave rise to a concern regarding his ability and commitment to avoid criminal offending and to achieve a stable, co-parenting relationship with the victim. During his present period in custody, he did not take any steps to address his drug and alcohol abuse issues or his attitude to domestic violence. Therefore, his prospects of rehabilitation could not be described as good ([21]-[23]).

R v MZ [2019] ACTSC 341 (6 December 2019) – Australian Capital Territory Supreme Court

‘Exposing children’ – ‘Monitoring’ – ‘People with mental illness’ – ‘Sexual violence’

Charges: Sexual intercourse without consent x1; Administration of certain declared substances x1.

Proceedings: Sentencing

Issue: Appropriate sentence

Facts: The complainant woman and male offender were married and lived together. The offender engaged in sexual intercourse with the complainant while she was asleep. An audio recording taken during the time reveals that the complainant did not consent to the offender’s conduct and that when she woke up she immediately asked the offender to stop. The offender then left the bedroom, only to return ten minutes later and force a bitter substance into the complainant’s mouth. The substances administered were temazepam and zopiclone.

Judgment: In determining the objective seriousness of the offence, Mossop J noted that "while the offending did occur in a domestic context, the evidence did not establish that it was part of any pattern of oppression of the victim through violence or sexual violence. Nor does it establish that there was any marked inequality of power between husband and wife." [9]. The judge found the offending to also lack other aggravating factors as the offender did not use a weapon or violence, threaten the victim, or have a significant degree of premeditation and the victim was not injured, humiliated or degraded in a way more explicit than the conduct itself [7]. Justice Mossop also did not consider the presence of the sleeping child to be an aggravating factor as the child had no awareness of what was going on. The Court accepted that the offender’s depression and general anxiety disorder meant that "he is likely to find a sentence of full-time imprisonment more onerous than a person without those conditions" [40]. The sexual intercourse offending was held to be in the lower range of objective seriousness for this offence [10]. It was not possible to find on the evidence that the administration of a declared substance offence "was an intention to cause harm to the victim other than through interference with her recollection of events".

The offender was sentenced to 22 months’ imprisonment for the first charge, with the sentence to be suspended after four months upon the offender entering into an undertaking to comply with good behaviour obligations for 19 months. For the charge of administering a declared substance, the offender was convicted and sentenced to a suspended sentence of two months’ imprisonment.

R v Teer [2019] ACTSC 334 (29 November 2019) – Australian Capital Territory Supreme Court

‘Good behaviour bond’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Strangulation’

Charges: Act of indecency x 1; Assault occasioning bodily harm x 1

Case type: Sentencing

Facts: The offender attempted to strangle the victim when she refused to engage in sexual activity, pushing the victim face-down against a pillow. After releasing the victim and letting her partially roll-over, the offender grabbed the victim’s throat and restricted her breathing for 5 to 10 seconds while threatening if she continued making noise. There was medical evidence of petechial bruising.

Issue: Sentence to be imposed.

Decision and reasoning: Loukas-Karlsson J discounted the penalty for each charge by 5% as the offender entered guilty pleas one week before a re-trial for the offences. His Honour only reduced the sentences by 5% rather than the usual 10% because the offender demonstrated a lack of remorse and tried to justify his actions. It was also noted at [60] that ‘it must be recognised by the Court that the offences committed against the victim had a serious and significant impact upon her. Both the short and the long-term consequences of being the victim of these offences must be acknowledged’.

‘In respect to the offence of an act of indecency…the offender [was] sentenced to a good behaviour order with the core conditions requiring him to sign an undertaking to comply with good behaviour obligations’ for a period of 20 months reduced to 19 months on account of the guilty plea. ‘In respect of the offence of assault occasioning actual bodily harm…the offender [was] sentenced to a good behaviour bond’ with the same core conditions for a period of 32 months reduced to 30 months on account of the 5% reduction for entering guilty pleas. [64]

NS v Hotchkis [2019] ACTSC 309 (8 November 2019) – Australian Capital Territory Supreme Court

‘Audio recording’ – ‘Domestic violence offences’ – ‘Evidence issues’ – ‘Protection order’

Charges: 1 x common assault; 1 x contravention of a Family Violence Order

Case type: Appeal against convictions

Facts: The appellant allegedly kicked the complainant’s leg during an argument (assault charge). At that time, the appellant and complainant were married and living together. The complainant had obtained a Family Violence Order against the appellant, which the appellant allegedly breached during the argument by causing or threatening to cause injury to the complainant or by harassing, threatening or intimidating her ([3]). A central issue was whether an audio recording made by the complainant was admissible.

Issue: The appellant appealed the findings of guilt on the basis that 1) the learned Magistrate erred in ruling that the audio recording made by the complainant was admissible pursuant to s 5(2)(d)-(e) of the Listening Devices Act 1992 (ACT) (LDA), and 2) the convictions were unreasonable and could not be supported by the available evidence.

Held: The prosecution sought to adduce a recording of the alleged events said to have been made by the complainant on her mobile. The appellant objected on the ground that the recording was made in contravention of the provisions of the LDA ([10]). Burns J did not challenge the Magistrate’s finding that a ‘private conversation’, for the purposes of the LDA, existed ([13]), and turned his mind to whether any of the exception provisions applied such that the complainant’s use of the listening device was not proscribed by the LDA ([15]). In his Honour’s opinion, the Magistrate was correct in finding that the exception in s 4(3)(b)(i) was satisfied. The complainant feared that the appellant might seriously injure or kill her, and gave evidence that she had regularly been abused by him. Therefore, there were reasonable grounds for her to consider that the recording was necessary to protect her lawful interests ([21]). His Honour also found that the exceptions in s 5(2)(d) and (e) were established ([22]).

His Honour concluded that even if the recording had been obtained in contravention of the LDA, the proper exercise of the discretion found in s 138 of the Evidence Act would have resulted in its admission ([31]). The evidence was important, both in its own right and as support for the complainant’s evidence, and its probative value was significant. The gravity of the contravention was low, and there was no suggestion to the complainant that she knew that she was violating the LDA. Further, the offences charged against the appellant were serious domestic violence offences ([26]-[27]). At [30], Burns J noted that ‘[a] criminal has no right to keep their offending private, or to claim that the gathering of evidence of their crime is a breach of their privacy’.

As to the second ground of appeal, his Honour agreed with the Magistrate that the evidence established a breach of the Family Violence Order, as the conduct was harassing and intimidating. The Magistrate was entitled to consider the aggression by the appellant towards the complainant at the time she said she was kicked. As there was sufficient evidence on which the Magistrate was entitled to convict the appellant, the appeal was dismissed ([40]-[41]).

Davis v Stephens [2019] ACTSC 271 (1 October 2019) – Australian Capital Territory Supreme Court

‘Appeal against conviction and sentence’ – ‘Female perpetrator’ – ‘Jealous behaviours’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Victims who are (alleged) perpetrators’

Offences: Common assault x 2; Assault occasioning actual bodily harm x 1

Proceedings: Appeal against conviction and sentence

Facts: The female appellant and male victim had been in a relationship for about two years (which was ‘volatile’ and ’they tended to be jealous’ of each other and had numerous ‘fights’) but they had broken up the day before the offending and the appellant had moved out. Early in the morning of the offending, the appellant entered the front door and started punching the victim in the head. The appellant saw another woman on the couch and started moving towards her, so the victim grabbed the appellant’s arm. The appellant bit the victim’s arm hard and grabbed his testicles. She then chased after the other woman before taking the victim’s phone, leaving the house and knocking over the victim’s motorcycle. The appellant was convicted and sentenced to a 12-month Good Behaviour Order. She appealed her conviction on the following grounds:

1.

The Magistrate erred by not properly directing herself to the law of self-defence in terms of both personal self-defence and self-defence of property, and/or

2.

The Magistrate erred by returning inconsistent verdicts by dismissing charges of Damage to property but returning verdicts of guilty on the other charges in circumstances where the evidence was substantially the same between the counts. That error was compounded because the verdict of not guilty should have caused reasonable doubt in relation to the other counts.

Judgment: The judge dismissed the appeal. His Honour found that the Magistrate accepted the evidence of the victim (the victim grabbed the appellant’s arm to stop the appellant coming further into the house, not to prevent her from retreating out of the house) and, as such, the basis for self-defence fell away [76]. Regarding Ground 2, his Honour held that "the bare fact of there being a guilty verdict in relation to some charges arising from a course of events and an acquittal in relation to one or more charges arising from the same course of events is not enough to establish that the guilty verdicts must be unreasonable. It is necessary for the appellant to demonstrate that the different outcomes cannot stand together as a matter of logic and common sense" [79]. His Honour found that the Magistrate was correct in distinguishing the verdicts in relation to events that occurred inside the house from those which occurred outside the house [82].

His Honour further held that the sentence imposed fell within the range of appropriate outcomes and was not excessive, let alone "manifestly excessive" [84].

Kumar v Love [2019] ACTSC 238 (30 August 2019) – Australian Capital Territory Supreme Court

‘Children’ – ‘Evidence issues’ – ‘Family violence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’

Charges: Common assault

Case type: Appeal against convicions

Facts: The appellant was found guilty of two charges of common assault arising out of an altercation with the victim (his wife). The acts of assault included slapping the victim across the face, pushing her forehead backwards striking the wall behind, grabbing her hair, twisting her head and hitting her face on the wall, and striking his daughter’s shoulder. The charges fell into the category of family violence. The appellant pleaded not guilty to each charge and did not testify. The defence argued that the victim fabricated the assaults with the intention of terminating the marriage ([17]).

Issue: The appellant appealed on the ground that the Magistrate’s findings of guilt were unsafe and unsatisfactory on the basis that:

•

It was not open to the Magistrate to wholly reject the appellant’s evidence; and

•

There were a number of significant parts of the evidence relied upon by the prosecution which should have given rise to a reasonable doubt as to the appellant’s guilt.

Held: Crowe AJ dismissed the appeal. His Honour rejected the first ground of appeal and saw no basis upon which to doubt the Magistrate’s rejection of the appellant’s version of events. His version of events changed as the interview progressed. For example, after he said that he had not touched the victim at all, he then said that he had tickled her ([35]). In relation to the second ground, the Magistrate was entitled to accept the complainant as a witness of truth, and reject the proposition that the victim fabricated the entire story in order to terminate her unhappy marriage with the appellant. The discrepancy between the victim’s evidence and that of her female friend did not provide a sufficient basis to reasonably doubt the victim’s evidence as to the appellant’s violence towards her. The discrepancy was explained by reference to the extent of the victim’s distress, and the physical and language communication difficulties at that time ([40]-[47]).Crowe AJ dismissed the appeal. His Honour rejected the first ground of appeal and saw no basis upon which to doubt the Magistrate’s rejection of the appellant’s version of events. His version of events changed as the interview progressed. For example, after he said that he had not touched the victim at all, he then said that he had tickled her ([35]). In relation to the second ground, the Magistrate was entitled to accept the complainant as a witness of truth, and reject the proposition that the victim fabricated the entire story in order to terminate her unhappy marriage with the appellant. The discrepancy between the victim’s evidence and that of her female friend did not provide a sufficient basis to reasonably doubt the victim’s evidence as to the appellant’s violence towards her. The discrepancy was explained by reference to the extent of the victim’s distress, and the physical and language communication difficulties at that time ([40]-[47]).

R v EP (No 3) [2019] ACTSC 242 (28 August 2019) – Australian Capital Territory Supreme Court

‘People with mental illness’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Social abuse’

Charges: 1 x threaten to capture or distribute intimate images; 1 x use of a carriage service to menace, harass or cause offence; 2 x indecency; 1 x sexual assault; 1 x common assault; 1 x stalking

Case type: Sentencing

Facts: The offender and victim were in a de facto relationship for approximately 6 years and have a daughter. Despite the breakdown of their relationship, they remained on amicable terms ([7]). The offender was charged with a combination of Federal and Territory offences. The offender pleaded guilty to threatening to distribute an intimate image (Count 5) and using a carriage service to menace, harass or cause offence (Count 6). He was found guilty of 2 charges of committing an act of indecency (Counts 2 and 4) and a charge of sexual assault in the third degree (Count 3). A charge of common assault and stalking were transferred to the Court, which required consideration of the provisions on back-up and related offences in the Supreme Court Act 1933 (ACT) ([13]).

Issue: The issue for the Court was to determine the appropriate sentence for the offences.

Held: The Court sentenced the offender to 3 years’ imprisonment with a non-parole period of 18 months for the Territory offences, and declined to make a recognizance release order with respect to the Federal offence as the offender would still be serving a period of imprisonment for the Territory offences after the expiration of that offence. The charge of common assault was dismissed.

The offender’s subjective circumstances were observed at [32]-[40]. He had 2 daughters from a previous marriage and worked as a self-employed technician prior to custody. However, he had not been working for the past 6 months due to mental health issues, and suffered financial distress as a result ([35]). The offender reported infrequent social use of cannabis and his self-reported alcohol use was deemed ‘risky’ ([36]). The offender showed some insight into the impact of his offending, but attempted to minimise and justify some of his actions ([39]). The offender was also being treated for symptoms of depression ([40]).

The Court did not attribute significant weight to the offender’s expression of remorse ([41]-[44]). He had no relevant criminal history and was of prior good character ([45]-[46]). He pleaded guilty to 2 charges before the trial commenced, and the 2 further transfer charges in the course of the sentencing hearing. Accordingly, the Court allowed a discount of approximately 10% in each case ([47]-[54]). The Court also considered the time spent in custody ([55]-[56]), and analysed relevant cases and statistics ([57]-[69]). At [89], the Court found that all the offences committed against the victim significantly impacted her. The Court also took into account the principles of totality, concurrency and accumulation ([70]-[78]), and relevant statutory considerations ([79]-[88]). Significantly, it was noted at [88] that the ‘Courts have made it clear that women must not be treated by men as property’.

Barron v Laverty [2019] ACTSC 198 (31 July 2019) – Australian Capital Territory Supreme Court

‘History of abuse’ – ‘People affected by substance misuse’ – ‘Protection order’ – ‘Sentence’

Charges: 5 x contravention of a Family Violence Order; 1 x use carriage service to harass/menace

Case type: Appeal against sentence

Facts: In early 2019, the appellant was sentenced to a total of 2 years’ and 8 months’ imprisonment, with a non-parole period of 18 months, following guilty pleas to 6 charges, namely, contravening family violence orders obtained by his parents and his ex-partner against him and using carriage service to harass/menace.

Issue: The appellant appealed against the sentence on various grounds, including that the total sentence was manifestly excessive and that her Honour erred in her approach to s 110(2)(a) Crimes (Sentence Administration) Act 2005 (ACT) by ordering that the suspended sentences imposed for the breach offences be served cumulatively.

Held: Murrell CJ noted that the appellant had a very significant domestic violence history ([52]). Her Honour considered the appellant’s prior convictions of matters of dishonesty, and contravening protection orders ([25]), for which he had been sentenced to 5 months’ imprisonment suspended for 12 months. Offences 1 and 2 were committed while he was subject to these suspended sentences, and Offence 3 was committed 3 days after his release from prison (for contravening a protection order) ([26]). Further, the appellant’s illicit substance abuse rendered him unsuitable for an Intensive Corrections Order (ICO) ([29]).

Murrell CJ held that the appellant’s continued contraventions of court orders required a significant total sentence to be imposed. Her Honour was not satisfied that, when considering the appropriateness of the total sentencing, the sentencing judge erred in exercising her sentencing discretion ([41]).

The appellant argued that, as the original suspended sentences were concurrent, the sentencing judge fell into specific error when she made them cumulative ([56]). After analysing the interpretation of s 110(2) in some detail, her Honour concluded that the sentencing judge fell into error ([95]). The appeal was therefore allowed and the appellant was re-sentenced to a total sentence of 2 years’ imprisonment with a non-parole period of 13 months ([100]).

R v NX (No 2) [2019] ACTSC 131 (24 May 2019) – Australian Capital Territory Supreme Court

‘Coercive control’ – ‘Damaging property’ – ‘Extensive criminal history’ – ‘History of domestic violence offences’ – ‘Offender on conditional liberty at the time of offending’ – ‘Presence of child’ – ‘Sentencing’ – ‘Social abuse and isolation’

Charges: Sexual assault in the third degree x 1, sexual intercourse without consent x 1; assault occasioning actual bodily harm x 3; common assault x 2; capturing visual data in circumstances where the capture is an invasion of privacy and indecent x 1; damage to property x 3.

Proceedings: Sentence.

Facts: The male offender and female victim had been in a relationship since 2017. The offences took place over three days.

While the victim was driving her car with the offender in the passenger seat the offender took the victim’s mobile phone, snapped it in half and threw the pieces out of the car window. That afternoon he headbutted her in the middle of the forehead causing her pain and told her to “get the fuck out” of the house. The victim left the residence on foot with her son as the offender had taken her car keys. [5]

While she was gone the offender slashed two of the car’s tyres with a knife.[6] When the victim returned the offender told her that he had lost her keys and that somebody had popped the tyres of her car. He told her to go inside the house otherwise he would “start shit” with the victim’s flatmate. [7]

Later that night the offender held a Stanley knife with the blade out to the victim’s throat and near her face and directed her to “suck [his] dick”. The victim felt forced to do so and the offender filmed the incident. [8]

Two days later the offender attempted to cuddle the victim but she did not wish to cuddle and did not reciprocate. The offender became angry and began yelling. He punched the victim in the back of the head a number of times. The victim tried to put on a dress and the offender ripped it off her then grabbed her left breast and twisted and squeezed it causing pain and bruising. The victim’s son was present. [10]

Decision and Reasoning: Four years and eight months imprisonment with a non-parole period of three years.

In considering the objective seriousness of the offence, Mossop J observed:

The offending had some of the typical features of domestic violence in that it involved attempts to control the victim’s behaviour and sought to place responsibility for the offender’s unlawful conduct upon the victim. It occurred in circumstances where the victim was particularly vulnerable by reason of the need to care for and protect her small child. [14]

R v Cowling [2019] ACTSC 138 (23 May 2019) – Australian Capital Territory Supreme Court

‘Intensive corrections order’ – ‘Options’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’

Charges: Unlawful confinement x 1; choking, suffocating or strangling x 1; common assault x 1.

Case type: Conviction and sentence.

Facts: The offender engaged in controlling and violent behaviour towards the victim during their relationship and had threatened to kill her and her family if she ended the relationship. On 1 November 2016, the offender drove himself and the victim home. He did not allow her to exit the vehicle, pulled her hair and punched her in the face several times. On 21 March 2017, the victim visited the offender’s residence and an argument ensued. The offender grabbed the victim, pushed her down and squeezed her neck. Later that night, the offender choked the victim for ‘about 20 minutes’ and threatened to kill her, he intermittently released his hands [7]. On 22 March 2017, the victim fled and called her brother to get her. The offender later attended the brother’s residence, and made threats and attempted to drive his vehicle towards the brother. The brother was the victim of the common assault charge.

Issue: The Court determined the appropriate sentence for the offences in the circumstances.

Held: The Court considered the objective circumstances of the offending. The unlawful confinement charge was serious as it involved gratuitous violence against the victim, including punching her in the face. The choking charge was also serious as the victim felt that she could pass out and the conduct was accompanied by threats ([27]-[28]). The offender reported that he attended psychological counselling sessions in the past ([34]). His personal circumstances were also taken into account. His parents separated when he was young, he reported a supportive family environment, he has a four year son with an ex-partner with whom he maintains contact, and he is currently employed. He denied any past or current drug use. Although there was an almost decade-old matter for possession of prohibited drugs, no conviction was recorded ([33]). Further, his criminal history was limited. The Court refused to take into account a current family violence charge against him, as he had not yet been convicted and was entitled to a presumption of innocence ([44]-[45]). The offender’s remorse, references provided to the court, time already spent in custody, and sentencing principles, particularly rehabilitation, were also taken into account in determining the appropriate sentence ([38]-[43], [51], [80-[88]). The Court noted that the offender entered pleas of guilty 11 days prior to when the trial was listed to commence for a second time, and allowed a discount of approximately 15% ([46]-[50]). The offences were found to significantly impact the victim. ‘This sort of violence against women must be deterred and must be punished’ ([100]).

The Court recorded the convictions for the 3 offences. The sentence imposed was ordered to be served by way of an Intensive Corrections Order (ICO), which highlights the importance of rehabilitation. The ICO was made on the condition that the offender perform 400 hours of community service, continue to engage with psychological services to manage his mental health, and be assessed for and complete offence specific intervention ([114]).

R v Hudson [2019] ACTSC 110 (2 May 2019) – Australian Capital Territory Supreme Court

‘Blackmail’ – ‘Following, harassing and monitoring’ – ‘Intimidation’ – ‘Women’

Charges: Using carriage service to harass x 2; Demand accompanied by threat to endanger x 1; Threaten to inflict grievous bodily harm x 1; Blackmail x 1; Arson x 1; Recklessly inflicting actual bodily harm x 1; Possession of a prohibited item (as a detainee) x 2; Obstructing a public official x 1; Possessing an offensive weapon with intent x 1.

Proceeding type: Sentencing and application for reparation order.

Facts: The accused had been in a relationship with the female victim for three years, with their relationship ending three months before the offence was committed. After the relationship ended, the accused became a member of a motorcycle gang and the female victim commenced a relationship with her current partner. Upon learning of the victims’ relationship, the offender harassed and threatened his ex-partner (via text message and Facebook). He also threatened and blackmailed her new partner, demanding $5000 for ‘whoring out [his] missus’ [26].

The appellant was arrested for these offences. While in custody, the offender started a fire in his cell and possessed dangerous items out of fear he was at risk from members of rival motorcycle gangs. The offender then injured an officer while being restrained.

Issues: What are the appropriate sentences given the circumstances?

Decision and reasoning: Murrell CJ provided that ‘sentences must deliver appropriate punishment, and speak to the purposes of accountability, denunciation, and recognition of harm’ [81]. In reaching his decision, Murrell CJ consequently considered the high objective seriousness of the accused’s harassment of his ex-partner; the accused’s extensive criminal history; good behaviour during previous periods of imprisonment; his dysfunctional upbringing; and the fact that the accused had allegedly not been receiving proper treatment for his post-traumatic stress disorder.

The accused was sentenced to four years and two months imprisonment with a non-parole period of 33 months.

In sentencing the offender, Murrell J noted:

43. The family violence offences and associated offences bear the hallmarks of many serious family violence matters. At the time of the offences, the offender remained angry and distraught over the breakup of his relationship with Ms Lees. He was jealous, felt a sense of entitlement in relation to Ms Lees, and wanted to control her new relationship. He behaved in a volatile and irrational manner, elevating the danger and threat of danger perceived by the victims. In addition, the offender called his Nomads associates in aid, which would have considerably enhanced the fear felt by the victims.

R v Green (no. 3) [2019] ACTSC 96 (11 April 2019) – Australian Capital Territory Supreme Court

‘Directed acquittal application’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Statutory interpretation’ – ‘Strangulation’ – ‘Women’

Charges: Choking, suffocating or strangling a person x 2.

Proceeding type: No-case submission/Directed acquittal application.

Facts: The accused was charged with two counts of choking, suffocating or strangling his mother while in an argument. While the mother claimed that the accused strangled her in her initial accounts of the incident, she eventually recanted her allegations claiming she had fictionalised them while angry with the accused.

Issues: The proceedings focused on the questions of whether the words ‘chokes’ ‘suffocates’ and ‘strangles’ in s 28(2) of the Crimes Act 1900 should be interpreted with respect to their effects on the victim’s breathing and consequently whether the correct interpretations of these words warrant upholding the accused’s no-case submission.

Decision and reasoning: Although choking, suffocating or strangling is an offence under s 28(2), the terms are not defined within the legislation and prior to these proceedings were yet to receive judicial consideration in the ACT. Loukas-Karlsson J provided, in comparing s 28(2) of the Crimes Act to the corresponding offences in other jurisdictions, that the intention behind the provision may have been to build on the ACT’s existing offences which contain the elements of ‘choke, strangle or suffocate’ in an attempt to ‘lower the threshold of conduct to capture a broader range of conduct, particularly in the domestic violence setting’ [34]. Upon considering this intention along with the elements’ statutory context, ‘authoritative’ definitions from the Macquarie Dictionary and extrinsic material (such as the Explanatory Statement) Loukas-Karlsson J concluded that ‘the relevant element is constituted by the stopping of the breath’ [46].

In considering the accused’s directed acquittal application, Loukas-Karlsson J provided that “a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty” (Doney v The Queen [1990] HCA 51) [84]. Since the accused did not stop the victim’s breath on either attempt, his conduct failed to satisfy the necessary element. His Honour therefore concluded that there was a defect in the evidence such that a verdict of not guilty must be directed.

Lewis v Storey [2019] ACTSC 74 (22 March 2019) – Australian Capital Territory Supreme Court

‘Physical violence and harm’ – ‘Sentencing’ – ‘Strangulation’

Charges: Five offences including two counts of common assault, one count of assault occasioning actual bodily harm, one count of choking to render insensible, and one count of possession of an offensive weapon with intent.

Case type: Appeal of sentence.

Facts: The victim and the appellant had been in a relationship for approximately two months. The two counts of common assault were constituted by the appellant putting his hands around the victim’s neck and pushing her into a wall, as well as saying intimidating and threatening words. The appellant also armed himself with two knives (count of possession of an offensive weapon with intent), and had wrapped his arm around the victim’s neck cutting off her circulation and causing her to lose consciousness (count of choking to render insensible). The count of assault occasioning bodily harm was established by the appellant kicking the victim numerous times, grabbing her hair and repeatedly hitting her head on the ground, and slapping the victim’s face. The victim suffered significant injuries ([18]). Notably, a total head sentence of three years and six months imprisonment was imposed, with a non-parole period of 18 months.

Issues: The appellant sought leave to appeal on the grounds that that the sentence with the respect to the charge of choke render insensible and the non-parole period were manifestly excessive. He sought leave to add two grounds of appeal: 1) that the Magistrate offended the R v De Simoni principle by punishing him for attempted murder; and 2) that the Magistrate erred by not applying the full discount of 20% to the sentence imposed for the offence to choke to render insensible. He sought orders setting aside the Magistrate’s order, and that he be re-sentenced in respect of that charge.

Decision and reasoning: The Court allowed the appeal and re-sentenced the appellant, in relation to the offence of choking to render insensible, to three years’ imprisonment, with a non-parole period of 17 months. At [43], the Court held that a head sentence of three years and two months was not manifestly excessive. With respect to the non-parole period of 18 months, the Court found that ‘as expressed as a percentage of a head sentence of 3 years and 2 months of imprisonment, the relevant percentage is approximately 47%’. This is outside the usual range of non-parole periods in the ACT. The proper approach to fixing a non-parole period is to have regard to all the sentencing purposes, the objective seriousness of the offence, and the appellant’s subjective circumstances and prospects of rehabilitation. The proportion of the sentence served by way of non-parole period is a matter of judicial discretion, and ordinarily, the non-parole period is a significant part of the total sentence ([52]). The appellant’s youth was important to his prospect of rehabilitation. It was necessary to fix a non-parole period that is relatively low, but also reflected the total sentence and was consistent with sentencing purposes ([53]).

R v KD [2019] ACTSC 62 (15 March 2019) – Australian Capital Territory Supreme Court

‘Children’ – ‘Factors affecting risk’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Suffocation’

Charges: Attempted sexual intercourse without consent x 1.

Case type: Sentence.

Facts: The accused pleaded guilty to an offence of attempted sexual intercourse without consent. The accused and the victim lived together for two years prior to the accused entering custody, and had a child together ([21]-[22]). The victim was lying on her back when the accused pinned her down and repeatedly placed a pillow over her face. He then attempted to have non-consensual sexual intercourse with her ([4]).

Issues: The Court determined the appropriate sentence for the offence in the circumstances.

Decision and reasoning: Loukas-Karlsson J found that the offence approached mid-range seriousness. The objective seriousness of the offence was informed by the fact that the accused pinned down the victim and repeatedly placed a pillow over her face ([15]-[17]). His Honour considered the accused’s personal circumstances at [18]-[28]. He was young (24 years old), had been diagnosed with PTSD at the age of five as a result of witnessing domestic violence between his parents, reported to have been sexually abused by a family member, left high school early, worked in hospitality and as a removalist, and used drugs from an early age. The accused accepted responsibility for the offence and acknowledged the negative impacts of his actions. He indicated that he was willing to participate in programs and interventions. In considering the objective seriousness of the offence and subjective matters, his Honour held that the appropriate sentence for the offence of attempted sexual intercourse without consent is two years and nine months imprisonment. However, his Honour reduced the sentence to two years and four months due to the guilty plea.

R v Kennewell [2019] ACTSC 125 (25 January 2019) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Bail’ – ‘Bystander intervention’ – ‘Imprisonment’ – ‘Physical violence and harm’

Charges: Recklessly inflicting grievous bodily harm x 1.

Case type: Conviction and sentence.

Facts: The offender pleaded guilty to the offence of recklessly inflicting grievous bodily harm after the matter was committed for trial, but before the trial date was set.

The offender attended a friend’s party in the ACT, but started arguing with his girlfriend and left the party. Later that night, the victim heard the argument and, specifically, a female screaming. Concerned for her safety, the victim approached them. The offender stabbed the victim 3 times, and then ran away, followed by his girlfriend. The offender was arrested and granted bail the following day. He was subsequently imprisoned for offences (involving stabbing another person with a knife) committed in NSW while on bail.

Issue: The Court determined the appropriate sentence for the offence in the circumstances.

Held: Burns J held that the recent offending demonstrated that the offence in question was not an isolated incident. He was also found in possession of an instrument capable of being used to stab after he was extradited from NSW. These matters strongly suggest the need for specific deterrence. His Honour found the offending was unprovoked. The offender’s personal circumstances were also considered. He is a 20 year old Indigenous man, his parents separated when he was young, and he has anger management, drug and alcohol issues. However, he maintains a good relationship with his family, with whom he had remained in contact since he was incarcerated. It was noted that the offender is in good health, has a positive attitude, has employment available to him, and had completed an anger management course. His Honour was satisfied that the offender had reasonable prospects of rehabilitation, provided that he ceases carrying weapons, and addresses his anger management, drug and alcohol issues and employment. Even though the offender said that he carries a knife for self-protection, Burns J held that ‘no law-abiding citizen in this country, not associating with criminals or engaging in criminal conduct, needs to carry a knife for self-protection’ ([30]).

Notwithstanding his young age and rehabilitation prospects, Burns J held that the sentence needed to reinforce the fact that using knives to seriously harm others will be met with harsh punishment. Nothing less than full-time imprisonment would sufficiently address the sentencing requirements ([31]). The offender was convicted and sentenced to 3 years and 1 month imprisonment, with a non-parole period of 18 months.

KIC v Tennant [2019] ACTSC 145 (23 January 2019) – Australian Capital Territory Supreme Court

‘Breach of protection order’ – ‘Child contact’ – ‘Physical violence and harm’ – ‘Women’

Appeal type: Appeal against conviction and sentence.

Facts: The appellant had previously been served with an Interim Family Violence Order (the Order). Among other things, the Order prohibited the appellant from being within 100 metres of the protected person, his wife, except when handing over their child. The wife alleged that shortly after being served, the appellant breached the Order by walking in front of her house at a time she was home. She claimed that when the appellant was walking past her property, he stopped and looked into the residence. She also claimed that the appellant returned twice after leaving and began to follow her when he saw her outside.

The appellant pleaded guilty to the breach in the Magistrate Court. This plea was later withdrawn, but then reinstated during these proceedings.

Issue: Whether the sentence imposed by the magistrate was manifestly excessive.

Decision and reasoning: During the proceedings in the Magistrate Court, the appellant attempted to tender a document detailing the events of the day the offence allegedly occurred. The magistrate rejected this document on the grounds that it sought to ‘traverse’ the plea of guilty [9]. While Burns J disagrees with the grounds on which the magistrate refused the document, His Honour believed it should have been rejected because it was self-serving. The contents and rejection of the appellant’s document formed the main focus of Burns J’s judgment.

Burns J had great difficulty accepting most of the appellant’s evidence both in the document and that which the appellant gave before Burns J. The appellant claimed that he visited the area near to his wife’s residence to find a spot for his daughter to wait for him to pick her up the next day. The appellant also claimed that he had recently undergone a procedure to his eyes which resulted in him being unable to see more than one metre in front of him. Burns J provided that given the condition of the appellant’s eyes and the fact that he visited the residence at 10 pm, ‘it does not make any sense whatsoever that in his circumstances’ he visited the residence for the reason he claimed [13].

Burns J also found it difficult to accept the appellant’s submissions as he had made no challenge to the Statement of Facts that were read before the magistrate. The Statement of Facts did not include any of the above claims and instead provided that the appellant walked passed the protected person’s house while he was out walking to take care of his health (as the appellant claimed to be diabetic). His Honour concluded that he was “not now prepared to find that the events occurred in the way in which the appellant now suggests that they did. On that basis, [Burns J] propose[d] to proceed on the basis that the circumstances of the offence went as put before the magistrate’ [17].

Burns J dismissed the appeal, commenting ‘it has not been demonstrated that the sentence [was] manifestly excessive, nor [was Burns J] satisfied that there was any relevant error which would have affected the outcome of the proceedings before the magistrate’ [21].

R v Vincent [2018] ACTSC 347 (12 December 2018) – Australian Capital Territory Supreme Court

‘Children’ – ‘Damaging property’ – ‘Domestic violence’ – ‘Factors affecting risk’ – ‘People with children’ – ‘Physical violence and harm’ – ‘Vulnerable people’

Charges: Assault occasioning actual bodily harm x 1; Minor property damage x 2

Facts: The offender was in a relationship with the complainant for 12 years. They had a child, aged seven at trial. The relationship ended late 2017. The offender visited the complainant’s home to visit children. He entered the house, damaged property, and assaulted the complainant with a baton by hitting her on the arms and on the back of the head.

Issues: Sentencing

Decision and Reasoning: The offender pleaded guilty and was sentenced to 12 months’ imprisonment for assault occasioning actual bodily harm, one month’s imprisonment for the first count of damaging property, and one month’s imprisonment for the second count of damaging property. The sentences were to be served concurrently. The term of imprisonment for the offence of assault was suspended on the condition that the offender enter a Good Behaviour Order for 18 months.

The offender had a significant criminal record, which included a contravention of a protection order against the complainant for which he already served a period of time in custody. He grew up in difficult circumstances – his mother had a drug addiction and did not adequately support him. The offender also had a long-standing history with drugs and alcohol which was exacerbated by his separation with the complainant. Whilst in custody, he completed a drug and alcohol awareness program and commenced an anger management course. His Honour noted that domestic violence is an ‘appalling crime’ and ‘offends the most basic norms of society’ ([11]). There were positive signs of rehabilitation, such as the fact that the offender was in a stable relationship, had ongoing accommodation and employment, and was a valuable member at his workplace. The complainant had sent an email to the offender saying she had ‘moved on’ and wanted the offender to attend their child’s graduation. His Honour stated: ‘Expressions of reconciliation by victims of domestic violence are often a regrettable reflection of the dominance of the abuser. However, in this case, primarily because the offender is in a new relationship, I am prepared to accept the sincerity of the victim’s request.’

Fallon v Baker [2018] ACTSC 319 (9 November 2018) – Australian Capital Territory Supreme Court

‘History of abuse’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Women’

Charge: Common assault.

Appeal type: Appeal against conviction.

Facts: The appellant had a history of heavy drinking. Despite having been prescribed medication to assist with his alcohol dependence, the appellant was heavily intoxicated on the night the offence occurred. His intoxicated state led him to punch his wife in the back on at least four occasions while she was pretending to sleep and to later threaten to strangle their youngest child to stop him crying. This threat prompted the mother to call the police.

In the magistrate’s judgment, he noted that the wife declined to participate in the Family Violence Evidence-in-Chief interview as she did not want the appellant to know she was the one who had contacted the police. The wife declined out of fear of losing the children due to the husband’s past behaviour and conduct in the relationship. The magistrate attributed the appellant’s behaviour to his dependence on alcohol.

Along with appealing the magistrate’s sentence, the appellant also sought to admit further evidence and to have the sentencing proceedings reopened.

Issues: (1) Was the sentence imposed manifestly excessive; and (2) did the magistrate fail to consider or give proper weight to the subjective circumstances of the appellant; (3) should further evidence be admitted and the sentencing proceedings reopened.

Decision and reasoning: Mossop J dismissed the appeal and confirmed the sentence imposed by the magistrate. His Honour was satisfied that the magistrate considered all possible consequences of a conviction for the appellant’s employment and other subjective circumstances and that the appellant’s submissions failed to demonstrate otherwise. As such, the appellant’s first ground for appeal was unsuccessful.

When considering the second ground, Mossop J used the wife’s fear of making a complaint and of losing her children, and the history of similar events during the relationship as evidence ‘that the offending conduct in the present case occurred in a context of typical domestic violence cases …[This] history of conduct within the relationship indicates that the offending conduct had a more objectively serious character than it would have had if that history was not present’ [21]. Mossop J used these facts to reject the appellant’s claim that the magistrate’s sentence was manifestly excessive.

In relation to the third issue, the appellant sought to admit evidence detailing the consequences of the conviction on his employment and job prospects given that the conviction caused his employer to consider terminating the appellant’s employment and the appellant to consequently resign. Mossop J, however, did not consider the admission of further evidence to be in the interests of justice as the evidence was of limited scope and addressed a matter already considered by the magistrate.

R v Williams [2018] ACTSC 354 (18 October 2018) – Australian Capital Territory Supreme Court

‘Breach of protective bail conditions’ – ‘Control’ – ‘Intensive correction order’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful confinement’ – ‘Women’

Charges: Unlawful confinement x 1; Threat to kill x 1; Inflicting actual bodily harm x 1; Common assault x 2; Aggravated dangerous driving x 1.

Proceeding type: Sentencing and application for an intensive corrections order.

Facts: At the time the offences were committed, the accused was on bail in relation to family violence charges against his partner. The accused’s bail conditions prohibited him from assaulting or intimidating his partner, being near her, having contact with her and from attending her home. While on bail, the accused assaulted his partner, unlawfully confined her and threatened to kill her. When attempting to flee the home, the accused also struck his partner’s current boyfriend with a car, recklessly inflicting actual bodily harm.

Issues: (1) What are the appropriate sentences given the accused’s offences; and (2) is an intensive correction order appropriate for the accused?

Decision and reasoning: Burns J rejected the submission for an intensive corrections order on the grounds that the accused’s imminent deportation from Australia (due to his visa being revoked) made it unlikely that the accused would comply with the order. The accused was instead sentenced to two years and four months’ imprisonment. Burns J reached this decision by considering the relatively low seriousness of the harm inflicted upon the victim; the victim’s vulnerability; and the fact that the accused was on conditional liberty at the time of committing the offences.

Burns J notes at [5] [The offence of unlawful confinement] ‘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.’

R v Simonds [2018] ACTSC 265 (21 September 2018) – Australian Capital Territory Supreme Court

‘Evidence’ – ‘Physical violence and harm’ – ‘Threats to kill’ – ‘Unlawful confinement’

Charges: Assault occasioning actual bodily harm x 1; Choke, suffocate or strangle x 1; Assault occasioning actual bodily harm x 1; Unlawful confinement x 1; Threat to kill another person x 1.

Proceeding type: Trial by judge alone.

Facts: The accused and the complainant went out to dinner. At about midnight the accused, apparently intoxicated, went out alone. Some hours later, he returned and although not obviously intoxicated, soon became violent. He dragged the complainant, hit her in the face, held a knife to her throat, and detained her in the flat for about four hours. During this time, he threatened to kill her, and demanded information from her about her mobile phone.

Issues: Whether or not the events as described by the complainant occurred; Whether or not the Court could be satisfied beyond reasonable doubt.

Decision and reasoning: A verdict of not guilty was entered as to each of the six counts in the indictment. The Court was satisfied that the complainant ‘was probably telling the truth’, but noted that the required standard was beyond reasonable doubt. Therefore, his Honour could not accept the complainant’s evidence. The emails, particularly, appeared to seriously contradict her version of events, such that they had a significant effect on her evidence being accepted beyond reasonable doubt.

R v Rose [2018] ACTSC 237 (23 May 2018) – Australian Capital Territory Supreme Court

‘Arson’ – ‘Damaging property’ – ‘Factors affecting risk’ – ‘Sentencing’

Charges: Aiding and abetting the commission of an offence - caused damage to two vehicles by fire and intended to cause, or was reckless about causing damage to the vehicles.

Proceeding type: Sentencing.

Facts: The offender aided and abetted the co-offender to set fire to his former partner’s car using accelerant, which caused the destruction of the vehicle. As a result, an adjacent vehicle also caught fire and suffered damage.

Issues: Burns J determined the appropriate sentence for the offender.

Decision and reasoning: In determining the sentence, the Court took into account the age of the offender (19 years old), the fact that he had no previous convictions, his attempt to contact the owners of the vehicle to apologise for his actions, the contents of the Pre-Sentence Report (which revealed that he had continued family support and a positive peer network), the fact that he was in stable employment and that he was considered to be at low risk of re-offending. His Honour also took into account the offender’s plea of guilty, albeit that it was not entered at the earliest opportunity. These matters were relevant to a finding that he had good prospects for rehabilitation ([10]). A sentence of imprisonment should only be imposed as a last resort, and accordingly, the Court ordered a Good Behaviour Order for a period of 12 months and recorded a conviction. He was also required to complete 150 hours of community service and accept supervision of ACT Corrective Services for that period.

SA v Badenhorst [2018] ACTSC 216 (21 May 2018) – Australian Capital Territory Supreme Court

‘Evidence’ – ‘Good behaviour bond’ – ‘Intermediate sanctions’ – ‘Sentencing’ – ‘Sentencing options’

Charges: Assault x 1

Appeal type: Appeal against decision to refuse adjournment; appeal against sentence.

Facts: In the course of sentencing submissions, the Magistrate was not willing to accept a submission relating to the likely impact of a conviction upon the appellant’s employment. The appellant sought an adjournment to obtain evidence to put before the Magistrate. The Magistrate refused the request.

Issues: Whether the Magistrate fell into error in refusing the application for an adjournment.

Decision and Reasoning: Burns J upheld the appeal.

The Magistrate’s refusal of an adjournment was unreasonable so as to bespeak error ([5]). Having received fresh evidence (a letter from the principal of the school where the appellant was employed), Burns J held that, if a conviction was recorded, she would lose her ‘working with children’ approval and, consequently, her job as a teacher. Such an outcome would be disproportionate compared to the nature of the offence ([11]).

His Honour took into account the appellant’s character, antecedents, age, health and mental condition, as well as the seriousness of the offence and extenuating circumstances in which the offence was committed.

His Honour noted that there is no rule of law that a domestic violence offence cannot be the subject of non-conviction order ([15]). Consequently, the conviction was set aside and a non-conviction order made. The Court also imposed a good behaviour order.

Purcell v O’Reilly [2018] ACTSC 60 (9 March 2018) – Australian Capital Territory Supreme Court

‘Children’ – ‘Coercive control’ – ‘Damaging property’ – ‘Separation’

Proceeding: Appeal from Magistrate’s sentence order following conviction for damage property causing damage of no more than $5000.

Grounds:

1.

The sentence was manifestly excessive;

2.

The Magistrate misapplied s 17 of the Crimes (Sentencing) Act (2005) (ACT) in failing to make a non-conviction order.

3.

The Magistrate erred in refusing to consider a non-conviction order on the basis that as a family violence offence the matter was too serious a matter to be dealt with by a non-conviction order. He also submitted the sentence was manifestly excessive as the appellant was entitled to a sentencing discount as without the appellant’s confessions the offence would have been difficult to prove.

Facts: The offence occurred when the appellant man was a guest in his former wife’s home so that he could take his son to football training in the morning. The appellant demanded to see his former wife’s phone and refusing, she retreated to her bedroom and locked the door. The appellant threatened to break the door down if she did not unlock it. The appellant’s daughter blocked his access to her mother’s bedroom door. The appellant went to the lounge room, picked up a flat screen TV and threw it to the ground, picked up the glass table it had been sitting on then threw the table onto the TV screen, causing it to shatter. His former wife declined to make a statement to police and police proceeded with the matter based upon the appellant’s admissions at the scene.

Decision and Reasoning: The appeal was dismissed. The Magistrate was simply identifying this particular offence as involving family violence, and taking place in the complainant’s home where a child was present. On that basis, she concluded that the particular offence is too serious to be dealt with under s 17. This is not a case in which, but for Mr Purcell’s admissions, either the offence would never have come to light or it would have been difficult to prove in a defended hearing. The judge noted that in R v Hamid [2006] NSWCCA 302, Johnson J (with whom Hunt AJA and Latham J agreed) said at [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; the offender may no longer need to resort to violence in order to instil fear and control.

Penfold J observed:

[48] … the incident giving rise to Mr Purcell’s conviction, and its source in Mr Purcell’s determination to examine the victim’s mobile phone, seem to reflect both an attempt to exercise power or control over his former wife and a belief that this was justified. For this reason, the incident as a whole may legitimately be treated as more serious than it would have been if the TV had been destroyed in anger or frustration generated by some event unrelated to conflict between Mr Purcell and his former wife.

R v KN [2018] ACTSC 111 (26 February 2018) – Australian Capital Territory Supreme Court

‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Sentence’ – ‘Strangulation’

Charges: Assault occasioning actual bodily harm x 1; Intentionally and unlawfully choking a person so as to render that person insensible or unconscious x 1.

Case type: Sentence.

Facts: The defendant headbutted his wife, causing her to become unconscious. He tightly wrapped a piece of rope around her neck, causing her to again become unconscious. She had lost control of her bodily functions and urinated ([1]). The incident occurred in 2013. The complainant was unwilling to provide a statement previously, because she wanted to continue in her relationship with the defendant ([4]).

The defendant pleaded guilty to the charges ([5]).

Issues: Sentence to be imposed.

Decision and Reasoning: The defendant was sentenced to 2 years and 9 months’ imprisonment, wholly suspended ([17]). Mitigating factors included the defendant’s: pleas of guilty; limited criminal history; childhood trauma; mental health issues; and engagement in psychological services ([11]). Burns J considered that the defendant had very good prospects for rehabilitation ([16]).

R v Kulczycki [2018] ACTSC 9 (30 January 2018) – Australian Capital Territory Supreme Court

‘Blackmail’ – ‘Emotional and psychological abuse’ – ‘History of breaches of protection orders’ – ‘Revenge porn’

Charges: Blackmail x 1; Stalking x 1.

Case type: Sentence.

Facts: The defendant and complainant were in a relationship for 2 years. They sometimes filmed consensual sex ([6]-[7]). After the relationship broke down, the defendant sent the complainant emails and text messages threatening to release the video unless the complainant paid him $20,000 ([8]-[9]). The complainant obtained a protection order, and the defendant breached the order three times ([11]).

Issues: Sentence to be imposed.

Decision and Reasoning: Elkaim J remarked on the seriousness of the blackmail in the context of a domestic relationship at [16]: ‘blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant’. While the defendant had promising prospects of rehabilitation and had taken steps to reduce his consumption of illicit drugs, Elkiam J considered that a period of imprisonment was necessary ([21-[22]). The defendant was sentenced to a head sentence of 9 months’ imprisonment, to be served concurrently with 6 months’ imprisonment for stalking [22].

Justice Elkaim remarked on the seriousness of the blackmail in the context of a domestic relationship at [16]: ‘blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant’.

Parkinson v Alexander [2017] ACTSC 201 (4 August 2017) – Australian Capital Territory Supreme Court

‘Administration offence’ – ‘False accusation’ – ‘Interpretation of evidence’ – ‘Procedural fairness’ – ‘Tendency evidence’

Charges: Making a false accusation x 3; Public mischief x 6.

Appeal type: Appeal against conviction.

Facts: The defendant and ‘EK’ had been in a relationship. After the relationship had ended, the defendant made allegations to the police that EK had sexually assaulted her, had followed her in his car, and had broken into her house ([5]-[12]). The police made investigations, but eventually determined that the accusations were false ([14]).

At trial, the prosecution relied upon the following evidence to show the defendant’s tendency to make false complaints: the fact that there were many allegations supported the inference that each one was false; a complaint of sexual assault made by the defendant against a neighbour when she was 17; and three other allegations made by the defendant against EK’s family ([26], [29]). The defendant was convicted of two counts of making a false accusation and three counts of public mischief (for wasting police officers’ time). She had not yet been sentenced.

Issues: One issues was whether the Magistrate correctly applied tendency evidence.

Decision and Reasoning: The appeal was partially upheld. Justice Refshauge found that the Magistrate applied the tendency evidence incorrectly for two reasons.

•

First, the sequence in which the Magistrate addressed the incidents was not logical. The Magistrate first found that the defendant made two false allegations in 2014. The Magistrate then used the evidence of the 2014 allegations to support reasoning that earlier accusations, in 2013, were also false ([52]).

•

Second, the Magistrate reformulated the tendency evidence to conclude that it showed a ‘vendetta against the family’ ([32], [45]). This was not how the prosecution framed the evidence in the notice of tendency evidence, and the defendant was not given an opportunity to respond to this argument ([45]). Therefore, the evidence was inadmissible ([68]).

Note: this case was subsequently remitted to the Magistrates Court for retrial before a different Magistrate, see Parkinson v Alexander (No 2) [2017] ACTSC 290 (9 October 2017).

R v Rappel [2017] ACTSC 38 (24 February 2017) – Australian Capital Territory Supreme Court

*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Contravention of a protection order’ – ‘Exposing children to domestic and family violence’ – ‘Murder’ – ‘People affected by substance misuse’ – ‘Sentencing’ – ‘Women as a vulnerable group’

Charges: Murder x 1; Recklessly inflicting grievous bodily harm x 1; Assault occasioning actual bodily harm x 1; Contravene protection order.

Case type: Sentence.

Facts: The defendant and the deceased had formerly been in a domestic relationship and had a child together ([9]). The deceased had taken out a domestic violence order (DVO) against the defendant the day before the defendant killed her ([17]-[19]). When the defendant received the order, he bought an axe, drove to the deceased house and cut her neck with the axe, severing her spine. She was holding his newborn child at the time, and her two sons were in the same room ([33]-[36]). The axe severed her sister’s finger, which formed the basis of the grievous bodily harm charge. He then assaulted her brother, which formed the basis of the assault occasioning bodily harm charge ([37]-[39]).

Issues: Sentence to be imposed. The defendant raised the mitigating factor of diminished responsibility.

Decision and Reasoning: Burns J described the objective circumstances of the murder ‘within the worst category of cases of murder, and would warrant a term of life imprisonment’ [133].

Burns J said at [131] ‘For many years now, the courts of this country have spoken of the need to protect members of the community, and particularly women, from domestic violence, and the need for courts to take seriously offences of domestic violence. If these statements are to have meaning, if the protection offered by the [Domestic Violence and Protection Orders Act 2008 (ACT)] is to have significance, it is incumbent on courts to recognise the heinousness of offences of violence committed in retribution for a member of the community invoking the protection provided by the Act.’

His Honour took into account as mitigating factors the defendant’s plea of guilty, his experience of abuse as a child, and his long history of mental health issues ([103]). Other contributing factors included his use of anabolic steroids, methylamphetamines and a personality disorder, but his Honour did not place significant weight on these circumstances ([120]). His Honour also had regard to victim impact statements tendered by the deceased’s family ([124]-[128]). His Honour concluded (at [151]):

‘The present offence of murder was vicious and cowardly. Those who witnessed your violence will have to live with their memories for the rest of their lives. Your actions deprived three children of their mother, including your own infant daughter Ayla. You have effectively deprived Ayla of both of her parents. The effects of your actions will be felt for decades to come. There is a very substantial community interest in retribution, deterrence and punishment. This can only be achieved by a very substantial period of imprisonment.’

His Honour imposed a sentence of 32 years and 2 months’ imprisonment.

Note: the Domestic Violence and Protection Orders Act 2008 (ACT) referenced in this decision has been repealed and replaced by the Family Violence Act 2016 (ACT).

R v Ennis [2016] ACTSC 72 (4 April 2016) – Australian Capital Territory Supreme Court

‘Assault occasioning bodily harm’ – ‘Good behaviour order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’

Hearing: Breach of good behaviour order.

Facts: In 2012, Mr Ennis was involved in an altercation with his female partner of 27 years. He was convicted of assault occasioning actual bodily harm and was subject to a good behaviour order for 2 years with a condition to perform 100 hours of unpaid community service work. In 2014, Mr Ennis breached this order by failing to perform the community service work (‘the first breach’). The good behaviour order was extended by 12 months and Mr Ennis ordered to perform 108 hours of community service work (See R v Ennis [2014] ACTSC 369 (4 November 2014)).

However, before the end of the good behaviour order in 2015, Mr Ennis breached the order again (‘the second breach’). Mr Ennis and his partner, who had been drinking alcohol, argued outside their house. Mr Ennis pulled her by her hair and dragged her inside. He let her go and slammed the door in her face (common assault). In March 2016, a magistrate sentenced Mr Ennis to 5 months imprisonment, suspended immediately, and made a good behaviour order for 18 months with various conditions. His Honour then referred the matter to Refshauge J for breach of the good behaviour order that had been extended upon Mr Ennis’ first instance of breach.

Issue/s: Whether further action is warranted in light of Mr Ennis’ breach of a good behaviour order.

Decision and Reasoning: While Mr Ennis complied with nearly 2 years of the original good behaviour order without breach constituted by further offence and nearly 9 months of the additional period ordered by Refshauge J, Mr Ennis had failed at his attempts at rehabilitation. This offending was also facilitated by the consumption of alcohol. Further, the nature of offending was serious. Per Refshauge J, ‘It is, as his Honour Magistrate Morrison said, a family violence offence, and it is serious in that it was the commission of the offence against the same victim, although many years apart. It is a similar offence also, in that it is an assault and another family violence assault. Nevertheless, it is a much less serious version of the offence, although in this case, because of the earlier history, it attracted a sentence of imprisonment, although suspended’. It was relevant that Mr Ennis’ partner had moved away and it was unlikely that the relationship would resume in the near future (See [15]-[22]). Accordingly, the duration of the good behaviour order was extended to 2 years to run from the date of this decision.

R v BNS [2016] ACTSC 51 (24 March 2016) – Australian Capital Territory Supreme Court

‘Accused has conviction for intimidating witness’ – ‘Evidence via audio visual link from remote location’ – ‘History of family violence by accused against witness’ – ‘Physical violence and harm’ – ‘Questioning witnesses’ – ‘Safety and protection of victim and witnesses’

Hearing: Application for evidence to be given by audio visual link from a location outside the courtroom.

Facts: The accused, BNS, pleaded not guilty to 2 counts of incest and 5 counts of committing an act of indecency on TN. At the time of offence, BNS was in a relationship with SN, the mother of TN, and was the step father to TN. SN was called to give evidence at trial. She was expected to give evidence of complaint made by TN and relationship evidence (of her and the child’s relationship with BNS).

Here, an application was made for SN to give evidence by audio visual link from a remote location. BNS was physically abusive to SN during the relationship. SN said she had ongoing anxiety and depression which would inhibit her ability to give her best evidence if she was required to give evidence in the courtroom. In light of the history of family violence, she felt intimidated in front of BNS. Finally, BNS also had a conviction for intimidating a witness.

SN did not have the right to give evidence by audio visual link from a remote location under Part 4 of the Evidence (Miscellaneous Provisions) Act because she was not a child, complainant, or a similar fact witness. In the absence of statutory provision, it was noted that there is no power at common law for a court to allow evidence to be heard by video link: R v Hampson [2009] EWCA Crim 1569. However, s 32 of the Evidence (Miscellaneous Provisions) Act empowered the court to direct a person to give evidence by audio visual link from a remote location.

Issue/s: Whether the application to give evidence outside the courtroom via audio visual link should be allowed under s 32 of the Evidence (Miscellaneous Provisions) Act.

Decision and Reasoning: The application was allowed as the pre-conditions set out in s 32 were met. First, the necessary facilities were available (See [10]). Second, the evidence could be more conveniently given from a remote location by video link. SN’s aversion to the accused would make it more convenient for her to give evidence remotely. It was also more convenient for the court to have the evidence given free of the inhibitions troubling SN (See [12]-[13]). Finally, BNS did not object to SN giving evidence remotely and, accordingly, it could not be said that it would be unfair to the accused for SN to give evidence remotely. Although the general rule is that prosecution witnesses should give evidence in the presence of the accused, it was noted that there have been numerous past occasions where the giving of evidence by video link has not been unfair (See [14]-[22]). Further, there were no discretionary matters requiring the application to be refused (See [23]-[30]).

R v Curtis (No 2) [2016] ACTSC 34 (26 February 2016) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Breach of a good behaviour order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Young people’

Hearing: Breach of a good behaviour order.

Facts: Mr Curtis assaulted his female partner by punching her a number of times, causing her bruising. He was charged with assault occasioning bodily harm. In October 2013, Refshauge J sentenced Mr Curtis to 12 months imprisonment, wholly suspended, and imposed a good behaviour order with a probation condition for 2 years (See R v Curtis [2013] ACTSC 291 (16 December 2013)). In April 2015, within the period of the good behaviour order, Mr Curtis was found in possession of a number of electronic and other items reasonably suspected of being stolen. In December 2015, he pleaded guilty in the Magistrates Court and was sentenced to a further good behaviour order for 18 months with a community service condition. The magistrate referred the breach of the earlier imposed good behaviour obligations to the Supreme Court.

Issue/s: Whether further action is warranted in light of Mr Curtis’ breach of a good behaviour order.

Decision and Reasoning: The offence subject of the breach was of a different character and less serious to the offence that Mr Curtis was originally sentenced for. This offending was not part of a life of serious criminal offending but a stupid criminal offence prompted by his perceived necessity. Mr Curtis had otherwise complied with the good behaviour order. His Honour was satisfied that this justified re-sentencing Mr Curtis rather than imposing the suspended sentence (See [45]-[49]).

In re-sentencing Mr Curtis, Refshauge J noted the need for general deterrence because the original offence was of family violence. He further noted that ‘Vindication of the victim is always important in family violence offences and, again, the expression of the court's displeasure with the offending by the imposition of imprisonment will meet that objective’ (See [52]). His Honour further noted Mr Curtis’ youth, his employment, and the birth of his child into a stable relationship (absent any family violence) (See [50]-[55]). Mr Curtis was re-sentenced to 12 months imprisonment to commence from 15 August 2015 (to take into account pre-sentence custody), wholly suspended. His Honour further imposed a good behaviour order for 18 months with probation conditions and a community service condition.

Note: the defendant subsequently breached his good behaviour order (although the breach was not related to further domestic and family violence) and was re-sentenced to 12 months’ imprisonment, wholly suspended (see R v Curtis (No 3) [2017] ACTSC 101 (27 April 2017).

R v Williams [2015] ACTSC 406 (18 December 2015) – Australian Capital Territory Supreme Court

‘Anger management programs’ – ‘Assault occasioning bodily harm’ – ‘Brother’ – ‘Deterrence’ – ‘Drug and alcohol programs’ – ‘Family members’ – ‘Physical violence and harm’

Charge/s: Recklessly inflicting grievous bodily harm.

Hearing: Sentencing hearing.

Facts: After arguing with his brother, Mr Williams chased his brother down the street. He caught up with his brother and hit him with a guitar, rendering him unconscious. Mr Williams’ brother was found to have a depressed skull fracture and a haematoma on his brain. He underwent surgery and spent three weeks in hospital before being moved to a rehabilitation facility.

Decision and Reasoning: This was a serious offence, especially because it involved family violence. The offence was not premeditated but was aggravated because it took place at a time when Mr Williams was already subject to a NSW good behaviour order made in connection with an earlier family violence offence (against Mr Williams’ former partner). Further, Mr Williams tried to minimise his actions. The injuries sustained by his brother were quite serious (See [11]-[22]). Penfold J also had regard to Mr Williams’ subjective circumstances including his extensive criminal history (See [23]-[26]). He noted that Mr Williams had attended some anger management and drug and alcohol programs but these had not had an effective rehabilitative impact (See [27]-[31]).

In terms of general deterrence, His Honour noted, ‘This is an offence of a kind that requires general deterrence, and in some cases at least, general deterrence may be effective. I note defence counsel's comment that general deterrence in relation to the grievous bodily harm offence is particularly relevant in relation to “glassing” offences, but I consider that deterring violence within the family is at least as important as deterring alcohol-fuelled violence between strangers or acquaintances’ (See [33]). Personal deterrence was also relevant on the facts (See [34]). Penfold J sentenced Mr Williams to three years imprisonment with a non-parole period of 18 months.

R v Pikula [2015] ACTSC 380 (12 November 2015) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Assault occasioning actual bodily harm’ – ‘Brother’ – ‘Causing grievous bodily harm’ – ‘Drug and alcohol programs’ – ‘Family members’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’

Charge/s: Assault occasioning actual bodily harm, causing grievous bodily harm.

Hearing: Sentencing hearing.

Facts: After consuming a significant quantity of alcohol, Mr Pikula, a man with Aboriginal and Tongan ancestry, began arguing with his step-brother (Mr Mapa). Another step-brother, Mr King, tried to intervene but was stabbed with a knife in the back of his thigh by Mr Pikula (assault occasioning actual bodily harm). The following evening, Mr Pikula again became highly intoxicated and argued with Mr Mapa. He stabbed Mr Mapa twice in the back. The knife wounds punctured his lung (grievous bodily harm).

Decision and Reasoning: Refshauge J sentenced Mr Pikula to 22 months imprisonment for assault occasioning actual bodily harm and 27 months imprisonment for causing grievous bodily harm (cumulative). His Honour also recommended that a condition of Mr Pikula’s parole would include a requirement that he undergo treatment and counselling for alcohol abuse. In imposing this sentence, Refshauge J noted the importance of both general deterrence and specific deterrence (in light of his violent criminal record). The offending was serious here and warranted denunciation. While it had some association with alcohol, which may provide some opportunity for rehabilitation, this could not be said to overwhelm the other purposes of sentencing. His Honour also had regard to Mr Pikula’s troubled childhood and his long history of alcohol abuse.

At [1], ‘There can be no doubt that one of the marks of a civilised society is that its members can be protected from violence in their lives. While there can, of course, be no guarantee of such protection, nevertheless, the community expects that appropriate steps will be taken to maximise such protection. This is especially true of the need for safety within the family’.

R v NQ [2015] ACTSC 308 (14 October 2015) – Australian Capital Territory Supreme Court

‘Act of indecency without consent’ – ‘Assault with intent to engage in sexual intercourse’ – ‘Deterrence’ – ‘Drug and alcohol programs’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Act of indecency without consent, assault with intent to engage in sexual intercourse.

Hearing: Sentencing hearing.

Facts: The male offender and the female complainant were married. They had been in a relationship for 17 years and had 3 children. The offender and the complainant had been drinking alcohol together when the offender requested oral sex. The complainant declined and went to bed. Five minutes later the offender walked into the bedroom and demanded the complainant perform oral sex on him. She refused repeatedly and started crying. The offender said, ‘Do you think your crying is going to get you what you want? It’s your job to do it’. He then took all his clothes off and positioned himself on top of the complainant. She pushed the offender off but he continued to talk angrily. The offender then dragged the complainant across the bed and pushed her head close to his penis. He tried to slap her twice but was blocked by the complainant. She fell off the bed, hurting her head. The offender continued to demand oral sex. He pinned her down on the bed and yelled, ‘You need to suck me off, it’s not about love or intimacy’. The complainant, crying, pleaded for him to let her go and the offender replied ‘What can you do about it?’ The offender then became upset and the complainant called the police.

Decision and Reasoning: These offences were objectively serious. The assault lasted almost an hour and included physical and mental abuse. Robinson AJ noted, ‘I take into account the fact that prior sexual relationship is relevant in assessing the seriousness of sexual assault. Here it is not a sexual assault by an unknown stranger which would give rise to extreme terror in the mind of the complainant’ (See [8]). His Honour also took into account a number of subjective circumstances. There had been some measure of reconciliation between the offender and the complainant. While these events were not an isolated incident of abuse and this mitigated the leniency that could otherwise have been shown in this case, the offender had taken opportunities to assist himself and took responsibility for his offending (See [9]-[14]).

In sum, His Honour noted: ‘I have come to the view that only a sentence of imprisonment is appropriate to the level of offending in this case. There is a need to punish this offending and to send a clear message by way of general deterrence to others that participation in sexual behaviour is a matter of choice not subjugation. I have also determined to deal with the offending as if it were only one transaction and impose concurrent sentences’ at [15]. The offender was sentenced to one year and nine months on the charge of unlawful assault and seven months imprisonment for an act of indecency. These sentences were wholly suspended upon the offender entering a good behaviour order for three years.

R v Stanley [2015] ACTSC 322 (12 October 2015) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Damaging property’ – ‘Deterrence’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Risk factor- strangulation’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Totality’ – ‘Victim impact statement’

Charges: Assault occasioning actual bodily harm (two counts), damaging property, engaging in sexual intercourse without consent (two counts)

Proceeding: Sentencing

Facts: The offender and the victim were in a relationship. After drinking three bottles of wine one night, the offender smashed a bottle and jar because ‘he was angry’. The victim decided to stay at her mother’s house and that it was best to take the offender’s car keys. When she went to get them, the offender grabbed her by her hair, threw her to the ground, stood over her, stomped on her face and chest and punched her a number of times. During the attack, the offender told the victim ‘This is what you get for lying to me’ and threatened to kill her. He then put his hands around her neck and tried to strangle her (count 1). When the victim tried to phone someone for help, the offender snapped her mobile in half (count 2). About 15 minutes after the initial attack had ended, the offender grabbed the victim by the back of her neck, smashed a mug over her head and hit her multiple times with the smashed mug. After the mug broke, he went to get another mug and again hit her, causing a large laceration to the victim’s head (count 3). After the victim had a shower, the offender told her ‘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.’ He then put his penis into the victim’s mouth despite her resisting and turning her head away (count 4) and forced her legs apart and had sexual intercourse with her (count 5).

The next morning the offender asked the victim what had happened. When she told him and asked to be taken to the hospital, he refused until later that day. The offender later apologised to the victim and told her, ‘If you tell the police then we will not see each other again’.

In relation to this conduct the offender was charged and pleaded guilty to two counts of assault occasioning actual bodily harm (counts 1 and 3), one count of damaging property (count 2) and two counts of engaging in sexual intercourse without consent (counts 4 and 5).

Issue: What sentence the offender should receive.

Decision and reasoning: Refshauge ACJ began his judgement by emphasising the seriousness of domestic violence and the considerations relevant to sentencing offenders: ‘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. 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. 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. 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’ ([1]-[4]).

The offender had a long history of alcohol abuse and alcohol related violence. He had previously been convicted of a violent assault on his previous partner, two offences of drink driving and driving while disqualified. While in custody, the offender completed the SMART Recovery Program and First Steps to Anger Management Program to address his alcohol abuse and violence. He also accepted that he had an alcohol problem and expressed remorse about the offending and its impact on the victim.

References about the offender were provided by his employer (he was employed as a wards person in a hospital), his brother-in-law and his pastor. All three references described him as a respectful and caring person of good character. His brother-in-law and pastor also commented on the positive changes the offender made while in custody. He developed his faith in God, was obedient and respectful of authority, enjoyed the education and rehabilitation programs available and was very remorseful about his conduct in harming the victim. The victim also prepared a victim impact statement in which she expressed her continued serious emotional trauma and its impact on all areas of her life including friends, family, work and finances.

The offending was very serious with the whole of the events constituting 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’ ([70]). The facts the assaults occurred in the context of a domestic relationship and the victim suffered injuries were aggravating factors. The circumstances in which the property was damaged also made the offence more serious: ‘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’ ([67]). The sexual assaults violated the victim’s integrity and were a serious intrusion into her personal life despite occurring in the context of a domestic relationship.

In sentencing, Refshauge ACJ emphasised the need for special and general deterrence to denounce the offences committed by the offender. While the offender had taken positive steps in rehabilitation, this could not overbear the other purposes of sentencing. Rather, it was taken into account in setting the non-parole period. The seriousness of the offending meant that imprisonment was the only appropriate sentence. After considering the principle of totality and ensuring the offender was not punished twice, Refshauge ACJ sentenced him to a total sentence of six years’ imprisonment, backdated for the time already spent in custody. A non-parole period of three years and three months was also ordered. The total sentence comprised of:

•

Count 1: one year and eight months’ imprisonment;

•

Count 2: one year imprisonment, cumulative as to four months on the sentence for count 1;

•

Count 3: two years imprisonment, cumulative as to one year on the sentence for count 2;

•

Count 4: three years imprisonment, cumulative as to one year and three months on the sentence for count 3;

•

Count 5: three years and six months imprisonment, cumulative as to one year and nine months on the sentence for count 4.

Alchin v McInerney [2015] ACTSC 300 (25 September 2015) – Australian Capital Territory Supreme Court

*Note: this case referenced now superseded legislation, however the statements of principle are unaffected by the legislation change.

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Following harassing, monitoring’ – ‘Protection order’ – ‘Sentencing’

Charge/s: Breach of a domestic violence order.

Appeal type: Appeal against sentence.

Facts: The appellant had been in an ‘off and on relationship’ with the female victim for 10 years. A Domestic Violence Order was made in favour of the victim against the appellant. Subsequently, one evening between 9.13pm and 10.04pm, the appellant made 10 telephone calls to the victim. He left one message saying: ‘You wait cunt. Your house is smashed and that fucking cunt you’re rooting. I am going to kill that cunt’. The appellant pleaded guilty at the first reasonable opportunity to the breach and was sentenced to a period of imprisonment of 22 months with a non-parole period of 15 months.

Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The offence was very serious but the objective circumstances did not warrant a term of imprisonment of 22 months. As per Robinson AJ: ‘Significantly, there was no face to face confrontation, no infringement of the prohibition to be on the property of or within 100 metres of Ms BC and no weapon was involved. Ms BC did not answer the telephone calls’. His Honour referred to R v Loulanting [2015] ACTSC 172 as being a factually similar case. His Honour acknowledged that compliance with any type of protection order is essential to protect members of the community from violence and anti-social behaviour. It is therefore open to the Court to impose a stern penalty to achieve this end. However, the punishment must still be proportionate to the offending and here this could not be said to be the case (See [25]-[26], [32]-[35]).

The appellant was re-sentenced to 14 months imprisonment. Robinson AJ stated: ‘In my view substantial weight should be accorded, in the circumstances of this case, to deterring the offender and others from committing the same offence. His conduct was a defiance of the orders of the Court. This was by no means the first such defiance. There is value in our society upholding all orders of Courts. There could be said to be even more value in upholding protection orders in the context of the role that protection orders now play in our society in all jurisdictions’ at [54].

McClung v Vince [2015] ACTSC 255 (27 August 2015) – Australian Capital Territory Supreme Court

‘Common assault’ – ‘Damage to property’ – ‘Damaging property’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’

Charge/s: Common assault, damage to property.

Appeal type: Appeal against sentence.

Facts: The appellant and his former female partner had four children together. They separated two months prior to the offending but the appellant had been staying at the family home for a week prior to the offences. On 6 November 2014 at about 11pm, the appellant banged on his former partner’s window demanding she wake up. She let him in and went back to bed (where her 5 year old daughter was sleeping). The appellant went to the bedroom and punched a hole in the door. He started yelling and abusing his former partner. Despite the cries of the 5 year old daughter to stop, the appellant restrained his former partner and started hitting her. He woke up the couple’s 3 year old son. The appellant then hit the bedroom door several more times and started yelling again. The couple’s 13 year old daughter called the police. The appellant was sentenced to 12 months imprisonment for common assault and 6 months imprisonment for damage to property, suspended after 8 months. The appellant had previously been convicted for offences of assault against his former partner in 2006 and 2012. These offences were also committed under the influence of alcohol.

Issue/s: The sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. First, the sentencing magistrate did not fail to consider the possibility of part of the sentence being served by way of periodic detention. Second, although counsel submitted that the appellant had been compliant with bail conditions imposed in 2014 (namely, sobriety), the magistrate was entitled not to place any great weight on this consideration. This was particularly so given that the appellant had assaulted his former partner before under the influence of alcohol. Finally, counsel for the appellant submitted that previous assaults had been dealt with by a non-custodial sentence and to impose a sentence of full-time imprisonment for at least 8 months was an oversized incremental step. Robinson AJ stated: ‘The argument regarding the oversized incremental step is answered by the proposition that the courts dealing with the earlier assaults allowed leniency (perhaps too much) in a desire to rehabilitate the appellant. Further there is no sentencing principle that requires courts to impose sentences incrementally according to some upward scale’ (See [18]).

R v Guy [2015] ACTSC 237 (5 August 2015) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Assault occasioning actual bodily harm’ – ‘Breach of good behaviour order’ – ‘Childhood disadvantage’ – ‘Damaging property’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Rehabilitation’ – ‘Risk factor- strangulation’ – ‘Sentencing’

Charges: Damaging property, assault, assault occasioning actual bodily harm

Proceeding: Resentencing

Facts: The offender was charged and pleaded guilty to damaging property for breaking a window in his partner’s house. He was convicted and sentenced to one month’s imprisonment. This conviction breached a good behaviour order that was made after he was convicted for assaulting his partner. He was sentenced to six months’ imprisonment, wholly suspended upon complying with a good behaviour order for two years. The good behaviour order was cancelled as a result of the breach and the six months’ suspended sentence was imposed, but was ordered to be served concurrently with another term of imprisonment. The offender successfully appealed this sentence. A sentence of six months’ imprisonment wholly suspended on the condition of a 12-month good behaviour order was imposed on appeal. A good behaviour order for the offence of damaging property was also made.

The offender was subsequently convicted of traffic offences, constituting a breach of both good behaviour orders. As a result, the good behaviour bond imposed for the offence of damaging property was extended for a further 12 months. He was also resentenced to six months’ imprisonment on the assault charge, suspended for a period of 12 months on the conditions of a further good behaviour order for 12 months and 80 hours of community service. This effectively increased the length of the good behaviour orders as well as requiring the offender to perform community service work.

The offender again breached these good behaviour bonds when he was convicted of assault occasioning bodily harm. This conviction arose when the offender choked his partner and threw a chest of drawers that hit her in the head. In relation to this offence, he was sentenced to 18 months’ imprisonment, suspended after nine months with a good behaviour order for two years thereafter.

Issue: How should the offender be resentenced for the final breach of the two good behaviour orders?

Decision and reasoning:

The offender suffered a difficult childhood in which he was sexually abused and had great difficulties in school as a result of having ADHD and dyslexia. After leaving school at 14, he was homeless for many years. He also had a long history of drug and alcohol abuse. The offender also suffered from various mental illnesses, including major depressive disorder, borderline personality disorder and antisocial personality traits, for which he was receiving treatment. He had a long criminal history with 122 offences on his criminal record. This reduced towards the time of offending in question and suggested his criminality was abating.

The final breach of the good behaviour orders was serious when considering ‘the offence was a family violence offence committed on a complainant who had been the victim of earlier offences of a similar type committed by [the offender], for which the current Good Behaviour Orders owe their genesis’ ([37]). However, there was a need to take into account the offender’s mental health. Refshauge J considered that ‘the option for rehabilitation can be given greater prominence without minimising the need for some level of special and general deterrence’ ([38]).

Refshauge J cancelled the good behaviour orders in accordance with s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). The conviction of assault occasioning actual bodily harm was confirmed. The offender was convicted to six months’ imprisonment, wholly suspended for a period of two years. A good behaviour order was made for two years with the conditions that the offender would be supervised, must complete 180 hours of community service, and must participate in the Detention Exit Community Mental Health Outreach Program for three months. The conviction for damaging property was also confirmed and the offender was sentenced to one month’s imprisonment, taking into account the time already spent in custody.

Refshauge J concluded by telling the offender, ‘If you are genuine in your efforts, the Court will support you in this, as I hope I have shown you, but if you are not, then you can expect further custodial sentences and a revolving door’ ([57]).

For Refshauge J’s previous decision on appeal, see Guy v Anderson (No 2) [2013] ACTSC 245.

R v McLaughlin [2015] ACTSC 201 (16 July 2015) – Australian Capital Territory Supreme Court

‘Animal abuse’ – ‘Assault’ – ‘Contravening a protection order’ – ‘Exposing children’ – ‘Moral culpability’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’ – ‘Victim impact statement’

Charges: Common assault, assault occasioning actual bodily harm, contravening a protection order, resisting a public official

Proceeding: Sentencing

Facts: When the offender returned home he tripped after his dogs walked in front of him. In front of his wife (the victim) and children, the offender became angry and started kicking the dogs. After the victim asked him to calm and stop hurting the animals, the offender punched her in the stomach (count 1). Approximately 10 minutes later when they were discussing the punch, the victim said ‘You grew up watching your dad hit your mum and now you think it’s okay to hit me too’. In response, the offender punched her again to the back of her head, causing her to fall to the ground. He then punched her twice more, kicked her in the head five times and stomped on her head. As a result, the victim suffered a large cut to her forehead requiring seven stitches and a bloody nose (count 2). Both children were present during this assault. When the offender was arrested by police he became aggressive, spat at one of the officers (count 3) and resisted the arrest (count 4). Approximately 3 months later a domestic violence order was made against the offender restraining him from engaging in conduct that constitutes domestic violence to the victim, including offensive, harassing or threatening conduct. The offender subsequently had an argument with the victim where he was abusive and threatening towards her (count 5). When someone attempted to intervene, the offender threatened to kick him. At the time this offence took place the offender was on bail for the previous 4 offences.

In relation to this conduct, the offender was charged and pleaded guilty to two counts of common assault (counts 1 and 3), one count of assault occasioning actual bodily harm (count 2), one count of resisting a public official (count 4) and one count of contravening a protection order (count 5).

Issue: What sentence should be imposed.

Decision and reasoning:

In assessing the objective seriousness of the offences, Burns J took into account that the offender was significantly larger than the victim, that the offences occurred in the context of a domestic relationship and that the children were present during the attack. Burns J considered the offender’s conduct to be ‘cowardly, shameful and rightly characterised as criminal’ ([7]). A victim impact statement was also prepared by the victim, explaining the trauma and anxiety the offences caused her and the children. Burns J noted that ‘As is so often the case in domestic violence offences, the long term burden of your violence will not only be felt by your wife, but also by your children’.

The offender’s childhood was marred by exposure to domestic violence and he ‘was disappointed in [his] actions and how [he] exposed [his] children to that type of domestic violence, which [he] despised as a child’ ([22]). He had secure employment to return to after being released from custody. The offender had a history of drug and alcohol abuse and mental health issues including suffering from posttraumatic stress disorder. Due to these concerns, he was assessed as being at moderate risk of reoffending. However, Burns J noted that the offender had been attending numerous rehabilitation programs for his alcohol and drug abuse and was receiving treatment for his mental health issues. Expert psychologist reports noted that the offender’s behaviour was ‘strongly influenced by [his] background of mental health issues arising out of [his] traumatic childhood, particularly [his] ongoing complex post traumatic stress disorder’ and that he was unable to make calm or rational choices at the time of offending ([32]).

The offender demonstrated a degree of remorse in his statements to psychologists and his guilty pleas. Therefore, the sentence was reduced by 25 per cent as a result of these early pleas. The offender’s mental illness was causally connected to his offending and to his abuse of alcohol. It also impaired his mental functioning at the time of the offences and reduced his moral culpability by impairing his ability to exercise appropriate judgement and make calm and rational choices. Full time imprisonment would have a deleterious effect on his mental health and prospects of rehabilitation. Burns J concluded that the need for general and specific deterrence should be moderate in light of the offender’s reduced culpability as a result of his mental illness.

Burns J convicted and sentenced the offender to:

•

Count 2: Nine months’ imprisonment to be served by way of periodic detention;

•

Count 5: Three months’ imprisonment concurrent with the sentence for count 2, suspended after 13 days on the condition of complying with a good behaviour order for 18 months;

•

Count 1: Good behaviour order for a period of nine months;

•

Count 3: Fine of $600.00; and

•

Count 4: Good behaviour order for three months.

R v Ross [2015] ACTSC 22 (1 July 2015) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Bail’ – ‘Burglary’ – ‘Choking’ – ‘Exceptional circumstances’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation’

Charges: Assault occasioning actual bodily harm, burglary and choking a person so as to render them insensible or unconscious

Proceeding: Bail

Facts: While on bail for previous offending, the accused allegedly entered his ex-partner’s (the victim) home and attacked her, placing his hand around her neck and squeezing until she felt light headed. At the time these offences were committed, the accused was subject to a protection order in favour of the victim. The breach of this order was a serious offence for the purposes of the Bail Act 1992 (ACT) (the Act) and therefore the presumption against bail did not apply to the accused. In order for bail to be granted, the court must have been satisfied that there were special and exceptional circumstances favouring the grant of bail under s 9D(2) of the Act.

Issue: Whether bail should be granted.

Decision and reasoning: Bail was not granted. The charge of contravening a protection order was ultimately withdrawn because of procedural issues relating to service. However, s 9D of the Act still applies where a person is on bail for a serious offence of which offence that person is acquitted. Therefore, the fact that the charge was withdrawn did not amount to special and exceptional circumstances in favour of granting bail. The accused allegedly committed very serious offences of family violence. He had a history of offending, having previously been convicted of two offences of assault occasioning actual bodily harm, four offences of assault, two offences of contravention of a protection order, numerous traffic offences including drink-driving offences and fives offences of failing to appear in accordance with a bail undertaking. He had also shown an unwillingness to obey and disrespect of court orders. Given the accused’s history and the real risk that he would not attend trial and reoffend, bail should not have been granted even if there were special and exceptional circumstances in favour of granting bail.

R v Loulanting [2015] ACTSC 172 (23 June 2015) – Australian Capital Territory Supreme Court

‘Breach of a protection order’ – ‘Drug and alcohol programs’ – ‘Following harassing, monitoring’ – ‘People affected by substance misuse’ – ‘Sentencing’ – ‘Threat to kill’

Charge/s: Threat to kill, breach of a protection order x 2.

Hearing: Sentencing hearing.

Facts: The offender was charged with and pleaded guilty to 2 counts of breaching a protection order (where the protected person was his former female partner) and making threats to kill. On 18 January 2015, the offender contacted the protected person, asking to see his son. She refused because he had been using ice and was acting aggressive and demanding. The offender then sent her a number of text messages that were indecent, offensive and aggressive. The protected person ignored these messages as he had sent similar messages in the past. However, the next day, the offender called again and left a voice mail and text messages threatening to kill her.

Decision and Reasoning: The offender was sentenced to a total sentence of 4 years imprisonment, including 12 months imprisonment for the breaches of the protection order and 2 years and 6 months imprisonment for the threat to kill. This sentence was appropriate in light of a number of factors. The offences required punishment and denunciation, and considerations of general and specific deterrence were also significant. Refshauge J accepted that the offender genuinely sought rehabilitation but noted that agencies the offender had been referred to in the past had had no significant impact on his behaviour. His Honour took into account the plea of guilty, the offender’s mental health and accepted that the offender felt remorseful (See [44]-[48]).

His Honour further took into account the seriousness of the offences, which were particularly concerning as they were committed in the context of family violence. First, the threat to kill was serious. The use of ice, earlier harassment and changed tone from the earlier conversation all showed the serious intent of the offender and the fear that this threat was likely to have had engendered in the victim. The fact that this offence was brought on by the use of ice was not a mitigating factor but Refshauge J took into the offender’s desire for rehabilitation and the, so far unsuccessful, attempts he had made at rehabilitation. The denial of access to his son also provided explanation for the offence but was not a mitigating factor in any way (See [37]-[40]). Second, the breaches of the protection order were also serious, albeit less serious than the threat to kill. The breaches were deliberate and intentional. While they were not the most serious versions of the offence, they were not made by personal approach, they were still serious as the contact was made over two days and was abusive and indecent (See [41]-[42]).

Refshauge J stated:

There is no doubt that the addiction to drugs creates significant problems for the community, as well as for the user and his or her family. When the drug is methylamphetamine, or ice, the violence that it also generates can create further problems, particularly if there are stressed family situations leading to family violence. When mental health issues are added to the situation, it creates great complexity in trying to deal with the multiple issues that arise (See [1]).

R v Peadon [2015] ACTSC 132 (14 May 2015) – Australian Capital Territory Supreme Court

‘Aggravating factor’ – ‘Burglary’ – ‘Common assault’ – ‘Community views’ – ‘Drug and alcohol programs’ – ‘Mitigating factors’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Recklessly inflicting grievous bodily harm’ – ‘Rehabilitation’

Charge/s: Recklessly inflicting grievous bodily harm, burglary x 2, common assault x 2.

Hearing: Sentencing hearing.

Facts: On two occasions on one evening, the offender attended the residence of his former partner. On the first occasion, the offender entered through a window and engaged in a physical confrontation with his former partner’s boyfriend. The offender then left the premises. He returned later in the evening and picked up a knife from the kitchen. The offender started a physical confrontation with his former partner’s boyfriend. To protect himself, the victim placed his hand on the blade of the knife and sustained a serious injury to his hand.

Decision and Reasoning: On the burglary charges, the offender was sentenced to 12 months imprisonment and 16 months imprisonment, with the balance suspended and a good behaviour order imposed. On the charge of recklessly inflicting grievous bodily harm, the offender was sentenced to 15 months imprisonment, wholly suspended upon entering into a good behaviour order. In imposing this sentence, Burns J took into a number of considerations that warranted greater punishment. His Honour noted that, ‘these offences [were] family violence offences and as such must be treated very seriously by [the] Court. [The] community views with great abhorrence the infliction of violence by people in family relationships’. It was also significant that the offences occurred in the victim’s own home. In mitigation, Burns J took into account the offender’s plea of guilty, the steps taken by the offender to address his alcohol abuse (which was a significant factor in all his offending), his remorse and general prospects for rehabilitation.

LE v SX [2015] ACTSC 79 (11 May 2015) – Australian Capital Territory Supreme Court

‘Application for a domestic violence order’ – ‘Domestic and family abuse in the context of family law proceedings’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Systems abuse’

Order sought: Application for a domestic violence order (DVO).

Appeal type: Application for extension of time in which to bring an appeal from the decision of the Magistrates Court dismissing an application for a domestic violence order.

Facts: On 25 February 2014, the applicant applied for a DVO against her former male partner. Both parties were represented. The transcript of the proceedings extended over some 86 pages. The applicant gave evidence in chief of a number of incidents involving the applicant and her daughter being followed and stared at by the respondent, being grabbed and punched by the respondent, and the respondent sending threatening messages. Of particular relevance to the appeal, the applicant gave evidence of an incident that occurred on 1 December 2010 at the time of the couple’s separation. The applicant thought the respondent was overseas but he appeared in her house and dragged her into the hallway, sat on top of her, and smashed her head onto the floor (‘the December 2010 incident’). The next day the applicant made an application for housing assistance to the Commissioner for Social Housing stating that she was homeless and escaping violence from her partner.

On 27 May 2014, the magistrate found that the principal incidents of which the applicant gave evidence did not occur or did not constitute domestic violence. In particular, the magistrate was satisfied that the respondent was not in Australia on or about 1 December 2010 and he did not return until after the applicant had gone to the Commissioner for Social Housing. Although the applicant had been injured by someone at the time she went to the Commissioner for Social Housing, Her Honour was not satisfied on the balance of probabilities that the respondent caused that injury.

The application for leave to appeal was not filed until 2 January 2015 (a period of 7 months delay). The applicant was prompted to lodge this appeal because of an adverse decision of a judge of the Federal Circuit Court on 18 December 2014. The decision of the Federal Circuit Court related to parental responsibility and living arrangements for the child of the applicant and the respondent. One of the reasons the applicant sought to overturn the decision of the Magistrates Court was that this decision had an impact on the findings and outcome in the Federal Circuit Court decision.

Issue/s: Whether the grounds of appeal have any reasonable prospect of success and whether the extension of time within which to appeal should be granted.

Decision and Reasoning: Mossop Ass J dismissed the application for an extension of time within which to appeal. His Honour accepted that, at least in relation to the December 2010 incident, there was a reasonably arguable ground of appeal based on documentary evidence presented to the Supreme Court on appeal. Essentially, this paperwork demonstrated that there was at least a possibility that the dates originally provided were incorrect and the respondent could have been in the country at the time of the incident (see [82]-[92]).

However, there were other factors telling against the grant of an extension of time: the length of time since the decision; the limited prospects of ultimately obtaining an order even if domestic violence was ultimately established; the interests of SX in not having a long finalised decision reopened; and the availability of protection under the Act if circumstances warrant it. The way in which the Federal Circuit Court relied on the findings and decision reached in the Magistrates Court was a matter of significant concern to the applicant but the correctness of the Federal Circuit Court’s approach and conclusions was a matter to be resolved in that appellate hierarchy (See [112]-[113]).

Note: this case was affirmed on appeal (see LE v SX [2017] ACTCA 34)

McElholum v Hughes [2015] ACTSC 78 (24 April 2015) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Family law proceedings’ – ‘Legal representation’ – ‘Physical violence and harm’ – ‘Safety and protection of victim and witnesses’ – ‘Systems abuse’

Charge/s: Assault.

Appeal type: Appeal against conviction and sentence.

Facts: The appellant and his former partner had commenced family law proceedings relating to parenting orders for their son. The appellant, a solicitor, was self-represented while his former partner (the complainant) was represented by a firm of solicitors and a barrister. While at the Federal Magistrates Court, the appellant knocked on the interview door where his former partner and her counsel (the solicitor, barrister and a law clerk) were conferring. He asked if they had considered his proposal. When he was told they would be another 10-15 minutes, the appellant replied ‘that’s not good enough’. The barrister attempted to close the door with her left wrist but the appellant forced it open and said, ‘who are you?’ in a raised voice. The barrister called security. 30 minutes later she complained of pain in her wrist. The appellant was charged with assault and pleaded not guilty. The magistrate found the charge proved and fined the appellant $100 and ordered the appellant to pay costs of $69, a criminal levy of $50 and a victim’s service levy of $10.

Issue/s: The appellant appealed against his conviction and sentence. The notice of appeal was nearly 70 pages long and contained many convoluted and repetitive grounds of appeal. Two relevant grounds were:

•

The evidence of the witnesses called by the prosecution was tainted by interest or was perjured (appeal against conviction).

•

The magistrate erred in placing significance on the location of the assault namely, the court building (appeal against sentence).

Decision and Reasoning: The appeal against conviction and the appeal against sentence were dismissed. First, one of the grounds in relation to the appeal against conviction was that the evidence given by the barrister, the solicitor, the law clerk and his former partner was tainted because they all had an ulterior motive i.e. to gain advantage in the family law proceedings. Refshauge J held that there was no evidence to support this allegation and stated, ‘the incident was reported to a security officer of the Commonwealth Law Courts promptly, the evidence of the various parties was not identical, usually a matter indicative of truth, because identical recollections of different witnesses, especially as to inessential facts, is often an indication of concoction and it is not explained what benefit [his former partner] would obtain from such a device’. Further, the allegation that the witnesses perjured themselves was unsustainable. The evidence given was corroborated by the CCTV footage and by the evidence of the other parties(See [301]-[323]).

Second, in relation to the appeal against sentence, the magistrate did not err in placing significance on the fact that the assault took place in a court building. Refshauge J stated, ‘while [the appellant] certainly possessed the right to be within the bounds of the court precinct, this is not an unlimited right and does not give him the right to assault other people. A court precinct is a place where people should be able to expect the law to be observed at all times’. Further, His Honour quoted from Grimshaw and Mann [2013] ACTSC 189, ‘intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious’. However, this was not to state that assaults occurring in a private home are not serious (See [372]-[377]).

Note: this case was affirmed on appeal (see McElholum v Hughes [2016] ACTCA 37 (29 September 2016)).

R v Seears [2015] ACTSC 109 (23 April 2015) – Australian Capital Territory Supreme Court

‘Aggravated burglary’ – ‘Assault occasioning actual bodily harm’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Intentionally cause damage to property’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Aggravated burglary (armed and intent to cause harm).

Hearing: Sentencing hearing.

Facts: S left her male partner, the offender, to be in a relationship with another man (the victim). Thereafter, the offender sent many abusive and threatening text messages to S. On the morning of 26 May 2013, the intoxicated appellant drove to the victim’s house, where S was now living. He was carrying a 1.2 metre spirit level and a bag with an angle grinder, cable ties, electrical tape, a kitchen knife and a timber-handled holding knife. The offender used the spirit level to smash the window of the victim’s bedroom, where the victim and S were asleep. The victim asked the offender what he was there for to which the offender replied, ‘You know what I’m here for; I’m going to kill you’ and ‘You’re sleeping with my wife’. He continued to scream at the victim as the victim walked away. The offender then struck the victim with the spirit level on the left arm and left side of his head, causing significant lacerations. S tried to intervene as the offender punched the victim in the face, threatening to kill him. The police were called and the offender removed.

Decision and Reasoning: The offender was sentenced to 3 years and 1 month imprisonment with a non-parole period of 18 months. In imposing this sentence, Murrell CJ took into account a number of considerations. First, the offender had a history of taking the law into his own hands. He was on bail for common assault at the time of the offences and had previously committed offences of common assault. Second, Her Honour took into the offender’s subjective circumstances namely, the offender’s intention to ‘settle down’ by continuing his employment in the building industry and removing himself from his involvement in the Rebels Motorcycle Gang. However, she noted that it was surprising that someone at age 63 had not ‘learnt his lesson from a series of prior similar incidents’. Third, the objective circumstances were of at least moderate seriousness (See [26]-[33]). Finally, Her Honour took into account general sentencing considerations (See [35]-[40]).

R v Saedam [2015] ACTSC 85 (1 April 2015) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Rape’ – ‘Risk of reoffending’ – ‘Sexual and reproductive abuse’ – ‘Theft’ – ‘Views of victims’

Charges: Engaging in sexual intercourse without consent (3 counts), assault, assault with the intent of engaging in sexual intercourse, theft

Proceeding: Bail

Facts: The applicant and his wife (the victim) lived together for some time after migrating to Perth from Syria. While living in Perth, the victim left the applicant and moved into a refuge as a result of domestic violence in the relationship. After the applicant and victim reconciled, they moved to Canberra where their relationship remained volatile. One day the applicant went into the bedroom and had sexual intercourse with the victim, despite her asking him not to, attempting to push him away and crying throughout. Later in the day, the applicant verbally abused the victim and threatened to withdraw his immigration sponsorship of the victim’s family to come to Australia. He then again had intercourse with the victim, who continued to cry but otherwise did not move. The next day, the applicant slapped the victim and dragged her by her hair, rolled her on her back and again had intercourse with her. The victim continued to struggle, hitting the applicant’s chest and pushing him away. The applicant was charged with three counts of engaging in sexual intercourse without consent, one count of assault, one count of assault with the intent of engaging in sexual intercourse and one count of theft. He pleaded not guilty to each charge.

While in custody, the victim visited the applicant every two or three days. She subsequently made a statutory declaration that she was ‘a little tired and confused’ at the time of making her complaint to the police. She sought to change her statement that all sexual intercourse was consented to and that she had been drinking before the assault. The victim wrote a letter to the Court in respect of the bail application, in which she said she did not object to the applicant being granted bail. She also stated that she was not pressured into writing the letter, that the applicant was not harmful to the community, and that as a pregnant woman she did not want her child to grow up knowing their father was in gaol.

Issue: Whether bail should be granted.

Decision and reasoning: Bail was granted on conditions including that his family pay a surety of $5000, he surrender travel documents, he not contact the victim, and that he reside in Perth.

The offences that the applicant was charged with were serious. However, Refshauge J determined he could not assess the strength of the Crown case given the absence of much evidence and the victim’s damaged reputation as evidence because of her apparent retraction of the complaint. The applicant also had a substantial cash surety available to him and proposed to live with his parents. He had no criminal record. His departure from Canberra to Perth immediately after the offences were alleged was an indication of his intention to flee. However, this risk could be mitigated by imposing conditions on bail such as the surrender of travel documents, that he report to police and be prohibited from being at a place of international departure. Refshauge J accepted that the applicant was likely to commit further violent offences against the victim if he had contact with her. However, this could also be mitigated by the applicant living in Perth and on the condition that he not contact the victim. The Crown’s submission that the applicant could intimidate and interfere with witnesses if bail was granted was rejected. The fact the applicant could withdraw his sponsorship of the victim’s family was unlikely to be affected by his bail status. Further, the victim had already retracted her initial complaint, with no evidence from the prosecution that this was a result of intimidation from the application.

R v Elphick (No 2) [2015] ACTSC 23 (1 April 2015) – Australian Capital Territory Supreme Court

‘Breach of personal protection orders’ – ‘Children’ – ‘Damaging property’ – ‘Following, harassing, monitoring’ – ‘People affected by substance misuse’ – ‘Protection order’ – ‘Stalking’ – ‘Threatening to commit arson’ – ‘Victim impact statements’

Charge/s: Threatening to commit arson, stalking, breach of a personal protection order x 2.

Hearing: Sentencing hearing.

Facts: The offences arose out of the breakdown of a relationship between the offender and his former female partner. The relationship ended acrimoniously, particularly in relation to the care and access arrangements relating to the care of the couple’s child. The offender’s former partner obtained Domestic Violence Order against the offender and her parents obtained Personal Violence Protection Orders. Subsequently, the offender and his former partner had an argument over the telephone over the care and access arrangements for their daughter. The offender went over to the house of his former partner’s parents and began shouting and swearing at his former partner. He produced a cigarette lighter and threatened to burn her parent’s car. Further, the offender pleaded guilty to a count of stalking on the basis of 25 phone calls made to his former partner. Most were for relatively short periods and were made at varying hours of the day. Finally, the offender breached the Personal Protection Orders by calling his former partner’s parents on multiple occasions.

Decision and Reasoning: Refshauge J imposed a total sentence of 2 years and 4 months imprisonment, suspended for a period of two years. In imposing this sentence, Refshauge J took into account the purposes of sentencing and in particular, specific deterrence and vindication of the victims (in light of the Victim Impact Statements delivered in court — See [67]-[70]). He also took into account the offender’s plea of guilty and his subjective circumstances (including the offender’s drug problem).

These offences were serious and warranted a term of imprisonment. The offence of arson was serious because the offender produced a cigarette lighter, there was a threat with intent to achieve an objective to which he may otherwise not have been entitled, and it was committed at the home of the victim. The stalking offence was also a serious offence particularly because it was committed with a circumstance of aggravation, namely in the presence of a Domestic Violence Order. Finally, the breaches of Personal Protection Orders were serious because they involved a disregard of a court order designed to protect the subjects of the orders.

R v Thompson [2015] ACTSC 69 (20 March 2015) – Australian Capital Territory Supreme Court

‘Aggravated burglary’ – ‘Emotional and psychological abuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Unlawful confinement’ – ‘Young people’

Charge/s: Aggravated burglary, unlawful confinement, common assault, carry/use a firearm with disregard for own safety or safety of other persons.

Hearing: Sentencing hearing.

Facts: The 26 year old male offender and the 21 year old female complainant commenced a relationship after meeting on an online dating website. Five weeks after their first meeting, the complainant told the offender that she wanted to end the relationship but wished to remain friends. The complainant then went overseas for 2 months. Upon her return, the offender tried to re-commence their relationship but the complainant did not want to. At a meeting between the pair, the offender said the complainant was ‘cruel’, ‘yelled at him’ and ‘humiliated him’. A month later, the complainant was home alone in her apartment. The offender sprung out from behind a door, covered her mouth with a gloved hand and told her not to scream. In his other hand, he was holding a gun. There was a struggle in which the offender tackled the complainant onto the bed and held a gun against her chest. The complainant was confined to the apartment for 3 hours.

Decision and Reasoning: Imprisonment was the only penalty appropriate in the circumstances. These were very serious offences — the complainant was in her own apartment which the offender broke into, he carried a gun, he wore medical gloves, held the gun against the complainant’s chest, and confined the complainant in terrifying circumstances for 3 hours. However, on the balance of probabilities, Robinson AJ found that the offender was suffering from a depressive mental illness on the day of the offence. The moral culpability of the offender was reduced, although not eliminated, by this depressive illness. There was a moderate risk of reoffending but His Honour concluded the offender had very good prospects for rehabilitation in light of the treatment of his mental illness and his new relationship. In the circumstances, it was desirable to give weight to the promotion of the rehabilitation of the offender. Accordingly, the offender, was sentenced to a total effective sentence of 2 years imprisonment, suspended from 9 December 2015.

Note: the convictions in relation to this case were set aside and a retrial was ordered because the trial judge failed to provide a warning about having a support person (see Thompson v The Queen; The Queen v Thompson [2016] ACTCA 12 (6 May 2016).

Hutcheon v West [2015] ACTSC 55 (13 March 2015) – Australian Capital Territory Supreme Court

‘Assault occasioning actual bodily harm’ – ‘Choking’ – ‘Common assault’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Manifestly inadequate’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation’ – ‘Sentencing’

Charges: Choking a person so as to render them unconscious, assault occasioning actual bodily harm, common assault

Appeal type: Crown appeal against sentence

Facts: The respondent and victim were in a domestic relationship for three and a half years and lived together with the complaint’s son. One afternoon the respondent and victim got into a fight that resulted in the respondent striking the victim across her face and placing her in a chokehold. The respondent then placed his knee on the victim’s shoulder. After the victim asked him to stop, he asked ‘You want to die?’. The respondent then placed his hand around the victim’s throat and started squeezing before placing his other hand over her mouth and nose. As a result the victim briefly lost consciousness. Later the same day the respondent grabbed the victim by her hair and began shaking her. Attempting to free herself from the respondent’s grip, she ended up on the ground when the respondent kicked her face, and jumped and stomped on her arm and head. When the respondent realised the victim’s son witnessed the attack he told him ‘I didn’t do anything wrong. Mum’s flipping out’.

In relation to this conduct the respondent was charged and made late guilty pleas to choking a person so as to render that person unconscious, for which he was sentenced to 15 months’ imprisonment; assault occasioning actual bodily harm, for which he was sentenced to 10 months’ imprisonment, with three months to be served cumulatively on the sentence imposed for the offence of choking; and common assault, for which he was sentenced to five months’ imprisonment concurrent with the sentence imposed on the charge of choking. A non-parole period of 12 months was ordered. While the offending occurred, the respondent was on parole for burglary, theft and unauthorised possession of a firearm. The respondent’s parole was subsequently revoked and he was liable to serve the remainder of his sentence. The sentence imposed for the offence of choking was ordered to commence at the expiration of the sentence the respondent was serving as a result of the cancellation of the parole order.

The respondent had an extensive criminal history, having been convicted for approximately 80 criminal offences in the past 20 years. He also had a long history of substance abuse and mental health issues including being previously diagnosed with antisocial and paranoid personality traits. A pre-sentence report noted that the respondent made derogatory comments about the victim and demonstrated minimal victim empathy. The report also considered the respondent was at high risk of reoffending.

Issue: Whether the sentence was manifestly inadequate.

Decision and reasoning: The appeal was allowed on the sentences imposed for the offences of choking and assault occasioning bodily harm. These sentences were set aside and the respondent was resentenced to a term of three years and one month’s imprisonment for the offence of choking and 20 months’ imprisonment for the offence of assault occasioning actual bodily harm.

The starting point of 18 months’ imprisonment adopted by the magistrate before a reduction for the guilty pleas was manifestly inadequate in relation to the choking offence when considering the maximum penalty of 10 years’ imprisonment, the objective circumstances of the offence and the subjective circumstances of the offender. Burns J held that an appropriate starting point was three years and nine months’ imprisonment with a reduction of eight months for the plea of guilty. Likewise, the starting point of 14 months’ imprisonment for the offence of assault occasioning actual bodily harm was also manifestly inadequate. An appropriate starting point when considering the seriousness of the offending was two years’ imprisonment, reduced to 20 months’ imprisonment to reflect the plea of guilty.

In coming to this conclusion, Burns J considered that the seriousness of offences of violence within intimate relationships requires sentences that strongly denounce and deter such offending. Citing Wood CJ in R v Edigarov [2001] NSWCCA 436, ‘such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence’.

R v Eimerl [2015] ACTSC 72 (12 March 2015) – Australian Capital Territory Supreme Court

‘Damaging property’ – ‘Drug and alcohol programs’ – ‘Emotional and psychological abuse’ – ‘Family members’ – ‘Forcible confinement’ – ‘Parent/s’ – ‘People affected by substance misuse’ – ‘Theft’

Charge/s: Forcible confinement, damaging property, theft.

Hearing: Sentencing hearing.

Facts: The offender, who was on parole at the time, confined his mother in her home for 2 hours. During the course of confinement, the offender verbally abused his mother, threatened violence and damage to property, and damaged a heater and a wooden cedar door. The offender’s anger was based on his belief that his parents were communicating with Corrective Services, putting in jeopardy his parole order. His parents were in fact communicating with Corrective Services because they were concerned he had resumed his methamphetamine use. The offender completed a substance misuse program before being paroled in 2013. His initial response to parole supervision was satisfactory — his urinalysis results were negative and he obtained employment. However, at the time of the confinement, he had resumed his methamphetamine use.

Decision and Reasoning: A sentence of 2 years and 1 month imprisonment was imposed. Burns J took into account the circumstances of the offence (it was committed out of anger and a sense of betrayal, it caused a significant degree of fear but no injuries were inflicted). His Honour also noted the guilty plea, the youth of the offender and that rehabilitation was an important consideration (however, this had to be ‘considered guarded’ (see[16])). There was a need for both general and specific deterrence.

His Honour further took into account that this was a family violence matter and stated, ‘that is relevant because the only reason that you were able to commit this offence was because of the relationship of trust that existed between you and the victim. If you had not been a family member who was loved and trusted by your victim you would not have had the opportunity to commit this offence. I also note that the offence occurred in the victim's own home, where she should have been entitled to feel safe’ (See [17]).

R v Brown [2015] ACTSC 65 (5 March 2015) – Australian Capital Territory Supreme Court

‘Coercive control’ – ‘Emotional abuse’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Perjury’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victims as alleged perpetrators’

Charge/s: Perjury.

Proceeding: Sentence.

Facts: The defendant gave false evidence in a bail application involving an allegation of assault that had been made against her ex-partner. It was alleged that her ex-partner assaulted his mother. The defendant’s ex-partner also assaulted her prior to the alleged assault on his mother. A psychologist’s report indicated that the defendant was suffering from ‘a major depressive disorder of moderate severity’ (see at [4]) when she was in a relationship with her partner. The report described the relationship as physically and emotionally abusive which resulted in a gradual deterioration of the defendant’s mental health and reported low self-worth and feeling overwhelmed. Notwithstanding this, she felt that her partner was the only person who she could rely on. The defendant had no prior convictions. She was 18 years old when the offence occurred.

Issue/s: The appropriate sentence to be imposed.

Decision and Reasoning: The defendant was ordered to enter into a good behaviour order for 15 months with conditions that she accept the supervision of ACT Corrective Service and not to associate with her former partner. No conviction was recorded. Burns J noted that this offence, while serious, was at the lower end of the spectrum for offences of this nature. His Honour accepted that her mental illness affected her judgment and also noted the fact she was in a controlling relationship with her ex-partner. The defendant had good prospects of rehabilitation. The offence of perjury is serious and normally results in the recording of a conviction and imprisonment. However, in this case, the mitigating factors including her youth and mental illness meant that rehabilitation, rather than general deterrence were the primary sentencing considerations. His Honour warned the defendant that relationships like those with her ex-partner are characterised by a significant degree of manipulation and that the defendant ought to be aware of the likelihood of her ex-partner to attempt to recommence the relationship using protestations that he has changed and is going to behave in a different way. He urged the defendant to be mature enough to understand that such change is not going to happen.

R v East [2015] ACTSC 54 (16 February 2015) – Australian Capital Territory Supreme Court

‘Common assault’ – ‘Criminal history’ – ‘Forcible confinement’ – ‘Offender’s traumatic childhood’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Forcible confinement, common assault.

Hearing: Sentencing hearing.

Facts: The offender was the complainant’s carer and partner. They had been in an ‘on again off again’ sexual relationship for 3 years and the offender had recently moved back into the complainant’s flat. On 14 October 2013, during an argument, the complainant told the offender to get his belongings and leave the flat. She then attempted to leave herself but the offender grabbed her arms and forced her back into the flat. The complainant made a number of unsuccessful attempts to escape and the offender took her mobile phone. The offender refused to leave. At one stage, he agreed to pack his belongings and asked the complainant for some money. When she refused, he forced her onto the couch. She tried to yell but the offender grabbed her throat, restricting her ability to breathe. After 5 hours, the offender gave the complainant her mobile and left the flat. These offences put the offender in breach of a good behaviour order imposed in respect of an earlier offence of a reckless threat to kill made against the same complainant. That offence involved the heavily intoxicated and distressed offender threatening his partner with a knife, a hammer and a piece of concrete.

Decision and Reasoning: The offender was sentenced to 22 months imprisonment, with a non-parole period of 10 months. Penfold J took into account a number of factors in imposing this sentence. In determining the charged offences to be of mid-range seriousness, His Honour noted that in some cases being confined in one’s own home by a partner might be less frightening than being confined in a strange place by a stranger (depending on past experiences with the partner); during confinement, the offender was physically violent to the complainant; the offender was on conditional liberty at the time of the offence; the domestic relationship put the parties into a position of trust and, to an extent, the offender abused this trust (however, the offender’s role as a carer did not mean that the offence involved any extra abuse of a position of trust because the complainant was 14 years older and the offender had a very disturbed upbringing); the offences had a distressing and more than short-term effect on the complainant; and the offender accepted responsibility for his actions (See [13]-[14]).

Penfold J also took into account the subjective circumstances of the offender. He did not seem to have any tendency towards criminal behaviour except in the context of this relationship. However, His Honour noted that ‘much of violent crime committed within domestic relationships is committed by men who otherwise live entirely within the law’. Further, the offender had a very disturbed upbringing. His mother suffered with severe mental illness and schizophrenia and would alternate between being a loving mother to being emotionally and physically abusive towards her children. He witnessed his mother kill herself when he was 8 when she set herself alight. The offender was then raised by his adoptive father, who would drink heavily to cope and belt the children (See [15]-[17]). The relationship between the offender and the complainant was ‘toxic’ and characterised by substance abuse and conflict (See [18]-[22]). Penfold J also took into account general and specific deterrence, the offender’s guilty plea and the offender’s acceptance of counselling.

R v BJ [2015] ACTSC 47 (4 February 2015) – Australian Capital Territory Supreme Court

‘Breach of a good behaviour order’ – ‘Emotional and psychological abuse’ – ‘Perpetrator programs’ – ‘Young people’

Hearing: Breach of 12 month good behaviour order.

Facts: In February 2014, BJ was sentenced for burglary, minor theft and common assault. These charges arose out of the breakdown of a relationship between BJ, then aged 17, and the female complainant. He was sentenced to a 12 month good behaviour order, including a condition that he undertake the Cognitive Self-Change Program. Nearly 5 months after BJ was sentenced, he began another serious of offences against another ex-partner. These offences involved: taking his ex-partner’s car keys, damaging her car and stealing the car; using a false Facebook identity to taunt her with pictures of the car hidden in a forest; attempting to get her (alone) to meet him in the forest; further damaging the car; and making a series of harassing phone calls to his ex-partner. He was sentenced to a term of imprisonment for these offences, 3 months served in full time custody and 6 months suspended subject to a 24 month good behaviour order. The matter was referred to Penfold J here to deal with the breach of the earlier imposed good behaviour order.

Issue/s: Whether further action is warranted in light of BJ’s breach of a good behaviour order.

Decision and Reasoning: Penfold J noted that he was incorrect in his 2014 sentencing remarks and BJ did in fact have a tendency to behave inappropriately in the context of failed intimate relationships. He noted that this behaviour needed to be addressed as early as possible. Penfold J imposed a new good behaviour order for 2 years subject to the following conditions: accept the supervision of ACT Corrective Services and obey all reasonable directions, under take counselling courses, programs or treatments, and undertake either one or both of a Men’s Cognitive Self-Change Program and a Family Violence Cognitive Self-Change Program.

R v Mazaydeh [2014] ACTSC 325 (13 November 2014) – Australian Capital Territory Supreme Court

‘Animal abuse’ – ‘Assault occasioning actual bodily harm’ – ‘Common assault’ – ‘Denunciation’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Perpetrator programs’ – ‘Physical violence and harm’ – ‘Threatening to cause damage to the complainant’s property’ – ‘Victim impact’

Charge/s: Assault occasioning actual bodily harm, common assault x 3, threatening to cause damage to the complainant’s property.

Hearing: Sentencing hearing.

Facts: The offender was a friend and former partner of the female complainant. The offender became jealous when the complainant received a phone call because he suspected it was from another man. The complainant asked the offender to leave her apartment. He refused. He pushed and attempted to choke the complainant and held a knife to the throat of her cat. The assaults were accompanied by verbal abuse and abusive text messaging. The offender also rifled through the victim’s belongings and demanded her phone. The incident lasted about 15 minutes.

Decision and Reasoning: The offender was sentenced to a good behaviour order for 3 years and fined $1750. In terms of the objective seriousness of the offending, Murrell CJ noted that the conduct constituting the assault occasioning bodily harm was extremely serious. It was a very forceful and frightening assault that involved the offender taking hold of the victim’s throat. The actual bodily harm that resulted was at the lower end of the spectrum but the incident had a considerable psychological impact. The other offences were less serious. The incident, while not fleeting, was relatively short. It was not only frightening but designed to humiliate. It occurred within the victim’s home, in circumstances where she had asked him to leave.

Further, this was an incident of domestic violence. Her Honour noted:

‘These offences occurred in the context of a previous relationship between the offender and the victim and involved violence within the victim's home, an apparent sense of entitlement on the part of the offender, and humiliation through verbal and text abuse of the victim.

The sentencing purposes of punishment, general deterrence and denunciation are very important, as well as the recognition of harm to the victim personally and the community generally through offences of this nature. The victim provided a victim impact statement in which she referred to impacts upon her of the type that frequently result from offences of domestic violence, including feelings of anxiety, difficulty sleeping, difficulty concentrating at work and elsewhere, and an adverse effect on her ability to form relationships. Since the incident, the victim has moved house because she felt unsafe in the apartment where the offence occurred’ (See [15]-[16]).

Her Honour also took into account the subjective circumstances of the offender including that the offender had been assessed as being at low risk of re-offending, he was employed, is a member of a close and supportive family and has no problems with drug dependence or mental health. However, Murrell CJ further noted that the offender lacked insight into the seriousness of his conduct and the impact on the victim. Although this was probably a one-off incident, Her Honour considered that it would be of assistance to the offender to undertake courses that may guide him towards greater insight and maturity in relation to interpersonal relationships.

R v Ennis [2014] ACTSC 369 (4 November 2014) – Australian Capital Territory Supreme Court

‘Anger management programs’ – ‘Assault occasioning actual bodily harm’ – ‘Drug and alcohol programs’ – ‘Good behaviour order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’

Hearing: Breach of community service condition to a good behaviour order.

Facts: In 2012, Mr Ennis was convicted for assault occasioning actual bodily harm. Mr Ennis and his female partner, who had been together for 27 years, were both drunk and fought ‘over money’. During this argument, Mr Ennis caused his partner to suffer a fracture to the left forearm and a laceration to the outside of her lower leg. Mr Ennis had a long history of cannabis and alcohol abuse. He claimed that this alcohol abuse led to his criminality. The sentencing judge made a good behaviour order for 2 years, with a condition that Mr Ennis perform 100 hours of community service within 12 months. Mr Ennis breached this order by failing to complete the community service work conditions. He submitted that the breach was the result of his alcohol abuse.

Issue/s: Whether further action is warranted in light of Mr Ennis’ breach of a good behaviour order.

Decision and Reasoning: The order was amended by extending the good behaviour period to a further 12 months, extending the number of hours of community service work to 108 hours to be completed in 12 months, and requiring Mr Ennis to be subject supervision by the Director-General. In imposing this sentence, Refshauge J noted that while Mr Ennis’ breach was unsurprising in light of his alcohol abuse, this did not provide an excuse for his behaviour (See [16]). In favour of Mr Ennis, it was significant that he had not committed any offences in the two years since the order was made. His Honour noted, ‘This is a very important matter, for that is the fundamental objective of the criminal law, namely, as Brennan J described it in Channon v The Queen (1978) 33 FLR 433 at 437, the protection of society which is achieved by the prevention of crime and the eradication of recidivism’ (See [21]).

Further, Mr Ennis had taken steps towards rehabilitation namely, enrolling in a number of programs including drug and alcohol counselling, a Men and Anger Program and an Employment Pathway Plan (See [23]-[27]). Mr Ennis’ partner was also addressing her alcohol abuse and they were both accessing counselling at relationships Australia (See [28]). However, Refshauge J remained sceptical in his assessment of this reform and nevertheless extended the good behaviour order (See [30]-[33]).

His Honour noted: Despite the considerable contribution that illicit drug use makes to criminality in the community, alcohol remains a problem for those addicted to it. Alcohol abuse remains a very significant source of crime and leads the addict to unhealthy and anti-social behaviour and situations (See [1]).

See also R v Ennis [2016] ACTSC 72 (4 April 2016).

Pasa v Bell [2014] ACTSC 303 (30 October 2014) – Australian Capital Territory Supreme Court

‘Assault’ – ‘At the complainant’s home’ – ‘Exposing children’ – ‘General and personal deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Assault.

Appeal type: Appeal against conviction and sentence.

Facts: The appellant pleaded guilty to an offence that he assaulted his former fiance and de facto partner of 2 years (the complainant). The offence occurred about 1 month after the appellant and the complainant had separated in the presence of the complainant, a friend, and the appellant’s young son. The appellant and the complainant argued and the complainant asked him to leave. The garage door hit the appellant on the head as he left and he turned around the pushed the complainant. She fell backwards into the car. The appellant spoke in a threatening manner to the complainant. He pushed her again, kicked her car twice, and left.

Issue/s: One of the grounds of appeal was that the primary judge erred in his assessment of what constituted an aggravating feature of the offence.

Decision and Reasoning: The appeal against conviction and appeal against sentence was dismissed. In relation to the appeal against conviction, the appellant submitted that the mere fact the offence was committed at the home of the victim is not enough to aggravate the offence; there must be some level of intrusion. Murrell CJ noted that a sentencing court must consider all relevant objective and subjective matters. She stated,

‘When considering the sentencing purposes set out in s 7 of the Sentencing Act, including general and personal deterrence, a sentencing court is entitled to consider the fact that an offence involved domestic violence, and that the violence has occurred at the victim’s home. An offence involving domestic violence is one that involves abuse of a partner, former partner or other family member (using the term “family” in the broadest sense). Frequently, such offences occur in the home, where the inhibitions of an offender may be lowered, the impact on the victim may be heightened (as she or he is made to feel that a formerly safe place has been violated) and the occurrence of the offence is more readily concealed. Further, where a domestic violence offence occurs in the victim’s home, it is often associated with secondary abuse to other family members’ (See [16]; See also R v Bell [2005] ACTSC 123 [30]-[31]).

Here, the primary judge did not approach the matter on the basis that the ‘mere fact’ that the incident took place at the complainant’s home was an aggravating feature. He considered the location of the offence in the context of other relevant circumstances namely that it occurred at a place where the complainant was entitled to feel safe, it occurred in the presence of the appellant’s son, and the appellant refused to leave.

Reid v Smith [2014] ACTSC 349 (21 October 2014) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Aboriginal and Torres Strait Islander peoples’ – ‘People affected by substance misuse’ – ‘Rehabilitation’ – ‘Sentencing’

Charges: Damaging property, breach of domestic violence order, assault

Appeal type: Appeal against sentence

Facts: The appellant, an Aboriginal man, and the victim were in a relationship and had a son together. The appellant and victim also both had a daughter each from previous relationships. He was charged and convicted of damaging property, assault and breaching a domestic violence order made to protect the victim. No further information about the offending or factual matrix was provided. Since his arrest and while on bail, the appellant attended Oolong House several times where he received rehabilitative treatment. The magistrate sentenced the appellant to 12 months’ imprisonment each for the assault and damaging property offences, to be served concurrently, and two years’ imprisonment for the breach of the domestic violence order. In sentencing, the magistrate stated ‘The current offences continue a pattern of behaviour that appears entrenched in the context of the relationship with the victim. Despite legal sanctions and protection orders, [the appellant] has yet to demonstrate the responsibility to abide by conditions to uphold the safety of vulnerable people in his life. Under the influence of substances his behaviour poses unacceptable risks for such people’ ([5]).

The appellant had a somewhat difficult childhood with his parents divorcing after his father suffered a stroke and his mother abusing alcohol. He finished school at year 10 and had very limited and sporadic employment since then. He had a long history of alcohol and drug abuse and engaged in residential rehabilitation several times. The appellant also suffered depression, stress and anxiety and was housed in the AMC Crisis Support Unit since his remand due to his risk of suicide and/or self-harm. He had an extensive history of criminal offending, including convictions for common assault, assault occasioning actual bodily harm and contravening protection orders against the victim.

Issues: Some grounds of appeal were:

1.

Whether the magistrate failed to take into account the time spent at a rehabilitation centre.

2.

Whether the magistrate failed to give adequate weight to the decision in Bugmy v The Queen [2013] HCA 37 (‘Bugmy’).

Decision and reasoning: The appeal was dismissed.

1.

There is no requirement in sentencing to give credit and discount the sentence for time spent in residential rehabilitation between the commission of an offence and the sentencing for that offence. The magistrate therefore did not err in failing to explicitly take into account the appellant’s successful completion of the Oolong House rehabilitation program.

2.

In Bugmy, the High Court of Australia considered, ‘An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offence may mitigate that offender’s sentence… Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices but to recognise this is to say nothing about a particular Aboriginal offender… An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender ’. While Penfold ACJ acknowledged that the appellant had a ‘somewhat troubled background’, she did not consider that a failure to give adequate weight to a particular consideration was a sufficient ground to evoke the court’s appellant jurisdiction, relying on R v Ang [2014] ACTCA 17, [22]-[24].

Hossen v Hughes [2014] ACTSC 101 (21 May 2014) – Australian Capital Territory Supreme Court

‘Aggravating and mitigating factors’ – ‘Assault’ – ‘Exposing children’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge: Assault

Appeal type: Appeal against sentence

Facts: The appellant, his wife (the complainant) and their children moved to Canberra in order for him to complete a PhD. After their daughter complained that she did not like the lunch the complainant was preparing, the complainant struck the daughter’s hip with a plastic doll to ‘chastise her for her behaviour’. The appellant became angry at the complainant’s actions and slapped her. When questioned by police, the appellant said ‘I do not think I did anything wrong. In my culture, I did not do anything wrong’. He pleaded guilty to assault at the earliest opportunity and expressed remorse in a letter to the court.

At trial, the appellant was unrepresented but had a Bangladeshi interpreter. A conviction was recorded and the appellant was ordered to sign a good behaviour undertaking for two years. The magistrate noted that ‘cultural differences may be in play here, but I don’t accept them on the basis that you’ve been here for two years, you’ve acknowledged in your own statement to me today that you understand what you did was wrong’.

Issues: Some grounds of appeal were:

1.

The magistrate erred in treating the presence of their daughter as an aggravating factor when the assault of the complainant would not have occurred but for her hitting their daughter;

2.

The magistrate erred in not giving sufficient reasons for refusing a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Act).

Decision and reasoning: The appeal was dismissed and the sentence imposed by the magistrate was confirmed.

1.

In sentencing, the magistrate referred to Refshauge J’s comments in Elson v Ayton [2010] ACTSC 70 to conclude that the presence of their daughter was an aggravating factor and that ‘the courts have no tolerance, or very little tolerance, for people who engage in domestic violence, and certainly in the presence of children’. Counsel for the appellant submitted that the presence of their daughter should not have been an aggravating factor because the complainant’s action in hitting her provoked the appellant’s assault and that this provocation was a mitigating factor. However, Penfold J held that there was nothing in the nature of the assault that meant their daughter’s presence was an inherent part of the objective circumstances of the offence. Further, while the complainant’s conduct in hitting her daughter with a doll may reduce the culpability of the appellant’s assault, it is not properly described as a mitigating factor. Therefore, there was no error in the magistrate’s approach to the presence of their daughter.

2.

The magistrate was obliged to provide an explanation to the appellant for declining to make a non-conviction order. He was unrepresented, inexperienced in the procedures of Australian courts and English was not his first language. The magistrate performed this obligation in explaining that a non-conviction order could not be made due to the nature and circumstances of the offence. However, the magistrate did not allow the appellant to put forward evidence or a proper explanation when he attempted to explain the detriment to his future should a conviction be recorded. Therefore, the magistrate erred in dealing with the appellant’s application for a non-conviction order by failing to give proper consideration to the application, having regard to the particular difficulties faced by the appellant.

Despite this error, the appeal was dismissed because re-sentencing was not appropriate. Having regard to the factors in s 17 of the Act, Penfold J held there were no grounds sufficient to make a non-conviction order. In particular, the appellant’s character, antecedents, age, health and mental condition; the seriousness of the offence; his extenuating circumstances; and the absence of any properly explained or substantiated claim that a conviction would have negative impacts on his future prospects, would not have excluded the making of a non-conviction order.

R v Rogers [2014] ACTSC 124 (1 April 2014) – Australian Capital Territory Supreme Court

‘Assault occasioning actual bodily harm’ – ‘Denunciation’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘History of abuse’ – ‘Late plea’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factor-strangulation’ – ‘Systems abuse’ – ‘Unlawful confinement’

Charges: Unlawful confinement, assault occasioning actual bodily harm (two counts)

Proceeding: Sentencing

Facts: The offender and victim were in a domestic relationship. The victim had a son from a previous relationship. Six months after moving in together, the offender sat on the victim’s stomach, held both arms above her head and tied her wrists to the bed. The offender told the victim, “you’ve hurt my feelings. Now you have to pay. I’m going to take you for a drive to the forest and I’m going to kill you”. He then slapped her across the face several times and stuck a piece of clothing in her mouth. The victim was gagging and choking and believed that she would suffocate. The offender then hit the victim’s thigh with a car aerial and held a lit match to her face, threatening “have you ever played ‘light the match’ game?”. The next day the offender brought the victim flowers and apologised. Several days later the victim woke up to the offender slapping her face. Her son then walked into the room but returned to his bedroom after the offender screamed at him. The victim packed herself and her son into the car to escape after the offender had left. However, the offender returned and parked his car behind the victim’s car. He grabbed the victim’s shoulders, pushed her backwards causing her to hit to head and dragged her into the house. When inside, he grabbed her throat, kicked her, forced her face under a running tap, slapped her and threatened her.

The offender was charged with unlawful confinement and two counts of assault occasioning actual bodily harm. He maintained a plea of not guilty for nearly two years until changing his plea to guilty on the date the trial was to begin.

The offender had a long history of offending including convictions of nine common assaults, assault occasioning actual bodily harm, stalking and two breaches of domestic violence orders. He also had a history of dysfunctional relationships, with many of these convictions resulting from domestic violence. He abused prescription drugs and suffers from Attention Deficit Disorder, depression and bipolar. During one period of excessive drug use, the offender was diagnosed with amphetamine-induced paranoid psychosis. The offender engaged in the methadone program and drug and alcohol counselling to address his substance abuse. He reported that since the offending, he had ceased using drugs or drinking heavily and that he was no longer short-tempered and jumpy.

Issue: What sentence should the offender receive?

Decision and reasoning: Penfold J emphasised the need for general deterrence and denunciation for domestic violence offences. Having regard to the offender’s criminal history and his repeated failures to take advantage of rehabilitative opportunities, rehabilitation was not the highest priority in sentencing. His Honour accepted some concession was needed for the offender’s improved behaviour in the two years since the offending and his continued engagement with mental health services. However, no sentence other than imprisonment was appropriate when considering the gravity of the offending and the effect on the victim and her son.

The offences were all serious examples of the relevant offences. The presence of the victim’s son during the second assault occasioning actual bodily harm aggravated the offence. All the offences were further aggravated by the breach of trust that is ‘inherent is most if not all domestic violence offences, especially those that occur in the privacy of a home shared by the victim and the perpetrator, a circumstance which of itself — that is the sharing of the home — seems to me to establish a mutual relationship of trust’ ([7]).

Penfold J sentenced the offender to a total sentence of 38 months’ imprisonment, suspended after 24 months. This total sentence comprised of 25 months’ imprisonment for the offence of unlawful confinement, 18 months’ imprisonment for the first offence of assault occasioning bodily harm, and 20 months’ imprisonment for the second offence of assault occasioning bodily harm. The first assault occasioning bodily harm sentence was ordered to be accumulated so as to add three months to the unlawful confinement offence and the second assault occasioning bodily harm sentence was ordered to be accumulated so as to add 10 months to the total sentence.

Beniamini v Storman [2014] ACTSC 2 (22 January 2014) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Damaging property’ – ‘Exposing children’ – ‘Intentionally causing damage to property’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’

Charge/s: Intentionally causing damage to property x 2, trespassing without reasonable excuse, assault, minor theft.

Appeal type: Appeal against sentence.

Facts: The appellant was in a relationship with a young woman, the complainant, and they had two children together. The relationship was characterised by ongoing conflict, caused largely by the appellant’s ongoing abuse of alcohol, and subsequently the relationship broke down. Later, the appellant went to the complainant’s house to see the children but she refused to let him in. The appellant damaged the front security door and shouted threats. He was arrested and granted bail for this offence. However, before the proceedings could be resolved, the appellant again went to the complainant’s property, and broke open the front door. The appellant began to strangle the complainant (assault). The complainant’s daughter rang the complainant’s mother who arrived and manage to calm the appellant down. The police arrived and the appellant ran off. On another subsequent occasion, the appellant was charged with minor theft for leaving a petrol station without paying.

The appellant pleaded guilty and was sentenced in the Magistrates Court to: intentionally causing damage to property — fine of $1,500; intentionally causing damage to property — 3 months imprisonment to commence on 1 August 2013; trespassing without reasonable excuse — fine of $500; assault — 17 months imprisonment to commence on 1 September 2013; minor theft — fine of $250. A non-parole period of 12 months was set on the total period of 18 months imprisonment.

Issue/s: One of the grounds of appeal was that the terms of imprisonment imposed, including the non-parole period, were manifestly excessive.

Decision and Reasoning: The sentence for the assault was manifestly excessive, the appeal allowed and the appellant re-sentenced (see R v Beniamini; Beniamini v Storman [2014] ACTSC 40 (22 January 2014)). The offence of assault was serious: it was committed late at night in the complainant’s home; it was an offence in the context of family violence; and the offence was protracted. It was more serious by the fact that the appellant was on conditional liberty at the time, the offence was committed in the presence of children, and the appellant had prior convictions for personal violence (but not family violence).

However, despite the seriousness of the assault, the sentence was manifestly excessive because the magistrate started her calculation of sentence on the basis that this was almost the worst category of the offence (See [119]). Since the time of offences, the appellant had made no further inappropriate contact with the complainant, had managed to resolve issues of access to the children, and had stopped drinking. This was also his first offence of violence in the family context. It was also relevant that the denial of access to his children at the time was arbitrary and not under any court order. He was remorseful and showed insight into his actions (See [94]-[104]).

R v Curtis [2013] ACTSC 291 (16 December 2013) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Assault occasioning bodily harm’ – ‘Drug and alcohol programs’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Young people’

Charge/s: Assault occasioning bodily harm.

Hearing: Sentencing hearing.

Facts: Mr Curtis, an 18 year old Aboriginal man, and the female victim were in a relationship. On 1 June 2013, Mr Curtis became agitated and aggressive towards the victim. He started punching her legs, arms, torso and stomach, causing bruising. When interviewed by police, he said that the victim had wanted him to teach her how to ‘stick up’ for herself and that they were just ‘mucking around’ but he stopped when he thought that what was happening did not ‘feel right’.

Decision and Reasoning: Mr Curtis was sentenced to 12 months imprisonment, suspended for 2 years, and ordered to comply with good behaviour obligations (a probation condition making Mr Curtis subject to the supervision of the Director-General and required to obey all reasonable directions as to counselling or treatment for his mental health and his abuse of alcohol and other drugs). In imposing this sentence, Refshauge J took into account Mr Curtis’ plea of guilty. He also took into account the subjective circumstances of Mr Curtis including his troubled childhood, his relationship with his 20 month old child, his current committed relationship, his use of alcohol and illicit substances, and his history of mental health issues (See [6]-[19]).

Refshauge J also took into account that the offence was serious especially because it was committed in the context of a relationship. His Honour quoted Higgins CJ in R v Bell [2005] ACTSC 123 at [30]: ‘I appreciate that personality disorders may often underlie the criminal behaviour of men who beat women. Alcohol or other substance abuse may sometimes be a triggering factor. Nevertheless, they must take responsibility for their actions and be seen to have done so. The offence is often hidden, so general deterrence is a factor that is quite prominent. So also is specific deterrence. No offender engaging in this kind of behaviour, nor their victims, should feel that it is to be treated lightly. Rather, it must be made the subject of condign punishment. That is not to say, of course, that any mitigatory factors or prospects for rehabilitation will be disregarded’ (See [28]-[32]).

Refshauge J further accepted that the youth of Mr Curtis and his prospects for rehabilitation were very relevant to the sentencing exercise. Per His Honour, ‘for youthful offenders rehabilitation is usually more important than general deterrence, especially when retributive punishment may in fact lead to further offending. A youthful offender should not be sent to an adult prison if it can be avoided’ (See [20]). A lengthy good behaviour order was warranted in light of the need for rehabilitation. In this context, His Honour noted the influence of excessive alcohol on the offending which, although not mitigating the offending, was very relevant to rehabilitation (See 36].

See also R v Curtis (No 2) [2016] ACTSC 34 (26 February 2016).

Roberts v Smorhun [2013] ACTSC 218 (1 November 2013) – Australian Capital Territory Supreme Court

*Note: this case referenced now superseded legislation, however the statements of principle are unaffected by the legislation change.

‘Appeal against sentence’ – ‘Breach of protection order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order’

Charge/s: Contravention of a domestic violence order.

Appeal type: Appeal against sentence.

Facts: The female complainant and the male appellant had been in a relationship for 6-12 months and had lived together until mid-December 2012. After the complainant was granted an interim domestic violence order against the appellant, the appellant telephoned the complainant to meet him at a friend’s place so he could give her the keys back to her place. At this meeting, an argument developed and the appellant started chasing the complainant, yelling abuse. When he caught up to the complainant, he raised his arm as if to punch her, but instead he grabbed the complainant’s sunglasses, snapped them in half and threw them in her face. This caused the complainant injury. The appellant was sentenced to 32 months imprisonment for the charge of contravening a protection order, with no further penalty for the charge of assault occasioning actual bodily harm..

Issue/s: The sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld and the appellant re-sentenced to 23 months imprisonment. Refshauge J noted that there was no doubt that the offending was serious. The fact that the appellant had been convicted of 9 prior offences of the same character against another woman meant that he could be afforded little leniency. However, the sentence was nonetheless disproportionate to the offending conduct.

The prosecution submissions on sentence at first instance referred to the fact this was a family violence offence, referring to dicta of the Alberta Court of Appeal in R v Brown (1992) 73 CCC (3d) that:

When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.[81]

The court noted that this statement had been cited with approval by the Court of Criminal Appeal of the Supreme Court of Tasmania in Parker v R [1994] TASSC 94 (21 July 1994) and in the NSW Court of Criminal Appeal in R v Hamid [2006] NSWCCA 302. [82]

Three features listed by the sentencing judge as aggravating the offence, were not in fact aggravating features. First, while domestic violence orders play a special place in the criminal law’s efforts to prevent domestic violence, His Honour erred in finding that a domestic violence was a feature of aggravation for the offence of contravening a domestic violence order. Second, His Honour also incorrectly found that the fact the offence occurred in public was a circumstance of aggravation in this particular case as there were no people present at the time of offence. His Honour also previously referred to this issue in the case of Grimshaw v Mann [2013] ACTSC 189 at [49]-[51], where he expressed some difficulty with characterising the public nature of an assault as an aggravating feature, as it implies that a private assault is less serious. Finally, the sentencing judge inferred that the broken part of the complainant’s glasses was sharp and this aggravated the offending. However, this conclusion was not supported by the evidence (See [132]-[138]). Further, the sentencing judge did not take into adequately discount the sentence to account for the appellant’s plea of guilty (See [143]).

In dicta, His Honour considered the principles in Pearce v The Queen. The sentencing judge pointed out that the appellant’s assault covered most, if not all, of the conduct prohibited by the protection order, and decided to impose no penalty, other than the conviction, for the assault offence. His justification was that there was no element in the assault offence that had not been encompassed in the offence of contravening the protection order. Refshauge J stated that ‘[i]f that were strictly correct, then the conviction for the offence of contravening the protection order would have resulted in a requirement that there be a verdict of autrefois convict in respect of the offence of assault occasioning actual bodily harm. That would have been the appropriate response if the elements [were] such that the whole of the criminality of offence of assault occasioning actual bodily harm was contained in the offence of contravening the protection order.’ However, as the parties did not argue on this issue, it was unnecessary for His Honour to resolve it on the appeal. The appellant brought the appeal against the sentence on the charge of contravening the protection order. There was no cross-appeal that the sentence for the assault offence was manifestly inadequate, ‘which would be likely if it was thought that there was criminality in that offence separate from the other such that, for example, the plea of autrefois convict would not apply’ ([150]).In any event, Refshauge J concluded that the offence of contravening the protection order did not include any of the fault element of the offence of assault ([151]).

Refshauge J quoted from R v BG (an unreported judgment from December 2010):

Compliance with any sort of protection order is essential for the court in protecting members of the community from violence and other unwanted behaviour. Breaches of protection orders risk the success of the regime from achieving that purpose, especially if they encourage people to think that they can breach with impunity. A severe approach is necessary, consistent with fairness to the accused. Thus, the Court cannot punish beyond what is appropriate to the offence (See [4]).

Khan v Evans [2013] ACTSC 211 (4 October 2013) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Breach of domestic violence order’ – ‘People affected by substance misuse’ – ‘Temporary protection order’

Charge/s: Breaches of an interim protection order x 4, breach of a personal protection order, failure to comply with a bail undertaking to appear in court, common assault x 2.

Appeal type: Appeal against sentence.

Facts: The appellant, an Aboriginal man, had been in a relationship with the female complainant and they had 3 children together. The complainant was granted a personal protection order against the appellant. The appellant breached these orders on 5 occasions by being at the premises of the complainant. The common assault offences occurred when the appellant assaulted his father. The appellant pleaded guilty to 4 breaches of an interim protection order made on 23 July 2012 and breach then of the personal protection order subsequently made on 23 August 2012, a failure to comply with a bail undertaking to appear in court, and 2 offences of common assault. In the Magistrates Court, a total period of imprisonment of 16 months was imposed from 21 March 2013, with a non-parole period of 12 months.

Issue/s: The grounds of appeal were –

•

The sentence was manifestly excessive.

•

The magistrate erred in failing to take into account a period of pre-sentence custody.

•

The good behaviour order for which the appellant was sentenced had been cancelled and could not have been breached by the offences.

Decision and Reasoning: The appeal was upheld on grounds 2 and 3 but not ground 1. The magistrate failed to take into account a period by pre-sentence custody by starting the sentences on 21 March 2013 rather than 23 February 2013. Further, the good behaviour order for which the appellant had been sentenced had previously been cancelled (See [42]-[49]). However, the sentence could not be said to be manifestly excessive. Refshauge J stated,

‘While the offence against Mr Khan’s father could also be described as domestic violence, the fact is that the interim personal protection order and the personal protection orders are there to protect the complainant from what might be described as domestic violence in its widest sense. Therefore, such orders are an important component of the criminal justice system’s response to domestic violence. Breaches of personal protection orders are serious matters which the courts must treat seriously to ensure the integrity of the system which the protection orders are intended to put in to effect’ (See [52]).

Grimshaw v Mann [2013] ACTSC 189 (29 August 2013) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Anger management programs’ – ‘Applications and orders for child residence, contact and parenting orders’ – ‘Common assault’ – ‘Drug and alcohol programs’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Public/private space’ – ‘Victim impact statements’

Charge/s: Common assault.

Appeal type: Appeal against sentence.

Facts: The Aboriginal male appellant was involved in an altercation with his former female partner (the complainant) of 7 years. The relationship ended in 2010 due to the appellant’s use of drug and alcohol, and he had not seen the children since. In May 2012, the appellant moved to Canberra to be closer to his children and commenced proceedings in the Family Court for access rights. On 2 June 2012, outside a late night convenience store, the appellant started arguing with the complainant and struck her three times with a closed fist. She fell to the ground and hit her head. She was helped up by her two friends and threw a glass soft drink bottle at the appellant. She missed but smashed another glass bottle over his head. The appellant needed four stiches. The appellant voluntarily handed himself into the police two days later. The complainant had previously obtained two protection orders against the appellant. Both had expired at the time of offence.

At the sentencing hearing, a lengthy Victim Impact Statement was tendered. However, it contained a good deal of irrelevant and inadmissible material. Refshauge J on appeal stated:

‘Allegations of further serious offending cannot come within the definition of “harm suffered by the victim [as a result of, or in the course of, the commission] of the offence”: s 47 of the Crimes (Sentencing) Act 2005 (ACT). While defence counsel may be wary of exercising their rights to cross-examine a victim on a Victim Impact Statement, discussions with prosecutors should result in an appropriate response from responsible prosecutors about inadmissible material and such statements. Without that proper approach, it is likely that such statements will lose their value and that the courts will have to intervene to ensure that the legislation is respected to ensure inadmissible, and often inflammatory, material is not included in such statements’ (See [41]).

The appellant pleaded guilty to common assault and was sentenced to 10 months imprisonment, three months to be served by full-time custody, three months by periodic detention and the balance suspended and a two year good behaviour order made. The appellant sought assistance for his alcohol and drug issues, made contact with the Aboriginal Justice Centre, and enrolled in a men’s anger program.

Issue/s: The sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed and the appellant re-sentenced to 10 months imprisonment to commence on 28 May 2013, suspended for two years from 27 August 2013. The sentence was manifestly excessive in all the circumstances. First, the sentencing magistrate did not take into account the appellant’s injuries caused by the complainant which occurred when the appellant was no longer a threat to the complainant. Second, the injuries sustained by the complainant, as apparent from photographic evidence, were not as serious as what was described in the Victim Impact Statement. Finally, the appellant’s criminal history, although containing prior convictions for violent offences, did not demonstrate a propensity to violence. He had not been charged with any domestic violence offences and he had not breached two personal protection orders (See [77]-[82]).

His Honour further stated:

‘The prosecution referred to the aggravating factor that the assault “took place in a public place.” I have some difficulty with that factor as an aggravating one. It implies that an assault in private is less serious. I am not sure that this follows.

Most family violence occurs in private yet is regarded as very serious. Indeed, privacy can emphasise the vulnerability and helplessness of the victim.

However that may be, intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [2009] QCA 290at [30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3at [32], R v Edwards [2012] QCA 117at [23], Shoard v Van Der Zanden [2013] WASC 163at [41]. This is the not the place to consider the rationale for such an approach; that will have to wait for another day. It is enough that the reliance by the learned Magistrate on the fact that the assault occurred in public as an aggravating factor was not an error’ (See [49]-[51]).

Cranfield v Watson [2013] ACTSC 160 (1 August 2013) – Australian Capital Territory Supreme Court

‘Manifestly excessive’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Assault occasioning actual bodily harm (two counts)

Appeal type: Appeal against sentence

Facts: The appellant and complainant were in a relationship and resided together with their son. While arguing one day, the appellant grabbed the complainant’s arm and punched her in the face a number of times. In response, the complainant struck the appellant in the torso. The pair continued to exchange blows throughout the day with the appellant striking the complainant to the face and punching her thigh, and the complainant hitting the appellant in the torso and face and bitting his arm. A week later, the appellant became angry after having computer difficulties and started swearing at the complainant. When she told him to stop being pathetic and throwing tantrums, the appellant slapped the complainant and caused her eardrum to rupture.

In relation to this conduct the appellant was charged and convicted of two counts of assault occasioning actual bodily harm. He was sentenced to 11 months’ imprisonment for the first offence and five months’ imprisonment, of which two months’ was to be served concurrently with the sentence imposed for the first offence, for the second offence. The total sentence was therefore 14 months’ imprisonment. Five months of that sentence was to be served in full custody, with the following five months to be served by way of periodic detention, and the remaining four months suspended upon the appellant entering into a good behaviour order for two years.

The magistrate considered that it was an aggravating feature of the first offence that the assault was comprised of several violent, physical contacts that extended over a period of time. He also considered it was an aggravating feature of both offences that they included blows to the head and face of a female. Finally, his Honour considered the ruptured eardrum of the complainant was an aggravating factor of the second offence.

Issue: Whether the sentence imposed was manifestly excessive.

Decision and reasoning: The appeal was upheld and the appellant was re-sentenced.

The magistrate erred in considering that the nature and duration of the violence in relation to the first offence was an aggravating feature. Rather, it was a circumstance that was relevant to the sentencing of the appellant. Further, the fact the complainant suffered a ruptured eardrum was not an aggravating feature of the second offence. It was merely an element of that offence — namely, that the assault resulted in actual bodily harm. The magistrate also failed to properly consider a psychiatrist report put before him. That report noted that the appellant’s domestic violence was likely related to his on-going mental health difficulties including suffering from post-traumatic stress disorder.

Burns J considered the term of imprisonment with respect to the offences was excessive where there was evidence that the appellant’s conduct was either caused by or contributed to by mental health conditions. These conditions were capable of being treated. Further, the appellant did not have a significant history of violent offending, having only been convicted of two offences of common assault 11 years prior to the offending.

In resentencing the appellant, Burns J accepted that the offences warranted terms of imprisonment. The appellant was sentenced to six months’ imprisonment for the first offence and two months’ imprisonment for the second offence. The total sentence of seven months’ imprisonment was backdated to recognise the two months the appellant had already spent in custody, and suspended thereafter. Burns J imposed a good behaviour order for two years with the conditions the appellant accept supervision and obey reasonable directions; undertake programs or counselling as directed, including the Family Violence Cognitive Self Change Program if appropriate; and undertake counselling or treatment with respect to mental health issues.

Guy v Anderson [2013] ACTSC 5 (14 January 2013) – Australian Capital Territory Supreme Court

‘Assault occasioning actual bodily harm’ – ‘Damaging property’ – ‘Forgiveness’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Perpetrator programs’ – ‘Physical violence and harm’ – ‘Reconciliation’ – ‘Rehabilitation’ – ‘Risk factor- strangulation’ – ‘Victim contribution’

Charge/s: Damaging property, assault occasioning actual bodily harm.

Appeal type: Appeal against sentence.

Facts: The male appellant was in an intermittent relationship with the female complainant. During the course of an argument, the intoxicated appellant shouted in the complainant’s face and hit her. The appellant then sat on top of the complainant and attempted to choke her. He stood up and kicked her in the ribs when she screamed for help. The appellant sat on top of her again and choked her until her vision went blurry. She started retching and the appellant dragged her to the toilet by her hair. When she finished retching, he poured half a bottle of wine over her head and again placed his hands around her throat. The appellant then pulled the complainant into the lounge room and the complainant tried to calm him down. She went to the police the next day. He was sentenced to 3 months imprisonment for common assault and 6 months imprisonment, wholly suspended and conditional on a good behaviour order, for assault occasioning bodily harm.

On a subsequent occasion, the complainant and the appellant again started arguing. The appellant went outside the house to have a cigarette and the complainant locked him out. She packed his bag and left it at the rear door. The appellant, who had not seen the bag, began knocking on the rear door and the window. As the complainant was on the phone to police, she heard the sound of the appellant breaking the window. The complainant told the appellant his belongings were at the front door and he left. He pleaded guilty to damaging property and sentenced to 1 month imprisonment. The conviction constituted a breach of the earlier imposed good behaviour order and the magistrate imposed the full 6 months of this sentence.

Issue/s: The sentence for damaging property and the action taken in respect of the breach of the good behaviour order was manifestly excessive.

Decision and Reasoning: The appeal was allowed. First, the sentence for the offence of damaging property was manifestly excessive in the circumstances. Although this was a domestic violence offence, this did not mandate a particular response and the circumstances as a whole needed to be considered. Refshauge J accepted the fact that complainant and the appellant had reconciled needed to be treated cautiously. He stated that, ‘Forgiveness by victims of domestic violence offences is highly problematic and must be treated with considerable caution for the reasons outlined by Simpson J in R v Glen [1994] NSWCCA 1 (19 December 1994)at 8. As her Honour said, “the victim’s attitude to sentencing … was not a matter which should have influenced the sentencing decision”.’ However, reconciliation of the complainant and the offender (as opposed to her forgiveness) can be relevant as to prospects of rehabilitation.

Second, the magistrate’s decision to impose the full 6 months suspended sentence was manifestly excessive. While the breaching offence was not trivial, it was at the low end of seriousness for the offence and was also of a different character from the original offence. Significantly, the appellant had also complied with the probation condition, sought mental health assistance of his own volition and participated in the Family Violence Cognitive Self-Change Program. See re-sentencing [1]-[5].

Saddler v Pavicic [2011] ACTSC 199 (9 December 2011) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Assault occasioning actual bodily harm’ – ‘Deterrence’ – ‘Family members’ – ‘Manifestly inadequate’ – ‘Older people’ – ‘Parent/s’ – ‘Physical violence and harm’

Charge/s: Assault occasioning actual bodily harm, assault.

Appeal type: Crown appeal against sentence.

Facts: During the course of an argument, the 31 year old respondent and his 60 year old mother (the first complainant) began pushing and shoving each other. This culminated in the respondent grabbing the complainant by the neck and pushing her, causing her to fall and fracture her wrist (assault occasioning actual bodily harm). Later that afternoon, the first complainant was visited by the male second complainant and his 4 children. The second complainant heard a revving noise and saw the respondent holding a chainsaw outside the window. The respondent said, ‘You fucking Australian cunt, come out here, I am going to cut you, like this’, and then tried to enter the backdoor. When he failed, the respondent picked up a fish gaff and swung it above his head (assault). The magistrate recorded a conviction and fined the respondent $1,000 for assault occasioning bodily harm and $1,500 for assault.

Issue/s: One of the grounds of appeal was that the sentences imposed were manifestly inadequate.

Decision and Reasoning: The appeal was allowed. The sentence for the assault occasioning actual bodily harm was manifestly inadequate. The respondent was not entitled to leniency in sentencing on the basis of his prior criminal history or on the basis of his plea. The sentence imposed gave little, if any, weight to the requirements of specific and general deterrence, nor did it reflect the objective seriousness of the offence, even taking into account the provocation from the complainant. The appellant was re-sentenced to a suspended sentence of 7 months imprisonment.

In reaching this conclusion, Burns J noted that this was clearly a domestic violence offence. He noted that, ‘It is now well settled that offences of domestic violence must be treated seriously, and frequently display aggravating features not present in offences occurring outside a domestic relationship. The only reason the respondent was in a position to commit the offence on his mother was because of that relationship. As such, the offence involved a serious breach of the trust reposed in the respondent as a son by his mother. Additionally, the age of the complainant was an aggravating circumstance attending the commission of the offence’at [12].

The sentence imposed by the magistrate in relation to the assault was also manifestly inadequate.

Donoso v Koster [2011] ACTSC 192 (24 November 2011) – Australian Capital Territory Supreme Court

‘Common assault’ – ‘Hardship’ – ‘Non-conviction order’ – ‘Offender character references’ – ‘Physical violence and harm’ – ‘Recording a conviction’

Charge/s: Common assault.

Appeal type: Appeal against sentence.

Facts: The appellant forcibly pulled sheets from on top of the complainant when she was in bed. The sheets caught on the complainant’s necklace and this caused pain and a red welt on her lower neck. The magistrate recorded a conviction.

Issue/s: A conviction should not have been recorded.

Decision and Reasoning: The appeal was allowed. The prosecution submitted that, as this was a family violence offence, it had a certain degree of seriousness and a conviction ought to be recorded. Burns J accepted that ‘there are circumstances and principles relating to family violence offences which that they must be taken particularly seriously’. However, the objective seriousness of the offence and the subjective circumstances of the offender are always relevant. Objectively, this offence came very close to the bottom of the range of seriousness of offences of this nature. Further, the appellant was otherwise a man of good character. He had no prior convictions and was spoken of highly in provided testimonials. Further, he was employed in an area in which the recording of a conviction would result in particular hardship (i.e. termination of employment). The conviction was set aside and a good behaviour order for a period of 12 months was imposed.

Connelly v Allan [2011] ACTSC 170 (13 October 2011) – Australian Capital Territory Supreme Court

‘Evidence’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Voice recognition evidence’

Charges: Contravening a domestic violence order (two counts)

Appeal type: Appeal against conviction and sentence

Facts: The appellant was subject to a domestic violence order that prohibited him from contacting his former partner (the applicant), behaving in a harassing manner towards her or threatening her. The appellant breached this order by making a number of phone calls to the applicant. He was charged with two counts of breaching the domestic violence order and was convicted of both charges. Those convictions amounted to a breach of two good behaviour orders previously made when the appellant was convicted of stalking and two additional counts of contravening a protection order in December 2007 and common assault in June 2007. He was sentenced to six months’ imprisonment on each of the counts of breaching the domestic violence order, to be served concurrently. On the breach of the first good behaviour order he was sentenced to four months’ imprisonment, one month of which was to be cumulative on the other sentences. All the imprisonment to be served by periodic detention.

In convicting the appellant, the magistrate accepted evidence from the applicant and a friend that they recognised the appellant’s voice. The phone calls were allegedly made using a public phone, so this voice recognition was the only evidence to support that the appellant was guilty of the offences.

The appellant had a long history of criminal offending comprising of 52 charges. A pre-sentence report stated that the appellant had suffered a dysfunctional, violent and unstable family background. His father was an alcoholic and was violence towards his mother. The appellant also abused alcohol, drinking about six stubbies every night. Since the offending, the appellant reported that he was still drinking but not at a problematic level. However, there was no evidence to support these assertions. The appellant suffered from depression and anxiety that ‘result in markedly diminished capacity in judgement’, according to a psychologist’s report. Another psychologist concluded that the appellant’s offending history was alcohol induced and based.

Issues:

1.

The ground of appeal against the conviction was that the magistrate failed to direct and warn herself adequately in relation to the voice identification evidence.

2.

The grounds of appeal against the sentence were:

(a)

The sentence was manifestly excessive;

(b)

The magistrate failed to have proper regard to the significance of the appellant’s alcoholism in structuring an appropriate sentence; and

(c)

The magistrate erred in not finding that community service was appropriate in all the circumstances.

Decision and reasoning: The appeal against the conviction was dismissed. In considering whether the appellant was guilty, the magistrate scrutinised the applicant’s evidence as to voice recognition carefully. Both witnesses knew the appellant well and recognised his voice on the phone. While the magistrate should have given a warning, it would have been confined to the fact that the conversations were limited and that people can be mistaken about the voices of those they know well. Despite the lack of warning, Refshauge ACJ held there was no miscarriage of justice, as even if a warning was given, it would not have affected the magistrate’s conclusion.

However, the appeal against the sentence was allowed and the appellant was ordered to be re-sentenced. The appellant’s offending was at the lower end of the spectrum of contravening a domestic violence order. However, the magistrate did not err in concluding that imprisonment was the appropriate punishment when considering his offending history and breaches of good behaviour orders. Rather, the magistrate erred in dismissing the option of suspending a term of imprisonment with a good behaviour order to include a community service condition. The offences were not so serious that a suspended sentence was too lenient.

In the matter of an application for bail by Hutchings [2011] ACTSC 83 (20 April 2011) – Australian Capital Territory Supreme Court

‘Bail’ – ‘Breach of a domestic violence order’ – ‘Breach of conditions’ – ‘Conditions of orders’ – ‘Physical violence and harm’ – ‘Special or exceptional circumstances favouring the grant of bail’ – ‘Temporary protection order’ – ‘Uncharged allegations’

Charge/s: Breach of a domestic violence order.

Appeal type: Appeal against refusal to grant bail.

Facts: Mr Hutchings breached an interim Domestic Violence Order by sending the female complainant a letter summarising his feelings towards her and the end of their relationship. This was also in breach of bail conditions imposed for a dangerous driving offence. He was granted bail with a condition included that he not contact the complainant in any way. The complainant later received a telephone call and message, alleged to be from Mr Hutchings. He was arrested and charged with breaches of the Domestic Violence Order. This activated s 9D of the Bail Act which provided that bail could not be granted unless there were special or exceptional circumstances favouring the grant of bail. The magistrate refused bail in those circumstances.

Issue/s: Whether there were special or exceptional circumstances favouring the grant of bail.

Decision and reasoning: The appeal was rejected. The Police were concerned that Mr Hutchings would commit further breaches of the Domestic Violence Order if allowed on bail. They noted that the complainant had made further complaints against Mr Hutchings but there was insufficient evidence to justify the commencement of proceedings. Burns J noted that the courts must be very cautious about relying on uncharged allegations but concluded that it was a concern to be taken into account [10]. While Mr Hutchings’ daughter was pregnant and needed Mr Hutchings to drive her around, Burns J noted that she could make other arrangements [12]. Accordingly, there were no special and exceptional circumstances justifying the grant of bail.

Ross v Mothersole [2010] ACTSC 125 (19 October 2010) – Australian Capital Territory Supreme Court

‘Assault occasioning actual bodily harm’ – ‘Drug and alcohol programs’ – ‘Glassing’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Plea of guilty’ – ‘Victim contribution’ – ‘Victim's views’

Charge/s: Assault occasioning actual bodily harm, assault, threatening to harm a public official, obstructing a public official.

Appeal type: Appeal against sentence.

Facts: The male appellant and the female victim of the two assaults were in a relationship. The first offence occurred when the intoxicated appellant swore at the victim and smashed a beer glass in her face. She required five stiches (assault occasioning actual bodily harm). At the watch house, the appellant threatened violence against police officers and resisted search attempts. On a subsequent occasion, the appellant and the victim were out drinking together and, during the course of argument, the appellant yelled, ‘I could kill you right now and no-one would ever know’. He then put the victim into a headlock, and head-butted and punched the complainant in the face (assault). A total head sentence of 36 months imprisonment was imposed with a non-parole period of 18 months.

Issue/s: The sentence for the assault occasioning actual bodily harm was manifestly excessive.

Decision and Reasoning: The appeal was allowed. The sentencing magistrate failed to take proper account of the appellant’s plea of guilty in sentencing (See [78]). Refshauge J noted that it is very desirable that a sentencing magistrate or judge makes express reference to the issue of a plea of guilty to show that it has been taken into account. Further, the sentencing magistrate did not address the relevant mental state of the appellant (intention or recklessness). Refshauge J stated, ‘there is no doubt that “glassing” is a serious offence, whether intentionally (significantly more serious) or recklessly. It is a cruel and vicious offence, especially where the damage done is to the victim’s face, the scars from which will be long obvious and distressingly disfiguring. It is a serious offence which ordinarily will need to be visited by a sentence of imprisonment, mostly served by full-time custody’ (See [88]). However, notwithstanding this, on the facts, it was more likely than not that the appellant did not intend to use the glass as a weapon (See [90]).

In re-sentencing the appellant, Refshauge J had regard to a letter from the victim. It showed that she was still devoted to the appellant and wanted to maintain their relationship. She stated, ‘ I know he is truly sorry for hurting me and the time he has spent in jail he has not wasted one day doing everything possible to completely turn his life around, every course available in the prison Egan has not only completed but done so with proud achievement’. This showed that the insight and rehabilitative opportunities noted in the original sentencing hearing had been fulfilled and the appellant had addressed his offending behaviour (See [92]-[94]). The appellant was re-sentenced to 2 years imprisonment for the assault occasioning bodily harm. The other sentences were confirmed leaving a head sentence of 30 months, with a non-parole period of 10 months.

Tuckey v Ede [2010] ACTSC 95 (8 September 2010) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Non-conviction order’ – ‘Physical violence and harm’ – ‘Victim contribution’

Charge/s: Summary offence of assault.

Appeal type: Appeal against conviction.

Facts: The intoxicated male appellant started arguing with his partner (the female complainant) in their house. The appellant kicked a chair at the complainant and broke it. She threw the broken chair at him and he slapped her in the face. The complainant called the police. After discussion, the appellant agreed to plead guilty to a summary charge of assault and the prosecution agreed to make submissions not opposing the making of a non-conviction order. Her Honour refused to make a non-conviction order, convicted the appellant and imposed a 12 month good behaviour order.

Issue/s: One of the issues was that the sentencing process was flawed.

Decision and Reasoning: The appeal was upheld because the sentencing process in the Magistrates Court was flawed in light of further evidence provided about the agreement between the prosecution and the defence before the hearing. Although the appellant was not entitled to assume that the magistrate would make the orders that had been agreed upon, he was entitled to expect that the prosecution’s attitude to a non-conviction order would have been articulated during the hearing (See [26]-[42]).

Another sentence was appropriate in this case. The appellant had no criminal record nor any identified problem with alcohol or anger management. The offence was an isolated incident in which the complainant also took part. The couple had reconciled and were again living with their child. The appellant had a sound employment record, had already been punished by spending the night in police custody and was unable to return home for 3 weeks because of his bail conditions. Finally, the conviction would make it difficult for him to see his partner’s family in Vietnam (See [43]-[45]).

The appellant’s conviction was set aside and a good behaviour order imposed for 12 months. In re-sentencing the appellant, Penfold J stated:

‘However, the appellant should not interpret this conclusion as in any sense condoning of his use of physical violence on his partner (or anyone else for that matter). Rather, it is a recognition that while it is vital for domestic violence to be taken seriously by the police and the prosecuting authorities and the courts, it is also important for a victim of domestic violence to be able to call for help when she needs it in the belief that after her immediate needs have been addressed, the longer-term consequences of the call for help will be decided in a calmer environment in which her longer-term interests and wishes will also receive recognition. The appellant should be aware however, that if there were any repetition of this kind of behaviour by him, I expect that a sentencing court would take it very seriously’ (See [47]).

Elson v Ayton [2010] ACTSC 70 (15 July 2010) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Assault occasioning actual bodily harm’ – ‘Damaging property’ – ‘Emotional abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentence accumulation’ – ‘Sentencing’ – ‘Totality’

Charge/s: Assault occasioning actual bodily harm, assault x 3, damaging property x 2.

Appeal type: Appeal against sentence.

Facts: The male appellant and the female complainant were in a relationship. The appellant became very angry with the complainant and she got in her car with her daughter to leave. The appellant punched the driver’s side window of the car causing the window to shatter. He then punched the complainant in the nose and eye, causing her nose to bleed. On a subsequent occasion, in breach of his bail conditions, the intoxicated appellant went to the complainant’s house. He abused her saying, ‘he would kill her and hurt her,’ and put his right arm around her throat. He threw a jar and punched his fist through the microwave door. On a third occasion, again in breach of bail conditions, the appellant went to the complainant’s home with his teenage son. He grabbed her by the throat, punched her in the face, and kicked her. The appellant only stopped when the complainant’s 10 year old son called the police.

While the sentencing magistrate stated that she intended to impose a total sentence of 48 months, with a 24 months non-parole period, the accumulation of sentences the magistrate articulated in court was only a total of 30 months. However, amendments were subsequently made to the bench sheets to reflect what Her Honour intended.

Issue/s:

1.

The sentencing magistrate erred in amending the sentences.

2.

The sentencing magistrate erred in imposing the maximum penalty for the damaging property offences.

3.

The sentence was manifestly excessive and the sentencing magistrate misapplied the totality principle.

Decision and Reasoning: The appeal was upheld. First, the parties should have been given an opportunity to be heard before the sentences were amended. This failure amounted to an error requiring the sentence to be set aside (See [81]-[93]). Second, the offences of damaging property were not in the worst category of offences — the damage was not considerable and there were no matters of aggravation of either offence such as planning or premeditation. The magistrate erred in imposing the imposition of the maximum penalty on these offences (See [94]-[103]).

Third, the sentence of 15 months imprisonment imposed for the second assault was excessive in light of the sentence of 18 months imprisonment for the first assault. The first assault was more serious. It involved the smashing of a window, the appellant caused the complainant’s nose to bleed, it was committed in the presence of a child, and the appellant pleaded not guilty to this offence (See [105]-[109]). Further, by merely accumulating the sentences for the three episodes, the sentencing magistrate could not be said to have applied the principle of totality (See [109]-[116]).

The appellant was re-sentenced by Refshauge J to a total sentence of 34 months imprisonment, with a non-parole period of 15 months based on evidence that the appellant had taken steps to address his drug and alcohol use (See [121]-[130]). His Honour noted, ‘these offences are serious, particularly because they are offences of family violence, some committed in the presence of children, some committed whilst on bail and in breach of conditions of that bail. The repetition of assaults on the victim also makes the offences serious’ [122].

Goundar v Goddard [2010] ACTSC 56 (29 June 2010) – Australian Capital Territory Supreme Court

‘Anger management programs’ – ‘Appeal against sentence’ – ‘Assault’ – ‘Physical violence and harm’ – ‘Probation’ – ‘Purpose of sentencing’ – ‘Rehabilitation’

Charge/s: Assault.

Appeal type: Appeal against sentence.

Facts: The male appellant and his wife, the complainant, were involved in a lengthy argument regarding the conduct of the complainant’s daughter. The appellant swore at the complainant and said, ‘I’m going to kill you’. He then pushed the complainant on her forehead, causing her to fall backwards into her chair. The complainant went to her daughter’s bedroom and was followed by the appellant. The argument continued and at one point the appellant came so close he caused the complainant to stumble backwards onto the bed. The appellant pleaded guilty to assault. Counsel for the appellant sought a non-conviction sentence and the prosecution made no opposing submissions. The magistrate imposed a good behaviour order which required the appellant to subject to probation for 18 months and required the appellant to attend counselling on anger management and inter-personal relationships.

Issue/s: The condition of the good behaviour order requiring the appellant to be subject to probation for 18 months was manifestly excessive.

Decision and Reasoning: The appeal was allowed and the period of supervision set aside. This was an offence at the lower end of the scale of seriousness for such offences, notwithstanding that this was a family violence offence. It was committed by a person with no criminal history. Further, a substantial number of very positive references were submitted attesting to the appellant’s good character (See [44]-[47]).

The respondent submitted that weight had to be given to general and specific deterrence because this was a family violence offence. Refshauge J accepted this but noted that ‘supervision on probation is not ordinarily seen as part of the deterrent component of sentencing’. It is generally a rehabilitative part of sentencing. Here, unless actual supervision was required for a rehabilitative purpose, i.e. to ensure the appellant attended counselling, it was not appropriate to make a probation condition. There was no suggestion on the facts that the appellant would benefit from such guidance (See [48]-[59]).

Twerd v Holmes [2010] ACTSC 55 (25 June 2010) – Australian Capital Territory Supreme Court

‘Emotional and psychological abuse’ – ‘Manifestly excessive’ – ‘Unlawful confinement’

Charge/s: Unlawful confinement.

Appeal type: Appeal against sentence.

Facts: The appellant unlawfully confined his former partner by forcing her into a taxi and compelling her to travel with him, against her will. He then took her to another person’s house where she was prevented from answering her phone. She was held captive for approximately 2 hours. The magistrate imposed a sentence of 20 months imprisonment, with a non-parole period of 15 months.

Issue/s: One of the issues was that the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The sentence could not be said to be manifestly excessive. This was a very serious offence. Its seriousness was not diminished by the fact that it occurred within the context of a relationship breakdown, that it was not carried out for financial gain, and that it was committed in the presence of third parties. Further, the appellant had a long criminal history (See [3]-[4]).

In the matter of an application for Bail by Breen [2009] ACTSC 172 (31 December 2009) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘People with mental illness’ – ‘Presumption against the grant of bail’ – ‘Threatening to kill’

Charge/s: Threatening to kill, failing to surrender firearms x 3, possessing a quantity of cannabis.

Appeal type: Appeal against refusal to grant bail.

Facts: Mr Breen, an Aboriginal man, was in a relationship with a woman and they had three children. Mr Breen rang the mother of his partner, asking if she knew where his partner was. He was extremely agitated and said, ‘If we were married, we would now be divorced’ and ‘I’ve got big problems with my head’. Mr Breen then said, ‘and if [his partner] gets boyfriends out of this, I will get my gun and blow all their heads off. I will kill us all. Better that than have them molested as I was’. Mr Breen stayed on the phone to his partner’s mother for an hour and on two occasions he threatened to kill the whole family. When police later arrived, Mr Breen said he was depressed and ‘wanted to end it all’. A search of the property uncovered three unregistered rifles and cannabis. He was arrested and was refused bail by a magistrate for ‘mental health issues’ and his access to ‘illicit’ firearms.

Issue/s: Whether Mr Breen should be granted bail.

Decision and reasoning: Section 9B of the Bail Act meant that the presumption in favour of bail did not apply. Refshauge J noted that, in determining whether to grant or refuse bail, the court had to engage in an assessment of ‘future risk’. Given that refusal of bail is tantamount to preventative detention, the court should not make a decision on the basis of suspicion or speculation (See [57]-[61]). His Honour stated, ‘the appropriate initial view was that this was a serious offence which was engendered in emotional circumstances where very serious violence, at least to Mr Breen himself if not to his partner and children, was threatened and where there were apparent means to carry out such a threat. This was exacerbated by the fact that Mr Breen clearly [had] some mental health issues which [made] the likelihood of unpredictable outcomes greater’ at [61].

However, on the basis of tendered evidence, Refshauge J was satisfied that the imposition of strict bail conditions could manage these concerns (See [91]). Mr Breen’s behaviour was caused by a mental impairment that was treatable (and treatment were already occurring). While Mr Breen had a worrying fascination with guns and weapons, he was not in a realistic position or had the immediate capacity to carry out his threat. There was no evidence to satisfy Refshauge J that Mr Breen’s partner would be in danger with the provision of suitable bail conditions. Mr Breen had work available and his parents were prepared to offer a cash surety.

Talukder v Dunbar [2009] ACTSC 42 (16 April 2009) – Australian Capital Territory Supreme Court

‘Anger management programs’ – ‘Common assault’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Victim contribution’ – ‘Victim impact statements’

Charge/s: Common assault.

Appeal type: Appeal against sentence.

Facts: The appellant and the complainant had been married for eight years and had two children. An argument arose between the appellant and the complainant. Their 12 year old son stepped between them but was pushed away by the appellant. The appellant grabbed the complainant by the hair, pulled her into the bedroom and threw her on the bed. The complainant called the appellant’s mother a prostitute and he twisted her arm behind her back and slapped her face several times. The police were called. The appellant made full admissions. In sentencing submissions, counsel for the appellant informed the magistrate that a conviction would prevent the family from migrating to Canada and asked for a short adjournment to procure such evidence from his office. The magistrate refused. The appellant was convicted and made subject to a good behaviour order for 12 months.

Issue/s: One of the grounds of appeal was that the magistrate failed to provide procedural fairness by not permitting an adjournment.

Decision and reasoning: The magistrate erred in refusing to allow an adjournment for the material relating to the potential barriers of a conviction to migrating to Canada to be procured. The adjournment would only have been brief and the issue of migration status was of major concern to the family. It was not appropriate to deny the appellant the opportunity of putting his case before the court just because his legal representation had failed to have the requisite documents on hand. The appeal was allowed and it fell to Refshauge J to re-sentence the appellant (See [34]-[51]).

In re-sentencing the appellant, His Honour had particular regard to the issues of the migration process to Canada and the views expressed by the complainant in a letter to the court. First, Refshauge J accepted that there was a real likelihood that in a case of domestic violence the appellant would be refused admission to Canada. This would adversely affect the family (See [73]-[78]). Second, in relation to the letter from the complainant, His Honour stated that:

‘In my view, there is a great danger in putting a victim of domestic violence in the position where they are seen to have some power to influence a sentence. This is often likely to be an intolerable choice between the bonds of affection which often persist despite the violence and their need for protection against recurrence and for the offender to be held accountable’ at [82].

His Honour accepted the letter for the following: the appellant had previously good character, the incident was a one-off occurrence, he voluntarily participated in an anger management course, and it confirmed the effect on the family if they were unable to migrate to Canada. But, in light of the issues mentioned above, accepting the letter as evidence of reconciliation needed to be treated with caution (See [79]-[84]).

The appellant had no prior convictions and previous good character. The offence was serious but at the lower end of the criminal calendar and, as a matter of marginal extenuation, the victim was equally as abusive. A non-conviction order was warranted because of the appellant’s immediate engagement in a rehabilitation program, his plea of guilty and early confession, and the risk to the family if their immigration plans were thwarted (See [92]-[97]).

R v Taylor (No 2) [2008] ACTSC 97 (12 September 2008) – Australian Capital Territory Supreme Court

‘Contravention of a protection order’ – ‘Following, harassing, monitoring’ – ‘Good behaviour orders’ – ‘People affected by substance misuse’ – ‘Perpetrator programs’ – ‘Protection order’ – ‘Purpose of sentencing’ – ‘Rehabilitation’ – ‘Subjective circumstances’ – ‘Suspended sentence’

Charge/s: Contravention of a protection order.

Hearing type: Sentencing hearing.

Facts: On 16 January 2007, the offender was found guilty for breaching a Domestic Violence Protection Order, protecting Ms Perrin (with whom he had two children). He drove past Ms Perrin’s residence, yelled at her, and summonsed another man at the premises to fight him. The offence was committed in breach of two earlier imposed and unrelated good behaviour orders for aggravated robbery and assault occasioning bodily harm (‘the 2004 offences’). Accordingly, it fell to Rares J to sentence the offender for the breach of the protection order and re-sentence the offender for the 2004 offences. At the time of sentencing, the offender and Ms Perrin had reconciled.

Decision and Reasoning: The offender was sentenced to 12 months imprisonment, wholly suspended with conditions [2]. In sentencing the offender, Rares J was satisfied that the offender had made a serious and concerted effort to turn his life around — the offender had stopped taking cannabis and alcohol, had obtained employment, paid for his own attendance with Ms Perrin at a Relationships Australia course, and had the support of his family and Ms Perrin’s family to make a good life for their children. His Honour also took into account the fact that he had pleaded not guilty to the offence of breaching the domestic violence order and that he had a prior criminal history.

Rares J noted that while he did not want to undermine the offender’s ‘terrific’ improvement, a penalty had to be crafted that appropriately reflected the offender’s criminality, the seriousness of the conduct and general deterrence. His Honour noted:

‘In many, many cases before the courts, the subjective impact of a punishment on an offender once brought to justice can be seen to be great. But to do justice according to law, must be to uphold the laws themselves and their purpose to ensure that we all obey the law. The community must know that offenders, whatever their personal circumstances are, receive a punishment that is appropriate and recognises the seriousness of the offending and the breaches of the community’s standards embodied in its criminal laws’ at [17].

Redden v Slavin-Molloy [2008] ACTSC 37 (29 April 2008) – Australian Capital Territory Supreme Court

‘Breach of a protection order’ – ‘Damaging property’ – ‘Following, harassing, monitoring’ – ‘Protection orders’ – ‘Repeated breaches’ – ‘Specific deterrence’

Charge/s: Contravention of a protection order x 2.

Appeal type: Appeal against sentence.

Facts: The female complainant obtained a protection order against the male appellant, her former partner. In breach of this order, the appellant attended her home. When she refused to let him inside, he began yelling and attempted to break down the door. She called for help and the appellant fled. The next day, the appellant again tried to obtain entry to the complainant’s home. He struck and damaged the front door when he was refused entry and again ran off when he was told the police had been called. In December 2007, the offender was sentenced to 10 and 15 months imprisonment respectively for these breaches. Earlier, in May 2007, the offender had been sentenced for a number of other offences, including four charges of contravening a protection order. For the most serious of these breaches, he was sentenced to six months imprisonment to be served as periodic detention.

Issue/s: One of the grounds of appeal was that the sentence of 10 months imprisonment and 15 months imprisonment was manifestly excessive.

Decision and reasoning: The appeal was allowed. Penfold J noted that:

‘To the extent that punishing an offender ever more severely because of repeat offending, rather than because the individual offences have become more serious, is justifiable, such an approach must relate to the need for specific deterrence of an offender who appears unwilling to learn from previous penalties. Even in that case, the penalty must still remain referable in some way to the actual offence committed’ at [38].

Here, the sentence was manifestly excessive (See [42]). In particular, the two sentences imposed were at least twice as severe as the most severe penalty previously imposed for breach of a protection order in May 2007. However, if the May 2007 breaches were so much less severe than the conduct here, it was hard to see how they would have justified imprisonment at all (See [37]). Further, at the time of the August breaches, the offender had not served any full-time custody or even any periodic detention. It could not be assumed that his actions in August were informed by any understanding of the reality of a custodial sentence (See [39]). Other relevant mitigating factors were taken into account (See [30]).

The appellant was re-sentenced to 6 months imprisonment for each breach.

Miller v MacDonald [2006] ACTSC 76 (30 June 2006) – Australian Capital Territory Supreme Court

‘Conditions of orders’ – ‘Conflict between orders’ – ‘Contravention of a protection order’ – ‘Explaining the orders’ – ‘Family court orders’ – ‘Mistake of law’ – ‘Protection order’ – ‘Recklessness’ – ‘Repeated breaches’

Charge/s: Contravention of a domestic violence order x 2.

Appeal type: Appeal against conviction and appeal against sentence.

Facts: The appellant’s former wife, with whom he had a daughter, obtained a domestic violence protection order against him, prohibiting contact. Shortly before the appellant left for an extended visit to the United States, the Family Court made an order which vacated this contact order. It stated that while the appellant was out of the country, he could send gifts and correspondence or postcards to his daughter provided that the contact was directed to the child and that he could send a photograph from time to time. When he was back in Australia, the appellant sent his daughter a package containing photographs, gifts and a letter. Additionally, the appellant mistakenly sent his former wife an email when he sent a group message to his siblings. He had previously been interviewed by police for a similar mistake. The appellant had spent 42 days in custody on remand. The magistrate imposed a six month term of imprisonment from the date he was taken into custody and directed he be released after serving 42 days, effectively that he be released the day following the hearing. He also imposed an 18 month good behaviour bond, subject to some conditions (see[22]).

Issue/s:

1.

The appellant made an honest and reasonable mistake of law by sending his daughter a package.

2.

The email to his wife was sent in error.

3.

The sentence was manifestly excessive.

Decision and reasoning: The appeal was dismissed. First, His Honour held that: ‘[I]t is certainly fair to say that if a person seeks to rely on a Family Court order that varies what is otherwise a clear domestic violence order, it is incumbent upon that person to take steps to understand what the Family Court order says. And it seems to me that the Magistrate was perfectly entitled to find that Mr Miller was at least reckless in assuming that that order, which on its face only covers the time that he was out of the country, continued to apply after he had returned to Australia’ at [5].

Second, on its own, the email sent in error to his former wife would have been unlikely to meet the requisite standard of intent or recklessness. However, given that the appellant had made the same mistake before and had been interviewed by police for this, there was at least recklessness in relation to the sending of that message.

Third, the sentence could not be said to be manifestly excessive. His Honour noted that these were low level breaches of a domestic violence order, they involved recklessness rather than intent, and the nature of the correspondence in both the letter and the email was non-violent and non-threatening. However, the appellant had three prior appearances relating to seven convictions for breaches of a protection order. Connolly J stated:

‘It seems to me that even though these were lower level, indeed very low level breaches in the sense that there was no actual or apprehended or threatened violence, repeated breaches however low level, do inevitably meet with an increase in sentence on the basic premise that when low level sentences do not stop the offending behaviour a court has little option but to continue a pattern of steadily ramping up the sentence’ at [20].

R v Bell [2005] ACTSC 123 (1 December 2005) – Australian Capital Territory Supreme Court

‘Impact of domestic violence on women and children’ – ‘Persons affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Risk factor- strangulation’ – ‘Sentencing’

Charge: Assault occasioning actual bodily harm

Proceeding: Sentencing

Facts: The offender and victim had previously been in a relationship and had two children together. The offender and victim’s version of events differed. The victim alleged that after consuming alcohol with the offender one night, the offender dragged her out of bed, hit her three time in the face and put his hands around her neck and pushed his thumbs into her throat. While doing so, the offender said something to the effect of “Slut, I’ll kill you, I’ll kill you”. When she woke up the next morning the offender continued to follow and abuse her. The offender said that the offending occurred after he blacked out after drinking substantial amounts of alcohol. He said that the assault occurred after the victim, who was drunk, was following him between pubs and abused him verbally and physically by kicking him. After she got in an altercation with a patron, she was removed from the pub and was spoken to by police officers. The offender agreed to take the victim home, where they sat outside smoking marijuana and drinking bourbon. They then got in an argument over their children and the victim struck the offender. According to the offender, this is when he grabbed her throat and beat the victim.

Higgins CJ, after hearing corroborating witnesses, accepted that the assault occurred in the way described by the offender. However, he did not suggest that the victim was fabricating her account: ‘She was savagely beaten, she had a lot to drink and it is unsurprising that some of the details became confused in her mind’ ([26]).

In relation to this conduct the offender was charged and pleaded guilty to one count of assault occasioning actual bodily harm.

For three months prior to the assault, the offender had undergone rehabilitation at Oolong House. He had a long history of offending, including 28 prior assaults. Most of the previous offending occurred after the offender had consumed alcohol. While he acknowledged his alcohol abuse, the offender did not consider he needed drug and alcohol intervention. He also admitted to feeling ‘horrified by what he had done’ and said ‘violence towards women is not in his makeup and he has no excuses for what he has done’.

Issue: What sentence should the offender receive?

Decision and reasoning: The offender was sentenced to two and a half years’ imprisonment with a non-parole period of 18 months. While the preceding conduct on the night of the offending and the alcohol abuse engaged in by both the parties may explain the offending, it did not excuse it. There were some prospects of rehabilitation for the offender. However, having regard to the severity of the attack and the offender’s criminal history and alcohol abuse, a sentence of imprisonment was appropriate: ‘No other sentence will say to men who abuse women that such conduct is abhorrent and will result in severe punishment whatever the status or record of the offender’ ([32]).

In considering the purposes of sentencing domestic violence offending, Higgins CJ noted that while alcohol may have been a triggering factor, offenders must take responsibility for their actions and be seen to do so. As domestic violence offences are often hidden, general deterrence is also an important consideration in sentencing. So too is specific deterrence. Higgins CJ emphasised that domestic violence ‘is a pernicious and evil phenomenon not only because of the immediate trauma to the victim. Its evil influence spreads to children as well. It is no coincidence that, in my experience, young offenders, more often than not, present with a family history of domestic violence. It used to be regarded as a family matter, to be kept private. Victims would be made to feel humiliated, and ashamed to complain; in truth it is entirely the criminal conduct of the perpetrator which is at fault. It is entirely in the public interest that such conduct be exposed and deterred’ ([30]).

Gray v Burt [2005] ACTSC 93 (23 September 2005) – Australian Capital Territory Supreme Court

‘Application to revoke domestic violence order’ – ‘People with disability and impairment’ – ‘Protection orders’ – ‘Sexual and reproductive abuse’ – ‘Victim contribution’

Appeal type: Appeal against refusal of a magistrate to revoke a Domestic Violence Order.

Facts: On 22 October 2003, a Domestic Violence Order was made by the Deputy Registrar of the Magistrates Court for the protection of the female respondent against the appellant, with whom she was in a sexual relationship. Both parties had disabilities. During their ‘physical relationship’, the respondent suffered three separate fractures of her legs. She had no history of such injuries prior to the physical relationship and no history of such injuries subsequent to the physical relationship. On 24 May 2004, the Order was varied by consent and in particular the Order restrained and prohibited the male appellant from taking certain actions in relation to the respondent. The appellant applied to have the order revoked but a magistrate declined to revoke the Order. His Honour concluded that the physical nature of the relationship represented a genuine risk to the well-being of the respondent.

Issue/s: The magistrate erred in failing to revoke the order. His Honour made three errors in reaching his decision to not revoke the order –

1.

The magistrate failed to take into account the fact that the injuries occurred while the respondent was living in an apartment with the appellant and was not receiving the same degree of care as she did now.

2.

The magistrate failed to take into account evidence about counselling that the parties had commenced and intended to continue.

3.

The magistrate failed to take into account the likelihood of future sexual contact between the parties in circumstances where the appellant was now under full-time supervision at Hartley Court (a disability support facility).

Decision and reasoning: The appeal was dismissed. First, the location of where the injuries occurred was not relevant because it was the physical relationship that caused the injuries. Second, there was no evidence that the counselling had been concluded nor that it would reduce the likelihood of injury if the physical relationship was to continue. Accordingly, this was not a relevant consideration. Finally, the magistrate did consider the fact that such a relationship was likely to continue on the basis of evidence before him.

Further, the magistrate did not fail to take into account the fact that persons with disabilities had the same basic rights as other members of Australian society. The magistrate specifically referred to the wishes of the respondent to continue the relationship with the appellant. However, His Honour concluded that the risk to the respondent resulting from such a relationship as such that he was unable to be satisfied that the order preventing such a relationship was no longer necessary for her protection.

R v In [2001] ACTSC 102 (2 November 2001) – Australian Capital Territory Supreme Court

‘Assault occasioning bodily harm’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘General deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factor-suicide threats’ – ‘Sentencing’ – ‘Unlawful confinement’

Charge/s: Unlawful confinement, assault occasioning bodily harm.

Hearing type: Sentencing hearing.

Facts: The offences occurred after the male offender and his wife, the complainant, had separated and the offender had moved out of the family home. He occasionally stayed overnight to see the children. After seeing his wife kiss another man, the offender arrived at the family home late at night, when the children were present in the house. The complainant let him in and went back to bed. The offender followed her and sat on top of her. He placed a sharp object against her throat and said, ‘This is a knife. If you move I will fucking kill you’. He then placed pre-cut strips of duct tape over the complainant’s mouth and eyes. He bound her wrists and ankles and tied her hands and feet together. He said, ‘You’ll have your wish — you’ll see me die tonight, you’ll see me die’.

The complainant had difficulty breathing and the offender removed the duct tape. He interrogated her about her relationship with the other man, hitting her several times around the head and shoulders. He left the room saying, ‘If you fucking move I’ll kill you’ and returned with a telephone book. The offender asked for the other man’s phone number before leaving the room again. The complainant heard him enter the nearby bedroom, occupied by two of their daughters and heard him say, ‘Now take this darling. I know it tastes awful, doesn’t it’.

He returned to the complainant and resumed interrogating her, striking her. He said multiple times that he was going to kill himself and take the children with him. The offender eventually became tearful and untied the complainant. She rang the emergency number and asked for an ambulance, thinking her children had been poisoned. The police and ambulance arrived. The children were unharmed. The offender left the premises and went to the police station the next morning.

Decision and Reasoning: The offender was sentenced to 6 years imprisonment for unlawful confinement and 3 years imprisonment for assault, concurrent and a non-parole period of 18 months. Crispin J took into account a number of subjective factors in imposing this sentence. The offender pleaded guilty. At the time the offender entered the house, while there was some measure of pre-meditation in the appellant’s actions (the decision to confine and interrogate the complainant), the offender did not intend to threaten the complainant with a knife or to kill his children. The offender stopped the violence and threats of his own volition.

At the time of offending, the offender was suffering from serious psychological illnesses including acute depression and adjustment order. It was submitted on the offender’s behalf that, because of this illness, this made the offender an inappropriate vehicle for general deterrence. Crispin J disagreed and stated,

‘The extent of his psychological condition is relevant to the issue of general deterrence but, in my view, the need to protect former spouses or partners from conduct of this nature cannot be so easily dismissed. Many people no doubt experience great stress upon the breakup of their marriages or other close relationships and in some cases they may suffer from symptoms of an underlying psychological illness or even become psychologically ill for the first time. One may and should respond with sympathy. However, when a person commits serious criminal acts against a former spouse or partner the court must take into account the need to deter other people from similar conduct. The risk of serious injury and, as in this case, grave emotional trauma may be at least as serious when the offender is psychologically ill. Accordingly, the need for deterrence should be given due recognition, though the weight which should be given to that factor will vary according to the circumstances of the case, and the actual sentences must be determined by reference to all relevant factors’ (See [19]).

Other relevant factors included that the offender was remorseful, he had no prior convictions and was previously a committed father and a person of impeccable character. He had taken steps to obtain counselling and achieved a significant measure of rehabilitation. He had already been imprisoned for 8 months and this caused significant distress in light of his inability to see his children and his potential to be a suicide risk.

However, Crispin J was unable to accept counsel submissions that the offender should be released on parole immediately. The offences were too serious to be dealt with in that manner — the complainant was confined for an extended period and intended to cause significant fear in the complainant.

R v Lorenz [1998] ACTSC 275 (14 August 1998) – Australian Capital Territory Supreme Court

‘Assault occasioning bodily harm’ – ‘Battered woman syndrome’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘General deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful confinement’ – ‘Where the offender is also a victim’

Charge/s: Robbery with an offensive weapon.

Trial: Judge only trial.

Facts: On 20 November 1996, Ms Lorenz (‘the accused’) entered a supermarket and attempted to purchase some cigarettes with her EFTPOS card from the complainant. The transaction could not be completed because there were insufficient funds in the account. The accused maintained she was sure there were funds in the account and re-tried the card but it was again declined. She then left the store. Ten minutes later, the accused returned to the store with a pen knife. She approached the complainant, held the knife out in front of her and said, ‘give me all your fucking money or I’ll slit your throat’. The complainant gave the accused $360 in cash and the accused left the store. While initially denying any involvement, the accused made admissions to the police.

Counsel for the accused argued that the accused was acting out of duress on the basis of a threat made by Ms Lorenz’s partner on the night before the robbery and repeated the following morning to the effect that if she did not obtain enough money to enable him to re-register his car he would kill her. This threat followed a pattern of violent and threatening behaviour towards the accused over a number of years (See [11]). On the morning of the robbery, the accused, who was pregnant with the couple’s third child, found out that she was unable to get the immediate payment of an advance payment from the Department of Social Security to pay the re-registration.

Decision and Reasoning: There was some discussion in this case of ‘battered woman syndrome’ (See [26]-[31]). Crispin J accepted that upon failing to receive advance payment from the Department of Social Security, the accused became frightened and confused and the robbery was an impulsive act due to her fear that her partner would kill her. His Honour stated: ‘In my view her failure to attempt to extricate herself from the situation whether by leaving him or otherwise is largely explicable by her fear and confusion. Furthermore, she may have thought that any escape would have been only temporary and that sooner or later [her partner] would have been bound to have caught up with her and carried out his threat’ at [30].

However, ‘a diagnosis of battered woman syndrome does not of itself give rise to any defence. The law does not recognise any general principle that people should be absolved from criminal conduct because they had been beaten or abused or because a psychological condition caused by such treatment may have led them to commit the offences with which they are charged. Nonetheless, evidence that such a person may have had a psychological condition of this kind may be relevant to several defences known to the law’ at [31].

Here, counsel for the appellant unsuccessfully attempted to rely on the defence of duress. In the accused’s favour, His Honour found that the threat was effective at the time of the offence, the accused did not fail to take advantage of a reasonable opportunity to render the threat ineffective, and, in light of the extremity of the actual and threatened violence displayed by the accused’s partner, a person of ordinary firmness of mind may have acted in the way the accused did (See [35]-[37]). However, the accused’s partner did not direct the accused to commit the offence and accordingly the defence of duress failed (See [38]-[41]). In the alternative, counsel for the accused attempted to rely on the defence of necessity. However, His Honour held that the imminence of danger fell well short of the required standard for the successful proof of the defence (See [42]-[45]). She was accordingly found guilty.

The accused left her partner shortly after the robbery and had formed a relationship with another man. She had just turned 23, had three children and was pregnant to her new partner. The new relationship was apparently a happy one. In these circumstances, and to give her the opportunity to start a new life for herself and her children, Crispin J found it appropriate to defer passing sentence on the condition that she enter into recognisance to be of good behaviour for a period of three years.

Magistrates' Court

Police v Blackwell (A pseudonnym) [2024] ACTMC 5 (19 March 2024) – Australian Capital Territory Magistrates’ Court

‘Sentencing’ – ‘Family Violence’ – ‘Breach of protection order’ – ‘Following, harrassing and monitoring’ – ‘Threats to distribute intimate images’ – ‘Sexual and reproductive abuse’ – ‘text messages’

Proceedings: Sentence.

Charge: Stalking with intention to harass in contravention of protection order x 2; threat to distribute intimate image of another x 1; contravention of protection order x 2; attempt to contravene a protection order x 1.

Facts: The male defendant and female complainant were married in 2008 and separated in 2022. In June 2022, the complainant obtained a protection order against the complainant, prohibiting any communication. [3]–[5]

The defendant breached this protection order, sending the complainant a total of 250 messages between June and August of 2022, and a total of 341 messages between August and November 2022. 290 of these messages were sent on 11 October 2022 and were of a threatening nature. [11] Included among these messages was a threat to distribute ‘intimate video footage’ of himself and the complainant engaged in sexual activity. [14]

In May 2023, the defendant was served a special interim protection order, as a result of the defendant’s persistent breach of the original order. [18]

Decision and reasoning: Partially suspended sentence of 81 days’ imprisonment and undertaking to comply with good behaviour obligations for 24 months. [157] Magistrate Temby had regard to the complainant’s impact statement, satisfied that the defendant’s ‘voluminous messaging, and … threats’ heavily impacted the complainant’s sense of safety and isolation. [29]

The defendant’s offending was regarded as ‘a serious example’ of stalking, occurring over an extended period (2.5 months) and involving a large volume of unlawful communication. [30] Similarly, the defendant’s threat to distribute a particular intimate image of the complainant was ‘an insidious kind of threat’, falling above the middle of the range in terms of objective seriousness [40] Magistrate Temby observed this offending occurred while the defendant was on ‘conditional liberty’. This is an aggravating factor on sentence. [50]–[51]

Magistrate Temby further noted the defendant’s mental health conditions (inc. anxiety, depression and Autism Spectrum Disorder) and alcohol use disorder. [98] However, the Magistrate queried the extent to which these conditions contributed to the defendant’s offending. [100] The Magistrate lastly observed the defendant’s lack of appreciation with respect to the harm of his actions and consequent lack of responsibility. [122]

TS v PU [2019] ACTMC 22 (12 July 2019) – Australian Capital Territory Magistrates’ Court

‘Employment’ – ‘Exposing children to domestic and family violence’ – ‘Final protection order application’ – ‘Firearm’ – ‘Hardship’ – ‘History of domestic and family violence’ – ‘Police domestic and family violence’ – ‘Suicide threat’ – ‘Weapon’

Proceedings: Application for final family violence order (FVO).

Facts: The male respondent and the female applicant both worked for the Australian Federal Police. An interim FVO prevented the respondent from working as an active officer as he was not allowed use of firearms. The circumstances of the offending included exposing the couple’s child to domestic and family violence, and text messages from the respondent threatening suicide including images of the respondent with a firearm in his mouth.

Decision and reasoning: A 24-month FVO was granted. In particular, the Magistrate considered the hardship to the respondent in making a FVO but noted at [34]-[35]:

“Those who have the professional privilege of using and carrying firearms in the workplace know full well that this grant of privilege for firearms can be revoked if their behaviour is inconsistent with a continued grant. The consequential effect of any order made in favour of the applicant relating to depriving the respondent’s ability to access firearms has weighed heavily in this decision. Ultimately, the respondent must take responsibility for his conduct in terms of the professional repercussions he has brought upon himself and the personal (and legal) repercussions caused by involving the applicant in his behaviour. Encouragement of him to so do is expressed in s 6 as an object of the FV Act.

Bearing all of the issues in mind, I find that in the circumstances of this matter, the level of hardship to the respondent caused by granting a final order does not outweigh the need to grant an order. That is, any s 14 hardship upon the respondent has not outweighed the s 6 and other competing s 14 considerations. I have decided to impose a final order and I turn my mind to the conditions of that order.”

Love v Kumar [2018] ACTMC 23 (31 October 2018) – Australian Capital Territory Magistrates’ Court

‘Assault’ – ‘Coercive control’ – ‘History of family violence’ – ‘Isolation’ – ‘People from culturally and linguistically diverse background’ – ‘Visa threats’

Charges: Common assault x 5.

Matter: Judgement.

Facts: The events relating to the charges took place between 2014 and 2017. The defendant male and complainant female were married and had one child. The 5 assault charges relate to the following alleged incidents:

1.

slapped complainant wife across face

2.

slapped complainant wife across face

3.

struck his child on the her back of shoulder because she was crying;

4.

pushed complainant wife’s forehead backwards striking the wall behind

5.

grabbed complainant wife’s hair and twisted her head and hit her face on wall

Decision and Reasoning: In relation to charges 1-3, the Magistrate was not satisfied that the case had been sufficiently made out to justify a finding of the accused’s guilt.

In relation to charges 4 and 5, the Magistrate found the accused guilty.

Special Magistrate Hunter OAM observed:

Taken together the evidence if accepted of giving information to officials at Immigration, the refusal to recant that information, the bruise to the head which is consistent with the allegation on 18th and the general information such as not allowing Ms Devi to have a phone, not allow her to contact her brother and the like which could lead to a conclusion that the defendant was controlling her life, (which is not unknown in domestic violence situations). It also leads to a conclusion that Ms Devi is speaking the truth and should be believed. [207]

And:

I am also satisfied that she had been controlled at least to some extent. That is supported by uncontroverted evidence that she had to secret a SIM card so that she could contact her family and brother by phone. This is consistent with the evidence from her brother that she had no access to contact him except by public phone until he gave her the SIM card. I am also satisfied she had limited access to friends and family. That evidence was corroborated by her brother and by the fact she used the SIM card he gave her to make the various phone calls she made to family and friends. I also note the Defendant had alluded to that control in some of his answers in the ROI such as those referred to by Prosecution counsel in her submissions. [209]

[Note: This decision was unsuccessfully appealed: Kumar v Love [2019] ACTSC 238 (30 August 2019) – Australian Capital Territory Supreme Court]

Last updated: July 2024

Australian Capital Territory

Court of Appeal

Deng v Australian Capital Territory [2024] ACTCA 10 (15 March 2024) - Australian Capital Territory Court of Appeal

‘Appeal against jurisdiction’ – ‘Arbitrary detention’ – ‘Prevention order’ – ‘Family Violence Act’

Proceedings: Appeal against jurisdiction and finding that remand was not arbitrary.

Charges: 1x Breach of prevention order

Facts: The applicant was arrested in 2019 and charged with destroying or damaging property. The Magistrate initiated a prevention order pursuant to s 112 of the Family Violence Act (ACT), prohibiting the applicant from engaging in certain conduct “until all related charges are finalised’. Four months later, another Magistrate finalised the relate charge by convicting the appellant and fining him $2000. This had the effect of ending the restrictions imposed by the prevention order. Two months later, the appellant visited the house of his ex-partner and was subsequently arrested and charged for breaching the prevention order. The applicant was remanded in custody and released 58 days later as the restrictions on the prevention order had terminated months earlier:

As a result of the wording of the family violence order, there was, in fact, no prohibition upon his being at his former partner’s house … as the only “related charge” had been finalised before that date [14]

Grounds of appeal: The applicant contested the legality of the Magistrate’s order, arguing:

1.

The Magistrate(s) acted without jurisdiction by making remand orders for a breach of a restriction which had terminated;

2.

The primary judge failed to consider the effect s 40C of the Human Rights Act (which concerns legal proceedings in relation to public authority actions).

Decision and Reasoning: Appeal dismissed.

The Court (McCallum CJ, Mossop and McWilliam JJ) agreed with reasoning of the primary judge: the fact that certain restrictions of a prevention order might end does not mean the prevention order also ends. The prevention order is only ended by operation of the Family Violence Act:

The inclusion of a statement as to the circumstances in which the prohibitions would cease (“until all related charges are finalised”) was unnecessary because s 30 of the FV Act itself determined when the order ended. Section 30 describes four specific circumstances in which an SIFVO [Special Interim Family Violence Order] comes to an end. That these describe the only circumstances in which the order may be ended is made clear by the language of the section: “A special interim order ends only when the first of the following happens …” [33]

Giving full effect to the terms of the statute and the terms of the order meant that the prohibitions upon being at a particular address or within a specified distance of a particular person within the order came to an end when “all related charges [were] finalised”. But the order itself, without any operative prohibitions, would continue in effect until, by operation of s 30, it came to an end [35]

Further, it was within the jurisdiction of the Magistrates Court to hear any arguments related to the charge and deal with the applicant, including by making remand orders where appropriate:

If the elements of an offence under s 43(2) were not established in the Magistrates Court beyond reasonable doubt, then there would be no jurisdiction to convict the appellant or impose a penalty. However, that there may not ultimately be jurisdiction to convict the appellant or impose a penalty does not deny the Magistrates Court jurisdiction to commence to hear the proceedings, including making any decisions about bail in the meantime, and determine whether or not the appellant is guilty or not guilty [44]

Director of Public Prosecutions v Padreny [2024] ACTCA 4 (16 February 2024) — Australian Capital Territory Court of Appeal

‘Appeal against sentence’ – ‘Manifestly inadequate’ – ‘Factual error’ – ‘Physical violence and harm’– ‘Damaging property’– ‘Threat to kill’– ‘Strangulation/choking’– ‘History of domestic and family violence’

Proceedings: Prosecution appeal against sentence.

Charges: 1x reckless threat to kill, 1x forcible confinement, 2x act endangering health (choke/suffocate/strangle), 3x common assault, 3x damage property less than $5000 in value, 2x assault occasioning actual bodily harm, 1x damage property, 1x make a demand with a threat to endanger health, safety, or physical well-being.

Facts: The male respondent was convicted and sentenced to 5 years and 7 months’ imprisonment for 14 offences committed against his female intimate partner over an eight-month period (February–October 2020). [128]

Grounds of appeal: The prosecution appealed the original sentence on four grounds:

1.

The sentencing judge erred in allowing a 25% discount for the respondent’s plea of guilty with respect to the offence of making a demand with a threat to endanger health, safety or physical wellbeing;

2.

The sentencing judge erred in allowing a discount in excess of 10% for the respondent’s pleas of guilty with respect to the offences of making a reckless threat to kill, assault occasioning actual bodily harm, and two instances of common assault and

3.

The sentencing judge erred in the assessment of the objective seriousness of the offence of assault occasioning actual bodily harm, by failing to take into account and/or misstating the material facts relevant to that assessment; and

4.

The sentence imposed was manifestly inadequate. [58]

Decision and Reasoning: Appeal allowed. Respondent sentenced to 8 years and 9 months’ imprisonment. [171]

With respect to the first two grounds of appeal, the Majority (McWilliam and Abraham JJ) held that there was no ‘evident justification’ for the plea discounts. [90] The respondent’s plea of guilty were arrived at late [92]; [97].

With respect to ground three, the Majority held that the sentencing judge’s assessment of the objective seriousness of the conduct constituting the charge of occasioning actual bodily harm was premised on a factual error. The sentencing judge mistook the extent of the harm caused by the impugned conduct as requiring surgical procedures when it did not. [104]–[105]

With respect to ground four, the Majority held the sentences to be manifestly inadequate. In comparison to relevant cases, the sentence imposed for the offence of choking, threat to kill, making a demand with a threat to endanger life were ‘substantially lower’. [127]; [132]; [133]; [138]; [140]

With respect to choking, the Majority summarised the following relevant factors in assessing objective seriousness:

For this offence, without being exhaustive, the following have been referred to: (1) the length of time during which the “choking” persisted; (2) the amount of force used; (3) whether the victim’s breathing was restricted; (4) whether verbal threats were made at the time of the choking; (5) whether the victim sustained any injuries; (6) whether any aides like rope or cable were used; (7) the vulnerabilities of the victim; (8) whether the conduct was deliberate and sustained, designed to threaten and inflict harm; and (9) whether the conduct occurred in a family violence context [131]

In dissent, Loukas-Karlsson J regarded ‘leniency in sentencing’ to not ‘equate to manifest inadequacy’. [2] For Loukas-Karlsson, the Prosecution failed to demonstrate ‘that a successful appeal on … grounds one and two would amount to anything more than “tinkering” with the sentence, that is, nothing but a slight adjustment in sentence’. [13] In effect, the sentence was neither ‘unreasonable or plainly unjust’ [26]; [43]

Day v R [2023] ACTCA 39 (11 October 2023) — Australian Capital Territory Court of Appeal

‘Appeal against sentence’ – ‘Physical violence and harm’ – ‘Strangulation/choking’ – ‘Prevention order’ – ‘pro-social conduct’

Charges: 2x choke, suffocate or strangle, 1x threat to kill, 1x contravention of prevention order, 1x transfer offence (damage property)

Proceedings: Appeal against sentence

Facts: The applicant was sentenced to 4 years and 6 months’ imprisonment for offences committed in a domestic violence context. The applicant and complainant/victim had a short relationship 2015–16 that recommenced in 2019. In September 2021, the applicant, unprovoked, pushed the complainant off their bed, and manually strangled her on the floor. Despite demanding the victim to leave, the applicant obstructed her from doing so and strangled her again. [8]–[12] The complainant managed to escape the house, and three months later sought a prevention order against the applicant. [13] Grounds of Appeal: The applicant appealed the sentence on the following grounds:

1.

The sentencing judge failed to take into account the appellant’s subjective circumstances;

2.

The accumulation of the individual sentences was excessive or the sentencing judge failed to take into account totality; and

3.

The individual sentences, the aggregate sentence and the non-parole period imposed were manifestly excessive.

Decision and Reasoning: Appeal dismissed.

The applicant did not establish any of the grounds of appeal. With respect to ground 1, the sentencing judge demonstrated no error in their approach to the subjective circumstances of the applicant [48]:

In any event, the matters identified by the appellant as “strikingly pro-social” going to rehabilitation, which he submitted were not identified or taken into account in sentencing, or not having been dealt with appropriately were, save for one limited matter, expressly identified by the sentencing judge. It may be accepted that they were not referred to with the emphasis or in the manner that the appellant might have desired, but the references reflected the material before the sentencing judge. The matter not referred to is that he has had a stable housing record since 2016 and has a positive relationship with his neighbours. It is unclear how, in the context of family violence offences, this matter could be characterised as strikingly pro-social conduct such as to materially impact on the sentencing [33]

With respect to the remaining grounds, the Court upheld the sentence as not manifestly excessive nor in discordance with the principle of totality [66];[69]. In so doing, the Court stressed the limitation of considering current sentencing practice:

Current sentence practice is only one sentencing consideration. The Crown referred the sentencing judge to a number of other cases during the sentencing hearing but observed that they were not really comparable. Simply because a case has different features does not mean it may not provide assistance generally as to the range of sentences being imposed. Factually comparable cases are difficult to find, as the facts of the offence and the offender are both relevant. Given that reality, a sentence imposed in a factually more serious case (or less serious case) may, with other cases, provide some guidance. The assistance depends on the facts of the given cases. This is bearing in mind, the relevant inquiry for manifest excess is not just a comparison between cases. His Honour considered the cases referred to, analysing the circumstances in which the sentences were imposed [63]

Vuolo v Fall [2023] ACTCA 33 (3 August 2023) — Australian Capital Territory Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Stalking’ ‘Following, harassing and monitoring’ - ‘family law’

Charges: 1x stalking

Proceedings: Appeal against sentence

Facts: Before a Magistrate, the applicant was found guilty of one charge of stalking and placed on a good behaviour order for 12 months. The offence was proven in relation to the applicant stalking his ex-partner, with whom he had been married between 2010 and 2017, on ‘six occasions, in just over a three-month period in the same year’. [1] The stalking occurred following handover of their children per shared-custody arrangements. [7]

The sentence was appealed, and subsequently overturned by a single judge of the Supreme Court (‘primary judge’) in favour of the complainant: the applicant was resentenced by a conviction and a good behaviour order imposed for a period of 12 months backdated to the original date of sentence.

Grounds of appeal: The applicants seeks to quash or set aside the orders of the Supreme Court judgement, and reinstate the orders imposed in the Magistrates Court. The applicant sought to appeal the order on seven grounds, which can be summarised as followed:

•

Grounds 1 and 4: The primary judge erred in finding that the non-conviction order (made by the Magistrate) was ‘an outlier’ [13]

•

Ground 2: The primary judge erred in finding that the use of a vehicle (to stalk) was relevant and aggravating [48]

•

Ground 3: The primary judge erred in adopting the Magistrate’s summary of the facts, which noted that the victim “felt fearful and harassed” by the applicant [52]

•

Ground 5: The primary judge erred in reasoning that if the sentence was treated as a guide for future decision, ‘it would lead to a wide range of offending not attracting punishment’ [28]

•

Ground 6: The primary judge erred in finding that the original sentence was manifestly inadequate [61]

•

Ground 7: The primary judge erred in failing to find that the Court on a review appeal retained a residual discretion to decline to interfere with the sentence even where error has been established [62]

Decision and Reasoning: Appeal dismissed.

The Court (Backer, McWilliam and Abraham JJ) dismissed grounds 1 and 2. The Court found no error in the primary judge’s conclusion that the sentence was an outlier. Previous sentences were considered, each including a term of imprisonment where the offending was objectively serious [21] (Ground 1 and 4). The Court held that ‘using a motor vehicle to follow a person is objectively more serious than other conduct which may also fall within the definition of stalking’ [50] (Ground 2).

The Court upheld the fifth ground of appeal, finding that the primary judge’s reasoning was not ‘directed to explaining why the sentence [of the Magistrate] is manifestly inadequate, but rather at the consequences of failing to correct it’. [45] The impugned statement was that a failure to correct the sentence would ‘erode sentencing standards’. [40] Consequently, the Court considered grounds 3, 6 and 7 in light of reconsidering the sentence.

The Court held the primary issue in dispute to be whether a conviction should have been recorded. [70] Having regard to sentencing objectives and considerations (Sentencing Act ss 7, 33), the Court held the original sentence (i.e. a good behaviour order without conviction) was manifestly inadequate and insufficient to meet the need for general deterrence. [86]–[88] The offending is ‘punishable by two years’ imprisonment’ [72]: it ‘was sustained conduct … sufficiently concerning to prompt evasive action by the victim’ and occurred in the context of family violence [73]–[75].

NS v Hotchkis [2021] ACTCA 13 (2 June 2021) – Australian Capital Territory Court of Appeal

‘Breach of protection order’ – ‘Common assault’ – ‘Evidence issues’ – ‘Protection orders’ – ‘Self-represented litigant’

Charges: Common assault x 1; Contravening a Family Violence Order x 1.

Proceedings: Appeal from ACT Supreme Court against convictions imposed in the ACT Magistrates Court.

Facts: The male appellant and female complainant were married and living together. The appellant kicked the complainant’s leg during an argument. The applicant breached a family violence order by engaging in offensive or harassing behaviour towards the complainant or by harassing, threatening or intimidating her. The complainant made an audio-recording and a central issue in the appeal was whether the magistrate in the initial hearing had erred in ruling that the audio recording was admissible. The appellant’s appeal to the Supreme Court against his conviction was dismissed: NS v Hotchkis [2019] ACTSC 309 (8 November 2019).

Grounds of appeal: The primary appeal judge erred in dismissing the first appeal on grounds that:

1.

The magistrate erred in ruling that the audio recording made by the complainant was admissible (pursuant to ss4 and 5(2)(d)-(e) of the Listening Devices Act 1992 (ACT) (LDA).

2.

The convictions were unreasonable and could not be supported having regard to the evidence.

Held: Appeal dismissed.

Ground 1: There was no error in the primary judge’s conclusion that ss 4 and 5 were not breached, as the complainant believed, on reasonable grounds, the recording was necessary for the protection of her lawful interests. Further, there was no error in concluding there was no prohibition in s 10 for the admissibility of the conversation. No question of the application of s 138 of the Evidence Act arose.

Ground 2: The primary judge reviewed the evidence, set out findings of fact and reasons given by the magistrate, and referred to the appellant’s submissions that the statements made did not breach the family violence order. There was no error in the primary judge’s conclusion:

“I have no hesitation in agreeing with the Magistrate that the evidence established a breach of the family violence order. Having listening to the recording on numerous occasions, I am satisfied that his conduct was, and was intended to be, harassing and intimidating. I agree with the Magistrate that he was yelling at [the complainant], and that his tone was aggressive. His suggestion that he was talking to the dog is improbable, but in any event I am satisfied that his conduct was really directed towards [the complainant], and intimidating her.”

“In finding the appellant guilty of assault, the Magistrate was entitled to take into account the clear aggression demonstrated by the appellant at the time that [the complainant] says she was kicked. She was also entitled to find that the appellant had threatened to “snot” [the complainant], and that this was a threat to hit her. The Magistrate was also entitled to find that the accused had kicked the rubbish bin just before he kicked the complainant, although his intention may have been to scare the dog. These were all circumstances supportive of the evidence of [the complainant]. Finally, the Magistrate had the benefit of seeing and hearing [the complainant] cross examined and the appellant giving his evidence. Her finding that [the complainant] was a credible witness, and the appellant was not, should not lightly be interfered with. I am satisfied that there was ample evidence upon which the Magistrate was entitled to convict the appellant.”

TS v DT [2020] ACTCA 43 (27 August 2020) – Australian Capital Territory Court of Appeal

‘Accommodation’ – ‘Appeal of family violence order’ – ‘Exclusion from home’ – ‘Ongoing risk’ – ‘Past domestic and family violence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Protection orders’ – ‘Self-represented litigant’

Proceedings: Appeal of Family Violence Order.

Facts: The matter was an appeal to the Court of Appeal following a final Family Violence Order (FVO) made against the appellant by the Chief Magistrate, and upheld on appeal by the Primary Judge: TS v DT [2019] ACTSC 295 (25 October 2019). The appellant sought that the FVO made by the Chief Magistrate be quashed, and no further orders made excluding the appellant from the premises of the family home (where the respondent was living).

Issues: The male appellant applied to adduce additional evidence in the appeal. The appellant also raised 12 grounds of appeal: the decisions of the Chief Magistrate (Ground 1) and Primary Judge (Ground 2) were unreasonable and not supported by evidence; the Chief Magistrate erred in running a final hearing on the FVO application (Grounds 3 and 10), making an FVO that was too long (2 years from final hearing) (Ground 4) and applying the Browne v Dunn principle (Ground 5); the Primary Judge attempted to cover up the Chief Magistrate’s alleged misconduct (Ground 6); the Chief Magistrate erred in law by relying on 2018 convictions (Ground 7) and the 2007/8 incident to support the making of the FVO (Ground 8); there was judicial misconduct by the Chief Justice in the conduct of the final hearing (Ground 9); and there was failure to have regard to evidence including relating to “property law issues” and the accommodation difficulties of the appellant (Grounds 11 and 12).

Decision and reasoning: The application to adduce additional evidence was refused ([52]-[64]), and the grounds of appeal were dismissed ([65]-[162]).

On Grounds 1 and 2, the decisions of the Chief Magistrate and Primary Judge were not unreasonable and were supported by evidence (including specific instances of violence against the respondent and her son, further supported by criminal convictions of the appellant) ([66]-[87]).

On Grounds 3 and 10, there was no error in making a final order excluding the appellant from access to the family home as the proceedings were run as a final hearing ([88]-[100], [142]-[143]). On Ground 4, the FVO’s duration was grounded in statute. Further, the Chief Magistrate weighed the competing interests of the appellant and the respondent (including the appellant’s accommodation difficulties) but found these could only be remedied by excluding the appellant from the family home ([101]-[112]). On Ground 5, there was no error in application of the Browne v Dunn principle ([113-[122]) and on Ground 6, there was no evidence of judicial bias ([123]-[125]).

On Ground 7, there was no miscarriage of justice relating to the 2018 convictions (which confirmed findings of instances of violence and substantiated the respondent’s fear) ([126]-[131]) and on Ground 8, appropriate regard was had to an incident in 2007/8 ([132]-[137]). On Ground 9, the Chief Magistrate’s conduct during the hearing was unremarkable ([138]-[141]).

On Grounds 11 and 12, the Chief Magistrate and Primary Judge had due regard to the evidence presented by the appellant, including evidence relating to “property law issues” and the accommodation circumstances of the appellant ([142]-[161]). On the property law issues, at [153]-[154], the Court noted:

“The appellant contends that the respondent had an additional purpose in seeking as a condition of the final FVO that the appellant be excluded from the family house – namely, an objective on the respondent’s part to obtain sole ownership of the family home. As I noted earlier, irrespective whether this was the case, there was clear evidence before the Chief Magistrate that the respondent would have difficulty relocating her place of residence and, further, that there was a history of violent conduct on the part of the appellant towards the respondent which supported the final FVO being made.

Further, and notwithstanding the submissions of the appellant to the contrary, the ultimate proper disposition of assets is a matter for the family law proceedings. That the respondent may seek sole ownership of the matrimonial home in those proceedings does not mean that her claims under the FV Act had no basis.”

Laipato v The Queen [2020] ACTCA 35 (7 July 2020) – Australian Capital Territory Court of Appeal

‘Appeal against conviction and sentence’ – ‘Evidence’ – ‘Inconsistent verdicts’ – ‘People affected by trauma’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Unreasonable, unsafe and unsatisfactory verdicts’

Charges: Burglary x 1 (guilty); Unlawful confinement x 1 (guilty); Choking x 1 (guilty); Indecent assault x 1 (not guilty); Choking x 1 (not guilty); Intentionally causing property damage x 3 (not guilty); Stealing CCTV hard drive x 1 (not guilty).

Proceedings: Application for leave to amend notice of appeal and for leave to appeal (grounds 3, 4, 6 and 7) and appeal against conviction and sentence.

Facts: The trial court found that the appellant man broke into his former partner’s (the complainant’s) house before dragging her from bed and strangling her. The complainant’s evidence was that the appellant ‘made her stay’ in the room by threatening to strangle her if she tried to leave, strangling her multiple times and threatening to kill her. The appellant allegedly committed property damage. There was some delay before the complainant alleged that the appellant had indecently assaulted her. The appellant allegedly ripped out the CCTV hard drive before leaving. The appellant also allegedly slashed the tyres of the complainant’s car.

Grounds of appeal: (1) Verdicts were inconsistent; (2) Verdicts were unreasonable, unsafe and unsatisfactory; … (6) Trial judge erred in making factual findings; (7) Sentences were manifestly excessive.

Decision and reasoning:

Grounds (1)-(2) Dismissed. There were rational explanations why the jury may have acquitted the appellant of some charges while finding the appellant guilty on others. One factor identified was that the complainant was upset and frightened; she ‘may have misremembered matters or failed to appreciate details’, although the complainant did make some errors in her evidence and did not directly witness some of the alleged charges/events. Where there were inconsistencies in the complainant’s evidence, the jury may have accepted that this was because she had just ‘survived a gruelling series of events’ [101].

Ground (6) Allowed. Two of the trial judge’s factual errors did not reduce the objective seriousness of the offence to something less than ‘midrange’:

[155] The offence was committed in the complainant’s home, during the night. It was motivated by a desire to vent anger and assert physical control over the complainant in response to her termination of the relationship. The offence was of not insignificant duration. It was associated with violence and a threat to kill; whether the violence was properly described as “extreme violence” poses a semantic question that is unnecessary to answer.

A third factual error of substance required the Court of Appeal to resentence on Counts 1, 2 and 3.

Ground (7) Allowed. Total sentence reduced from 5 years and 5 months to 3 years and 6 months.

R v UG [2020] ACTCA 8 (27 February 2020) – Australian Capital Territory Court of Appeal

‘Alcohol abuse’ – ‘Children’ – ‘Damaging property’ – ‘People with mental health issues’ – ‘Physical violence - threat to kill child - suicide threat- weapon’

Offences: Common assault x2; possessing offensive weapon with intent x1; d amaging property x 2; make demand with threat to kill x1; aggravated dangerous driving x1

Proceedings: Appeal against sentence

Issues: The Crown submitted that the sentences were manifestly inadequate:

•

The length of sentence for the offence of making a demand with threat to kill failed to reflect the objective seriousness of the offence;

•

The very limited degree to which the offences were cumulative meant that the total sentence was manifestly inadequate; and

•

The actual imprisonment period of four months was manifestly inadequate having regard to relevant sentencing purposes.

Facts: R (the appellant man) and C (the complainant woman) were in a relationship at the time of offending. An argument had broken out after R told C he wanted to commit suicide. R grabbed C as she tried to leave their shared bedroom and pushed her onto the bed (first common assault). He then retrieved a large axe from their wardrobe. R pushed C to the ground while they struggled over the axe (second common assault) and swung the axe at her head, narrowly missing. R used the axe to damage items within the house before forcing the couple’s four children into his car. He left and returned several times to demand C get in the car. He eventually threatened to kill their eldest daughter with the axe if C did not get in but drove away once more as police approached his vehicle. This led to a large-scale search. The R was located and arrested later that evening. While all four children were physically unharmed, the eldest daughter was later assessed by a paediatrician who thought it was likely that the offences significantly impacted her emotional and behavioural wellbeing.

On the day of offending, the respondent had failed to take his prescribed antidepressant medication and had consumed a significant quantity of alcohol.

Initially R pleaded not guilty to all charges. Following discussions between the parties the respondent pleaded guilty to six charges and was committed to the Supreme Court for sentence.

The sentencing judge imposed a total sentence of 16 months’ imprisonment.

Judgment: In addressing the first aspect, the Court noted that while the offender’s mental health condition somewhat reduced his moral culpability, it was still necessary to consider the sentencing purposes of general deterrence and denunciation. By failing to reflect these purposes, along with the high objective seriousness of the offence, the sentence starting point of 18 months’ imprisonment for the offence of making a demand with threat to kill was "plainly unreasonable" [69-71]. For the second aspect, the Court believed the degree of cumulation failed to achieve a total sentence that was just and appropriate to reflect the overall criminality [73]. The Court did not make a decision as to the third aspect as they had found they had already found the sentences to be manifestly inadequate for other reasons. Despite finding the sentences manifestly inadequate, the Court refused to resentence the offender on the basis that the appeal raised no point of principle, had limited precedent value and would disrupt the offender’s rehabilitation [97].

The Court also discussed the preliminary issue of the correct approach to sentencing for family violence offences and the correct manner of dealing with the effect of a sentence of imprisonment on the offender’s family [44]. The Court rejected the Crown’s contention that family violence offences constitute a special category of offence in relation to which different sentencing principles apply, and instead provided that absent a statutory provision to the contrary, the same sentencing standards should apply to all offenders (Bugmy v The Queen) [48]-[51].

R v Wyper [2017] ACTCA 59 (11 December 2017) – Australian Capital Territory Court of Appeal

‘Appeal against conviction’ – ‘Complainant's credibility’ – ‘Crown appeal against sentence’ – ‘Intensive correction order’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Post-separation violence’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charges: Engaging in sexual intercourse without consent and being reckless as to whether the person was consenting x 1.

Appeal type: Defendant’s appeal against conviction and Crown appeal against sentence.

Facts: The complainant and defendant were in a relationship ([11]). The defendant asked the complainant to leave the house; she did not want to leave. The complainant alleged that the defendant held her down and digitally penetrated her ([13]). The defendant denied that he digitally penetrated the complainant, and alleged that she damaged a number of his belongings ([14]). The defendant called the police about the property damage, and the complainant called the police about the sexual assault 2 hours later ([20]-[21]). A medical examination of the complainant revealed abrasions consistent with assault ([23]).

The defendant was convicted at trial. He was sentenced to 2 years and 6 months’ imprisonment, served by way of intensive correction order (‘ICO’), and 100 hours’ community service ([2]).

Issues: The defendant appealed against conviction on 3 grounds: (a) the verdict was unsafe and unsatisfactory; (b) the trial judge caused a miscarriage of justice by failing to fairly put the defence case to the jury; and (c) the trial judge caused a miscarriage of justice by failing to direct the jury that the complainant had a motive to lie.

The Crown appealed on the ground that the sentence was manifestly inadequate.

Decision and Reasoning: Both the defendant’s appeal against conviction and Crown appeal against sentenced were dismissed ([8]).

Appeal against conviction

On ground (a), the defendant argued that the verdict was unsafe and unsatisfactory having regard to the unreliability of the complainant’s evidence. The Court (Murrell CJ, Bromwich J and Robinson AJ) held that while it was ‘somewhat implausible’ that the complainant did not cause the property damage, it was open to the jury to convict the defendant ([53]).

On grounds (b) and (c), the defendant argued that the judge should have directed the jury on the complainant’s possible motive to lie to avoid the consequences of her causing the property damage. However, the Court stated that the summing up was fair, given that the motive to lie was not a large issue in the trial ([66]-[68]).

Crown appeal against sentence

The Crown argued that by ordering an ICO, the trial judge failed to give adequate weight ‘to the principle that, for family violence offences, the sentencing purposes of general deterrence and denunciation are particularly important’ ([96]). The Court reiterated the importance of general and specific deterrence in sentencing family violence offenders ([97]), however, the Court emphasised the exceptional nature of the offending at [99]:

This was not a typical offence of family violence. There was no evidence of a history of domestic violence, controlling behaviour or psychological abuse. There were none of the typical indicia of power imbalance. Rather, the offence occurred in the context of a relationship ending, without those features apparently being present.

Imposing an ICO, while lenient, was justified by the defendant’s subjective circumstances, such as his lack of criminal history, and the fact that there was no history of domestic violence in the relationship ([129]-[130]).

O’Brien v R [2015] ACTCA 47 (15 May 2015) – Australian Capital Territory Court of Appeal

‘Assault occasioning bodily harm’ – ‘Double jeopardy- sentencing’ – ‘Exposing a child’ – ‘Perverting the course of justice’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation’ – ‘Sentence cumulation’ – ‘Sentencing’ – ‘Systems abuse’ – ‘Trafficking in cocaine’

Charge/s: Trafficking in cocaine, assault occasioning actual bodily harm (two counts), forcible confinement, perverting the course of justice. Grievous bodily harm.

Appeal Type: Appeal against sentence.

Facts: The sentence imposed at first instance related to three distinct instances of criminality: the drug offence, the domestic violence offences and the perverting the course of justice offence. The domestic violence offences involved the appellant severely beating his then domestic partner which caused horrific injuries. He also choked her in the presence of his young son, restrained her from leaving their premises and forced her to take prescription sedatives so as to prevent her from seeking medical treatment which would reveal the assaults. He detained her for 24 hours. The perverting the course of justice offence involved the appellant encouraging his (by then former) partner not to attend court in relation to the domestic violence charges and encouraging her to produce false evidence about her psychological frame of mind. The aggregate sentence imposed was 12 years and 11 months’ imprisonment with a non-parole period of 8 years and 4 months.

Issue/s: Whether the aggregate sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The appellant submitted that the domestic violence sentences should not have been made cumulative on the sentences for the drug offences. He also submitted that the sentencing judge did not apply the totality principle. The Court held that while the aggregate sentence could be considered by some to be somewhat harsh, it was not unreasonable and was appropriate having regard to all the circumstances. There was no overlap in the three instances of criminality, nor could it be said that the three incidents arose from a single episode or course of conduct, ‘such that the criminality involved in one of the incidents was subsumed or comprehended in the others’ (see at [29]). The sentencing judge did take accumulation, concurrency and totality into account and did impose a degree of concurrency.

Kien v R [2012] ACTCA 25 (24 May 2012) – Australian Capital Territory Court of Appeal

‘Choking so as to render unconscious’ – ‘Exposing a child’ – ‘Intentionally inflicting actual bodily harm’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Risk factor- strangulation’ – ‘Sentencing’

Charge/s: Intentionally inflicting actual bodily harm, choking so as to render unconscious.

Appeal Type: Appeal against sentence.

Facts: The appellant’s marriage with his wife ended and she obtained a domestic violence protection order against him (though this was not in place at the time of the offence). The appellant went to the family home and an argument ensued, which developed into a physical fight. The appellant then took a chair from his wife (which she was threatening to throw at him) and struck her with it so forcefully that it broke into pieces. He then choked her until she became unconscious. He then wrapped a towel around her neck and used both hands to pull the material down toward the floor. A domestic violence protection order was previously in place in favour of the victim. He was subject to a good behaviour order at the time of the offences imposed for a prior breach of the protection order. He was sentenced to a total of four years and seven months’ imprisonment with a non-parole period of three years and one month.

Issue/s:

1.

Whether the sentencing judge erred in finding that the offences were unprovoked.

2.

Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

1.

The appellant submitted that the fact the offences were not unprovoked should have mitigated the severity of the sentence. This argument was rejected — the actions of the victim were all in response to the appellant coming to the matrimonial home where he was not welcome. He was asked to leave but did not do so. His response to his wife’s actions were so disproportionate that they could not have been seen as provocative.

2.

Counsel for the appellant submitted that two comparable cases showed the sentence was manifestly excessive. This argument was rejected, with the Court holding that the offences were serious and resulted in severe facial injuries committed in a context where the appellant was not welcome in the house. While they were heavy sentences, they were proportionate to the criminality involved.

Stevens v McCallum [2006] ACTCA 13 (30 June 2006) – Australian Capital Territory Court of Appeal

‘Assault’ – ‘Contravention of a protection order’ – ‘Evidence issues’ – ‘Hearsay’ – ‘Hostile witness’ – ‘Incompetence of counsel’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Unco-operative witness’

Charge/s: Assault, contravention of a protection order.

Appeal type: Appeal against conviction and appeal against sentence.

Facts: The appellant was charged with assaulting his female partner (‘the complainant’) and contravening a protection order in her favour. He pleaded guilty to assault but not guilty to contravening a protection order. The offending came to light after a police officer (‘the informant’) attended the complainant’s premises. The informant observed that the complainant was very distressed and had bruises on her body. A conversation between the complainant and the informant was recorded. In this conversation, the complainant made some allegations that the appellant had hit her but she was largely unresponsive to questions and was affected to a considerable degree by alcohol (See [41]-[43]). At trial, the prosecution sought to prove the tape and transcript of this conversation only for its possible use in refreshing the complainant’s memory. However, counsel for the appellant, Mr Elmaraazey, tendered this document as evidence (‘exhibit 3’).

The complainant was called to give evidence after the informant. When asked about whether there was an incident between her and the appellant, she stated ‘I can’t remember the exact details’ and proceeded to give an account of the evening that made no reference to any physical violence. She agreed that she had a conversation with the informant but could not recall its contents. The prosecution then proceeded to cross-examine the complainant about the various bruises that had been observed on her that evening. The complainant said she could not remember how the bruises happened. The prosecution applied to the magistrate for leave to cross-examine the complainant on the basis that the witness had made a prior inconsistent statement with reference to exhibit 3. Mr Elmaraazey did not object. The complainant’s response was to accept that exhibit 3 accurately reflected what she had told the informant but she could neither confirm nor deny that it represented what actually happened (See [26]-[40]). Accordingly, absent the tender of exhibit 3 as evidence, there would have been insufficient evidence to convict the appellant (See [47]).

The magistrate found the appellant had assaulted the complainant and sentenced him to 12 months imprisonment for the assault and 3 months imprisonment for the breach of protection order. He was sentenced to an additional 6 months imprisonment for breach of an earlier imposed recognisance.

Issue/s:

1.

The incompetence of counsel for the appellant, Mr Elmaraazey, led to a miscarriage of justice.

2.

The sentencing magistrate erred in assuming that the injuries sustained by the complainant were the result of a ‘violent and prolonged’ assault.

Decision and reasoning: The appeal was allowed. First, in the absence of the tender of exhibit 3 by Mr Elmaraazey, it was, at the very least, unlikely that the statement would have been admitted as evidence that the appellant assaulted the complainant. It was open to the prosecutor to seek leave to give the statement to the complainant to refresh her memory, if s 32 of the Evidence Act were satisfied. However, the failure of this process to refresh the complainant’s memory meant the prosecutor could not tender the prior statement as evidence of the truth of its contents (See [145]-[180]). There was a resulting miscarriage of justice (See [181]-[191]).

Second, the sentencing judge erred in assuming that all the injuries resulted from the charged assault. Even if the terms of exhibit 3 had been properly proved, they included an allegation of assault that had occurred the previous evening. The only unequivocal allegation of recent violence was that the appellant hit her in the face on their return from the shops. It was an error not to attempt to distinguish between the violence inflicted the previous night and those in the hours preceding the interview with the informant (See [196]-[207]).

Supreme Court

DPP v Vaana [2024] ACTSC 46 (27 February 2024) – Australian Capital Territory Supreme Court

‘Sentencing’ – ‘Family Violence’ – ‘Coercive control’ – ‘Exposing children to domestic and family violence’ – ‘Damaged property’ – ‘Threat to kill’ – ‘Bugmy principles’

Proceedings: Sentence.

Charge: Aggravated damage x 1; possession of offensive weapon with intent x 1; aggravated threat to kill x 1.

Facts: The male offender engaged in a pattern of ‘overbearing, controlling behaviour’ towards his female partner (the complainant). [8] Attending a football match, the offender demanded the complainant hand over her mobile phone and passcode. When the complainant refused to do so, the offender left to the supermarket, purchased a knife and returned to puncture the complainant’s car tyres. [8]–[11] While wielding the knife, the offender threatened the complainant’s family, all of whom were present at the football match and witnessed the incident. [19]

The Registrar of the Magistrates Court refused to list the matter that day and the temporary application was listed a week later. The applicant was informed that the application in the proceeding must be served on the respondent. The applicant then appealed from the decision not to list the matter on an urgent basis and the requirement to serve documents on the respondent. The appeal was listed on an expedited basis.

Decision and Reasoning: Total effective sentence of 18 months’ imprisonment. [44] In sentencing the offender, Berman AJ spotlighted the delayed recognition of domestic violence offences as a serious offence:

For many years, domestic violence offences were not treated with the seriousness they truly deserved. This has now changed, and proper recognition is now given to the harm that such offences cause to the victims of it, and society generally [1]

Acting Judge Berman emphasised the seriousness of the offending, particularly that it occurred in a public space in front of the offender’s children. [24] His Honour took into account the offender’s dysfunctional and violent upbringing, and criminal history which included offences of stalking/intimidation and damaging property. [27]–[30]

DPP v Mastalerz [2024] ACTSC 30 (19 February 2024) – Australian Capital Territory Supreme Court

‘Tendency Evidence’ – ‘Relationship and context evidence’ – ‘Admissibility’ – ‘Family violence’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘breach of protection orders’ – ‘incidents of violence’

Proceedings: Application to adduce tendency evidence.

Charge: Aggravated sexual intercourse without consent x 6; aggravated common assault x 1; aggravated minor property damage x 1; contravention of protection order x 3.

Facts: The male accused and female complainant were in an ‘on-and-off relationship’ from April 2017 to December 2022. [9] The relationship was riddled with family violence perpetrated by the accused against the complainant. [9] The violence was physical, sexual and in disregard of several protection orders made by the complainant. [13]–[20]

On 23 November 2023, the prosecution filed an application to adduce tendency evidence (and subsequently, an Amended Notice). The evidence concerned prior incidents demonstrative of three tendencies: (i) the accused’s tendency to be violent towards and controlling of the complainant; (ii) the accused’s tendency to disregard court orders regulating his contact with the complainant; and (iii) the accused’s tendency to ignore the complainant’s protests when she declined sexual intercourse. [3] In the alternative, the prosecution sought to adduce the evidence as relationship or context evidence. [4]

Decision and Reasoning: The evidence of certain listed incidents is relevant and admissible as relationship or context evidence in support of counts 1–3 and 6–8 on the indictment. [5] Evidence of those incidents must not be used in support of the first two tendencies. Whether such evidence may be used in support of the third tendency is a matter for the trial judge. [6]

In arriving at these conclusions, Baker J made clear the distinction between context or relationship evidence and tendency evidence:

The reasoning process for context or relationship evidence is different to tendency reasoning. For example, evidence may be relevant as context or relationship evidence because it explains why the complainant did not respond to the alleged offending in a way that the jury might have expected if they were unaware of the broader context of the relationship. The use of evidence in this way does not engage tendency reasoning. It is concerned with the believability of the complainant’s response, rather than with the tendency of the accused [50]

Similarly, context or relationship evidence may also be relevant to a consideration of the accused’s state of mind without engaging tendency reasoning. For example, it may be necessary for the tribunal of fact to hear broader evidence of the relationship between an accused and the complainant in order for the tribunal of fact to draw accurate inferences about an accused’s state of mind, or their reason for acting in a particular way towards the complainant. Again, the use of evidence in this matter does not engage tendency reasoning. It is not reasoning which involves the tendency of an accused to have a particular state of mind or to act in a particular way [51]

Justice Baker held the uncharged incidents to be particularly relevant as context or relationship evidence, bearing a strong potential to provide assistance to the jury in understanding ‘why the complainant acted as she did’; specifically, ‘why the complainant permitted the accused to return to her in breach’ of the protection order. [62] This included those uncharged incidents which, when considered in isolation, seemed relatively minor:

In the present case, some of the incidents sought to be adduced by the prosecution may, when considered in isolation, seem minor. For example, as the prosecutor acknowledged, incident 13, where the accused is alleged to have thrown a cheeseburger at the complainant, may appear insignificant when considered alone. However, the relentlessness of the accused’s behaviour towards the complainant may be an important aspect of the complainant’s experience of the relationship, which in turn may be essential to an understanding of the complainant’s state of mind, and why the complainant responded as she did [68]

Accordingly, her Honour rejected the accused’s argument that the incidents should be rejected because they involved less serious conduct. [77]

With respect to tendency evidence, Baker J accepted that evidence of accused’s tendency to inflict violence on an intimate partner ‘may have significant probative value in assessing similar allegations of domestic violence’. [86] However, this is not determinative of the probative value of tendency evidence:

[T]he Court must consider two questions when considering the probative value of a tendency of this nature:

(1) Does the evidence that is sought to be adduced, either by itself, or considered with other evidence, strongly support proof of the tendency?

(2) Does the tendency strongly support proof of a fact that makes up the offence charged? [88]

In raising this test, Baker J had difficulty in determining how the tendency alleged is probative of the facts alleged in the relevant offences. [96]–[99]

DPP v Robertson [2023] ACTSC 383 (12 December 2023) – Australian Capital Territory Supreme Court

‘Sentencing’ - ‘Attempted murder’ - ‘Physical violence and harm’ - ‘Attempted breach of protection order’ - ‘fire’ - ‘jealousy’

Proceeding: Sentence.

Charge: Attempted murder x 1; attempted breach of a protection order x 1.

Facts: Unbeknownst to the female victim, the male offender was waiting outside her bedroom window, eavesdropping on her telephone conversations with her son and ex-partner. The offender entered the victim’s residence, snatched her phone and proceeded to inflict multiple, potentially life-threatening, stab wounds on the victim before attempting to set the victim on fire as she called out for help. [4]–[6] The nature of the relationship between the offender and victim is unclear. However, there was a protection order in place, which the offender attempted to breach prior to this offending by sending the victim a Christmas card. [15]

Decision and Reasoning: Twenty-seven years’ imprisonment with a non-parole period of 20 years. Chief Justice McCallum held the offence to fall within ‘the worst category’ of attempted murder:

The offence involved a degree of premeditation, having occurred in the contact that the offender, unbeknownst to the victim, was listening to her phone conversations outside her bedroom then going inside and grabbing a knife and walking into her bedroom to commence the attack [16]

The offending was aggravated by the offender’s previous assaults against the victim in 2017 and 2021, [25]–[26] and present lack of remorse and prospects of rehabilitation. [45]

Harbouring such contempt for the value of a supposed loved one’s life, knowing from past experience that it is a hair trigger for jealous rage, is no less morally culpable than harbouring a calculated intent to kill [30]

DPP v Jewell [2023] ACTSC 348 (23 November 2023) – Australian Capital Territory Supreme Court

‘Sentencing’ - ‘Strangulation/choking’ - ‘Physical harm and violence’ - ‘Following, harassing and monitoring’ - ‘Family Violence’ - ‘Protection order’ - ‘Threat’ - ‘Exposing children to domestic and family violence’

Proceeding: Sentence.

Charge: Making an aggravated threat to kill another person x 1; aggravated stalking x 1; contravention of a protection order x 1.

Facts: In the months after the breakdown of their two year relationship, the offender became ‘very possessive of, and paranoid about, the victim’. [6]

The offender repeatedly called the victim, incessantly sending text message every day [7]. The offender threatened to, and actually did, attend the victim’s home. On one occasion, the offender armed with a knife, forced his way into the victim’s home one night and threatened to kill her. The victim’s children were in the home at the time. [10]–[12]

The offender continued to stalk the victim after this incident, prompting the victim to seek a protection order. [22]–[23] The offender breached this order by persistently contacting the victim via phone and attending her home [25]–[26]

Decision and Reasoning: Total sentence of 7 years and 5 months’ imprisonment with a non-parole period of 3 years and 9 months imprisonment. [115] Judge McWilliam held the aggravated threat to kill was of the ‘most serious kind’. [44] The offender made the threat in person, in the victim’s home at midnight while pointing a hunting knife at the victim. Accordingly, the ‘subjective fear engendered in the victim was at its highest’. [44]

This characterisation extends to the offender’s aggravated stalking. The volume of communication and stalking conduct was ‘high’, with the offender making 138 phone calls, 950 texts messages and 10 house attendances. More than 300 of those messages were sent on one day. [52] These messages were sent with the clear intent to instil fear into the victim and her son. [55]

Her Honour took note of the offender’s dysfunctional childhood, PTSD diagnosis ([71], [111]) and guilty pleas as mitigating factors. [91]

DPP v Gale [2024] ACTSC 297 (17 October 2023) – Australian Capital Territory Supreme Court

‘Sentencing’ – ‘Strangulation/choking’ – ‘Following, harassing and monitoring’ – ‘Family Violence’ – ‘Bugmy prinnciples’ – ‘Threat’ – ‘Emotional and Psychological abuse’ – ‘Aboriginal’ – ‘Bail’

Proceedings: Sentence.

Charge: Threatening a witness x 1; intentionally and unlawfully choking x 2; aggravated stalking x 1; aggravated assault occasioning actual bodily harm x 1.

Facts: In July 2023, the male offender pleaded guilty to a series of offences committed against his former female partner (‘complainant’), with whom he had been in an intimate two year relationship. [3]

The offending occurred throughout their relationship, as early as May 2022 when the offender strangled the complainant. While detained in custody for this incident, the offender persistently communicated with the complainant via email in a ‘threatening manner’; specifically, the offender told the complainant ‘to retract her statement to police’ as she had lied due to ‘mental health’. [9]–[10] The complainant complied with these threats and the offender was released on bail. The offender continued to be violent towards the complainant, stalking, choking and verbally abusing her. [13]–[28]

Decision and Reasoning: Two years’ imprisonment. Judge Mossop took note of the offender’s guilty plea [60] and criminal history, with convictions for drink-driving, weapons and cannabis possession and previous conviction of choking the complainant. [58]–[59]

Further, Mossop J considered the offending to involve ‘serious family violence offending and other offending designed to control or manipulate the victim’. [63] Such violence was present throughout the offender’s childhood: ‘his father provided a role model involving violence against women and unlawful conduct’. [64]

DPP v Linsley [2023] ACTSC 255 (12 September 2023) – Australian Capital Territory Supreme Court

‘Sentencing’ – ‘Strangulation/choking’ – ‘Physical violence and harm’ – ‘Emotional and psychological abuse’ – ‘Rehabilitation’

Proceedings: Sentence.

Charge: Intentionally and unlawfully choking x 1.

Facts: The 20 year old male offender choked and rendered unconscious his female intimate partner. [5] The incident occurred at the complainant’s home, during an argument concerning who owned a gaming console. [7] The complainant regained consciousness, finding herself on the ground with the offender’s hands still pushing down on her neck. [7] The offender let go, and the complainant fled her home and informed a youth support worker of what occurred. [8]

Decision and Reasoning: Sixteen months’ imprisonment, Good Behaviour Order (16 months) and psychological treatment [36]. In sentencing the offender, Berman AJ regarded the protection of the community ‘best achieved’ by the imposition of a sentence focused on the offender’s rehabilitation:

If the sentence aids in bringing about a situation where the offender commits no further crimes, then the community benefits. This is one of those matters where it is appropriate to focus on rehabilitation, despite the serious nature of the offender’s misconduct[ 2]–[3]

Acting Justice Berman noted the offender’s young age (20 years old), anxiety, depression, history of suicidal ideation and ADHD-diagnosis, [15] balancing these considerations with the seriousness of the offence:

The objective gravity of the offender’s conduct is such that nothing less than a sentence of imprisonment would properly reflect what the offender did. At the risk of repetition, the complainant was in her own home, he choked her more than once and with enough force to cause her to lose consciousness and be unable to breathe. She had obvious injuries and, even in the absence of a victim impact statement, I am satisfied that she would have suffered psychologically as well. All this, simply because they were arguing over who owned the Xbox [31]

Groves (a pseudonym) v Everette (a pseudonym) [2023] ACTSC 27 (22 February 2023) – Australian Capital Territory Supreme Court

‘Appeal from decision of registrar not to list a matter on an urgent basis for the hearing of an application to temporarily extend a protection order’ – ‘Matter remains listed in magistrates court’ – ‘No decision to refuse to amend protection order’ – ‘Protection order’ – ‘Supreme court jurisdiction not enlivened’ – ‘Whether court has jurisdiction to hear appeal’

Proceedings: Appeal from Registrar of Magistrate Courts’ refusal to list application for a temporary extension of a final protection order for urgent hearing.

Facts: The female applicant sought an extension of a final family violence order (and temporary extension pending the hearing) due to expire the same day. She sought an urgent hearing of the application and that it be heard in the absence of the respondent.

The Registrar of the Magistrates Court refused to list the matter that day and the temporary application was listed a week later. The applicant was informed that the application in the proceeding must be served on the respondent. The applicant then appealed from the decision not to list the matter on an urgent basis and the requirement to serve documents on the respondent. The appeal was listed on an expedited basis.

Reasoning and decision: The matter was adjourned without making a decision on the application or appeal, as the judge found that the court did not have jurisdiction over the Registrar’s decision.

Loukas-Karlsson J considered the jurisdiction of the Supreme Court to deal with the matter under s 92 of the Family Violence Act, determining that the court would have power over a registrar’s refusal to make an amendment to the final order. However, Her Honour found the registrar’s decision in this case did not constitute a refusal and was effectively related to internal listing matters. The fact that the Registrar had listed the application for a week’s time was clear evidence that they had not refused the application.

The applicant had raised r 3803(c ) (Court Procedures Rules 2006 (ACT)), excluding family violence proceedings from appeals (r 6256), to argue that there was no avenue for an appeal in the Magistrates Court. However, Her Honour determined that the order could be varied at the Magistrate’s discretion as finding otherwise would leave the appellant with no avenue to challenge an order.

Her Honour considered that the appellant had taken reasonable steps to attempt to serve the application and affirmed that the Magistrate had the power to vary or amend the Registrar’s order requiring personal service.

In the addendum, Her Honour noted that the decision not to hear the application for a temporary extension on the day it was made was ‘remarkable’ and left the applicant with no protection.

DPP v McGary [2023] ACTSC 14 (2 February 2023) – Australian Capital Territory Supreme Court

‘Evidence’ – ‘Ground rules hearing’ – ‘Pre-trial application’ – ‘Sexual assault’ – ‘Special witness provisions’ – ‘Support person’ – ‘Victim fear’ – ‘Young people’

Proceedings: DPP pre-trial application for:

1.

An intermediary to be appointed for the complainant witness and a ground rules hearing be held

2.

The witness (complainant’s father) give evidence by audio-visual link

3.

The complainant’s father give evidence with a support person present

Facts: The respondent had been charged with two counts of sexual intercourse without consent and plead not guilty to each.

The respondent and complainant had been in a relationship for a few months. The charges related to an incident during the relationship where the respondent digitally penetrated the complainant’s anus and had anal intercourse with her despite her objections and resistance. She claimed that she continued in the relationship for a short time following the assaults as a matter of self-preservation, feeling it would be dangerous for her to end the relationship. She sought medical assistance and subsequently disclosed the sexual assault before ultimately making a police complaint.

The complainant’s father, whose evidence included the changes he noted in the complainant’s demeanour after the alleged incident, suffered from a significant cardiac condition.

Reasoning and decision:

•

The Director’s application under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for the appointment of a witness intermediary for [the complainant] is dismissed.

•

The witness, [redacted], give their evidence at the trial by audio-visual link from a place in the Australian Capital Territory (ACT) that is outside the courtroom, namely the Court’s remote witness room, pursuant to s 32(1)(a) of the Evidence (Miscellaneous Provisions) Act 1991(ACT)

•

The witness, [redacted], give their evidence at the trial with a support present, pursuant to s 49(1) of the Evidence (Miscellaneous Provisions) Act 1991(ACT)

a.

Baker J was satisfied that the complainant suffered anxiety, stress, PTSD and elements of depression. While there was no evidence of these conditions continuing, her Honour emphasised that the stress of giving evidence in court could lead to an exacerbation of the issues.

While the conditions were recognised as potentially affecting someone’s ability to communicate, HH found that there was no evidence from the police interview or medical records indicating that the complainant’s conditions had affected her ability to communicate. Her Honour highlighted that the purpose of a witness intermediary is not to reduce stress or be a support person but to facilitate communication and refused the application.

b.

Baker J found that it was in the interests of the administration of justice that the complainant’s father testify via audio-visual link on account of his cardiac condition, as giving evidence would exacerbate stress and impact his health. No unfair prejudice was found as the evidence was not likely to be contentious and the jury could be given appropriate directions.

c.

Her Honour was satisfied that it was in the interests of justice that a support person be provided as the father’s cardiac condition met the threshold of ‘disability’ and the impact of stress on his health would affect his ability to give evidence.

Alvin (a pseudonym) v Director of Public Prosecutions [2022] ACTSC 358 (20 December 2022) – Australian Capital Territory Supreme Court

‘Bail application’ – ‘Bail review’ – ‘Change in circumstances’ – ‘Domestic violence offences’ – ‘Drug rehabilitation’ – ‘Offending whilst on bail or facing charges for other offences’ – ‘People who are affected by drug and alcohol misuse’ – ‘Plea of guilty’ – ‘Review of decision of magistrates court’

Proceedings: Bail application.

Facts: The applicant had been refused bail by a Magistrate. He subsequently pleaded guilty to multiple charges, including domestic violence offences against his former partner. The applicant gave evidence that he had remained drug free while in custody, despite drugs being readily available. He was unable to enter a rehabilitation program unless he was released and had the powerful motivating factor that he has been advised by Child Youth and Protection Services he would not have care of his two children until he completed a course of residential rehabilitation.

Reasoning and decision: Bail granted.

The applicant’s recent plea of guilty to a number offences constituted a change in circumstances, removing the risk to the applicant’s partner that she would be prevailed upon by him to withdraw complaints.

Special and exceptional circumstances were also found in the new incentives for the applicant to undertake residential rehabilitation. McCallum CJ reasoned that the fixing of the sentencing date would motivate rehabilitation and, more significantly, Child Youth and Protection Services has notified him that he had to undergo rehabilitation before they would restore care of his two children. This included the infant child he had with his current partner who was victim to some of the domestic violence offences.

While there was evidence of a history of conflict with his current partner, this occurred while he was addicted to ice and the Court accepted that he appears to have remained drug free since being in custody. While some risk of him returning to drugs was identified, McCallum CJ found that it was warranted to allow the applicant the opportunity to rehabilitate.

DPP v Dunn [2022] ACTSC 355 (16 December 2022) – Australian Capital Territory Supreme Court

‘Breach of protection order’ – ‘Coercive control’ – ‘Past domestic and family violence’ – ‘Physical violence’ – ‘Protection order’ – ‘Rape’ – ‘Sentencing’ – ‘Separation’ – ‘Sexual abuse’ – ‘Strangulation’

Proceedings: Sentencing following a plea of guilty to:

1.

Common assault (s26 Crimes Act 1900 (ACT))

2.

Choking, strangling or suffocating (s28(2)(a))

3.

Sexual intercourse without consent (s54)

4.

Contravening a family violence order (s43(2))

Facts: The offender and victim were in a relationship. A protection order had been granted on application of the victim but was ‘consensually not complied with’ and the relationship between the offender and victim continued [4].

Common assault: After an argument, the defendant took the victim’s phone from her and she went into the bathroom to take a bath. Further argument ensued in the bathroom, during which the offender put his hands around the victim’s throat without squeezing, before pushing her back against the vanity unit.

Choke, suffocate or strangle: After a verbal argument, the victim tried to make the offender leave. He forced his way into the house and carried the victim over his shoulder into the bedroom while she screamed for help. The defendant shoved her and pushed her down onto the bed, telling her to be quiet and placing his hand over her mouth. The victim had difficulty breathing and sustained a minor lip injury.

Sexual intercourse without consent: The offender visited the victim’s residence after she had been drinking all day and was substantially intoxicated. The victim fell asleep and woke to find the defendant rubbing her vagina. She initially responded consensually to avoid a fight but then feigned being asleep in the hope that by letting it continue, the seriousness of the offence would allow her to leave the relationship. While she pretended to sleep, the defendant had sexual intercourse with her.

Contravene family violence order: Following the sexual assault, the victim blocked the offender’s contact and social media but he continued to contact her. One evening he visited her residence and the victim activated security sirens, making him leave. She later told him to return to take away food he had left outside the house. He attended the premises several times that evening and during one visit the victim’s sister told him to leave. He also spoke briefly with the victim.

Reasoning and decision: An aggregate sentence of 24 months’ imprisonment with a non-parole period of 14 months was imposed.

Mossop J considered the objective seriousness of the four offences and the offender’s subjective circumstances.

The common assault was found to be in the mid-range of seriousness, attributable to the act’s demonstration of dominance and control within an intimate relationship. The strangulation was determined to be in the low-mid range, given the apparently short duration and fact that the victim did not appear to have approached passing out or sustained significant injury. The unusual circumstances of the sexual intercourse without consent charge – being the victim’s deliberate behaviour to first indicate consent and then pretend to be asleep in the hope that the offender would commit an offence – in the context of a relationship which included sexual intercourse led to a finding of low range objective seriousness.

The offender was found to have some relevant difficulties in his background, having been brought up with an alcoholic and abusive father. This moderated the significance of general deterrence slightly subject to the countervailing necessity for specific deterrence given his significant history of past domestic and family violence. This included assaults of the victim and a past partner and her child, and multiple contraventions of protection orders. Mossop J highlighted that while the present offending was not objectively high on a spectrum of seriousness, his criminal history revealed a disturbing pattern of offending directed towards intimate partners, making denunciation, deterrence and recognition of harm significant sentencing purposes.

While the offender had expressed some empathy about the victim and indicated a willingness to engage in family violence intervention programs, the evidence of his ‘patchy’ prior engagement in similar programs weakened his prospects of rehabilitation [41].

TS v DT [2022] ACTSC 137 (10 June 2022) – Australian Capital Territory Supreme Court

‘Application to extend protection order’ – ‘Domestic and family violence’ – ‘History of extended litigation’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Protection order appeal’ – ‘Systems abuse’ – ‘Whether protection order no longer necessary’

Matter: Appeal of decision of a Magistrate to extend the term of a protection order granted to the respondent woman DT, which among other terms prevented the appellant man, TS from residing in the matrimonial home (which protection order was the subject of TS v DT [2020] ACTCA 43 (27 August 2020) and an earlier appeal) for a period of 12 months (it having been extended a number of times previously on an interim basis).

Facts: The protection order, among other terms, prevented TS from residing in the former family home (that protection order was the subject of TS v DT [2020] ACTCA 43 (27 August 2020) and an earlier appeal) for a period of 12 months (it had been extended a number of times previously on an interim basis). TS argued DT had the means to obtain alternative accommodation and TS could not afford alternative accommodation, hence should be allowed to reside in the former family home, envisioning either the parties living separately under one roof (as they had between 2008 and 2017) or DT vacating the former family home so that TS could reside there. TS claimed the protection order application was a tactic to force TS to accept an outcome in property proceedings contrary to his best interests. DT gave (largely unchallenged) evidence that TS continued to subject her to daily abuse, and that she remained fearful of TS, particularly if they were to reside under one roof. TS had not filed a response to DT’s then Federal Circuit Court application for property orders in relation to the former matrimonial home and orders had been made in that court that if he did not respond orders would be made unopposed in terms of DT’s application (granting DT sole ownership of the former matrimonial home or proceeds of sale thereof). DT submitted evidence of his psychiatric disorder.

Grounds: (Taken from TS’s application)

1.

The decision is unreasonable and not supported by evidence.

2.

cross jurisdictional issues. The magistrate was totally focused on issues with property settlement under the jurisdiction of the federal circuit court, than what was before him in his own magistrate court, kicking the can into another jurisdiction. It clearly shows that this is a property matter and not a safety issue. corruption of the Family Violence Act in order to get property.

3.

Evidence presented that was beneficial to me was totally ignored.

4.

my lack of accommodation and resulting hardships was not considered.

5.

my human rights and ownership rights have been abused by keeping me out of my house for the last 4 years and now with the order given becomes 5.

6.

sex discrimination by allowing my wife to stay in the house without moving out while i because i am male have to be out for 5 years because of my gender. If men and women are treated equally then she should have been in the house for 2.5 years and then move out because she is permanent APS employee earning higher income than me.

7.

disability discrimination as ample evidence was given about my depression while my wife does not have any disability.

8.

There was much more time spent in the court for property matters than on other matters.as such the court was corrupted by matters not in its jurisdiction and as such its decision is heavily flawed.

Issues:

Whether the only consideration in an application to extend a protection order is whether the protection order is no longer necessary to protect the applicant from family violence (s86 Family Violence Act 2016) or whether the requirement to consider “hardship” to a respondent in s14 of that Act is a relevant consideration on an extension application.

Decision and reasoning: Appeal dismissed, decision appealed from affirmed.

While the Magistrate erred in considering s 14 of the Family Violence Act 2016, TS failed to demonstrate that there was any change in the circumstances (including his attitude or the circumstances of the parties reducing or eliminating the risk posed by TS to DT) justifying the grant of the protection order which had been twice affirmed on appeal. Kennett J held that in fact TS’s conduct of the proceedings and focus on his “right” to reside in the home demonstrated a continued need for the protection order, as did his continued minimisation of the 2017 events which resulted in his conviction for common assault and the original grant of the protection order. The parties’ continued conflict in relation to property matters in Australia and in Sri Lanka also indicated a continued need for the protection order.

Morrison v Maher (No 2) [2022] ACTSC 63 (1 April 2022) – Australian Capital Territory Supreme Court

‘Character evidence’ – ‘Children’ – ‘Choking’ – ‘Coercive control’ – ‘Following, harassing monitoring’ – ‘Image abuse’ – ‘No prior convictions’ – ‘People with mental illness’ – ‘Property damage’ – ‘Protection order’ – ‘Re-sentence following appeal’ – ‘Sentencing’ – ‘Stalking’ – ‘Systems abuse’ – ‘Technology-facilitated abuse’ – ‘Totality’ – ‘Weapon’

Charges: Assault occasioning actual bodily harm x 5; Property damage; Possess offensive weapon with intent; choking (common assault x 2; Non-consensual sharing of explicit images; Trespass x 2; Property damage; Contravention of a Family Violence Order x 7; Aggravated stalking; Attempt to pervert the course of justice x 2; Stalking x 3; Attempt to contravene a Family Violence Order; Use of a carriage service to harass.

Proceedings: Re-sentence following appeal.

Facts: The male offender was 43 years old with no prior criminal history. The offending against his wife spanned nearly 10 years and included multiple offences on numerous occasions. The complaints came to light when the victim separated from the offender and sought a Family Violence Protection Order. The offender subsequently repeatedly breached the Family Violence Order, including whilst in custody.

The offender had a traumatic childhood and was diagnosed with Bipolar Disorder, Attachment Disorder and Complex Post-Traumatic Stress Disorder. He and his former wife married in 2000 and had two children. He successfully appealed his original sentence of a total period of imprisonment of nine years and eight months, with a non-parole period of five years and eight months in Morrison v Maher [2021] ACTSC 312 (8 December 2021) on the basis of conceded errors of reasoning in the original sentencing decision (Maher v Morrison [2020] ACTMC 26 (17 December 2020)).

Decision and reasoning:

1.

Appeal allowed.

2.

Charge CC2019/6240 is amended by deleting “between 24 March 2019 and 26 April 2019” and inserting “on or about 20 May 2019”.

3.

An aggregate sentence of imprisonment is nine years, four months and 26 days imposed, with a non-parole period to equivalent of 60 per cent of the total effective sentence. As the appellant did not wish the matter to be remitted to the Magistrates’ Court for resentence Mossop J was unable to consider new evidence the appellant sought to adduce, noting that the appellant’s statement and evidence before the first instance court sought to shift a degree of responsibility for his offending to the victim and the controlling nature of the offending meant such behaviours indicated likely entrenched attitudes, making it difficult to assess his prospects of rehabilitation [117].

Mossop J observed at [105]:

The offending involves serious domestic violence offending. It is offending directed to the maintenance of control over the victim. It occurred in the context of a relationship where physical and emotional tools were used to maintain that control. It occurred in the victim’s home. Some of the offences directly involved the children. Others indirectly involved the children through the creation of a climate of fear. The assessment of the objective seriousness of the offending must be made with due regard to that context.

R v Teel (a pseudonym) [2021] ACTSC 183 (17 August 2021) – Australian Capital Territory Supreme Court

‘Intimate images’ – ‘Intimate video footage’ – ‘Sentencing’ – ‘Stepchild’ – ‘Technology facilitate abuse’

Charges: Sexual intercourse without consent x 4; committing an act of indecency without consent x 8; committing an act of indecency in presence of a young person x 3; non-consensual distribution of intimate images x 7.

Proceedings: Sentence.

Facts: Between1 January 2011 and 22 April 2012 the male accused committed the first series of offences against his then partner, KD. Between 12 December 2017 and 28 September 2018 the accused committed the second series of offences against his then wife, NM. Following her separation from the accused NM discovered evidence the accused had taken photographs of her naked while she was asleep, which she later reported to police. Coincidentally KD’s mother discovered an SD card containing images and videos of the accused committing sexual offences against KD while she was unconscious. The execution of a search warrant on the accused’s premises revealed further images and videos of sexual offences committed against NM, including some committed in the presence of NM and the accused’s son. A number of the images and videos were uploaded to pornographic websites without the consent of either victim, and a number were distributed to another person via email.

The accused was a victim of childhood sexual abuse and multiple psychological report suggested he had symptoms consistent with PTSD, major depressive disorder, ADHD and alcohol misuse disorder, although it was apparent he did not disclose the full extent of his offending to all of the report-writers. He entered pleas of guilty at an early stage.

Decision and Reasoning: Aggregate sentence of 9 years and 10 months’ imprisonment, with a non-parole period of 5 years and 10 months’ imprisonment.

Only sentences of full-time imprisonment were appropriate and Burns J noted at [115]:

It is also important that the sentences I impose mark the community’s abhorrence of sexual offending, particularly against intimate partners. All women have the right to feel safe in their domestic relationships. Like all members of the community, they have the right to have their physical integrity respected.

R v Smith [2021] ACTSC 114 (3 June 2021) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Breach of protection order’ – ‘Coercive control’ – ‘Extensive criminal history’ – ‘History of domestic and family violence’ – ‘People affected by trauma’ – ‘Plea of guilty during trial’ – ‘Sentence’ – ‘Separation’ – ‘Sexual intercourse without consent’ – ‘Strangulation’ – ‘Suicide threat’

Charge: Sexual intercourse without consent; contravention of family violence order (FVO); the pleas in full satisfaction of the indictment on the basis that the facts relating to a charge of choking, suffocating or strangling, and three transfer charges of common assault, would be taken into account in relation to the contravention of the FVO.

Facts: The offences were committed by the male offender against his female partner over 2 days in March 2020. Their relationship involved domestic violence, including controlling and abusive behaviour by the offender towards the victim. An incident of assault by the offender against the victim in February 2019 led to criminal charges and an FVO was made by the ACT Magistrates Court on 7 May 2019 for 12 months. On the offender’s release from custody after serving a sentence of imprisonment for the assault the parties resumed cohabitation. The victim sought to leave on 24 March, booking herself into a hotel. In a series of text messages the offender threatened suicide and urged the victim to return, which she did. The offender repeatedly applied force to the victim’s throat over a period of 10 minutes causing her to become short of breath, then removed her underpants and digitally penetrated her vagina without her consent and wiped his hands on her face. The offender forced the victim to drive him to McDonalds, and when they returned questioned her, and not accepting her answers, slapped her face. The victim was too frightened to leave. When the offender woke in the morning he elbowed her as he got out of bed, then they went to the hotel to retrieve the victim’s belongings. On the way out the victim was able to seek help from the receptionist who hid her from the offender, and police were called. The victim’s victim impact statement described a range of trauma-related impacts of the offending.

Sentence: 40 months and 12 days (three years, four months and 12 days), with a non-parole period of 28 months, approximately 70 per cent of the head sentence.

Mossop J observed:

[44] The circumstances of this case involve a disturbing example of domestic violence. The offender has a criminal history, including previous offences directed to the current victim, that means he is not entitled to leniency. I do not place any significant weight upon the remorse communicated to the author of the pre-sentence report. I accept that statements unsupported by evidence that is able to be tested should be treated with great caution: see Barbaro v R [2012] VSCA 288; 226 A Crim R 354 at [38] and Imbornone v R [2017] NSWCCA 144 at [57].

R v Heijm [2021] ACTSC 17 (5 February 2021) – Australian Capital Territory Supreme Court

‘Grievous bodily harm’ – ‘Misuse of drugs and alcohol’ – ‘Past domestic and family violence’ – ‘Pregnancy of victim’ – ‘Sentencing’

Charges: Grievous bodily harm x 1.

Proceedings: Sentencing.

Facts: The male offender applied force to the face of his pregnant female partner during an argument. The following day the victim’s face was observed to be swollen and red, she had a cut lip and blood coming from her mouth and nose. She attended the hospital and underwent a CT scan which revealed a fractured right eye socket and a blood clot around her right eye. The Forensic Medical Officer opined that her injuries were the result of blunt force trauma. The victim was reluctant to report the incident to police.

Issues: Sentence to be imposed.

Decision and reasoning: An aggregate sentence of 21 months, suspended after 13 months, and a good behaviour order were imposed. This reflected the guilty plea and earlier breaches of good behaviour orders/suspended sentence.

The offending was at the low end of the mid-range of objective seriousness for grievous bodily harm. It was an example of domestic violence, occurred at the victim’s home and while she was heavily pregnant. The offender was on conditional liberty at the time ([11]). Other relevant circumstances included that the offender had a disrupted childhood and an early introduction to illicit drugs. However, notwithstanding the likely lifelong effects of this, the offender was not a young man and there was little evidence of strong motivation to address his drug and alcohol problems. He had a long criminal history, including previous domestic violence offending directed against the same victim. There was a high risk of re-offending ([30]-[34]).

The victim faced difficulty in reporting the offending:

“She disclosed to the hospital staff that she had been injured at home. She also spoke to police but did not want to disclose who had injured her or how it had happened. That evening the offender attended the hospital to see her but was refused entry. The victim told police that she was scared and wanted to speak to the offender in the presence of the police. She did so, before the offender left and she returned inside the hospital.

“DVCS members later contacted police on the victim’s behalf to report that she had been assaulted by the offender. The victim decided that she was prepared to make a statement to police and she participated in a family violence evidence-in-chief interview on 8 February 2020.

R v DQ [2020] ACTSC 352 (18 December 2020) – Australian Capital Territory Supreme Court

‘Attempted murder’ – ‘Family law proceedings’ – ‘Female perpetrator’ – ‘Initial charge of damaging property by fire with intent to endanger life’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Separation’

Charges: Attempted murder x 2.

Proceedings: Sentencing.

Facts: The case concerned the sentencing for the offender’s attempted murder-suicide of herself and her 2 children by setting the house on fire.

Issues: Sentence to be imposed.

Decision and reasoning: A total head sentence of 9 years and 5 months was imposed, with a non-parole period of 6 years and 4 months. This reflected the guilty plea and a degree of cumulation for 2 separate victims with a single set of acts.

The offending was above the mid-range of objective seriousness for attempted murder. It involved the offender’s children in “the most extreme breach of her parental obligations,” and exploitation of her parental authority to achieve the children’s compliance. There was a degree of premeditation. It was a persistent and serious attempt that, but for a neighbour and the fire brigade’s actions, would have been successful ([23]-[28]).

Further, the offending occurred in the context of a long and acrimonious breakdown of the offender’s relationship with her ex-husband and associated Family Court proceedings relating to division of property and custody of the children, which affected her mental health. The offender was diagnosed with a major depressive disorder which was given some weight as it was long-standing and had the potential to distort her thinking to an extent. It was not accepted that the evidence established a diagnosis of post-traumatic stress disorder or chronic adjustment disorder. She had no criminal history, and was at low risk of re-offending. However, the sentence also needed to reflect accountability, denunciation, and just punishment ([29]-[56]).

R v Tonna (No 1) [2020] ACTSC 360 (2 October 2020) – Australian Capital Territory Supreme Court

‘Aggravated burglary’ – ‘Assault occasioning actual bodily harm’ – ‘Breach of protection order’ – ‘Damaging property’ – ‘Driving whilst disqualified, repeat offender’ – ‘Plea of guilty’ – ‘Separation’ – ‘Weapons and threats to kill’

Charges: Aggravated burglary; Assault occasioning actual bodily harm; Possessing a drug of dependence; Driving whilst disqualified from obtaining or holding a driver licence as a repeat offender; Contravening a Family Violence Order committed on three occasions x 2.

Proceedings: Sentencing.

Facts: Mr Tonna was in an intimate relationship with the female victim of the assault for about four years, before it ended in mid-2019. Mr Tonna breached Family Violence Order (FVO) made for the protection of the victim by attending her residence twice while she was sleeping, accusing her of having a man in the room and damaging property. Mr Tonna subsequently hit the victim with his car, causing injuries. Separately, Mr Tonna also broke into a block of units and was in possession of methylamphetamine. He pleaded guilty.

Decision and reasoning: A total sentence of 2 years and 4 months imprisonment was imposed.

The breaches of the Family Violence Order were serious. Refshauge J said at [26]-[27]:

“The reported comment made by Mr Tonna when attacking the victim’s window on 23 July 2019, namely accusing her of having a man in her room, apart from being none of his business, does show he had not accepted the end of the relationship. Difficult though that may be, it is something that he has to confront and acknowledge.

“It should be noted that the actions on that morning also constituted at least three separate approaches to the victim though relatively close together in time, at 6 am, 7:10 am and 7:30 am. Each could have constituted a separate offence. While not formally described in these proceedings as a rolled-up plea, it is appropriate to treat them in this way. I have described that approach in R v John[2017] ACTSC 144 at [106]- [107] and will follow what I there said.”

The assault, a violence offence, was also serious. Refshauge J said at [28]-[29]:

“It was, in the circumstances, in the nature of a family violence offence. It is the duty of courts to denounce such offences. It also shows an exercise by Mr Tonna of power which is, in reality, an abuse of power, an abuse that is often exacerbated by the vulnerability of women. The assault is an example of escalation and the use of the car, which can properly be described in this situation as a weapon, a potentially lethal weapon. Thus, such offending can escalate and lead, as family violence offences often do, to the death of the victim.

“Further, a victim who, as in this case, is on the ground is in a vulnerable situation (R v Hodge[2015] ACTSC 214 at [15]). The victim must have been terrified as her Victim Impact Statement shows. These are serious offences as explained in decisions such as:

Roberts v Smorhun at [120]-[127] and Goundar v Goddard [2010] ACTSC 56 at [32]- [36]. In relation to the assaults in the context of family violence, see R v Stanley [2015] ACTSC 322 at [65]-[66].”

Kibblewhite v Buik [2020] ACTSC 132 (11 June 2020) – Australian Capital Territory Supreme Court

‘Autism spectrum disorder’ – ‘Breach of protection order’ – ‘People with disability and impairment’ – ‘People with mental illness’ – ‘Self-represented litigants’ – ‘Specific error’ – ‘Step-children’

Charges: Contravening a family violence order x 1

Case type: Appeal against conviction and sentence

Facts: The appellant man was convicted of contravening a family violence order protecting his female former partner (the victim) and her two children. A conviction was recorded and he was ordered to enter into a good behaviour bond for 12 months.

The family violence order prevented the appellant from being at the premises where the protected persons lived, being within 100 metres of them or engaging in behaviour that constituted family violence. He had attended her home at her invitation after mediation, they had rekindled the relationship and the police were called when the victim sent a text message to a friend asking her to call police. The victim said she sent the text message because the appellant "had begun playing psychological mind games on her and abusing her in relation to a number of morning after pills he had located" ([12]). The appellant claimed that because the victim initiated the contact, he thought that he did not breach the family violence order. The appellant was self-represented at the sentencing hearing. Further evidence of a forensic psychiatrist’s report was also admitted on appeal.

Grounds:

1.

The (self-represented) appellant was denied procedural fairness in being denied an adjournment by the learned Magistrate;

2.

Her Honour failed to consider whether a non-conviction order was appropriate;

3.

Her Honour placed undue weight on the need for general and specific deterrence and denunciation; and

4.

the sentence was manifestly excessive ([2]).

Held: The appeal was allowed, the Magistrate’s orders set aside and the appellant was ordered to enter into a good behaviour order for 9 months without conviction ([75]).

The appellant had faced prior charges of assaulting and resisting an officer and contravening a domestic violence order which were dismissed under the "Mental Health Act" ([18]). He suffered from autistic spectrum disorder which affected his thinking, increased his anxiety and interfered with his ability to maintain relationships. The offending was at the low end of the spectrum for this kind of offence. Extenuating circumstances included (1) the victim’s invitation to recommence contact; (2) the re-establishment of a physical relationship between the parties over a period of weeks before the conduct in question; (3) the victim’s consent to the appellant being at her home; and (4) the absence of any request for him to leave the house or cease contact prior to the police being called ([68]). Mossop J noted that the power in s17 Crimes (Sentencing) Act to not record a conviction will not often be deployed in family violence cases due to the need for general and specific deterrence, but the extenuating circumstances of the present case and the appellant’s personal matters meant a conviction should not have been recorded ([70]). The Magistrate made a specific error in failing to give consideration to the application of s 17 ([51]).

R v Palmer [2020] ACTSC 13 (3 February 2020) – Australian Capital Territory Supreme Court

‘Choking’ – ‘Guilty plea’ – ‘History of abuse’ – ‘Non-fatal strangulation’ – ‘Physical violence and harm’ – ‘Victim history of trauma and abuse’

Charges: Burglary x1; Assault occasioning bodily harm x1; Choking a person and rendering them insensible x1;

Proceedings: Sentencing

Issue: Appropriate sentence

Facts: The male offender was convicted on his pleas of guilty. The female victim was his former partner. He entered her house while she was asleep and remained in the property despite the victim asking him to leave. The offender assaulted the victim after a verbal argument and choked her so as to render the victim unconscious. The offender had a significant criminal history and had been dealt with in the Magistrate’s Court for other offending against the same victim. He attributed his violent and abusive behaviour towards the victim to his struggles to cope with the victim’s psychosocial difficulties due to her long history of trauma and abuse [13].

Held: Justice Elkaim sentenced the accused to 10 months imprisonment for the burglary, 5 months’ imprisonment for the assault, and 20 months imprisonment for the choking offence. The sentences were to be served concurrently.

Elkaim J found the offence of burglary to have "just below medium objective seriousness" [6]. His Honour noted that "Although s 10 of the Crimes (Sentencing) Act 2005 (ACT) says full-time imprisonment should be a last resort, I can see no alternative here. Domestic violence is abhorrent. Choking a person is a serious crime. The offender should not have been anywhere near his victim. He was already on bail for family violence offences against the same victim. When she told him to leave he should have done so. He should not have assaulted her and he certainly should not have choked her." [15]. The seriousness of the offence and the domestic violence were aggravating factors and a 15% discount for the guilty plea was allowed.

R v Laipato [2019] ACTSC 386 (20 December 2019) – Australian Capital Territory Supreme Court

‘Burglary’ – ‘Children’ – ‘Controlling behaviour’ – ‘Extensive criminal history’ – ‘Lack of remorse’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Persons with mental illness’ – ‘Poor prospects of rehabilitation’ – ‘Sentence’ – ‘Separation’ – ‘Threat to kill’ – ‘Unlawful confinement’

Charges: Burglary x 1; Unlawful confinement x 1; Unlawfully choking, suffocating or strangling a person x 1

Case type: Sentence

Facts: The male offender was found guilty by a jury of burglary, unlawful confinement and unlawfully choking, suffocating or strangling a person. He was acquitted of 6 other charges. The offender and female victim (his former partner) were engaged in SMS text conversation about their relationship in the hours leading to the offending conduct. The victim made it clear that the relationship was over, and the offender was angry as a result of this conversation ([4]). The offender attended the victim’s home after midnight, dragged her from her bed into the neighbouring room and choked her ([5]). The offence was accompanied by a death threat, calculated to increase the victim’s fear. The offender and victim had been in an intermittent relationship since 2012, and have a 4-year old son. In her Victim Impact Statement, the victim explained the impact of the domestic violence. She suffers severe anxiety, PTSD and depression, and sometimes "feels very angry that her former partner hurt her so much, both physically and emotionally". At the time of the offending conduct, she felt helpless, fearful and thought that she might die ([6]-[7]).

Held: The offender was sentenced to 5 years’ and 5 months’ imprisonment, with a non-parole period of 3 years and 6 months. The offender has a very lengthy criminal history, including multiple convictions for burglary, assault occasioning actual bodily harm, aggravated burglary, recklessly inflicting grievous bodily harm, assault and drug and traffic offences ([8]). A significant aggravating feature of the offences was that they occurred in a family violence context ([9]). The unlawful confinement lasted for a minimum of 1.5 hours, and this was "impulsive and without any significant planning". The purpose of the confinement was to manifest his anger towards the victim for ending the relationship and to exercise control over her. During the course of the confinement, the offender inflicted extreme violence on, and instilled fear in, the victim, who now suffers continuing psychological consequences ([10]). The choking conduct was deliberate and sustained, and the victim’s ability to breathe was sometimes completely impaired ([11]).

Although the offender’s childhood was marred by instability, he now enjoys a supportive family relationship ([13]). In a pre-sentence report, the offender indicated that he had no intention to reunite with the victim and claimed to have been subjected to violence in the relationship ([14]). He also has a long history of alcohol and drug use, as well as Major Depressive Disorder, which was described as in full remission in 2017. He was also assaulted while in custody that same year. He plans to reunite with his son, with whom he is believed to have a "healthy, loving relationship" ([17]-[20]).

The offender has also shown no remorse for his current and previous offending. This gave rise to a concern regarding his ability and commitment to avoid criminal offending and to achieve a stable, co-parenting relationship with the victim. During his present period in custody, he did not take any steps to address his drug and alcohol abuse issues or his attitude to domestic violence. Therefore, his prospects of rehabilitation could not be described as good ([21]-[23]).

R v MZ [2019] ACTSC 341 (6 December 2019) – Australian Capital Territory Supreme Court

‘Exposing children’ – ‘Monitoring’ – ‘People with mental illness’ – ‘Sexual violence’

Charges: Sexual intercourse without consent x1; Administration of certain declared substances x1.

Proceedings: Sentencing

Issue: Appropriate sentence

Facts: The complainant woman and male offender were married and lived together. The offender engaged in sexual intercourse with the complainant while she was asleep. An audio recording taken during the time reveals that the complainant did not consent to the offender’s conduct and that when she woke up she immediately asked the offender to stop. The offender then left the bedroom, only to return ten minutes later and force a bitter substance into the complainant’s mouth. The substances administered were temazepam and zopiclone.

Judgment: In determining the objective seriousness of the offence, Mossop J noted that "while the offending did occur in a domestic context, the evidence did not establish that it was part of any pattern of oppression of the victim through violence or sexual violence. Nor does it establish that there was any marked inequality of power between husband and wife." [9]. The judge found the offending to also lack other aggravating factors as the offender did not use a weapon or violence, threaten the victim, or have a significant degree of premeditation and the victim was not injured, humiliated or degraded in a way more explicit than the conduct itself [7]. Justice Mossop also did not consider the presence of the sleeping child to be an aggravating factor as the child had no awareness of what was going on. The Court accepted that the offender’s depression and general anxiety disorder meant that "he is likely to find a sentence of full-time imprisonment more onerous than a person without those conditions" [40]. The sexual intercourse offending was held to be in the lower range of objective seriousness for this offence [10]. It was not possible to find on the evidence that the administration of a declared substance offence "was an intention to cause harm to the victim other than through interference with her recollection of events".

The offender was sentenced to 22 months’ imprisonment for the first charge, with the sentence to be suspended after four months upon the offender entering into an undertaking to comply with good behaviour obligations for 19 months. For the charge of administering a declared substance, the offender was convicted and sentenced to a suspended sentence of two months’ imprisonment.

R v Teer [2019] ACTSC 334 (29 November 2019) – Australian Capital Territory Supreme Court

‘Good behaviour bond’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Strangulation’

Charges: Act of indecency x 1; Assault occasioning bodily harm x 1

Case type: Sentencing

Facts: The offender attempted to strangle the victim when she refused to engage in sexual activity, pushing the victim face-down against a pillow. After releasing the victim and letting her partially roll-over, the offender grabbed the victim’s throat and restricted her breathing for 5 to 10 seconds while threatening if she continued making noise. There was medical evidence of petechial bruising.

Issue: Sentence to be imposed.

Decision and reasoning: Loukas-Karlsson J discounted the penalty for each charge by 5% as the offender entered guilty pleas one week before a re-trial for the offences. His Honour only reduced the sentences by 5% rather than the usual 10% because the offender demonstrated a lack of remorse and tried to justify his actions. It was also noted at [60] that ‘it must be recognised by the Court that the offences committed against the victim had a serious and significant impact upon her. Both the short and the long-term consequences of being the victim of these offences must be acknowledged’.

‘In respect to the offence of an act of indecency…the offender [was] sentenced to a good behaviour order with the core conditions requiring him to sign an undertaking to comply with good behaviour obligations’ for a period of 20 months reduced to 19 months on account of the guilty plea. ‘In respect of the offence of assault occasioning actual bodily harm…the offender [was] sentenced to a good behaviour bond’ with the same core conditions for a period of 32 months reduced to 30 months on account of the 5% reduction for entering guilty pleas. [64]

NS v Hotchkis [2019] ACTSC 309 (8 November 2019) – Australian Capital Territory Supreme Court

‘Audio recording’ – ‘Domestic violence offences’ – ‘Evidence issues’ – ‘Protection order’

Charges: 1 x common assault; 1 x contravention of a Family Violence Order

Case type: Appeal against convictions

Facts: The appellant allegedly kicked the complainant’s leg during an argument (assault charge). At that time, the appellant and complainant were married and living together. The complainant had obtained a Family Violence Order against the appellant, which the appellant allegedly breached during the argument by causing or threatening to cause injury to the complainant or by harassing, threatening or intimidating her ([3]). A central issue was whether an audio recording made by the complainant was admissible.

Issue: The appellant appealed the findings of guilt on the basis that 1) the learned Magistrate erred in ruling that the audio recording made by the complainant was admissible pursuant to s 5(2)(d)-(e) of the Listening Devices Act 1992 (ACT) (LDA), and 2) the convictions were unreasonable and could not be supported by the available evidence.

Held: The prosecution sought to adduce a recording of the alleged events said to have been made by the complainant on her mobile. The appellant objected on the ground that the recording was made in contravention of the provisions of the LDA ([10]). Burns J did not challenge the Magistrate’s finding that a ‘private conversation’, for the purposes of the LDA, existed ([13]), and turned his mind to whether any of the exception provisions applied such that the complainant’s use of the listening device was not proscribed by the LDA ([15]). In his Honour’s opinion, the Magistrate was correct in finding that the exception in s 4(3)(b)(i) was satisfied. The complainant feared that the appellant might seriously injure or kill her, and gave evidence that she had regularly been abused by him. Therefore, there were reasonable grounds for her to consider that the recording was necessary to protect her lawful interests ([21]). His Honour also found that the exceptions in s 5(2)(d) and (e) were established ([22]).

His Honour concluded that even if the recording had been obtained in contravention of the LDA, the proper exercise of the discretion found in s 138 of the Evidence Act would have resulted in its admission ([31]). The evidence was important, both in its own right and as support for the complainant’s evidence, and its probative value was significant. The gravity of the contravention was low, and there was no suggestion to the complainant that she knew that she was violating the LDA. Further, the offences charged against the appellant were serious domestic violence offences ([26]-[27]). At [30], Burns J noted that ‘[a] criminal has no right to keep their offending private, or to claim that the gathering of evidence of their crime is a breach of their privacy’.

As to the second ground of appeal, his Honour agreed with the Magistrate that the evidence established a breach of the Family Violence Order, as the conduct was harassing and intimidating. The Magistrate was entitled to consider the aggression by the appellant towards the complainant at the time she said she was kicked. As there was sufficient evidence on which the Magistrate was entitled to convict the appellant, the appeal was dismissed ([40]-[41]).

Davis v Stephens [2019] ACTSC 271 (1 October 2019) – Australian Capital Territory Supreme Court

‘Appeal against conviction and sentence’ – ‘Female perpetrator’ – ‘Jealous behaviours’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Victims who are (alleged) perpetrators’

Offences: Common assault x 2; Assault occasioning actual bodily harm x 1

Proceedings: Appeal against conviction and sentence

Facts: The female appellant and male victim had been in a relationship for about two years (which was ‘volatile’ and ’they tended to be jealous’ of each other and had numerous ‘fights’) but they had broken up the day before the offending and the appellant had moved out. Early in the morning of the offending, the appellant entered the front door and started punching the victim in the head. The appellant saw another woman on the couch and started moving towards her, so the victim grabbed the appellant’s arm. The appellant bit the victim’s arm hard and grabbed his testicles. She then chased after the other woman before taking the victim’s phone, leaving the house and knocking over the victim’s motorcycle. The appellant was convicted and sentenced to a 12-month Good Behaviour Order. She appealed her conviction on the following grounds:

1.

The Magistrate erred by not properly directing herself to the law of self-defence in terms of both personal self-defence and self-defence of property, and/or

2.

The Magistrate erred by returning inconsistent verdicts by dismissing charges of Damage to property but returning verdicts of guilty on the other charges in circumstances where the evidence was substantially the same between the counts. That error was compounded because the verdict of not guilty should have caused reasonable doubt in relation to the other counts.

Judgment: The judge dismissed the appeal. His Honour found that the Magistrate accepted the evidence of the victim (the victim grabbed the appellant’s arm to stop the appellant coming further into the house, not to prevent her from retreating out of the house) and, as such, the basis for self-defence fell away [76]. Regarding Ground 2, his Honour held that "the bare fact of there being a guilty verdict in relation to some charges arising from a course of events and an acquittal in relation to one or more charges arising from the same course of events is not enough to establish that the guilty verdicts must be unreasonable. It is necessary for the appellant to demonstrate that the different outcomes cannot stand together as a matter of logic and common sense" [79]. His Honour found that the Magistrate was correct in distinguishing the verdicts in relation to events that occurred inside the house from those which occurred outside the house [82].

His Honour further held that the sentence imposed fell within the range of appropriate outcomes and was not excessive, let alone "manifestly excessive" [84].

Kumar v Love [2019] ACTSC 238 (30 August 2019) – Australian Capital Territory Supreme Court

‘Children’ – ‘Evidence issues’ – ‘Family violence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’

Charges: Common assault

Case type: Appeal against convicions

Facts: The appellant was found guilty of two charges of common assault arising out of an altercation with the victim (his wife). The acts of assault included slapping the victim across the face, pushing her forehead backwards striking the wall behind, grabbing her hair, twisting her head and hitting her face on the wall, and striking his daughter’s shoulder. The charges fell into the category of family violence. The appellant pleaded not guilty to each charge and did not testify. The defence argued that the victim fabricated the assaults with the intention of terminating the marriage ([17]).

Issue: The appellant appealed on the ground that the Magistrate’s findings of guilt were unsafe and unsatisfactory on the basis that:

•

It was not open to the Magistrate to wholly reject the appellant’s evidence; and

•

There were a number of significant parts of the evidence relied upon by the prosecution which should have given rise to a reasonable doubt as to the appellant’s guilt.

Held: Crowe AJ dismissed the appeal. His Honour rejected the first ground of appeal and saw no basis upon which to doubt the Magistrate’s rejection of the appellant’s version of events. His version of events changed as the interview progressed. For example, after he said that he had not touched the victim at all, he then said that he had tickled her ([35]). In relation to the second ground, the Magistrate was entitled to accept the complainant as a witness of truth, and reject the proposition that the victim fabricated the entire story in order to terminate her unhappy marriage with the appellant. The discrepancy between the victim’s evidence and that of her female friend did not provide a sufficient basis to reasonably doubt the victim’s evidence as to the appellant’s violence towards her. The discrepancy was explained by reference to the extent of the victim’s distress, and the physical and language communication difficulties at that time ([40]-[47]).Crowe AJ dismissed the appeal. His Honour rejected the first ground of appeal and saw no basis upon which to doubt the Magistrate’s rejection of the appellant’s version of events. His version of events changed as the interview progressed. For example, after he said that he had not touched the victim at all, he then said that he had tickled her ([35]). In relation to the second ground, the Magistrate was entitled to accept the complainant as a witness of truth, and reject the proposition that the victim fabricated the entire story in order to terminate her unhappy marriage with the appellant. The discrepancy between the victim’s evidence and that of her female friend did not provide a sufficient basis to reasonably doubt the victim’s evidence as to the appellant’s violence towards her. The discrepancy was explained by reference to the extent of the victim’s distress, and the physical and language communication difficulties at that time ([40]-[47]).

R v EP (No 3) [2019] ACTSC 242 (28 August 2019) – Australian Capital Territory Supreme Court

‘People with mental illness’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Social abuse’

Charges: 1 x threaten to capture or distribute intimate images; 1 x use of a carriage service to menace, harass or cause offence; 2 x indecency; 1 x sexual assault; 1 x common assault; 1 x stalking

Case type: Sentencing

Facts: The offender and victim were in a de facto relationship for approximately 6 years and have a daughter. Despite the breakdown of their relationship, they remained on amicable terms ([7]). The offender was charged with a combination of Federal and Territory offences. The offender pleaded guilty to threatening to distribute an intimate image (Count 5) and using a carriage service to menace, harass or cause offence (Count 6). He was found guilty of 2 charges of committing an act of indecency (Counts 2 and 4) and a charge of sexual assault in the third degree (Count 3). A charge of common assault and stalking were transferred to the Court, which required consideration of the provisions on back-up and related offences in the Supreme Court Act 1933 (ACT) ([13]).

Issue: The issue for the Court was to determine the appropriate sentence for the offences.

Held: The Court sentenced the offender to 3 years’ imprisonment with a non-parole period of 18 months for the Territory offences, and declined to make a recognizance release order with respect to the Federal offence as the offender would still be serving a period of imprisonment for the Territory offences after the expiration of that offence. The charge of common assault was dismissed.

The offender’s subjective circumstances were observed at [32]-[40]. He had 2 daughters from a previous marriage and worked as a self-employed technician prior to custody. However, he had not been working for the past 6 months due to mental health issues, and suffered financial distress as a result ([35]). The offender reported infrequent social use of cannabis and his self-reported alcohol use was deemed ‘risky’ ([36]). The offender showed some insight into the impact of his offending, but attempted to minimise and justify some of his actions ([39]). The offender was also being treated for symptoms of depression ([40]).

The Court did not attribute significant weight to the offender’s expression of remorse ([41]-[44]). He had no relevant criminal history and was of prior good character ([45]-[46]). He pleaded guilty to 2 charges before the trial commenced, and the 2 further transfer charges in the course of the sentencing hearing. Accordingly, the Court allowed a discount of approximately 10% in each case ([47]-[54]). The Court also considered the time spent in custody ([55]-[56]), and analysed relevant cases and statistics ([57]-[69]). At [89], the Court found that all the offences committed against the victim significantly impacted her. The Court also took into account the principles of totality, concurrency and accumulation ([70]-[78]), and relevant statutory considerations ([79]-[88]). Significantly, it was noted at [88] that the ‘Courts have made it clear that women must not be treated by men as property’.

Barron v Laverty [2019] ACTSC 198 (31 July 2019) – Australian Capital Territory Supreme Court

‘History of abuse’ – ‘People affected by substance misuse’ – ‘Protection order’ – ‘Sentence’

Charges: 5 x contravention of a Family Violence Order; 1 x use carriage service to harass/menace

Case type: Appeal against sentence

Facts: In early 2019, the appellant was sentenced to a total of 2 years’ and 8 months’ imprisonment, with a non-parole period of 18 months, following guilty pleas to 6 charges, namely, contravening family violence orders obtained by his parents and his ex-partner against him and using carriage service to harass/menace.

Issue: The appellant appealed against the sentence on various grounds, including that the total sentence was manifestly excessive and that her Honour erred in her approach to s 110(2)(a) Crimes (Sentence Administration) Act 2005 (ACT) by ordering that the suspended sentences imposed for the breach offences be served cumulatively.

Held: Murrell CJ noted that the appellant had a very significant domestic violence history ([52]). Her Honour considered the appellant’s prior convictions of matters of dishonesty, and contravening protection orders ([25]), for which he had been sentenced to 5 months’ imprisonment suspended for 12 months. Offences 1 and 2 were committed while he was subject to these suspended sentences, and Offence 3 was committed 3 days after his release from prison (for contravening a protection order) ([26]). Further, the appellant’s illicit substance abuse rendered him unsuitable for an Intensive Corrections Order (ICO) ([29]).

Murrell CJ held that the appellant’s continued contraventions of court orders required a significant total sentence to be imposed. Her Honour was not satisfied that, when considering the appropriateness of the total sentencing, the sentencing judge erred in exercising her sentencing discretion ([41]).

The appellant argued that, as the original suspended sentences were concurrent, the sentencing judge fell into specific error when she made them cumulative ([56]). After analysing the interpretation of s 110(2) in some detail, her Honour concluded that the sentencing judge fell into error ([95]). The appeal was therefore allowed and the appellant was re-sentenced to a total sentence of 2 years’ imprisonment with a non-parole period of 13 months ([100]).

R v NX (No 2) [2019] ACTSC 131 (24 May 2019) – Australian Capital Territory Supreme Court

‘Coercive control’ – ‘Damaging property’ – ‘Extensive criminal history’ – ‘History of domestic violence offences’ – ‘Offender on conditional liberty at the time of offending’ – ‘Presence of child’ – ‘Sentencing’ – ‘Social abuse and isolation’

Charges: Sexual assault in the third degree x 1, sexual intercourse without consent x 1; assault occasioning actual bodily harm x 3; common assault x 2; capturing visual data in circumstances where the capture is an invasion of privacy and indecent x 1; damage to property x 3.

Proceedings: Sentence.

Facts: The male offender and female victim had been in a relationship since 2017. The offences took place over three days.

While the victim was driving her car with the offender in the passenger seat the offender took the victim’s mobile phone, snapped it in half and threw the pieces out of the car window. That afternoon he headbutted her in the middle of the forehead causing her pain and told her to “get the fuck out” of the house. The victim left the residence on foot with her son as the offender had taken her car keys. [5]

While she was gone the offender slashed two of the car’s tyres with a knife.[6] When the victim returned the offender told her that he had lost her keys and that somebody had popped the tyres of her car. He told her to go inside the house otherwise he would “start shit” with the victim’s flatmate. [7]

Later that night the offender held a Stanley knife with the blade out to the victim’s throat and near her face and directed her to “suck [his] dick”. The victim felt forced to do so and the offender filmed the incident. [8]

Two days later the offender attempted to cuddle the victim but she did not wish to cuddle and did not reciprocate. The offender became angry and began yelling. He punched the victim in the back of the head a number of times. The victim tried to put on a dress and the offender ripped it off her then grabbed her left breast and twisted and squeezed it causing pain and bruising. The victim’s son was present. [10]

Decision and Reasoning: Four years and eight months imprisonment with a non-parole period of three years.

In considering the objective seriousness of the offence, Mossop J observed:

The offending had some of the typical features of domestic violence in that it involved attempts to control the victim’s behaviour and sought to place responsibility for the offender’s unlawful conduct upon the victim. It occurred in circumstances where the victim was particularly vulnerable by reason of the need to care for and protect her small child. [14]

R v Cowling [2019] ACTSC 138 (23 May 2019) – Australian Capital Territory Supreme Court

‘Intensive corrections order’ – ‘Options’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’

Charges: Unlawful confinement x 1; choking, suffocating or strangling x 1; common assault x 1.

Case type: Conviction and sentence.

Facts: The offender engaged in controlling and violent behaviour towards the victim during their relationship and had threatened to kill her and her family if she ended the relationship. On 1 November 2016, the offender drove himself and the victim home. He did not allow her to exit the vehicle, pulled her hair and punched her in the face several times. On 21 March 2017, the victim visited the offender’s residence and an argument ensued. The offender grabbed the victim, pushed her down and squeezed her neck. Later that night, the offender choked the victim for ‘about 20 minutes’ and threatened to kill her, he intermittently released his hands [7]. On 22 March 2017, the victim fled and called her brother to get her. The offender later attended the brother’s residence, and made threats and attempted to drive his vehicle towards the brother. The brother was the victim of the common assault charge.

Issue: The Court determined the appropriate sentence for the offences in the circumstances.

Held: The Court considered the objective circumstances of the offending. The unlawful confinement charge was serious as it involved gratuitous violence against the victim, including punching her in the face. The choking charge was also serious as the victim felt that she could pass out and the conduct was accompanied by threats ([27]-[28]). The offender reported that he attended psychological counselling sessions in the past ([34]). His personal circumstances were also taken into account. His parents separated when he was young, he reported a supportive family environment, he has a four year son with an ex-partner with whom he maintains contact, and he is currently employed. He denied any past or current drug use. Although there was an almost decade-old matter for possession of prohibited drugs, no conviction was recorded ([33]). Further, his criminal history was limited. The Court refused to take into account a current family violence charge against him, as he had not yet been convicted and was entitled to a presumption of innocence ([44]-[45]). The offender’s remorse, references provided to the court, time already spent in custody, and sentencing principles, particularly rehabilitation, were also taken into account in determining the appropriate sentence ([38]-[43], [51], [80-[88]). The Court noted that the offender entered pleas of guilty 11 days prior to when the trial was listed to commence for a second time, and allowed a discount of approximately 15% ([46]-[50]). The offences were found to significantly impact the victim. ‘This sort of violence against women must be deterred and must be punished’ ([100]).

The Court recorded the convictions for the 3 offences. The sentence imposed was ordered to be served by way of an Intensive Corrections Order (ICO), which highlights the importance of rehabilitation. The ICO was made on the condition that the offender perform 400 hours of community service, continue to engage with psychological services to manage his mental health, and be assessed for and complete offence specific intervention ([114]).

R v Hudson [2019] ACTSC 110 (2 May 2019) – Australian Capital Territory Supreme Court

‘Blackmail’ – ‘Following, harassing and monitoring’ – ‘Intimidation’ – ‘Women’

Charges: Using carriage service to harass x 2; Demand accompanied by threat to endanger x 1; Threaten to inflict grievous bodily harm x 1; Blackmail x 1; Arson x 1; Recklessly inflicting actual bodily harm x 1; Possession of a prohibited item (as a detainee) x 2; Obstructing a public official x 1; Possessing an offensive weapon with intent x 1.

Proceeding type: Sentencing and application for reparation order.

Facts: The accused had been in a relationship with the female victim for three years, with their relationship ending three months before the offence was committed. After the relationship ended, the accused became a member of a motorcycle gang and the female victim commenced a relationship with her current partner. Upon learning of the victims’ relationship, the offender harassed and threatened his ex-partner (via text message and Facebook). He also threatened and blackmailed her new partner, demanding $5000 for ‘whoring out [his] missus’ [26].

The appellant was arrested for these offences. While in custody, the offender started a fire in his cell and possessed dangerous items out of fear he was at risk from members of rival motorcycle gangs. The offender then injured an officer while being restrained.

Issues: What are the appropriate sentences given the circumstances?

Decision and reasoning: Murrell CJ provided that ‘sentences must deliver appropriate punishment, and speak to the purposes of accountability, denunciation, and recognition of harm’ [81]. In reaching his decision, Murrell CJ consequently considered the high objective seriousness of the accused’s harassment of his ex-partner; the accused’s extensive criminal history; good behaviour during previous periods of imprisonment; his dysfunctional upbringing; and the fact that the accused had allegedly not been receiving proper treatment for his post-traumatic stress disorder.

The accused was sentenced to four years and two months imprisonment with a non-parole period of 33 months.

In sentencing the offender, Murrell J noted:

43. The family violence offences and associated offences bear the hallmarks of many serious family violence matters. At the time of the offences, the offender remained angry and distraught over the breakup of his relationship with Ms Lees. He was jealous, felt a sense of entitlement in relation to Ms Lees, and wanted to control her new relationship. He behaved in a volatile and irrational manner, elevating the danger and threat of danger perceived by the victims. In addition, the offender called his Nomads associates in aid, which would have considerably enhanced the fear felt by the victims.

R v Green (no. 3) [2019] ACTSC 96 (11 April 2019) – Australian Capital Territory Supreme Court

‘Directed acquittal application’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Statutory interpretation’ – ‘Strangulation’ – ‘Women’

Charges: Choking, suffocating or strangling a person x 2.

Proceeding type: No-case submission/Directed acquittal application.

Facts: The accused was charged with two counts of choking, suffocating or strangling his mother while in an argument. While the mother claimed that the accused strangled her in her initial accounts of the incident, she eventually recanted her allegations claiming she had fictionalised them while angry with the accused.

Issues: The proceedings focused on the questions of whether the words ‘chokes’ ‘suffocates’ and ‘strangles’ in s 28(2) of the Crimes Act 1900 should be interpreted with respect to their effects on the victim’s breathing and consequently whether the correct interpretations of these words warrant upholding the accused’s no-case submission.

Decision and reasoning: Although choking, suffocating or strangling is an offence under s 28(2), the terms are not defined within the legislation and prior to these proceedings were yet to receive judicial consideration in the ACT. Loukas-Karlsson J provided, in comparing s 28(2) of the Crimes Act to the corresponding offences in other jurisdictions, that the intention behind the provision may have been to build on the ACT’s existing offences which contain the elements of ‘choke, strangle or suffocate’ in an attempt to ‘lower the threshold of conduct to capture a broader range of conduct, particularly in the domestic violence setting’ [34]. Upon considering this intention along with the elements’ statutory context, ‘authoritative’ definitions from the Macquarie Dictionary and extrinsic material (such as the Explanatory Statement) Loukas-Karlsson J concluded that ‘the relevant element is constituted by the stopping of the breath’ [46].

In considering the accused’s directed acquittal application, Loukas-Karlsson J provided that “a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty” (Doney v The Queen [1990] HCA 51) [84]. Since the accused did not stop the victim’s breath on either attempt, his conduct failed to satisfy the necessary element. His Honour therefore concluded that there was a defect in the evidence such that a verdict of not guilty must be directed.

Lewis v Storey [2019] ACTSC 74 (22 March 2019) – Australian Capital Territory Supreme Court

‘Physical violence and harm’ – ‘Sentencing’ – ‘Strangulation’

Charges: Five offences including two counts of common assault, one count of assault occasioning actual bodily harm, one count of choking to render insensible, and one count of possession of an offensive weapon with intent.

Case type: Appeal of sentence.

Facts: The victim and the appellant had been in a relationship for approximately two months. The two counts of common assault were constituted by the appellant putting his hands around the victim’s neck and pushing her into a wall, as well as saying intimidating and threatening words. The appellant also armed himself with two knives (count of possession of an offensive weapon with intent), and had wrapped his arm around the victim’s neck cutting off her circulation and causing her to lose consciousness (count of choking to render insensible). The count of assault occasioning bodily harm was established by the appellant kicking the victim numerous times, grabbing her hair and repeatedly hitting her head on the ground, and slapping the victim’s face. The victim suffered significant injuries ([18]). Notably, a total head sentence of three years and six months imprisonment was imposed, with a non-parole period of 18 months.

Issues: The appellant sought leave to appeal on the grounds that that the sentence with the respect to the charge of choke render insensible and the non-parole period were manifestly excessive. He sought leave to add two grounds of appeal: 1) that the Magistrate offended the R v De Simoni principle by punishing him for attempted murder; and 2) that the Magistrate erred by not applying the full discount of 20% to the sentence imposed for the offence to choke to render insensible. He sought orders setting aside the Magistrate’s order, and that he be re-sentenced in respect of that charge.

Decision and reasoning: The Court allowed the appeal and re-sentenced the appellant, in relation to the offence of choking to render insensible, to three years’ imprisonment, with a non-parole period of 17 months. At [43], the Court held that a head sentence of three years and two months was not manifestly excessive. With respect to the non-parole period of 18 months, the Court found that ‘as expressed as a percentage of a head sentence of 3 years and 2 months of imprisonment, the relevant percentage is approximately 47%’. This is outside the usual range of non-parole periods in the ACT. The proper approach to fixing a non-parole period is to have regard to all the sentencing purposes, the objective seriousness of the offence, and the appellant’s subjective circumstances and prospects of rehabilitation. The proportion of the sentence served by way of non-parole period is a matter of judicial discretion, and ordinarily, the non-parole period is a significant part of the total sentence ([52]). The appellant’s youth was important to his prospect of rehabilitation. It was necessary to fix a non-parole period that is relatively low, but also reflected the total sentence and was consistent with sentencing purposes ([53]).

R v KD [2019] ACTSC 62 (15 March 2019) – Australian Capital Territory Supreme Court

‘Children’ – ‘Factors affecting risk’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Suffocation’

Charges: Attempted sexual intercourse without consent x 1.

Case type: Sentence.

Facts: The accused pleaded guilty to an offence of attempted sexual intercourse without consent. The accused and the victim lived together for two years prior to the accused entering custody, and had a child together ([21]-[22]). The victim was lying on her back when the accused pinned her down and repeatedly placed a pillow over her face. He then attempted to have non-consensual sexual intercourse with her ([4]).

Issues: The Court determined the appropriate sentence for the offence in the circumstances.

Decision and reasoning: Loukas-Karlsson J found that the offence approached mid-range seriousness. The objective seriousness of the offence was informed by the fact that the accused pinned down the victim and repeatedly placed a pillow over her face ([15]-[17]). His Honour considered the accused’s personal circumstances at [18]-[28]. He was young (24 years old), had been diagnosed with PTSD at the age of five as a result of witnessing domestic violence between his parents, reported to have been sexually abused by a family member, left high school early, worked in hospitality and as a removalist, and used drugs from an early age. The accused accepted responsibility for the offence and acknowledged the negative impacts of his actions. He indicated that he was willing to participate in programs and interventions. In considering the objective seriousness of the offence and subjective matters, his Honour held that the appropriate sentence for the offence of attempted sexual intercourse without consent is two years and nine months imprisonment. However, his Honour reduced the sentence to two years and four months due to the guilty plea.

R v Kennewell [2019] ACTSC 125 (25 January 2019) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Bail’ – ‘Bystander intervention’ – ‘Imprisonment’ – ‘Physical violence and harm’

Charges: Recklessly inflicting grievous bodily harm x 1.

Case type: Conviction and sentence.

Facts: The offender pleaded guilty to the offence of recklessly inflicting grievous bodily harm after the matter was committed for trial, but before the trial date was set.

The offender attended a friend’s party in the ACT, but started arguing with his girlfriend and left the party. Later that night, the victim heard the argument and, specifically, a female screaming. Concerned for her safety, the victim approached them. The offender stabbed the victim 3 times, and then ran away, followed by his girlfriend. The offender was arrested and granted bail the following day. He was subsequently imprisoned for offences (involving stabbing another person with a knife) committed in NSW while on bail.

Issue: The Court determined the appropriate sentence for the offence in the circumstances.

Held: Burns J held that the recent offending demonstrated that the offence in question was not an isolated incident. He was also found in possession of an instrument capable of being used to stab after he was extradited from NSW. These matters strongly suggest the need for specific deterrence. His Honour found the offending was unprovoked. The offender’s personal circumstances were also considered. He is a 20 year old Indigenous man, his parents separated when he was young, and he has anger management, drug and alcohol issues. However, he maintains a good relationship with his family, with whom he had remained in contact since he was incarcerated. It was noted that the offender is in good health, has a positive attitude, has employment available to him, and had completed an anger management course. His Honour was satisfied that the offender had reasonable prospects of rehabilitation, provided that he ceases carrying weapons, and addresses his anger management, drug and alcohol issues and employment. Even though the offender said that he carries a knife for self-protection, Burns J held that ‘no law-abiding citizen in this country, not associating with criminals or engaging in criminal conduct, needs to carry a knife for self-protection’ ([30]).

Notwithstanding his young age and rehabilitation prospects, Burns J held that the sentence needed to reinforce the fact that using knives to seriously harm others will be met with harsh punishment. Nothing less than full-time imprisonment would sufficiently address the sentencing requirements ([31]). The offender was convicted and sentenced to 3 years and 1 month imprisonment, with a non-parole period of 18 months.

KIC v Tennant [2019] ACTSC 145 (23 January 2019) – Australian Capital Territory Supreme Court

‘Breach of protection order’ – ‘Child contact’ – ‘Physical violence and harm’ – ‘Women’

Appeal type: Appeal against conviction and sentence.

Facts: The appellant had previously been served with an Interim Family Violence Order (the Order). Among other things, the Order prohibited the appellant from being within 100 metres of the protected person, his wife, except when handing over their child. The wife alleged that shortly after being served, the appellant breached the Order by walking in front of her house at a time she was home. She claimed that when the appellant was walking past her property, he stopped and looked into the residence. She also claimed that the appellant returned twice after leaving and began to follow her when he saw her outside.

The appellant pleaded guilty to the breach in the Magistrate Court. This plea was later withdrawn, but then reinstated during these proceedings.

Issue: Whether the sentence imposed by the magistrate was manifestly excessive.

Decision and reasoning: During the proceedings in the Magistrate Court, the appellant attempted to tender a document detailing the events of the day the offence allegedly occurred. The magistrate rejected this document on the grounds that it sought to ‘traverse’ the plea of guilty [9]. While Burns J disagrees with the grounds on which the magistrate refused the document, His Honour believed it should have been rejected because it was self-serving. The contents and rejection of the appellant’s document formed the main focus of Burns J’s judgment.

Burns J had great difficulty accepting most of the appellant’s evidence both in the document and that which the appellant gave before Burns J. The appellant claimed that he visited the area near to his wife’s residence to find a spot for his daughter to wait for him to pick her up the next day. The appellant also claimed that he had recently undergone a procedure to his eyes which resulted in him being unable to see more than one metre in front of him. Burns J provided that given the condition of the appellant’s eyes and the fact that he visited the residence at 10 pm, ‘it does not make any sense whatsoever that in his circumstances’ he visited the residence for the reason he claimed [13].

Burns J also found it difficult to accept the appellant’s submissions as he had made no challenge to the Statement of Facts that were read before the magistrate. The Statement of Facts did not include any of the above claims and instead provided that the appellant walked passed the protected person’s house while he was out walking to take care of his health (as the appellant claimed to be diabetic). His Honour concluded that he was “not now prepared to find that the events occurred in the way in which the appellant now suggests that they did. On that basis, [Burns J] propose[d] to proceed on the basis that the circumstances of the offence went as put before the magistrate’ [17].

Burns J dismissed the appeal, commenting ‘it has not been demonstrated that the sentence [was] manifestly excessive, nor [was Burns J] satisfied that there was any relevant error which would have affected the outcome of the proceedings before the magistrate’ [21].

R v Vincent [2018] ACTSC 347 (12 December 2018) – Australian Capital Territory Supreme Court

‘Children’ – ‘Damaging property’ – ‘Domestic violence’ – ‘Factors affecting risk’ – ‘People with children’ – ‘Physical violence and harm’ – ‘Vulnerable people’

Charges: Assault occasioning actual bodily harm x 1; Minor property damage x 2

Facts: The offender was in a relationship with the complainant for 12 years. They had a child, aged seven at trial. The relationship ended late 2017. The offender visited the complainant’s home to visit children. He entered the house, damaged property, and assaulted the complainant with a baton by hitting her on the arms and on the back of the head.

Issues: Sentencing

Decision and Reasoning: The offender pleaded guilty and was sentenced to 12 months’ imprisonment for assault occasioning actual bodily harm, one month’s imprisonment for the first count of damaging property, and one month’s imprisonment for the second count of damaging property. The sentences were to be served concurrently. The term of imprisonment for the offence of assault was suspended on the condition that the offender enter a Good Behaviour Order for 18 months.

The offender had a significant criminal record, which included a contravention of a protection order against the complainant for which he already served a period of time in custody. He grew up in difficult circumstances – his mother had a drug addiction and did not adequately support him. The offender also had a long-standing history with drugs and alcohol which was exacerbated by his separation with the complainant. Whilst in custody, he completed a drug and alcohol awareness program and commenced an anger management course. His Honour noted that domestic violence is an ‘appalling crime’ and ‘offends the most basic norms of society’ ([11]). There were positive signs of rehabilitation, such as the fact that the offender was in a stable relationship, had ongoing accommodation and employment, and was a valuable member at his workplace. The complainant had sent an email to the offender saying she had ‘moved on’ and wanted the offender to attend their child’s graduation. His Honour stated: ‘Expressions of reconciliation by victims of domestic violence are often a regrettable reflection of the dominance of the abuser. However, in this case, primarily because the offender is in a new relationship, I am prepared to accept the sincerity of the victim’s request.’

Fallon v Baker [2018] ACTSC 319 (9 November 2018) – Australian Capital Territory Supreme Court

‘History of abuse’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Women’

Charge: Common assault.

Appeal type: Appeal against conviction.

Facts: The appellant had a history of heavy drinking. Despite having been prescribed medication to assist with his alcohol dependence, the appellant was heavily intoxicated on the night the offence occurred. His intoxicated state led him to punch his wife in the back on at least four occasions while she was pretending to sleep and to later threaten to strangle their youngest child to stop him crying. This threat prompted the mother to call the police.

In the magistrate’s judgment, he noted that the wife declined to participate in the Family Violence Evidence-in-Chief interview as she did not want the appellant to know she was the one who had contacted the police. The wife declined out of fear of losing the children due to the husband’s past behaviour and conduct in the relationship. The magistrate attributed the appellant’s behaviour to his dependence on alcohol.

Along with appealing the magistrate’s sentence, the appellant also sought to admit further evidence and to have the sentencing proceedings reopened.

Issues: (1) Was the sentence imposed manifestly excessive; and (2) did the magistrate fail to consider or give proper weight to the subjective circumstances of the appellant; (3) should further evidence be admitted and the sentencing proceedings reopened.

Decision and reasoning: Mossop J dismissed the appeal and confirmed the sentence imposed by the magistrate. His Honour was satisfied that the magistrate considered all possible consequences of a conviction for the appellant’s employment and other subjective circumstances and that the appellant’s submissions failed to demonstrate otherwise. As such, the appellant’s first ground for appeal was unsuccessful.

When considering the second ground, Mossop J used the wife’s fear of making a complaint and of losing her children, and the history of similar events during the relationship as evidence ‘that the offending conduct in the present case occurred in a context of typical domestic violence cases …[This] history of conduct within the relationship indicates that the offending conduct had a more objectively serious character than it would have had if that history was not present’ [21]. Mossop J used these facts to reject the appellant’s claim that the magistrate’s sentence was manifestly excessive.

In relation to the third issue, the appellant sought to admit evidence detailing the consequences of the conviction on his employment and job prospects given that the conviction caused his employer to consider terminating the appellant’s employment and the appellant to consequently resign. Mossop J, however, did not consider the admission of further evidence to be in the interests of justice as the evidence was of limited scope and addressed a matter already considered by the magistrate.

R v Williams [2018] ACTSC 354 (18 October 2018) – Australian Capital Territory Supreme Court

‘Breach of protective bail conditions’ – ‘Control’ – ‘Intensive correction order’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful confinement’ – ‘Women’

Charges: Unlawful confinement x 1; Threat to kill x 1; Inflicting actual bodily harm x 1; Common assault x 2; Aggravated dangerous driving x 1.

Proceeding type: Sentencing and application for an intensive corrections order.

Facts: At the time the offences were committed, the accused was on bail in relation to family violence charges against his partner. The accused’s bail conditions prohibited him from assaulting or intimidating his partner, being near her, having contact with her and from attending her home. While on bail, the accused assaulted his partner, unlawfully confined her and threatened to kill her. When attempting to flee the home, the accused also struck his partner’s current boyfriend with a car, recklessly inflicting actual bodily harm.

Issues: (1) What are the appropriate sentences given the accused’s offences; and (2) is an intensive correction order appropriate for the accused?

Decision and reasoning: Burns J rejected the submission for an intensive corrections order on the grounds that the accused’s imminent deportation from Australia (due to his visa being revoked) made it unlikely that the accused would comply with the order. The accused was instead sentenced to two years and four months’ imprisonment. Burns J reached this decision by considering the relatively low seriousness of the harm inflicted upon the victim; the victim’s vulnerability; and the fact that the accused was on conditional liberty at the time of committing the offences.

Burns J notes at [5] [The offence of unlawful confinement] ‘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.’

R v Simonds [2018] ACTSC 265 (21 September 2018) – Australian Capital Territory Supreme Court

‘Evidence’ – ‘Physical violence and harm’ – ‘Threats to kill’ – ‘Unlawful confinement’

Charges: Assault occasioning actual bodily harm x 1; Choke, suffocate or strangle x 1; Assault occasioning actual bodily harm x 1; Unlawful confinement x 1; Threat to kill another person x 1.

Proceeding type: Trial by judge alone.

Facts: The accused and the complainant went out to dinner. At about midnight the accused, apparently intoxicated, went out alone. Some hours later, he returned and although not obviously intoxicated, soon became violent. He dragged the complainant, hit her in the face, held a knife to her throat, and detained her in the flat for about four hours. During this time, he threatened to kill her, and demanded information from her about her mobile phone.

Issues: Whether or not the events as described by the complainant occurred; Whether or not the Court could be satisfied beyond reasonable doubt.

Decision and reasoning: A verdict of not guilty was entered as to each of the six counts in the indictment. The Court was satisfied that the complainant ‘was probably telling the truth’, but noted that the required standard was beyond reasonable doubt. Therefore, his Honour could not accept the complainant’s evidence. The emails, particularly, appeared to seriously contradict her version of events, such that they had a significant effect on her evidence being accepted beyond reasonable doubt.

R v Rose [2018] ACTSC 237 (23 May 2018) – Australian Capital Territory Supreme Court

‘Arson’ – ‘Damaging property’ – ‘Factors affecting risk’ – ‘Sentencing’

Charges: Aiding and abetting the commission of an offence - caused damage to two vehicles by fire and intended to cause, or was reckless about causing damage to the vehicles.

Proceeding type: Sentencing.

Facts: The offender aided and abetted the co-offender to set fire to his former partner’s car using accelerant, which caused the destruction of the vehicle. As a result, an adjacent vehicle also caught fire and suffered damage.

Issues: Burns J determined the appropriate sentence for the offender.

Decision and reasoning: In determining the sentence, the Court took into account the age of the offender (19 years old), the fact that he had no previous convictions, his attempt to contact the owners of the vehicle to apologise for his actions, the contents of the Pre-Sentence Report (which revealed that he had continued family support and a positive peer network), the fact that he was in stable employment and that he was considered to be at low risk of re-offending. His Honour also took into account the offender’s plea of guilty, albeit that it was not entered at the earliest opportunity. These matters were relevant to a finding that he had good prospects for rehabilitation ([10]). A sentence of imprisonment should only be imposed as a last resort, and accordingly, the Court ordered a Good Behaviour Order for a period of 12 months and recorded a conviction. He was also required to complete 150 hours of community service and accept supervision of ACT Corrective Services for that period.

SA v Badenhorst [2018] ACTSC 216 (21 May 2018) – Australian Capital Territory Supreme Court

‘Evidence’ – ‘Good behaviour bond’ – ‘Intermediate sanctions’ – ‘Sentencing’ – ‘Sentencing options’

Charges: Assault x 1

Appeal type: Appeal against decision to refuse adjournment; appeal against sentence.

Facts: In the course of sentencing submissions, the Magistrate was not willing to accept a submission relating to the likely impact of a conviction upon the appellant’s employment. The appellant sought an adjournment to obtain evidence to put before the Magistrate. The Magistrate refused the request.

Issues: Whether the Magistrate fell into error in refusing the application for an adjournment.

Decision and Reasoning: Burns J upheld the appeal.

The Magistrate’s refusal of an adjournment was unreasonable so as to bespeak error ([5]). Having received fresh evidence (a letter from the principal of the school where the appellant was employed), Burns J held that, if a conviction was recorded, she would lose her ‘working with children’ approval and, consequently, her job as a teacher. Such an outcome would be disproportionate compared to the nature of the offence ([11]).

His Honour took into account the appellant’s character, antecedents, age, health and mental condition, as well as the seriousness of the offence and extenuating circumstances in which the offence was committed.

His Honour noted that there is no rule of law that a domestic violence offence cannot be the subject of non-conviction order ([15]). Consequently, the conviction was set aside and a non-conviction order made. The Court also imposed a good behaviour order.

Purcell v O’Reilly [2018] ACTSC 60 (9 March 2018) – Australian Capital Territory Supreme Court

‘Children’ – ‘Coercive control’ – ‘Damaging property’ – ‘Separation’

Proceeding: Appeal from Magistrate’s sentence order following conviction for damage property causing damage of no more than $5000.

Grounds:

1.

The sentence was manifestly excessive;

2.

The Magistrate misapplied s 17 of the Crimes (Sentencing) Act (2005) (ACT) in failing to make a non-conviction order.

3.

The Magistrate erred in refusing to consider a non-conviction order on the basis that as a family violence offence the matter was too serious a matter to be dealt with by a non-conviction order. He also submitted the sentence was manifestly excessive as the appellant was entitled to a sentencing discount as without the appellant’s confessions the offence would have been difficult to prove.

Facts: The offence occurred when the appellant man was a guest in his former wife’s home so that he could take his son to football training in the morning. The appellant demanded to see his former wife’s phone and refusing, she retreated to her bedroom and locked the door. The appellant threatened to break the door down if she did not unlock it. The appellant’s daughter blocked his access to her mother’s bedroom door. The appellant went to the lounge room, picked up a flat screen TV and threw it to the ground, picked up the glass table it had been sitting on then threw the table onto the TV screen, causing it to shatter. His former wife declined to make a statement to police and police proceeded with the matter based upon the appellant’s admissions at the scene.

Decision and Reasoning: The appeal was dismissed. The Magistrate was simply identifying this particular offence as involving family violence, and taking place in the complainant’s home where a child was present. On that basis, she concluded that the particular offence is too serious to be dealt with under s 17. This is not a case in which, but for Mr Purcell’s admissions, either the offence would never have come to light or it would have been difficult to prove in a defended hearing. The judge noted that in R v Hamid [2006] NSWCCA 302, Johnson J (with whom Hunt AJA and Latham J agreed) said at [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; the offender may no longer need to resort to violence in order to instil fear and control.

Penfold J observed:

[48] … the incident giving rise to Mr Purcell’s conviction, and its source in Mr Purcell’s determination to examine the victim’s mobile phone, seem to reflect both an attempt to exercise power or control over his former wife and a belief that this was justified. For this reason, the incident as a whole may legitimately be treated as more serious than it would have been if the TV had been destroyed in anger or frustration generated by some event unrelated to conflict between Mr Purcell and his former wife.

R v KN [2018] ACTSC 111 (26 February 2018) – Australian Capital Territory Supreme Court

‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Sentence’ – ‘Strangulation’

Charges: Assault occasioning actual bodily harm x 1; Intentionally and unlawfully choking a person so as to render that person insensible or unconscious x 1.

Case type: Sentence.

Facts: The defendant headbutted his wife, causing her to become unconscious. He tightly wrapped a piece of rope around her neck, causing her to again become unconscious. She had lost control of her bodily functions and urinated ([1]). The incident occurred in 2013. The complainant was unwilling to provide a statement previously, because she wanted to continue in her relationship with the defendant ([4]).

The defendant pleaded guilty to the charges ([5]).

Issues: Sentence to be imposed.

Decision and Reasoning: The defendant was sentenced to 2 years and 9 months’ imprisonment, wholly suspended ([17]). Mitigating factors included the defendant’s: pleas of guilty; limited criminal history; childhood trauma; mental health issues; and engagement in psychological services ([11]). Burns J considered that the defendant had very good prospects for rehabilitation ([16]).

R v Kulczycki [2018] ACTSC 9 (30 January 2018) – Australian Capital Territory Supreme Court

‘Blackmail’ – ‘Emotional and psychological abuse’ – ‘History of breaches of protection orders’ – ‘Revenge porn’

Charges: Blackmail x 1; Stalking x 1.

Case type: Sentence.

Facts: The defendant and complainant were in a relationship for 2 years. They sometimes filmed consensual sex ([6]-[7]). After the relationship broke down, the defendant sent the complainant emails and text messages threatening to release the video unless the complainant paid him $20,000 ([8]-[9]). The complainant obtained a protection order, and the defendant breached the order three times ([11]).

Issues: Sentence to be imposed.

Decision and Reasoning: Elkaim J remarked on the seriousness of the blackmail in the context of a domestic relationship at [16]: ‘blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant’. While the defendant had promising prospects of rehabilitation and had taken steps to reduce his consumption of illicit drugs, Elkiam J considered that a period of imprisonment was necessary ([21-[22]). The defendant was sentenced to a head sentence of 9 months’ imprisonment, to be served concurrently with 6 months’ imprisonment for stalking [22].

Justice Elkaim remarked on the seriousness of the blackmail in the context of a domestic relationship at [16]: ‘blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant’.

Parkinson v Alexander [2017] ACTSC 201 (4 August 2017) – Australian Capital Territory Supreme Court

‘Administration offence’ – ‘False accusation’ – ‘Interpretation of evidence’ – ‘Procedural fairness’ – ‘Tendency evidence’

Charges: Making a false accusation x 3; Public mischief x 6.

Appeal type: Appeal against conviction.

Facts: The defendant and ‘EK’ had been in a relationship. After the relationship had ended, the defendant made allegations to the police that EK had sexually assaulted her, had followed her in his car, and had broken into her house ([5]-[12]). The police made investigations, but eventually determined that the accusations were false ([14]).

At trial, the prosecution relied upon the following evidence to show the defendant’s tendency to make false complaints: the fact that there were many allegations supported the inference that each one was false; a complaint of sexual assault made by the defendant against a neighbour when she was 17; and three other allegations made by the defendant against EK’s family ([26], [29]). The defendant was convicted of two counts of making a false accusation and three counts of public mischief (for wasting police officers’ time). She had not yet been sentenced.

Issues: One issues was whether the Magistrate correctly applied tendency evidence.

Decision and Reasoning: The appeal was partially upheld. Justice Refshauge found that the Magistrate applied the tendency evidence incorrectly for two reasons.

•

First, the sequence in which the Magistrate addressed the incidents was not logical. The Magistrate first found that the defendant made two false allegations in 2014. The Magistrate then used the evidence of the 2014 allegations to support reasoning that earlier accusations, in 2013, were also false ([52]).

•

Second, the Magistrate reformulated the tendency evidence to conclude that it showed a ‘vendetta against the family’ ([32], [45]). This was not how the prosecution framed the evidence in the notice of tendency evidence, and the defendant was not given an opportunity to respond to this argument ([45]). Therefore, the evidence was inadmissible ([68]).

Note: this case was subsequently remitted to the Magistrates Court for retrial before a different Magistrate, see Parkinson v Alexander (No 2) [2017] ACTSC 290 (9 October 2017).

R v Rappel [2017] ACTSC 38 (24 February 2017) – Australian Capital Territory Supreme Court

*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Contravention of a protection order’ – ‘Exposing children to domestic and family violence’ – ‘Murder’ – ‘People affected by substance misuse’ – ‘Sentencing’ – ‘Women as a vulnerable group’

Charges: Murder x 1; Recklessly inflicting grievous bodily harm x 1; Assault occasioning actual bodily harm x 1; Contravene protection order.

Case type: Sentence.

Facts: The defendant and the deceased had formerly been in a domestic relationship and had a child together ([9]). The deceased had taken out a domestic violence order (DVO) against the defendant the day before the defendant killed her ([17]-[19]). When the defendant received the order, he bought an axe, drove to the deceased house and cut her neck with the axe, severing her spine. She was holding his newborn child at the time, and her two sons were in the same room ([33]-[36]). The axe severed her sister’s finger, which formed the basis of the grievous bodily harm charge. He then assaulted her brother, which formed the basis of the assault occasioning bodily harm charge ([37]-[39]).

Issues: Sentence to be imposed. The defendant raised the mitigating factor of diminished responsibility.

Decision and Reasoning: Burns J described the objective circumstances of the murder ‘within the worst category of cases of murder, and would warrant a term of life imprisonment’ [133].

Burns J said at [131] ‘For many years now, the courts of this country have spoken of the need to protect members of the community, and particularly women, from domestic violence, and the need for courts to take seriously offences of domestic violence. If these statements are to have meaning, if the protection offered by the [Domestic Violence and Protection Orders Act 2008 (ACT)] is to have significance, it is incumbent on courts to recognise the heinousness of offences of violence committed in retribution for a member of the community invoking the protection provided by the Act.’

His Honour took into account as mitigating factors the defendant’s plea of guilty, his experience of abuse as a child, and his long history of mental health issues ([103]). Other contributing factors included his use of anabolic steroids, methylamphetamines and a personality disorder, but his Honour did not place significant weight on these circumstances ([120]). His Honour also had regard to victim impact statements tendered by the deceased’s family ([124]-[128]). His Honour concluded (at [151]):

‘The present offence of murder was vicious and cowardly. Those who witnessed your violence will have to live with their memories for the rest of their lives. Your actions deprived three children of their mother, including your own infant daughter Ayla. You have effectively deprived Ayla of both of her parents. The effects of your actions will be felt for decades to come. There is a very substantial community interest in retribution, deterrence and punishment. This can only be achieved by a very substantial period of imprisonment.’

His Honour imposed a sentence of 32 years and 2 months’ imprisonment.

Note: the Domestic Violence and Protection Orders Act 2008 (ACT) referenced in this decision has been repealed and replaced by the Family Violence Act 2016 (ACT).

R v Ennis [2016] ACTSC 72 (4 April 2016) – Australian Capital Territory Supreme Court

‘Assault occasioning bodily harm’ – ‘Good behaviour order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’

Hearing: Breach of good behaviour order.

Facts: In 2012, Mr Ennis was involved in an altercation with his female partner of 27 years. He was convicted of assault occasioning actual bodily harm and was subject to a good behaviour order for 2 years with a condition to perform 100 hours of unpaid community service work. In 2014, Mr Ennis breached this order by failing to perform the community service work (‘the first breach’). The good behaviour order was extended by 12 months and Mr Ennis ordered to perform 108 hours of community service work (See R v Ennis [2014] ACTSC 369 (4 November 2014)).

However, before the end of the good behaviour order in 2015, Mr Ennis breached the order again (‘the second breach’). Mr Ennis and his partner, who had been drinking alcohol, argued outside their house. Mr Ennis pulled her by her hair and dragged her inside. He let her go and slammed the door in her face (common assault). In March 2016, a magistrate sentenced Mr Ennis to 5 months imprisonment, suspended immediately, and made a good behaviour order for 18 months with various conditions. His Honour then referred the matter to Refshauge J for breach of the good behaviour order that had been extended upon Mr Ennis’ first instance of breach.

Issue/s: Whether further action is warranted in light of Mr Ennis’ breach of a good behaviour order.

Decision and Reasoning: While Mr Ennis complied with nearly 2 years of the original good behaviour order without breach constituted by further offence and nearly 9 months of the additional period ordered by Refshauge J, Mr Ennis had failed at his attempts at rehabilitation. This offending was also facilitated by the consumption of alcohol. Further, the nature of offending was serious. Per Refshauge J, ‘It is, as his Honour Magistrate Morrison said, a family violence offence, and it is serious in that it was the commission of the offence against the same victim, although many years apart. It is a similar offence also, in that it is an assault and another family violence assault. Nevertheless, it is a much less serious version of the offence, although in this case, because of the earlier history, it attracted a sentence of imprisonment, although suspended’. It was relevant that Mr Ennis’ partner had moved away and it was unlikely that the relationship would resume in the near future (See [15]-[22]). Accordingly, the duration of the good behaviour order was extended to 2 years to run from the date of this decision.

R v BNS [2016] ACTSC 51 (24 March 2016) – Australian Capital Territory Supreme Court

‘Accused has conviction for intimidating witness’ – ‘Evidence via audio visual link from remote location’ – ‘History of family violence by accused against witness’ – ‘Physical violence and harm’ – ‘Questioning witnesses’ – ‘Safety and protection of victim and witnesses’

Hearing: Application for evidence to be given by audio visual link from a location outside the courtroom.

Facts: The accused, BNS, pleaded not guilty to 2 counts of incest and 5 counts of committing an act of indecency on TN. At the time of offence, BNS was in a relationship with SN, the mother of TN, and was the step father to TN. SN was called to give evidence at trial. She was expected to give evidence of complaint made by TN and relationship evidence (of her and the child’s relationship with BNS).

Here, an application was made for SN to give evidence by audio visual link from a remote location. BNS was physically abusive to SN during the relationship. SN said she had ongoing anxiety and depression which would inhibit her ability to give her best evidence if she was required to give evidence in the courtroom. In light of the history of family violence, she felt intimidated in front of BNS. Finally, BNS also had a conviction for intimidating a witness.

SN did not have the right to give evidence by audio visual link from a remote location under Part 4 of the Evidence (Miscellaneous Provisions) Act because she was not a child, complainant, or a similar fact witness. In the absence of statutory provision, it was noted that there is no power at common law for a court to allow evidence to be heard by video link: R v Hampson [2009] EWCA Crim 1569. However, s 32 of the Evidence (Miscellaneous Provisions) Act empowered the court to direct a person to give evidence by audio visual link from a remote location.

Issue/s: Whether the application to give evidence outside the courtroom via audio visual link should be allowed under s 32 of the Evidence (Miscellaneous Provisions) Act.

Decision and Reasoning: The application was allowed as the pre-conditions set out in s 32 were met. First, the necessary facilities were available (See [10]). Second, the evidence could be more conveniently given from a remote location by video link. SN’s aversion to the accused would make it more convenient for her to give evidence remotely. It was also more convenient for the court to have the evidence given free of the inhibitions troubling SN (See [12]-[13]). Finally, BNS did not object to SN giving evidence remotely and, accordingly, it could not be said that it would be unfair to the accused for SN to give evidence remotely. Although the general rule is that prosecution witnesses should give evidence in the presence of the accused, it was noted that there have been numerous past occasions where the giving of evidence by video link has not been unfair (See [14]-[22]). Further, there were no discretionary matters requiring the application to be refused (See [23]-[30]).

R v Curtis (No 2) [2016] ACTSC 34 (26 February 2016) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Breach of a good behaviour order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Young people’

Hearing: Breach of a good behaviour order.

Facts: Mr Curtis assaulted his female partner by punching her a number of times, causing her bruising. He was charged with assault occasioning bodily harm. In October 2013, Refshauge J sentenced Mr Curtis to 12 months imprisonment, wholly suspended, and imposed a good behaviour order with a probation condition for 2 years (See R v Curtis [2013] ACTSC 291 (16 December 2013)). In April 2015, within the period of the good behaviour order, Mr Curtis was found in possession of a number of electronic and other items reasonably suspected of being stolen. In December 2015, he pleaded guilty in the Magistrates Court and was sentenced to a further good behaviour order for 18 months with a community service condition. The magistrate referred the breach of the earlier imposed good behaviour obligations to the Supreme Court.

Issue/s: Whether further action is warranted in light of Mr Curtis’ breach of a good behaviour order.

Decision and Reasoning: The offence subject of the breach was of a different character and less serious to the offence that Mr Curtis was originally sentenced for. This offending was not part of a life of serious criminal offending but a stupid criminal offence prompted by his perceived necessity. Mr Curtis had otherwise complied with the good behaviour order. His Honour was satisfied that this justified re-sentencing Mr Curtis rather than imposing the suspended sentence (See [45]-[49]).

In re-sentencing Mr Curtis, Refshauge J noted the need for general deterrence because the original offence was of family violence. He further noted that ‘Vindication of the victim is always important in family violence offences and, again, the expression of the court's displeasure with the offending by the imposition of imprisonment will meet that objective’ (See [52]). His Honour further noted Mr Curtis’ youth, his employment, and the birth of his child into a stable relationship (absent any family violence) (See [50]-[55]). Mr Curtis was re-sentenced to 12 months imprisonment to commence from 15 August 2015 (to take into account pre-sentence custody), wholly suspended. His Honour further imposed a good behaviour order for 18 months with probation conditions and a community service condition.

Note: the defendant subsequently breached his good behaviour order (although the breach was not related to further domestic and family violence) and was re-sentenced to 12 months’ imprisonment, wholly suspended (see R v Curtis (No 3) [2017] ACTSC 101 (27 April 2017).

R v Williams [2015] ACTSC 406 (18 December 2015) – Australian Capital Territory Supreme Court

‘Anger management programs’ – ‘Assault occasioning bodily harm’ – ‘Brother’ – ‘Deterrence’ – ‘Drug and alcohol programs’ – ‘Family members’ – ‘Physical violence and harm’

Charge/s: Recklessly inflicting grievous bodily harm.

Hearing: Sentencing hearing.

Facts: After arguing with his brother, Mr Williams chased his brother down the street. He caught up with his brother and hit him with a guitar, rendering him unconscious. Mr Williams’ brother was found to have a depressed skull fracture and a haematoma on his brain. He underwent surgery and spent three weeks in hospital before being moved to a rehabilitation facility.

Decision and Reasoning: This was a serious offence, especially because it involved family violence. The offence was not premeditated but was aggravated because it took place at a time when Mr Williams was already subject to a NSW good behaviour order made in connection with an earlier family violence offence (against Mr Williams’ former partner). Further, Mr Williams tried to minimise his actions. The injuries sustained by his brother were quite serious (See [11]-[22]). Penfold J also had regard to Mr Williams’ subjective circumstances including his extensive criminal history (See [23]-[26]). He noted that Mr Williams had attended some anger management and drug and alcohol programs but these had not had an effective rehabilitative impact (See [27]-[31]).

In terms of general deterrence, His Honour noted, ‘This is an offence of a kind that requires general deterrence, and in some cases at least, general deterrence may be effective. I note defence counsel's comment that general deterrence in relation to the grievous bodily harm offence is particularly relevant in relation to “glassing” offences, but I consider that deterring violence within the family is at least as important as deterring alcohol-fuelled violence between strangers or acquaintances’ (See [33]). Personal deterrence was also relevant on the facts (See [34]). Penfold J sentenced Mr Williams to three years imprisonment with a non-parole period of 18 months.

R v Pikula [2015] ACTSC 380 (12 November 2015) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Assault occasioning actual bodily harm’ – ‘Brother’ – ‘Causing grievous bodily harm’ – ‘Drug and alcohol programs’ – ‘Family members’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’

Charge/s: Assault occasioning actual bodily harm, causing grievous bodily harm.

Hearing: Sentencing hearing.

Facts: After consuming a significant quantity of alcohol, Mr Pikula, a man with Aboriginal and Tongan ancestry, began arguing with his step-brother (Mr Mapa). Another step-brother, Mr King, tried to intervene but was stabbed with a knife in the back of his thigh by Mr Pikula (assault occasioning actual bodily harm). The following evening, Mr Pikula again became highly intoxicated and argued with Mr Mapa. He stabbed Mr Mapa twice in the back. The knife wounds punctured his lung (grievous bodily harm).

Decision and Reasoning: Refshauge J sentenced Mr Pikula to 22 months imprisonment for assault occasioning actual bodily harm and 27 months imprisonment for causing grievous bodily harm (cumulative). His Honour also recommended that a condition of Mr Pikula’s parole would include a requirement that he undergo treatment and counselling for alcohol abuse. In imposing this sentence, Refshauge J noted the importance of both general deterrence and specific deterrence (in light of his violent criminal record). The offending was serious here and warranted denunciation. While it had some association with alcohol, which may provide some opportunity for rehabilitation, this could not be said to overwhelm the other purposes of sentencing. His Honour also had regard to Mr Pikula’s troubled childhood and his long history of alcohol abuse.

At [1], ‘There can be no doubt that one of the marks of a civilised society is that its members can be protected from violence in their lives. While there can, of course, be no guarantee of such protection, nevertheless, the community expects that appropriate steps will be taken to maximise such protection. This is especially true of the need for safety within the family’.

R v NQ [2015] ACTSC 308 (14 October 2015) – Australian Capital Territory Supreme Court

‘Act of indecency without consent’ – ‘Assault with intent to engage in sexual intercourse’ – ‘Deterrence’ – ‘Drug and alcohol programs’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Act of indecency without consent, assault with intent to engage in sexual intercourse.

Hearing: Sentencing hearing.

Facts: The male offender and the female complainant were married. They had been in a relationship for 17 years and had 3 children. The offender and the complainant had been drinking alcohol together when the offender requested oral sex. The complainant declined and went to bed. Five minutes later the offender walked into the bedroom and demanded the complainant perform oral sex on him. She refused repeatedly and started crying. The offender said, ‘Do you think your crying is going to get you what you want? It’s your job to do it’. He then took all his clothes off and positioned himself on top of the complainant. She pushed the offender off but he continued to talk angrily. The offender then dragged the complainant across the bed and pushed her head close to his penis. He tried to slap her twice but was blocked by the complainant. She fell off the bed, hurting her head. The offender continued to demand oral sex. He pinned her down on the bed and yelled, ‘You need to suck me off, it’s not about love or intimacy’. The complainant, crying, pleaded for him to let her go and the offender replied ‘What can you do about it?’ The offender then became upset and the complainant called the police.

Decision and Reasoning: These offences were objectively serious. The assault lasted almost an hour and included physical and mental abuse. Robinson AJ noted, ‘I take into account the fact that prior sexual relationship is relevant in assessing the seriousness of sexual assault. Here it is not a sexual assault by an unknown stranger which would give rise to extreme terror in the mind of the complainant’ (See [8]). His Honour also took into account a number of subjective circumstances. There had been some measure of reconciliation between the offender and the complainant. While these events were not an isolated incident of abuse and this mitigated the leniency that could otherwise have been shown in this case, the offender had taken opportunities to assist himself and took responsibility for his offending (See [9]-[14]).

In sum, His Honour noted: ‘I have come to the view that only a sentence of imprisonment is appropriate to the level of offending in this case. There is a need to punish this offending and to send a clear message by way of general deterrence to others that participation in sexual behaviour is a matter of choice not subjugation. I have also determined to deal with the offending as if it were only one transaction and impose concurrent sentences’ at [15]. The offender was sentenced to one year and nine months on the charge of unlawful assault and seven months imprisonment for an act of indecency. These sentences were wholly suspended upon the offender entering a good behaviour order for three years.

R v Stanley [2015] ACTSC 322 (12 October 2015) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Damaging property’ – ‘Deterrence’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Risk factor- strangulation’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Totality’ – ‘Victim impact statement’

Charges: Assault occasioning actual bodily harm (two counts), damaging property, engaging in sexual intercourse without consent (two counts)

Proceeding: Sentencing

Facts: The offender and the victim were in a relationship. After drinking three bottles of wine one night, the offender smashed a bottle and jar because ‘he was angry’. The victim decided to stay at her mother’s house and that it was best to take the offender’s car keys. When she went to get them, the offender grabbed her by her hair, threw her to the ground, stood over her, stomped on her face and chest and punched her a number of times. During the attack, the offender told the victim ‘This is what you get for lying to me’ and threatened to kill her. He then put his hands around her neck and tried to strangle her (count 1). When the victim tried to phone someone for help, the offender snapped her mobile in half (count 2). About 15 minutes after the initial attack had ended, the offender grabbed the victim by the back of her neck, smashed a mug over her head and hit her multiple times with the smashed mug. After the mug broke, he went to get another mug and again hit her, causing a large laceration to the victim’s head (count 3). After the victim had a shower, the offender told her ‘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.’ He then put his penis into the victim’s mouth despite her resisting and turning her head away (count 4) and forced her legs apart and had sexual intercourse with her (count 5).

The next morning the offender asked the victim what had happened. When she told him and asked to be taken to the hospital, he refused until later that day. The offender later apologised to the victim and told her, ‘If you tell the police then we will not see each other again’.

In relation to this conduct the offender was charged and pleaded guilty to two counts of assault occasioning actual bodily harm (counts 1 and 3), one count of damaging property (count 2) and two counts of engaging in sexual intercourse without consent (counts 4 and 5).

Issue: What sentence the offender should receive.

Decision and reasoning: Refshauge ACJ began his judgement by emphasising the seriousness of domestic violence and the considerations relevant to sentencing offenders: ‘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. 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. 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. 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’ ([1]-[4]).

The offender had a long history of alcohol abuse and alcohol related violence. He had previously been convicted of a violent assault on his previous partner, two offences of drink driving and driving while disqualified. While in custody, the offender completed the SMART Recovery Program and First Steps to Anger Management Program to address his alcohol abuse and violence. He also accepted that he had an alcohol problem and expressed remorse about the offending and its impact on the victim.

References about the offender were provided by his employer (he was employed as a wards person in a hospital), his brother-in-law and his pastor. All three references described him as a respectful and caring person of good character. His brother-in-law and pastor also commented on the positive changes the offender made while in custody. He developed his faith in God, was obedient and respectful of authority, enjoyed the education and rehabilitation programs available and was very remorseful about his conduct in harming the victim. The victim also prepared a victim impact statement in which she expressed her continued serious emotional trauma and its impact on all areas of her life including friends, family, work and finances.

The offending was very serious with the whole of the events constituting 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’ ([70]). The facts the assaults occurred in the context of a domestic relationship and the victim suffered injuries were aggravating factors. The circumstances in which the property was damaged also made the offence more serious: ‘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’ ([67]). The sexual assaults violated the victim’s integrity and were a serious intrusion into her personal life despite occurring in the context of a domestic relationship.

In sentencing, Refshauge ACJ emphasised the need for special and general deterrence to denounce the offences committed by the offender. While the offender had taken positive steps in rehabilitation, this could not overbear the other purposes of sentencing. Rather, it was taken into account in setting the non-parole period. The seriousness of the offending meant that imprisonment was the only appropriate sentence. After considering the principle of totality and ensuring the offender was not punished twice, Refshauge ACJ sentenced him to a total sentence of six years’ imprisonment, backdated for the time already spent in custody. A non-parole period of three years and three months was also ordered. The total sentence comprised of:

•

Count 1: one year and eight months’ imprisonment;

•

Count 2: one year imprisonment, cumulative as to four months on the sentence for count 1;

•

Count 3: two years imprisonment, cumulative as to one year on the sentence for count 2;

•

Count 4: three years imprisonment, cumulative as to one year and three months on the sentence for count 3;

•

Count 5: three years and six months imprisonment, cumulative as to one year and nine months on the sentence for count 4.

Alchin v McInerney [2015] ACTSC 300 (25 September 2015) – Australian Capital Territory Supreme Court

*Note: this case referenced now superseded legislation, however the statements of principle are unaffected by the legislation change.

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Following harassing, monitoring’ – ‘Protection order’ – ‘Sentencing’

Charge/s: Breach of a domestic violence order.

Appeal type: Appeal against sentence.

Facts: The appellant had been in an ‘off and on relationship’ with the female victim for 10 years. A Domestic Violence Order was made in favour of the victim against the appellant. Subsequently, one evening between 9.13pm and 10.04pm, the appellant made 10 telephone calls to the victim. He left one message saying: ‘You wait cunt. Your house is smashed and that fucking cunt you’re rooting. I am going to kill that cunt’. The appellant pleaded guilty at the first reasonable opportunity to the breach and was sentenced to a period of imprisonment of 22 months with a non-parole period of 15 months.

Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The offence was very serious but the objective circumstances did not warrant a term of imprisonment of 22 months. As per Robinson AJ: ‘Significantly, there was no face to face confrontation, no infringement of the prohibition to be on the property of or within 100 metres of Ms BC and no weapon was involved. Ms BC did not answer the telephone calls’. His Honour referred to R v Loulanting [2015] ACTSC 172 as being a factually similar case. His Honour acknowledged that compliance with any type of protection order is essential to protect members of the community from violence and anti-social behaviour. It is therefore open to the Court to impose a stern penalty to achieve this end. However, the punishment must still be proportionate to the offending and here this could not be said to be the case (See [25]-[26], [32]-[35]).

The appellant was re-sentenced to 14 months imprisonment. Robinson AJ stated: ‘In my view substantial weight should be accorded, in the circumstances of this case, to deterring the offender and others from committing the same offence. His conduct was a defiance of the orders of the Court. This was by no means the first such defiance. There is value in our society upholding all orders of Courts. There could be said to be even more value in upholding protection orders in the context of the role that protection orders now play in our society in all jurisdictions’ at [54].

McClung v Vince [2015] ACTSC 255 (27 August 2015) – Australian Capital Territory Supreme Court

‘Common assault’ – ‘Damage to property’ – ‘Damaging property’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’

Charge/s: Common assault, damage to property.

Appeal type: Appeal against sentence.

Facts: The appellant and his former female partner had four children together. They separated two months prior to the offending but the appellant had been staying at the family home for a week prior to the offences. On 6 November 2014 at about 11pm, the appellant banged on his former partner’s window demanding she wake up. She let him in and went back to bed (where her 5 year old daughter was sleeping). The appellant went to the bedroom and punched a hole in the door. He started yelling and abusing his former partner. Despite the cries of the 5 year old daughter to stop, the appellant restrained his former partner and started hitting her. He woke up the couple’s 3 year old son. The appellant then hit the bedroom door several more times and started yelling again. The couple’s 13 year old daughter called the police. The appellant was sentenced to 12 months imprisonment for common assault and 6 months imprisonment for damage to property, suspended after 8 months. The appellant had previously been convicted for offences of assault against his former partner in 2006 and 2012. These offences were also committed under the influence of alcohol.

Issue/s: The sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. First, the sentencing magistrate did not fail to consider the possibility of part of the sentence being served by way of periodic detention. Second, although counsel submitted that the appellant had been compliant with bail conditions imposed in 2014 (namely, sobriety), the magistrate was entitled not to place any great weight on this consideration. This was particularly so given that the appellant had assaulted his former partner before under the influence of alcohol. Finally, counsel for the appellant submitted that previous assaults had been dealt with by a non-custodial sentence and to impose a sentence of full-time imprisonment for at least 8 months was an oversized incremental step. Robinson AJ stated: ‘The argument regarding the oversized incremental step is answered by the proposition that the courts dealing with the earlier assaults allowed leniency (perhaps too much) in a desire to rehabilitate the appellant. Further there is no sentencing principle that requires courts to impose sentences incrementally according to some upward scale’ (See [18]).

R v Guy [2015] ACTSC 237 (5 August 2015) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Assault occasioning actual bodily harm’ – ‘Breach of good behaviour order’ – ‘Childhood disadvantage’ – ‘Damaging property’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Rehabilitation’ – ‘Risk factor- strangulation’ – ‘Sentencing’

Charges: Damaging property, assault, assault occasioning actual bodily harm

Proceeding: Resentencing

Facts: The offender was charged and pleaded guilty to damaging property for breaking a window in his partner’s house. He was convicted and sentenced to one month’s imprisonment. This conviction breached a good behaviour order that was made after he was convicted for assaulting his partner. He was sentenced to six months’ imprisonment, wholly suspended upon complying with a good behaviour order for two years. The good behaviour order was cancelled as a result of the breach and the six months’ suspended sentence was imposed, but was ordered to be served concurrently with another term of imprisonment. The offender successfully appealed this sentence. A sentence of six months’ imprisonment wholly suspended on the condition of a 12-month good behaviour order was imposed on appeal. A good behaviour order for the offence of damaging property was also made.

The offender was subsequently convicted of traffic offences, constituting a breach of both good behaviour orders. As a result, the good behaviour bond imposed for the offence of damaging property was extended for a further 12 months. He was also resentenced to six months’ imprisonment on the assault charge, suspended for a period of 12 months on the conditions of a further good behaviour order for 12 months and 80 hours of community service. This effectively increased the length of the good behaviour orders as well as requiring the offender to perform community service work.

The offender again breached these good behaviour bonds when he was convicted of assault occasioning bodily harm. This conviction arose when the offender choked his partner and threw a chest of drawers that hit her in the head. In relation to this offence, he was sentenced to 18 months’ imprisonment, suspended after nine months with a good behaviour order for two years thereafter.

Issue: How should the offender be resentenced for the final breach of the two good behaviour orders?

Decision and reasoning:

The offender suffered a difficult childhood in which he was sexually abused and had great difficulties in school as a result of having ADHD and dyslexia. After leaving school at 14, he was homeless for many years. He also had a long history of drug and alcohol abuse. The offender also suffered from various mental illnesses, including major depressive disorder, borderline personality disorder and antisocial personality traits, for which he was receiving treatment. He had a long criminal history with 122 offences on his criminal record. This reduced towards the time of offending in question and suggested his criminality was abating.

The final breach of the good behaviour orders was serious when considering ‘the offence was a family violence offence committed on a complainant who had been the victim of earlier offences of a similar type committed by [the offender], for which the current Good Behaviour Orders owe their genesis’ ([37]). However, there was a need to take into account the offender’s mental health. Refshauge J considered that ‘the option for rehabilitation can be given greater prominence without minimising the need for some level of special and general deterrence’ ([38]).

Refshauge J cancelled the good behaviour orders in accordance with s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). The conviction of assault occasioning actual bodily harm was confirmed. The offender was convicted to six months’ imprisonment, wholly suspended for a period of two years. A good behaviour order was made for two years with the conditions that the offender would be supervised, must complete 180 hours of community service, and must participate in the Detention Exit Community Mental Health Outreach Program for three months. The conviction for damaging property was also confirmed and the offender was sentenced to one month’s imprisonment, taking into account the time already spent in custody.

Refshauge J concluded by telling the offender, ‘If you are genuine in your efforts, the Court will support you in this, as I hope I have shown you, but if you are not, then you can expect further custodial sentences and a revolving door’ ([57]).

For Refshauge J’s previous decision on appeal, see Guy v Anderson (No 2) [2013] ACTSC 245.

R v McLaughlin [2015] ACTSC 201 (16 July 2015) – Australian Capital Territory Supreme Court

‘Animal abuse’ – ‘Assault’ – ‘Contravening a protection order’ – ‘Exposing children’ – ‘Moral culpability’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’ – ‘Victim impact statement’

Charges: Common assault, assault occasioning actual bodily harm, contravening a protection order, resisting a public official

Proceeding: Sentencing

Facts: When the offender returned home he tripped after his dogs walked in front of him. In front of his wife (the victim) and children, the offender became angry and started kicking the dogs. After the victim asked him to calm and stop hurting the animals, the offender punched her in the stomach (count 1). Approximately 10 minutes later when they were discussing the punch, the victim said ‘You grew up watching your dad hit your mum and now you think it’s okay to hit me too’. In response, the offender punched her again to the back of her head, causing her to fall to the ground. He then punched her twice more, kicked her in the head five times and stomped on her head. As a result, the victim suffered a large cut to her forehead requiring seven stitches and a bloody nose (count 2). Both children were present during this assault. When the offender was arrested by police he became aggressive, spat at one of the officers (count 3) and resisted the arrest (count 4). Approximately 3 months later a domestic violence order was made against the offender restraining him from engaging in conduct that constitutes domestic violence to the victim, including offensive, harassing or threatening conduct. The offender subsequently had an argument with the victim where he was abusive and threatening towards her (count 5). When someone attempted to intervene, the offender threatened to kick him. At the time this offence took place the offender was on bail for the previous 4 offences.

In relation to this conduct, the offender was charged and pleaded guilty to two counts of common assault (counts 1 and 3), one count of assault occasioning actual bodily harm (count 2), one count of resisting a public official (count 4) and one count of contravening a protection order (count 5).

Issue: What sentence should be imposed.

Decision and reasoning:

In assessing the objective seriousness of the offences, Burns J took into account that the offender was significantly larger than the victim, that the offences occurred in the context of a domestic relationship and that the children were present during the attack. Burns J considered the offender’s conduct to be ‘cowardly, shameful and rightly characterised as criminal’ ([7]). A victim impact statement was also prepared by the victim, explaining the trauma and anxiety the offences caused her and the children. Burns J noted that ‘As is so often the case in domestic violence offences, the long term burden of your violence will not only be felt by your wife, but also by your children’.

The offender’s childhood was marred by exposure to domestic violence and he ‘was disappointed in [his] actions and how [he] exposed [his] children to that type of domestic violence, which [he] despised as a child’ ([22]). He had secure employment to return to after being released from custody. The offender had a history of drug and alcohol abuse and mental health issues including suffering from posttraumatic stress disorder. Due to these concerns, he was assessed as being at moderate risk of reoffending. However, Burns J noted that the offender had been attending numerous rehabilitation programs for his alcohol and drug abuse and was receiving treatment for his mental health issues. Expert psychologist reports noted that the offender’s behaviour was ‘strongly influenced by [his] background of mental health issues arising out of [his] traumatic childhood, particularly [his] ongoing complex post traumatic stress disorder’ and that he was unable to make calm or rational choices at the time of offending ([32]).

The offender demonstrated a degree of remorse in his statements to psychologists and his guilty pleas. Therefore, the sentence was reduced by 25 per cent as a result of these early pleas. The offender’s mental illness was causally connected to his offending and to his abuse of alcohol. It also impaired his mental functioning at the time of the offences and reduced his moral culpability by impairing his ability to exercise appropriate judgement and make calm and rational choices. Full time imprisonment would have a deleterious effect on his mental health and prospects of rehabilitation. Burns J concluded that the need for general and specific deterrence should be moderate in light of the offender’s reduced culpability as a result of his mental illness.

Burns J convicted and sentenced the offender to:

•

Count 2: Nine months’ imprisonment to be served by way of periodic detention;

•

Count 5: Three months’ imprisonment concurrent with the sentence for count 2, suspended after 13 days on the condition of complying with a good behaviour order for 18 months;

•

Count 1: Good behaviour order for a period of nine months;

•

Count 3: Fine of $600.00; and

•

Count 4: Good behaviour order for three months.

R v Ross [2015] ACTSC 22 (1 July 2015) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Bail’ – ‘Burglary’ – ‘Choking’ – ‘Exceptional circumstances’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation’

Charges: Assault occasioning actual bodily harm, burglary and choking a person so as to render them insensible or unconscious

Proceeding: Bail

Facts: While on bail for previous offending, the accused allegedly entered his ex-partner’s (the victim) home and attacked her, placing his hand around her neck and squeezing until she felt light headed. At the time these offences were committed, the accused was subject to a protection order in favour of the victim. The breach of this order was a serious offence for the purposes of the Bail Act 1992 (ACT) (the Act) and therefore the presumption against bail did not apply to the accused. In order for bail to be granted, the court must have been satisfied that there were special and exceptional circumstances favouring the grant of bail under s 9D(2) of the Act.

Issue: Whether bail should be granted.

Decision and reasoning: Bail was not granted. The charge of contravening a protection order was ultimately withdrawn because of procedural issues relating to service. However, s 9D of the Act still applies where a person is on bail for a serious offence of which offence that person is acquitted. Therefore, the fact that the charge was withdrawn did not amount to special and exceptional circumstances in favour of granting bail. The accused allegedly committed very serious offences of family violence. He had a history of offending, having previously been convicted of two offences of assault occasioning actual bodily harm, four offences of assault, two offences of contravention of a protection order, numerous traffic offences including drink-driving offences and fives offences of failing to appear in accordance with a bail undertaking. He had also shown an unwillingness to obey and disrespect of court orders. Given the accused’s history and the real risk that he would not attend trial and reoffend, bail should not have been granted even if there were special and exceptional circumstances in favour of granting bail.

R v Loulanting [2015] ACTSC 172 (23 June 2015) – Australian Capital Territory Supreme Court

‘Breach of a protection order’ – ‘Drug and alcohol programs’ – ‘Following harassing, monitoring’ – ‘People affected by substance misuse’ – ‘Sentencing’ – ‘Threat to kill’

Charge/s: Threat to kill, breach of a protection order x 2.

Hearing: Sentencing hearing.

Facts: The offender was charged with and pleaded guilty to 2 counts of breaching a protection order (where the protected person was his former female partner) and making threats to kill. On 18 January 2015, the offender contacted the protected person, asking to see his son. She refused because he had been using ice and was acting aggressive and demanding. The offender then sent her a number of text messages that were indecent, offensive and aggressive. The protected person ignored these messages as he had sent similar messages in the past. However, the next day, the offender called again and left a voice mail and text messages threatening to kill her.

Decision and Reasoning: The offender was sentenced to a total sentence of 4 years imprisonment, including 12 months imprisonment for the breaches of the protection order and 2 years and 6 months imprisonment for the threat to kill. This sentence was appropriate in light of a number of factors. The offences required punishment and denunciation, and considerations of general and specific deterrence were also significant. Refshauge J accepted that the offender genuinely sought rehabilitation but noted that agencies the offender had been referred to in the past had had no significant impact on his behaviour. His Honour took into account the plea of guilty, the offender’s mental health and accepted that the offender felt remorseful (See [44]-[48]).

His Honour further took into account the seriousness of the offences, which were particularly concerning as they were committed in the context of family violence. First, the threat to kill was serious. The use of ice, earlier harassment and changed tone from the earlier conversation all showed the serious intent of the offender and the fear that this threat was likely to have had engendered in the victim. The fact that this offence was brought on by the use of ice was not a mitigating factor but Refshauge J took into the offender’s desire for rehabilitation and the, so far unsuccessful, attempts he had made at rehabilitation. The denial of access to his son also provided explanation for the offence but was not a mitigating factor in any way (See [37]-[40]). Second, the breaches of the protection order were also serious, albeit less serious than the threat to kill. The breaches were deliberate and intentional. While they were not the most serious versions of the offence, they were not made by personal approach, they were still serious as the contact was made over two days and was abusive and indecent (See [41]-[42]).

Refshauge J stated:

There is no doubt that the addiction to drugs creates significant problems for the community, as well as for the user and his or her family. When the drug is methylamphetamine, or ice, the violence that it also generates can create further problems, particularly if there are stressed family situations leading to family violence. When mental health issues are added to the situation, it creates great complexity in trying to deal with the multiple issues that arise (See [1]).

R v Peadon [2015] ACTSC 132 (14 May 2015) – Australian Capital Territory Supreme Court

‘Aggravating factor’ – ‘Burglary’ – ‘Common assault’ – ‘Community views’ – ‘Drug and alcohol programs’ – ‘Mitigating factors’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Recklessly inflicting grievous bodily harm’ – ‘Rehabilitation’

Charge/s: Recklessly inflicting grievous bodily harm, burglary x 2, common assault x 2.

Hearing: Sentencing hearing.

Facts: On two occasions on one evening, the offender attended the residence of his former partner. On the first occasion, the offender entered through a window and engaged in a physical confrontation with his former partner’s boyfriend. The offender then left the premises. He returned later in the evening and picked up a knife from the kitchen. The offender started a physical confrontation with his former partner’s boyfriend. To protect himself, the victim placed his hand on the blade of the knife and sustained a serious injury to his hand.

Decision and Reasoning: On the burglary charges, the offender was sentenced to 12 months imprisonment and 16 months imprisonment, with the balance suspended and a good behaviour order imposed. On the charge of recklessly inflicting grievous bodily harm, the offender was sentenced to 15 months imprisonment, wholly suspended upon entering into a good behaviour order. In imposing this sentence, Burns J took into a number of considerations that warranted greater punishment. His Honour noted that, ‘these offences [were] family violence offences and as such must be treated very seriously by [the] Court. [The] community views with great abhorrence the infliction of violence by people in family relationships’. It was also significant that the offences occurred in the victim’s own home. In mitigation, Burns J took into account the offender’s plea of guilty, the steps taken by the offender to address his alcohol abuse (which was a significant factor in all his offending), his remorse and general prospects for rehabilitation.

LE v SX [2015] ACTSC 79 (11 May 2015) – Australian Capital Territory Supreme Court

‘Application for a domestic violence order’ – ‘Domestic and family abuse in the context of family law proceedings’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Systems abuse’

Order sought: Application for a domestic violence order (DVO).

Appeal type: Application for extension of time in which to bring an appeal from the decision of the Magistrates Court dismissing an application for a domestic violence order.

Facts: On 25 February 2014, the applicant applied for a DVO against her former male partner. Both parties were represented. The transcript of the proceedings extended over some 86 pages. The applicant gave evidence in chief of a number of incidents involving the applicant and her daughter being followed and stared at by the respondent, being grabbed and punched by the respondent, and the respondent sending threatening messages. Of particular relevance to the appeal, the applicant gave evidence of an incident that occurred on 1 December 2010 at the time of the couple’s separation. The applicant thought the respondent was overseas but he appeared in her house and dragged her into the hallway, sat on top of her, and smashed her head onto the floor (‘the December 2010 incident’). The next day the applicant made an application for housing assistance to the Commissioner for Social Housing stating that she was homeless and escaping violence from her partner.

On 27 May 2014, the magistrate found that the principal incidents of which the applicant gave evidence did not occur or did not constitute domestic violence. In particular, the magistrate was satisfied that the respondent was not in Australia on or about 1 December 2010 and he did not return until after the applicant had gone to the Commissioner for Social Housing. Although the applicant had been injured by someone at the time she went to the Commissioner for Social Housing, Her Honour was not satisfied on the balance of probabilities that the respondent caused that injury.

The application for leave to appeal was not filed until 2 January 2015 (a period of 7 months delay). The applicant was prompted to lodge this appeal because of an adverse decision of a judge of the Federal Circuit Court on 18 December 2014. The decision of the Federal Circuit Court related to parental responsibility and living arrangements for the child of the applicant and the respondent. One of the reasons the applicant sought to overturn the decision of the Magistrates Court was that this decision had an impact on the findings and outcome in the Federal Circuit Court decision.

Issue/s: Whether the grounds of appeal have any reasonable prospect of success and whether the extension of time within which to appeal should be granted.

Decision and Reasoning: Mossop Ass J dismissed the application for an extension of time within which to appeal. His Honour accepted that, at least in relation to the December 2010 incident, there was a reasonably arguable ground of appeal based on documentary evidence presented to the Supreme Court on appeal. Essentially, this paperwork demonstrated that there was at least a possibility that the dates originally provided were incorrect and the respondent could have been in the country at the time of the incident (see [82]-[92]).

However, there were other factors telling against the grant of an extension of time: the length of time since the decision; the limited prospects of ultimately obtaining an order even if domestic violence was ultimately established; the interests of SX in not having a long finalised decision reopened; and the availability of protection under the Act if circumstances warrant it. The way in which the Federal Circuit Court relied on the findings and decision reached in the Magistrates Court was a matter of significant concern to the applicant but the correctness of the Federal Circuit Court’s approach and conclusions was a matter to be resolved in that appellate hierarchy (See [112]-[113]).

Note: this case was affirmed on appeal (see LE v SX [2017] ACTCA 34)

McElholum v Hughes [2015] ACTSC 78 (24 April 2015) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Family law proceedings’ – ‘Legal representation’ – ‘Physical violence and harm’ – ‘Safety and protection of victim and witnesses’ – ‘Systems abuse’

Charge/s: Assault.

Appeal type: Appeal against conviction and sentence.

Facts: The appellant and his former partner had commenced family law proceedings relating to parenting orders for their son. The appellant, a solicitor, was self-represented while his former partner (the complainant) was represented by a firm of solicitors and a barrister. While at the Federal Magistrates Court, the appellant knocked on the interview door where his former partner and her counsel (the solicitor, barrister and a law clerk) were conferring. He asked if they had considered his proposal. When he was told they would be another 10-15 minutes, the appellant replied ‘that’s not good enough’. The barrister attempted to close the door with her left wrist but the appellant forced it open and said, ‘who are you?’ in a raised voice. The barrister called security. 30 minutes later she complained of pain in her wrist. The appellant was charged with assault and pleaded not guilty. The magistrate found the charge proved and fined the appellant $100 and ordered the appellant to pay costs of $69, a criminal levy of $50 and a victim’s service levy of $10.

Issue/s: The appellant appealed against his conviction and sentence. The notice of appeal was nearly 70 pages long and contained many convoluted and repetitive grounds of appeal. Two relevant grounds were:

•

The evidence of the witnesses called by the prosecution was tainted by interest or was perjured (appeal against conviction).

•

The magistrate erred in placing significance on the location of the assault namely, the court building (appeal against sentence).

Decision and Reasoning: The appeal against conviction and the appeal against sentence were dismissed. First, one of the grounds in relation to the appeal against conviction was that the evidence given by the barrister, the solicitor, the law clerk and his former partner was tainted because they all had an ulterior motive i.e. to gain advantage in the family law proceedings. Refshauge J held that there was no evidence to support this allegation and stated, ‘the incident was reported to a security officer of the Commonwealth Law Courts promptly, the evidence of the various parties was not identical, usually a matter indicative of truth, because identical recollections of different witnesses, especially as to inessential facts, is often an indication of concoction and it is not explained what benefit [his former partner] would obtain from such a device’. Further, the allegation that the witnesses perjured themselves was unsustainable. The evidence given was corroborated by the CCTV footage and by the evidence of the other parties(See [301]-[323]).

Second, in relation to the appeal against sentence, the magistrate did not err in placing significance on the fact that the assault took place in a court building. Refshauge J stated, ‘while [the appellant] certainly possessed the right to be within the bounds of the court precinct, this is not an unlimited right and does not give him the right to assault other people. A court precinct is a place where people should be able to expect the law to be observed at all times’. Further, His Honour quoted from Grimshaw and Mann [2013] ACTSC 189, ‘intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious’. However, this was not to state that assaults occurring in a private home are not serious (See [372]-[377]).

Note: this case was affirmed on appeal (see McElholum v Hughes [2016] ACTCA 37 (29 September 2016)).

R v Seears [2015] ACTSC 109 (23 April 2015) – Australian Capital Territory Supreme Court

‘Aggravated burglary’ – ‘Assault occasioning actual bodily harm’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Intentionally cause damage to property’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Aggravated burglary (armed and intent to cause harm).

Hearing: Sentencing hearing.

Facts: S left her male partner, the offender, to be in a relationship with another man (the victim). Thereafter, the offender sent many abusive and threatening text messages to S. On the morning of 26 May 2013, the intoxicated appellant drove to the victim’s house, where S was now living. He was carrying a 1.2 metre spirit level and a bag with an angle grinder, cable ties, electrical tape, a kitchen knife and a timber-handled holding knife. The offender used the spirit level to smash the window of the victim’s bedroom, where the victim and S were asleep. The victim asked the offender what he was there for to which the offender replied, ‘You know what I’m here for; I’m going to kill you’ and ‘You’re sleeping with my wife’. He continued to scream at the victim as the victim walked away. The offender then struck the victim with the spirit level on the left arm and left side of his head, causing significant lacerations. S tried to intervene as the offender punched the victim in the face, threatening to kill him. The police were called and the offender removed.

Decision and Reasoning: The offender was sentenced to 3 years and 1 month imprisonment with a non-parole period of 18 months. In imposing this sentence, Murrell CJ took into account a number of considerations. First, the offender had a history of taking the law into his own hands. He was on bail for common assault at the time of the offences and had previously committed offences of common assault. Second, Her Honour took into the offender’s subjective circumstances namely, the offender’s intention to ‘settle down’ by continuing his employment in the building industry and removing himself from his involvement in the Rebels Motorcycle Gang. However, she noted that it was surprising that someone at age 63 had not ‘learnt his lesson from a series of prior similar incidents’. Third, the objective circumstances were of at least moderate seriousness (See [26]-[33]). Finally, Her Honour took into account general sentencing considerations (See [35]-[40]).

R v Saedam [2015] ACTSC 85 (1 April 2015) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Rape’ – ‘Risk of reoffending’ – ‘Sexual and reproductive abuse’ – ‘Theft’ – ‘Views of victims’

Charges: Engaging in sexual intercourse without consent (3 counts), assault, assault with the intent of engaging in sexual intercourse, theft

Proceeding: Bail

Facts: The applicant and his wife (the victim) lived together for some time after migrating to Perth from Syria. While living in Perth, the victim left the applicant and moved into a refuge as a result of domestic violence in the relationship. After the applicant and victim reconciled, they moved to Canberra where their relationship remained volatile. One day the applicant went into the bedroom and had sexual intercourse with the victim, despite her asking him not to, attempting to push him away and crying throughout. Later in the day, the applicant verbally abused the victim and threatened to withdraw his immigration sponsorship of the victim’s family to come to Australia. He then again had intercourse with the victim, who continued to cry but otherwise did not move. The next day, the applicant slapped the victim and dragged her by her hair, rolled her on her back and again had intercourse with her. The victim continued to struggle, hitting the applicant’s chest and pushing him away. The applicant was charged with three counts of engaging in sexual intercourse without consent, one count of assault, one count of assault with the intent of engaging in sexual intercourse and one count of theft. He pleaded not guilty to each charge.

While in custody, the victim visited the applicant every two or three days. She subsequently made a statutory declaration that she was ‘a little tired and confused’ at the time of making her complaint to the police. She sought to change her statement that all sexual intercourse was consented to and that she had been drinking before the assault. The victim wrote a letter to the Court in respect of the bail application, in which she said she did not object to the applicant being granted bail. She also stated that she was not pressured into writing the letter, that the applicant was not harmful to the community, and that as a pregnant woman she did not want her child to grow up knowing their father was in gaol.

Issue: Whether bail should be granted.

Decision and reasoning: Bail was granted on conditions including that his family pay a surety of $5000, he surrender travel documents, he not contact the victim, and that he reside in Perth.

The offences that the applicant was charged with were serious. However, Refshauge J determined he could not assess the strength of the Crown case given the absence of much evidence and the victim’s damaged reputation as evidence because of her apparent retraction of the complaint. The applicant also had a substantial cash surety available to him and proposed to live with his parents. He had no criminal record. His departure from Canberra to Perth immediately after the offences were alleged was an indication of his intention to flee. However, this risk could be mitigated by imposing conditions on bail such as the surrender of travel documents, that he report to police and be prohibited from being at a place of international departure. Refshauge J accepted that the applicant was likely to commit further violent offences against the victim if he had contact with her. However, this could also be mitigated by the applicant living in Perth and on the condition that he not contact the victim. The Crown’s submission that the applicant could intimidate and interfere with witnesses if bail was granted was rejected. The fact the applicant could withdraw his sponsorship of the victim’s family was unlikely to be affected by his bail status. Further, the victim had already retracted her initial complaint, with no evidence from the prosecution that this was a result of intimidation from the application.

R v Elphick (No 2) [2015] ACTSC 23 (1 April 2015) – Australian Capital Territory Supreme Court

‘Breach of personal protection orders’ – ‘Children’ – ‘Damaging property’ – ‘Following, harassing, monitoring’ – ‘People affected by substance misuse’ – ‘Protection order’ – ‘Stalking’ – ‘Threatening to commit arson’ – ‘Victim impact statements’

Charge/s: Threatening to commit arson, stalking, breach of a personal protection order x 2.

Hearing: Sentencing hearing.

Facts: The offences arose out of the breakdown of a relationship between the offender and his former female partner. The relationship ended acrimoniously, particularly in relation to the care and access arrangements relating to the care of the couple’s child. The offender’s former partner obtained Domestic Violence Order against the offender and her parents obtained Personal Violence Protection Orders. Subsequently, the offender and his former partner had an argument over the telephone over the care and access arrangements for their daughter. The offender went over to the house of his former partner’s parents and began shouting and swearing at his former partner. He produced a cigarette lighter and threatened to burn her parent’s car. Further, the offender pleaded guilty to a count of stalking on the basis of 25 phone calls made to his former partner. Most were for relatively short periods and were made at varying hours of the day. Finally, the offender breached the Personal Protection Orders by calling his former partner’s parents on multiple occasions.

Decision and Reasoning: Refshauge J imposed a total sentence of 2 years and 4 months imprisonment, suspended for a period of two years. In imposing this sentence, Refshauge J took into account the purposes of sentencing and in particular, specific deterrence and vindication of the victims (in light of the Victim Impact Statements delivered in court — See [67]-[70]). He also took into account the offender’s plea of guilty and his subjective circumstances (including the offender’s drug problem).

These offences were serious and warranted a term of imprisonment. The offence of arson was serious because the offender produced a cigarette lighter, there was a threat with intent to achieve an objective to which he may otherwise not have been entitled, and it was committed at the home of the victim. The stalking offence was also a serious offence particularly because it was committed with a circumstance of aggravation, namely in the presence of a Domestic Violence Order. Finally, the breaches of Personal Protection Orders were serious because they involved a disregard of a court order designed to protect the subjects of the orders.

R v Thompson [2015] ACTSC 69 (20 March 2015) – Australian Capital Territory Supreme Court

‘Aggravated burglary’ – ‘Emotional and psychological abuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Unlawful confinement’ – ‘Young people’

Charge/s: Aggravated burglary, unlawful confinement, common assault, carry/use a firearm with disregard for own safety or safety of other persons.

Hearing: Sentencing hearing.

Facts: The 26 year old male offender and the 21 year old female complainant commenced a relationship after meeting on an online dating website. Five weeks after their first meeting, the complainant told the offender that she wanted to end the relationship but wished to remain friends. The complainant then went overseas for 2 months. Upon her return, the offender tried to re-commence their relationship but the complainant did not want to. At a meeting between the pair, the offender said the complainant was ‘cruel’, ‘yelled at him’ and ‘humiliated him’. A month later, the complainant was home alone in her apartment. The offender sprung out from behind a door, covered her mouth with a gloved hand and told her not to scream. In his other hand, he was holding a gun. There was a struggle in which the offender tackled the complainant onto the bed and held a gun against her chest. The complainant was confined to the apartment for 3 hours.

Decision and Reasoning: Imprisonment was the only penalty appropriate in the circumstances. These were very serious offences — the complainant was in her own apartment which the offender broke into, he carried a gun, he wore medical gloves, held the gun against the complainant’s chest, and confined the complainant in terrifying circumstances for 3 hours. However, on the balance of probabilities, Robinson AJ found that the offender was suffering from a depressive mental illness on the day of the offence. The moral culpability of the offender was reduced, although not eliminated, by this depressive illness. There was a moderate risk of reoffending but His Honour concluded the offender had very good prospects for rehabilitation in light of the treatment of his mental illness and his new relationship. In the circumstances, it was desirable to give weight to the promotion of the rehabilitation of the offender. Accordingly, the offender, was sentenced to a total effective sentence of 2 years imprisonment, suspended from 9 December 2015.

Note: the convictions in relation to this case were set aside and a retrial was ordered because the trial judge failed to provide a warning about having a support person (see Thompson v The Queen; The Queen v Thompson [2016] ACTCA 12 (6 May 2016).

Hutcheon v West [2015] ACTSC 55 (13 March 2015) – Australian Capital Territory Supreme Court

‘Assault occasioning actual bodily harm’ – ‘Choking’ – ‘Common assault’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Manifestly inadequate’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation’ – ‘Sentencing’

Charges: Choking a person so as to render them unconscious, assault occasioning actual bodily harm, common assault

Appeal type: Crown appeal against sentence

Facts: The respondent and victim were in a domestic relationship for three and a half years and lived together with the complaint’s son. One afternoon the respondent and victim got into a fight that resulted in the respondent striking the victim across her face and placing her in a chokehold. The respondent then placed his knee on the victim’s shoulder. After the victim asked him to stop, he asked ‘You want to die?’. The respondent then placed his hand around the victim’s throat and started squeezing before placing his other hand over her mouth and nose. As a result the victim briefly lost consciousness. Later the same day the respondent grabbed the victim by her hair and began shaking her. Attempting to free herself from the respondent’s grip, she ended up on the ground when the respondent kicked her face, and jumped and stomped on her arm and head. When the respondent realised the victim’s son witnessed the attack he told him ‘I didn’t do anything wrong. Mum’s flipping out’.

In relation to this conduct the respondent was charged and made late guilty pleas to choking a person so as to render that person unconscious, for which he was sentenced to 15 months’ imprisonment; assault occasioning actual bodily harm, for which he was sentenced to 10 months’ imprisonment, with three months to be served cumulatively on the sentence imposed for the offence of choking; and common assault, for which he was sentenced to five months’ imprisonment concurrent with the sentence imposed on the charge of choking. A non-parole period of 12 months was ordered. While the offending occurred, the respondent was on parole for burglary, theft and unauthorised possession of a firearm. The respondent’s parole was subsequently revoked and he was liable to serve the remainder of his sentence. The sentence imposed for the offence of choking was ordered to commence at the expiration of the sentence the respondent was serving as a result of the cancellation of the parole order.

The respondent had an extensive criminal history, having been convicted for approximately 80 criminal offences in the past 20 years. He also had a long history of substance abuse and mental health issues including being previously diagnosed with antisocial and paranoid personality traits. A pre-sentence report noted that the respondent made derogatory comments about the victim and demonstrated minimal victim empathy. The report also considered the respondent was at high risk of reoffending.

Issue: Whether the sentence was manifestly inadequate.

Decision and reasoning: The appeal was allowed on the sentences imposed for the offences of choking and assault occasioning bodily harm. These sentences were set aside and the respondent was resentenced to a term of three years and one month’s imprisonment for the offence of choking and 20 months’ imprisonment for the offence of assault occasioning actual bodily harm.

The starting point of 18 months’ imprisonment adopted by the magistrate before a reduction for the guilty pleas was manifestly inadequate in relation to the choking offence when considering the maximum penalty of 10 years’ imprisonment, the objective circumstances of the offence and the subjective circumstances of the offender. Burns J held that an appropriate starting point was three years and nine months’ imprisonment with a reduction of eight months for the plea of guilty. Likewise, the starting point of 14 months’ imprisonment for the offence of assault occasioning actual bodily harm was also manifestly inadequate. An appropriate starting point when considering the seriousness of the offending was two years’ imprisonment, reduced to 20 months’ imprisonment to reflect the plea of guilty.

In coming to this conclusion, Burns J considered that the seriousness of offences of violence within intimate relationships requires sentences that strongly denounce and deter such offending. Citing Wood CJ in R v Edigarov [2001] NSWCCA 436, ‘such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence’.

R v Eimerl [2015] ACTSC 72 (12 March 2015) – Australian Capital Territory Supreme Court

‘Damaging property’ – ‘Drug and alcohol programs’ – ‘Emotional and psychological abuse’ – ‘Family members’ – ‘Forcible confinement’ – ‘Parent/s’ – ‘People affected by substance misuse’ – ‘Theft’

Charge/s: Forcible confinement, damaging property, theft.

Hearing: Sentencing hearing.

Facts: The offender, who was on parole at the time, confined his mother in her home for 2 hours. During the course of confinement, the offender verbally abused his mother, threatened violence and damage to property, and damaged a heater and a wooden cedar door. The offender’s anger was based on his belief that his parents were communicating with Corrective Services, putting in jeopardy his parole order. His parents were in fact communicating with Corrective Services because they were concerned he had resumed his methamphetamine use. The offender completed a substance misuse program before being paroled in 2013. His initial response to parole supervision was satisfactory — his urinalysis results were negative and he obtained employment. However, at the time of the confinement, he had resumed his methamphetamine use.

Decision and Reasoning: A sentence of 2 years and 1 month imprisonment was imposed. Burns J took into account the circumstances of the offence (it was committed out of anger and a sense of betrayal, it caused a significant degree of fear but no injuries were inflicted). His Honour also noted the guilty plea, the youth of the offender and that rehabilitation was an important consideration (however, this had to be ‘considered guarded’ (see[16])). There was a need for both general and specific deterrence.

His Honour further took into account that this was a family violence matter and stated, ‘that is relevant because the only reason that you were able to commit this offence was because of the relationship of trust that existed between you and the victim. If you had not been a family member who was loved and trusted by your victim you would not have had the opportunity to commit this offence. I also note that the offence occurred in the victim's own home, where she should have been entitled to feel safe’ (See [17]).

R v Brown [2015] ACTSC 65 (5 March 2015) – Australian Capital Territory Supreme Court

‘Coercive control’ – ‘Emotional abuse’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Perjury’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victims as alleged perpetrators’

Charge/s: Perjury.

Proceeding: Sentence.

Facts: The defendant gave false evidence in a bail application involving an allegation of assault that had been made against her ex-partner. It was alleged that her ex-partner assaulted his mother. The defendant’s ex-partner also assaulted her prior to the alleged assault on his mother. A psychologist’s report indicated that the defendant was suffering from ‘a major depressive disorder of moderate severity’ (see at [4]) when she was in a relationship with her partner. The report described the relationship as physically and emotionally abusive which resulted in a gradual deterioration of the defendant’s mental health and reported low self-worth and feeling overwhelmed. Notwithstanding this, she felt that her partner was the only person who she could rely on. The defendant had no prior convictions. She was 18 years old when the offence occurred.

Issue/s: The appropriate sentence to be imposed.

Decision and Reasoning: The defendant was ordered to enter into a good behaviour order for 15 months with conditions that she accept the supervision of ACT Corrective Service and not to associate with her former partner. No conviction was recorded. Burns J noted that this offence, while serious, was at the lower end of the spectrum for offences of this nature. His Honour accepted that her mental illness affected her judgment and also noted the fact she was in a controlling relationship with her ex-partner. The defendant had good prospects of rehabilitation. The offence of perjury is serious and normally results in the recording of a conviction and imprisonment. However, in this case, the mitigating factors including her youth and mental illness meant that rehabilitation, rather than general deterrence were the primary sentencing considerations. His Honour warned the defendant that relationships like those with her ex-partner are characterised by a significant degree of manipulation and that the defendant ought to be aware of the likelihood of her ex-partner to attempt to recommence the relationship using protestations that he has changed and is going to behave in a different way. He urged the defendant to be mature enough to understand that such change is not going to happen.

R v East [2015] ACTSC 54 (16 February 2015) – Australian Capital Territory Supreme Court

‘Common assault’ – ‘Criminal history’ – ‘Forcible confinement’ – ‘Offender’s traumatic childhood’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Forcible confinement, common assault.

Hearing: Sentencing hearing.

Facts: The offender was the complainant’s carer and partner. They had been in an ‘on again off again’ sexual relationship for 3 years and the offender had recently moved back into the complainant’s flat. On 14 October 2013, during an argument, the complainant told the offender to get his belongings and leave the flat. She then attempted to leave herself but the offender grabbed her arms and forced her back into the flat. The complainant made a number of unsuccessful attempts to escape and the offender took her mobile phone. The offender refused to leave. At one stage, he agreed to pack his belongings and asked the complainant for some money. When she refused, he forced her onto the couch. She tried to yell but the offender grabbed her throat, restricting her ability to breathe. After 5 hours, the offender gave the complainant her mobile and left the flat. These offences put the offender in breach of a good behaviour order imposed in respect of an earlier offence of a reckless threat to kill made against the same complainant. That offence involved the heavily intoxicated and distressed offender threatening his partner with a knife, a hammer and a piece of concrete.

Decision and Reasoning: The offender was sentenced to 22 months imprisonment, with a non-parole period of 10 months. Penfold J took into account a number of factors in imposing this sentence. In determining the charged offences to be of mid-range seriousness, His Honour noted that in some cases being confined in one’s own home by a partner might be less frightening than being confined in a strange place by a stranger (depending on past experiences with the partner); during confinement, the offender was physically violent to the complainant; the offender was on conditional liberty at the time of the offence; the domestic relationship put the parties into a position of trust and, to an extent, the offender abused this trust (however, the offender’s role as a carer did not mean that the offence involved any extra abuse of a position of trust because the complainant was 14 years older and the offender had a very disturbed upbringing); the offences had a distressing and more than short-term effect on the complainant; and the offender accepted responsibility for his actions (See [13]-[14]).

Penfold J also took into account the subjective circumstances of the offender. He did not seem to have any tendency towards criminal behaviour except in the context of this relationship. However, His Honour noted that ‘much of violent crime committed within domestic relationships is committed by men who otherwise live entirely within the law’. Further, the offender had a very disturbed upbringing. His mother suffered with severe mental illness and schizophrenia and would alternate between being a loving mother to being emotionally and physically abusive towards her children. He witnessed his mother kill herself when he was 8 when she set herself alight. The offender was then raised by his adoptive father, who would drink heavily to cope and belt the children (See [15]-[17]). The relationship between the offender and the complainant was ‘toxic’ and characterised by substance abuse and conflict (See [18]-[22]). Penfold J also took into account general and specific deterrence, the offender’s guilty plea and the offender’s acceptance of counselling.

R v BJ [2015] ACTSC 47 (4 February 2015) – Australian Capital Territory Supreme Court

‘Breach of a good behaviour order’ – ‘Emotional and psychological abuse’ – ‘Perpetrator programs’ – ‘Young people’

Hearing: Breach of 12 month good behaviour order.

Facts: In February 2014, BJ was sentenced for burglary, minor theft and common assault. These charges arose out of the breakdown of a relationship between BJ, then aged 17, and the female complainant. He was sentenced to a 12 month good behaviour order, including a condition that he undertake the Cognitive Self-Change Program. Nearly 5 months after BJ was sentenced, he began another serious of offences against another ex-partner. These offences involved: taking his ex-partner’s car keys, damaging her car and stealing the car; using a false Facebook identity to taunt her with pictures of the car hidden in a forest; attempting to get her (alone) to meet him in the forest; further damaging the car; and making a series of harassing phone calls to his ex-partner. He was sentenced to a term of imprisonment for these offences, 3 months served in full time custody and 6 months suspended subject to a 24 month good behaviour order. The matter was referred to Penfold J here to deal with the breach of the earlier imposed good behaviour order.

Issue/s: Whether further action is warranted in light of BJ’s breach of a good behaviour order.

Decision and Reasoning: Penfold J noted that he was incorrect in his 2014 sentencing remarks and BJ did in fact have a tendency to behave inappropriately in the context of failed intimate relationships. He noted that this behaviour needed to be addressed as early as possible. Penfold J imposed a new good behaviour order for 2 years subject to the following conditions: accept the supervision of ACT Corrective Services and obey all reasonable directions, under take counselling courses, programs or treatments, and undertake either one or both of a Men’s Cognitive Self-Change Program and a Family Violence Cognitive Self-Change Program.

R v Mazaydeh [2014] ACTSC 325 (13 November 2014) – Australian Capital Territory Supreme Court

‘Animal abuse’ – ‘Assault occasioning actual bodily harm’ – ‘Common assault’ – ‘Denunciation’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Perpetrator programs’ – ‘Physical violence and harm’ – ‘Threatening to cause damage to the complainant’s property’ – ‘Victim impact’

Charge/s: Assault occasioning actual bodily harm, common assault x 3, threatening to cause damage to the complainant’s property.

Hearing: Sentencing hearing.

Facts: The offender was a friend and former partner of the female complainant. The offender became jealous when the complainant received a phone call because he suspected it was from another man. The complainant asked the offender to leave her apartment. He refused. He pushed and attempted to choke the complainant and held a knife to the throat of her cat. The assaults were accompanied by verbal abuse and abusive text messaging. The offender also rifled through the victim’s belongings and demanded her phone. The incident lasted about 15 minutes.

Decision and Reasoning: The offender was sentenced to a good behaviour order for 3 years and fined $1750. In terms of the objective seriousness of the offending, Murrell CJ noted that the conduct constituting the assault occasioning bodily harm was extremely serious. It was a very forceful and frightening assault that involved the offender taking hold of the victim’s throat. The actual bodily harm that resulted was at the lower end of the spectrum but the incident had a considerable psychological impact. The other offences were less serious. The incident, while not fleeting, was relatively short. It was not only frightening but designed to humiliate. It occurred within the victim’s home, in circumstances where she had asked him to leave.

Further, this was an incident of domestic violence. Her Honour noted:

‘These offences occurred in the context of a previous relationship between the offender and the victim and involved violence within the victim's home, an apparent sense of entitlement on the part of the offender, and humiliation through verbal and text abuse of the victim.

The sentencing purposes of punishment, general deterrence and denunciation are very important, as well as the recognition of harm to the victim personally and the community generally through offences of this nature. The victim provided a victim impact statement in which she referred to impacts upon her of the type that frequently result from offences of domestic violence, including feelings of anxiety, difficulty sleeping, difficulty concentrating at work and elsewhere, and an adverse effect on her ability to form relationships. Since the incident, the victim has moved house because she felt unsafe in the apartment where the offence occurred’ (See [15]-[16]).

Her Honour also took into account the subjective circumstances of the offender including that the offender had been assessed as being at low risk of re-offending, he was employed, is a member of a close and supportive family and has no problems with drug dependence or mental health. However, Murrell CJ further noted that the offender lacked insight into the seriousness of his conduct and the impact on the victim. Although this was probably a one-off incident, Her Honour considered that it would be of assistance to the offender to undertake courses that may guide him towards greater insight and maturity in relation to interpersonal relationships.

R v Ennis [2014] ACTSC 369 (4 November 2014) – Australian Capital Territory Supreme Court

‘Anger management programs’ – ‘Assault occasioning actual bodily harm’ – ‘Drug and alcohol programs’ – ‘Good behaviour order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’

Hearing: Breach of community service condition to a good behaviour order.

Facts: In 2012, Mr Ennis was convicted for assault occasioning actual bodily harm. Mr Ennis and his female partner, who had been together for 27 years, were both drunk and fought ‘over money’. During this argument, Mr Ennis caused his partner to suffer a fracture to the left forearm and a laceration to the outside of her lower leg. Mr Ennis had a long history of cannabis and alcohol abuse. He claimed that this alcohol abuse led to his criminality. The sentencing judge made a good behaviour order for 2 years, with a condition that Mr Ennis perform 100 hours of community service within 12 months. Mr Ennis breached this order by failing to complete the community service work conditions. He submitted that the breach was the result of his alcohol abuse.

Issue/s: Whether further action is warranted in light of Mr Ennis’ breach of a good behaviour order.

Decision and Reasoning: The order was amended by extending the good behaviour period to a further 12 months, extending the number of hours of community service work to 108 hours to be completed in 12 months, and requiring Mr Ennis to be subject supervision by the Director-General. In imposing this sentence, Refshauge J noted that while Mr Ennis’ breach was unsurprising in light of his alcohol abuse, this did not provide an excuse for his behaviour (See [16]). In favour of Mr Ennis, it was significant that he had not committed any offences in the two years since the order was made. His Honour noted, ‘This is a very important matter, for that is the fundamental objective of the criminal law, namely, as Brennan J described it in Channon v The Queen (1978) 33 FLR 433 at 437, the protection of society which is achieved by the prevention of crime and the eradication of recidivism’ (See [21]).

Further, Mr Ennis had taken steps towards rehabilitation namely, enrolling in a number of programs including drug and alcohol counselling, a Men and Anger Program and an Employment Pathway Plan (See [23]-[27]). Mr Ennis’ partner was also addressing her alcohol abuse and they were both accessing counselling at relationships Australia (See [28]). However, Refshauge J remained sceptical in his assessment of this reform and nevertheless extended the good behaviour order (See [30]-[33]).

His Honour noted: Despite the considerable contribution that illicit drug use makes to criminality in the community, alcohol remains a problem for those addicted to it. Alcohol abuse remains a very significant source of crime and leads the addict to unhealthy and anti-social behaviour and situations (See [1]).

See also R v Ennis [2016] ACTSC 72 (4 April 2016).

Pasa v Bell [2014] ACTSC 303 (30 October 2014) – Australian Capital Territory Supreme Court

‘Assault’ – ‘At the complainant’s home’ – ‘Exposing children’ – ‘General and personal deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Assault.

Appeal type: Appeal against conviction and sentence.

Facts: The appellant pleaded guilty to an offence that he assaulted his former fiance and de facto partner of 2 years (the complainant). The offence occurred about 1 month after the appellant and the complainant had separated in the presence of the complainant, a friend, and the appellant’s young son. The appellant and the complainant argued and the complainant asked him to leave. The garage door hit the appellant on the head as he left and he turned around the pushed the complainant. She fell backwards into the car. The appellant spoke in a threatening manner to the complainant. He pushed her again, kicked her car twice, and left.

Issue/s: One of the grounds of appeal was that the primary judge erred in his assessment of what constituted an aggravating feature of the offence.

Decision and Reasoning: The appeal against conviction and appeal against sentence was dismissed. In relation to the appeal against conviction, the appellant submitted that the mere fact the offence was committed at the home of the victim is not enough to aggravate the offence; there must be some level of intrusion. Murrell CJ noted that a sentencing court must consider all relevant objective and subjective matters. She stated,

‘When considering the sentencing purposes set out in s 7 of the Sentencing Act, including general and personal deterrence, a sentencing court is entitled to consider the fact that an offence involved domestic violence, and that the violence has occurred at the victim’s home. An offence involving domestic violence is one that involves abuse of a partner, former partner or other family member (using the term “family” in the broadest sense). Frequently, such offences occur in the home, where the inhibitions of an offender may be lowered, the impact on the victim may be heightened (as she or he is made to feel that a formerly safe place has been violated) and the occurrence of the offence is more readily concealed. Further, where a domestic violence offence occurs in the victim’s home, it is often associated with secondary abuse to other family members’ (See [16]; See also R v Bell [2005] ACTSC 123 [30]-[31]).

Here, the primary judge did not approach the matter on the basis that the ‘mere fact’ that the incident took place at the complainant’s home was an aggravating feature. He considered the location of the offence in the context of other relevant circumstances namely that it occurred at a place where the complainant was entitled to feel safe, it occurred in the presence of the appellant’s son, and the appellant refused to leave.

Reid v Smith [2014] ACTSC 349 (21 October 2014) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Aboriginal and Torres Strait Islander peoples’ – ‘People affected by substance misuse’ – ‘Rehabilitation’ – ‘Sentencing’

Charges: Damaging property, breach of domestic violence order, assault

Appeal type: Appeal against sentence

Facts: The appellant, an Aboriginal man, and the victim were in a relationship and had a son together. The appellant and victim also both had a daughter each from previous relationships. He was charged and convicted of damaging property, assault and breaching a domestic violence order made to protect the victim. No further information about the offending or factual matrix was provided. Since his arrest and while on bail, the appellant attended Oolong House several times where he received rehabilitative treatment. The magistrate sentenced the appellant to 12 months’ imprisonment each for the assault and damaging property offences, to be served concurrently, and two years’ imprisonment for the breach of the domestic violence order. In sentencing, the magistrate stated ‘The current offences continue a pattern of behaviour that appears entrenched in the context of the relationship with the victim. Despite legal sanctions and protection orders, [the appellant] has yet to demonstrate the responsibility to abide by conditions to uphold the safety of vulnerable people in his life. Under the influence of substances his behaviour poses unacceptable risks for such people’ ([5]).

The appellant had a somewhat difficult childhood with his parents divorcing after his father suffered a stroke and his mother abusing alcohol. He finished school at year 10 and had very limited and sporadic employment since then. He had a long history of alcohol and drug abuse and engaged in residential rehabilitation several times. The appellant also suffered depression, stress and anxiety and was housed in the AMC Crisis Support Unit since his remand due to his risk of suicide and/or self-harm. He had an extensive history of criminal offending, including convictions for common assault, assault occasioning actual bodily harm and contravening protection orders against the victim.

Issues: Some grounds of appeal were:

1.

Whether the magistrate failed to take into account the time spent at a rehabilitation centre.

2.

Whether the magistrate failed to give adequate weight to the decision in Bugmy v The Queen [2013] HCA 37 (‘Bugmy’).

Decision and reasoning: The appeal was dismissed.

1.

There is no requirement in sentencing to give credit and discount the sentence for time spent in residential rehabilitation between the commission of an offence and the sentencing for that offence. The magistrate therefore did not err in failing to explicitly take into account the appellant’s successful completion of the Oolong House rehabilitation program.

2.

In Bugmy, the High Court of Australia considered, ‘An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offence may mitigate that offender’s sentence… Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices but to recognise this is to say nothing about a particular Aboriginal offender… An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender ’. While Penfold ACJ acknowledged that the appellant had a ‘somewhat troubled background’, she did not consider that a failure to give adequate weight to a particular consideration was a sufficient ground to evoke the court’s appellant jurisdiction, relying on R v Ang [2014] ACTCA 17, [22]-[24].

Hossen v Hughes [2014] ACTSC 101 (21 May 2014) – Australian Capital Territory Supreme Court

‘Aggravating and mitigating factors’ – ‘Assault’ – ‘Exposing children’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge: Assault

Appeal type: Appeal against sentence

Facts: The appellant, his wife (the complainant) and their children moved to Canberra in order for him to complete a PhD. After their daughter complained that she did not like the lunch the complainant was preparing, the complainant struck the daughter’s hip with a plastic doll to ‘chastise her for her behaviour’. The appellant became angry at the complainant’s actions and slapped her. When questioned by police, the appellant said ‘I do not think I did anything wrong. In my culture, I did not do anything wrong’. He pleaded guilty to assault at the earliest opportunity and expressed remorse in a letter to the court.

At trial, the appellant was unrepresented but had a Bangladeshi interpreter. A conviction was recorded and the appellant was ordered to sign a good behaviour undertaking for two years. The magistrate noted that ‘cultural differences may be in play here, but I don’t accept them on the basis that you’ve been here for two years, you’ve acknowledged in your own statement to me today that you understand what you did was wrong’.

Issues: Some grounds of appeal were:

1.

The magistrate erred in treating the presence of their daughter as an aggravating factor when the assault of the complainant would not have occurred but for her hitting their daughter;

2.

The magistrate erred in not giving sufficient reasons for refusing a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Act).

Decision and reasoning: The appeal was dismissed and the sentence imposed by the magistrate was confirmed.

1.

In sentencing, the magistrate referred to Refshauge J’s comments in Elson v Ayton [2010] ACTSC 70 to conclude that the presence of their daughter was an aggravating factor and that ‘the courts have no tolerance, or very little tolerance, for people who engage in domestic violence, and certainly in the presence of children’. Counsel for the appellant submitted that the presence of their daughter should not have been an aggravating factor because the complainant’s action in hitting her provoked the appellant’s assault and that this provocation was a mitigating factor. However, Penfold J held that there was nothing in the nature of the assault that meant their daughter’s presence was an inherent part of the objective circumstances of the offence. Further, while the complainant’s conduct in hitting her daughter with a doll may reduce the culpability of the appellant’s assault, it is not properly described as a mitigating factor. Therefore, there was no error in the magistrate’s approach to the presence of their daughter.

2.

The magistrate was obliged to provide an explanation to the appellant for declining to make a non-conviction order. He was unrepresented, inexperienced in the procedures of Australian courts and English was not his first language. The magistrate performed this obligation in explaining that a non-conviction order could not be made due to the nature and circumstances of the offence. However, the magistrate did not allow the appellant to put forward evidence or a proper explanation when he attempted to explain the detriment to his future should a conviction be recorded. Therefore, the magistrate erred in dealing with the appellant’s application for a non-conviction order by failing to give proper consideration to the application, having regard to the particular difficulties faced by the appellant.

Despite this error, the appeal was dismissed because re-sentencing was not appropriate. Having regard to the factors in s 17 of the Act, Penfold J held there were no grounds sufficient to make a non-conviction order. In particular, the appellant’s character, antecedents, age, health and mental condition; the seriousness of the offence; his extenuating circumstances; and the absence of any properly explained or substantiated claim that a conviction would have negative impacts on his future prospects, would not have excluded the making of a non-conviction order.

R v Rogers [2014] ACTSC 124 (1 April 2014) – Australian Capital Territory Supreme Court

‘Assault occasioning actual bodily harm’ – ‘Denunciation’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘History of abuse’ – ‘Late plea’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factor-strangulation’ – ‘Systems abuse’ – ‘Unlawful confinement’

Charges: Unlawful confinement, assault occasioning actual bodily harm (two counts)

Proceeding: Sentencing

Facts: The offender and victim were in a domestic relationship. The victim had a son from a previous relationship. Six months after moving in together, the offender sat on the victim’s stomach, held both arms above her head and tied her wrists to the bed. The offender told the victim, “you’ve hurt my feelings. Now you have to pay. I’m going to take you for a drive to the forest and I’m going to kill you”. He then slapped her across the face several times and stuck a piece of clothing in her mouth. The victim was gagging and choking and believed that she would suffocate. The offender then hit the victim’s thigh with a car aerial and held a lit match to her face, threatening “have you ever played ‘light the match’ game?”. The next day the offender brought the victim flowers and apologised. Several days later the victim woke up to the offender slapping her face. Her son then walked into the room but returned to his bedroom after the offender screamed at him. The victim packed herself and her son into the car to escape after the offender had left. However, the offender returned and parked his car behind the victim’s car. He grabbed the victim’s shoulders, pushed her backwards causing her to hit to head and dragged her into the house. When inside, he grabbed her throat, kicked her, forced her face under a running tap, slapped her and threatened her.

The offender was charged with unlawful confinement and two counts of assault occasioning actual bodily harm. He maintained a plea of not guilty for nearly two years until changing his plea to guilty on the date the trial was to begin.

The offender had a long history of offending including convictions of nine common assaults, assault occasioning actual bodily harm, stalking and two breaches of domestic violence orders. He also had a history of dysfunctional relationships, with many of these convictions resulting from domestic violence. He abused prescription drugs and suffers from Attention Deficit Disorder, depression and bipolar. During one period of excessive drug use, the offender was diagnosed with amphetamine-induced paranoid psychosis. The offender engaged in the methadone program and drug and alcohol counselling to address his substance abuse. He reported that since the offending, he had ceased using drugs or drinking heavily and that he was no longer short-tempered and jumpy.

Issue: What sentence should the offender receive?

Decision and reasoning: Penfold J emphasised the need for general deterrence and denunciation for domestic violence offences. Having regard to the offender’s criminal history and his repeated failures to take advantage of rehabilitative opportunities, rehabilitation was not the highest priority in sentencing. His Honour accepted some concession was needed for the offender’s improved behaviour in the two years since the offending and his continued engagement with mental health services. However, no sentence other than imprisonment was appropriate when considering the gravity of the offending and the effect on the victim and her son.

The offences were all serious examples of the relevant offences. The presence of the victim’s son during the second assault occasioning actual bodily harm aggravated the offence. All the offences were further aggravated by the breach of trust that is ‘inherent is most if not all domestic violence offences, especially those that occur in the privacy of a home shared by the victim and the perpetrator, a circumstance which of itself — that is the sharing of the home — seems to me to establish a mutual relationship of trust’ ([7]).

Penfold J sentenced the offender to a total sentence of 38 months’ imprisonment, suspended after 24 months. This total sentence comprised of 25 months’ imprisonment for the offence of unlawful confinement, 18 months’ imprisonment for the first offence of assault occasioning bodily harm, and 20 months’ imprisonment for the second offence of assault occasioning bodily harm. The first assault occasioning bodily harm sentence was ordered to be accumulated so as to add three months to the unlawful confinement offence and the second assault occasioning bodily harm sentence was ordered to be accumulated so as to add 10 months to the total sentence.

Beniamini v Storman [2014] ACTSC 2 (22 January 2014) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Damaging property’ – ‘Exposing children’ – ‘Intentionally causing damage to property’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’

Charge/s: Intentionally causing damage to property x 2, trespassing without reasonable excuse, assault, minor theft.

Appeal type: Appeal against sentence.

Facts: The appellant was in a relationship with a young woman, the complainant, and they had two children together. The relationship was characterised by ongoing conflict, caused largely by the appellant’s ongoing abuse of alcohol, and subsequently the relationship broke down. Later, the appellant went to the complainant’s house to see the children but she refused to let him in. The appellant damaged the front security door and shouted threats. He was arrested and granted bail for this offence. However, before the proceedings could be resolved, the appellant again went to the complainant’s property, and broke open the front door. The appellant began to strangle the complainant (assault). The complainant’s daughter rang the complainant’s mother who arrived and manage to calm the appellant down. The police arrived and the appellant ran off. On another subsequent occasion, the appellant was charged with minor theft for leaving a petrol station without paying.

The appellant pleaded guilty and was sentenced in the Magistrates Court to: intentionally causing damage to property — fine of $1,500; intentionally causing damage to property — 3 months imprisonment to commence on 1 August 2013; trespassing without reasonable excuse — fine of $500; assault — 17 months imprisonment to commence on 1 September 2013; minor theft — fine of $250. A non-parole period of 12 months was set on the total period of 18 months imprisonment.

Issue/s: One of the grounds of appeal was that the terms of imprisonment imposed, including the non-parole period, were manifestly excessive.

Decision and Reasoning: The sentence for the assault was manifestly excessive, the appeal allowed and the appellant re-sentenced (see R v Beniamini; Beniamini v Storman [2014] ACTSC 40 (22 January 2014)). The offence of assault was serious: it was committed late at night in the complainant’s home; it was an offence in the context of family violence; and the offence was protracted. It was more serious by the fact that the appellant was on conditional liberty at the time, the offence was committed in the presence of children, and the appellant had prior convictions for personal violence (but not family violence).

However, despite the seriousness of the assault, the sentence was manifestly excessive because the magistrate started her calculation of sentence on the basis that this was almost the worst category of the offence (See [119]). Since the time of offences, the appellant had made no further inappropriate contact with the complainant, had managed to resolve issues of access to the children, and had stopped drinking. This was also his first offence of violence in the family context. It was also relevant that the denial of access to his children at the time was arbitrary and not under any court order. He was remorseful and showed insight into his actions (See [94]-[104]).

R v Curtis [2013] ACTSC 291 (16 December 2013) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Assault occasioning bodily harm’ – ‘Drug and alcohol programs’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Young people’

Charge/s: Assault occasioning bodily harm.

Hearing: Sentencing hearing.

Facts: Mr Curtis, an 18 year old Aboriginal man, and the female victim were in a relationship. On 1 June 2013, Mr Curtis became agitated and aggressive towards the victim. He started punching her legs, arms, torso and stomach, causing bruising. When interviewed by police, he said that the victim had wanted him to teach her how to ‘stick up’ for herself and that they were just ‘mucking around’ but he stopped when he thought that what was happening did not ‘feel right’.

Decision and Reasoning: Mr Curtis was sentenced to 12 months imprisonment, suspended for 2 years, and ordered to comply with good behaviour obligations (a probation condition making Mr Curtis subject to the supervision of the Director-General and required to obey all reasonable directions as to counselling or treatment for his mental health and his abuse of alcohol and other drugs). In imposing this sentence, Refshauge J took into account Mr Curtis’ plea of guilty. He also took into account the subjective circumstances of Mr Curtis including his troubled childhood, his relationship with his 20 month old child, his current committed relationship, his use of alcohol and illicit substances, and his history of mental health issues (See [6]-[19]).

Refshauge J also took into account that the offence was serious especially because it was committed in the context of a relationship. His Honour quoted Higgins CJ in R v Bell [2005] ACTSC 123 at [30]: ‘I appreciate that personality disorders may often underlie the criminal behaviour of men who beat women. Alcohol or other substance abuse may sometimes be a triggering factor. Nevertheless, they must take responsibility for their actions and be seen to have done so. The offence is often hidden, so general deterrence is a factor that is quite prominent. So also is specific deterrence. No offender engaging in this kind of behaviour, nor their victims, should feel that it is to be treated lightly. Rather, it must be made the subject of condign punishment. That is not to say, of course, that any mitigatory factors or prospects for rehabilitation will be disregarded’ (See [28]-[32]).

Refshauge J further accepted that the youth of Mr Curtis and his prospects for rehabilitation were very relevant to the sentencing exercise. Per His Honour, ‘for youthful offenders rehabilitation is usually more important than general deterrence, especially when retributive punishment may in fact lead to further offending. A youthful offender should not be sent to an adult prison if it can be avoided’ (See [20]). A lengthy good behaviour order was warranted in light of the need for rehabilitation. In this context, His Honour noted the influence of excessive alcohol on the offending which, although not mitigating the offending, was very relevant to rehabilitation (See 36].

See also R v Curtis (No 2) [2016] ACTSC 34 (26 February 2016).

Roberts v Smorhun [2013] ACTSC 218 (1 November 2013) – Australian Capital Territory Supreme Court

*Note: this case referenced now superseded legislation, however the statements of principle are unaffected by the legislation change.

‘Appeal against sentence’ – ‘Breach of protection order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order’

Charge/s: Contravention of a domestic violence order.

Appeal type: Appeal against sentence.

Facts: The female complainant and the male appellant had been in a relationship for 6-12 months and had lived together until mid-December 2012. After the complainant was granted an interim domestic violence order against the appellant, the appellant telephoned the complainant to meet him at a friend’s place so he could give her the keys back to her place. At this meeting, an argument developed and the appellant started chasing the complainant, yelling abuse. When he caught up to the complainant, he raised his arm as if to punch her, but instead he grabbed the complainant’s sunglasses, snapped them in half and threw them in her face. This caused the complainant injury. The appellant was sentenced to 32 months imprisonment for the charge of contravening a protection order, with no further penalty for the charge of assault occasioning actual bodily harm..

Issue/s: The sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld and the appellant re-sentenced to 23 months imprisonment. Refshauge J noted that there was no doubt that the offending was serious. The fact that the appellant had been convicted of 9 prior offences of the same character against another woman meant that he could be afforded little leniency. However, the sentence was nonetheless disproportionate to the offending conduct.

The prosecution submissions on sentence at first instance referred to the fact this was a family violence offence, referring to dicta of the Alberta Court of Appeal in R v Brown (1992) 73 CCC (3d) that:

When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.[81]

The court noted that this statement had been cited with approval by the Court of Criminal Appeal of the Supreme Court of Tasmania in Parker v R [1994] TASSC 94 (21 July 1994) and in the NSW Court of Criminal Appeal in R v Hamid [2006] NSWCCA 302. [82]

Three features listed by the sentencing judge as aggravating the offence, were not in fact aggravating features. First, while domestic violence orders play a special place in the criminal law’s efforts to prevent domestic violence, His Honour erred in finding that a domestic violence was a feature of aggravation for the offence of contravening a domestic violence order. Second, His Honour also incorrectly found that the fact the offence occurred in public was a circumstance of aggravation in this particular case as there were no people present at the time of offence. His Honour also previously referred to this issue in the case of Grimshaw v Mann [2013] ACTSC 189 at [49]-[51], where he expressed some difficulty with characterising the public nature of an assault as an aggravating feature, as it implies that a private assault is less serious. Finally, the sentencing judge inferred that the broken part of the complainant’s glasses was sharp and this aggravated the offending. However, this conclusion was not supported by the evidence (See [132]-[138]). Further, the sentencing judge did not take into adequately discount the sentence to account for the appellant’s plea of guilty (See [143]).

In dicta, His Honour considered the principles in Pearce v The Queen. The sentencing judge pointed out that the appellant’s assault covered most, if not all, of the conduct prohibited by the protection order, and decided to impose no penalty, other than the conviction, for the assault offence. His justification was that there was no element in the assault offence that had not been encompassed in the offence of contravening the protection order. Refshauge J stated that ‘[i]f that were strictly correct, then the conviction for the offence of contravening the protection order would have resulted in a requirement that there be a verdict of autrefois convict in respect of the offence of assault occasioning actual bodily harm. That would have been the appropriate response if the elements [were] such that the whole of the criminality of offence of assault occasioning actual bodily harm was contained in the offence of contravening the protection order.’ However, as the parties did not argue on this issue, it was unnecessary for His Honour to resolve it on the appeal. The appellant brought the appeal against the sentence on the charge of contravening the protection order. There was no cross-appeal that the sentence for the assault offence was manifestly inadequate, ‘which would be likely if it was thought that there was criminality in that offence separate from the other such that, for example, the plea of autrefois convict would not apply’ ([150]).In any event, Refshauge J concluded that the offence of contravening the protection order did not include any of the fault element of the offence of assault ([151]).

Refshauge J quoted from R v BG (an unreported judgment from December 2010):

Compliance with any sort of protection order is essential for the court in protecting members of the community from violence and other unwanted behaviour. Breaches of protection orders risk the success of the regime from achieving that purpose, especially if they encourage people to think that they can breach with impunity. A severe approach is necessary, consistent with fairness to the accused. Thus, the Court cannot punish beyond what is appropriate to the offence (See [4]).

Khan v Evans [2013] ACTSC 211 (4 October 2013) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Breach of domestic violence order’ – ‘People affected by substance misuse’ – ‘Temporary protection order’

Charge/s: Breaches of an interim protection order x 4, breach of a personal protection order, failure to comply with a bail undertaking to appear in court, common assault x 2.

Appeal type: Appeal against sentence.

Facts: The appellant, an Aboriginal man, had been in a relationship with the female complainant and they had 3 children together. The complainant was granted a personal protection order against the appellant. The appellant breached these orders on 5 occasions by being at the premises of the complainant. The common assault offences occurred when the appellant assaulted his father. The appellant pleaded guilty to 4 breaches of an interim protection order made on 23 July 2012 and breach then of the personal protection order subsequently made on 23 August 2012, a failure to comply with a bail undertaking to appear in court, and 2 offences of common assault. In the Magistrates Court, a total period of imprisonment of 16 months was imposed from 21 March 2013, with a non-parole period of 12 months.

Issue/s: The grounds of appeal were –

•

The sentence was manifestly excessive.

•

The magistrate erred in failing to take into account a period of pre-sentence custody.

•

The good behaviour order for which the appellant was sentenced had been cancelled and could not have been breached by the offences.

Decision and Reasoning: The appeal was upheld on grounds 2 and 3 but not ground 1. The magistrate failed to take into account a period by pre-sentence custody by starting the sentences on 21 March 2013 rather than 23 February 2013. Further, the good behaviour order for which the appellant had been sentenced had previously been cancelled (See [42]-[49]). However, the sentence could not be said to be manifestly excessive. Refshauge J stated,

‘While the offence against Mr Khan’s father could also be described as domestic violence, the fact is that the interim personal protection order and the personal protection orders are there to protect the complainant from what might be described as domestic violence in its widest sense. Therefore, such orders are an important component of the criminal justice system’s response to domestic violence. Breaches of personal protection orders are serious matters which the courts must treat seriously to ensure the integrity of the system which the protection orders are intended to put in to effect’ (See [52]).

Grimshaw v Mann [2013] ACTSC 189 (29 August 2013) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Anger management programs’ – ‘Applications and orders for child residence, contact and parenting orders’ – ‘Common assault’ – ‘Drug and alcohol programs’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Public/private space’ – ‘Victim impact statements’

Charge/s: Common assault.

Appeal type: Appeal against sentence.

Facts: The Aboriginal male appellant was involved in an altercation with his former female partner (the complainant) of 7 years. The relationship ended in 2010 due to the appellant’s use of drug and alcohol, and he had not seen the children since. In May 2012, the appellant moved to Canberra to be closer to his children and commenced proceedings in the Family Court for access rights. On 2 June 2012, outside a late night convenience store, the appellant started arguing with the complainant and struck her three times with a closed fist. She fell to the ground and hit her head. She was helped up by her two friends and threw a glass soft drink bottle at the appellant. She missed but smashed another glass bottle over his head. The appellant needed four stiches. The appellant voluntarily handed himself into the police two days later. The complainant had previously obtained two protection orders against the appellant. Both had expired at the time of offence.

At the sentencing hearing, a lengthy Victim Impact Statement was tendered. However, it contained a good deal of irrelevant and inadmissible material. Refshauge J on appeal stated:

‘Allegations of further serious offending cannot come within the definition of “harm suffered by the victim [as a result of, or in the course of, the commission] of the offence”: s 47 of the Crimes (Sentencing) Act 2005 (ACT). While defence counsel may be wary of exercising their rights to cross-examine a victim on a Victim Impact Statement, discussions with prosecutors should result in an appropriate response from responsible prosecutors about inadmissible material and such statements. Without that proper approach, it is likely that such statements will lose their value and that the courts will have to intervene to ensure that the legislation is respected to ensure inadmissible, and often inflammatory, material is not included in such statements’ (See [41]).

The appellant pleaded guilty to common assault and was sentenced to 10 months imprisonment, three months to be served by full-time custody, three months by periodic detention and the balance suspended and a two year good behaviour order made. The appellant sought assistance for his alcohol and drug issues, made contact with the Aboriginal Justice Centre, and enrolled in a men’s anger program.

Issue/s: The sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed and the appellant re-sentenced to 10 months imprisonment to commence on 28 May 2013, suspended for two years from 27 August 2013. The sentence was manifestly excessive in all the circumstances. First, the sentencing magistrate did not take into account the appellant’s injuries caused by the complainant which occurred when the appellant was no longer a threat to the complainant. Second, the injuries sustained by the complainant, as apparent from photographic evidence, were not as serious as what was described in the Victim Impact Statement. Finally, the appellant’s criminal history, although containing prior convictions for violent offences, did not demonstrate a propensity to violence. He had not been charged with any domestic violence offences and he had not breached two personal protection orders (See [77]-[82]).

His Honour further stated:

‘The prosecution referred to the aggravating factor that the assault “took place in a public place.” I have some difficulty with that factor as an aggravating one. It implies that an assault in private is less serious. I am not sure that this follows.

Most family violence occurs in private yet is regarded as very serious. Indeed, privacy can emphasise the vulnerability and helplessness of the victim.

However that may be, intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [2009] QCA 290at [30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3at [32], R v Edwards [2012] QCA 117at [23], Shoard v Van Der Zanden [2013] WASC 163at [41]. This is the not the place to consider the rationale for such an approach; that will have to wait for another day. It is enough that the reliance by the learned Magistrate on the fact that the assault occurred in public as an aggravating factor was not an error’ (See [49]-[51]).

Cranfield v Watson [2013] ACTSC 160 (1 August 2013) – Australian Capital Territory Supreme Court

‘Manifestly excessive’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Assault occasioning actual bodily harm (two counts)

Appeal type: Appeal against sentence

Facts: The appellant and complainant were in a relationship and resided together with their son. While arguing one day, the appellant grabbed the complainant’s arm and punched her in the face a number of times. In response, the complainant struck the appellant in the torso. The pair continued to exchange blows throughout the day with the appellant striking the complainant to the face and punching her thigh, and the complainant hitting the appellant in the torso and face and bitting his arm. A week later, the appellant became angry after having computer difficulties and started swearing at the complainant. When she told him to stop being pathetic and throwing tantrums, the appellant slapped the complainant and caused her eardrum to rupture.

In relation to this conduct the appellant was charged and convicted of two counts of assault occasioning actual bodily harm. He was sentenced to 11 months’ imprisonment for the first offence and five months’ imprisonment, of which two months’ was to be served concurrently with the sentence imposed for the first offence, for the second offence. The total sentence was therefore 14 months’ imprisonment. Five months of that sentence was to be served in full custody, with the following five months to be served by way of periodic detention, and the remaining four months suspended upon the appellant entering into a good behaviour order for two years.

The magistrate considered that it was an aggravating feature of the first offence that the assault was comprised of several violent, physical contacts that extended over a period of time. He also considered it was an aggravating feature of both offences that they included blows to the head and face of a female. Finally, his Honour considered the ruptured eardrum of the complainant was an aggravating factor of the second offence.

Issue: Whether the sentence imposed was manifestly excessive.

Decision and reasoning: The appeal was upheld and the appellant was re-sentenced.

The magistrate erred in considering that the nature and duration of the violence in relation to the first offence was an aggravating feature. Rather, it was a circumstance that was relevant to the sentencing of the appellant. Further, the fact the complainant suffered a ruptured eardrum was not an aggravating feature of the second offence. It was merely an element of that offence — namely, that the assault resulted in actual bodily harm. The magistrate also failed to properly consider a psychiatrist report put before him. That report noted that the appellant’s domestic violence was likely related to his on-going mental health difficulties including suffering from post-traumatic stress disorder.

Burns J considered the term of imprisonment with respect to the offences was excessive where there was evidence that the appellant’s conduct was either caused by or contributed to by mental health conditions. These conditions were capable of being treated. Further, the appellant did not have a significant history of violent offending, having only been convicted of two offences of common assault 11 years prior to the offending.

In resentencing the appellant, Burns J accepted that the offences warranted terms of imprisonment. The appellant was sentenced to six months’ imprisonment for the first offence and two months’ imprisonment for the second offence. The total sentence of seven months’ imprisonment was backdated to recognise the two months the appellant had already spent in custody, and suspended thereafter. Burns J imposed a good behaviour order for two years with the conditions the appellant accept supervision and obey reasonable directions; undertake programs or counselling as directed, including the Family Violence Cognitive Self Change Program if appropriate; and undertake counselling or treatment with respect to mental health issues.

Guy v Anderson [2013] ACTSC 5 (14 January 2013) – Australian Capital Territory Supreme Court

‘Assault occasioning actual bodily harm’ – ‘Damaging property’ – ‘Forgiveness’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Perpetrator programs’ – ‘Physical violence and harm’ – ‘Reconciliation’ – ‘Rehabilitation’ – ‘Risk factor- strangulation’ – ‘Victim contribution’

Charge/s: Damaging property, assault occasioning actual bodily harm.

Appeal type: Appeal against sentence.

Facts: The male appellant was in an intermittent relationship with the female complainant. During the course of an argument, the intoxicated appellant shouted in the complainant’s face and hit her. The appellant then sat on top of the complainant and attempted to choke her. He stood up and kicked her in the ribs when she screamed for help. The appellant sat on top of her again and choked her until her vision went blurry. She started retching and the appellant dragged her to the toilet by her hair. When she finished retching, he poured half a bottle of wine over her head and again placed his hands around her throat. The appellant then pulled the complainant into the lounge room and the complainant tried to calm him down. She went to the police the next day. He was sentenced to 3 months imprisonment for common assault and 6 months imprisonment, wholly suspended and conditional on a good behaviour order, for assault occasioning bodily harm.

On a subsequent occasion, the complainant and the appellant again started arguing. The appellant went outside the house to have a cigarette and the complainant locked him out. She packed his bag and left it at the rear door. The appellant, who had not seen the bag, began knocking on the rear door and the window. As the complainant was on the phone to police, she heard the sound of the appellant breaking the window. The complainant told the appellant his belongings were at the front door and he left. He pleaded guilty to damaging property and sentenced to 1 month imprisonment. The conviction constituted a breach of the earlier imposed good behaviour order and the magistrate imposed the full 6 months of this sentence.

Issue/s: The sentence for damaging property and the action taken in respect of the breach of the good behaviour order was manifestly excessive.

Decision and Reasoning: The appeal was allowed. First, the sentence for the offence of damaging property was manifestly excessive in the circumstances. Although this was a domestic violence offence, this did not mandate a particular response and the circumstances as a whole needed to be considered. Refshauge J accepted the fact that complainant and the appellant had reconciled needed to be treated cautiously. He stated that, ‘Forgiveness by victims of domestic violence offences is highly problematic and must be treated with considerable caution for the reasons outlined by Simpson J in R v Glen [1994] NSWCCA 1 (19 December 1994)at 8. As her Honour said, “the victim’s attitude to sentencing … was not a matter which should have influenced the sentencing decision”.’ However, reconciliation of the complainant and the offender (as opposed to her forgiveness) can be relevant as to prospects of rehabilitation.

Second, the magistrate’s decision to impose the full 6 months suspended sentence was manifestly excessive. While the breaching offence was not trivial, it was at the low end of seriousness for the offence and was also of a different character from the original offence. Significantly, the appellant had also complied with the probation condition, sought mental health assistance of his own volition and participated in the Family Violence Cognitive Self-Change Program. See re-sentencing [1]-[5].

Saddler v Pavicic [2011] ACTSC 199 (9 December 2011) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Assault occasioning actual bodily harm’ – ‘Deterrence’ – ‘Family members’ – ‘Manifestly inadequate’ – ‘Older people’ – ‘Parent/s’ – ‘Physical violence and harm’

Charge/s: Assault occasioning actual bodily harm, assault.

Appeal type: Crown appeal against sentence.

Facts: During the course of an argument, the 31 year old respondent and his 60 year old mother (the first complainant) began pushing and shoving each other. This culminated in the respondent grabbing the complainant by the neck and pushing her, causing her to fall and fracture her wrist (assault occasioning actual bodily harm). Later that afternoon, the first complainant was visited by the male second complainant and his 4 children. The second complainant heard a revving noise and saw the respondent holding a chainsaw outside the window. The respondent said, ‘You fucking Australian cunt, come out here, I am going to cut you, like this’, and then tried to enter the backdoor. When he failed, the respondent picked up a fish gaff and swung it above his head (assault). The magistrate recorded a conviction and fined the respondent $1,000 for assault occasioning bodily harm and $1,500 for assault.

Issue/s: One of the grounds of appeal was that the sentences imposed were manifestly inadequate.

Decision and Reasoning: The appeal was allowed. The sentence for the assault occasioning actual bodily harm was manifestly inadequate. The respondent was not entitled to leniency in sentencing on the basis of his prior criminal history or on the basis of his plea. The sentence imposed gave little, if any, weight to the requirements of specific and general deterrence, nor did it reflect the objective seriousness of the offence, even taking into account the provocation from the complainant. The appellant was re-sentenced to a suspended sentence of 7 months imprisonment.

In reaching this conclusion, Burns J noted that this was clearly a domestic violence offence. He noted that, ‘It is now well settled that offences of domestic violence must be treated seriously, and frequently display aggravating features not present in offences occurring outside a domestic relationship. The only reason the respondent was in a position to commit the offence on his mother was because of that relationship. As such, the offence involved a serious breach of the trust reposed in the respondent as a son by his mother. Additionally, the age of the complainant was an aggravating circumstance attending the commission of the offence’at [12].

The sentence imposed by the magistrate in relation to the assault was also manifestly inadequate.

Donoso v Koster [2011] ACTSC 192 (24 November 2011) – Australian Capital Territory Supreme Court

‘Common assault’ – ‘Hardship’ – ‘Non-conviction order’ – ‘Offender character references’ – ‘Physical violence and harm’ – ‘Recording a conviction’

Charge/s: Common assault.

Appeal type: Appeal against sentence.

Facts: The appellant forcibly pulled sheets from on top of the complainant when she was in bed. The sheets caught on the complainant’s necklace and this caused pain and a red welt on her lower neck. The magistrate recorded a conviction.

Issue/s: A conviction should not have been recorded.

Decision and Reasoning: The appeal was allowed. The prosecution submitted that, as this was a family violence offence, it had a certain degree of seriousness and a conviction ought to be recorded. Burns J accepted that ‘there are circumstances and principles relating to family violence offences which that they must be taken particularly seriously’. However, the objective seriousness of the offence and the subjective circumstances of the offender are always relevant. Objectively, this offence came very close to the bottom of the range of seriousness of offences of this nature. Further, the appellant was otherwise a man of good character. He had no prior convictions and was spoken of highly in provided testimonials. Further, he was employed in an area in which the recording of a conviction would result in particular hardship (i.e. termination of employment). The conviction was set aside and a good behaviour order for a period of 12 months was imposed.

Connelly v Allan [2011] ACTSC 170 (13 October 2011) – Australian Capital Territory Supreme Court

‘Evidence’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Voice recognition evidence’

Charges: Contravening a domestic violence order (two counts)

Appeal type: Appeal against conviction and sentence

Facts: The appellant was subject to a domestic violence order that prohibited him from contacting his former partner (the applicant), behaving in a harassing manner towards her or threatening her. The appellant breached this order by making a number of phone calls to the applicant. He was charged with two counts of breaching the domestic violence order and was convicted of both charges. Those convictions amounted to a breach of two good behaviour orders previously made when the appellant was convicted of stalking and two additional counts of contravening a protection order in December 2007 and common assault in June 2007. He was sentenced to six months’ imprisonment on each of the counts of breaching the domestic violence order, to be served concurrently. On the breach of the first good behaviour order he was sentenced to four months’ imprisonment, one month of which was to be cumulative on the other sentences. All the imprisonment to be served by periodic detention.

In convicting the appellant, the magistrate accepted evidence from the applicant and a friend that they recognised the appellant’s voice. The phone calls were allegedly made using a public phone, so this voice recognition was the only evidence to support that the appellant was guilty of the offences.

The appellant had a long history of criminal offending comprising of 52 charges. A pre-sentence report stated that the appellant had suffered a dysfunctional, violent and unstable family background. His father was an alcoholic and was violence towards his mother. The appellant also abused alcohol, drinking about six stubbies every night. Since the offending, the appellant reported that he was still drinking but not at a problematic level. However, there was no evidence to support these assertions. The appellant suffered from depression and anxiety that ‘result in markedly diminished capacity in judgement’, according to a psychologist’s report. Another psychologist concluded that the appellant’s offending history was alcohol induced and based.

Issues:

1.

The ground of appeal against the conviction was that the magistrate failed to direct and warn herself adequately in relation to the voice identification evidence.

2.

The grounds of appeal against the sentence were:

(a)

The sentence was manifestly excessive;

(b)

The magistrate failed to have proper regard to the significance of the appellant’s alcoholism in structuring an appropriate sentence; and

(c)

The magistrate erred in not finding that community service was appropriate in all the circumstances.

Decision and reasoning: The appeal against the conviction was dismissed. In considering whether the appellant was guilty, the magistrate scrutinised the applicant’s evidence as to voice recognition carefully. Both witnesses knew the appellant well and recognised his voice on the phone. While the magistrate should have given a warning, it would have been confined to the fact that the conversations were limited and that people can be mistaken about the voices of those they know well. Despite the lack of warning, Refshauge ACJ held there was no miscarriage of justice, as even if a warning was given, it would not have affected the magistrate’s conclusion.

However, the appeal against the sentence was allowed and the appellant was ordered to be re-sentenced. The appellant’s offending was at the lower end of the spectrum of contravening a domestic violence order. However, the magistrate did not err in concluding that imprisonment was the appropriate punishment when considering his offending history and breaches of good behaviour orders. Rather, the magistrate erred in dismissing the option of suspending a term of imprisonment with a good behaviour order to include a community service condition. The offences were not so serious that a suspended sentence was too lenient.

In the matter of an application for bail by Hutchings [2011] ACTSC 83 (20 April 2011) – Australian Capital Territory Supreme Court

‘Bail’ – ‘Breach of a domestic violence order’ – ‘Breach of conditions’ – ‘Conditions of orders’ – ‘Physical violence and harm’ – ‘Special or exceptional circumstances favouring the grant of bail’ – ‘Temporary protection order’ – ‘Uncharged allegations’

Charge/s: Breach of a domestic violence order.

Appeal type: Appeal against refusal to grant bail.

Facts: Mr Hutchings breached an interim Domestic Violence Order by sending the female complainant a letter summarising his feelings towards her and the end of their relationship. This was also in breach of bail conditions imposed for a dangerous driving offence. He was granted bail with a condition included that he not contact the complainant in any way. The complainant later received a telephone call and message, alleged to be from Mr Hutchings. He was arrested and charged with breaches of the Domestic Violence Order. This activated s 9D of the Bail Act which provided that bail could not be granted unless there were special or exceptional circumstances favouring the grant of bail. The magistrate refused bail in those circumstances.

Issue/s: Whether there were special or exceptional circumstances favouring the grant of bail.

Decision and reasoning: The appeal was rejected. The Police were concerned that Mr Hutchings would commit further breaches of the Domestic Violence Order if allowed on bail. They noted that the complainant had made further complaints against Mr Hutchings but there was insufficient evidence to justify the commencement of proceedings. Burns J noted that the courts must be very cautious about relying on uncharged allegations but concluded that it was a concern to be taken into account [10]. While Mr Hutchings’ daughter was pregnant and needed Mr Hutchings to drive her around, Burns J noted that she could make other arrangements [12]. Accordingly, there were no special and exceptional circumstances justifying the grant of bail.

Ross v Mothersole [2010] ACTSC 125 (19 October 2010) – Australian Capital Territory Supreme Court

‘Assault occasioning actual bodily harm’ – ‘Drug and alcohol programs’ – ‘Glassing’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Plea of guilty’ – ‘Victim contribution’ – ‘Victim's views’

Charge/s: Assault occasioning actual bodily harm, assault, threatening to harm a public official, obstructing a public official.

Appeal type: Appeal against sentence.

Facts: The male appellant and the female victim of the two assaults were in a relationship. The first offence occurred when the intoxicated appellant swore at the victim and smashed a beer glass in her face. She required five stiches (assault occasioning actual bodily harm). At the watch house, the appellant threatened violence against police officers and resisted search attempts. On a subsequent occasion, the appellant and the victim were out drinking together and, during the course of argument, the appellant yelled, ‘I could kill you right now and no-one would ever know’. He then put the victim into a headlock, and head-butted and punched the complainant in the face (assault). A total head sentence of 36 months imprisonment was imposed with a non-parole period of 18 months.

Issue/s: The sentence for the assault occasioning actual bodily harm was manifestly excessive.

Decision and Reasoning: The appeal was allowed. The sentencing magistrate failed to take proper account of the appellant’s plea of guilty in sentencing (See [78]). Refshauge J noted that it is very desirable that a sentencing magistrate or judge makes express reference to the issue of a plea of guilty to show that it has been taken into account. Further, the sentencing magistrate did not address the relevant mental state of the appellant (intention or recklessness). Refshauge J stated, ‘there is no doubt that “glassing” is a serious offence, whether intentionally (significantly more serious) or recklessly. It is a cruel and vicious offence, especially where the damage done is to the victim’s face, the scars from which will be long obvious and distressingly disfiguring. It is a serious offence which ordinarily will need to be visited by a sentence of imprisonment, mostly served by full-time custody’ (See [88]). However, notwithstanding this, on the facts, it was more likely than not that the appellant did not intend to use the glass as a weapon (See [90]).

In re-sentencing the appellant, Refshauge J had regard to a letter from the victim. It showed that she was still devoted to the appellant and wanted to maintain their relationship. She stated, ‘ I know he is truly sorry for hurting me and the time he has spent in jail he has not wasted one day doing everything possible to completely turn his life around, every course available in the prison Egan has not only completed but done so with proud achievement’. This showed that the insight and rehabilitative opportunities noted in the original sentencing hearing had been fulfilled and the appellant had addressed his offending behaviour (See [92]-[94]). The appellant was re-sentenced to 2 years imprisonment for the assault occasioning bodily harm. The other sentences were confirmed leaving a head sentence of 30 months, with a non-parole period of 10 months.

Tuckey v Ede [2010] ACTSC 95 (8 September 2010) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Non-conviction order’ – ‘Physical violence and harm’ – ‘Victim contribution’

Charge/s: Summary offence of assault.

Appeal type: Appeal against conviction.

Facts: The intoxicated male appellant started arguing with his partner (the female complainant) in their house. The appellant kicked a chair at the complainant and broke it. She threw the broken chair at him and he slapped her in the face. The complainant called the police. After discussion, the appellant agreed to plead guilty to a summary charge of assault and the prosecution agreed to make submissions not opposing the making of a non-conviction order. Her Honour refused to make a non-conviction order, convicted the appellant and imposed a 12 month good behaviour order.

Issue/s: One of the issues was that the sentencing process was flawed.

Decision and Reasoning: The appeal was upheld because the sentencing process in the Magistrates Court was flawed in light of further evidence provided about the agreement between the prosecution and the defence before the hearing. Although the appellant was not entitled to assume that the magistrate would make the orders that had been agreed upon, he was entitled to expect that the prosecution’s attitude to a non-conviction order would have been articulated during the hearing (See [26]-[42]).

Another sentence was appropriate in this case. The appellant had no criminal record nor any identified problem with alcohol or anger management. The offence was an isolated incident in which the complainant also took part. The couple had reconciled and were again living with their child. The appellant had a sound employment record, had already been punished by spending the night in police custody and was unable to return home for 3 weeks because of his bail conditions. Finally, the conviction would make it difficult for him to see his partner’s family in Vietnam (See [43]-[45]).

The appellant’s conviction was set aside and a good behaviour order imposed for 12 months. In re-sentencing the appellant, Penfold J stated:

‘However, the appellant should not interpret this conclusion as in any sense condoning of his use of physical violence on his partner (or anyone else for that matter). Rather, it is a recognition that while it is vital for domestic violence to be taken seriously by the police and the prosecuting authorities and the courts, it is also important for a victim of domestic violence to be able to call for help when she needs it in the belief that after her immediate needs have been addressed, the longer-term consequences of the call for help will be decided in a calmer environment in which her longer-term interests and wishes will also receive recognition. The appellant should be aware however, that if there were any repetition of this kind of behaviour by him, I expect that a sentencing court would take it very seriously’ (See [47]).

Elson v Ayton [2010] ACTSC 70 (15 July 2010) – Australian Capital Territory Supreme Court

‘Assault’ – ‘Assault occasioning actual bodily harm’ – ‘Damaging property’ – ‘Emotional abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentence accumulation’ – ‘Sentencing’ – ‘Totality’

Charge/s: Assault occasioning actual bodily harm, assault x 3, damaging property x 2.

Appeal type: Appeal against sentence.

Facts: The male appellant and the female complainant were in a relationship. The appellant became very angry with the complainant and she got in her car with her daughter to leave. The appellant punched the driver’s side window of the car causing the window to shatter. He then punched the complainant in the nose and eye, causing her nose to bleed. On a subsequent occasion, in breach of his bail conditions, the intoxicated appellant went to the complainant’s house. He abused her saying, ‘he would kill her and hurt her,’ and put his right arm around her throat. He threw a jar and punched his fist through the microwave door. On a third occasion, again in breach of bail conditions, the appellant went to the complainant’s home with his teenage son. He grabbed her by the throat, punched her in the face, and kicked her. The appellant only stopped when the complainant’s 10 year old son called the police.

While the sentencing magistrate stated that she intended to impose a total sentence of 48 months, with a 24 months non-parole period, the accumulation of sentences the magistrate articulated in court was only a total of 30 months. However, amendments were subsequently made to the bench sheets to reflect what Her Honour intended.

Issue/s:

1.

The sentencing magistrate erred in amending the sentences.

2.

The sentencing magistrate erred in imposing the maximum penalty for the damaging property offences.

3.

The sentence was manifestly excessive and the sentencing magistrate misapplied the totality principle.

Decision and Reasoning: The appeal was upheld. First, the parties should have been given an opportunity to be heard before the sentences were amended. This failure amounted to an error requiring the sentence to be set aside (See [81]-[93]). Second, the offences of damaging property were not in the worst category of offences — the damage was not considerable and there were no matters of aggravation of either offence such as planning or premeditation. The magistrate erred in imposing the imposition of the maximum penalty on these offences (See [94]-[103]).

Third, the sentence of 15 months imprisonment imposed for the second assault was excessive in light of the sentence of 18 months imprisonment for the first assault. The first assault was more serious. It involved the smashing of a window, the appellant caused the complainant’s nose to bleed, it was committed in the presence of a child, and the appellant pleaded not guilty to this offence (See [105]-[109]). Further, by merely accumulating the sentences for the three episodes, the sentencing magistrate could not be said to have applied the principle of totality (See [109]-[116]).

The appellant was re-sentenced by Refshauge J to a total sentence of 34 months imprisonment, with a non-parole period of 15 months based on evidence that the appellant had taken steps to address his drug and alcohol use (See [121]-[130]). His Honour noted, ‘these offences are serious, particularly because they are offences of family violence, some committed in the presence of children, some committed whilst on bail and in breach of conditions of that bail. The repetition of assaults on the victim also makes the offences serious’ [122].

Goundar v Goddard [2010] ACTSC 56 (29 June 2010) – Australian Capital Territory Supreme Court

‘Anger management programs’ – ‘Appeal against sentence’ – ‘Assault’ – ‘Physical violence and harm’ – ‘Probation’ – ‘Purpose of sentencing’ – ‘Rehabilitation’

Charge/s: Assault.

Appeal type: Appeal against sentence.

Facts: The male appellant and his wife, the complainant, were involved in a lengthy argument regarding the conduct of the complainant’s daughter. The appellant swore at the complainant and said, ‘I’m going to kill you’. He then pushed the complainant on her forehead, causing her to fall backwards into her chair. The complainant went to her daughter’s bedroom and was followed by the appellant. The argument continued and at one point the appellant came so close he caused the complainant to stumble backwards onto the bed. The appellant pleaded guilty to assault. Counsel for the appellant sought a non-conviction sentence and the prosecution made no opposing submissions. The magistrate imposed a good behaviour order which required the appellant to subject to probation for 18 months and required the appellant to attend counselling on anger management and inter-personal relationships.

Issue/s: The condition of the good behaviour order requiring the appellant to be subject to probation for 18 months was manifestly excessive.

Decision and Reasoning: The appeal was allowed and the period of supervision set aside. This was an offence at the lower end of the scale of seriousness for such offences, notwithstanding that this was a family violence offence. It was committed by a person with no criminal history. Further, a substantial number of very positive references were submitted attesting to the appellant’s good character (See [44]-[47]).

The respondent submitted that weight had to be given to general and specific deterrence because this was a family violence offence. Refshauge J accepted this but noted that ‘supervision on probation is not ordinarily seen as part of the deterrent component of sentencing’. It is generally a rehabilitative part of sentencing. Here, unless actual supervision was required for a rehabilitative purpose, i.e. to ensure the appellant attended counselling, it was not appropriate to make a probation condition. There was no suggestion on the facts that the appellant would benefit from such guidance (See [48]-[59]).

Twerd v Holmes [2010] ACTSC 55 (25 June 2010) – Australian Capital Territory Supreme Court

‘Emotional and psychological abuse’ – ‘Manifestly excessive’ – ‘Unlawful confinement’

Charge/s: Unlawful confinement.

Appeal type: Appeal against sentence.

Facts: The appellant unlawfully confined his former partner by forcing her into a taxi and compelling her to travel with him, against her will. He then took her to another person’s house where she was prevented from answering her phone. She was held captive for approximately 2 hours. The magistrate imposed a sentence of 20 months imprisonment, with a non-parole period of 15 months.

Issue/s: One of the issues was that the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The sentence could not be said to be manifestly excessive. This was a very serious offence. Its seriousness was not diminished by the fact that it occurred within the context of a relationship breakdown, that it was not carried out for financial gain, and that it was committed in the presence of third parties. Further, the appellant had a long criminal history (See [3]-[4]).

In the matter of an application for Bail by Breen [2009] ACTSC 172 (31 December 2009) – Australian Capital Territory Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘People with mental illness’ – ‘Presumption against the grant of bail’ – ‘Threatening to kill’

Charge/s: Threatening to kill, failing to surrender firearms x 3, possessing a quantity of cannabis.

Appeal type: Appeal against refusal to grant bail.

Facts: Mr Breen, an Aboriginal man, was in a relationship with a woman and they had three children. Mr Breen rang the mother of his partner, asking if she knew where his partner was. He was extremely agitated and said, ‘If we were married, we would now be divorced’ and ‘I’ve got big problems with my head’. Mr Breen then said, ‘and if [his partner] gets boyfriends out of this, I will get my gun and blow all their heads off. I will kill us all. Better that than have them molested as I was’. Mr Breen stayed on the phone to his partner’s mother for an hour and on two occasions he threatened to kill the whole family. When police later arrived, Mr Breen said he was depressed and ‘wanted to end it all’. A search of the property uncovered three unregistered rifles and cannabis. He was arrested and was refused bail by a magistrate for ‘mental health issues’ and his access to ‘illicit’ firearms.

Issue/s: Whether Mr Breen should be granted bail.

Decision and reasoning: Section 9B of the Bail Act meant that the presumption in favour of bail did not apply. Refshauge J noted that, in determining whether to grant or refuse bail, the court had to engage in an assessment of ‘future risk’. Given that refusal of bail is tantamount to preventative detention, the court should not make a decision on the basis of suspicion or speculation (See [57]-[61]). His Honour stated, ‘the appropriate initial view was that this was a serious offence which was engendered in emotional circumstances where very serious violence, at least to Mr Breen himself if not to his partner and children, was threatened and where there were apparent means to carry out such a threat. This was exacerbated by the fact that Mr Breen clearly [had] some mental health issues which [made] the likelihood of unpredictable outcomes greater’ at [61].

However, on the basis of tendered evidence, Refshauge J was satisfied that the imposition of strict bail conditions could manage these concerns (See [91]). Mr Breen’s behaviour was caused by a mental impairment that was treatable (and treatment were already occurring). While Mr Breen had a worrying fascination with guns and weapons, he was not in a realistic position or had the immediate capacity to carry out his threat. There was no evidence to satisfy Refshauge J that Mr Breen’s partner would be in danger with the provision of suitable bail conditions. Mr Breen had work available and his parents were prepared to offer a cash surety.

Talukder v Dunbar [2009] ACTSC 42 (16 April 2009) – Australian Capital Territory Supreme Court

‘Anger management programs’ – ‘Common assault’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Victim contribution’ – ‘Victim impact statements’

Charge/s: Common assault.

Appeal type: Appeal against sentence.

Facts: The appellant and the complainant had been married for eight years and had two children. An argument arose between the appellant and the complainant. Their 12 year old son stepped between them but was pushed away by the appellant. The appellant grabbed the complainant by the hair, pulled her into the bedroom and threw her on the bed. The complainant called the appellant’s mother a prostitute and he twisted her arm behind her back and slapped her face several times. The police were called. The appellant made full admissions. In sentencing submissions, counsel for the appellant informed the magistrate that a conviction would prevent the family from migrating to Canada and asked for a short adjournment to procure such evidence from his office. The magistrate refused. The appellant was convicted and made subject to a good behaviour order for 12 months.

Issue/s: One of the grounds of appeal was that the magistrate failed to provide procedural fairness by not permitting an adjournment.

Decision and reasoning: The magistrate erred in refusing to allow an adjournment for the material relating to the potential barriers of a conviction to migrating to Canada to be procured. The adjournment would only have been brief and the issue of migration status was of major concern to the family. It was not appropriate to deny the appellant the opportunity of putting his case before the court just because his legal representation had failed to have the requisite documents on hand. The appeal was allowed and it fell to Refshauge J to re-sentence the appellant (See [34]-[51]).

In re-sentencing the appellant, His Honour had particular regard to the issues of the migration process to Canada and the views expressed by the complainant in a letter to the court. First, Refshauge J accepted that there was a real likelihood that in a case of domestic violence the appellant would be refused admission to Canada. This would adversely affect the family (See [73]-[78]). Second, in relation to the letter from the complainant, His Honour stated that:

‘In my view, there is a great danger in putting a victim of domestic violence in the position where they are seen to have some power to influence a sentence. This is often likely to be an intolerable choice between the bonds of affection which often persist despite the violence and their need for protection against recurrence and for the offender to be held accountable’ at [82].

His Honour accepted the letter for the following: the appellant had previously good character, the incident was a one-off occurrence, he voluntarily participated in an anger management course, and it confirmed the effect on the family if they were unable to migrate to Canada. But, in light of the issues mentioned above, accepting the letter as evidence of reconciliation needed to be treated with caution (See [79]-[84]).

The appellant had no prior convictions and previous good character. The offence was serious but at the lower end of the criminal calendar and, as a matter of marginal extenuation, the victim was equally as abusive. A non-conviction order was warranted because of the appellant’s immediate engagement in a rehabilitation program, his plea of guilty and early confession, and the risk to the family if their immigration plans were thwarted (See [92]-[97]).

R v Taylor (No 2) [2008] ACTSC 97 (12 September 2008) – Australian Capital Territory Supreme Court

‘Contravention of a protection order’ – ‘Following, harassing, monitoring’ – ‘Good behaviour orders’ – ‘People affected by substance misuse’ – ‘Perpetrator programs’ – ‘Protection order’ – ‘Purpose of sentencing’ – ‘Rehabilitation’ – ‘Subjective circumstances’ – ‘Suspended sentence’

Charge/s: Contravention of a protection order.

Hearing type: Sentencing hearing.

Facts: On 16 January 2007, the offender was found guilty for breaching a Domestic Violence Protection Order, protecting Ms Perrin (with whom he had two children). He drove past Ms Perrin’s residence, yelled at her, and summonsed another man at the premises to fight him. The offence was committed in breach of two earlier imposed and unrelated good behaviour orders for aggravated robbery and assault occasioning bodily harm (‘the 2004 offences’). Accordingly, it fell to Rares J to sentence the offender for the breach of the protection order and re-sentence the offender for the 2004 offences. At the time of sentencing, the offender and Ms Perrin had reconciled.

Decision and Reasoning: The offender was sentenced to 12 months imprisonment, wholly suspended with conditions [2]. In sentencing the offender, Rares J was satisfied that the offender had made a serious and concerted effort to turn his life around — the offender had stopped taking cannabis and alcohol, had obtained employment, paid for his own attendance with Ms Perrin at a Relationships Australia course, and had the support of his family and Ms Perrin’s family to make a good life for their children. His Honour also took into account the fact that he had pleaded not guilty to the offence of breaching the domestic violence order and that he had a prior criminal history.

Rares J noted that while he did not want to undermine the offender’s ‘terrific’ improvement, a penalty had to be crafted that appropriately reflected the offender’s criminality, the seriousness of the conduct and general deterrence. His Honour noted:

‘In many, many cases before the courts, the subjective impact of a punishment on an offender once brought to justice can be seen to be great. But to do justice according to law, must be to uphold the laws themselves and their purpose to ensure that we all obey the law. The community must know that offenders, whatever their personal circumstances are, receive a punishment that is appropriate and recognises the seriousness of the offending and the breaches of the community’s standards embodied in its criminal laws’ at [17].

Redden v Slavin-Molloy [2008] ACTSC 37 (29 April 2008) – Australian Capital Territory Supreme Court

‘Breach of a protection order’ – ‘Damaging property’ – ‘Following, harassing, monitoring’ – ‘Protection orders’ – ‘Repeated breaches’ – ‘Specific deterrence’

Charge/s: Contravention of a protection order x 2.

Appeal type: Appeal against sentence.

Facts: The female complainant obtained a protection order against the male appellant, her former partner. In breach of this order, the appellant attended her home. When she refused to let him inside, he began yelling and attempted to break down the door. She called for help and the appellant fled. The next day, the appellant again tried to obtain entry to the complainant’s home. He struck and damaged the front door when he was refused entry and again ran off when he was told the police had been called. In December 2007, the offender was sentenced to 10 and 15 months imprisonment respectively for these breaches. Earlier, in May 2007, the offender had been sentenced for a number of other offences, including four charges of contravening a protection order. For the most serious of these breaches, he was sentenced to six months imprisonment to be served as periodic detention.

Issue/s: One of the grounds of appeal was that the sentence of 10 months imprisonment and 15 months imprisonment was manifestly excessive.

Decision and reasoning: The appeal was allowed. Penfold J noted that:

‘To the extent that punishing an offender ever more severely because of repeat offending, rather than because the individual offences have become more serious, is justifiable, such an approach must relate to the need for specific deterrence of an offender who appears unwilling to learn from previous penalties. Even in that case, the penalty must still remain referable in some way to the actual offence committed’ at [38].

Here, the sentence was manifestly excessive (See [42]). In particular, the two sentences imposed were at least twice as severe as the most severe penalty previously imposed for breach of a protection order in May 2007. However, if the May 2007 breaches were so much less severe than the conduct here, it was hard to see how they would have justified imprisonment at all (See [37]). Further, at the time of the August breaches, the offender had not served any full-time custody or even any periodic detention. It could not be assumed that his actions in August were informed by any understanding of the reality of a custodial sentence (See [39]). Other relevant mitigating factors were taken into account (See [30]).

The appellant was re-sentenced to 6 months imprisonment for each breach.

Miller v MacDonald [2006] ACTSC 76 (30 June 2006) – Australian Capital Territory Supreme Court

‘Conditions of orders’ – ‘Conflict between orders’ – ‘Contravention of a protection order’ – ‘Explaining the orders’ – ‘Family court orders’ – ‘Mistake of law’ – ‘Protection order’ – ‘Recklessness’ – ‘Repeated breaches’

Charge/s: Contravention of a domestic violence order x 2.

Appeal type: Appeal against conviction and appeal against sentence.

Facts: The appellant’s former wife, with whom he had a daughter, obtained a domestic violence protection order against him, prohibiting contact. Shortly before the appellant left for an extended visit to the United States, the Family Court made an order which vacated this contact order. It stated that while the appellant was out of the country, he could send gifts and correspondence or postcards to his daughter provided that the contact was directed to the child and that he could send a photograph from time to time. When he was back in Australia, the appellant sent his daughter a package containing photographs, gifts and a letter. Additionally, the appellant mistakenly sent his former wife an email when he sent a group message to his siblings. He had previously been interviewed by police for a similar mistake. The appellant had spent 42 days in custody on remand. The magistrate imposed a six month term of imprisonment from the date he was taken into custody and directed he be released after serving 42 days, effectively that he be released the day following the hearing. He also imposed an 18 month good behaviour bond, subject to some conditions (see[22]).

Issue/s:

1.

The appellant made an honest and reasonable mistake of law by sending his daughter a package.

2.

The email to his wife was sent in error.

3.

The sentence was manifestly excessive.

Decision and reasoning: The appeal was dismissed. First, His Honour held that: ‘[I]t is certainly fair to say that if a person seeks to rely on a Family Court order that varies what is otherwise a clear domestic violence order, it is incumbent upon that person to take steps to understand what the Family Court order says. And it seems to me that the Magistrate was perfectly entitled to find that Mr Miller was at least reckless in assuming that that order, which on its face only covers the time that he was out of the country, continued to apply after he had returned to Australia’ at [5].

Second, on its own, the email sent in error to his former wife would have been unlikely to meet the requisite standard of intent or recklessness. However, given that the appellant had made the same mistake before and had been interviewed by police for this, there was at least recklessness in relation to the sending of that message.

Third, the sentence could not be said to be manifestly excessive. His Honour noted that these were low level breaches of a domestic violence order, they involved recklessness rather than intent, and the nature of the correspondence in both the letter and the email was non-violent and non-threatening. However, the appellant had three prior appearances relating to seven convictions for breaches of a protection order. Connolly J stated:

‘It seems to me that even though these were lower level, indeed very low level breaches in the sense that there was no actual or apprehended or threatened violence, repeated breaches however low level, do inevitably meet with an increase in sentence on the basic premise that when low level sentences do not stop the offending behaviour a court has little option but to continue a pattern of steadily ramping up the sentence’ at [20].

R v Bell [2005] ACTSC 123 (1 December 2005) – Australian Capital Territory Supreme Court

‘Impact of domestic violence on women and children’ – ‘Persons affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Risk factor- strangulation’ – ‘Sentencing’

Charge: Assault occasioning actual bodily harm

Proceeding: Sentencing

Facts: The offender and victim had previously been in a relationship and had two children together. The offender and victim’s version of events differed. The victim alleged that after consuming alcohol with the offender one night, the offender dragged her out of bed, hit her three time in the face and put his hands around her neck and pushed his thumbs into her throat. While doing so, the offender said something to the effect of “Slut, I’ll kill you, I’ll kill you”. When she woke up the next morning the offender continued to follow and abuse her. The offender said that the offending occurred after he blacked out after drinking substantial amounts of alcohol. He said that the assault occurred after the victim, who was drunk, was following him between pubs and abused him verbally and physically by kicking him. After she got in an altercation with a patron, she was removed from the pub and was spoken to by police officers. The offender agreed to take the victim home, where they sat outside smoking marijuana and drinking bourbon. They then got in an argument over their children and the victim struck the offender. According to the offender, this is when he grabbed her throat and beat the victim.

Higgins CJ, after hearing corroborating witnesses, accepted that the assault occurred in the way described by the offender. However, he did not suggest that the victim was fabricating her account: ‘She was savagely beaten, she had a lot to drink and it is unsurprising that some of the details became confused in her mind’ ([26]).

In relation to this conduct the offender was charged and pleaded guilty to one count of assault occasioning actual bodily harm.

For three months prior to the assault, the offender had undergone rehabilitation at Oolong House. He had a long history of offending, including 28 prior assaults. Most of the previous offending occurred after the offender had consumed alcohol. While he acknowledged his alcohol abuse, the offender did not consider he needed drug and alcohol intervention. He also admitted to feeling ‘horrified by what he had done’ and said ‘violence towards women is not in his makeup and he has no excuses for what he has done’.

Issue: What sentence should the offender receive?

Decision and reasoning: The offender was sentenced to two and a half years’ imprisonment with a non-parole period of 18 months. While the preceding conduct on the night of the offending and the alcohol abuse engaged in by both the parties may explain the offending, it did not excuse it. There were some prospects of rehabilitation for the offender. However, having regard to the severity of the attack and the offender’s criminal history and alcohol abuse, a sentence of imprisonment was appropriate: ‘No other sentence will say to men who abuse women that such conduct is abhorrent and will result in severe punishment whatever the status or record of the offender’ ([32]).

In considering the purposes of sentencing domestic violence offending, Higgins CJ noted that while alcohol may have been a triggering factor, offenders must take responsibility for their actions and be seen to do so. As domestic violence offences are often hidden, general deterrence is also an important consideration in sentencing. So too is specific deterrence. Higgins CJ emphasised that domestic violence ‘is a pernicious and evil phenomenon not only because of the immediate trauma to the victim. Its evil influence spreads to children as well. It is no coincidence that, in my experience, young offenders, more often than not, present with a family history of domestic violence. It used to be regarded as a family matter, to be kept private. Victims would be made to feel humiliated, and ashamed to complain; in truth it is entirely the criminal conduct of the perpetrator which is at fault. It is entirely in the public interest that such conduct be exposed and deterred’ ([30]).

Gray v Burt [2005] ACTSC 93 (23 September 2005) – Australian Capital Territory Supreme Court

‘Application to revoke domestic violence order’ – ‘People with disability and impairment’ – ‘Protection orders’ – ‘Sexual and reproductive abuse’ – ‘Victim contribution’

Appeal type: Appeal against refusal of a magistrate to revoke a Domestic Violence Order.

Facts: On 22 October 2003, a Domestic Violence Order was made by the Deputy Registrar of the Magistrates Court for the protection of the female respondent against the appellant, with whom she was in a sexual relationship. Both parties had disabilities. During their ‘physical relationship’, the respondent suffered three separate fractures of her legs. She had no history of such injuries prior to the physical relationship and no history of such injuries subsequent to the physical relationship. On 24 May 2004, the Order was varied by consent and in particular the Order restrained and prohibited the male appellant from taking certain actions in relation to the respondent. The appellant applied to have the order revoked but a magistrate declined to revoke the Order. His Honour concluded that the physical nature of the relationship represented a genuine risk to the well-being of the respondent.

Issue/s: The magistrate erred in failing to revoke the order. His Honour made three errors in reaching his decision to not revoke the order –

1.

The magistrate failed to take into account the fact that the injuries occurred while the respondent was living in an apartment with the appellant and was not receiving the same degree of care as she did now.

2.

The magistrate failed to take into account evidence about counselling that the parties had commenced and intended to continue.

3.

The magistrate failed to take into account the likelihood of future sexual contact between the parties in circumstances where the appellant was now under full-time supervision at Hartley Court (a disability support facility).

Decision and reasoning: The appeal was dismissed. First, the location of where the injuries occurred was not relevant because it was the physical relationship that caused the injuries. Second, there was no evidence that the counselling had been concluded nor that it would reduce the likelihood of injury if the physical relationship was to continue. Accordingly, this was not a relevant consideration. Finally, the magistrate did consider the fact that such a relationship was likely to continue on the basis of evidence before him.

Further, the magistrate did not fail to take into account the fact that persons with disabilities had the same basic rights as other members of Australian society. The magistrate specifically referred to the wishes of the respondent to continue the relationship with the appellant. However, His Honour concluded that the risk to the respondent resulting from such a relationship as such that he was unable to be satisfied that the order preventing such a relationship was no longer necessary for her protection.

R v In [2001] ACTSC 102 (2 November 2001) – Australian Capital Territory Supreme Court

‘Assault occasioning bodily harm’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘General deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factor-suicide threats’ – ‘Sentencing’ – ‘Unlawful confinement’

Charge/s: Unlawful confinement, assault occasioning bodily harm.

Hearing type: Sentencing hearing.

Facts: The offences occurred after the male offender and his wife, the complainant, had separated and the offender had moved out of the family home. He occasionally stayed overnight to see the children. After seeing his wife kiss another man, the offender arrived at the family home late at night, when the children were present in the house. The complainant let him in and went back to bed. The offender followed her and sat on top of her. He placed a sharp object against her throat and said, ‘This is a knife. If you move I will fucking kill you’. He then placed pre-cut strips of duct tape over the complainant’s mouth and eyes. He bound her wrists and ankles and tied her hands and feet together. He said, ‘You’ll have your wish — you’ll see me die tonight, you’ll see me die’.

The complainant had difficulty breathing and the offender removed the duct tape. He interrogated her about her relationship with the other man, hitting her several times around the head and shoulders. He left the room saying, ‘If you fucking move I’ll kill you’ and returned with a telephone book. The offender asked for the other man’s phone number before leaving the room again. The complainant heard him enter the nearby bedroom, occupied by two of their daughters and heard him say, ‘Now take this darling. I know it tastes awful, doesn’t it’.

He returned to the complainant and resumed interrogating her, striking her. He said multiple times that he was going to kill himself and take the children with him. The offender eventually became tearful and untied the complainant. She rang the emergency number and asked for an ambulance, thinking her children had been poisoned. The police and ambulance arrived. The children were unharmed. The offender left the premises and went to the police station the next morning.

Decision and Reasoning: The offender was sentenced to 6 years imprisonment for unlawful confinement and 3 years imprisonment for assault, concurrent and a non-parole period of 18 months. Crispin J took into account a number of subjective factors in imposing this sentence. The offender pleaded guilty. At the time the offender entered the house, while there was some measure of pre-meditation in the appellant’s actions (the decision to confine and interrogate the complainant), the offender did not intend to threaten the complainant with a knife or to kill his children. The offender stopped the violence and threats of his own volition.

At the time of offending, the offender was suffering from serious psychological illnesses including acute depression and adjustment order. It was submitted on the offender’s behalf that, because of this illness, this made the offender an inappropriate vehicle for general deterrence. Crispin J disagreed and stated,

‘The extent of his psychological condition is relevant to the issue of general deterrence but, in my view, the need to protect former spouses or partners from conduct of this nature cannot be so easily dismissed. Many people no doubt experience great stress upon the breakup of their marriages or other close relationships and in some cases they may suffer from symptoms of an underlying psychological illness or even become psychologically ill for the first time. One may and should respond with sympathy. However, when a person commits serious criminal acts against a former spouse or partner the court must take into account the need to deter other people from similar conduct. The risk of serious injury and, as in this case, grave emotional trauma may be at least as serious when the offender is psychologically ill. Accordingly, the need for deterrence should be given due recognition, though the weight which should be given to that factor will vary according to the circumstances of the case, and the actual sentences must be determined by reference to all relevant factors’ (See [19]).

Other relevant factors included that the offender was remorseful, he had no prior convictions and was previously a committed father and a person of impeccable character. He had taken steps to obtain counselling and achieved a significant measure of rehabilitation. He had already been imprisoned for 8 months and this caused significant distress in light of his inability to see his children and his potential to be a suicide risk.

However, Crispin J was unable to accept counsel submissions that the offender should be released on parole immediately. The offences were too serious to be dealt with in that manner — the complainant was confined for an extended period and intended to cause significant fear in the complainant.

R v Lorenz [1998] ACTSC 275 (14 August 1998) – Australian Capital Territory Supreme Court

‘Assault occasioning bodily harm’ – ‘Battered woman syndrome’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘General deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful confinement’ – ‘Where the offender is also a victim’

Charge/s: Robbery with an offensive weapon.

Trial: Judge only trial.

Facts: On 20 November 1996, Ms Lorenz (‘the accused’) entered a supermarket and attempted to purchase some cigarettes with her EFTPOS card from the complainant. The transaction could not be completed because there were insufficient funds in the account. The accused maintained she was sure there were funds in the account and re-tried the card but it was again declined. She then left the store. Ten minutes later, the accused returned to the store with a pen knife. She approached the complainant, held the knife out in front of her and said, ‘give me all your fucking money or I’ll slit your throat’. The complainant gave the accused $360 in cash and the accused left the store. While initially denying any involvement, the accused made admissions to the police.

Counsel for the accused argued that the accused was acting out of duress on the basis of a threat made by Ms Lorenz’s partner on the night before the robbery and repeated the following morning to the effect that if she did not obtain enough money to enable him to re-register his car he would kill her. This threat followed a pattern of violent and threatening behaviour towards the accused over a number of years (See [11]). On the morning of the robbery, the accused, who was pregnant with the couple’s third child, found out that she was unable to get the immediate payment of an advance payment from the Department of Social Security to pay the re-registration.

Decision and Reasoning: There was some discussion in this case of ‘battered woman syndrome’ (See [26]-[31]). Crispin J accepted that upon failing to receive advance payment from the Department of Social Security, the accused became frightened and confused and the robbery was an impulsive act due to her fear that her partner would kill her. His Honour stated: ‘In my view her failure to attempt to extricate herself from the situation whether by leaving him or otherwise is largely explicable by her fear and confusion. Furthermore, she may have thought that any escape would have been only temporary and that sooner or later [her partner] would have been bound to have caught up with her and carried out his threat’ at [30].

However, ‘a diagnosis of battered woman syndrome does not of itself give rise to any defence. The law does not recognise any general principle that people should be absolved from criminal conduct because they had been beaten or abused or because a psychological condition caused by such treatment may have led them to commit the offences with which they are charged. Nonetheless, evidence that such a person may have had a psychological condition of this kind may be relevant to several defences known to the law’ at [31].

Here, counsel for the appellant unsuccessfully attempted to rely on the defence of duress. In the accused’s favour, His Honour found that the threat was effective at the time of the offence, the accused did not fail to take advantage of a reasonable opportunity to render the threat ineffective, and, in light of the extremity of the actual and threatened violence displayed by the accused’s partner, a person of ordinary firmness of mind may have acted in the way the accused did (See [35]-[37]). However, the accused’s partner did not direct the accused to commit the offence and accordingly the defence of duress failed (See [38]-[41]). In the alternative, counsel for the accused attempted to rely on the defence of necessity. However, His Honour held that the imminence of danger fell well short of the required standard for the successful proof of the defence (See [42]-[45]). She was accordingly found guilty.

The accused left her partner shortly after the robbery and had formed a relationship with another man. She had just turned 23, had three children and was pregnant to her new partner. The new relationship was apparently a happy one. In these circumstances, and to give her the opportunity to start a new life for herself and her children, Crispin J found it appropriate to defer passing sentence on the condition that she enter into recognisance to be of good behaviour for a period of three years.

Magistrates' Court

Police v Blackwell (A pseudonnym) [2024] ACTMC 5 (19 March 2024) – Australian Capital Territory Magistrates’ Court

‘Sentencing’ – ‘Family Violence’ – ‘Breach of protection order’ – ‘Following, harrassing and monitoring’ – ‘Threats to distribute intimate images’ – ‘Sexual and reproductive abuse’ – ‘text messages’

Proceedings: Sentence.

Charge: Stalking with intention to harass in contravention of protection order x 2; threat to distribute intimate image of another x 1; contravention of protection order x 2; attempt to contravene a protection order x 1.

Facts: The male defendant and female complainant were married in 2008 and separated in 2022. In June 2022, the complainant obtained a protection order against the complainant, prohibiting any communication. [3]–[5]

The defendant breached this protection order, sending the complainant a total of 250 messages between June and August of 2022, and a total of 341 messages between August and November 2022. 290 of these messages were sent on 11 October 2022 and were of a threatening nature. [11] Included among these messages was a threat to distribute ‘intimate video footage’ of himself and the complainant engaged in sexual activity. [14]

In May 2023, the defendant was served a special interim protection order, as a result of the defendant’s persistent breach of the original order. [18]

Decision and reasoning: Partially suspended sentence of 81 days’ imprisonment and undertaking to comply with good behaviour obligations for 24 months. [157] Magistrate Temby had regard to the complainant’s impact statement, satisfied that the defendant’s ‘voluminous messaging, and … threats’ heavily impacted the complainant’s sense of safety and isolation. [29]

The defendant’s offending was regarded as ‘a serious example’ of stalking, occurring over an extended period (2.5 months) and involving a large volume of unlawful communication. [30] Similarly, the defendant’s threat to distribute a particular intimate image of the complainant was ‘an insidious kind of threat’, falling above the middle of the range in terms of objective seriousness [40] Magistrate Temby observed this offending occurred while the defendant was on ‘conditional liberty’. This is an aggravating factor on sentence. [50]–[51]

Magistrate Temby further noted the defendant’s mental health conditions (inc. anxiety, depression and Autism Spectrum Disorder) and alcohol use disorder. [98] However, the Magistrate queried the extent to which these conditions contributed to the defendant’s offending. [100] The Magistrate lastly observed the defendant’s lack of appreciation with respect to the harm of his actions and consequent lack of responsibility. [122]

TS v PU [2019] ACTMC 22 (12 July 2019) – Australian Capital Territory Magistrates’ Court

‘Employment’ – ‘Exposing children to domestic and family violence’ – ‘Final protection order application’ – ‘Firearm’ – ‘Hardship’ – ‘History of domestic and family violence’ – ‘Police domestic and family violence’ – ‘Suicide threat’ – ‘Weapon’

Proceedings: Application for final family violence order (FVO).

Facts: The male respondent and the female applicant both worked for the Australian Federal Police. An interim FVO prevented the respondent from working as an active officer as he was not allowed use of firearms. The circumstances of the offending included exposing the couple’s child to domestic and family violence, and text messages from the respondent threatening suicide including images of the respondent with a firearm in his mouth.

Decision and reasoning: A 24-month FVO was granted. In particular, the Magistrate considered the hardship to the respondent in making a FVO but noted at [34]-[35]:

“Those who have the professional privilege of using and carrying firearms in the workplace know full well that this grant of privilege for firearms can be revoked if their behaviour is inconsistent with a continued grant. The consequential effect of any order made in favour of the applicant relating to depriving the respondent’s ability to access firearms has weighed heavily in this decision. Ultimately, the respondent must take responsibility for his conduct in terms of the professional repercussions he has brought upon himself and the personal (and legal) repercussions caused by involving the applicant in his behaviour. Encouragement of him to so do is expressed in s 6 as an object of the FV Act.

Bearing all of the issues in mind, I find that in the circumstances of this matter, the level of hardship to the respondent caused by granting a final order does not outweigh the need to grant an order. That is, any s 14 hardship upon the respondent has not outweighed the s 6 and other competing s 14 considerations. I have decided to impose a final order and I turn my mind to the conditions of that order.”

Love v Kumar [2018] ACTMC 23 (31 October 2018) – Australian Capital Territory Magistrates’ Court

‘Assault’ – ‘Coercive control’ – ‘History of family violence’ – ‘Isolation’ – ‘People from culturally and linguistically diverse background’ – ‘Visa threats’

Charges: Common assault x 5.

Matter: Judgement.

Facts: The events relating to the charges took place between 2014 and 2017. The defendant male and complainant female were married and had one child. The 5 assault charges relate to the following alleged incidents:

1.

slapped complainant wife across face

2.

slapped complainant wife across face

3.

struck his child on the her back of shoulder because she was crying;

4.

pushed complainant wife’s forehead backwards striking the wall behind

5.

grabbed complainant wife’s hair and twisted her head and hit her face on wall

Decision and Reasoning: In relation to charges 1-3, the Magistrate was not satisfied that the case had been sufficiently made out to justify a finding of the accused’s guilt.

In relation to charges 4 and 5, the Magistrate found the accused guilty.

Special Magistrate Hunter OAM observed:

Taken together the evidence if accepted of giving information to officials at Immigration, the refusal to recant that information, the bruise to the head which is consistent with the allegation on 18th and the general information such as not allowing Ms Devi to have a phone, not allow her to contact her brother and the like which could lead to a conclusion that the defendant was controlling her life, (which is not unknown in domestic violence situations). It also leads to a conclusion that Ms Devi is speaking the truth and should be believed. [207]

And:

I am also satisfied that she had been controlled at least to some extent. That is supported by uncontroverted evidence that she had to secret a SIM card so that she could contact her family and brother by phone. This is consistent with the evidence from her brother that she had no access to contact him except by public phone until he gave her the SIM card. I am also satisfied she had limited access to friends and family. That evidence was corroborated by her brother and by the fact she used the SIM card he gave her to make the various phone calls she made to family and friends. I also note the Defendant had alluded to that control in some of his answers in the ROI such as those referred to by Prosecution counsel in her submissions. [209]

[Note: This decision was unsuccessfully appealed: Kumar v Love [2019] ACTSC 238 (30 August 2019) – Australian Capital Territory Supreme Court]

Last updated: July 2024