Contents

Table of Contents

Tasmania

Court of Criminal Appeal

Palmer v State of Tasmania [2024] TASCCA 6 (5 July 2024) – Tasmanian Court of Criminal Appeal

'strangulation' - 'assault - 'following, harassing, monitoring' - 'threat to animals

Charges: 2 x assault

Proceedings: Appeal against sentence

Facts: The appellant had pleaded not guilty to two counts of assault but on the second day of the trial before Wood J, he changed his pleas to guilty and was sentenced to three years' imprisonment with 14 months suspended. Both counts relate to his then female partner. Their relationship had deteriorated, and he had become very jealous and paranoid, watching the victim's movements via cameras installed in the house via an app on his mobile phone [8]. The victim had left with their baby son, but he had threatened to kill the horses if she did not return. [9] The assaults were committed during one incident on the same day, 24 February 2020. The appellant slapped the victim to the face, pushed her onto a bed, put his hands around her throat and squeezed, and headbutted her to the head (assault × 1). He also wrapped a dressing gown cord around her neck and pulled it tightly, and headbutted her to the head (assault x 2).

Grounds of appeal: That the sentence was manifestly excessive.

Decision and Reasoning: The appeal is dismissed.

Porter AJ (Blow CJ and Bret J agreeing with his conclusion and reasons concluded that the offences 'constitute quite appalling conduct. They were done in the context of an obsessive and possessive attitude on the part of the appellant. Those physical assaults, as is always the case with assaults in a domestic relationship, amount to breaches of trust. The second assault, involving strangulation by use of the dressing gown cord, is to be regarded in a particularly serious light...it is fortunate she was not more seriously injured.' [50] Error was not shown in the sentence and the sentence was not outside the permissible range

Gee v Tasmania [2022] TASCCA 1 (2 February 2022) – Tasmanian Court of Criminal Appeal

‘Admissibility of evidence’ – ‘Admissibility of prison telephone call recordings’ – ‘Admissions of guilt’ – ‘Appeal’ – ‘Credibility of victim’ – ‘Lies of victim’ – ‘Persistent family violence’ – ‘Post-offence conduct consistent with guilt’ – ‘Prison telephone calls’

Charges: Persistent family violence x 1.

Proceedings: Appeal against conviction.

Facts: The appellant was found guilty of persistent family violence [8]. He appealed on the following grounds:

1.

The learned trial judge erred in fact and in law in ruling that the complainant’s evidence be taken at a special hearing.

2.

The learned trial judge erred in fact and in law in admitting into evidence the recorded content of phone calls made by the appellant to the complainant:

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‘…in finding that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant’;

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‘…in finding that it would not be unfair to admit the evidence having regard to its late disclosure’; and

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‘…in admitting the evidence conditional upon the State recalling the witness in circumstances where it had previously asserted in support of the application for special hearing that it would not do so under any circumstances’ [7].

Decision and Reasoning: The appeal is dismissed.

Ground 1: The Court affirmed the trial judge’s ruling on the special hearing, dismissing the first ground of appeal [32]. The trial judge had found that when faced with the prospect of giving evidence in court in the presence of the accused, the complainant experienced symptoms of anxiety that ‘adversely affected’ her ability to comprehend and respond to questions ‘to a significant degree’. The trial judge noted that the complainant’s anxiety manifested ‘itself physically by her shaking and becoming effectively unresponsive’. Therefore, the trial judge was satisfied that by requiring the complainant to give evidence ‘in the usual way’ she would likely ‘suffer severe emotional trauma’ and ‘be so intimidated or distressed as to be unable to give evidence… satisfactorily’. The trial judge explained that this was due to the nature of the complainant’s ‘relationship with the accused and… the subject matter’ [16].

Ground 2: The court dismissed the second ground of appeal, stating that ‘the evidence was highly probative, involving admissions of guilt, post-offence conduct consistent with guilt and evidence highlighting the complainant's credibility’ [48]. The court held that the complainant’s admitted lies did not mean none of her evidence was to be believed.

Otto v Tasmania [2021] TASCCA 15 (16 December 2021) – Tasmanian Court of Criminal Appeal

‘Accessory after the fact’ – ‘Application for leave to appeal’ – ‘Crown appeal against sentence’ – ‘Female perpetrator’ – ‘Murder’

Charges: Murder.

Proceedings: Application for leave to appeal against conviction; Crown appeal against sentence.

Facts: The applicant was convicted of the murder of her husband, the allegations being that she instigated her husband’s friend and her former lover Bradley Purkiss to commit the crime. The case against the applicant was solely circumstantial. The victim had been behaving erratically in the weeks leading up to the murder and the applicant and co-accused had spent a number of hours together on the afternoon before the murder. It was clear that the jury did not believe the applicant’s exculpatory statements in her police record of interview. The applicant and victim had been experiencing financial difficultied prior to the murder and she had reported to witnesses that her husband had mental and physical health issues which prevented him from working, and he was said to be an intimidating person. The applicant and Purkiss had a brief sexual relationship which ended prior to the murder, but they remained close. Text messages between Purkiss and the victim on the day of the murder were recovered from the victim’s phone, there was video evidence a man wearing a hood entered the applicant and victim’s home met after the murder and the CCV was disconnected after that person entered the home.

Grounds:

Application for leave to appeal – the verdict of the jury was unreasonable and cannot be supported with regards to the evidence (accepting a verdict of accessory after the fact should be substituted if successful).

Appeal against sentence – manifest inadequacy.

Decision and reasoning:

1.

Leave granted and appeal allowed.

2.

Verdict of guilty of murder set aside and verdict of being an accessory after the fact to murder substituted.

3.

Sentence for murder set aside.*

Porter J (Brett and Geason JJ concurring) held that the question for the court was whether it was open for the jury to have excluded all reasonable hypotheses consistent with innocence. On the evidence before the jury it was not possible to exclude the hypothesis put by the applicant in argument.

*Note: On 17 December 2021, for the crime of being an accessory after the fact to murder, the Court recorded a conviction and sentenced the appellant to six years' imprisonment to commence on 30 May 2017. The Court ordered that she not be eligible for parole until she had served one half of that sentence.

McCall v Tasmania [2021] TASCCA 11 (12 November 2021) – Tasmanian Court of Criminal Appeal

‘Accusations of infidelity’ – ‘Aggravated burglary’ – ‘Appeal against sentence’ – ‘Community protection’ – ‘Extensive criminal history’ – ‘Home invasion’ – ‘Manifestly excessive or inadequate’ – ‘People affected by substance misuse’ – ‘People who are homeless’ – ‘People who are pregnant’ – ‘Sentence’ – ‘Sentencing’

Charges:

Incident 1: Aggravated burglary x 1, assault x 1, associated summary offences;

Incident 2: evading police x 1, dangerous driving x 1, associated summary offences.

Proceedings: Appeal against sentence.

Facts: The accused man appealed the sentences imposed by Brett J for offending arising out of two separate incidents. The first incident was of violent offending including aggravated burglary and assault towards his then domestic partner (pregnant with a former partner’s child) and the violent invasion of the home of people with whom they were staying during a period of homelessness. The second incident related to the accused’s attempts to avoid arrest for the first incident by engaging in dangerous driving while under police pursuit. The accused had an extensive criminal history “which manifests in persistent and serious violent offending” and “a lengthy history of traffic offending, including a number of convictions for disqualified driving, and convictions for evading police and negligent driving”. Brett J noted that the only factors which could be taken into account in the accused’s favour were his pleas of guilty and the principles of totality. The appellant argued that the 18-month delay between his arrest and sentence should have been taken into account in mitigation.

Issue: Were the sentences imposed (7 years total term of imprisonments, eligible for parole after 5 years, together with a driving disqualification for an aggregate of 6 years from the date of release) manifestly excessive?

Decision and Reasoning: Appeal dismissed.

Aggravating circumstances related to the first incident included:

•

The aggravated burglary took the form of a very frightening home invasion.

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The victim of the assault was a pregnant woman.

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It was a prolonged assault.

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It amounted to domestic violence. [11]

Aggravating circumstances in relation to the dangerous driving included:

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The crime occurred on a Monday afternoon, when it was likely that there would be motorists and pedestrians on the streets of Penguin.

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A number of drivers had to swerve to avoid collisions.

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A number of pedestrians, including an elderly woman, were crossing roads when the appellant drove towards them.

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A number of police officers were involved in intercepting the appellant.

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The appellant drove for about 7 kilometres when evading the police.

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He ignored emergency lights and sirens.

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He continued to drive after the vehicle's tyres were deflated.

•

He was a disqualified driver. [12]

The appellant was always likely to receive a term of imprisonment greater than the 18-month delay, negating any mitigation this factor might grant. [13]

Blow CJ, Jago J and Martin AJ observed:

….it cannot be said the impugned sentences, separately or in the aggregate, were out of proportion to the seriousness of the appellant's offending, particularly since provision was made for him to be eligible for parole two years before the expiration of the last sentence. [25]

Gordon v Tasmania [2020] TASCCA 17 (2 December 2020) – Tasmanian Court of Criminal Appeal

‘Appeal against sentence’ – ‘Exposing children to domestic and family violence’ – ‘Female perpetrator’ – ‘Manifest excess’ – ‘People affected by substance misuse’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Traumatic childhood’ – ‘Verdins principles’

Charges: Wounding x 1; Common assault x 2.

Proceedings: Appeal against sentence.

Facts: The female appellant had a traumatic childhood, being sexually abused by her father and exposed to domestic and family violence. She had a history of mental illness (including depression, borderline personality disorder and post-traumatic stress disorder), substance misuse (she had ceased drug use but was drinking heavily at the time of the offending), and a lengthy record of offending. The offences occurred during the course of an argument between the appellant and her mother, and related to feelings of love/betrayal the appellant felt towards her mother for her childhood. The appellant cut her mother’s fringe with a knife and forced her head back onto the couch. She put her mother in a headlock and cut across her neck. The appellant threatened to stab a neighbour while holding two knives. The appellant was sentenced to 2 years imprisonment. The sentencing judge determined not to make an order that the appellant was eligible for parole. The appellant was made the subject of a community correction order for 12 months.

Grounds of appeal:

1.

The sentence was manifestly excessive.

2.

The sentencing judge erred in fact and/or law in determining that an order for parole eligibility ought not be made.

Held: The appeal was allowed on ground 2 and the appellant re-sentenced.

Ground 1: There was sufficient evidence in the forensic psychiatrist’s report to establish a connection between the appellant’s impaired mental functioning and its contribution to the offending: 6 Verdins principles discussed at [27]-[33], [39]-[46] and [47]-[50]. Nevertheless, the 2 year head sentence could not be said to be manifestly excessive. It was not outside the range available to the sentencing judge. The appellant’s traumatic childhood, presence of mental disorders, and the relationship issue which lay at the heart of the offending were more appropriately taken into account in whether relief ought to be afforded in relation to the service of 2 years’ imprisonment (at [53]-[56]).

Ground 2: The appellant alleged that the sentencing judge misapplied certain material relevant to parole. However, the court declined to take the alleged factual errors further, instead allowing the appeal on other grounds (at [57]-[64]).

The failure to provide some relief from the full force of 2 years imprisonment was unreasonable and plainly unjust. The circumstances of the offences/offender called for some individualisation, these being: “the appellant's background of sexual abuse, her nature and extent of her illnesses, the underlying explanation for the attack on her mother, her remorse and the prospects of rehabilitation with sustained psychological therapy” (at [78]). The appellant was re-sentenced to 2 years’ imprisonment, 8 months suspended on conditions including supervision of a probation officer in relation to drug/alcohol treatment, and undergoing medical, psychological or psychiatric assessment or treatment.

Tatnell v Tasmania [2020] TASCCA 13 (7 August 2020) – Tasmanian Court of Criminal Appeal

‘Appeal against conviction’ – ‘Assault’ – ‘Evidence’ – ‘Prior inconsistent statements’ – ‘Strangulation’ – ‘Trauma informed judicial practice’

Charges: Assault x 1.

Proceedings: Appeal against conviction.

Facts: The male appellant was charged with 3 counts of assault against his wife during the course an argument. A jury found the appellant guilty of the first count, which included strangling his wife and punching the wall above her head, but not guilty of the other counts. The trial judge imposed a wholly suspended sentence of 12 months’ imprisonment and made a community correction order.

Grounds of appeal: Whether inconsistencies between the complainant’s description of the relevant events in evidence and that provided to police made the jury’s verdict unsafe and unsatisfactory.

Held: Appeal was dismissed.

The jury was entitled to accept the complainant’s explanation of the inconsistencies. This was particularly so given the jury’s advantage of hearing the complainant give evidence and in the context of all the evidence (including objective evidence of strangulation). The jury’s acceptance of this evidence was sufficient to support the verdict of guilt on count 1.

Parker v Tasmania [2020] TASCCA 9 (12 June 2020) – Tasmanian Court of Criminal Appeal

‘Appeal against sentence’ – ‘Guilty plea’ – ‘History of abuse’ – ‘People affected by alcohol misuse’ – ‘Physical violence and harm’ – ‘Statistics’ – ‘Terminally ill victim’ – ‘Vulnerable victim’

Charges: Assault x 2

Case type: Second appeal against sentence

Facts: This is a second sentencing appeal by the appellant man in respect of 2 counts of assault on his female partner (see Parker v Tasmania [2019] TASCCA 16 (8 October 2019) . He plead guilty and his plea to one count was accepted in satisfaction of a charge of causing grievous bodily harm. The appellant was sentenced by Blow CJ to 4 years’ and 3 months’ imprisonment, with a non-parole period of 2 years, 9 months. He appealed on grounds the sentence was manifestly excessive and that the sentencing judge erred in determined the factual basis for sentence. Blow CJ resentenced him to 3 months longer than the original sentence with the same non-parole period. The offences were recorded as family violence offences.

The appellant struck the complainant, a terminally ill cancer patient, in the head with a teapot, and then pushed her, causing her to fall over. The fall caused the complainant’s hysterectomy wound to split open and her bowel to protrude. He had been drinking prior to the assaults. The appellant’s version of events differed from the complainant’s; the complainant’s sworn evidence was found to be more reliable.

The appellant’s lengthy criminal history included prior convictions for assault and for breaching family violence orders for violence towards an earlier partner and the current complainant. Factors in the appellant’s favour included the fact that he pleaded guilty, phoned the ambulance and did not flee from the scene, and admitted what he had done to the 000 operator and police. He left the complainant alone and bleeding to ask a neighbour for a cigarette. He recognised his violence was associated with his alcohol problem and sought treatment. The complainant was vulnerable and suffered terrible physical and mental health consequences as a result of the appellant’s actions ([11]). Aggravating features included that the assaults occurred in the context of a domestic relationship, the complainant suffered from a terminal illness and the appellant was her carer ([12]).

Ground: The second sentence was manifestly excessive.

Held: Appeal dismissed, Estcourt, Pearce and Geason JJ concurring.

Estcourt J considered Gregson v Tasmania [2018] TASCCA 14, a case which considered comparative sentencing statistics. In considering the "yardstick" of the available statistical and comparable sentencing data, Estcourt J held that the sentence imposed on the appellant was "heavy", but not plainly unjust or unreasonable. The appellant was sentenced on the basis that he did not intend or foresee the serious harm to the complainant, but the consequences of the assault were nevertheless egregious ([29]). As the sentencing judge noted, the situation was worse than that of a drunken man assaulting a terminally ill partner, because the appellant knew that the complainant had an untreated abdominal hernia. This made the breach of trust even greater ([30]).

Pearce J did not characterise the sentence as "heavy". Whilst the appellant did not intend or foresee the terrible harm caused, the likelihood of such harm ought to have been obvious to any reasonable person with knowledge of the complainant’s vulnerability ([35]).

Geason J agreed with Estcourt J’s characterisation of the sentence as "heavy". His Honour noted that "this Court has on a number of occasions emphasised the importance of general deterrence in sentencing for offences involving the infliction of violence on the vulnerable", which frequently occur in a domestic or relationship setting, and that "[s]uch conduct requires a sentence that reflects the insidious nature of such offending, and the importance of protecting those vulnerable to such harm" ([41]).

Director of Public Prosecution v Johnson [2020] TASCCA 4 (8 April 2020) – Tasmanian Court of Criminal Appeal

‘Alcohol misuse’ – ‘Appeal against sentence’ – ‘Attempt to interfere with witness’ – ‘Coercive control’ – ‘Controlling, jealous and obsessive behaviours’ – ‘History of abuse’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Stalking.’ – ‘Suffocation’ – ‘Use of family members’

Offences: Assault x 2; Stalking x 1; Attempt to interfere with a witness x 1; Breaching a family violence order x 15; Attempting to breach a family violence order x 23

Proceedings: Crown appeal against sentence

Issue: Whether the sentence was manifestly inadequate

Facts: The male respondent and female victim were in a relationship and had moved in together. The respondent was arrested for breaches of a protective order made for the benefit of the victim, sentenced and a 12-month family violence order was imposed consisting of full non-contact conditions. Nine days later, the respondent made contact with the victim in breach of the order, promising he had changed. The respondent called the victim telling her he had paid for a hotel for the two of them to meet. The victim agreed and when she arrived, they had consensual sexual intercourse. They then consumed a fair amount of alcohol. Later that evening, the victim received a text message from a male friend. The respondent became aggressive and claimed the victim had been cheating. He pushed her head onto the bed and struck her face four times, pulling a clump of hair out. The respondent went to the bathroom for a few minutes and when he returned, he pushed the victim’s face into a pillow and sat on her back so that she couldn’t move. The victim thought she was going to die. The respondent eventually let her go but grabbed her arm and told her she would never see her children again. The victim told the respondent that she had to use the bathroom; she went inside, locked the door and sat in the shower. The respondent banged on the door, but the victim came out when he stopped. She asked to be allowed to sleep; the respondent allowed her to while he was holding her arm.

The next morning, the victim called her sister to tell her what had happened, asking her to pick her up. The victim reported the matter to police. Over the next few days, the respondent sent torrents of text messages and made numerous calls to the victim, which ranged from threats to pleading. He later had his father pass two letters onto the victim, asking her to withdraw the charges and refuse to give evidence. The victim refused. The respondent was convicted and sentenced to two years’ imprisonment with a non-parole period of twelve months.

Judgment: The court allowed the appeal, finding the sentence to be manifestly inadequate in that it "[fell] short of that required to adequately respond to the gravity of the offending" [41], and resentenced the respondent to three years’ imprisonment with a non-parole period of 18 months. The court held that "Apart from the fact that the offending occurred in breach of court orders intended to protect a vulnerable female, the respondent's conduct involved acts of significant persistent violence including suffocation, followed by persistent attempts to have her drop the charges or refuse to give evidence; and stalking" [31]. The court emphasised that "Offending occurring in the privacy of the home, unseen, and away from help must be met with a penalty that serves as a warning to others that detection and conviction will result in severe consequences" [31].

The court condemned suffocation, providing that "The fact that the respondent's conduct included suffocation has significance to the assessment of the objective seriousness of the offending. Suffocation should be treated with the same level of seriousness as is afforded strangulation or throttling. Such conduct is inherently dangerous, and capable of causing serious consequences within a very short period. It renders victims incapable of acting to protect themselves … it is a form of dominance and control which has the potential to cause grave psychological harm, serious injury and even death" [33]. The court held this to be an aggravating factor, along with the fact that the offending occurred just 12 days after the respondent was released and that the respondent attempted to interfere with prosecution of the case [34]-[35]. The court noted that "the objective seriousness of the offending was very high encompassing serious assaults in circumstances where help was not available, followed by a series of attempts to avoid prosecution. Because that sort of interference has a probability of success, to the detriment of the safety of the victim and the frustration of community attempts to protect the vulnerable, gaol should be the inevitable consequence of such conduct" [37].

The court concluded that:

"the prosecution of family violence matters is notoriously difficult due to the vulnerability of victims to interference and pressure from perpetrators, with whom they will often have been in a relationship … the circumstances of this case make it an appropriate vehicle through which to assert a general principle that conduct directed at interfering in the prosecution of family violence matters so significantly erodes the administration of justice that it should attract a heavy sentence of imprisonment. This is important to encourage community participation in reporting such violence, and to provide confidence in the processes which follow reporting. The importance of this principle prevails over the matters referred to by the respondent in respect of his rehabilitation and parole" [55]. And further, "Prosecutions are the cornerstone of the system for the protection of victims. They serve to expose the offending, protect the victim and afford an opportunity for intervention directed towards the rehabilitation of the offender" [54] and that "A message needs to be sent to violent men in the community that serious assaults on females and intimidatory and stalking behaviour, and behaviour designed to persuade a witness not to give evidence, will result in considerable periods of imprisonment" [74].

Hardwick v Tasmania [2020] TASCCA 2 (20 March 2020) – Tasmanian Court of Criminal Appeal

‘Assault’ – ‘Assault of child’ – ‘Children’ – ‘Error in assessment and use of evidentiary material relevant to sentence’ – ‘Manifestly excessive’ – ‘No prior convictions’ – ‘Non-fatal strangulation’ – ‘Parenting dispute’ – ‘People affected by alcohol misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Separation’ – ‘Spousal assault risk assessment guide’ – ‘Suicide threat’ – ‘Trespass’

Charges: Aggravated burglary and assault x 1; Common assault x 1.

Case type: Appeal against sentence

Facts: The appellant man pleaded guilty to aggravated burglary and assault, and to a summary offence of common assault. He was sentenced to 2 years’ and 6 months’ imprisonment on various conditions. The crimes were committed in the context of a domestic relationship against his wife (the victim) and teenage son. The appellant and victim had separated after 22 years of marriage, and had 3 children. On the day of offending, the appellant attended the family home where the victim and children lived, having been denied contact with the youngest child, after having consumed a considerable amount of alcohol. He smashed into the home and choked and punched his wife and teenage child. The sentencing judge was satisfied that the appellant was not coping well with the dissolution of the marriage. The appellant had attempted suicide, and the family was concerned about his psychological state. He breached an agreement that he was not to attend the home without the victim’s consent, and was therefore a trespasser. The sentencing judge made a family violence order and directed that the crimes and summary offence be recorded on the appellant's criminal record as family violence offences.

Issue: The appellant appealed against the sentence on the ground that it was manifestly excessive. It was also contended that the sentencing judge erred in his assessment and use of evidentiary material relevant to sentence. Underlying much of this submission was the complaint that the sentencing judge should have relied on a pre-sentence report which concluded that the appellant presented ‘a low risk of future family violence’. The appellant also submitted that the sentencing judge misused or gave undue weight to statements in the Victim Impact Statements, in particular, the description of the effects of the act of choking.

Held: The learned judge’s sentencing considerations were discussed again on appeal ([20]-[27]). The appellant had not previously committed any criminal offences and had a "significant potential for employment". Whilst the offending was not premeditated, the medical evidence stated that he was suffering from an adjustment disorder at the time of the offending. As to the likelihood of future violence, a psychologist used a ‘structured professional judgment tool’ (SARA) designed to predict intimate partner violence recidivism. Based on the SARA, the appellant was assessed at being at moderate risk of further violence towards the victim. The combination of the SARA and other ‘red-flag’ risk factors led the psychologist to conclude that the appellant still posed a risk to the victim. Further, notwithstanding his guilty plea and cooperation in the proceedings, the appellant lacked insight and remorse and minimised the severity of his conduct. There was a need for personal deterrence as his personality traits, such as narcissism, predisposed him to having a ‘severe explosive reaction to the relationship separation’.

The appellant contended that the sentencing judge should have accepted the assessment of the probation officer in the pre-sentence report over the SARA. The Court held that the sentencing judge was not bound to accept the officer’s assessment or the reliability of the appellant’s statements to the officer ([36]). The officer was not provided with the SARA conducted by the psychologist, and took the appellant’s statements at face value ([37]). The officer’s assessment therefore provided a less reliable basis for findings relevant to sentence than the SARA ([39]-[40]).

Further, there was no basis for concern that the sentencing judge misused the Victim Impact Statements. In his sentencing remarks, he noted the victim's description of the terror she experienced while being choked and said it was "clear" that she perceived the choking as a "potentially lethal attack and felt powerless" to stop the appellant. He also described the violence as "unexpected, explosive, and unrestrained", and concluded that the assault was "brutal" with the potential to inflict serious injury ([50]). In relation to strangulation, the sentencing judge found:

"Attempted strangulation which does not result in death or physical injury, can still have long-term physical and psychological impact, and leave the victim susceptible to ongoing symptoms. In criminal assault such acts are generally used to subdue and force compliance by the victim without any real thought being given to the danger inherent in such conduct. Those dangers were clearly apparent in your actions in this case. Your rage and lack of restraint meant that you had no real capacity to judge or moderate your attack, and the complainant was therefore in real danger of serious injury or worse."

The Court of Appeal held that there was ample foundation in the evidence to support the sentencing judge’s remarks. His Honour correctly regarded the choking as a "particularly concerning aspect" of the assault, and appropriately considered the dangers attached to the appellant’s conduct as part of his overall assessment of the gravity of the offending ([52]-[53]). He also observed that the appellant’s conduct "constituted an extremely serious episode of family violence" ([63]). The Court of Appeal acknowledged that the choking of female victims by male offenders is understood by criminal courts as a "prevalent and dangerous feature of violence perpetrated in domestic circumstances" ([53]). Victims of domestic violence are vulnerable and the crimes are often committed in breach of the sanctity and safety of the family home ([64]). It referred to DPP v Foster and Gregson v Tasmania as support for the propositions that women in domestic circumstances are particularly vulnerable and violent behaviour by men towards women "must be condemned and discouraged" ([65]).

Consequently, the appeal was dismissed. Notwithstanding the appellant’s prospects of successful rehabilitation, he engaged in dangerous and distressing conduct against his wife and child and remains an ongoing risk of future violence ([66]-[70]).

Parker v Tasmania [2019] TASCCA 16 (8 October 2019) – Tasmanian Court of Criminal Appeal (This decision was the subject of an unsuccessful appeal - Parker v Tasmania [2020] TASCCA 9 (12 June 2020))

‘Appeal against sentence’ – ‘Physical harm and violence’

Charge(s): Assualt; Causing grievous bodily harm

Proceedings: Appeal against sentence

Grounds:

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1a. The sentencing judge erred by making factual findings inconsistent with the unchallenged assertions of fact by the defence;

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1b. The findings of fact made were objectively more serious than those asserted by the defence and led to the imposition of a sentence that was manifestly excessive

•

2. The sentence was manifestly excessive.

Facts: Appellant man pleaded guilty to two counts of assault against his then female domestic partner. The plea of one of the counts was accepted by the Crown in satisfaction of a charge of causing grievous bodily harm. The appellant was convicted and sentenced to four years and three months imprisonment with a non-parole period of two years and nine months.

The appellant and complainant had been in a domestic relationship for about five years. The complainant was diagnosed with terminal ovarian cancer in May 2017, whilst the appellant was in prison for driving offences from April to August 2017. The complainant had treatment and on the appellant’s release he was her carer. She had a number of hospitalisations and had had a hysterectomy in July. On 27 September the appellant and complainant had a prolonged argument after he had been drinking all day. The appellant struck the complaint in the back of the head with a teapot during the course of an argument. He then pushed the complainant over, causing her to strike her head on a hard item of furniture. The fall caused her surgical wound to rupture and her bowel to protrude. The complainant required immediate surgical treatment and was later assessed that have suffered an evisceration of her small bowel, an abrasion to her nose, a laceration to the back of her head, grazes to her hands and left knee, and was developing bruises [8]. The appellant was heavily intoxicated at the time of the offence.

Judgment: The appellant’s sentence was quashed and the matter was remitted to the sentencing judge for resentencing.

Counsel for the appellant submitted that "there were a number of inconsistencies between the facts asserted to the sentencing judge by the Crown and the defence" [11]. Justice Pearce noted that the only difference that was of consequence was the immediate circumstances of the assaults as the circumstances would inform the objective gravity of the assaults and the appellant’s culpability. Reviewing the sentencing judge’s reasons, Pearce J found that "the sentencing judge either did not realise, or ignored, the inconsistencies" between the versions [15]. By ignoring these inconsistencies, the "exercise of the sentencing discretion miscarried" [22]. Given that the sentencing judge imposed sentence on the basis of disputed facts, the first ground of appeal succeeded [22]. Although the first ground succeeded, Pearce J provided that "[n]o assessment of the remaining grounds of appeal asserting that the sentence is manifestly excessive can be undertaken until the proper factual basis of sentence is determined" [23].

Director of Public Prosecutions v Foster [2019] TASCCA 15 (12 September 2019) – Tasmanian Court of Criminal Appeal

‘Appeal’ – ‘Coercive control’ – ‘Domestic relationship’ – ‘Family violence order’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Strangulation’

Charges: 5 x assault; 1 x demanding property with menaces with intent to steal

Case type: Appeal against sentence

Facts: The respondent pleaded not guilty to 5 counts of assault and 1 count of demanding property with menaces with intent to steal. The offences committed by the respondent occurred during the course of a domestic relationship. He was found not guilty of 3 counts of assault, but guilty of the remaining counts. The learned sentencing judge sentenced the respondent to 16 months’ imprisonment with a non-parole period of half of that term. His Honour also made a Family Violence Order.

The DPP appealed against the sentence on the sole ground that it was manifestly inadequate. The appellant submitted that the respondent committed 2 serious assaults, both of which were prolonged and involved strangulation. The crime of demanding property with menaces with intent to steal was arguably serious as it was committed during a prolonged attack and involved threats to kill the complainant and her children. It was also submitted that these matters were not isolated as they occurred in the context of a violent and abusive relationship ([13]).

Issue: The question for the Court was whether the sentence was manifestly excessive or inadequate.

Held: The sentence of 16 months’ imprisonment was found to be manifestly inadequate, having regard to the seriousness of the offending in the context of the domestic relationship ([42]). Estcourt J accepted that appellant’s submissions as ‘undoubtedly correct’ ([19]). Each incident involved ‘vicious and cowardly attacks by the respondent on a woman’. The respondent had convictions for violent offences, including ones of family violence. Citing an article by Heather Douglas and Robin Fitzgerald, his Honour observed that ‘strangulation is a form of power and control that can have devastating psychological long-term effects on its victims in addition to a potentially fatal outcome’ ([26]). It can cause loss of consciousness and lead to a sudden death ([27]). Further, the respondent’s prior convictions indicated that the present offences were not isolated or unusual. He did not plead guilty and did not show any remorse ([28]). His Honour allowed the appeal, set aside the sentencing order and imposed a new sentence of 2 years and 6 months’ imprisonment, with parole eligibility after serving half of that sentence. The Family Violence Order made by the learned sentencing judge was undisturbed ([36]-[37]). Brett J and Marshall AJ agreed with Estcourt J’s reasons.

Gregson v Tasmania [2018] TASCCA 14 (31 August 2018) – Tasmanian Court of Criminal Appeal

‘Coercive control’ – ‘History of domestic violence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Vulnerable grounds’ – ‘Women’

Charges: Assault x 2.

Appeal type: Appeal against sentence.

Facts: The appellant had violently attacked his vulnerable female partner with whom he was in a domestic relationship. The parties were arguing, mostly about the appellant’s intoxication and his lifestyle, characterised by his drug and alcohol abuse. The appellant delivered numerous forceful punches to the victim’s face, and shortly afterwards, returned and delivered more forceful blows to her head. She did not sustain any fractures, but the conduct was unprovoked and caused her to suffer nightmares. Estcourt J sentenced the appellant to two years’ imprisonment with a non-parole period of 18 months.

Issues: Whether the sentence was manifestly excessive.

The appellant submitted that:

•

He was sentenced during ‘women’s month’ which may have influenced the sentencing judge’s decision.

•

The sentencing judge failed to take into account that immediately before the second assault, the appellant was ‘assaulted by the victim with a large serrated-edge kitchen knife’, and acted in ‘self-defence’.

•

He should have been sentenced in the Magistrates Court.

Decision and reasoning: The appeal was dismissed. The Court agreed with the sentencing judge’s description of the offending as a ‘cowardly attack’ and his observation that ‘Vulnerable women such as the complainant are entitled to the protection of the law against brutal partners, and the community expectation is that such protection will be provided by the Courts’ ([29]). Although he did not use a weapon or kick the victim, the nature and strength used was not insignificant. The Court held that although the appellant should not be re-punished for his prior criminal conduct, he was not entitled to any leniency. The Court noted that the appellant had a history of violence towards women. The prevalence of this type of conduct impacts on the community at large. Women in domestic circumstances are particularly vulnerable to the abuse of power and breach of trust by violent male partners (Director of Public Prosecutions v Karklins [2018] TASCCA 6 [54]–[60]). Women who become victims in these circumstances, and other potential victims in the community, are entitled to such protection as the law can provide by the imposition of sentences that will act as both a personal and general deterrent ([37]). Whilst the sentence of two years’ imprisonment was towards the upper end of the appropriate range of the sentencing discretion, it was not manifestly excessive, harsh or unjust. Having regard to the appellant’s record of prior offending and disregard for court orders, the sentencing judge was found to be lenient in fixing a non-parole period, and the non-parole period of 18 months was within the range of sentencing discretion.

Director of Public Prosecutions v Karklins [2018] TASCCA 6 (20 April 2018) – Tasmanian Court of Criminal Appeal

‘Appeal against sentence’ – ‘Coercive control’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Listening to Victims’ – ‘Physical violence and harm’ – ‘Pregnant people’ – ‘Sentencing’ – ‘Systems abuse’ – ‘Vulnerable groups’

Charges: Assault x 1; Assault on a pregnant woman x 3; Attempt to interfere with a witness x 5; Destroying property x 1.

Appeal type: Prosecution appeal against sentence.

Facts: The respondent and complainant had been living together for 5 months with the complainant’s son ([6]). The complainant was 4 weeks pregnant at the time of the offences ([7]). The respondent threatened to leave the complainant, but the complainant asked him to stay ([9]-[10]). The respondent threatened to kill her and the baby. He headbutted the complainant and strangled her three times, causing her to lose consciousness twice ([13]-[16]).

The respondent was arrested and on remand. The respondent told a friend to tell the complainant that if she retracted her statement, he would ‘consider getting back with her’ ([22]). The complainant did so ([23]). The respondent was sentenced to 1 year and 10 months’ imprisonment with a non-parole period of 11 months.

Issues: Whether the sentence was manifestly inadequate.

Decision and Reasoning: Geason J emphasised aggravating features of the case, such as the fact that the respondent had the opportunity to reflect on his conduct between each attack ([55]), that he did not seek help for the complainant ([51]), that the crimes were committed in the context of a domestic relationship ([54]), and that the complainant was unable to defend herself ([50]). Mitigating considerations included the fact that the respondent pleaded guilty early ([61]).

In relation to the charges of interfering with a witness, Geason J at [56] remarked on the importance of such charges in aiding the administration of justice in relation to domestic violence:

The respondent's attempts to frustrate his prosecution should also be seen as particularly serious matters. They were a cynical exercise in emotional blackmail … Domestic violence typically occurs behind closed doors, making detection inherently difficult. Relationship dynamics frequently militate against a prosecution. Conduct directed at interfering with the prosecutorial process undermines the system intended to afford protection to victims of violence, making an inherently difficult process more so … It should be accepted in cases of family violence that attempts to interfere with the due administration of justice by the means of emotional manipulation of a vulnerable victim is a serious matter the consequences of which will always be severe.

Geason J referred to R v Kilic [2016] HCA 48, where the High Court stated at [21] that sentencing practices for offences involving domestic violence may ‘depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’. His Honour at [92] subsequently justified interfering with the sentence on the basis that:

Domestic violence is properly regarded as a most serious form of offending, frequently hidden from view, and thus difficult to detect. The court has a symbolic function. Censure for domestic violence should be communicated through the sentences which are imposed.

His Honour cautioned against giving weight to the complaint’s forgiveness of the respondent ([77]). His Honour questioned the sentencing judge’s generous characterisation of the respondent’s conduct during the assault ([83]-[86]).

Price v Tasmania [2016] TASCCA 22 (6 December 2016) – Tasmanian Court of Criminal Appeal

‘Assault’ – ‘Extraordinary case’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Public protection’ – ‘Unlawful assault causing bodily harm’

Charge/s: Assault x 3; unlawful act intended to cause bodily harm x 1.

Appeal Type: Appeal against sentence.

Facts: The male appellant and the female complainant were in a relationship. The three assault counts occurred in August 2014 and April 2015 after the appellant had been drinking. The appellant punched the complainant in the face, choked her, and fractured her wrist. The final count occurred in June 2015 when, after an argument, the intoxicated appellant threw petrol on the complainant and ignited her. The complainant’s daughter heard the screams and rescued her mother. The appellant was sentenced to ten years imprisonment with a non-parole period of six years.

Daley v State of Tasmania [2016] TASCCA 10 (22 August 2016) – Tasmanian Court of Criminal Appeal

‘Aggravating factor’ – ‘Children’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relevance of impact on children’

Charge/s: Murder x 2.

Appeal Type: Appeal against sentence.

Facts: The 60 year old appellant murdered his former partner, 31 year old Meagan Wilton, and her new partner, 34 year old Benjamin Eyles, by shooting them with a shotgun. The appellant and Ms Wilton had a 21 month old son together, and Ms Wilton had two other girls, aged 12 and 9. Ms Wilton’s youngest daughter and the appellant’s son were in the house at the time of the murders. After leaving the premises, the appellant tried to commit suicide by shooting himself in the head. He suffered brain damage, lost the ability to walk, and required visual and hearing aids. He pleaded guilty and was sentenced to 45 years imprisonment, with a non-parole period of 25 years.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Estcourt J provided the lead judgment, with Blow CJ and Brett J agreeing but providing additional comments. Relevantly, Blow CJ stated that while the punishment here was significant and that there were a number of mitigating factors in the circumstances, these carried little weight in light of the aggravating factors of this case. As per His Honour: ‘[t]hese were deliberate killings. They were premeditated. They were motivated by vindictiveness towards a former partner’ (see [4]). Moreover, ‘[t]his was a case in which the impact of the killings on survivors [was] particularly significant’. The children who were present in the house could suffer long-term psychological or psychiatric consequences (see [5]). Further, the impact of the crime would be felt by family members raising the children, and police officers who worked on this case.

Devine v Tasmania [2015] TASCCA 19 (26 August 2015) – Tasmanian Court of Criminal Appeal

‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Deterrence’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Vulnerable - new partner’

Charges: Aggravated burglary, Unlawful act intended to cause bodily harm, Breach of family violence order, Motor vehicle stealing, Destroying property

Appeal type: Appeal against sentence

Facts: The appellant and the protected person had been in a domestic relationship that ended towards the end of 2012. As a result of the appellant threatening to cut her throat and burn her house down, the protected person moved away from Hobart. Early in 2015, her house was burnt down, although no one was charged. The protected person then moved back to Hobart and entered into a new relationship. The appellant threatened her new partner, resulting in a family violence order restraining him from approaching the protected person.

On the day of offending, the appellant went to the protected person’s home, kicked the front door, smashed a window, drew a knife and threatened to kill her. The appellant then lunged towards the protected person who cut her hand as a result of trying to stop him. When the protected person’s partner came to assist, the appellant was holding the knife to the protected person’s throat and threatened ‘Why shouldn’t I kill him’. When her partner attempted to separate them, the appellant stabbed him in the stomach. In relation to this conduct the appellant was charged and pleaded guilty to one count of aggravated burglary, two counts of committing an unlawful act intended to cause bodily harm, three breaches of a family violence order, one count of motor vehicle stealing, and one count of destroying property. He was sentenced to seven years’ imprisonment with no non-parole period.

The appellant had a long history of dishonest and violent offending commencing from childhood. When given the benefit of suspended sentences, bonds and parole in relation to these offences, the appellant breached them. A psychologist’s report noted the appellant had extremely low to borderline intellectual functioning and could be considered to have a mild intellectual disability. This was substantially the result of substance abuse in the view of the psychologist. The sentencing magistrate did not consider this as a mitigating factor, concluding there was a significant risk he would re-offend and therefore there was a need for specific deterrence.

Issue: Whether the sentence was manifestly excessive due to the magistrate failing to order a non-parole period.

Decision and reasoning: The appeal was dismissed.

Tennent J, with whom Porter and Pearce JJ agreed, held that the issue of whether or not to order a parole period is a matter for the discretion of the sentencing judge. His Honour took into account the relevant factors including the appellant’s offending history and disregard for orders in refusing to grant a non-parole order. The psychologist report did not suggest rehabilitation was likely. The sentencing judge therefore did not err in failing to order a non-parole period and the sentence was not manifestly excessive.

Connelly v Tasmania [2015] TASCCA 15 (29 June 2015) – Tasmanian Court of Criminal Appeal

‘Aggravating factor’ – ‘Arson’ – ‘Attempted murder’ – ‘Denunciation’ – ‘Double jeopardy in sentencing’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing’

Charges: Attempted murder (two counts)

Appeal Type: Appeal against sentence

Facts: The appellant’s relationship with his wife deteriorated after she told him that she had a sexual relationship with another man. She moved out of the family home. The appellant attempted to kill his two sons by blowing up the family car when they were sitting in it with him. He was unsuccessful but he caused an explosion and a very fierce fire. His two sons suffered life-threatening burns. Their injuries are ongoing and they will have ‘functional and cosmetic problems for life’. They are at risk of ongoing psychological harm. The impact on their mother was devastating. The trial judge was satisfied that the appellant intended to kill the boys to ‘deprive his wife of them’ or to ‘spite his wife’ ([29]). He was sentenced to 20 years’ imprisonment with a non-parole period of 15 years.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld in respect of the non-parole period. Estcourt J (with whom Tennent J agreed) held that the head sentence of 20 years was not excessive. The offending was serious and both victims were young children. However, Estcourt J noted that there was one act that impacted both victims. While the sentence encompassed the entirety of the appellant’s criminal behaviour, he should not be sentenced for his conduct twice.

Counsel for the appellant submitted that even if the head sentence was not excessive, the non-parole period was excessive because of factors such as his lack of prior relevant offending, the unlikelihood of any re-offending ‘given the crime was directly related to his family circumstances’ and the fact that ‘it could not be said that the appellant’s “incorrigibility” justified the setting of the non-parole period at 75% of the head sentence’ ([38]). Estcourt J (Tennent J agreeing) accepted these submissions notwithstanding the appellant’s almost complete lack of remorse and reduced the non-parole period to 12 years.

Wood J agreed with Estcourt J’s reasoning with respect to the head sentence but dissented in regards to the non-parole period. At [7]-[21], her Honour engaged in general discussion about the applicable principles in determining the most appropriate non-parole period. Wood J then noted at [23] a number of considerations relevant to the nature of the crime. These included that it involved deliberate acts to kill two young children, the appellant’s ‘vindictive motive to inflict maximum anguish and emotional trauma upon his wife’, his son’s extensive injuries and degree of emotional suffering and physical pain, risks to their psychological well-being and the torment and harm suffered by his wife. It was appropriate for the sentencing judge to give effect to the aims of denunciation and retribution and, ‘the goal of assuaging informed moral outrage of the community, reasserting society's values and giving proper weight to the harm done to the victims’ ([24]).

Groenewege v Tasmania [2013] TASCCA 7 (26 July 2013) – Tasmanian Court of Criminal Appeal

‘Arson’ – ‘Assault’ – ‘Course of conduct’ – ‘Denunciation’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Risk factor - strangulation’ – ‘Sentencing’

Charges: Arson, Assault

Appeal Type: Appeal against sentence

Facts: The appellant suffered from depression and became abusive and intimidating towards his wife. After she ended the relationship, the appellant became angry and upset. He cornered his wife in a shed, pushed her to the chest, grabbed her around the throat and squeezed for four seconds, causing her to become very fearful. The appellant asked to see his four children. His wife then walked with him to the car, got in and locked the doors before attempting to drive off and call the police. However, the appellant grabbed the vehicle and punched the window, which caused it to shatter. His wife then attended her children’s school. Meanwhile, the appellant poured methylated spirits onto the main bedroom of their house, set fire to the bed and left knowing the bed was on fire. The house was damaged beyond repair. An insurance claim was denied. The impact of the offending on the appellant’s wife and children was very significant. He was sentenced to four years and six months’ imprisonment, with a non-parole period of two years and nine months.

Issues:

1.

Whether the sentence was manifestly excessive.

2.

Whether the trial judge erred by placing too much weight on general deterrence given the appellant’s mental health condition.

Decision and Reasoning: The appeal was upheld in respect of issue 1.

1.

The appellant submitted that various mitigating factors existed ([39]) and that the sentence was outside the range of permissible sentences for arson. Further, the appellant submitted that the assault was brief and no physical harm was caused. The respondent conceded that the assault would not add to a sentence imposed for arson, but submitted that it was relevant as a course of conduct and to demonstrate the appellant’s attitude towards his wife ([44]). Porter J (with whom Wood J and Tennent J agreed) held that while the head sentence was very high, it was not outside the permissible range: ‘The appellant intentionally set fire to the house and intentionally caused its entire destruction. His motive for doing so was to exact some sort of vengeance on his estranged wife intending to destroy his wife's interest in the building and its availability as a home’…‘This was obsessive and possessive conduct, involving some violence, committed in the aftermath of a broken relationship. It is the type of conduct which simply cannot be tolerated’ ([52]-[53]).

Nevertheless, the non-parole period was found to be excessive. Porter J noted that in considering the length of a non-parole period, the issue is whether the period makes the sentence manifestly excessive, ‘"sentence" in this context, being used in a broader sense’ ([56]). The non-parole period amounted to a little over 60% of the head sentence. Given factors such as the appellant’s prior good character, his mental health condition and apparent remorse ([60]), the non-parole period made the overall sentence manifestly excessive and was therefore reduced to one half of the head sentence.

2.

The appellant submitted that his psychiatric condition affected his ability to properly consider the consequences of his actions, such that it was inappropriate for general deterrence to remain a large consideration in sentencing. Porter J (with whom Tennent J and Wood J agreed) held that notwithstanding the psychiatric condition, mood disorders are reasonably common in the community. As such, the sentencing judge was correct to conclude that the appellant was, ‘an appropriate vehicle by which to convey a message to the general community about the seriousness and likely consequences of this type of offending’.

Enniss v Tasmania [2012] TASCCA 10 (2 October 2010) – Tasmanian Court of Criminal Appeal

‘Assault’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Risk factor - strangulation’ – ‘Risk factor - weapon’ – ‘Sentencing’ – ‘Totality’

Charge: Assault (five counts)

Appeal Type: Appeal against sentence

Facts: The appellant lived intermittently with his partner (the complainant). The first count occurred when, during an argument, the appellant grabbed the complainant by the throat, forced her to the floor, punched her to the head multiple times and kicked her to the hip as she tried to stand up. The second assault occurred when the complainant was in her three-year-old child’s bed. The appellant pointed a knife at the complainant and threatened to stab her if she did not give him her phone (i.e. an assault by means of a threatening gesture). The child remained asleep throughout the incident. The next count occurred when the appellant kicked the complainant between the legs twice, which caused her to fall to the floor. The final count was again an assault by means of a threatening gesture and involved the appellant sharpening knives and threatening to kill or violently assault the complainant. The appellant was arrested but escaped on arrival at the police station and was not found until 10 days later. While the complainant did not suffer serious physical injuries, there were lasting psychological consequences for her and her daughter. The appellant had a significant criminal history. He was sentenced to three years’ imprisonment with a non-parole period of two years. Before being sentenced for these offences, he was sentenced to another 3 years’ imprisonment (with a two-year non-parole period) in respect of 50 unrelated offences. This resulted in an aggregate sentence of six years’ imprisonment with a four-year non-parole period.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. ‘The ordeal that the appellant inflicted on his partner was horrific. He had many opportunities to desist from assaulting her, but did so over and over again, with their young daughter in the house. It was an unusually bad case of family violence. The only appropriate penalty was a significant cumulative sentence of imprisonment.’ ([20]).

Counsel for the appellant submitted that the fact the appellant was unlikely to be granted parole (even if eligible) should have been taken into account in his favour. The Court rejected this argument, holding that this is not an appropriate consideration in determining the sentence. However, the magistrate imposed the two-year non-parole period for the assault offences so as to not impose a crushing sentence. If the head sentence of three years was ‘crushing’, a non-parole period should not be regarded as changing that situation because parole may not be granted. Given the length of the sentence in combination with the fact that the complainant suffered no physical injuries, the head sentence was disproportionate to the gravity of the offending and the aggregate term was also disproportionate. The appellant was re-sentenced for the assault offences to 18 months’ imprisonment with a non-parole period of 12 months.

Braslin v Tasmania [2011] TASCCA 14 (13 October 2011) – Tasmanian Court of Criminal Appeal

‘Admission of guilt’ – ‘Arson’ – ‘Circumstantial evidence’ – ‘Directions and warnings for/to jury’ – ‘Physical violence and harm’ – ‘Risk factor - separation’

Charge: Arson

Appeal type: Appeal against conviction

Facts: The appellant was tried by jury and found guilty of arson purely on the basis of circumstantial evidence. It was alleged that he unlawfully set fire to the house of his former female partner. She gave evidence that the night before the fire the appellant slept over at her place. She and the appellant argued the next morning as she was leaving the property. He called her a ‘leg-opening slut’ and said that if she left he was going to burn the house down. She left and not long after received a phone call from the appellant who asked whether she was ‘warm enough’. She returned home to find the house on fire. Evidence was also given by a neighbour that he heard the appellant and his former partner arguing that morning for 10 minutes. He ignored the argument and did not claim to have seen the appellant on the morning of the fire.

Before trial, the appellant pleaded guilty to breaching a family violence order on the day of the fire by approaching his former partner and calling her a ‘leg-opening cunt’. The Crown alleged that this amounted to an admission of guilt. At trial, the appellant asserted that he did not realise the significance of this date and that he had used those words but not on the day of the fire. The appellant’s younger sister provided the appellant with an alibi. She said he was asleep at their mother’s place on the morning of the fire.

Issues: Some of the grounds of appeal were:

1.

Whether the trial judge failed to correct the prosecution’s lack of adherence to the ‘rule’ in Browne v Dunn.

2.

Whether the trial judge failed to give an adequate warning in relation to the neighbour’s voice identification evidence.

Decision and Reasoning: The appeal was upheld and the conviction set aside.

1.

‘In the context of a criminal trial, the "rule" in Browne v Dunn (1893) 6 R 67 requires defence counsel to put to a Crown witness in cross-examination the case upon which the accused proposes to rely, to the extent that it is proposed to contradict the evidence of the Crown witness. Similarly, if it is proposed, as part of the defence case, to lead evidence of a fact which, if true, would be within the knowledge of a Crown witness, it is usually expected, at least in this State, that defence counsel will put that part of the defence case to the Crown witness in cross-examination’ ([21]). Here, the Crown did not do this and sought to rely on such evidence in summing up. The trial judge did not correct this mistake in her directions to the jury and further she incorrectly directed the jury that they should be careful about the appellant’s sister’s evidence.

2.

The direction that the jury had ‘to clearly be careful’ about the identification evidence from the neighbour fell short of informing the jury that there was a ‘special need for caution.’ The trial judge said nothing about the reasons for that caution namely, the conviction of innocent persons as a result of mistaken identification by an apparently honest witness ([34]-[35]).

Supreme Court - Full Court

Legal Profession Board of Tasmania v W [2023] TASFC 1 (17 March 2023) – Tasmanian Supreme Court (Full Court)

‘Legal practitioner’ – ‘Offer to settle dispute by withdrawal of complaints to police’ – ‘Professional misconduct’ – ‘Protection order’ – ‘Unprofessional conduct’

Proceeding: Legal Profession Board appeal from finding of mere unprofessional conduct by a legal practitioner.

Grounds:

1.

The primary judge erred in holding that for a finding of professional misconduct both s 421(1)(a) and (c) of the Legal Profession Act 2007 (Tas) had to be satisfied;

2.

The primary judge erred in failing to make a declaration of professional misconduct having found that the respondent’s conduct constituted a serious failure to reach a standard of competence and diligence.

Facts: A client of the respondent was charged with two counts of common assault against his former wife who had been granted a protection order against the client.

The lawyer wrote to the complainant on behalf of his client, offering to settle their matrimonial property dispute on terms which included that “all legal pursuits and accusations cease including Tas. Police. All matters are then resolved, finalised”. The client was charged with perversion of justice. Despite this, the respondent wrote to the ex-wife’s lawyer offering again to settle the matrimonial dispute upon the withdrawal of the complaints. Senior counsel for the respondent conceded ground 1.

Reasoning and decision:

1.

Appeal allowed.

2.

Declaration of unprofessional conduct set aside.

3.

Declaration of guilt of professional misconduct made.

Estcourt J observed:

[1] I do not have the slightest doubt that it is professional misconduct for a lawyer to offer to settle a client's dispute with another person on the condition that the other person withdraw a criminal complaint that person has made against the client and which is pending before a court.

Estcourt J found that the gravity of the respondent’s attempt to have pending charges withdrawn or undermined constituted a “substantial failure to reach or maintain a reasonable standard of competence” within the meaning of s421(a) of the Legal Profession Act 2007 (Tas). This was regardless of the client’s instructions or whether the offers amounted to a crime.

The court rejected the primary judge’s reasoning that the two paragraphs in s421 were to be read conjunctively. However, it was found that even if that were correct, the conduct would still amount to professional misconduct (per Porter AJ at [33].

PQR v Sundram [2020] TASFC 10 (4 December 2020) – Tasmanian Supreme Court (Full Court)

‘Appeal against conviction’ – ‘Family law’ – ‘Federal circuit court order’ – ‘Inconsistency’ – ‘Meaning of "parental responsibility"’ – ‘Protection orders’

Charges: Breaches of police family violence order, breach condition of bail.

Proceedings: Appeal against breaches of police family violence order.

Facts: The appellant and his former wife had separated, and had two children. In 2014, the Federal Circuit Court made parenting orders which included provision for “equal shared parental responsibility”, and designated contact days. In 2018, police issued and served the appellant with a family violence order. This prohibited the appellant being within 50 m of the children (para 3), except in accordance with a court order (para 3(c)). It also prohibited the appellant being within 50 m of the children’s school where the children “may be present from time to time” (para 11). The appellant was charged with a number of breaches.

The Chief Justice dismissed charges relating to circumstances where the appellant was within 50 m of the children during contact periods allowed by the parenting orders and when the children were not present at the school. The Chief Justice found a charge proven, imposing a fine without recording a conviction, for an instance where the appellant attended the school on a non-contact day to speak to the principal while the child was there. The visit did not fall within the exception in para 3(c) of the family violence order, and breached para 11.

Grounds of appeal: The appellant's conduct in attending at the school on 24 July 2018 was permitted by the "Parenting Orders" made by the Federal Circuit Court which effectively restored the appellant his full rights as their father, including by having equal shared parental responsibility and a substantial and significant role in their lives, such that it cannot have been in breach of the police family violence order. There was inconsistency between the family violence orders and the parenting orders in the Federal Circuit Court and the orders of the Federal Circuit Court prevailed to the exclusion of the family violence order which underpinned the finding of guilt.

Held: The appeal was dismissed (Martin AJ, Pearce J agreeing). Martin AJ rejected the broad proposition that any constraint on the appellant’s ability to visit the school, at any time, necessarily created a relevant inconsistency between the parenting orders and the family violence order. Para 11 only applied when a child “may be present” and was not relevantly inconsistent with the appellant’s obligations (and rights) pursuant to the parenting order (at [47]-[49]).

In separate reasons and also agreeing with Martin AJ, Estcourt J also dismissed the appeal. While the family violence orders might “detract” from the appellant’s unqualified “parental responsibility” by limiting the means by which the appellant might communicate with teachers while the children were at school, those orders did not abrogate or nullify the appellant’s parental responsibilities. It could not be said that there was any relevant inconsistency between them and the parenting orders, or that the police family violence orders were incapable of operating “subject to” the Federal Circuit Court orders (at [15]-[17]).

Director of Public Prosecutions (Acting) v J C N [2015] TASFC 13 (27 November 2015) – Tasmanian Supreme Court (Full Court)

‘Aggravated assault’ – ‘Assault’ – ‘Bail’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘History of abuse’ – ‘Physical violence and harm’ – ‘Risk factor - separation’

Charges: Attempted aggravated assault, Breach of family violence order, Common assault, Damaging property

Appeal type: Appeal against order for bail

Facts: The respondent and the complainant had previously been in a relationship for more than two years. The complainant had two children. A family violence order was made against the respondent, restraining him from threatening, harassing or assaulting the complainant. On one occasion when the complainant went to the respondent’s house with her daughter and mother, the respondent seriously assaulted her and her mother. He was charged with two counts of assault and breaching the family violence order and was granted bail. Subsequently, the respondent breached the conditions of bail and the order when the complainant and her children stayed with him. After fighting the next morning, the respondent followed the complainant into shopping centre toilets, kicked in the door and punched her in the face twice. An interim family violence order was then made with a condition that he would not contact the complainant. In breach of that order, the respondent phoned the complainant seven times from prison. The respondent was sentenced for these offences to four months’ imprisonment and a new family violence order was made to protect the complainant and her children.

Just after a month after his release, the respondent seriously assaulted another female, his former partner, and was held in custody. While in custody, he phoned the complainant 19 times. He was then granted bail. After interviewing the complainant, the police discovered that the respondent had assaulted the complainant’s daughter by grabbing her bottom. He also threw a bar stool at the complainant and her son, striking him on the leg. The respondent then forced the complainant’s pants down and attempted to insert a plastic vibrator into her anus, witnessed by the two children. He then punched her five times in the face, bit her ear and pushed a hot cigarette butt into her forehead. The next morning the respondent emptied the complainant’s daughter’s school bag onto the floor and stomped on it, threatening ‘This is going to be your face’. He then grabbed her hair and pushed her against the wall. The respondent then threatened the complainant’s son that he would kill him, his sister and the complainant if the police were notified of the assaults.

In relation to this conduct, the respondent was charged with 35 counts of breaching the family violence order, one count of assault with indecent intent, five counts of common assault, three counts of damaging property, and one count of attempted aggravated assault. The respondent was granted bail, having satisfied the court that bail would not adversely affect the safety, wellbeing and interests of an affected person or child under s 12 Family Violence Act 2004 (Tas).

Issue: Whether the order for bail should be set aside.

Decision and reasoning: The appeal was allowed and the order for bail was revoked.

In favour of granting bail was that the respondent’s mother and father were both ill. His mother was prepared to offer a surety of $4,000 to secure his attendance at court and compliance with bail conditions. The respondent agreed to comply with a curfew and reporting conditions. However, there was a significant risk he would continue to offend if bail was granted when considering his history of breaching court orders and violent offending. There was also a considerable amount of evidence to prove guilt once at trial.

Supreme Court

Smith v Boarder [2022] TASSC 30 (16 May 2022) – Tasmanian Supreme Court

‘Costs of unsuccessful application to extend protection order’ – ‘Discretion to order costs s34 family violence act 2004 (tas)’ – ‘Protection order’ – ‘Relevance of objects of family violence act 2004 (tas) to costs order’ – ‘Separation’

Proceedings: Motion for costs for unsuccessful application to extend protection order pursuant to Family Violence Act 2004 (the Act), s 34.

Facts: On 19 February 2020 an interim protection order was granted to Ms Boarder. At the hearing of Ms Boarder’s application to extend the protection order for a further 3 years leave was refused, the interim order revoked and, following a further hearing on the issues, Mr Smith’s application for costs refused. The Magistrate held that the was no change in circumstances and the only contact between the parties during the term of the interim order was a letter delivered to Ms Boarder by Mr Smith, “which contained nothing which could reasonably be construed as abusive, threatening, intimidating or coercive”[8]. Both parties had been represented by counsel at the extension hearings.

Grounds of motion to review: The magistrate erred in dismissing the costs application in that:

(a) she took into account irrelevant matters, namely:

1. Ms Boarder 's subjective fear and psychological state; and

2. the objects of the Act as stated in s 3; and

(b) she acted on a wrong principle by misdirecting herself that "a holistic approach, rather than a compensatory approach, should be taken to the issue of whether costs should be ordered." [11]

Decision and Reasoning: Motion allowed; order of magistrate set aside; Ms Boarder is to pay Mr Smith's costs of the application for extension of a family violence order in the agreed sum.

The objects of the Act in s3 were relevant considerations but Ms Boarder’s demeanour while giving evidence, was, without more an irrelevant consideration. There was no finding that the fear Ms Boarder expressed related to any conduct of Mr Smith while the protection order was in force.

State of Tasmania v Matthew John Davey (Sentence) [2021] TASSC unreported (10 December 2021) – Tasmanian Supreme Court

Comments on passing sentence Brett J

‘Allegations of infidelity’ – ‘Arson threats’ – ‘Assault’ – ‘Attempted murder’ – ‘Burning’ – ‘Coercive and controlling behaviour’ – ‘Coercive control’ – ‘Extensive criminal history’ – ‘Following, harassing and monitoring’ – ‘Immolation’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Sentencing’ – ‘Severe physical injuries’ – ‘Threats to kill’

Charges: Attempted murder x 1; persistent family violence x 1.

Proceedings: Comments on passing sentence.

Facts: The male defendant was found guilty of persistent family violence and attempted murder. Throughout the defendant’s two-year relationship with the female victim, he used physical violence, verbal abuse, and threats as part of a ‘continuous… pattern of coercive control’. This included threatening to kill the victim by setting her car or house on fire, and slapping, striking or hitting the victim with objects. The defendant monitored and controlled the victim’s movements, communications and relationships with others, threatening to kill her if she left the relationship and detaining her at his house on at least two occasions. One assault occurred in relation to the defendant making allegations of infidelity, another after the defendant had consumed illicit drugs. The defendant attempted to murder the victim by using petrol to set her on fire during a physical altercation triggered by her attempting to leave the relationship. The victim was left with severe and lifelong physical injuries and post-traumatic stress disorder.

Issues: Sentencing.

Decision and Reasoning: The defendant was sentenced to 22 years and three months imprisonment, with a non-parole period of 14 years and 3 months, and the court made a family violence order for an indefinite period from date of sentencing.

In sentencing, Brett J considered denunciation, general and specific deterrence and community protection as key considerations due to the defendant’s ‘concerning history of violent offending’ and the court’s duty to ‘respond strongly’ to family violence. His Honour considered the defendant’s extensive criminal record and history of drug-abuse and noted that he was ‘entitled to some mitigation for the utilitarian value of pleading guilty to the persistent family violence charge’, which avoided a lengthy trial. In addressing the principle of totality, His Honour viewed it as appropriate for the defendant to serve each indictment cumulatively as each offence was ‘separate and distinguishable’. His Honour considered time spent in custody and reduced the defendant’s sentence accordingly. Finally, His Honour explained that the non-parole period was greater than the statutory minimum because of ‘the objective seriousness of the crimes’, the defendant’s ‘moral culpability’ and other key sentencing considerations.

State of Tasmania v Levi Joseph David Hall (Sentence) [2021] TASSC unreported (27 September 2021) – Tasmanian Supreme Court

Comments on passing sentence Pearce J

‘Breach of protection order’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘Following, harassing and monitoring’ – ‘History of domestic and family violence’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Sentencing’ – ‘Strangulation’ – ‘Technology facilitated abuse’ – ‘Threats to kill’

Charges: Persistent family violence x 1; breaching a police family violence order x 5.

Proceedings: Comments on passing sentence.

Facts: The male defendant lived with the female victim and her children for 12-months. The defendant entered pleas of guilty. Throughout their relationship, the defendant used ‘violence, intimidation, threats and abuse’ towards the victim in the context of his ‘generally violent, abusive and controlling behaviour. The defendant monitored and controlled the victim’s phone use, controlled when she left the house, and subjected her to physical violence in the presence of her children. On one occasion, the defendant strangled and threatened to kill the victim. A family violence order made in May 2019, was immediately breached by finding the victim, taking her to his friend’s house, and holding her there while subjecting her to physical abuse.

Issues: Sentence to be imposed.

Decision and Reasoning: The defendant was sentenced to imprisonment for 5 ½ years, with a non-parole period of 3 ½ years.

Pearce J viewed the defendant’s behaviour as a serious example of the crime of persistent family violence. His Honour highlighted that the offending included strangulation, which caused the victim to fear for her life and has had a ‘profound’ and lasting ‘psychological impact’. His Honour viewed the defendant’s repeated offending as discounting ‘any claim to… genuine remorse…’, and the fact that the offending was ‘committed in breach of a police family violence order’ as evidence of his ‘repeated refusal to comply with the law and… contempt of authority’. In sentencing, Pearce J considered the need for punishment and condemnation, and viewed the defendant’s ‘long and concerning record for violence… against women in particular’ as an ‘important factor in sentencing’. His Honour also considered the need to vindicate the victim and protect the community by imposing a sentence that achieved specific and general deterrence.

State of Tasmania v ARJ (Sentence) [2021] TASSC unreported (11 March 2021) – Tasmanian Supreme Court

Comments on passing sentence Pearce J

‘Allegations of infidelity’ – ‘Assault’ – ‘Coercive and controlling behaviour’ – ‘Exposing children to domestic and family violence’ – ‘Extensive criminal history’ – ‘History of family violence’ – ‘Jealous behaviour’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Pregnancy’ – ‘Rape’ – ‘Sentencing’ – ‘Stepchildren’ – ‘Threat to cause abortion’

Charges: Persistent family violence x 1, constituting 16 unlawful family violence offences: one rape, one assault of a pregnant woman and 14 assaults.

Proceedings: Comments on passing sentence.

Facts: The male defendant was found guilty following jury trial. The 16 offences constituting the charge were committed over 9 occasions during the defendant’s two-and-a-half-month relationship with his pregnant younger female partner. The defendant’s conduct began soon after the relationship started, and ‘was characterised by ongoing domineering conduct, torment and the exercise of power, control and intimidation’. The assaults included striking with a hammer, baseball bat and power cord, burning with a cigarette, and threats to cut with glass in addition to assaults without weapons. The rape was constituted by the forcible penetration of the victim’s genitalia by striking with a baseball bat and the assault of a pregnant woman was the attempt to stomp on the victim’s stomach with the stated intent to cause an abortion. Some of the offending occurred in the presence of the victim’s children. The defendant had a history of family violence and drug abuse. The defendant was sentenced to 6 years imprisonment, with a non-parole period of four years, and the court imposed a family violence order to remain in force for 7 years from the date of sentencing.

Issues: Sentencing.

Decision and reasoning: The defendant was sentenced to 6 years imprisonment, with a non-parole period of four years, and the court made a family violence order for 7 years from the date of sentencing.

Pearce J considered the offending in the context of the defendant’s criminal record, which included family violence offences, assaults, and breaches of family violence orders. His Honour considered the ongoing psychological impact of the offending on the victim, and the need for punishment, general and personal deterrence, vindication of the victim, and protection of the community’. ‘All of the offences were committed when you were subject to a family violence order… and while you were subject to electronic monitoring, thus displaying your contempt for the law and to court orders.’

Hopkinson v Wilkie [2020] TASSC 32 (3 July 2020) – Tasmanian Supreme Court

‘Assault in a domestic setting’ – ‘Consent’ – ‘Motion to review conviction’

Charges: Common assault.

Proceedings: Motion to review conviction by Magistrate.

Facts: The male applicant was found guilty of assaulting his female partner. The Magistrate found that the applicant hit the complainant in the head, pulled her hair and dragged her. The complainant kicked the defendant. The complainant gave evidence that she had a ‘mutual argument’ with the applicant and was not punched. Shelton (a witness to the incident) gave evidence that the applicant punched the complainant during a ‘verbal argument between them’. The magistrate accepted Shelton’s evidence and did not accept the complainant’s evidence or the applicant’s argument that there was consent, stating that a defence of consent ‘doesn’t apply to victims of domestic violence’.

Ground: The Magistrate erred in law in stating the defence of consent does not apply in the context of domestic violence.

Decision and reasoning: Motion to review dismissed.

As a matter of statutory construction, provisions relating to consensual violence as a defence do not include a ‘carve-out … for any category or class of cases such as domestic violence cases’ [34]. As a general statement of law, the defence of consent does not avail the applicant if ‘there either was no consent or if there was, the complainant did not consent to the degree of force involved in the assault’ [28]. Based on the magistrate’s findings of fact, the defence of consent was excluded.

Baker v Barratt [2019] TASSC 28 (4 July 2019) – Tasmanian Supreme Court

‘Administrative law’ – ‘Appeal against conviction’ – ‘Appeal and review’ – ‘Apprehended bias’ – ‘Coercive control’ – ‘Isolation’ – ‘Judicial review’ – ‘Motion to review’ – ‘People from culturally and linguistically diverse (CALD) backgrounds’ – ‘Physical violence and harm’ – ‘Procedural error of magistrate in not playing record of interview in open court’ – ‘Procedure and evidence’ – ‘Visa threats’

Charges: Common assault x 1.

Case type: Appeal against conviction.

Facts: The applicant man appealed against his conviction on a charge of common assault on the ground that the court erred in convicting him against "the preponderance of the evidence". The complainant, a Philippino woman who was applying for a visa, told the court that she had an argument with the applicant with whom she was in a relationship. During the course of the argument, she alleged that he slapped her in the face, twisted her arm and pushed her to the floor. He then allegedly tried to kick her. She also gave evidence that she rang a friend after the incident. The friend confirmed that this call was made and that the complainant had told him that she had been assaulted. He took photos of her for the purposes of recording the consequences of the assault. These were tendered along with the applicant’s record of interview. The applicant admitted in his video interview that he regularly threatened to withdraw support for the complainant’s Visa and controlled her access to a mobile telephone and the Magistrate identified this as evidence of the applicant’s controlling behaviour. The applicant denied the assault.

Issue: The issue for the Court was whether the Magistrate reasonably came to his conclusion on the evidence at trial.

Held: Geason J found that the applicant failed to establish that the Magistrate’s conclusion was not reasonably open to him. It was noted that the evidence was "of narrow compass" in that the applicant and complainant had engaged in a physical argument, evidenced by the bruising shown in the photographic evidence. Moreover, the Magistrate’s conclusions and reasons were found to be unimpeachable, and he was entitled to prefer the complainant’s evidence. This was because the complainant’s evidence was unshaken in cross-examination and corroborated in material respects by a third party ([13]-[15]).

A further issue on appeal was that of apprehended bias. Whilst the Magistrate had a familial relationship with the complainant’s employer, Geason J concluded that there was nothing in the conduct of the case or the reasons for the decision which gave the appearance of any pre-judgment based on that relationship ([21]).

Geason J also noted that the applicant’s record of interview was not played in court in its entirety, such that not all evidence was heard in open court prior to the court reaching its decision ([24]). The Magistrate elected to read the transcript of the interview rather than listen to it in full. His Honour was highly critical of this practice, emphasising that all evidence relied upon to prove a case should be heard in open court, and that the transcript itself was not evidence. The Magistrate ran the risk that something material to the case was not "seen" ([27]). Whilst this was considered to be an error, it did not give rise to any miscarriage of justice.

Irons v Moore [2019] TASSC 22 (22 May 2019) – Tasmanian Supreme Court

‘Application of Weissensteiner’ – ‘Consent and disclosure’ – ‘Evidence issues’ – ‘Hostile witness’

Charges: Assault x 1; Breach of protection order x 1.

Appeal type: Appeal against conviction.

Facts: The facts of both charges were the same: the appellant grabbed and punched the complainant in front of her children ([3]).

While giving evidence, the complainant claimed that she could not remember what happened on the day. The prosecution successfully applied to treat her as a hostile witness ([3]). The evidence was limited to circumstantial evidence and hearsay evidence of witnesses who saw the complainant’s injuries immediately after the assault ([4]). The magistrate found the appellant guilty of both charges and imposed a fine.

Issues: The sole ground of review is that on no reasonable view of the evidence could the magistrate have been satisfied of the appeallant’s guilt.

Decision and reasoning: The appeal was dismissed.

The principle in Weissensteiner v The Queen [1993] HCA 65 was considered, namely that a ‘hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused’ ([20]). In this case, while the complainant had given evidence, she could not remember what happened. Therefore, the only person who could have known how the injuries were inflicted was the defendant ([21]).

‘In the light of the evidence that force had been applied by the applicant to the complainant and in the absence of any contradictory or explanatory evidence from the applicant, I am satisfied that the application of force in lawful self-defence was not available to the magistrate as a reasonable possibility or hypothesis consistent with innocence.’ [24]

Cannell v G; G v Cannell [2018] TASSC 55 (1 November 2018) – Tasmanian Supreme Court

‘Breach of protection order’ – ‘Following, harassing and monitoring’ – ‘Meaning of harass’ – ‘Mens rea’ – ‘Physical violence and harm’ – ‘Safety and protection of victims and witnesses’ – ‘Systems abuse’

Charges: Trespass x 1; Making a false report to police x 1; Contravening an interim family violence order x 3.

Case type: Prosecution seeking review of dismissal of charges; defendant seeking review of charge proved.

Facts: The defendant and complainant were separated. The evidence in this case was contested by both parties.

The trespass charge occurred when the defendant entered the complainant’s house and did not leave when asked. The false report charge occurred when the defendant alleged that the complainant had struck him in the chest while she was telling him to leave. The first contravention charge occurred when the defendant approached the complainant in the Federal Circuit Court building. The complainant alleged that the defendant said ‘you’re all going down’. The magistrate was not satisfied that those words were spoken, but even if they were, they did not constitute a threat. The second contravention charge occurred when the defendant parked his car next to the complainant’s car during a handover of one of the children. The magistrate found that the defendant breached the order and that was no exception in the contact arrangement that would have allowed this ([39]). The third contravention charge occurred when the defendant approached the complainant on numerous occasions to serve her with an application for a restraining order ([43]).

Issues: Whether the Magistrate’s decisions were reasonably open on the evidence and whether the Magistrate gave adequate reasons.

Decision and reasoning: Brett J affirmed all the magistrate’s decisions.

Note: in relation to the third contravention of the restraining order, the defendant argued that the prosecution had not proved the ‘mental element’ of the charge because he did not intend to harass the complainant but rather serve her with legal processes. Brett J discussed the statutory definition of the word harass, which includes following the person or keeping the person under surveillance ([48]). His Honour considered that “there is no requirement that the defendant intend or otherwise foresee the causation of [an effect on the person harassed, eg worry, fear or mental anguish]” ([60]).

‘The evidence overwhelmingly supported the magistrate's conclusion that the defendant had harassed the complainant by following her, and that following her was deliberate and intentional…. Whilst the service of documents on the complainant was a legitimate purpose, it did not justify conduct on the part of the defendant that was in breach of the order. It goes without saying that there were other ways of achieving that legitimate purpose which did not involve contravention of the family violence order.’ [63]

His Honour considered that this construction is consistent with the relevant legislation, that is, to protect likely victims of family violence from likely perpetrators of that violence ([61]).

Harrison v Moore [2018] TASSC 53 (19 October 2018) – Tasmanian Supreme Court

‘Breach of protection order’ – ‘Evidence’ – ‘Following, harassing and monitoring’ – ‘oath on oath case’ – ‘Physical violence and harm’ – ‘Technology-facilitated domestic and family violence’ – ‘trivial breach’

Charges: Common assault x 2; Contravention of an interim family violence order x 1.

Appeal type: Appeal against conviction.

Facts: The complainant and applicant had two young children. The assault charges occurred on one day where the complainant alleged that the applicant punched the complainant in the face and kicked her in the head ([5]-[6]). The breach of the interim family violence order occurred when the applicant sent the complainant 4 text messages asking about her and the children ([26]).

The applicant gave evidence at the Magistrates Court trial alleging that he was acting in self-defence. The magistrate accepted the complainant’s evidence over the applicant’s ([10]).

Issues: Whether the finding of guilt was not reasonably open to the magistrate as a matter of law; whether the magistrate should have applied the principle of ‘de minimis non curat lex’ (the law should not concern itself with trifles).

Decision and reasoning: All grounds of appeal was dismissed.

There were 3 grounds of appeal in relation to the assault charge. Ground 1 of the appeal was that the finding of guilt was not reasonably open to the magistrate as a matter of law because the magistrate said she substantially accepted the complainant’s version of events but accepted aspects of the applicant’s version as well. This ground was rejected because the magistrate was entitled to do so ([14]-[15]).

In relation to the breach of the interim family violence order, the ground of appeal was that the magistrate should have applied the principle of ‘de minimis non curat lex’. This was because the magistrate found that sending the messages constituted breaches that were ‘trivial at best’. However, Brett J stated that the principle of ‘de minimis’ is likely not applicable in criminal proceedings ([33]). In any event, it was not applicable in this case because the Magistrate’s reference to ‘trivial’ should be seen as an indication of the relative seriousness of the breaches compared to other examples of that offence, not that the direct contact with the complainant was a trivial matter ([34]).

Bonde v Maney [2018] TASSC 23 (17 May 2018) – Tasmanian Supreme Court

‘Assault’ – ‘Dismissal of charges’ – ‘Evidence of respondent’

Charges: Common assault x 1.

Case type: Application for review of Magistrate’s decision to dismiss charge.

Facts: The complainant alleged that the respondent tried to grab the complainant’s car keys from her, injuring her fingers in the process ([3]). The respondent denied assaulting the complainant and alleged that the complainant injured her fingers when she was trying to retrieve her keys ([4]). After the prosecution case closed, the Magistrate immediately moved to judgement without giving the respondent the opportunity to give evidence ([5]). The Magistrate dismissed the charge of assault on the basis that she was not satisfied beyond reasonable doubt that the respondent deliberately or recklessly caused the injury ([5]).

Issues: The complainant argued that the magistrate erred in law by:

•

first, stating that the respondent must have intended the injuries for the charge of assault to be made out;

•

second, failing to give sufficient reasons as to why she was not satisfied that the charge was proven; and

•

third, dismissing the complaint when on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent.

Decision and Reasoning: The first ground was upheld because the causation of injury is not an element of assault ([7]-[8]). The second ground was also upheld because it was not possible to discern from the Magistrate’s reasons the factual basis for the determination ([15]). Therefore, it was not necessary to consider the third ground ([16]).

The case was remitted to be determined by another Magistrate ([20]).

Moore v Rittman [2018] TASSC 5 (13 February 2018) – Tasmanian Supreme Court

‘Appeal against sentence’ – ‘Conviction not recorded’ – ‘Manifestly inadequate’ – ‘Perpetrator interventions’ – ‘Self-represented litigant’ – ‘Sentencing’ – ‘Strangulation’

Charges: Assault x 2; Breaching a police family violence order x 1.

Appeal type: Prosecution appeal against sentence.

Facts: The respondent and the aggrieved, his partner, were in a relationship and had 2 children. The assaults occurred on two occasions when the respondent choked his partner, causing her to lose breath and bruising ([4]). A police family violence order was made, requiring him to not return to the home where his partner and children were living ([5]). The police later found the respondent in the home [(6]). The respondent pleaded guilty to all charges ([7]). The respondent had no criminal history and had independently sought out participation in a men’s behavioural change program.

At the sentencing hearing, the magistrate did not ask the respondent to make submissions or to provide her with information as to his personal circumstances ([9]). The magistrate, pursuant to s 7(f) of the Sentencing Act 1997 (Tas), did not record a conviction and adjourned the proceedings on the condition that the respondent be of good behaviour and complete the Men’s Behaviour Change Program ([1]). The charges were recorded as family violence offences under s 13A of the Family Violence Act 2004 (Tas) ([10]).

Issues: Whether the sentence was manifestly inadequate.

Decision and Reasoning: Justice Brett first addressed the fact that the magistrate did not allow the respondent to make submissions. His Honour at [11] noted that:

In the case of an unrepresented defendant, it is incumbent on the magistrate to ensure that, not only is such an opportunity provided, but that the defendant is aware of his or her right to address the court, and given some assistance with respect to the nature of the matters and information which should be the subject of the plea.

Nonetheless, this error was not directly in issue so was not determinative ([12]).

His Honour next addressed the sentence. The prosecution argued that the failure to record a conviction renders the sentence manifestly inadequate ([12]). His Honour emphasised the importance of therapeutic interventions for first-time family violence offenders at [24]:

While a punitive and protective response is essential in cases of serious and repeated family violence, it must also be consistent with the stated purpose of the legislation that consideration is given to therapeutic intervention with a view to achieving rehabilitation and behavioural change, when an offender presents before the court for the first time in respect of acts of spontaneous family violence. Prevention of future violence by use of effective strategies to modify behaviour in respect of offenders who have appropriate insight and desire for change is likely to promote the safety, psychological wellbeing and interests of people affected by family violence.

His Honour emphasised that the good behaviour bond and conditions attached were tailored to the respondent’s personal circumstances and was designed to rehabilitate the respondent and ensure that he did not reoffend ([20]). In all the circumstances, the sentence was not manifestly inadequate ([21]).

Barnes v Crossin [2017] TASSC 61 (12 October 2017) – Tasmanian Supreme Court

‘Arrest’ – ‘Reasonable suspicion’ – ‘Responses in criminal proceedings’

Charges: Resisting a police officer in the execution of their duty x 1.

Case type: Review of Magistrate’s decision to dismiss charge.

Facts: The police attended the respondent’s house in response to a call from the respondent’s son, who told the police that his father was ‘going off’ and had hit his mother. When they arrived, there were clothes strewn around the front yard. The police arrested the respondent. They gave the reason to ‘investigate family violence’ ([3]). The respondent struggled against the police, which gave rise to the resisting police officer charge. The Magistrate dismissed the charge on the basis that the arrest was unlawful in the first place ([4]).

Issues: Whether the Magistrate erred in dismissing the charge.

Decision and Reasoning: The Magistrate did err in dismissing the charge.

The power to arrest is derived from the Family Violence Act 2004 (Tas), which requires ‘a reasonable suspicion that the person concerned has committed family violence’ ([27]). This is distinct from a suspicion that the person committed a family violence offence ([33]). Brett J held that there was ample evidence to support the suspicion that there had been family violence, and he had adequately communicated that fact to the respondent ([46]).

Brett J remitted the matter to be decided by the same Magistrate ([53]).

Kirkwood v Thomas [2017] TASSC 56 (15 September 2017) – Tasmanian Supreme Court

‘Breach of domestic violence order’ – ‘Not manifestly excessive’ – ‘Text messages’ – ‘Threats’ – ‘Totality’ – ‘Verbal abuse’

Charges: Breach of family violence order x 2.

Appeal type: Appeal against sentence.

Facts: The defendant and the complainant were separated. The order prohibited him from threatening, abusing or assaulting the complainant, but not from going to her house. The first charge related to the defendant attending her house, ringing and knocking on the doors, and calling the complainant. The second charge related to the defendant sending the complainant 8 text messages also insulting the complainant and demanding money ([2]). The magistrate sentenced the appellant to two months’ imprisonment, cumulatively with a 5½ year sentence he was currently serving ([5]). That sentence related to a subsequent attack on the complainant, where the defendant broke into the complainant’s house and beat her with a baseball bat, leaving her with permanent disfiguring injuries and pain ([6]-[9]).

Issues: Whether the magistrate gave insufficient weight to the principle of totality, and whether the sentence was manifestly excessive ([11]).

Decision and Reasoning: The judge had to decide first if the sentence of two months was manifestly excessive in order to conclude whether the principle of totality had been breached ([12]). It was relevant that the defendant could have been sentenced for longer than 5½ years for the attack with the baseball bat ([12]). There is usually a discount for subsequent sentences, especially because denunciation and personal deterrence may have been achieved by the first sentence ([13]). There was evidence that the appellant had undertaken some family violence and anger management programs in custody ([19]). However, in this case, a heavy sentence was warranted because there had been repeated breaches of the family violence order in the past, and family violence cases warrant tough sentences ([18]). Therefore, it was open to the magistrate to impose the cumulative sentence of two months ([22]).

Mayne v Tasmania [2017] TASSC 38 (29 June 2017) – Tasmanian Supreme Court

‘General deterrence’ – ‘Sentence’ – ‘Smothering’ – ‘Strangulation’

Charges: Common assault x 1.

Appeal type: Appeal against sentence.

Facts: The defendant and complainant had a child together but were not living together. The complainant and defendant were arguing while the complainant was lying in bed. The defendant pushed a pillow onto her face, causing her to struggle for breath for two to five seconds ([3]). The complainant did not suffer any physical injuries. The defendant pleaded guilty and was sentenced to 7 months’ imprisonment ([13]).

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The sentence was not manifestly excessive. Wood J held that the Magistrate was right to highlight the aggravating factors of the offence, including that smothering is a dangerous act, the defendant did not stop of his own accord, and it would have been a terrifying experience for the complainant ([41]). While the sentence was high, it was appropriate to give prominence for general deterrence ([43]).

Wood J said at [43]:

… it is important that deterrent sentences be imposed not merely for crimes that cause grave physical or psychological harm to victims. There is a need to counter the perception that somehow violence of this kind in the home is less serious than the same kind of violence inflicted on a stranger in a public place. Also, acts of violence committed in a family or domestic context causing fear and distress to victims can have debilitating effects upon their well-being or the well-being of a family member witnessing such violence. It is not only violence resulting in visible injury that must be seen as unacceptable, and these victims, as vulnerable members of our society who have experienced fear and trauma, are entitled to the court's protection.

Parker v Hall [2015] TASSC 60 (10 December 2015) – Tasmanian Supreme Court

‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Recording a conviction’ – ‘Sentencing’ – ‘Totality’

Charge: Breach of family violence order

Appeal type: Appeal against sentence

Facts: The respondent and complainant had been in an on-again off-again relationship for two years. A police family violence order was made against the respondent, restraining him from contacting or approaching the complainant within 50 metres. The respondent contravened this order on four separate occasions by phoning the complainant, writing her a letter expressing his affection and remorse, going camping with her, and giving her a letter conveying his desire for reconciliation. An interim family violence order was then made. The conditions of the order were substantially the same as the police family violence order. The respondent then breached this order by meeting the complainant to talk on two separate occasions. The respondent was charged and found guilty of four breaches of a police family violence order and two breaches of an interim family violence order. The magistrate adjourned the charges without conviction for 12 months on the condition that the respondent enter into a good behaviour undertaking and not commit similar offences during the period.

The respondent had previously been found guilty of breaching a police family violence order and an interim family violence order, which were also sentenced without conviction. This offending occurred during the same time period as the six charges in question. The prosecution submitted a more severe sentence would have been imposed if all the charges had been sentenced together. The respondent had no other relevant prior convictions. His conduct did not involve any threats or violence and occurred with the complainant’s consent to varying degrees. Further, the respondent’s counsel submitted that as a legal practitioner, he suffered more than the average citizen as a consequence of the charges.

Issue: Whether the sentence was manifestly inadequate.

Decision and reasoning: The appeal was dismissed.

Despite the complainant’s compliance, the respondent knew that his conduct was in breach of the orders. Further, his repeated offending of eight separate breaches increased his culpability and pointed towards the need for specific deterrence. However, the respondent’s breaches, while not trivial, were not at the serious end of offending. The public interest did not favour a conviction being recorded. As a result of the media attention attracted by the matter, the respondent had already felt the consequences of his offending behaviour to a degree. If the charges were heard together with the previous two offences, the offending would not have necessarily demanded a heavier or more punitive response. Considering these factors together, Wood J concluded that there was sufficient justification for leniency extended to the respondent and the sentence was not manifestly inadequate.

Lacroix v Lacroix [2015] TASSC 42 (3 September 2015) – Tasmanian Supreme Court

‘Extension of family violence order’ – ‘Family violence order’ – ‘Procedural fairness’

Proceeding: Review of family violence order

Facts: A family violence order was made against the applicant on 5 March 2015, in anticipation of the expiration of another 12-month family violence order made on 7 March 2014 (the first order). The applicant made no admissions in relation to the conduct resulting in the making of the first order. On 23 February 2015 the respondent, the applicant’s partner, made an application for an extension of the first order. The magistrate denied this extension but suggested the respondent lodge an application for a fresh order and said, ‘[The applicant] heard me say that, so he’s effectively on notice that that may well occur in the course of the morning and taking care of the service requirements [sic]’. Counsel for the respondent then lodged the application for a fresh order.

Issue: Whether the applicant was denied procedural fairness because he was not served with a sealed copy of the new application filed by the respondent.

Decision and reasoning: The motion to review the order was dismissed.

The magistrate was obliged to give the applicant a reasonable opportunity to be present at the hearing of the application, to obtain legal representation, and to make submissions and dispute allegations of fact at common law. The applicant was not denied these opportunities. He was present when the magistrate directed the respondent to lodge the fresh application that would be dealt with later that day. As a result, he had an opportunity to remain at court and instruct his counsel, who was also present at the time, to prepare submissions to defend the application on his behalf. The evidence relied on by the respondent for the fresh application was the same as for the extension of time. The common law rule of procedural fairness did not require the magistrate to proceed only if the applicant was served with a sealed copy of the fresh application.

The magistrate did not err in applying the statutory requirements. Section 106E Justice Act 1959 (Tas) does not apply to family violence orders, as submitted by the applicant’s counsel. Further, rule 54N(1)(a) Justices Rules 2003 (Tas) was complied with. The fresh application was served on the applicant on 11 March 2015. The rule does not require service before the family violence order is made, but as soon as practical after it is filed with the clerk.

However, the magistrate erred in making a final family violence order. He did not have authority to make such an order under s 31(7) Family Violence Act 2004 (Tas), as a sealed copy of the application had not been served on the applicant and no attempt had been made to carry out service. Despite this error, no substantial miscarriage of justice resulted. The applicant had notice of the application, when and where it would be made and the evidence to be relied upon. Further, the applicant was in court the morning of the application with a lawyer and merely needed to stay until the afternoon to defend the fresh application. Therefore, there was no procedural unfairness and no substantial miscarriage of justice.

Young v Wilson [2015] TASSC 16 (28 April 2015) – Tasmanian Supreme Court

‘Assault’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Non-parole period’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Using carriage service’

Charges: Using a carriage service to harass, Breach of police family violence order (6 counts), Common assault

Appeal Type: Application for review of sentence

Facts: A police family violence order prohibited the applicant from approaching within 50 metres or contacting the complainant in any way. The breaches of this order involved the applicant phoning the complainant, sending her two text messages, threatening to kill her and punching her to the head and face. The punch also gave rise to the common assault charge. The carriage service offence involved the applicant phoning and sending eight menacing text messages to the complainant. The applicant had a substantial and relevant criminal history. A sentence of eight months’ imprisonment was imposed. This offending also activated previously imposed suspended sentences of imprisonment. This resulted in a total effective sentence of 26 months’ imprisonment with no parole eligibility.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The application was allowed.

The eight-month sentence was not excessive. The applicant had previously shown a disregard for orders made in favour of the complainant. The assault offences were serious and the applicant did not appreciate this. A deterrent sentence was needed. It was not unjust to activate two of the previous suspended sentences resulting in six months’ imprisonment. However, a previous suspended term of imprisonment of 18 months for trespass, breaches of a family violence order and various traffic offences was substituted with a period of 12 months’ imprisonment. This was considered too harsh, given the other sentences of imprisonment to be served by the applicant and the fact the applicant has not reoffended with respect to the driving offences. Furthermore, there was no justification for not imposing a non-parole period. The applicant’s alcohol problem contributed to his ongoing offending behaviour: ‘The granting of parole may encourage reformation and increase the chances of rehabilitation under supervision through conditional freedom’ ([69]). He was resentenced to a total term of 18 months’ imprisonment with a non-parole period of nine months.

(Note also at [17]-[27] where Wood J made some general comments on the correct procedure to be followed for breaches of suspended sentences in Magistrates’ Courts and at [37]-[53] which contains general consideration of totality, suspended sentences and non-parole periods).

Higgins v McCulloch [2013] TASSC 49 (11 September 2013) – Tasmanian Supreme Court

‘Assault’ – ‘Fines’ – ‘People with mental illness’ – ‘Perpetrator intervention program’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Sentencing’

Charge: Assault

Appeal Type: Motion to review conviction and penalty

Facts: The applicant was found guilty of one count of assaulting his wife by punching her in the face. The complainant had died by the time the matter came to trial. The parties were living together in unusual circumstances and the assault occurred in a bedroom of the family home in the presence of an adult daughter. The applicant had no prior convictions. A good behaviour bond was imposed and a conviction was recorded.

Issues:

1.

Whether the finding of guilt was reasonably open on the evidence.

2.

Whether the magistrate erred in recording a conviction.

Decision and Reasoning: The notice to review was dismissed.

1.

This argument was dismissed based on the evidence before the magistrate: see paragraphs [5]-[27].

2.

At [33], Tennent J outlined the relevant issues to be considered when deciding whether to record a conviction. A court must consider the public interest, the need for an official record to be made of the commission of the offence and whether the victim might reasonably not feel vindicated by the failure to record a conviction. These factors are to be weighed against the benefits to the offender of a conviction not being recorded. This was a family violence offence. The applicant was not entitled to any discount for a guilty plea and did not display remorse. The applicant was suffering from mental health issues, which partly explained his ‘bizarre’ ([44]) behaviour that occurred in the background to the assault. There was nothing put before the magistrate indicating that recording a conviction would have an adverse impact on the applicant.

Tasmania v Finnegan (No 2) [2012] TASSC 1 (19 January 2012) – Tasmanian Supreme Court

‘Admissibility’ – ‘Evidence - relationship’ – ‘Evidence - tendency’ – ‘Motive’ – ‘Physical violence and harm’ – ‘Probative value’ – ‘Unlawful wounding’

Charge: Unlawful wounding

Proceeding: Ruling as to the admissibility of evidence

Facts: The accused was charged with unlawfully wounding the complainant (his partner) by striking her to the face with a glass. He pleaded not guilty. The Crown sought to lead evidence from the complainant given on a voir dire about the accused’s conduct towards her on other occasions, both before and after the alleged wounding. The accused objected to the admission of some of the evidence ([6]).

Issues: Whether some of the evidence given by the complainant should be ruled inadmissible on at least one of the following bases:

1.

Irrelevance;

2.

Failure to satisfy the common law rule established in Pfennig v R whereby propensity or similar fact evidence is not admissible if, viewed in the context of the prosecution case, there is a reasonable view of that evidence that is consistent with innocence;

3.

The danger of unfair prejudice to the accused outweighing the probative value of the evidence: s 137 Evidence Act 2001 (Tas); or

4.

The probative value of the tendency evidence not substantially outweighing any prejudicial effect that it may have on the accused: s 101(2) Evidence Act 2001 (Tas)

Decision and Reasoning: The appeal was dismissed. The evidence led from the complainant as to the conduct of the accused was admissible. It was relevant on a number of bases: as ‘relationship evidence’, enabling the jury to assess the evidence as to what occurred at the time of the alleged wounding; as evidence of motive (jealousy); as evidence explaining why the complainant asserted she was injured because of a fall and why there was delay in her reporting what occurred; and as tendency evidence, showing that the accused had a tendency to be jealous of anyone who had a friendship/relationship with the complainant and to be generally violent towards her ([11]-[15]).

Further, the probative value of all the evidence under consideration substantially outweighed the prejudicial effect and danger of unfair prejudice to the accused. In this regard, Blow J noted at [30]-[31]:

‘In my view the danger of unfair prejudice to the accused is not great… [A] properly instructed jury, having heard all the evidence of jealousy and violence, is unlikely to be distracted from its duty of impartiality and its duty to give a true verdict in accordance with the evidence.

‘In my view the evidence of jealousy has substantial probative value. Without that evidence the jury might well take the view that the accused had not given any indication of jealousy on any other occasion. If the only evidence available for the jury as to violence on other occasions was the evidence of the three charged assaults, two of which shortly preceded the first report to the police of the accused wounding the complainant with the glass, that could result in the jury overestimating the likelihood of the complainant having fabricated the critical allegations. Having regard to that factor, and to the various bases on which the evidence of violence is relevant, I consider that all the evidence of violence also has substantial probative value’.

Here, there was nothing about the facts that made it one where s101(2) or s137 [Evidence Act 2001 (Tas)] required the Pfennig test to be applied (at [32]).

Note: this decision has been overtaken by legislative changes effective 12 December 2017. See section 13B Family Violence Act 2004.

James v Tasmania [2010] TASSC 50 (11 November 2010) – Tasmanian Supreme Court

‘Breach of domestic violence order’ – ‘Common assault’ – ‘Consent’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Risk factor - strangulation’ – ‘Temporary protection order’

Charges: Breach of a family violence order, Common assault, Driving offences, Perverting the course of justice

Appeal type: Appeal against sentence

Facts: The magistrate imposed three terms of imprisonment. First, the applicant was sentenced to 6 months’ imprisonment, suspended after 4 four months, for charges relating to driving a motor vehicle while disqualified and driving with alcohol in his body. Second, the applicant was sentenced to 3 months’ imprisonment, cumulative on the first period of imprisonment, for perverting justice by providing a false name to a police officer. Third, the applicant was sentenced to 6 months’ imprisonment, suspended after 3 months, for 3 charges. These were: breaching a family violence order by sending an abusive and threatening text message to a woman protected by the order; breaching the order by telling the woman he would punch her in the head if she did not pack his property; and committing common assault by placing both hands around her neck and squeezing, threatening to bash her head in if she did not give him a telephone, grabbing her by the back of the neck, and placing his arm around her neck. The magistrate merely expressed this sentence as being ‘cumulative.’ If the third period of imprisonment was cumulative on both sentences, the effective sentence was 10 months’ imprisonment. However, if it was cumulative only on the first sentence, the effective sentence was 7 months’ imprisonment.

Issues: Whether the magistrate erred in failing to make the sentence clear and whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The lack of clarity as to the cumulative nature of the third sentence amounted to a sentencing error and the applicant was re-sentenced. The first and second periods of imprisonment imposed were not manifestly excessive. However, the sentence for the assault and the breach of the family violence order was found to be manifestly excessive. A sentence of three months’ imprisonment wholly suspended was substituted. His Honour stated, ‘[t]he nature of the assault was not severe enough to warrant a greater punishment. His culpability for breaching the order was ameliorated by his belief, the claim to which was unchallenged, that the order no longer operated, and by the complainant reconciling and living with him since the order had been made’ ([22]).

Beechey v McDonald [2010] TASSC 47 (25 October 2010) – Tasmanian Supreme Court

‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Guilty plea - unequivocal’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Temporary protection order’

Charges: Breach of a family violence protection order (2 counts), Assault

Appeal type: Appeal against conviction

Facts: The male applicant pleaded guilty to two breaches of a family violence protection order and was sentenced to a wholly suspended sentence of 2 months’ imprisonment. The family violence order included an order that he not enter the premises of the complainant, his wife and mother of his 4 children. On one occasion, when returning the children to the premises, the applicant entered the residence and placed some of the children’s belongings inside (the first complaint – breach of a family violence protection order). The family violence order was later replaced with an order including a term that the applicant not directly or indirectly threaten, harass, abuse or assault the complainant. The applicant and the complainant agreed to spend Christmas day together. On the day, a box the applicant was carrying came into contact with the complainant. She fell over and dislocated a shoulder (the second complaint – breach of a family violence protection order by assault).

Issue: Whether the magistrate erred in accepting the applicant’s plea to one of the charges as he had made assertions that were inconsistent with his plea of guilty.

Decision and Reasoning: The appeal was upheld. Sentencing submissions from counsel for the applicant evidenced that he denied applying force to the complainant intentionally. This was inconsistent with his plea of guilty on the second complaint. A plea of guilty must be unequivocal. The magistrate should have informed counsel for the applicant of this inconsistency ([9]-[12]).

Maingay v Seabourne [2009] TASSC 67 (19 August 2009) – Tasmanian Supreme Court

‘Assault’ – ‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Damaging property’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Risk factor - weapon’ – ‘Sentencing’ – ‘Vulnerable - new partner’

Charges: Breach of police family violence order (6 counts), Assault (2 counts), Breach of interim family violence order, Damaging property, Abuse of police

Appeal type: State appeal against sentence

Facts: The male respondent was sentenced by a magistrate in respect of numerous offences. The magistrate dealt with the offences in batches and the State sought review of a suspended sentence imposed in respect of two of these batches. The first batch of offences pertained largely to charges of stealing. More relevantly, the second batch of offences related to a number of breaches of police family violence orders. On 12 December 2005, a police family violence order was made for the protection of Cassandra Deering. The respondent breached this order by head-butting and punching Ms Deering. On 5 January 2007, a second police family violence order was made. The respondent breached this by approaching Ms Deering, damaging the car belonging to her new partner, and sending a threatening text message. A number of these breaches occurred while the respondent was on bail for earlier breaches.

On 2 October 2008, a police family violence order was made for the protection of Dana Smith. The respondent breached this order by kicking Ms Smith in the head. He also said she was lucky he did not slit her throat and that he should have snapped her neck. On 27 October 2008, an interim family violence order was made which required the respondent to immediately surrender firearms. The respondent also breached this order.

Issue: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The sentence imposed in respect of the batch of offences incorporating the family violence offences was manifestly inadequate. The respondent was a repeat offender. He showed a complete disregard for the orders made to restrict his behaviour and should have felt the full effect of a deterrent sentence, notwithstanding his age and lack of a prior history. If his offending had extended only to breach by approach (potentially instigated by the protected person) the outcome would have been different. However, the respondent’s offending went far beyond that; it extended to physical assaults against two separate female partners ([24]).

Her Honour noted that, ‘While it is accepted that, at the time the respondent was dealt with for all of this offending, he was still a young man with no relevant prior history, the legislation pursuant to which he had been charged was enacted to protect members of the community, and in particular to protect persons in close relationships with offenders. Deterrent sentences were required to give effect to that legislation … However, in practical terms, it is impossible in my view to argue that the deterrent effect of an actual term of imprisonment is the same as that of a suspended term of imprisonment’ ([23]).

The respondent was ordered to serve a period of four months’ imprisonment. Although it might have been unfair in all the circumstances to impose a custodial sentence several months after his release, if the error in the sentence was not corrected, the perception would remain that the sentence imposed lacked the requisite deterrent effect ([26]-[30]).

Bradshaw v Tasmania [2009] TASSC 22 (9 April 2009) – Tasmanian Supreme Court

‘Deterrence’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’

Charges: Unlawful act intended to cause bodily harm (2 counts), Aggravated burglary

Appeal type: Appeal against sentence

Facts: The male appellant had lived with the female complainant and her 7 year old daughter for over a year before the offending occurred. The relationship was violent and the complainant accordingly obtained a family violence order requiring the appellant not to threaten, harass or abuse the complainant, to keep the peace towards her, and not to damage any property at her home. The order was in place at the time of the offending. The appellant committed a series of offences against the complainant and they ceased cohabiting together. Following this, the appellant broke into the complainant’s house and stabbed her twice to her right side. He took a few steps away before turning back and stabbing her again twice to her left side. The complainant was holding her daughter at the time of the attacks. The appellant was sentenced to six years’ imprisonment with eligibility for parole after four years.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was rejected by all judges but with separate reasoning provided. Tennent J (with whom Porter J agreed) found that while there were mitigating factors (remorse, giving himself up, and pleading guilty), the applicant committed very deliberate acts of violence in the complainant’s own home when he had no right to be there and there was a need for both personal and general deterrence ([35]-[36]). The appellant was sentenced for two particularly serious crimes. The stabbings occurred very close together but constituted two crimes because the appellant walked away and made a conscious decision to return and stab the complainant again ([33]). Further, the appellant committed a number of other offences and showed a complete disregard for orders of the court. He caused significant, long-term physical and psychological damage to both the complainant and her daughter ([34]).

In a separate judgment, Evans J also held that the sentence was not manifestly excessive in light of the totality of the appellant’s criminal conduct. The appellant’s criminal conduct was particularly serious. It was not impulsive. He went to the complainant’s home intending to inflict harm and acted in contravention of both a bail condition and a family violence order. One of the wounds he inflicted could have been fatal. The appellant also had prior convictions for violence and carrying weapons. His attack had a profound adverse impact on the complainant ([13]-[14]).

Allen v Kerr [2009] TASSC 10 (25 February 2009) – Tasmanian Supreme Court

‘Aggravating factor’ – ‘Assault’ – ‘Damaging property’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Sentencing’

Charge: Common assault

Appeal Type: Motion to review sentence

Facts: The applicant was in a relationship with the victim for three years and they had one child together. The victim also had a child from another relationship. Both of these children were present during the incident. The applicant was intoxicated and swore at the victim. An argument ensued and the victim spat in his face, which the applicant claimed led to his subsequent actions. The applicant took the victim’s house keys and told her to go inside before telling her to get in the car. He then smashed the car window, leaned inside and punched the victim twice to the face and four or five times to the back of the head and bit her multiple times. The police applied for a family violence order to operate for 12 months, which the applicant consented to. The applicant had a significant criminal history (though no convictions for assault) and was subject to a probation order and two suspended sentences. He pleaded guilty and was sentenced to two months’ imprisonment.

Issue: One of the issues concerned whether the sentence was manifestly excessive.

Decision and Reasoning: The motion to review was dismissed.

Porter J found that the assault was not premeditated and arose from the applicant’s state of intoxication. The act of the victim spitting in the applicant’s face was a provocative act and an assault in itself. No weapon was used and the complainant suffered no lasting injury. On the other hand, the assault was serious particularly given the biting. Furthermore, the presence of the two children at the time of the attack was an aggravating factor, as recognised by s 13 of the Family Violence Act 2004 (Tas): ‘Violence witnessed by children in the domestic environment not only is distressing (usually the victim is a parent or someone in the place of a parent), but it also serves to desensitise impressionable minds to violence, and to encourage the notion that resort to violence is acceptable’ ([13]).

The community has a general intolerance towards offences of violence. However, although immediate custodial sentences are appropriate for serious cases of assault, there is no prima facie position that assault offences should be punished by an immediate gaol term. The fact that the applicant was subject to the probation order and suspended prison sentences indicates that these measures did not deter the applicant from offending. ‘General deterrence in relation to offences of violence is a weighty factor’ ([27]). While the penalty was a relatively severe one, it did not demonstrate error having regard to the applicant’s circumstances.

Tasmania v R D P [2009] TASSC 72 (25 February 2009) – Tasmanian Supreme Court

‘Emotional and psychological abuse’ – ‘Evidence’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Police family violence order’ – ‘Rape’ – ‘Relationship evidence’ – ‘Risk factor - separation’ – ‘Sexual and reproductive abuse’

Charge: Rape

Proceeding: Application to adduce relationship evidence

Facts: The defendant was in a relationship with the complainant for about 14 months. The alleged offence occurred after the relationship ended. A police family violence order was in place against the defendant. The complainant arranged to attend the defendant’s house to collect her belongings with her 10-year-old son and her brother. She collected her belongings and then went to the bathroom with her son where she found the defendant. There was a knife on the hand basin. The complainant informed the defendant that she did not want to have sex, but he performed oral sex on her. She exposed her breasts on his demands because she thought he might hurt her if she did not. The complainant screamed for help and tried to defend herself by kicking the defendant. The defendant then threatened to rape her anally unless she uncrossed her legs. She then uncrossed her legs and the defendant vaginally raped her. This was done in front of their child.

Issue: Whether the relationship evidence should be admitted.

Decision and Reasoning: The evidence as to the nature of the relationship was admitted, with the exception of evidence of general physical and verbal abuse unconnected with sexual activity. The evidence included general physical abuse and physical violence used to coerce the complainant into sexual intercourse, one prior occasion of non-consensual vaginal intercourse and an act of anal intercourse. Porter J held that the evidence would allow the jury to more readily assess the actions of the complainant and defendant and ascribe meaning to things said by the defendant. In particular, evidence of prior sexual intercourse without consent might serve to explain why the complainant may have displayed some acquiescence to the oral sex and the vaginal penetration. Also, evidence of prior anal penetration was relevant to the jury’s assessment of why the complainant uncrossed her legs prior to vaginal penetration, given the high level of pain and discomfort the complainant suffered as a result of the earlier anal penetration. The probative value of the evidence outweighed its potential prejudice.

Director of Public Prosecutions v P [2007] TASSC 51 (26 June 2007) – Tasmanian Supreme Court

‘Following harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Mitigating factors’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Rape’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge: Rape

Appeal Type: Appeal against sentence

Facts: The respondent’s relationship with the complainant ended. The complainant attempted to maintain a friendship with the respondent but he could not accept that the relationship was over. He kept coming to her home and tried to kiss and cuddle her. She would sometimes relent to avoid an argument. She was pregnant with his child at the time. On the night of the offence, he arrived at the complainant’s home intoxicated. She asked him to leave but he refused. He stopped her from calling a friend. He then refused to allow her to go to the toilet, forcibly pinned her to their bed and raped her. She eventually stopped resisting and he stopped after about 5 minutes. The rape resulted in lasting psychological impacts on the complainant. The respondent had a long record of offending, including offences of violence and threatened violence. He was sentenced to two years’ imprisonment.

Issue: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld. Crawford J (with whom Slicer and Evans JJ agreed) held that a sentence of two years is low for the crime of rape, which is ‘a crime of violence, domination and degradation and it usually causes great psychological trauma to the victim. It requires a substantial sentence of imprisonment in most cases. Leniency may be extended in exceptional circumstances, but there were none in this case’ ([16]). His Honour was of the view that it is conceivable that a crime committed ‘during the currency of a sexual relationship’ might allow some leniency, but the fact of a prior sexual relationship is not a mitigating factor and the appellant’s disappointment about the relationship breakdown is not relevant to sentencing: ‘In no sense was his crime an act of unrequited love.’ ([16]). Evans J also noted that, ‘it is significant that the respondent's criminal conduct cannot be categorised as an impetuous response to the break-up of his relationship with the complainant and a manifestation of his love for her. His conduct over the period of in excess of an hour after she first asked him to leave bears all the hallmarks of an assertion of physical and sexual dominion over the complainant’ ([23]). The respondent was re-sentenced to three years’ imprisonment with a non-parole period of 18 months.

Lambie v State of Tasmania [2007] TASSC 10 (7 March 2007) – Tasmanian Supreme Court

‘Assault’ – ‘Denunciation’ – ‘Deterrence’ – ‘Just punishment’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge: Assault (two counts)

Appeal Type: Appeal against sentence

Facts: The appellant was in an ‘up and down’ relationship with the complainant that was marked with arguments and assaults. On the day of the offence, the appellant attended the complainant’s home. An argument occurred and the complainant said she wanted to sort out the issues in the relationship. She stood in the doorway, preventing the appellant from leaving. The argument continued and the appellant grabbed the complainant and threw her backwards out of the way. The appellant then followed the complainant into their bedroom and shoved his motorcycle helmet into her chest, knelt on her chest and shouted in her face. The appellant later returned to the house and took her a glass of water. The assaults aggravated an existing unknown spinal condition and the complainant had to undergo surgery and suffered temporary and permanent disabilities. There were also lasting psychological impacts. The appellant had no relevant criminal history. He was sentenced to 12 months’ imprisonment with a non-parole period of 6 months.

Issue: One of the issues concerned whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld on the basis of another ground of appeal (that the sentencing judge had taken extraneous or irrelevant material into account). In relation to the issue of manifest excess, Underwood CJ (with whom Blow J and Tennent J agreed) stated that the key consideration was ‘the extent of the appellant's criminal culpability for the consequences of his direct and intentional applications of force’ because the sentencing judge sentenced on the basis the appellant was ‘culpably liable’ for all the consequences of his criminality ([19]). However, there were no submissions on this issue from counsel so the Court was reluctant to make a determination. In any case, it was not necessary to do so because the consequences of the appellant’s criminal conduct were not reasonably foreseeable by him and the exceptional circumstances were such that the consequences should carry little weight in sentencing.

In re-sentencing the appellant, the Court held that the conduct was serious and that, ‘the nature of the criminal conduct was such that a sentence of imprisonment is called for to mark condemnation of this kind of domestic violence and to punish the appellant’ ([31]). However, the lack of relevant prior convictions made a 12-month sentence manifestly excessive. The appellant was re sentenced to six months’ imprisonment, fully suspended on the condition that the appellant be of good behaviour for two years after his release.

Remess v Rabe [2006] TASSC 105 (4 December 2006) – Tasmanian Supreme Court

‘Evidence’ – ‘Ex parte proceedings’ – ‘Exposing children’ – ‘Hearsay’ – ‘Interim intervention order’ – ‘Leave’

Appeal Type: Application for review of the making of interim family violence order

Facts: An interim family violence order (FVO) was applied for on behalf of the complainant by the manager of Victim Support Services within the Department of Justice. An interim order was made in the applicant’s absence and the order was to last for 60 days.

Issues:

1a.	Whether the magistrate erred in making the order when leave to make an application under the Family Violence Act 2004 (Tas) (the Act) had neither been sought nor granted.
1b.	Alternatively, whether the magistrate erred in granting leave to make the application when the material was insufficient for that purpose.
2.	Whether the magistrate erred in making an interim order because the evidence contained in the application was entirely hearsay.

Decision and Reasoning: The application was dismissed.

1a.	The applicant submitted that the victim support officer was a person who was required to seek leave under s 15(2)(d) of the Act such that magistrate had no jurisdiction to hear the application without leave being granted. Tennent J held that a grant of leave was not a pre-condition to jurisdiction, and that s 15 merely provides for the procedure of the classes of persons who may make an application for an FVO.
1b.	Counsel for the applicant conceded that the application for the order was an interlocutory proceeding. Under s 75 of the Evidence Act 2001 (Tas), the hearsay rule does not apply as long as the party adducing the evidence also adduces evidence of its source. Counsel submitted that because the application did not disclose the sources of the information, the evidence was inadmissible. Therefore, there was nothing in the application upon which the magistrate could properly have considered the issue of leave. Tennent J held that in relation to leave the Court should consider ‘the position of the person seeking leave, their relationship to the affected person and whether they may have acquired knowledge of the matters the subject of the application’ ([15]). In this case, the magistrate recognised the person seeking leave and that the protected person was a client of hers. Her position and relationship with her client, of itself, would have identified her as being able to provide assistance to the protected person. It was appropriate in those circumstances for the magistrate to grant leave. While leave should have been expressly addressed, a grant of leave was implicit from the conduct of the proceedings.
2.	The applicant submitted that while some of the material in the application came from police reports, it was not clear whether the officers referred to were reporting from personal contact with the protected person or relying on others. Tennent J held that the protected person clearly identified her sources as two police officers. Her Honour stated that s 75 of the Evidence Act 2001 (Tas) is not limited to ‘first hand hearsay’. As such, the evidence was admissible. Her Honour then commented on the making of interim orders generally at [28]. Counsel for the applicant also raised the issue of the basis on which the magistrate made an order that extended to the children of the parties. The magistrate imposed the order so as to ‘err on the side of caution’ but was careful to not make an order preventing the applicant form approaching his children. Tennent J held this was appropriate: ‘It is well recognised that children in families where domestic violence is a factor can be affected by such violence whether or not they are directly subjected to it’. Even though there was limited material available to the magistrate, the interim nature of the order was reflected in its duration and an acknowledgment that the issue could be revisited.

Oliver v Tasmania [2006] TASSC 95 (17 November 2006) – Tasmanian Supreme Court

‘Aggravated burglary’ – ‘Arson’ – ‘Damaging property’ – ‘Hardship’ – ‘Manifestly excessive’ – ‘Risk factor - separation’ – ‘Sentencing’

Charges: Aggravated burglary (two counts), Unlawfully injuring property (two counts), Arson

Appeal Type: Appeal against sentence

Facts: The offending related to the appellant’s former partner and father of her two children. The relationship had ended acrimoniously as the appellant found out that her former partner had an affair about the time their relationship ended that resulted in the birth of a child. She broke into his home on two separate occasions and damaged it. On the first occasion she broke nine windows, destroyed a collection of vinyl records and smashed a photo frame. On the second occasion she set fire to the home and damaged the complainant’s vehicle parked outside. The damage exceeded $50,000 and the contents lost had a value between $15,000 and $20,000. At the time of sentencing the appellant had three young children. She had relevant prior convictions. She was sentenced to three years’ imprisonment with a non-parole period of 18 months.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

Counsel for the appellant submitted that insufficient weight was given to the fact that the appellant was the mother of three children. However, nothing was put to the sentencing judge that suggested any particular hardship to the children arising from their mother’s imprisonment. Counsel also submitted that the penalty imposed for arson was the harshest in the preceding five years. Counsel for the respondent submitted that this was a deliberate action and resulted in substantial damage. Other dwellings could have been at risk. The offending was motivated by ‘significant ill will’. The appellant showed no remorse and attempted to place the blame elsewhere. The fire was lit late at night at a time when it would be expected that it would not be immediately detected. Tennent J (with whom Evans J agreed) held that the appellant’s conduct could only be described as ‘vindictive attacks in no way justified by what she presumably perceived as the wrongs done to her by him. The gravity of her behaviour escalated in that she went from simply smashing things to using fire, a much more dangerous tool’ ([44]).

Underwood CJ (with whom Evans J agreed) held that there was nothing to indicate that the trial judge did not give appropriate weight to the fact that the appellant was a mother of three children. His Honour held that family hardship is only relevant in the ‘most unusual case’ ([11]). In regards to the appellant’s ‘tariff submission’ that the sentence was the longest imposed for arson in the preceding five years, Underwood CJ noted that the appellant was sentenced for arson as well as other crimes. Further, the fact that the arson was intentional made it more serious. The appellant was neither youthful nor remorseful and this was ‘calculated’ conduct borne out of anger designed to cause maximum distress, such that the totality of the conduct called for a substantial sentence of imprisonment.

Re S [2005] TASSC 89 (19 September 2005) – Tasmanian Supreme Court

‘Assault’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Presumption of innocence’ – ‘Risk assessment tool’ – ‘Risk factor - strangulation’

Proceeding: Application for bail

Facts: The applicant was arrested following a complaint that he assaulted his partner. She alleged that he had taken her car keys. When she asked for them back, he verbally abused her, grabbed her throat and pushed her backwards. The complainant stated that the applicant kept a gun on the property (though this was not untoward because it was a farming property with livestock) and that she lived in fear of her partner’s threats. The applicant denied the allegations and stated that he did not see the complainant on the day in question. He alleged that the complainant made threats against his safety and that she made the assault complaint maliciously in an attempt to force him to pay her money. Following his arrest, an application for a family violence order (FVO) was made. The applicant had no history of violence or prior convictions. The police officer completed a ‘Tasmania Police Family Violence Risk Assessment Screening Tool’. This involved a subjective assessment provided by the complainant and was part of a whole of government response to domestic and family violence instituted in Tasmania in 2004 ([18]). While the applicant was in the remand centre, the complainant called and asked to speak to the complainant. She indicated that she was willing to drop the assault charge if she was paid money that she was owed.

Issue: Whether bail should be granted.

Decision and Reasoning: Bail was granted. The Court held that various problems with duplication within the risk assessment, the mixture of protective legislation within the criminal law and the mandatory nature of the legislation meant that a court is inhibited in its assessment of future risk, especially in the case of an unrepresented defendant. There was evidence that the phone message from the complainant while the applicant was on remand could be construed, ‘as a form of pressure designed to enhance a financial outcome favourable to the maker’, which would be contrary to the Family Violence Act 2004 (Tas). Section 12 of the Act creates a presumption against bail for a person charged with a family violence offence unless the court is satisfied that release, "would not be likely to adversely affect the safety … of an affected person". At [23], Slicer J made some general comments on the effectiveness of the statutory scheme, noting concerns that the public must have confidence in the administration of the scheme and that public confidence is diminished when an arbitrary approach is taken. By tasking the courts to assess the future risk of a person, reliable primary material must be put before the court to deal with issues such as deprivation of liberty and consequences to the family unit. Slicer J also noted the risk that, ‘deprivation of liberty is seen as a sanction imposed for unproven conduct.’

The Court held that it is not possible to determine the merits of the domestic violence complaint at first instance and that it remained an issue for trial. His Honour also noted tensions between the presumption of innocence and the need to protect victims. In applying this to the facts, his Honour granted bail on the provision of a surety and the imposition of residential, geographical and contact provisions.

Olsen v State of Tasmania [2005] TASSC 40 (13 May 2005) – Tasmanian Supreme Court

‘Aggravated assault’ – ‘Bail’ – ‘Legal representation’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Unrepresented litigant’

Charge: Aggravated assault

Proceedings: Bail application

Facts: The applicant was charged with aggravated assault against his former female partner. The Crown case was that the assault consisted of a threatening gesture or gestures with a replica pistol. The applicant vehemently denied these allegations. The Crown informed the court that they would not oppose bail if the applicant was able to produce a suitable surety. The applicant suffered from schizophrenia and would benefit from the supervision of a surety to ensure he did not breach any bail conditions. However, through no fault of his own, the applicant was unable to produce a surety.

Issue: Whether the application for bail should be granted.

Decision and Reasoning: The application for bail was refused. His Honour noted that, ‘Were I free of the restraints imposed by the Family Violence Act, s12, I would grant bail. I would do so because on the face of it, the assault is not a serious one, because the applicant has been in custody since 10 or 11 April, and because it will be some time before this applicant has his case heard.’ His Honour further noted that the applicant had no relevant prior convictions ([3]).

However, s 12 of the Family Violence Act 2004 (Tas) provided that the applicant not be granted bail unless his release on bail would not be likely to adversely affect the safety, well being and interests of the complainant. The onus was on the unrepresented applicant to show this but he had no idea of where the complainant was living (so as to ascertain information about her safety). In light of this and in the absence of a surety to monitor the applicant’s behaviour, the application for bail was refused. His Honour concluded by stating that, ‘I want to say very strongly that this man needs legal assistance and he needs it urgently, otherwise he is likely to stay where he is for a considerable period of time’ ([10]).

S v White [2005] TASSC 27 (21 April 2005) – Tasmanian Supreme Court

‘Assault’ – ‘Bail’ – ‘Damaging property’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factors’

Charges: Assault (3 counts), Destroying property, Application for a restraint order

Appeal type: Appeal against refusal to grant bail

Facts: It was alleged that the appellant assaulted his former partner and two of her children, and that he destroyed the windscreen of her car. A police officer also applied for a restraint order as a result of this incident. The magistrate refused to grant the applicant bail.

Issue: Whether the release of the appellant on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person (the former partner).

Decision and Reasoning: The appeal was allowed and bail was granted with condition as to surety recognisance and a residential condition. There were a number of factors weighing against the appellant: the prosecution had a strong case; this was a case involving not only physical assault but a threat to kill; the appellant used weapons in the commission of the offence; the Family Violence Risk Assessment prepared by the complainant immediately following the incident noted alcohol problems, potential mental health issues, jealousy and possessiveness, threats to kill, violence in the relationship escalating and the relationship had only recently broken down; the proposed surety (the appellant’s mother) was not in good health and would be unable to stop the appellant harming his former partner ([14]-[18]).

However, in spite of this, Blow J was satisfied that the release of the appellant on bail would not be likely to adversely affect the safety, wellbeing and interests of his former partner and her children. The appellant had not assaulted his former partner or children prior to this incident. Despite allegations of mental illness, the appellant had not been diagnosed with such a disorder. The appellant’s demeanour in court was ‘ideal and exemplary,’ precautions had been taken to ensure the appellant did not know where his former partner was, and he had a previous good employment history ([19]-[23]).

Her Majesty's Attorney-General v O [2004] TASSC 53 (9 June 2004) – Tasmanian Supreme Court

‘Assault’ – ‘Delay’ – ‘Exposing children’ – ‘Indecent assault’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’

Charges: Assault, indecent assault

Appeal type: Attorney-General appeal against sentence

Facts: The responded pleaded guilty to assault and indecent assault against a woman with whom he cohabited for seven years. They had four children together. In March 2001, the respondent assaulted the complainant by raising his fist at her, waving a knife in her face and threatening to kill her. The relationship ceased some weeks prior to 30th May 2002. On 30th May 2002, the respondent trespassed into the complainant’s home and ejaculated over her legs while she was asleep. The complainant reported the incident to police soon after it occurred and, at the same time, reported the assault of March 2001. Considerable time was taken to obtain a DNA analysis of the semen on the complainant’s legs. As a result, police did not interview the respondent until a little more than a year after the indecent assault. The respondent was ordered to perform 80 hours of community service.

Issue: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was dismissed by Underwood and Slicer JJ but upheld by Blow J in dissent. The judges provided different reasoning.

Underwood J, in the majority, agreed with Blow J (in dissent) that the sentence imposed was manifestly inadequate. However, he dismissed the appeal. The time in custody the respondent would have to serve would unlikely exceed 6 months and absent some point of principle, ‘it was unjust to take away the respondent's liberty and put him in prison because an undefined error, not caused or contributed to by him in any way, infected the sentencing discretion exercised with respect to crimes that occurred two and three years ago’ ([7]).

Slicer J, also in the majority, held that the sentence was not manifestly inadequate. His Honour quoted Parker v R [1994] TASSC 94 which in turn quoted from a Canadian case R v Brown (1992) 73 CCC (3d) 242, 249 articulating principles for the sentencing of crimes of domestic violence: ‘When a man assaults his wife or other female partner, his violence toward her can be accurately characterised 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’.

However, His Honour nonetheless held that the circumstances of this case did not show manifest disparity or inconsistency with the sentencing standard (which was not to say that a more severe penalty would not have been appropriate). Here, the original assault (followed by the resumption of cohabitation) and the act of indecency were not charged for a further period of 12 months. There was no material advanced that suggested continuation of harassment or manifestation of aggression. The respondent had successfully completed the order of community service ([19]-[20]).

Slicer J also stated: ‘Resolution of the problem of violence within a domestic situation is complex and resumption of cohabitation, as in this case where the complainant had decided to give her partner another chance, makes any assessment of sanction difficult’ ([19]).

Blow J, in dissent, held that the nature of the indecent assault (ejaculating over a former partner’s legs) and the circumstances of aggravation in which it occurred made it a particularly serious example of that sort of crime such that a community service order was so inadequate a penalty that the appeal ought to be allowed ([30], [36]). The circumstances of aggravation were that the respondent entered the complainant’s house as a trespasser at night, the complainant was asleep, and it was committed in the immediate presence of the couple’s four young children which created a strong risk of them witnessing the incident ([26]). A sentence of 11 months’ imprisonment, suspended after 8 months, was appropriate.

His Honour disagreed with the comments of Slicer J as to delay insofar as they related to the indecent assault. He noted that, ‘Certainly fairness to an offender can require a judge imposing a sentence for a stale crime, long after it was committed, to extend what otherwise might be an undue degree of leniency: R v Todd [1982] 2 NSWLR 517 at 519 - 520. There is also authority that a delay need not be inordinate before it deserves to be taken into account: Miceli v R [1997] VSC 22; (1997) 94 A Crim R 327 at 330. However the respondent was sentenced for the indecent assault some 20 months after committing it, and a delay of that order is now, regrettably, quite normal in this State. I therefore think that the delay in relation to that charge is of little significance’.

Waddington v R [2003] TASSC 21 (30 April 2003) – Tasmanian Supreme Court

‘Manifestly excessive’ – ‘Murder’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Sentencing’

Charge: Murder

Appeal type: Appeal against sentence

Facts: The male appellant and the female deceased lived together for 10 or 12 years. The appellant drank 10 cans of beer on the afternoon of the murder. While the appellant prepared dinner, the deceased telephoned a friend. According to counsel for the appellant, these telephone calls occurred on a regular basis meaning that the deceased would often eat dinner cold or not eat dinner at all. The appellant had become frustrated with these calls over the years. The appellant finished making dinner and told the deceased it was ready. She told him that she would eat it later. The friend on the other end of the phone then heard the appellant become enraged. He yelled, ‘Get off that fucking phone … I've been putting up with it for the last ten years … I'm sick to death of the fucking phone.’ The telephone connection was broken. In a rage, the appellant killed his partner. He held a pillow over her face for about three to four minutes, smothering her until she died. An hour later he went to the police and confessed.

Issues:

1.

Whether the sentence of 17 years’ imprisonment was manifestly excessive.

2.

Whether the order fixing a non-parole period of 12 years was manifestly excessive.

Decision and Reasoning: The appeal was allowed on ground 2.

1.

A sentence of 17 years’ imprisonment was not manifestly excessive in all the circumstances. Although the appellant expressed remorse, confessed to the crime quickly, and pleaded guilty, the appellant maintained his suffocation of the deceased for a prolonged period of time, the deceased did not provoke the appellant’s violence in any way, and the appellant had prior convictions ([25]-[27]).

2.

However, a non-parole period of 12 years was harsh, particularly when considered in light of orders for parole eligibility in other murder cases. Taking into account the appellant’s genuine and deep remorse and his full acceptance of responsibility, a non-parole period of 10 years was substituted ([30]).

Burton v R [2002] TASSC 64 (11 September 2002) – Tasmanian Supreme Court

‘Aggravated burglary’ – ‘Assault’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Impact of offence on victim’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’

Charges: Assault (2 counts), Aggravated burglary with intent to commit murder or assault

Appeal type: Appeal against sentence

Facts: The male appellant and the female complainant resided in a de facto relationship between May 2001 and 20 July 2001. The complainant had a six month old child. However, in July, the complainant informed the appellant she wanted to end the relationship. She went to live with her mother. On the morning of 29 July, the appellant smashed a window to enter the complainant’s mother’s flat, holding a large knife (count 1). He yelled, ‘where is the fucking slut’ and ‘where is she’. He entered the complainant’s bedroom, where she was sleeping with her child, shouting that he was going to kill her. The appellant dragged the complainant by her hair to the kitchen and started to cut her neck. She grabbed the blade of the knife and it snapped (count 2 and 3). The appellant dragged her outside the house (count 4) before calming down. The complainant sustained a superficial laceration to her neck and ongoing psychological injury.

The appellant was found guilty of assault at a first trial (count 4). At a second trial, he was found guilty of aggravated burglary (count 1) and assault (count 3). The assault subject of count 3 was framed as an alternative to counts alleging the commission of the crimes of attempted murder and committing an act intended to cause bodily harm (wounding). He was sentenced to three years and six months’ imprisonment for the offences subject of the second trial. In respect of the assault, he was sentenced to three months’ imprisonment cumulative on the first sentence.

Issue: One of the grounds of appeal was whether the sentence of three years and six months’ imprisonment was manifestly excessive.

Decision and Reasoning: The appeal was allowed by all judges but with separate reasoning provided. Crawford J (with whom Underwood J agreed) held that the sentence of three years and six months was manifestly excessive. The sentence was well outside the range of sentences typically imposed for these types of offences ([20]-[23]). In light of the need for consistency, the sentence was set aside and a sentence of two years and three months’ imprisonment was imposed.

Slicer J also found the sentence of three years and six months’ imprisonment was manifestly excessive. The circumstances of the offences warranted the sentence namely, this was a case of ‘home invasion’ and ‘domestic violence,’ the appellant had prior convictions, he was not entitled to the benefit of a guilty plea, there was no evidence of remorse, and the impact on the complainant was likely to be long standing ([46]-[50]). However, the problem was not with the sentence but with the verdict. It was strange that the jury found that the evidence supported that there had been a ‘cutting of the neck’ but returned a verdict of not guilty of wounding. Nevertheless, the sentence was constrained by the jury’s finding of assault, not wounding. On that basis alone, the sentence was manifestly excessive ([50]-[52]). His Honour agreed with Crawford J that a sentence of two years and six months’ imprisonment was appropriate.

Rice v McDonald [2000] TASSC 70 (21 June 2000) – Tasmanian Supreme Court

‘Compulsion’ – ‘Emotional abuse’ – ‘Expert evidence’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Stealing’ – ‘Systems abuse’ – ‘Where the offender is also a victim’

Charges: Stealing, Making a false report to police

Appeal Type: Notice to review conviction

Facts: The applicant and her partner were in a domestic relationship riddled with violence. For a summary of the history of the violence against her, see paragraphs [4]-[10]. The applicant was charged with stealing a television. She entered into an agreement to rent the television under instructions from her partner, who then arranged for the television to be sold to a friend. He instructed the applicant to tell the purchaser that the television came from her sister. After the applicant did not report that the television was stolen to the police, her partner became very angry. As a result of fearing what her partner would do if she defied him, the applicant then reported the television was stolen to the police and the rental company. After the police located the television in the possession of the purchaser, the applicant fully admitted to the crime and protected her partner by providing a false name.

At trial, the applicant gave evidence that she had acted out of fear that she would suffer grievous bodily harm if she did not follow her partner’s demands to commit the offences. She alleged that her partner threatened to kill her if she did not accept full responsibility for the crime and provide a false name to police. That is, she established an evidentiary basis for the court to consider compulsion under s 20 of the Criminal Code 1924 (Tas) (the Code) and duress at common law. The magistrate found that neither of those defences applied.

Issues:

1.

Whether the magistrate erred by applying the provisions of the Code governing criminal responsibility to the charge of making a false report.

2.

Whether the magistrate made legal errors in applying the defences of duress and compulsion.

3.

Whether the magistrate erred in failing to sufficiently consider the evidence of a psychologist with extensive experience in domestic violence.

Decision and Reasoning: The appeal was upheld in respect of issues 2 and 3.

1.

The respondent conceded that this ground was made out. One difference between the common law defence of compulsion and the statutory defence is that it is not necessary for the person making the threat to be present at the time the offence is committed. The applicant was entitled to the benefit of the common law defence. However, this was not sufficient to overturn the conviction because the magistrate was satisfied that the prosecution proved that the applicant was not acting under duress.

2.

The magistrate concluded that the applicant’s contention that her partner would ‘bash the hell out of me’ contained a qualification and because of a slight hesitation in her response, she had not given credible evidence that she was threatened with serious violence. The Court disagreed, holding that given the history of violence, the words ‘bash the hell out of me’ amounted to a clear threat of serious harm.

In referring to the requirement of immediacy under s 20 of the Code, the magistrate concluded that her partner’s threat would not be carried out immediately because of the presence of the purchaser of the television. The Court disagreed, holding that immediacy does not mean that the threat will be carried out at the time of compliance or refusal, but that it is ‘proximate’ to the making of the threat. It requires that the person coerced ‘believes that such threats will be executed’ at the time when the person making the threats is able to carry them out. The magistrate also erred in concluding that the applicant could not have believed the threats could be carried out immediately. Given the history of violence, she was entitled to believe that the threats would be carried out immediately. In relation to seeking the protection of the purchaser, the Court held that this proposition ‘defies logic and experience’ ([25]). The magistrate did not sufficiently take into account the history of the relationship in determining the conduct said to give rise to compulsion. Her partner had complete domination over her and had assaulted her in a refuge. The false report was made at the direction of her partner in the face of explicit and implicit threats. While she theoretically could have made a complaint to the officer about her partner when she filed the report, the option of applying for a restraining order was not consistent with complying with the threats.

3.

The magistrate concluded that the psychologist’s evidence did not assist the defence in establishing duress and compulsion. This amounted to an error and the magistrate was required at least to consider the psychologist’s evidence and the history of violence in determining whether the applicant acted under duress or compulsion.

Magistrates' Court

Police v H [2021] TASMC 13 (22 December 2021) – Tasmanian Magistrates’ Court

‘Breach of protection order’ – ‘Interpretation of order’ – ‘Separation’ – ‘Technology facilitated abuse’

Charges: Breach of police family violence order x 3.

Proceedings: Reasons for decision.

Issues: Whether text messages sent by the defendant fell within an exception to the non-contact condition of the police family violence order; the accused’s guilt.

Facts: The male defendant and female victim were married for 14 years and had two children. After the couple separated, the defendant was subject to a protection order that prohibited contact with the victim ‘except… for the purpose of discussing matters arising out of their relationship including related to their children by… electronic message’ [1]. The defendant was charged with breaching the order by sending three text messages to the victim. The messages invited the victim to the defendant’s house and made a statement about the parties’ relationship and children [28], [32], [36].

Decision and Reasoning: Two of the three messages constituted a breach of the order.

Magistrate Stanton outlined his approach to construing the order: ‘the construction of the clause should be what a reasonable person in the circumstances of the person bound by the order would understand the words to mean’, while ‘considering the context of the exception within the entire order’ [8]-[9]. His Honour found that the ‘intention of the order [was] to keep the parties physically separate and to prevent communication generally while allowing limited communication’ that was for the purpose of discussing matters arising out of their relationship [11], [18]. His Honour found that the text messages that invited the victim to the defendant’s house were invitations ‘to engage in an activity which would otherwise be prohibited by the order’, and ‘not solely a discussion about matters arising out of the relationship’ [31]. Therefore, these messages breached the order. His Honour found that the statement about the parties’ relationship and children, which read: ‘You may hate me but I know my kids love me’, was sent during a discussion between the parties about matters related to the children and arising out of the relationship [33]-[35]. Therefore, the message fell within the exception and did not breach the order.

Purton v Purton [2016] TASMC 9 (19 October 2016) – Tasmanian Magistrates’ Court

‘Management of application proceedings’ – ‘Procedure’ – ‘Protection orders’

Case type: Directions in relation to application to revoke a Police Family Violence Order (‘PFVO’).

Facts: The applicant was served with a PFVO. It stated that the Sergeant was satisfied that the applicant had committed a family violence offence but did not explain why the order was made ([9]). The applicant applied to revoke the order ([10]).

Issues: The parties sought directions in relation to the nature of the application to revoke, the manner in which such an order should be made, and which party bears the onus of proof ([29]).

Decision and Reasoning: Magistrate McKee explained the procedure for challenging a PFVO. The application is not an appeal, nor an administrative review ([40]). It is an application for the court to exercise a discretion to revoke a PFVO ([41]).

The onus of proof is on the applicant to satisfy the Court on the balance of probabilities that it is appropriate to revoke the PFVO ([24]). Since the applicant is unaware of the basis upon which the order was made, the respondents (the police) would have to lead evidence to establish that the applicant committed the offence ([50]).

However, if the police applied to revoke or extend the PFVO, the onus of proof would lie on them ([56]).

McKenna v Smith [2014] TASMC 11 (27 March 2014) – Tasmanian Magistrates’ Court

‘Assault’ – ‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Damaging property’ – ‘Insanity’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Vulnerable - new partner’ – ‘Wilfully and unlawful destroying or damaging property’

Charges: Damaging property (3 counts), Breach of police family violence order (2 counts), Assault

Facts: At 2.30pm on 14 July 2013, the defendant smashed the windscreen of her former de facto partner’s car. Her former partner saw the incident occur and reported it to the police. A short time later, the defendant went to the police station and said she had smashed the windscreen of a car. At 5.45pm, a police officer who had attended the premises of the defendant’s former partner, made and served upon the defendant a police family violence order.

In breach of the police family violence order, at 8.00pm, the defendant again went to her former partner’s house. She began to abuse her former partner and his current partner. She threatened them both and at one point pushed the current partner of her ex-partner. Before leaving, she smashed the panels of her former partner’s car. The incident was reported immediately to police and the defendant was placed under arrest. She resisted arrest, kicking and screaming. This conduct continued at the police station.

The magistrate was satisfied beyond reasonable doubt that the defendant committed the acts.

Issues:

1.

Whether the police family violence order was not validly made because:

◦

it was not made by a police officer of the rank of sergeant or above; and/or

◦

the officer who made the order was not satisfied, or the evidence available to him was not sufficient to satisfy him, that the defendant had committed or was likely to commit a family violence offence.

2.

Whether the defendant was not criminally responsible for any of the acts charged having regard to her mental illness and the provisions of s 16 of the Criminal Code 1924 (Tas).

Decision and Reasoning: The magistrate rejected defence counsel’s submissions in relation to the first issue (the validity of the family violence protection order) but upheld submissions in relation to the second issue (insanity).

1.

The police family violence order was validly made because the police officer was acting in the rank of sergeant at the time the order was made. The magistrate also rejected counsel submissions in relation to the second limb of the argument. These submissions amounted to a collateral challenge to the validity of the police family violence order. A collateral challenge is a challenge to the validity of an order in proceedings where the existence of the order is an element of the offence (not in proceedings to review or set aside the order). The legislation did not permit collateral challenge at least on the basis alleged here i.e. whether the factual basis of the order was sufficient ([26]-[30]). However, even if collateral challenge were available, the ground would not succeed because there was sufficient evidence to support the making of a police family violence order ([19]-[21], [31]).

2.

The defendant was not criminally responsible for any of the acts contained in each charge. On the balance of probabilities the defendant was deprived of the capacity of knowing whether the acts that she performed in respect of each charge were ones that she ought not to do because of her mental illness, i.e. the Bipolar Disorder that resulted in her entering into a hypomanic or manic state. The defendant clearly knew what she was doing but was not able to rationally think about her actions with a moderate degree of sense and composure. This was because of the impact of her mental illness.

Howe v S [2013] TASMC 33 (29 July 2013) – Tasmanian Magistrates’ Court

‘Breach of domestic violence order’ – ‘Charge particulars’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Guilty plea - withdrawal’ – ‘Protection order’

Charge: Breach of a police family violence order (3 counts)

Proceeding: Application for leave to withdraw a plea of guilty in respect of each charge and substitute a plea of not guilty

Facts: On 4 May 2012, a police family violence order was made against the male defendant that included the following order: ‘you must not directly or indirectly threaten, harass, abuse or assault J’. It was alleged that the defendant contravened this order by harassing the female protected person (‘J’). The defendant demanded that the protected person spend the night with him. The defendant threatened to take her child away if she refused to do so. In relation to pending family law court proceedings, the defendant also stated, ‘if you take this to court, things will get vicious and you know what happens when things get vicious. So it’s up to you. Either come and meet me tonight at the house or we will be enemies’ (count 1). This conduct also amounted to a breach of s 9 (emotional abuse or intimidation) of the Family Violence Act 2004 (Tas) (count 3). The police family violence order included an order that, ‘you must not approach (J) directly or indirectly threaten, harass, abuse or assault; by telephone, email, facsimile or letter’ [sic]. It was alleged that the defendant contravened this order by approaching the protected person on numerous times by text messages (count 2).

The defendant pleaded guilty because of advice from his lawyer. He obtained new legal representation and they advised him to lodge an application for leave to withdraw the guilty pleas. His counsel submitted that leave ought to be granted because the particulars alleged of the complaint were insufficient, as a matter of law, to support the allegation contained in each charge. It would be a miscarriage of justice to allow the guilty pleas to stand.

Issue: Whether leave should be granted to withdraw the pleas of guilty.

Decision and Reasoning: The application for leave to withdraw the guilty plea was allowed in respect of counts 2 and 3 but refused in respect of count 1. In relation to count 2, a miscarriage of justice would result if the guilty plea was allowed to stand. The particulars of the charge alleged the defendant approached the complainant on numerous undefined occasions by use of text messages. This breached the requirements of the Justices Act because the prosecution failed to set out each matter of complaint in separate numbered paragraphs and because the prosecution failed to provide particulars by which to identify the text messages said to constitute breach. The ‘rolling up’ of charges meant that the defendant had no real understanding as to what approach and which text message/s constituted the offence. It was impossible to determine what exactly he admitted to in the plea of guilty ([17]-[18]).

Leave was also granted in respect of count 3. The magistrate held that ‘the mental element required to amount to a breach of s 9 is that the defendant knew or ought to know that the course of conduct in which he was engaging is “likely to have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear in his spouse or partner”. This is not what has been alleged. That he knew or should have known that his conduct was “likely to have the effect of abusing or intimidating” his partner, is a different mental element from that referred to in the section’ ([23]).

However, the guilty plea was held to stand in relation to count 1. Counsel for the defence submitted that a person could not be ‘harassed’, as a matter of law, by one act alone. The magistrate concluded that, ‘Whilst I accept that the term “harass” as used in the general community could well include an element of persistence or repetition, I see no reason why a person cannot be harassed within the context of a Family Violence Order, by one act alone. This view is in fact consistent with the definition in s.4 of the Family Violence Act of the word “harassing” … The reference in the definition to “any one or more of the following actions” suggests that a single act might be sufficient. Furthermore, it is appropriate, in my view, to interpret the term having regard to the context in which it is used in the order. The reference to “threaten, harass, abuse or assault” suggests that the order is to be understood as providing protection to a person from contact with the respondent which is unwelcome, and might be in various forms or have variable effect’ ([12]-[16]).

Kerr v Brown [2013] TASMC 30 (8 July 2013) – Tasmanian Magistrates’ Court

‘Breach of domestic violence order’ – ‘Interpretation of order’

Charge: Breach of family violence order (FVO)

Facts: A family violence order (FVO) was made in favour of the protected person that prohibited the defendant from approaching the protected person directly or indirectly. After the order was made, she phoned the defendant and caught a bus to Hobart where he was residing and commenced residing at his property.

The defendant submitted that he never approached the protected person, notwithstanding the fact that when she approached him, he allowed her to remain living at his home. The prosecutor submitted that the order should be interpreted to mean that the defendant was not permitted to allow the protected person to come into his presence, and that if she did, he must immediately leave her presence.

Issue: Whether the defendant was guilty of the offence charged.

Decision and Reasoning: The charge was dismissed. ‘Clearly the intention of the order is to prevent the respondent from coming near or initiating communication with the person to be protected. However, my impression is that police, and perhaps courts, view the condition as a primary mechanism for keeping persons apart in cases where family violence has been alleged or perpetrated, and may well consider the order to have the more extensive effect contended for by the prosecution in this case.’ ([5]). The ordinary meaning of ‘approach’ in the context of the FVO is that a person should not intentionally contact or bring themselves into the presence of the protected person. The order should be interpreted in a way that it would be understood by persons in the position of the defendant without legal training and of limited education: ‘The defendant cannot, in my view, be said to have approached (the protected person) by simply allowing her into the house, even for an extended stay, once she was there. To hold otherwise would be to give the word an extended meaning which is beyond its ordinary common meaning.’

Lusted v MRB [2013] TASMC 9 (19 February 2013) – Tasmanian Magistrates’ Court

‘Assault’ – ‘Coercive control’ – ‘Emotional abuse’ – ‘Evidence’ – ‘Exposing children’ – ‘Following, harassing and monitoring’ – ‘Physical violence and harm’ – ‘Relationship evidence’ – ‘Risk factor - strangulation’ – ‘Tendency evidence’ – ‘Uncooperative witness’

Charge: Assault (6 counts)

Facts: The alleged assaults involved the defendant grabbing, pushing, striking, punching and pinching the complainant. One count involved the defendant grabbing her throat and pinning her against a table. Another involved pushing hot chicken into her face, grabbing hold of her by the chest and pouring cold water over her head ([17]-[28]). The complainant’s relationship with the defendant started when she was 15 and lasted for about 6 years. The prosecution’s evidence indicated that the defendant was controlling and violent towards the complainant throughout their relationship. The complainant was socially isolated and the defendant prevented her from contacting friends. He demanded that she wait on him and would strangle and abuse her if she did not comply with his demands. On one occasion, he threw a bottle at her. For further detail of the ‘uncharged acts’, see paragraphs [8]-[16]. There was one child of the relationship. The infant daughter witnessed two of the assaults.

Issue: Whether the defendant was guilty of the charged offences.

Decision and Reasoning: The charges were dismissed.

The prosecution adduced various circumstantial evidence from other witnesses ([29]-[42]). This included evidence of witnesses who noticed that the complainant had various physical injuries. The prosecution also sought to adduce evidence of the defendant’s tendency to engage in violent conduct against the complainant. Magistrate Pearse admitted this evidence on the basis that it had substantial probative value because it could be inferred that the relationship involved violent and controlling behaviour. The danger of unfair prejudice posed by the evidence was low, particularly in circumstances where no jury was involved. The prosecution also sought to adduce relationship evidence relating to uncharged conduct. This evidence was also admitted on the basis that it removed the implausibility of the assault being isolated. It also supported the assertion that the defendant exercised dominance and control and that the complainant feared the defendant.

This case involved serious and prolonged domestic violence. However, the complainant had not been entirely truthful about the relationship and her evidence was inconsistent with her parents’. She had discussed the possibility of ending the relationship with her parents and decided to leave him at the urgings of her mother once her father returned to town. However, on the day she decided to leave the defendant, she decided to return to him because he seemed remorseful and he offered to buy her dinner. As such, given the gravity of the conduct that was the subject of the complaint, the magistrate found it difficult to believe that the fear of what might happen in her father’s absence was a plausible explanation for her not leaving him. While the magistrate acknowledged that other explanations such as the fact that she may have become conditioned to such behaviour could be relevant, her account was doubted. There were no photographs, medical reports, phone records or other corroborating evidence. As such, the complaints were not proven beyond reasonable doubt.

The magistrate nonetheless emphasised the widespread scale and seriousness of family violence. ‘It is a significant social problem, of concern to the community and the justice system. The parliament saw fit to enact legislation, the Family Violence Act 2004, expressly to “provide for an integrated criminal justice response to family violence which promotes the safety of people affected by family violence”. The nature of family violence is that it is difficult to detect and prosecute. It is frequently the case that offences are committed in private and with little or no independent corroborative evidence. Moreover, family violence offences are often characterised by reluctance on the part of the victim to assist in the prosecution of offences. That is so for a range of factors including fear and a wish to preserve relationships, even dysfunctional ones, for the sake of loyalty, affection, companionship, economic and domestic support and in the perceived interest of children. Sometimes those motivations are misguided but persist nevertheless. As a consequence of such factors victims sometimes act in a way that seems to an outside observer to be incongruous and difficult to understand, including by failing to complain about, or hiding or lying about violence directed at them. Even if victims are willing to give evidence then the success of prosecutions depends principally on credibility of the uncorroborated account of the victim, a factor often taken advantage of by perpetrators and further adding to the reluctance of victims to complain.’ ([68]).

K v K [2012] TASMC 3 (25 January 2012) – Tasmanian Magistrates’ Court

‘Emotional and psychological abuse’ – ‘Interim intervention order’ – ‘Physical violence and harm’ – ‘Risk factor - suicide threat’

Proceeding: Application for revocation of an interim family violence order (IFVO)

Facts: A police family violence order was made against the applicant, which prohibited him from threatening, assaulting or approaching his wife. The order was made on the basis that the police officer was satisfied that family violence was likely to be committed. The applicant and his wife had separated. An argument occurred about the contents of their house but the applicant claimed he was not aggressive and did not threaten or abuse the complainant or threaten to harm himself. He claimed that when he was wheeling a motorbike out of the house, she stepped in front of it to prevent him from taking it and the bike struck her legs which caused her to fall. The complainant claimed that when the applicant attended her home to collect belongings, he was volatile and aggressive and threatened to shoot himself with guns kept on their property. She did not specify what words amounted to these threats or abuse. She claimed he pushed the motorbike against her.

Issue: Whether the order should be revoked.

Decisions and Reasoning: The order was revoked.

A police family violence order cannot be issued only on the basis that the officer believes family violence has been committed. Rather, the officer must be satisfied that a family violence offence has been or is likely to be committed. This is because the definition of family violence includes acts that may not amount to a family violence offence within the meaning of the Family Violence Act 2004 (Tas).

The protected person’s evidence was not corroborated. Family breakdowns can be traumatic so each party tends to perceive events influenced by their own interests. The only way an order could be made would be by proving that the applicant engaged in threats, intimidation, verbal abuse or a course of conduct that amounted to emotional abuse and intimidation. Alternatively, an order could have been made if an assault by pushing the motorbike was proven. Such conduct was not proven: ‘It is difficult to characterise or define what words may amount to threats, intimidation or abuse. The same words may in some circumstances amount to a threat or abuse when in other circumstances they may not. Much depends on the background and the context. In some circumstances even the most seemingly innocent words may be highly intimidatory. The court should consider whether one of the parties is in a position of disadvantage, either physically, emotionally, intellectually, socially or economically’ ([29]). The applicant was more credible as a witness than the complainant and the complainant would not be in a position of disadvantage in an exchange with her husband. She demonstrated throughout the course of the hearing that she was capable of protecting her own interests and it was unlikely that she would have felt threatened, coerced or intimidated. She also likely prevailed in the arguments about property and she likely overstated her evidence to paint the applicant in the worst light.

Buxton v Brinckman [2011] TASMC (21 July 2011) – Tasmanian Magistrates’ Court

‘Bail’ – ‘Bail – interim family violence order’ – ‘Breach of temporary protection order’ – ‘Inconsistency’ – ‘Statutory interpretation’

Charge: Breach of interim family violence order

Proceeding: Reasons for decision

Facts: An interim family violence order (IFVO) was made against the defendant that prohibited him from entering the premises of the protected persons. The defendant was living with his parents. The agreed facts established that one of the protected persons started living at his parents’ address as well. In breach of the order, the defendant continued to live in his parents’ house. However, at the relevant time the defendant was on bail. One of the conditions of the bail order was that he was to reside at his parents’ house.

The magistrate found that the elements of the offence were proven. The defendant submitted that given that he was obliged to reside at his parents’ house by the bail conditions, this relieved him of criminal responsibility for the breach of the IFVO. That is, because the failure to live at his parents’ premises would amount to a breach of bail, this should excuse the breach of the IFVO.

Issue: Whether the defendant was guilty of the offence charged.

Decision and Reasoning: While there may be some circumstances where a person might claim a defence of breaching a statutory obligation on the basis that some other law compels the breach, this was not the situation in this case. Section 6 of the Family Violence Act 2004 (Tas) (the Act) provides that the Act prevails to the extent of any inconsistency with another act. The Court acknowledged that the defendant’s parents made it impossible for him to comply with the bail condition without breaching the IFVO. However, the defendant could have applied for a variation of bail. In the interim period before bringing that matter before the court, the breach of bail may have been excused on the grounds of ‘reasonable cause’. As such, he was not relieved of criminal responsibility for breaching the IFVO.

Last updated: July 2024

Tasmania

Court of Criminal Appeal

Palmer v State of Tasmania [2024] TASCCA 6 (5 July 2024) – Tasmanian Court of Criminal Appeal

'strangulation' - 'assault - 'following, harassing, monitoring' - 'threat to animals

Charges: 2 x assault

Proceedings: Appeal against sentence

Facts: The appellant had pleaded not guilty to two counts of assault but on the second day of the trial before Wood J, he changed his pleas to guilty and was sentenced to three years' imprisonment with 14 months suspended. Both counts relate to his then female partner. Their relationship had deteriorated, and he had become very jealous and paranoid, watching the victim's movements via cameras installed in the house via an app on his mobile phone [8]. The victim had left with their baby son, but he had threatened to kill the horses if she did not return. [9] The assaults were committed during one incident on the same day, 24 February 2020. The appellant slapped the victim to the face, pushed her onto a bed, put his hands around her throat and squeezed, and headbutted her to the head (assault × 1). He also wrapped a dressing gown cord around her neck and pulled it tightly, and headbutted her to the head (assault x 2).

Grounds of appeal: That the sentence was manifestly excessive.

Decision and Reasoning: The appeal is dismissed.

Porter AJ (Blow CJ and Bret J agreeing with his conclusion and reasons concluded that the offences 'constitute quite appalling conduct. They were done in the context of an obsessive and possessive attitude on the part of the appellant. Those physical assaults, as is always the case with assaults in a domestic relationship, amount to breaches of trust. The second assault, involving strangulation by use of the dressing gown cord, is to be regarded in a particularly serious light...it is fortunate she was not more seriously injured.' [50] Error was not shown in the sentence and the sentence was not outside the permissible range

Gee v Tasmania [2022] TASCCA 1 (2 February 2022) – Tasmanian Court of Criminal Appeal

‘Admissibility of evidence’ – ‘Admissibility of prison telephone call recordings’ – ‘Admissions of guilt’ – ‘Appeal’ – ‘Credibility of victim’ – ‘Lies of victim’ – ‘Persistent family violence’ – ‘Post-offence conduct consistent with guilt’ – ‘Prison telephone calls’

Charges: Persistent family violence x 1.

Proceedings: Appeal against conviction.

Facts: The appellant was found guilty of persistent family violence [8]. He appealed on the following grounds:

1.

The learned trial judge erred in fact and in law in ruling that the complainant’s evidence be taken at a special hearing.

2.

The learned trial judge erred in fact and in law in admitting into evidence the recorded content of phone calls made by the appellant to the complainant:

◦

‘…in finding that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant’;

◦

‘…in finding that it would not be unfair to admit the evidence having regard to its late disclosure’; and

◦

‘…in admitting the evidence conditional upon the State recalling the witness in circumstances where it had previously asserted in support of the application for special hearing that it would not do so under any circumstances’ [7].

Decision and Reasoning: The appeal is dismissed.

Ground 1: The Court affirmed the trial judge’s ruling on the special hearing, dismissing the first ground of appeal [32]. The trial judge had found that when faced with the prospect of giving evidence in court in the presence of the accused, the complainant experienced symptoms of anxiety that ‘adversely affected’ her ability to comprehend and respond to questions ‘to a significant degree’. The trial judge noted that the complainant’s anxiety manifested ‘itself physically by her shaking and becoming effectively unresponsive’. Therefore, the trial judge was satisfied that by requiring the complainant to give evidence ‘in the usual way’ she would likely ‘suffer severe emotional trauma’ and ‘be so intimidated or distressed as to be unable to give evidence… satisfactorily’. The trial judge explained that this was due to the nature of the complainant’s ‘relationship with the accused and… the subject matter’ [16].

Ground 2: The court dismissed the second ground of appeal, stating that ‘the evidence was highly probative, involving admissions of guilt, post-offence conduct consistent with guilt and evidence highlighting the complainant's credibility’ [48]. The court held that the complainant’s admitted lies did not mean none of her evidence was to be believed.

Otto v Tasmania [2021] TASCCA 15 (16 December 2021) – Tasmanian Court of Criminal Appeal

‘Accessory after the fact’ – ‘Application for leave to appeal’ – ‘Crown appeal against sentence’ – ‘Female perpetrator’ – ‘Murder’

Charges: Murder.

Proceedings: Application for leave to appeal against conviction; Crown appeal against sentence.

Facts: The applicant was convicted of the murder of her husband, the allegations being that she instigated her husband’s friend and her former lover Bradley Purkiss to commit the crime. The case against the applicant was solely circumstantial. The victim had been behaving erratically in the weeks leading up to the murder and the applicant and co-accused had spent a number of hours together on the afternoon before the murder. It was clear that the jury did not believe the applicant’s exculpatory statements in her police record of interview. The applicant and victim had been experiencing financial difficultied prior to the murder and she had reported to witnesses that her husband had mental and physical health issues which prevented him from working, and he was said to be an intimidating person. The applicant and Purkiss had a brief sexual relationship which ended prior to the murder, but they remained close. Text messages between Purkiss and the victim on the day of the murder were recovered from the victim’s phone, there was video evidence a man wearing a hood entered the applicant and victim’s home met after the murder and the CCV was disconnected after that person entered the home.

Grounds:

Application for leave to appeal – the verdict of the jury was unreasonable and cannot be supported with regards to the evidence (accepting a verdict of accessory after the fact should be substituted if successful).

Appeal against sentence – manifest inadequacy.

Decision and reasoning:

1.

Leave granted and appeal allowed.

2.

Verdict of guilty of murder set aside and verdict of being an accessory after the fact to murder substituted.

3.

Sentence for murder set aside.*

Porter J (Brett and Geason JJ concurring) held that the question for the court was whether it was open for the jury to have excluded all reasonable hypotheses consistent with innocence. On the evidence before the jury it was not possible to exclude the hypothesis put by the applicant in argument.

*Note: On 17 December 2021, for the crime of being an accessory after the fact to murder, the Court recorded a conviction and sentenced the appellant to six years' imprisonment to commence on 30 May 2017. The Court ordered that she not be eligible for parole until she had served one half of that sentence.

McCall v Tasmania [2021] TASCCA 11 (12 November 2021) – Tasmanian Court of Criminal Appeal

‘Accusations of infidelity’ – ‘Aggravated burglary’ – ‘Appeal against sentence’ – ‘Community protection’ – ‘Extensive criminal history’ – ‘Home invasion’ – ‘Manifestly excessive or inadequate’ – ‘People affected by substance misuse’ – ‘People who are homeless’ – ‘People who are pregnant’ – ‘Sentence’ – ‘Sentencing’

Charges:

Incident 1: Aggravated burglary x 1, assault x 1, associated summary offences;

Incident 2: evading police x 1, dangerous driving x 1, associated summary offences.

Proceedings: Appeal against sentence.

Facts: The accused man appealed the sentences imposed by Brett J for offending arising out of two separate incidents. The first incident was of violent offending including aggravated burglary and assault towards his then domestic partner (pregnant with a former partner’s child) and the violent invasion of the home of people with whom they were staying during a period of homelessness. The second incident related to the accused’s attempts to avoid arrest for the first incident by engaging in dangerous driving while under police pursuit. The accused had an extensive criminal history “which manifests in persistent and serious violent offending” and “a lengthy history of traffic offending, including a number of convictions for disqualified driving, and convictions for evading police and negligent driving”. Brett J noted that the only factors which could be taken into account in the accused’s favour were his pleas of guilty and the principles of totality. The appellant argued that the 18-month delay between his arrest and sentence should have been taken into account in mitigation.

Issue: Were the sentences imposed (7 years total term of imprisonments, eligible for parole after 5 years, together with a driving disqualification for an aggregate of 6 years from the date of release) manifestly excessive?

Decision and Reasoning: Appeal dismissed.

Aggravating circumstances related to the first incident included:

•

The aggravated burglary took the form of a very frightening home invasion.

•

The victim of the assault was a pregnant woman.

•

It was a prolonged assault.

•

It amounted to domestic violence. [11]

Aggravating circumstances in relation to the dangerous driving included:

•

The crime occurred on a Monday afternoon, when it was likely that there would be motorists and pedestrians on the streets of Penguin.

•

A number of drivers had to swerve to avoid collisions.

•

A number of pedestrians, including an elderly woman, were crossing roads when the appellant drove towards them.

•

A number of police officers were involved in intercepting the appellant.

•

The appellant drove for about 7 kilometres when evading the police.

•

He ignored emergency lights and sirens.

•

He continued to drive after the vehicle's tyres were deflated.

•

He was a disqualified driver. [12]

The appellant was always likely to receive a term of imprisonment greater than the 18-month delay, negating any mitigation this factor might grant. [13]

Blow CJ, Jago J and Martin AJ observed:

….it cannot be said the impugned sentences, separately or in the aggregate, were out of proportion to the seriousness of the appellant's offending, particularly since provision was made for him to be eligible for parole two years before the expiration of the last sentence. [25]

Gordon v Tasmania [2020] TASCCA 17 (2 December 2020) – Tasmanian Court of Criminal Appeal

‘Appeal against sentence’ – ‘Exposing children to domestic and family violence’ – ‘Female perpetrator’ – ‘Manifest excess’ – ‘People affected by substance misuse’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Traumatic childhood’ – ‘Verdins principles’

Charges: Wounding x 1; Common assault x 2.

Proceedings: Appeal against sentence.

Facts: The female appellant had a traumatic childhood, being sexually abused by her father and exposed to domestic and family violence. She had a history of mental illness (including depression, borderline personality disorder and post-traumatic stress disorder), substance misuse (she had ceased drug use but was drinking heavily at the time of the offending), and a lengthy record of offending. The offences occurred during the course of an argument between the appellant and her mother, and related to feelings of love/betrayal the appellant felt towards her mother for her childhood. The appellant cut her mother’s fringe with a knife and forced her head back onto the couch. She put her mother in a headlock and cut across her neck. The appellant threatened to stab a neighbour while holding two knives. The appellant was sentenced to 2 years imprisonment. The sentencing judge determined not to make an order that the appellant was eligible for parole. The appellant was made the subject of a community correction order for 12 months.

Grounds of appeal:

1.

The sentence was manifestly excessive.

2.

The sentencing judge erred in fact and/or law in determining that an order for parole eligibility ought not be made.

Held: The appeal was allowed on ground 2 and the appellant re-sentenced.

Ground 1: There was sufficient evidence in the forensic psychiatrist’s report to establish a connection between the appellant’s impaired mental functioning and its contribution to the offending: 6 Verdins principles discussed at [27]-[33], [39]-[46] and [47]-[50]. Nevertheless, the 2 year head sentence could not be said to be manifestly excessive. It was not outside the range available to the sentencing judge. The appellant’s traumatic childhood, presence of mental disorders, and the relationship issue which lay at the heart of the offending were more appropriately taken into account in whether relief ought to be afforded in relation to the service of 2 years’ imprisonment (at [53]-[56]).

Ground 2: The appellant alleged that the sentencing judge misapplied certain material relevant to parole. However, the court declined to take the alleged factual errors further, instead allowing the appeal on other grounds (at [57]-[64]).

The failure to provide some relief from the full force of 2 years imprisonment was unreasonable and plainly unjust. The circumstances of the offences/offender called for some individualisation, these being: “the appellant's background of sexual abuse, her nature and extent of her illnesses, the underlying explanation for the attack on her mother, her remorse and the prospects of rehabilitation with sustained psychological therapy” (at [78]). The appellant was re-sentenced to 2 years’ imprisonment, 8 months suspended on conditions including supervision of a probation officer in relation to drug/alcohol treatment, and undergoing medical, psychological or psychiatric assessment or treatment.

Tatnell v Tasmania [2020] TASCCA 13 (7 August 2020) – Tasmanian Court of Criminal Appeal

‘Appeal against conviction’ – ‘Assault’ – ‘Evidence’ – ‘Prior inconsistent statements’ – ‘Strangulation’ – ‘Trauma informed judicial practice’

Charges: Assault x 1.

Proceedings: Appeal against conviction.

Facts: The male appellant was charged with 3 counts of assault against his wife during the course an argument. A jury found the appellant guilty of the first count, which included strangling his wife and punching the wall above her head, but not guilty of the other counts. The trial judge imposed a wholly suspended sentence of 12 months’ imprisonment and made a community correction order.

Grounds of appeal: Whether inconsistencies between the complainant’s description of the relevant events in evidence and that provided to police made the jury’s verdict unsafe and unsatisfactory.

Held: Appeal was dismissed.

The jury was entitled to accept the complainant’s explanation of the inconsistencies. This was particularly so given the jury’s advantage of hearing the complainant give evidence and in the context of all the evidence (including objective evidence of strangulation). The jury’s acceptance of this evidence was sufficient to support the verdict of guilt on count 1.

Parker v Tasmania [2020] TASCCA 9 (12 June 2020) – Tasmanian Court of Criminal Appeal

‘Appeal against sentence’ – ‘Guilty plea’ – ‘History of abuse’ – ‘People affected by alcohol misuse’ – ‘Physical violence and harm’ – ‘Statistics’ – ‘Terminally ill victim’ – ‘Vulnerable victim’

Charges: Assault x 2

Case type: Second appeal against sentence

Facts: This is a second sentencing appeal by the appellant man in respect of 2 counts of assault on his female partner (see Parker v Tasmania [2019] TASCCA 16 (8 October 2019) . He plead guilty and his plea to one count was accepted in satisfaction of a charge of causing grievous bodily harm. The appellant was sentenced by Blow CJ to 4 years’ and 3 months’ imprisonment, with a non-parole period of 2 years, 9 months. He appealed on grounds the sentence was manifestly excessive and that the sentencing judge erred in determined the factual basis for sentence. Blow CJ resentenced him to 3 months longer than the original sentence with the same non-parole period. The offences were recorded as family violence offences.

The appellant struck the complainant, a terminally ill cancer patient, in the head with a teapot, and then pushed her, causing her to fall over. The fall caused the complainant’s hysterectomy wound to split open and her bowel to protrude. He had been drinking prior to the assaults. The appellant’s version of events differed from the complainant’s; the complainant’s sworn evidence was found to be more reliable.

The appellant’s lengthy criminal history included prior convictions for assault and for breaching family violence orders for violence towards an earlier partner and the current complainant. Factors in the appellant’s favour included the fact that he pleaded guilty, phoned the ambulance and did not flee from the scene, and admitted what he had done to the 000 operator and police. He left the complainant alone and bleeding to ask a neighbour for a cigarette. He recognised his violence was associated with his alcohol problem and sought treatment. The complainant was vulnerable and suffered terrible physical and mental health consequences as a result of the appellant’s actions ([11]). Aggravating features included that the assaults occurred in the context of a domestic relationship, the complainant suffered from a terminal illness and the appellant was her carer ([12]).

Ground: The second sentence was manifestly excessive.

Held: Appeal dismissed, Estcourt, Pearce and Geason JJ concurring.

Estcourt J considered Gregson v Tasmania [2018] TASCCA 14, a case which considered comparative sentencing statistics. In considering the "yardstick" of the available statistical and comparable sentencing data, Estcourt J held that the sentence imposed on the appellant was "heavy", but not plainly unjust or unreasonable. The appellant was sentenced on the basis that he did not intend or foresee the serious harm to the complainant, but the consequences of the assault were nevertheless egregious ([29]). As the sentencing judge noted, the situation was worse than that of a drunken man assaulting a terminally ill partner, because the appellant knew that the complainant had an untreated abdominal hernia. This made the breach of trust even greater ([30]).

Pearce J did not characterise the sentence as "heavy". Whilst the appellant did not intend or foresee the terrible harm caused, the likelihood of such harm ought to have been obvious to any reasonable person with knowledge of the complainant’s vulnerability ([35]).

Geason J agreed with Estcourt J’s characterisation of the sentence as "heavy". His Honour noted that "this Court has on a number of occasions emphasised the importance of general deterrence in sentencing for offences involving the infliction of violence on the vulnerable", which frequently occur in a domestic or relationship setting, and that "[s]uch conduct requires a sentence that reflects the insidious nature of such offending, and the importance of protecting those vulnerable to such harm" ([41]).

Director of Public Prosecution v Johnson [2020] TASCCA 4 (8 April 2020) – Tasmanian Court of Criminal Appeal

‘Alcohol misuse’ – ‘Appeal against sentence’ – ‘Attempt to interfere with witness’ – ‘Coercive control’ – ‘Controlling, jealous and obsessive behaviours’ – ‘History of abuse’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Stalking.’ – ‘Suffocation’ – ‘Use of family members’

Offences: Assault x 2; Stalking x 1; Attempt to interfere with a witness x 1; Breaching a family violence order x 15; Attempting to breach a family violence order x 23

Proceedings: Crown appeal against sentence

Issue: Whether the sentence was manifestly inadequate

Facts: The male respondent and female victim were in a relationship and had moved in together. The respondent was arrested for breaches of a protective order made for the benefit of the victim, sentenced and a 12-month family violence order was imposed consisting of full non-contact conditions. Nine days later, the respondent made contact with the victim in breach of the order, promising he had changed. The respondent called the victim telling her he had paid for a hotel for the two of them to meet. The victim agreed and when she arrived, they had consensual sexual intercourse. They then consumed a fair amount of alcohol. Later that evening, the victim received a text message from a male friend. The respondent became aggressive and claimed the victim had been cheating. He pushed her head onto the bed and struck her face four times, pulling a clump of hair out. The respondent went to the bathroom for a few minutes and when he returned, he pushed the victim’s face into a pillow and sat on her back so that she couldn’t move. The victim thought she was going to die. The respondent eventually let her go but grabbed her arm and told her she would never see her children again. The victim told the respondent that she had to use the bathroom; she went inside, locked the door and sat in the shower. The respondent banged on the door, but the victim came out when he stopped. She asked to be allowed to sleep; the respondent allowed her to while he was holding her arm.

The next morning, the victim called her sister to tell her what had happened, asking her to pick her up. The victim reported the matter to police. Over the next few days, the respondent sent torrents of text messages and made numerous calls to the victim, which ranged from threats to pleading. He later had his father pass two letters onto the victim, asking her to withdraw the charges and refuse to give evidence. The victim refused. The respondent was convicted and sentenced to two years’ imprisonment with a non-parole period of twelve months.

Judgment: The court allowed the appeal, finding the sentence to be manifestly inadequate in that it "[fell] short of that required to adequately respond to the gravity of the offending" [41], and resentenced the respondent to three years’ imprisonment with a non-parole period of 18 months. The court held that "Apart from the fact that the offending occurred in breach of court orders intended to protect a vulnerable female, the respondent's conduct involved acts of significant persistent violence including suffocation, followed by persistent attempts to have her drop the charges or refuse to give evidence; and stalking" [31]. The court emphasised that "Offending occurring in the privacy of the home, unseen, and away from help must be met with a penalty that serves as a warning to others that detection and conviction will result in severe consequences" [31].

The court condemned suffocation, providing that "The fact that the respondent's conduct included suffocation has significance to the assessment of the objective seriousness of the offending. Suffocation should be treated with the same level of seriousness as is afforded strangulation or throttling. Such conduct is inherently dangerous, and capable of causing serious consequences within a very short period. It renders victims incapable of acting to protect themselves … it is a form of dominance and control which has the potential to cause grave psychological harm, serious injury and even death" [33]. The court held this to be an aggravating factor, along with the fact that the offending occurred just 12 days after the respondent was released and that the respondent attempted to interfere with prosecution of the case [34]-[35]. The court noted that "the objective seriousness of the offending was very high encompassing serious assaults in circumstances where help was not available, followed by a series of attempts to avoid prosecution. Because that sort of interference has a probability of success, to the detriment of the safety of the victim and the frustration of community attempts to protect the vulnerable, gaol should be the inevitable consequence of such conduct" [37].

The court concluded that:

"the prosecution of family violence matters is notoriously difficult due to the vulnerability of victims to interference and pressure from perpetrators, with whom they will often have been in a relationship … the circumstances of this case make it an appropriate vehicle through which to assert a general principle that conduct directed at interfering in the prosecution of family violence matters so significantly erodes the administration of justice that it should attract a heavy sentence of imprisonment. This is important to encourage community participation in reporting such violence, and to provide confidence in the processes which follow reporting. The importance of this principle prevails over the matters referred to by the respondent in respect of his rehabilitation and parole" [55]. And further, "Prosecutions are the cornerstone of the system for the protection of victims. They serve to expose the offending, protect the victim and afford an opportunity for intervention directed towards the rehabilitation of the offender" [54] and that "A message needs to be sent to violent men in the community that serious assaults on females and intimidatory and stalking behaviour, and behaviour designed to persuade a witness not to give evidence, will result in considerable periods of imprisonment" [74].

Hardwick v Tasmania [2020] TASCCA 2 (20 March 2020) – Tasmanian Court of Criminal Appeal

‘Assault’ – ‘Assault of child’ – ‘Children’ – ‘Error in assessment and use of evidentiary material relevant to sentence’ – ‘Manifestly excessive’ – ‘No prior convictions’ – ‘Non-fatal strangulation’ – ‘Parenting dispute’ – ‘People affected by alcohol misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Separation’ – ‘Spousal assault risk assessment guide’ – ‘Suicide threat’ – ‘Trespass’

Charges: Aggravated burglary and assault x 1; Common assault x 1.

Case type: Appeal against sentence

Facts: The appellant man pleaded guilty to aggravated burglary and assault, and to a summary offence of common assault. He was sentenced to 2 years’ and 6 months’ imprisonment on various conditions. The crimes were committed in the context of a domestic relationship against his wife (the victim) and teenage son. The appellant and victim had separated after 22 years of marriage, and had 3 children. On the day of offending, the appellant attended the family home where the victim and children lived, having been denied contact with the youngest child, after having consumed a considerable amount of alcohol. He smashed into the home and choked and punched his wife and teenage child. The sentencing judge was satisfied that the appellant was not coping well with the dissolution of the marriage. The appellant had attempted suicide, and the family was concerned about his psychological state. He breached an agreement that he was not to attend the home without the victim’s consent, and was therefore a trespasser. The sentencing judge made a family violence order and directed that the crimes and summary offence be recorded on the appellant's criminal record as family violence offences.

Issue: The appellant appealed against the sentence on the ground that it was manifestly excessive. It was also contended that the sentencing judge erred in his assessment and use of evidentiary material relevant to sentence. Underlying much of this submission was the complaint that the sentencing judge should have relied on a pre-sentence report which concluded that the appellant presented ‘a low risk of future family violence’. The appellant also submitted that the sentencing judge misused or gave undue weight to statements in the Victim Impact Statements, in particular, the description of the effects of the act of choking.

Held: The learned judge’s sentencing considerations were discussed again on appeal ([20]-[27]). The appellant had not previously committed any criminal offences and had a "significant potential for employment". Whilst the offending was not premeditated, the medical evidence stated that he was suffering from an adjustment disorder at the time of the offending. As to the likelihood of future violence, a psychologist used a ‘structured professional judgment tool’ (SARA) designed to predict intimate partner violence recidivism. Based on the SARA, the appellant was assessed at being at moderate risk of further violence towards the victim. The combination of the SARA and other ‘red-flag’ risk factors led the psychologist to conclude that the appellant still posed a risk to the victim. Further, notwithstanding his guilty plea and cooperation in the proceedings, the appellant lacked insight and remorse and minimised the severity of his conduct. There was a need for personal deterrence as his personality traits, such as narcissism, predisposed him to having a ‘severe explosive reaction to the relationship separation’.

The appellant contended that the sentencing judge should have accepted the assessment of the probation officer in the pre-sentence report over the SARA. The Court held that the sentencing judge was not bound to accept the officer’s assessment or the reliability of the appellant’s statements to the officer ([36]). The officer was not provided with the SARA conducted by the psychologist, and took the appellant’s statements at face value ([37]). The officer’s assessment therefore provided a less reliable basis for findings relevant to sentence than the SARA ([39]-[40]).

Further, there was no basis for concern that the sentencing judge misused the Victim Impact Statements. In his sentencing remarks, he noted the victim's description of the terror she experienced while being choked and said it was "clear" that she perceived the choking as a "potentially lethal attack and felt powerless" to stop the appellant. He also described the violence as "unexpected, explosive, and unrestrained", and concluded that the assault was "brutal" with the potential to inflict serious injury ([50]). In relation to strangulation, the sentencing judge found:

"Attempted strangulation which does not result in death or physical injury, can still have long-term physical and psychological impact, and leave the victim susceptible to ongoing symptoms. In criminal assault such acts are generally used to subdue and force compliance by the victim without any real thought being given to the danger inherent in such conduct. Those dangers were clearly apparent in your actions in this case. Your rage and lack of restraint meant that you had no real capacity to judge or moderate your attack, and the complainant was therefore in real danger of serious injury or worse."

The Court of Appeal held that there was ample foundation in the evidence to support the sentencing judge’s remarks. His Honour correctly regarded the choking as a "particularly concerning aspect" of the assault, and appropriately considered the dangers attached to the appellant’s conduct as part of his overall assessment of the gravity of the offending ([52]-[53]). He also observed that the appellant’s conduct "constituted an extremely serious episode of family violence" ([63]). The Court of Appeal acknowledged that the choking of female victims by male offenders is understood by criminal courts as a "prevalent and dangerous feature of violence perpetrated in domestic circumstances" ([53]). Victims of domestic violence are vulnerable and the crimes are often committed in breach of the sanctity and safety of the family home ([64]). It referred to DPP v Foster and Gregson v Tasmania as support for the propositions that women in domestic circumstances are particularly vulnerable and violent behaviour by men towards women "must be condemned and discouraged" ([65]).

Consequently, the appeal was dismissed. Notwithstanding the appellant’s prospects of successful rehabilitation, he engaged in dangerous and distressing conduct against his wife and child and remains an ongoing risk of future violence ([66]-[70]).

Parker v Tasmania [2019] TASCCA 16 (8 October 2019) – Tasmanian Court of Criminal Appeal (This decision was the subject of an unsuccessful appeal - Parker v Tasmania [2020] TASCCA 9 (12 June 2020))

‘Appeal against sentence’ – ‘Physical harm and violence’

Charge(s): Assualt; Causing grievous bodily harm

Proceedings: Appeal against sentence

Grounds:

•

1a. The sentencing judge erred by making factual findings inconsistent with the unchallenged assertions of fact by the defence;

•

1b. The findings of fact made were objectively more serious than those asserted by the defence and led to the imposition of a sentence that was manifestly excessive

•

2. The sentence was manifestly excessive.

Facts: Appellant man pleaded guilty to two counts of assault against his then female domestic partner. The plea of one of the counts was accepted by the Crown in satisfaction of a charge of causing grievous bodily harm. The appellant was convicted and sentenced to four years and three months imprisonment with a non-parole period of two years and nine months.

The appellant and complainant had been in a domestic relationship for about five years. The complainant was diagnosed with terminal ovarian cancer in May 2017, whilst the appellant was in prison for driving offences from April to August 2017. The complainant had treatment and on the appellant’s release he was her carer. She had a number of hospitalisations and had had a hysterectomy in July. On 27 September the appellant and complainant had a prolonged argument after he had been drinking all day. The appellant struck the complaint in the back of the head with a teapot during the course of an argument. He then pushed the complainant over, causing her to strike her head on a hard item of furniture. The fall caused her surgical wound to rupture and her bowel to protrude. The complainant required immediate surgical treatment and was later assessed that have suffered an evisceration of her small bowel, an abrasion to her nose, a laceration to the back of her head, grazes to her hands and left knee, and was developing bruises [8]. The appellant was heavily intoxicated at the time of the offence.

Judgment: The appellant’s sentence was quashed and the matter was remitted to the sentencing judge for resentencing.

Counsel for the appellant submitted that "there were a number of inconsistencies between the facts asserted to the sentencing judge by the Crown and the defence" [11]. Justice Pearce noted that the only difference that was of consequence was the immediate circumstances of the assaults as the circumstances would inform the objective gravity of the assaults and the appellant’s culpability. Reviewing the sentencing judge’s reasons, Pearce J found that "the sentencing judge either did not realise, or ignored, the inconsistencies" between the versions [15]. By ignoring these inconsistencies, the "exercise of the sentencing discretion miscarried" [22]. Given that the sentencing judge imposed sentence on the basis of disputed facts, the first ground of appeal succeeded [22]. Although the first ground succeeded, Pearce J provided that "[n]o assessment of the remaining grounds of appeal asserting that the sentence is manifestly excessive can be undertaken until the proper factual basis of sentence is determined" [23].

Director of Public Prosecutions v Foster [2019] TASCCA 15 (12 September 2019) – Tasmanian Court of Criminal Appeal

‘Appeal’ – ‘Coercive control’ – ‘Domestic relationship’ – ‘Family violence order’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Strangulation’

Charges: 5 x assault; 1 x demanding property with menaces with intent to steal

Case type: Appeal against sentence

Facts: The respondent pleaded not guilty to 5 counts of assault and 1 count of demanding property with menaces with intent to steal. The offences committed by the respondent occurred during the course of a domestic relationship. He was found not guilty of 3 counts of assault, but guilty of the remaining counts. The learned sentencing judge sentenced the respondent to 16 months’ imprisonment with a non-parole period of half of that term. His Honour also made a Family Violence Order.

The DPP appealed against the sentence on the sole ground that it was manifestly inadequate. The appellant submitted that the respondent committed 2 serious assaults, both of which were prolonged and involved strangulation. The crime of demanding property with menaces with intent to steal was arguably serious as it was committed during a prolonged attack and involved threats to kill the complainant and her children. It was also submitted that these matters were not isolated as they occurred in the context of a violent and abusive relationship ([13]).

Issue: The question for the Court was whether the sentence was manifestly excessive or inadequate.

Held: The sentence of 16 months’ imprisonment was found to be manifestly inadequate, having regard to the seriousness of the offending in the context of the domestic relationship ([42]). Estcourt J accepted that appellant’s submissions as ‘undoubtedly correct’ ([19]). Each incident involved ‘vicious and cowardly attacks by the respondent on a woman’. The respondent had convictions for violent offences, including ones of family violence. Citing an article by Heather Douglas and Robin Fitzgerald, his Honour observed that ‘strangulation is a form of power and control that can have devastating psychological long-term effects on its victims in addition to a potentially fatal outcome’ ([26]). It can cause loss of consciousness and lead to a sudden death ([27]). Further, the respondent’s prior convictions indicated that the present offences were not isolated or unusual. He did not plead guilty and did not show any remorse ([28]). His Honour allowed the appeal, set aside the sentencing order and imposed a new sentence of 2 years and 6 months’ imprisonment, with parole eligibility after serving half of that sentence. The Family Violence Order made by the learned sentencing judge was undisturbed ([36]-[37]). Brett J and Marshall AJ agreed with Estcourt J’s reasons.

Gregson v Tasmania [2018] TASCCA 14 (31 August 2018) – Tasmanian Court of Criminal Appeal

‘Coercive control’ – ‘History of domestic violence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Vulnerable grounds’ – ‘Women’

Charges: Assault x 2.

Appeal type: Appeal against sentence.

Facts: The appellant had violently attacked his vulnerable female partner with whom he was in a domestic relationship. The parties were arguing, mostly about the appellant’s intoxication and his lifestyle, characterised by his drug and alcohol abuse. The appellant delivered numerous forceful punches to the victim’s face, and shortly afterwards, returned and delivered more forceful blows to her head. She did not sustain any fractures, but the conduct was unprovoked and caused her to suffer nightmares. Estcourt J sentenced the appellant to two years’ imprisonment with a non-parole period of 18 months.

Issues: Whether the sentence was manifestly excessive.

The appellant submitted that:

•

He was sentenced during ‘women’s month’ which may have influenced the sentencing judge’s decision.

•

The sentencing judge failed to take into account that immediately before the second assault, the appellant was ‘assaulted by the victim with a large serrated-edge kitchen knife’, and acted in ‘self-defence’.

•

He should have been sentenced in the Magistrates Court.

Decision and reasoning: The appeal was dismissed. The Court agreed with the sentencing judge’s description of the offending as a ‘cowardly attack’ and his observation that ‘Vulnerable women such as the complainant are entitled to the protection of the law against brutal partners, and the community expectation is that such protection will be provided by the Courts’ ([29]). Although he did not use a weapon or kick the victim, the nature and strength used was not insignificant. The Court held that although the appellant should not be re-punished for his prior criminal conduct, he was not entitled to any leniency. The Court noted that the appellant had a history of violence towards women. The prevalence of this type of conduct impacts on the community at large. Women in domestic circumstances are particularly vulnerable to the abuse of power and breach of trust by violent male partners (Director of Public Prosecutions v Karklins [2018] TASCCA 6 [54]–[60]). Women who become victims in these circumstances, and other potential victims in the community, are entitled to such protection as the law can provide by the imposition of sentences that will act as both a personal and general deterrent ([37]). Whilst the sentence of two years’ imprisonment was towards the upper end of the appropriate range of the sentencing discretion, it was not manifestly excessive, harsh or unjust. Having regard to the appellant’s record of prior offending and disregard for court orders, the sentencing judge was found to be lenient in fixing a non-parole period, and the non-parole period of 18 months was within the range of sentencing discretion.

Director of Public Prosecutions v Karklins [2018] TASCCA 6 (20 April 2018) – Tasmanian Court of Criminal Appeal

‘Appeal against sentence’ – ‘Coercive control’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Listening to Victims’ – ‘Physical violence and harm’ – ‘Pregnant people’ – ‘Sentencing’ – ‘Systems abuse’ – ‘Vulnerable groups’

Charges: Assault x 1; Assault on a pregnant woman x 3; Attempt to interfere with a witness x 5; Destroying property x 1.

Appeal type: Prosecution appeal against sentence.

Facts: The respondent and complainant had been living together for 5 months with the complainant’s son ([6]). The complainant was 4 weeks pregnant at the time of the offences ([7]). The respondent threatened to leave the complainant, but the complainant asked him to stay ([9]-[10]). The respondent threatened to kill her and the baby. He headbutted the complainant and strangled her three times, causing her to lose consciousness twice ([13]-[16]).

The respondent was arrested and on remand. The respondent told a friend to tell the complainant that if she retracted her statement, he would ‘consider getting back with her’ ([22]). The complainant did so ([23]). The respondent was sentenced to 1 year and 10 months’ imprisonment with a non-parole period of 11 months.

Issues: Whether the sentence was manifestly inadequate.

Decision and Reasoning: Geason J emphasised aggravating features of the case, such as the fact that the respondent had the opportunity to reflect on his conduct between each attack ([55]), that he did not seek help for the complainant ([51]), that the crimes were committed in the context of a domestic relationship ([54]), and that the complainant was unable to defend herself ([50]). Mitigating considerations included the fact that the respondent pleaded guilty early ([61]).

In relation to the charges of interfering with a witness, Geason J at [56] remarked on the importance of such charges in aiding the administration of justice in relation to domestic violence:

The respondent's attempts to frustrate his prosecution should also be seen as particularly serious matters. They were a cynical exercise in emotional blackmail … Domestic violence typically occurs behind closed doors, making detection inherently difficult. Relationship dynamics frequently militate against a prosecution. Conduct directed at interfering with the prosecutorial process undermines the system intended to afford protection to victims of violence, making an inherently difficult process more so … It should be accepted in cases of family violence that attempts to interfere with the due administration of justice by the means of emotional manipulation of a vulnerable victim is a serious matter the consequences of which will always be severe.

Geason J referred to R v Kilic [2016] HCA 48, where the High Court stated at [21] that sentencing practices for offences involving domestic violence may ‘depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’. His Honour at [92] subsequently justified interfering with the sentence on the basis that:

Domestic violence is properly regarded as a most serious form of offending, frequently hidden from view, and thus difficult to detect. The court has a symbolic function. Censure for domestic violence should be communicated through the sentences which are imposed.

His Honour cautioned against giving weight to the complaint’s forgiveness of the respondent ([77]). His Honour questioned the sentencing judge’s generous characterisation of the respondent’s conduct during the assault ([83]-[86]).

Price v Tasmania [2016] TASCCA 22 (6 December 2016) – Tasmanian Court of Criminal Appeal

‘Assault’ – ‘Extraordinary case’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Public protection’ – ‘Unlawful assault causing bodily harm’

Charge/s: Assault x 3; unlawful act intended to cause bodily harm x 1.

Appeal Type: Appeal against sentence.

Facts: The male appellant and the female complainant were in a relationship. The three assault counts occurred in August 2014 and April 2015 after the appellant had been drinking. The appellant punched the complainant in the face, choked her, and fractured her wrist. The final count occurred in June 2015 when, after an argument, the intoxicated appellant threw petrol on the complainant and ignited her. The complainant’s daughter heard the screams and rescued her mother. The appellant was sentenced to ten years imprisonment with a non-parole period of six years.

Daley v State of Tasmania [2016] TASCCA 10 (22 August 2016) – Tasmanian Court of Criminal Appeal

‘Aggravating factor’ – ‘Children’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relevance of impact on children’

Charge/s: Murder x 2.

Appeal Type: Appeal against sentence.

Facts: The 60 year old appellant murdered his former partner, 31 year old Meagan Wilton, and her new partner, 34 year old Benjamin Eyles, by shooting them with a shotgun. The appellant and Ms Wilton had a 21 month old son together, and Ms Wilton had two other girls, aged 12 and 9. Ms Wilton’s youngest daughter and the appellant’s son were in the house at the time of the murders. After leaving the premises, the appellant tried to commit suicide by shooting himself in the head. He suffered brain damage, lost the ability to walk, and required visual and hearing aids. He pleaded guilty and was sentenced to 45 years imprisonment, with a non-parole period of 25 years.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Estcourt J provided the lead judgment, with Blow CJ and Brett J agreeing but providing additional comments. Relevantly, Blow CJ stated that while the punishment here was significant and that there were a number of mitigating factors in the circumstances, these carried little weight in light of the aggravating factors of this case. As per His Honour: ‘[t]hese were deliberate killings. They were premeditated. They were motivated by vindictiveness towards a former partner’ (see [4]). Moreover, ‘[t]his was a case in which the impact of the killings on survivors [was] particularly significant’. The children who were present in the house could suffer long-term psychological or psychiatric consequences (see [5]). Further, the impact of the crime would be felt by family members raising the children, and police officers who worked on this case.

Devine v Tasmania [2015] TASCCA 19 (26 August 2015) – Tasmanian Court of Criminal Appeal

‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Deterrence’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Vulnerable - new partner’

Charges: Aggravated burglary, Unlawful act intended to cause bodily harm, Breach of family violence order, Motor vehicle stealing, Destroying property

Appeal type: Appeal against sentence

Facts: The appellant and the protected person had been in a domestic relationship that ended towards the end of 2012. As a result of the appellant threatening to cut her throat and burn her house down, the protected person moved away from Hobart. Early in 2015, her house was burnt down, although no one was charged. The protected person then moved back to Hobart and entered into a new relationship. The appellant threatened her new partner, resulting in a family violence order restraining him from approaching the protected person.

On the day of offending, the appellant went to the protected person’s home, kicked the front door, smashed a window, drew a knife and threatened to kill her. The appellant then lunged towards the protected person who cut her hand as a result of trying to stop him. When the protected person’s partner came to assist, the appellant was holding the knife to the protected person’s throat and threatened ‘Why shouldn’t I kill him’. When her partner attempted to separate them, the appellant stabbed him in the stomach. In relation to this conduct the appellant was charged and pleaded guilty to one count of aggravated burglary, two counts of committing an unlawful act intended to cause bodily harm, three breaches of a family violence order, one count of motor vehicle stealing, and one count of destroying property. He was sentenced to seven years’ imprisonment with no non-parole period.

The appellant had a long history of dishonest and violent offending commencing from childhood. When given the benefit of suspended sentences, bonds and parole in relation to these offences, the appellant breached them. A psychologist’s report noted the appellant had extremely low to borderline intellectual functioning and could be considered to have a mild intellectual disability. This was substantially the result of substance abuse in the view of the psychologist. The sentencing magistrate did not consider this as a mitigating factor, concluding there was a significant risk he would re-offend and therefore there was a need for specific deterrence.

Issue: Whether the sentence was manifestly excessive due to the magistrate failing to order a non-parole period.

Decision and reasoning: The appeal was dismissed.

Tennent J, with whom Porter and Pearce JJ agreed, held that the issue of whether or not to order a parole period is a matter for the discretion of the sentencing judge. His Honour took into account the relevant factors including the appellant’s offending history and disregard for orders in refusing to grant a non-parole order. The psychologist report did not suggest rehabilitation was likely. The sentencing judge therefore did not err in failing to order a non-parole period and the sentence was not manifestly excessive.

Connelly v Tasmania [2015] TASCCA 15 (29 June 2015) – Tasmanian Court of Criminal Appeal

‘Aggravating factor’ – ‘Arson’ – ‘Attempted murder’ – ‘Denunciation’ – ‘Double jeopardy in sentencing’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing’

Charges: Attempted murder (two counts)

Appeal Type: Appeal against sentence

Facts: The appellant’s relationship with his wife deteriorated after she told him that she had a sexual relationship with another man. She moved out of the family home. The appellant attempted to kill his two sons by blowing up the family car when they were sitting in it with him. He was unsuccessful but he caused an explosion and a very fierce fire. His two sons suffered life-threatening burns. Their injuries are ongoing and they will have ‘functional and cosmetic problems for life’. They are at risk of ongoing psychological harm. The impact on their mother was devastating. The trial judge was satisfied that the appellant intended to kill the boys to ‘deprive his wife of them’ or to ‘spite his wife’ ([29]). He was sentenced to 20 years’ imprisonment with a non-parole period of 15 years.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld in respect of the non-parole period. Estcourt J (with whom Tennent J agreed) held that the head sentence of 20 years was not excessive. The offending was serious and both victims were young children. However, Estcourt J noted that there was one act that impacted both victims. While the sentence encompassed the entirety of the appellant’s criminal behaviour, he should not be sentenced for his conduct twice.

Counsel for the appellant submitted that even if the head sentence was not excessive, the non-parole period was excessive because of factors such as his lack of prior relevant offending, the unlikelihood of any re-offending ‘given the crime was directly related to his family circumstances’ and the fact that ‘it could not be said that the appellant’s “incorrigibility” justified the setting of the non-parole period at 75% of the head sentence’ ([38]). Estcourt J (Tennent J agreeing) accepted these submissions notwithstanding the appellant’s almost complete lack of remorse and reduced the non-parole period to 12 years.

Wood J agreed with Estcourt J’s reasoning with respect to the head sentence but dissented in regards to the non-parole period. At [7]-[21], her Honour engaged in general discussion about the applicable principles in determining the most appropriate non-parole period. Wood J then noted at [23] a number of considerations relevant to the nature of the crime. These included that it involved deliberate acts to kill two young children, the appellant’s ‘vindictive motive to inflict maximum anguish and emotional trauma upon his wife’, his son’s extensive injuries and degree of emotional suffering and physical pain, risks to their psychological well-being and the torment and harm suffered by his wife. It was appropriate for the sentencing judge to give effect to the aims of denunciation and retribution and, ‘the goal of assuaging informed moral outrage of the community, reasserting society's values and giving proper weight to the harm done to the victims’ ([24]).

Groenewege v Tasmania [2013] TASCCA 7 (26 July 2013) – Tasmanian Court of Criminal Appeal

‘Arson’ – ‘Assault’ – ‘Course of conduct’ – ‘Denunciation’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Risk factor - strangulation’ – ‘Sentencing’

Charges: Arson, Assault

Appeal Type: Appeal against sentence

Facts: The appellant suffered from depression and became abusive and intimidating towards his wife. After she ended the relationship, the appellant became angry and upset. He cornered his wife in a shed, pushed her to the chest, grabbed her around the throat and squeezed for four seconds, causing her to become very fearful. The appellant asked to see his four children. His wife then walked with him to the car, got in and locked the doors before attempting to drive off and call the police. However, the appellant grabbed the vehicle and punched the window, which caused it to shatter. His wife then attended her children’s school. Meanwhile, the appellant poured methylated spirits onto the main bedroom of their house, set fire to the bed and left knowing the bed was on fire. The house was damaged beyond repair. An insurance claim was denied. The impact of the offending on the appellant’s wife and children was very significant. He was sentenced to four years and six months’ imprisonment, with a non-parole period of two years and nine months.

Issues:

1.

Whether the sentence was manifestly excessive.

2.

Whether the trial judge erred by placing too much weight on general deterrence given the appellant’s mental health condition.

Decision and Reasoning: The appeal was upheld in respect of issue 1.

1.

The appellant submitted that various mitigating factors existed ([39]) and that the sentence was outside the range of permissible sentences for arson. Further, the appellant submitted that the assault was brief and no physical harm was caused. The respondent conceded that the assault would not add to a sentence imposed for arson, but submitted that it was relevant as a course of conduct and to demonstrate the appellant’s attitude towards his wife ([44]). Porter J (with whom Wood J and Tennent J agreed) held that while the head sentence was very high, it was not outside the permissible range: ‘The appellant intentionally set fire to the house and intentionally caused its entire destruction. His motive for doing so was to exact some sort of vengeance on his estranged wife intending to destroy his wife's interest in the building and its availability as a home’…‘This was obsessive and possessive conduct, involving some violence, committed in the aftermath of a broken relationship. It is the type of conduct which simply cannot be tolerated’ ([52]-[53]).

Nevertheless, the non-parole period was found to be excessive. Porter J noted that in considering the length of a non-parole period, the issue is whether the period makes the sentence manifestly excessive, ‘"sentence" in this context, being used in a broader sense’ ([56]). The non-parole period amounted to a little over 60% of the head sentence. Given factors such as the appellant’s prior good character, his mental health condition and apparent remorse ([60]), the non-parole period made the overall sentence manifestly excessive and was therefore reduced to one half of the head sentence.

2.

The appellant submitted that his psychiatric condition affected his ability to properly consider the consequences of his actions, such that it was inappropriate for general deterrence to remain a large consideration in sentencing. Porter J (with whom Tennent J and Wood J agreed) held that notwithstanding the psychiatric condition, mood disorders are reasonably common in the community. As such, the sentencing judge was correct to conclude that the appellant was, ‘an appropriate vehicle by which to convey a message to the general community about the seriousness and likely consequences of this type of offending’.

Enniss v Tasmania [2012] TASCCA 10 (2 October 2010) – Tasmanian Court of Criminal Appeal

‘Assault’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Risk factor - strangulation’ – ‘Risk factor - weapon’ – ‘Sentencing’ – ‘Totality’

Charge: Assault (five counts)

Appeal Type: Appeal against sentence

Facts: The appellant lived intermittently with his partner (the complainant). The first count occurred when, during an argument, the appellant grabbed the complainant by the throat, forced her to the floor, punched her to the head multiple times and kicked her to the hip as she tried to stand up. The second assault occurred when the complainant was in her three-year-old child’s bed. The appellant pointed a knife at the complainant and threatened to stab her if she did not give him her phone (i.e. an assault by means of a threatening gesture). The child remained asleep throughout the incident. The next count occurred when the appellant kicked the complainant between the legs twice, which caused her to fall to the floor. The final count was again an assault by means of a threatening gesture and involved the appellant sharpening knives and threatening to kill or violently assault the complainant. The appellant was arrested but escaped on arrival at the police station and was not found until 10 days later. While the complainant did not suffer serious physical injuries, there were lasting psychological consequences for her and her daughter. The appellant had a significant criminal history. He was sentenced to three years’ imprisonment with a non-parole period of two years. Before being sentenced for these offences, he was sentenced to another 3 years’ imprisonment (with a two-year non-parole period) in respect of 50 unrelated offences. This resulted in an aggregate sentence of six years’ imprisonment with a four-year non-parole period.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. ‘The ordeal that the appellant inflicted on his partner was horrific. He had many opportunities to desist from assaulting her, but did so over and over again, with their young daughter in the house. It was an unusually bad case of family violence. The only appropriate penalty was a significant cumulative sentence of imprisonment.’ ([20]).

Counsel for the appellant submitted that the fact the appellant was unlikely to be granted parole (even if eligible) should have been taken into account in his favour. The Court rejected this argument, holding that this is not an appropriate consideration in determining the sentence. However, the magistrate imposed the two-year non-parole period for the assault offences so as to not impose a crushing sentence. If the head sentence of three years was ‘crushing’, a non-parole period should not be regarded as changing that situation because parole may not be granted. Given the length of the sentence in combination with the fact that the complainant suffered no physical injuries, the head sentence was disproportionate to the gravity of the offending and the aggregate term was also disproportionate. The appellant was re-sentenced for the assault offences to 18 months’ imprisonment with a non-parole period of 12 months.

Braslin v Tasmania [2011] TASCCA 14 (13 October 2011) – Tasmanian Court of Criminal Appeal

‘Admission of guilt’ – ‘Arson’ – ‘Circumstantial evidence’ – ‘Directions and warnings for/to jury’ – ‘Physical violence and harm’ – ‘Risk factor - separation’

Charge: Arson

Appeal type: Appeal against conviction

Facts: The appellant was tried by jury and found guilty of arson purely on the basis of circumstantial evidence. It was alleged that he unlawfully set fire to the house of his former female partner. She gave evidence that the night before the fire the appellant slept over at her place. She and the appellant argued the next morning as she was leaving the property. He called her a ‘leg-opening slut’ and said that if she left he was going to burn the house down. She left and not long after received a phone call from the appellant who asked whether she was ‘warm enough’. She returned home to find the house on fire. Evidence was also given by a neighbour that he heard the appellant and his former partner arguing that morning for 10 minutes. He ignored the argument and did not claim to have seen the appellant on the morning of the fire.

Before trial, the appellant pleaded guilty to breaching a family violence order on the day of the fire by approaching his former partner and calling her a ‘leg-opening cunt’. The Crown alleged that this amounted to an admission of guilt. At trial, the appellant asserted that he did not realise the significance of this date and that he had used those words but not on the day of the fire. The appellant’s younger sister provided the appellant with an alibi. She said he was asleep at their mother’s place on the morning of the fire.

Issues: Some of the grounds of appeal were:

1.

Whether the trial judge failed to correct the prosecution’s lack of adherence to the ‘rule’ in Browne v Dunn.

2.

Whether the trial judge failed to give an adequate warning in relation to the neighbour’s voice identification evidence.

Decision and Reasoning: The appeal was upheld and the conviction set aside.

1.

‘In the context of a criminal trial, the "rule" in Browne v Dunn (1893) 6 R 67 requires defence counsel to put to a Crown witness in cross-examination the case upon which the accused proposes to rely, to the extent that it is proposed to contradict the evidence of the Crown witness. Similarly, if it is proposed, as part of the defence case, to lead evidence of a fact which, if true, would be within the knowledge of a Crown witness, it is usually expected, at least in this State, that defence counsel will put that part of the defence case to the Crown witness in cross-examination’ ([21]). Here, the Crown did not do this and sought to rely on such evidence in summing up. The trial judge did not correct this mistake in her directions to the jury and further she incorrectly directed the jury that they should be careful about the appellant’s sister’s evidence.

2.

The direction that the jury had ‘to clearly be careful’ about the identification evidence from the neighbour fell short of informing the jury that there was a ‘special need for caution.’ The trial judge said nothing about the reasons for that caution namely, the conviction of innocent persons as a result of mistaken identification by an apparently honest witness ([34]-[35]).

Supreme Court - Full Court

Legal Profession Board of Tasmania v W [2023] TASFC 1 (17 March 2023) – Tasmanian Supreme Court (Full Court)

‘Legal practitioner’ – ‘Offer to settle dispute by withdrawal of complaints to police’ – ‘Professional misconduct’ – ‘Protection order’ – ‘Unprofessional conduct’

Proceeding: Legal Profession Board appeal from finding of mere unprofessional conduct by a legal practitioner.

Grounds:

1.

The primary judge erred in holding that for a finding of professional misconduct both s 421(1)(a) and (c) of the Legal Profession Act 2007 (Tas) had to be satisfied;

2.

The primary judge erred in failing to make a declaration of professional misconduct having found that the respondent’s conduct constituted a serious failure to reach a standard of competence and diligence.

Facts: A client of the respondent was charged with two counts of common assault against his former wife who had been granted a protection order against the client.

The lawyer wrote to the complainant on behalf of his client, offering to settle their matrimonial property dispute on terms which included that “all legal pursuits and accusations cease including Tas. Police. All matters are then resolved, finalised”. The client was charged with perversion of justice. Despite this, the respondent wrote to the ex-wife’s lawyer offering again to settle the matrimonial dispute upon the withdrawal of the complaints. Senior counsel for the respondent conceded ground 1.

Reasoning and decision:

1.

Appeal allowed.

2.

Declaration of unprofessional conduct set aside.

3.

Declaration of guilt of professional misconduct made.

Estcourt J observed:

[1] I do not have the slightest doubt that it is professional misconduct for a lawyer to offer to settle a client's dispute with another person on the condition that the other person withdraw a criminal complaint that person has made against the client and which is pending before a court.

Estcourt J found that the gravity of the respondent’s attempt to have pending charges withdrawn or undermined constituted a “substantial failure to reach or maintain a reasonable standard of competence” within the meaning of s421(a) of the Legal Profession Act 2007 (Tas). This was regardless of the client’s instructions or whether the offers amounted to a crime.

The court rejected the primary judge’s reasoning that the two paragraphs in s421 were to be read conjunctively. However, it was found that even if that were correct, the conduct would still amount to professional misconduct (per Porter AJ at [33].

PQR v Sundram [2020] TASFC 10 (4 December 2020) – Tasmanian Supreme Court (Full Court)

‘Appeal against conviction’ – ‘Family law’ – ‘Federal circuit court order’ – ‘Inconsistency’ – ‘Meaning of "parental responsibility"’ – ‘Protection orders’

Charges: Breaches of police family violence order, breach condition of bail.

Proceedings: Appeal against breaches of police family violence order.

Facts: The appellant and his former wife had separated, and had two children. In 2014, the Federal Circuit Court made parenting orders which included provision for “equal shared parental responsibility”, and designated contact days. In 2018, police issued and served the appellant with a family violence order. This prohibited the appellant being within 50 m of the children (para 3), except in accordance with a court order (para 3(c)). It also prohibited the appellant being within 50 m of the children’s school where the children “may be present from time to time” (para 11). The appellant was charged with a number of breaches.

The Chief Justice dismissed charges relating to circumstances where the appellant was within 50 m of the children during contact periods allowed by the parenting orders and when the children were not present at the school. The Chief Justice found a charge proven, imposing a fine without recording a conviction, for an instance where the appellant attended the school on a non-contact day to speak to the principal while the child was there. The visit did not fall within the exception in para 3(c) of the family violence order, and breached para 11.

Grounds of appeal: The appellant's conduct in attending at the school on 24 July 2018 was permitted by the "Parenting Orders" made by the Federal Circuit Court which effectively restored the appellant his full rights as their father, including by having equal shared parental responsibility and a substantial and significant role in their lives, such that it cannot have been in breach of the police family violence order. There was inconsistency between the family violence orders and the parenting orders in the Federal Circuit Court and the orders of the Federal Circuit Court prevailed to the exclusion of the family violence order which underpinned the finding of guilt.

Held: The appeal was dismissed (Martin AJ, Pearce J agreeing). Martin AJ rejected the broad proposition that any constraint on the appellant’s ability to visit the school, at any time, necessarily created a relevant inconsistency between the parenting orders and the family violence order. Para 11 only applied when a child “may be present” and was not relevantly inconsistent with the appellant’s obligations (and rights) pursuant to the parenting order (at [47]-[49]).

In separate reasons and also agreeing with Martin AJ, Estcourt J also dismissed the appeal. While the family violence orders might “detract” from the appellant’s unqualified “parental responsibility” by limiting the means by which the appellant might communicate with teachers while the children were at school, those orders did not abrogate or nullify the appellant’s parental responsibilities. It could not be said that there was any relevant inconsistency between them and the parenting orders, or that the police family violence orders were incapable of operating “subject to” the Federal Circuit Court orders (at [15]-[17]).

Director of Public Prosecutions (Acting) v J C N [2015] TASFC 13 (27 November 2015) – Tasmanian Supreme Court (Full Court)

‘Aggravated assault’ – ‘Assault’ – ‘Bail’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘History of abuse’ – ‘Physical violence and harm’ – ‘Risk factor - separation’

Charges: Attempted aggravated assault, Breach of family violence order, Common assault, Damaging property

Appeal type: Appeal against order for bail

Facts: The respondent and the complainant had previously been in a relationship for more than two years. The complainant had two children. A family violence order was made against the respondent, restraining him from threatening, harassing or assaulting the complainant. On one occasion when the complainant went to the respondent’s house with her daughter and mother, the respondent seriously assaulted her and her mother. He was charged with two counts of assault and breaching the family violence order and was granted bail. Subsequently, the respondent breached the conditions of bail and the order when the complainant and her children stayed with him. After fighting the next morning, the respondent followed the complainant into shopping centre toilets, kicked in the door and punched her in the face twice. An interim family violence order was then made with a condition that he would not contact the complainant. In breach of that order, the respondent phoned the complainant seven times from prison. The respondent was sentenced for these offences to four months’ imprisonment and a new family violence order was made to protect the complainant and her children.

Just after a month after his release, the respondent seriously assaulted another female, his former partner, and was held in custody. While in custody, he phoned the complainant 19 times. He was then granted bail. After interviewing the complainant, the police discovered that the respondent had assaulted the complainant’s daughter by grabbing her bottom. He also threw a bar stool at the complainant and her son, striking him on the leg. The respondent then forced the complainant’s pants down and attempted to insert a plastic vibrator into her anus, witnessed by the two children. He then punched her five times in the face, bit her ear and pushed a hot cigarette butt into her forehead. The next morning the respondent emptied the complainant’s daughter’s school bag onto the floor and stomped on it, threatening ‘This is going to be your face’. He then grabbed her hair and pushed her against the wall. The respondent then threatened the complainant’s son that he would kill him, his sister and the complainant if the police were notified of the assaults.

In relation to this conduct, the respondent was charged with 35 counts of breaching the family violence order, one count of assault with indecent intent, five counts of common assault, three counts of damaging property, and one count of attempted aggravated assault. The respondent was granted bail, having satisfied the court that bail would not adversely affect the safety, wellbeing and interests of an affected person or child under s 12 Family Violence Act 2004 (Tas).

Issue: Whether the order for bail should be set aside.

Decision and reasoning: The appeal was allowed and the order for bail was revoked.

In favour of granting bail was that the respondent’s mother and father were both ill. His mother was prepared to offer a surety of $4,000 to secure his attendance at court and compliance with bail conditions. The respondent agreed to comply with a curfew and reporting conditions. However, there was a significant risk he would continue to offend if bail was granted when considering his history of breaching court orders and violent offending. There was also a considerable amount of evidence to prove guilt once at trial.

Supreme Court

Smith v Boarder [2022] TASSC 30 (16 May 2022) – Tasmanian Supreme Court

‘Costs of unsuccessful application to extend protection order’ – ‘Discretion to order costs s34 family violence act 2004 (tas)’ – ‘Protection order’ – ‘Relevance of objects of family violence act 2004 (tas) to costs order’ – ‘Separation’

Proceedings: Motion for costs for unsuccessful application to extend protection order pursuant to Family Violence Act 2004 (the Act), s 34.

Facts: On 19 February 2020 an interim protection order was granted to Ms Boarder. At the hearing of Ms Boarder’s application to extend the protection order for a further 3 years leave was refused, the interim order revoked and, following a further hearing on the issues, Mr Smith’s application for costs refused. The Magistrate held that the was no change in circumstances and the only contact between the parties during the term of the interim order was a letter delivered to Ms Boarder by Mr Smith, “which contained nothing which could reasonably be construed as abusive, threatening, intimidating or coercive”[8]. Both parties had been represented by counsel at the extension hearings.

Grounds of motion to review: The magistrate erred in dismissing the costs application in that:

(a) she took into account irrelevant matters, namely:

1. Ms Boarder 's subjective fear and psychological state; and

2. the objects of the Act as stated in s 3; and

(b) she acted on a wrong principle by misdirecting herself that "a holistic approach, rather than a compensatory approach, should be taken to the issue of whether costs should be ordered." [11]

Decision and Reasoning: Motion allowed; order of magistrate set aside; Ms Boarder is to pay Mr Smith's costs of the application for extension of a family violence order in the agreed sum.

The objects of the Act in s3 were relevant considerations but Ms Boarder’s demeanour while giving evidence, was, without more an irrelevant consideration. There was no finding that the fear Ms Boarder expressed related to any conduct of Mr Smith while the protection order was in force.

State of Tasmania v Matthew John Davey (Sentence) [2021] TASSC unreported (10 December 2021) – Tasmanian Supreme Court

Comments on passing sentence Brett J

‘Allegations of infidelity’ – ‘Arson threats’ – ‘Assault’ – ‘Attempted murder’ – ‘Burning’ – ‘Coercive and controlling behaviour’ – ‘Coercive control’ – ‘Extensive criminal history’ – ‘Following, harassing and monitoring’ – ‘Immolation’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Sentencing’ – ‘Severe physical injuries’ – ‘Threats to kill’

Charges: Attempted murder x 1; persistent family violence x 1.

Proceedings: Comments on passing sentence.

Facts: The male defendant was found guilty of persistent family violence and attempted murder. Throughout the defendant’s two-year relationship with the female victim, he used physical violence, verbal abuse, and threats as part of a ‘continuous… pattern of coercive control’. This included threatening to kill the victim by setting her car or house on fire, and slapping, striking or hitting the victim with objects. The defendant monitored and controlled the victim’s movements, communications and relationships with others, threatening to kill her if she left the relationship and detaining her at his house on at least two occasions. One assault occurred in relation to the defendant making allegations of infidelity, another after the defendant had consumed illicit drugs. The defendant attempted to murder the victim by using petrol to set her on fire during a physical altercation triggered by her attempting to leave the relationship. The victim was left with severe and lifelong physical injuries and post-traumatic stress disorder.

Issues: Sentencing.

Decision and Reasoning: The defendant was sentenced to 22 years and three months imprisonment, with a non-parole period of 14 years and 3 months, and the court made a family violence order for an indefinite period from date of sentencing.

In sentencing, Brett J considered denunciation, general and specific deterrence and community protection as key considerations due to the defendant’s ‘concerning history of violent offending’ and the court’s duty to ‘respond strongly’ to family violence. His Honour considered the defendant’s extensive criminal record and history of drug-abuse and noted that he was ‘entitled to some mitigation for the utilitarian value of pleading guilty to the persistent family violence charge’, which avoided a lengthy trial. In addressing the principle of totality, His Honour viewed it as appropriate for the defendant to serve each indictment cumulatively as each offence was ‘separate and distinguishable’. His Honour considered time spent in custody and reduced the defendant’s sentence accordingly. Finally, His Honour explained that the non-parole period was greater than the statutory minimum because of ‘the objective seriousness of the crimes’, the defendant’s ‘moral culpability’ and other key sentencing considerations.

State of Tasmania v Levi Joseph David Hall (Sentence) [2021] TASSC unreported (27 September 2021) – Tasmanian Supreme Court

Comments on passing sentence Pearce J

‘Breach of protection order’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘Following, harassing and monitoring’ – ‘History of domestic and family violence’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Sentencing’ – ‘Strangulation’ – ‘Technology facilitated abuse’ – ‘Threats to kill’

Charges: Persistent family violence x 1; breaching a police family violence order x 5.

Proceedings: Comments on passing sentence.

Facts: The male defendant lived with the female victim and her children for 12-months. The defendant entered pleas of guilty. Throughout their relationship, the defendant used ‘violence, intimidation, threats and abuse’ towards the victim in the context of his ‘generally violent, abusive and controlling behaviour. The defendant monitored and controlled the victim’s phone use, controlled when she left the house, and subjected her to physical violence in the presence of her children. On one occasion, the defendant strangled and threatened to kill the victim. A family violence order made in May 2019, was immediately breached by finding the victim, taking her to his friend’s house, and holding her there while subjecting her to physical abuse.

Issues: Sentence to be imposed.

Decision and Reasoning: The defendant was sentenced to imprisonment for 5 ½ years, with a non-parole period of 3 ½ years.

Pearce J viewed the defendant’s behaviour as a serious example of the crime of persistent family violence. His Honour highlighted that the offending included strangulation, which caused the victim to fear for her life and has had a ‘profound’ and lasting ‘psychological impact’. His Honour viewed the defendant’s repeated offending as discounting ‘any claim to… genuine remorse…’, and the fact that the offending was ‘committed in breach of a police family violence order’ as evidence of his ‘repeated refusal to comply with the law and… contempt of authority’. In sentencing, Pearce J considered the need for punishment and condemnation, and viewed the defendant’s ‘long and concerning record for violence… against women in particular’ as an ‘important factor in sentencing’. His Honour also considered the need to vindicate the victim and protect the community by imposing a sentence that achieved specific and general deterrence.

State of Tasmania v ARJ (Sentence) [2021] TASSC unreported (11 March 2021) – Tasmanian Supreme Court

Comments on passing sentence Pearce J

‘Allegations of infidelity’ – ‘Assault’ – ‘Coercive and controlling behaviour’ – ‘Exposing children to domestic and family violence’ – ‘Extensive criminal history’ – ‘History of family violence’ – ‘Jealous behaviour’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Pregnancy’ – ‘Rape’ – ‘Sentencing’ – ‘Stepchildren’ – ‘Threat to cause abortion’

Charges: Persistent family violence x 1, constituting 16 unlawful family violence offences: one rape, one assault of a pregnant woman and 14 assaults.

Proceedings: Comments on passing sentence.

Facts: The male defendant was found guilty following jury trial. The 16 offences constituting the charge were committed over 9 occasions during the defendant’s two-and-a-half-month relationship with his pregnant younger female partner. The defendant’s conduct began soon after the relationship started, and ‘was characterised by ongoing domineering conduct, torment and the exercise of power, control and intimidation’. The assaults included striking with a hammer, baseball bat and power cord, burning with a cigarette, and threats to cut with glass in addition to assaults without weapons. The rape was constituted by the forcible penetration of the victim’s genitalia by striking with a baseball bat and the assault of a pregnant woman was the attempt to stomp on the victim’s stomach with the stated intent to cause an abortion. Some of the offending occurred in the presence of the victim’s children. The defendant had a history of family violence and drug abuse. The defendant was sentenced to 6 years imprisonment, with a non-parole period of four years, and the court imposed a family violence order to remain in force for 7 years from the date of sentencing.

Issues: Sentencing.

Decision and reasoning: The defendant was sentenced to 6 years imprisonment, with a non-parole period of four years, and the court made a family violence order for 7 years from the date of sentencing.

Pearce J considered the offending in the context of the defendant’s criminal record, which included family violence offences, assaults, and breaches of family violence orders. His Honour considered the ongoing psychological impact of the offending on the victim, and the need for punishment, general and personal deterrence, vindication of the victim, and protection of the community’. ‘All of the offences were committed when you were subject to a family violence order… and while you were subject to electronic monitoring, thus displaying your contempt for the law and to court orders.’

Hopkinson v Wilkie [2020] TASSC 32 (3 July 2020) – Tasmanian Supreme Court

‘Assault in a domestic setting’ – ‘Consent’ – ‘Motion to review conviction’

Charges: Common assault.

Proceedings: Motion to review conviction by Magistrate.

Facts: The male applicant was found guilty of assaulting his female partner. The Magistrate found that the applicant hit the complainant in the head, pulled her hair and dragged her. The complainant kicked the defendant. The complainant gave evidence that she had a ‘mutual argument’ with the applicant and was not punched. Shelton (a witness to the incident) gave evidence that the applicant punched the complainant during a ‘verbal argument between them’. The magistrate accepted Shelton’s evidence and did not accept the complainant’s evidence or the applicant’s argument that there was consent, stating that a defence of consent ‘doesn’t apply to victims of domestic violence’.

Ground: The Magistrate erred in law in stating the defence of consent does not apply in the context of domestic violence.

Decision and reasoning: Motion to review dismissed.

As a matter of statutory construction, provisions relating to consensual violence as a defence do not include a ‘carve-out … for any category or class of cases such as domestic violence cases’ [34]. As a general statement of law, the defence of consent does not avail the applicant if ‘there either was no consent or if there was, the complainant did not consent to the degree of force involved in the assault’ [28]. Based on the magistrate’s findings of fact, the defence of consent was excluded.

Baker v Barratt [2019] TASSC 28 (4 July 2019) – Tasmanian Supreme Court

‘Administrative law’ – ‘Appeal against conviction’ – ‘Appeal and review’ – ‘Apprehended bias’ – ‘Coercive control’ – ‘Isolation’ – ‘Judicial review’ – ‘Motion to review’ – ‘People from culturally and linguistically diverse (CALD) backgrounds’ – ‘Physical violence and harm’ – ‘Procedural error of magistrate in not playing record of interview in open court’ – ‘Procedure and evidence’ – ‘Visa threats’

Charges: Common assault x 1.

Case type: Appeal against conviction.

Facts: The applicant man appealed against his conviction on a charge of common assault on the ground that the court erred in convicting him against "the preponderance of the evidence". The complainant, a Philippino woman who was applying for a visa, told the court that she had an argument with the applicant with whom she was in a relationship. During the course of the argument, she alleged that he slapped her in the face, twisted her arm and pushed her to the floor. He then allegedly tried to kick her. She also gave evidence that she rang a friend after the incident. The friend confirmed that this call was made and that the complainant had told him that she had been assaulted. He took photos of her for the purposes of recording the consequences of the assault. These were tendered along with the applicant’s record of interview. The applicant admitted in his video interview that he regularly threatened to withdraw support for the complainant’s Visa and controlled her access to a mobile telephone and the Magistrate identified this as evidence of the applicant’s controlling behaviour. The applicant denied the assault.

Issue: The issue for the Court was whether the Magistrate reasonably came to his conclusion on the evidence at trial.

Held: Geason J found that the applicant failed to establish that the Magistrate’s conclusion was not reasonably open to him. It was noted that the evidence was "of narrow compass" in that the applicant and complainant had engaged in a physical argument, evidenced by the bruising shown in the photographic evidence. Moreover, the Magistrate’s conclusions and reasons were found to be unimpeachable, and he was entitled to prefer the complainant’s evidence. This was because the complainant’s evidence was unshaken in cross-examination and corroborated in material respects by a third party ([13]-[15]).

A further issue on appeal was that of apprehended bias. Whilst the Magistrate had a familial relationship with the complainant’s employer, Geason J concluded that there was nothing in the conduct of the case or the reasons for the decision which gave the appearance of any pre-judgment based on that relationship ([21]).

Geason J also noted that the applicant’s record of interview was not played in court in its entirety, such that not all evidence was heard in open court prior to the court reaching its decision ([24]). The Magistrate elected to read the transcript of the interview rather than listen to it in full. His Honour was highly critical of this practice, emphasising that all evidence relied upon to prove a case should be heard in open court, and that the transcript itself was not evidence. The Magistrate ran the risk that something material to the case was not "seen" ([27]). Whilst this was considered to be an error, it did not give rise to any miscarriage of justice.

Irons v Moore [2019] TASSC 22 (22 May 2019) – Tasmanian Supreme Court

‘Application of Weissensteiner’ – ‘Consent and disclosure’ – ‘Evidence issues’ – ‘Hostile witness’

Charges: Assault x 1; Breach of protection order x 1.

Appeal type: Appeal against conviction.

Facts: The facts of both charges were the same: the appellant grabbed and punched the complainant in front of her children ([3]).

While giving evidence, the complainant claimed that she could not remember what happened on the day. The prosecution successfully applied to treat her as a hostile witness ([3]). The evidence was limited to circumstantial evidence and hearsay evidence of witnesses who saw the complainant’s injuries immediately after the assault ([4]). The magistrate found the appellant guilty of both charges and imposed a fine.

Issues: The sole ground of review is that on no reasonable view of the evidence could the magistrate have been satisfied of the appeallant’s guilt.

Decision and reasoning: The appeal was dismissed.

The principle in Weissensteiner v The Queen [1993] HCA 65 was considered, namely that a ‘hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused’ ([20]). In this case, while the complainant had given evidence, she could not remember what happened. Therefore, the only person who could have known how the injuries were inflicted was the defendant ([21]).

‘In the light of the evidence that force had been applied by the applicant to the complainant and in the absence of any contradictory or explanatory evidence from the applicant, I am satisfied that the application of force in lawful self-defence was not available to the magistrate as a reasonable possibility or hypothesis consistent with innocence.’ [24]

Cannell v G; G v Cannell [2018] TASSC 55 (1 November 2018) – Tasmanian Supreme Court

‘Breach of protection order’ – ‘Following, harassing and monitoring’ – ‘Meaning of harass’ – ‘Mens rea’ – ‘Physical violence and harm’ – ‘Safety and protection of victims and witnesses’ – ‘Systems abuse’

Charges: Trespass x 1; Making a false report to police x 1; Contravening an interim family violence order x 3.

Case type: Prosecution seeking review of dismissal of charges; defendant seeking review of charge proved.

Facts: The defendant and complainant were separated. The evidence in this case was contested by both parties.

The trespass charge occurred when the defendant entered the complainant’s house and did not leave when asked. The false report charge occurred when the defendant alleged that the complainant had struck him in the chest while she was telling him to leave. The first contravention charge occurred when the defendant approached the complainant in the Federal Circuit Court building. The complainant alleged that the defendant said ‘you’re all going down’. The magistrate was not satisfied that those words were spoken, but even if they were, they did not constitute a threat. The second contravention charge occurred when the defendant parked his car next to the complainant’s car during a handover of one of the children. The magistrate found that the defendant breached the order and that was no exception in the contact arrangement that would have allowed this ([39]). The third contravention charge occurred when the defendant approached the complainant on numerous occasions to serve her with an application for a restraining order ([43]).

Issues: Whether the Magistrate’s decisions were reasonably open on the evidence and whether the Magistrate gave adequate reasons.

Decision and reasoning: Brett J affirmed all the magistrate’s decisions.

Note: in relation to the third contravention of the restraining order, the defendant argued that the prosecution had not proved the ‘mental element’ of the charge because he did not intend to harass the complainant but rather serve her with legal processes. Brett J discussed the statutory definition of the word harass, which includes following the person or keeping the person under surveillance ([48]). His Honour considered that “there is no requirement that the defendant intend or otherwise foresee the causation of [an effect on the person harassed, eg worry, fear or mental anguish]” ([60]).

‘The evidence overwhelmingly supported the magistrate's conclusion that the defendant had harassed the complainant by following her, and that following her was deliberate and intentional…. Whilst the service of documents on the complainant was a legitimate purpose, it did not justify conduct on the part of the defendant that was in breach of the order. It goes without saying that there were other ways of achieving that legitimate purpose which did not involve contravention of the family violence order.’ [63]

His Honour considered that this construction is consistent with the relevant legislation, that is, to protect likely victims of family violence from likely perpetrators of that violence ([61]).

Harrison v Moore [2018] TASSC 53 (19 October 2018) – Tasmanian Supreme Court

‘Breach of protection order’ – ‘Evidence’ – ‘Following, harassing and monitoring’ – ‘oath on oath case’ – ‘Physical violence and harm’ – ‘Technology-facilitated domestic and family violence’ – ‘trivial breach’

Charges: Common assault x 2; Contravention of an interim family violence order x 1.

Appeal type: Appeal against conviction.

Facts: The complainant and applicant had two young children. The assault charges occurred on one day where the complainant alleged that the applicant punched the complainant in the face and kicked her in the head ([5]-[6]). The breach of the interim family violence order occurred when the applicant sent the complainant 4 text messages asking about her and the children ([26]).

The applicant gave evidence at the Magistrates Court trial alleging that he was acting in self-defence. The magistrate accepted the complainant’s evidence over the applicant’s ([10]).

Issues: Whether the finding of guilt was not reasonably open to the magistrate as a matter of law; whether the magistrate should have applied the principle of ‘de minimis non curat lex’ (the law should not concern itself with trifles).

Decision and reasoning: All grounds of appeal was dismissed.

There were 3 grounds of appeal in relation to the assault charge. Ground 1 of the appeal was that the finding of guilt was not reasonably open to the magistrate as a matter of law because the magistrate said she substantially accepted the complainant’s version of events but accepted aspects of the applicant’s version as well. This ground was rejected because the magistrate was entitled to do so ([14]-[15]).

In relation to the breach of the interim family violence order, the ground of appeal was that the magistrate should have applied the principle of ‘de minimis non curat lex’. This was because the magistrate found that sending the messages constituted breaches that were ‘trivial at best’. However, Brett J stated that the principle of ‘de minimis’ is likely not applicable in criminal proceedings ([33]). In any event, it was not applicable in this case because the Magistrate’s reference to ‘trivial’ should be seen as an indication of the relative seriousness of the breaches compared to other examples of that offence, not that the direct contact with the complainant was a trivial matter ([34]).

Bonde v Maney [2018] TASSC 23 (17 May 2018) – Tasmanian Supreme Court

‘Assault’ – ‘Dismissal of charges’ – ‘Evidence of respondent’

Charges: Common assault x 1.

Case type: Application for review of Magistrate’s decision to dismiss charge.

Facts: The complainant alleged that the respondent tried to grab the complainant’s car keys from her, injuring her fingers in the process ([3]). The respondent denied assaulting the complainant and alleged that the complainant injured her fingers when she was trying to retrieve her keys ([4]). After the prosecution case closed, the Magistrate immediately moved to judgement without giving the respondent the opportunity to give evidence ([5]). The Magistrate dismissed the charge of assault on the basis that she was not satisfied beyond reasonable doubt that the respondent deliberately or recklessly caused the injury ([5]).

Issues: The complainant argued that the magistrate erred in law by:

•

first, stating that the respondent must have intended the injuries for the charge of assault to be made out;

•

second, failing to give sufficient reasons as to why she was not satisfied that the charge was proven; and

•

third, dismissing the complaint when on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent.

Decision and Reasoning: The first ground was upheld because the causation of injury is not an element of assault ([7]-[8]). The second ground was also upheld because it was not possible to discern from the Magistrate’s reasons the factual basis for the determination ([15]). Therefore, it was not necessary to consider the third ground ([16]).

The case was remitted to be determined by another Magistrate ([20]).

Moore v Rittman [2018] TASSC 5 (13 February 2018) – Tasmanian Supreme Court

‘Appeal against sentence’ – ‘Conviction not recorded’ – ‘Manifestly inadequate’ – ‘Perpetrator interventions’ – ‘Self-represented litigant’ – ‘Sentencing’ – ‘Strangulation’

Charges: Assault x 2; Breaching a police family violence order x 1.

Appeal type: Prosecution appeal against sentence.

Facts: The respondent and the aggrieved, his partner, were in a relationship and had 2 children. The assaults occurred on two occasions when the respondent choked his partner, causing her to lose breath and bruising ([4]). A police family violence order was made, requiring him to not return to the home where his partner and children were living ([5]). The police later found the respondent in the home [(6]). The respondent pleaded guilty to all charges ([7]). The respondent had no criminal history and had independently sought out participation in a men’s behavioural change program.

At the sentencing hearing, the magistrate did not ask the respondent to make submissions or to provide her with information as to his personal circumstances ([9]). The magistrate, pursuant to s 7(f) of the Sentencing Act 1997 (Tas), did not record a conviction and adjourned the proceedings on the condition that the respondent be of good behaviour and complete the Men’s Behaviour Change Program ([1]). The charges were recorded as family violence offences under s 13A of the Family Violence Act 2004 (Tas) ([10]).

Issues: Whether the sentence was manifestly inadequate.

Decision and Reasoning: Justice Brett first addressed the fact that the magistrate did not allow the respondent to make submissions. His Honour at [11] noted that:

In the case of an unrepresented defendant, it is incumbent on the magistrate to ensure that, not only is such an opportunity provided, but that the defendant is aware of his or her right to address the court, and given some assistance with respect to the nature of the matters and information which should be the subject of the plea.

Nonetheless, this error was not directly in issue so was not determinative ([12]).

His Honour next addressed the sentence. The prosecution argued that the failure to record a conviction renders the sentence manifestly inadequate ([12]). His Honour emphasised the importance of therapeutic interventions for first-time family violence offenders at [24]:

While a punitive and protective response is essential in cases of serious and repeated family violence, it must also be consistent with the stated purpose of the legislation that consideration is given to therapeutic intervention with a view to achieving rehabilitation and behavioural change, when an offender presents before the court for the first time in respect of acts of spontaneous family violence. Prevention of future violence by use of effective strategies to modify behaviour in respect of offenders who have appropriate insight and desire for change is likely to promote the safety, psychological wellbeing and interests of people affected by family violence.

His Honour emphasised that the good behaviour bond and conditions attached were tailored to the respondent’s personal circumstances and was designed to rehabilitate the respondent and ensure that he did not reoffend ([20]). In all the circumstances, the sentence was not manifestly inadequate ([21]).

Barnes v Crossin [2017] TASSC 61 (12 October 2017) – Tasmanian Supreme Court

‘Arrest’ – ‘Reasonable suspicion’ – ‘Responses in criminal proceedings’

Charges: Resisting a police officer in the execution of their duty x 1.

Case type: Review of Magistrate’s decision to dismiss charge.

Facts: The police attended the respondent’s house in response to a call from the respondent’s son, who told the police that his father was ‘going off’ and had hit his mother. When they arrived, there were clothes strewn around the front yard. The police arrested the respondent. They gave the reason to ‘investigate family violence’ ([3]). The respondent struggled against the police, which gave rise to the resisting police officer charge. The Magistrate dismissed the charge on the basis that the arrest was unlawful in the first place ([4]).

Issues: Whether the Magistrate erred in dismissing the charge.

Decision and Reasoning: The Magistrate did err in dismissing the charge.

The power to arrest is derived from the Family Violence Act 2004 (Tas), which requires ‘a reasonable suspicion that the person concerned has committed family violence’ ([27]). This is distinct from a suspicion that the person committed a family violence offence ([33]). Brett J held that there was ample evidence to support the suspicion that there had been family violence, and he had adequately communicated that fact to the respondent ([46]).

Brett J remitted the matter to be decided by the same Magistrate ([53]).

Kirkwood v Thomas [2017] TASSC 56 (15 September 2017) – Tasmanian Supreme Court

‘Breach of domestic violence order’ – ‘Not manifestly excessive’ – ‘Text messages’ – ‘Threats’ – ‘Totality’ – ‘Verbal abuse’

Charges: Breach of family violence order x 2.

Appeal type: Appeal against sentence.

Facts: The defendant and the complainant were separated. The order prohibited him from threatening, abusing or assaulting the complainant, but not from going to her house. The first charge related to the defendant attending her house, ringing and knocking on the doors, and calling the complainant. The second charge related to the defendant sending the complainant 8 text messages also insulting the complainant and demanding money ([2]). The magistrate sentenced the appellant to two months’ imprisonment, cumulatively with a 5½ year sentence he was currently serving ([5]). That sentence related to a subsequent attack on the complainant, where the defendant broke into the complainant’s house and beat her with a baseball bat, leaving her with permanent disfiguring injuries and pain ([6]-[9]).

Issues: Whether the magistrate gave insufficient weight to the principle of totality, and whether the sentence was manifestly excessive ([11]).

Decision and Reasoning: The judge had to decide first if the sentence of two months was manifestly excessive in order to conclude whether the principle of totality had been breached ([12]). It was relevant that the defendant could have been sentenced for longer than 5½ years for the attack with the baseball bat ([12]). There is usually a discount for subsequent sentences, especially because denunciation and personal deterrence may have been achieved by the first sentence ([13]). There was evidence that the appellant had undertaken some family violence and anger management programs in custody ([19]). However, in this case, a heavy sentence was warranted because there had been repeated breaches of the family violence order in the past, and family violence cases warrant tough sentences ([18]). Therefore, it was open to the magistrate to impose the cumulative sentence of two months ([22]).

Mayne v Tasmania [2017] TASSC 38 (29 June 2017) – Tasmanian Supreme Court

‘General deterrence’ – ‘Sentence’ – ‘Smothering’ – ‘Strangulation’

Charges: Common assault x 1.

Appeal type: Appeal against sentence.

Facts: The defendant and complainant had a child together but were not living together. The complainant and defendant were arguing while the complainant was lying in bed. The defendant pushed a pillow onto her face, causing her to struggle for breath for two to five seconds ([3]). The complainant did not suffer any physical injuries. The defendant pleaded guilty and was sentenced to 7 months’ imprisonment ([13]).

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The sentence was not manifestly excessive. Wood J held that the Magistrate was right to highlight the aggravating factors of the offence, including that smothering is a dangerous act, the defendant did not stop of his own accord, and it would have been a terrifying experience for the complainant ([41]). While the sentence was high, it was appropriate to give prominence for general deterrence ([43]).

Wood J said at [43]:

… it is important that deterrent sentences be imposed not merely for crimes that cause grave physical or psychological harm to victims. There is a need to counter the perception that somehow violence of this kind in the home is less serious than the same kind of violence inflicted on a stranger in a public place. Also, acts of violence committed in a family or domestic context causing fear and distress to victims can have debilitating effects upon their well-being or the well-being of a family member witnessing such violence. It is not only violence resulting in visible injury that must be seen as unacceptable, and these victims, as vulnerable members of our society who have experienced fear and trauma, are entitled to the court's protection.

Parker v Hall [2015] TASSC 60 (10 December 2015) – Tasmanian Supreme Court

‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Recording a conviction’ – ‘Sentencing’ – ‘Totality’

Charge: Breach of family violence order

Appeal type: Appeal against sentence

Facts: The respondent and complainant had been in an on-again off-again relationship for two years. A police family violence order was made against the respondent, restraining him from contacting or approaching the complainant within 50 metres. The respondent contravened this order on four separate occasions by phoning the complainant, writing her a letter expressing his affection and remorse, going camping with her, and giving her a letter conveying his desire for reconciliation. An interim family violence order was then made. The conditions of the order were substantially the same as the police family violence order. The respondent then breached this order by meeting the complainant to talk on two separate occasions. The respondent was charged and found guilty of four breaches of a police family violence order and two breaches of an interim family violence order. The magistrate adjourned the charges without conviction for 12 months on the condition that the respondent enter into a good behaviour undertaking and not commit similar offences during the period.

The respondent had previously been found guilty of breaching a police family violence order and an interim family violence order, which were also sentenced without conviction. This offending occurred during the same time period as the six charges in question. The prosecution submitted a more severe sentence would have been imposed if all the charges had been sentenced together. The respondent had no other relevant prior convictions. His conduct did not involve any threats or violence and occurred with the complainant’s consent to varying degrees. Further, the respondent’s counsel submitted that as a legal practitioner, he suffered more than the average citizen as a consequence of the charges.

Issue: Whether the sentence was manifestly inadequate.

Decision and reasoning: The appeal was dismissed.

Despite the complainant’s compliance, the respondent knew that his conduct was in breach of the orders. Further, his repeated offending of eight separate breaches increased his culpability and pointed towards the need for specific deterrence. However, the respondent’s breaches, while not trivial, were not at the serious end of offending. The public interest did not favour a conviction being recorded. As a result of the media attention attracted by the matter, the respondent had already felt the consequences of his offending behaviour to a degree. If the charges were heard together with the previous two offences, the offending would not have necessarily demanded a heavier or more punitive response. Considering these factors together, Wood J concluded that there was sufficient justification for leniency extended to the respondent and the sentence was not manifestly inadequate.

Lacroix v Lacroix [2015] TASSC 42 (3 September 2015) – Tasmanian Supreme Court

‘Extension of family violence order’ – ‘Family violence order’ – ‘Procedural fairness’

Proceeding: Review of family violence order

Facts: A family violence order was made against the applicant on 5 March 2015, in anticipation of the expiration of another 12-month family violence order made on 7 March 2014 (the first order). The applicant made no admissions in relation to the conduct resulting in the making of the first order. On 23 February 2015 the respondent, the applicant’s partner, made an application for an extension of the first order. The magistrate denied this extension but suggested the respondent lodge an application for a fresh order and said, ‘[The applicant] heard me say that, so he’s effectively on notice that that may well occur in the course of the morning and taking care of the service requirements [sic]’. Counsel for the respondent then lodged the application for a fresh order.

Issue: Whether the applicant was denied procedural fairness because he was not served with a sealed copy of the new application filed by the respondent.

Decision and reasoning: The motion to review the order was dismissed.

The magistrate was obliged to give the applicant a reasonable opportunity to be present at the hearing of the application, to obtain legal representation, and to make submissions and dispute allegations of fact at common law. The applicant was not denied these opportunities. He was present when the magistrate directed the respondent to lodge the fresh application that would be dealt with later that day. As a result, he had an opportunity to remain at court and instruct his counsel, who was also present at the time, to prepare submissions to defend the application on his behalf. The evidence relied on by the respondent for the fresh application was the same as for the extension of time. The common law rule of procedural fairness did not require the magistrate to proceed only if the applicant was served with a sealed copy of the fresh application.

The magistrate did not err in applying the statutory requirements. Section 106E Justice Act 1959 (Tas) does not apply to family violence orders, as submitted by the applicant’s counsel. Further, rule 54N(1)(a) Justices Rules 2003 (Tas) was complied with. The fresh application was served on the applicant on 11 March 2015. The rule does not require service before the family violence order is made, but as soon as practical after it is filed with the clerk.

However, the magistrate erred in making a final family violence order. He did not have authority to make such an order under s 31(7) Family Violence Act 2004 (Tas), as a sealed copy of the application had not been served on the applicant and no attempt had been made to carry out service. Despite this error, no substantial miscarriage of justice resulted. The applicant had notice of the application, when and where it would be made and the evidence to be relied upon. Further, the applicant was in court the morning of the application with a lawyer and merely needed to stay until the afternoon to defend the fresh application. Therefore, there was no procedural unfairness and no substantial miscarriage of justice.

Young v Wilson [2015] TASSC 16 (28 April 2015) – Tasmanian Supreme Court

‘Assault’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Non-parole period’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Using carriage service’

Charges: Using a carriage service to harass, Breach of police family violence order (6 counts), Common assault

Appeal Type: Application for review of sentence

Facts: A police family violence order prohibited the applicant from approaching within 50 metres or contacting the complainant in any way. The breaches of this order involved the applicant phoning the complainant, sending her two text messages, threatening to kill her and punching her to the head and face. The punch also gave rise to the common assault charge. The carriage service offence involved the applicant phoning and sending eight menacing text messages to the complainant. The applicant had a substantial and relevant criminal history. A sentence of eight months’ imprisonment was imposed. This offending also activated previously imposed suspended sentences of imprisonment. This resulted in a total effective sentence of 26 months’ imprisonment with no parole eligibility.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The application was allowed.

The eight-month sentence was not excessive. The applicant had previously shown a disregard for orders made in favour of the complainant. The assault offences were serious and the applicant did not appreciate this. A deterrent sentence was needed. It was not unjust to activate two of the previous suspended sentences resulting in six months’ imprisonment. However, a previous suspended term of imprisonment of 18 months for trespass, breaches of a family violence order and various traffic offences was substituted with a period of 12 months’ imprisonment. This was considered too harsh, given the other sentences of imprisonment to be served by the applicant and the fact the applicant has not reoffended with respect to the driving offences. Furthermore, there was no justification for not imposing a non-parole period. The applicant’s alcohol problem contributed to his ongoing offending behaviour: ‘The granting of parole may encourage reformation and increase the chances of rehabilitation under supervision through conditional freedom’ ([69]). He was resentenced to a total term of 18 months’ imprisonment with a non-parole period of nine months.

(Note also at [17]-[27] where Wood J made some general comments on the correct procedure to be followed for breaches of suspended sentences in Magistrates’ Courts and at [37]-[53] which contains general consideration of totality, suspended sentences and non-parole periods).

Higgins v McCulloch [2013] TASSC 49 (11 September 2013) – Tasmanian Supreme Court

‘Assault’ – ‘Fines’ – ‘People with mental illness’ – ‘Perpetrator intervention program’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Sentencing’

Charge: Assault

Appeal Type: Motion to review conviction and penalty

Facts: The applicant was found guilty of one count of assaulting his wife by punching her in the face. The complainant had died by the time the matter came to trial. The parties were living together in unusual circumstances and the assault occurred in a bedroom of the family home in the presence of an adult daughter. The applicant had no prior convictions. A good behaviour bond was imposed and a conviction was recorded.

Issues:

1.

Whether the finding of guilt was reasonably open on the evidence.

2.

Whether the magistrate erred in recording a conviction.

Decision and Reasoning: The notice to review was dismissed.

1.

This argument was dismissed based on the evidence before the magistrate: see paragraphs [5]-[27].

2.

At [33], Tennent J outlined the relevant issues to be considered when deciding whether to record a conviction. A court must consider the public interest, the need for an official record to be made of the commission of the offence and whether the victim might reasonably not feel vindicated by the failure to record a conviction. These factors are to be weighed against the benefits to the offender of a conviction not being recorded. This was a family violence offence. The applicant was not entitled to any discount for a guilty plea and did not display remorse. The applicant was suffering from mental health issues, which partly explained his ‘bizarre’ ([44]) behaviour that occurred in the background to the assault. There was nothing put before the magistrate indicating that recording a conviction would have an adverse impact on the applicant.

Tasmania v Finnegan (No 2) [2012] TASSC 1 (19 January 2012) – Tasmanian Supreme Court

‘Admissibility’ – ‘Evidence - relationship’ – ‘Evidence - tendency’ – ‘Motive’ – ‘Physical violence and harm’ – ‘Probative value’ – ‘Unlawful wounding’

Charge: Unlawful wounding

Proceeding: Ruling as to the admissibility of evidence

Facts: The accused was charged with unlawfully wounding the complainant (his partner) by striking her to the face with a glass. He pleaded not guilty. The Crown sought to lead evidence from the complainant given on a voir dire about the accused’s conduct towards her on other occasions, both before and after the alleged wounding. The accused objected to the admission of some of the evidence ([6]).

Issues: Whether some of the evidence given by the complainant should be ruled inadmissible on at least one of the following bases:

1.

Irrelevance;

2.

Failure to satisfy the common law rule established in Pfennig v R whereby propensity or similar fact evidence is not admissible if, viewed in the context of the prosecution case, there is a reasonable view of that evidence that is consistent with innocence;

3.

The danger of unfair prejudice to the accused outweighing the probative value of the evidence: s 137 Evidence Act 2001 (Tas); or

4.

The probative value of the tendency evidence not substantially outweighing any prejudicial effect that it may have on the accused: s 101(2) Evidence Act 2001 (Tas)

Decision and Reasoning: The appeal was dismissed. The evidence led from the complainant as to the conduct of the accused was admissible. It was relevant on a number of bases: as ‘relationship evidence’, enabling the jury to assess the evidence as to what occurred at the time of the alleged wounding; as evidence of motive (jealousy); as evidence explaining why the complainant asserted she was injured because of a fall and why there was delay in her reporting what occurred; and as tendency evidence, showing that the accused had a tendency to be jealous of anyone who had a friendship/relationship with the complainant and to be generally violent towards her ([11]-[15]).

Further, the probative value of all the evidence under consideration substantially outweighed the prejudicial effect and danger of unfair prejudice to the accused. In this regard, Blow J noted at [30]-[31]:

‘In my view the danger of unfair prejudice to the accused is not great… [A] properly instructed jury, having heard all the evidence of jealousy and violence, is unlikely to be distracted from its duty of impartiality and its duty to give a true verdict in accordance with the evidence.

‘In my view the evidence of jealousy has substantial probative value. Without that evidence the jury might well take the view that the accused had not given any indication of jealousy on any other occasion. If the only evidence available for the jury as to violence on other occasions was the evidence of the three charged assaults, two of which shortly preceded the first report to the police of the accused wounding the complainant with the glass, that could result in the jury overestimating the likelihood of the complainant having fabricated the critical allegations. Having regard to that factor, and to the various bases on which the evidence of violence is relevant, I consider that all the evidence of violence also has substantial probative value’.

Here, there was nothing about the facts that made it one where s101(2) or s137 [Evidence Act 2001 (Tas)] required the Pfennig test to be applied (at [32]).

Note: this decision has been overtaken by legislative changes effective 12 December 2017. See section 13B Family Violence Act 2004.

James v Tasmania [2010] TASSC 50 (11 November 2010) – Tasmanian Supreme Court

‘Breach of domestic violence order’ – ‘Common assault’ – ‘Consent’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Risk factor - strangulation’ – ‘Temporary protection order’

Charges: Breach of a family violence order, Common assault, Driving offences, Perverting the course of justice

Appeal type: Appeal against sentence

Facts: The magistrate imposed three terms of imprisonment. First, the applicant was sentenced to 6 months’ imprisonment, suspended after 4 four months, for charges relating to driving a motor vehicle while disqualified and driving with alcohol in his body. Second, the applicant was sentenced to 3 months’ imprisonment, cumulative on the first period of imprisonment, for perverting justice by providing a false name to a police officer. Third, the applicant was sentenced to 6 months’ imprisonment, suspended after 3 months, for 3 charges. These were: breaching a family violence order by sending an abusive and threatening text message to a woman protected by the order; breaching the order by telling the woman he would punch her in the head if she did not pack his property; and committing common assault by placing both hands around her neck and squeezing, threatening to bash her head in if she did not give him a telephone, grabbing her by the back of the neck, and placing his arm around her neck. The magistrate merely expressed this sentence as being ‘cumulative.’ If the third period of imprisonment was cumulative on both sentences, the effective sentence was 10 months’ imprisonment. However, if it was cumulative only on the first sentence, the effective sentence was 7 months’ imprisonment.

Issues: Whether the magistrate erred in failing to make the sentence clear and whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The lack of clarity as to the cumulative nature of the third sentence amounted to a sentencing error and the applicant was re-sentenced. The first and second periods of imprisonment imposed were not manifestly excessive. However, the sentence for the assault and the breach of the family violence order was found to be manifestly excessive. A sentence of three months’ imprisonment wholly suspended was substituted. His Honour stated, ‘[t]he nature of the assault was not severe enough to warrant a greater punishment. His culpability for breaching the order was ameliorated by his belief, the claim to which was unchallenged, that the order no longer operated, and by the complainant reconciling and living with him since the order had been made’ ([22]).

Beechey v McDonald [2010] TASSC 47 (25 October 2010) – Tasmanian Supreme Court

‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Guilty plea - unequivocal’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Temporary protection order’

Charges: Breach of a family violence protection order (2 counts), Assault

Appeal type: Appeal against conviction

Facts: The male applicant pleaded guilty to two breaches of a family violence protection order and was sentenced to a wholly suspended sentence of 2 months’ imprisonment. The family violence order included an order that he not enter the premises of the complainant, his wife and mother of his 4 children. On one occasion, when returning the children to the premises, the applicant entered the residence and placed some of the children’s belongings inside (the first complaint – breach of a family violence protection order). The family violence order was later replaced with an order including a term that the applicant not directly or indirectly threaten, harass, abuse or assault the complainant. The applicant and the complainant agreed to spend Christmas day together. On the day, a box the applicant was carrying came into contact with the complainant. She fell over and dislocated a shoulder (the second complaint – breach of a family violence protection order by assault).

Issue: Whether the magistrate erred in accepting the applicant’s plea to one of the charges as he had made assertions that were inconsistent with his plea of guilty.

Decision and Reasoning: The appeal was upheld. Sentencing submissions from counsel for the applicant evidenced that he denied applying force to the complainant intentionally. This was inconsistent with his plea of guilty on the second complaint. A plea of guilty must be unequivocal. The magistrate should have informed counsel for the applicant of this inconsistency ([9]-[12]).

Maingay v Seabourne [2009] TASSC 67 (19 August 2009) – Tasmanian Supreme Court

‘Assault’ – ‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Damaging property’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Risk factor - weapon’ – ‘Sentencing’ – ‘Vulnerable - new partner’

Charges: Breach of police family violence order (6 counts), Assault (2 counts), Breach of interim family violence order, Damaging property, Abuse of police

Appeal type: State appeal against sentence

Facts: The male respondent was sentenced by a magistrate in respect of numerous offences. The magistrate dealt with the offences in batches and the State sought review of a suspended sentence imposed in respect of two of these batches. The first batch of offences pertained largely to charges of stealing. More relevantly, the second batch of offences related to a number of breaches of police family violence orders. On 12 December 2005, a police family violence order was made for the protection of Cassandra Deering. The respondent breached this order by head-butting and punching Ms Deering. On 5 January 2007, a second police family violence order was made. The respondent breached this by approaching Ms Deering, damaging the car belonging to her new partner, and sending a threatening text message. A number of these breaches occurred while the respondent was on bail for earlier breaches.

On 2 October 2008, a police family violence order was made for the protection of Dana Smith. The respondent breached this order by kicking Ms Smith in the head. He also said she was lucky he did not slit her throat and that he should have snapped her neck. On 27 October 2008, an interim family violence order was made which required the respondent to immediately surrender firearms. The respondent also breached this order.

Issue: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The sentence imposed in respect of the batch of offences incorporating the family violence offences was manifestly inadequate. The respondent was a repeat offender. He showed a complete disregard for the orders made to restrict his behaviour and should have felt the full effect of a deterrent sentence, notwithstanding his age and lack of a prior history. If his offending had extended only to breach by approach (potentially instigated by the protected person) the outcome would have been different. However, the respondent’s offending went far beyond that; it extended to physical assaults against two separate female partners ([24]).

Her Honour noted that, ‘While it is accepted that, at the time the respondent was dealt with for all of this offending, he was still a young man with no relevant prior history, the legislation pursuant to which he had been charged was enacted to protect members of the community, and in particular to protect persons in close relationships with offenders. Deterrent sentences were required to give effect to that legislation … However, in practical terms, it is impossible in my view to argue that the deterrent effect of an actual term of imprisonment is the same as that of a suspended term of imprisonment’ ([23]).

The respondent was ordered to serve a period of four months’ imprisonment. Although it might have been unfair in all the circumstances to impose a custodial sentence several months after his release, if the error in the sentence was not corrected, the perception would remain that the sentence imposed lacked the requisite deterrent effect ([26]-[30]).

Bradshaw v Tasmania [2009] TASSC 22 (9 April 2009) – Tasmanian Supreme Court

‘Deterrence’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’

Charges: Unlawful act intended to cause bodily harm (2 counts), Aggravated burglary

Appeal type: Appeal against sentence

Facts: The male appellant had lived with the female complainant and her 7 year old daughter for over a year before the offending occurred. The relationship was violent and the complainant accordingly obtained a family violence order requiring the appellant not to threaten, harass or abuse the complainant, to keep the peace towards her, and not to damage any property at her home. The order was in place at the time of the offending. The appellant committed a series of offences against the complainant and they ceased cohabiting together. Following this, the appellant broke into the complainant’s house and stabbed her twice to her right side. He took a few steps away before turning back and stabbing her again twice to her left side. The complainant was holding her daughter at the time of the attacks. The appellant was sentenced to six years’ imprisonment with eligibility for parole after four years.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was rejected by all judges but with separate reasoning provided. Tennent J (with whom Porter J agreed) found that while there were mitigating factors (remorse, giving himself up, and pleading guilty), the applicant committed very deliberate acts of violence in the complainant’s own home when he had no right to be there and there was a need for both personal and general deterrence ([35]-[36]). The appellant was sentenced for two particularly serious crimes. The stabbings occurred very close together but constituted two crimes because the appellant walked away and made a conscious decision to return and stab the complainant again ([33]). Further, the appellant committed a number of other offences and showed a complete disregard for orders of the court. He caused significant, long-term physical and psychological damage to both the complainant and her daughter ([34]).

In a separate judgment, Evans J also held that the sentence was not manifestly excessive in light of the totality of the appellant’s criminal conduct. The appellant’s criminal conduct was particularly serious. It was not impulsive. He went to the complainant’s home intending to inflict harm and acted in contravention of both a bail condition and a family violence order. One of the wounds he inflicted could have been fatal. The appellant also had prior convictions for violence and carrying weapons. His attack had a profound adverse impact on the complainant ([13]-[14]).

Allen v Kerr [2009] TASSC 10 (25 February 2009) – Tasmanian Supreme Court

‘Aggravating factor’ – ‘Assault’ – ‘Damaging property’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Sentencing’

Charge: Common assault

Appeal Type: Motion to review sentence

Facts: The applicant was in a relationship with the victim for three years and they had one child together. The victim also had a child from another relationship. Both of these children were present during the incident. The applicant was intoxicated and swore at the victim. An argument ensued and the victim spat in his face, which the applicant claimed led to his subsequent actions. The applicant took the victim’s house keys and told her to go inside before telling her to get in the car. He then smashed the car window, leaned inside and punched the victim twice to the face and four or five times to the back of the head and bit her multiple times. The police applied for a family violence order to operate for 12 months, which the applicant consented to. The applicant had a significant criminal history (though no convictions for assault) and was subject to a probation order and two suspended sentences. He pleaded guilty and was sentenced to two months’ imprisonment.

Issue: One of the issues concerned whether the sentence was manifestly excessive.

Decision and Reasoning: The motion to review was dismissed.

Porter J found that the assault was not premeditated and arose from the applicant’s state of intoxication. The act of the victim spitting in the applicant’s face was a provocative act and an assault in itself. No weapon was used and the complainant suffered no lasting injury. On the other hand, the assault was serious particularly given the biting. Furthermore, the presence of the two children at the time of the attack was an aggravating factor, as recognised by s 13 of the Family Violence Act 2004 (Tas): ‘Violence witnessed by children in the domestic environment not only is distressing (usually the victim is a parent or someone in the place of a parent), but it also serves to desensitise impressionable minds to violence, and to encourage the notion that resort to violence is acceptable’ ([13]).

The community has a general intolerance towards offences of violence. However, although immediate custodial sentences are appropriate for serious cases of assault, there is no prima facie position that assault offences should be punished by an immediate gaol term. The fact that the applicant was subject to the probation order and suspended prison sentences indicates that these measures did not deter the applicant from offending. ‘General deterrence in relation to offences of violence is a weighty factor’ ([27]). While the penalty was a relatively severe one, it did not demonstrate error having regard to the applicant’s circumstances.

Tasmania v R D P [2009] TASSC 72 (25 February 2009) – Tasmanian Supreme Court

‘Emotional and psychological abuse’ – ‘Evidence’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Police family violence order’ – ‘Rape’ – ‘Relationship evidence’ – ‘Risk factor - separation’ – ‘Sexual and reproductive abuse’

Charge: Rape

Proceeding: Application to adduce relationship evidence

Facts: The defendant was in a relationship with the complainant for about 14 months. The alleged offence occurred after the relationship ended. A police family violence order was in place against the defendant. The complainant arranged to attend the defendant’s house to collect her belongings with her 10-year-old son and her brother. She collected her belongings and then went to the bathroom with her son where she found the defendant. There was a knife on the hand basin. The complainant informed the defendant that she did not want to have sex, but he performed oral sex on her. She exposed her breasts on his demands because she thought he might hurt her if she did not. The complainant screamed for help and tried to defend herself by kicking the defendant. The defendant then threatened to rape her anally unless she uncrossed her legs. She then uncrossed her legs and the defendant vaginally raped her. This was done in front of their child.

Issue: Whether the relationship evidence should be admitted.

Decision and Reasoning: The evidence as to the nature of the relationship was admitted, with the exception of evidence of general physical and verbal abuse unconnected with sexual activity. The evidence included general physical abuse and physical violence used to coerce the complainant into sexual intercourse, one prior occasion of non-consensual vaginal intercourse and an act of anal intercourse. Porter J held that the evidence would allow the jury to more readily assess the actions of the complainant and defendant and ascribe meaning to things said by the defendant. In particular, evidence of prior sexual intercourse without consent might serve to explain why the complainant may have displayed some acquiescence to the oral sex and the vaginal penetration. Also, evidence of prior anal penetration was relevant to the jury’s assessment of why the complainant uncrossed her legs prior to vaginal penetration, given the high level of pain and discomfort the complainant suffered as a result of the earlier anal penetration. The probative value of the evidence outweighed its potential prejudice.

Director of Public Prosecutions v P [2007] TASSC 51 (26 June 2007) – Tasmanian Supreme Court

‘Following harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Mitigating factors’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Rape’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge: Rape

Appeal Type: Appeal against sentence

Facts: The respondent’s relationship with the complainant ended. The complainant attempted to maintain a friendship with the respondent but he could not accept that the relationship was over. He kept coming to her home and tried to kiss and cuddle her. She would sometimes relent to avoid an argument. She was pregnant with his child at the time. On the night of the offence, he arrived at the complainant’s home intoxicated. She asked him to leave but he refused. He stopped her from calling a friend. He then refused to allow her to go to the toilet, forcibly pinned her to their bed and raped her. She eventually stopped resisting and he stopped after about 5 minutes. The rape resulted in lasting psychological impacts on the complainant. The respondent had a long record of offending, including offences of violence and threatened violence. He was sentenced to two years’ imprisonment.

Issue: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld. Crawford J (with whom Slicer and Evans JJ agreed) held that a sentence of two years is low for the crime of rape, which is ‘a crime of violence, domination and degradation and it usually causes great psychological trauma to the victim. It requires a substantial sentence of imprisonment in most cases. Leniency may be extended in exceptional circumstances, but there were none in this case’ ([16]). His Honour was of the view that it is conceivable that a crime committed ‘during the currency of a sexual relationship’ might allow some leniency, but the fact of a prior sexual relationship is not a mitigating factor and the appellant’s disappointment about the relationship breakdown is not relevant to sentencing: ‘In no sense was his crime an act of unrequited love.’ ([16]). Evans J also noted that, ‘it is significant that the respondent's criminal conduct cannot be categorised as an impetuous response to the break-up of his relationship with the complainant and a manifestation of his love for her. His conduct over the period of in excess of an hour after she first asked him to leave bears all the hallmarks of an assertion of physical and sexual dominion over the complainant’ ([23]). The respondent was re-sentenced to three years’ imprisonment with a non-parole period of 18 months.

Lambie v State of Tasmania [2007] TASSC 10 (7 March 2007) – Tasmanian Supreme Court

‘Assault’ – ‘Denunciation’ – ‘Deterrence’ – ‘Just punishment’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge: Assault (two counts)

Appeal Type: Appeal against sentence

Facts: The appellant was in an ‘up and down’ relationship with the complainant that was marked with arguments and assaults. On the day of the offence, the appellant attended the complainant’s home. An argument occurred and the complainant said she wanted to sort out the issues in the relationship. She stood in the doorway, preventing the appellant from leaving. The argument continued and the appellant grabbed the complainant and threw her backwards out of the way. The appellant then followed the complainant into their bedroom and shoved his motorcycle helmet into her chest, knelt on her chest and shouted in her face. The appellant later returned to the house and took her a glass of water. The assaults aggravated an existing unknown spinal condition and the complainant had to undergo surgery and suffered temporary and permanent disabilities. There were also lasting psychological impacts. The appellant had no relevant criminal history. He was sentenced to 12 months’ imprisonment with a non-parole period of 6 months.

Issue: One of the issues concerned whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld on the basis of another ground of appeal (that the sentencing judge had taken extraneous or irrelevant material into account). In relation to the issue of manifest excess, Underwood CJ (with whom Blow J and Tennent J agreed) stated that the key consideration was ‘the extent of the appellant's criminal culpability for the consequences of his direct and intentional applications of force’ because the sentencing judge sentenced on the basis the appellant was ‘culpably liable’ for all the consequences of his criminality ([19]). However, there were no submissions on this issue from counsel so the Court was reluctant to make a determination. In any case, it was not necessary to do so because the consequences of the appellant’s criminal conduct were not reasonably foreseeable by him and the exceptional circumstances were such that the consequences should carry little weight in sentencing.

In re-sentencing the appellant, the Court held that the conduct was serious and that, ‘the nature of the criminal conduct was such that a sentence of imprisonment is called for to mark condemnation of this kind of domestic violence and to punish the appellant’ ([31]). However, the lack of relevant prior convictions made a 12-month sentence manifestly excessive. The appellant was re sentenced to six months’ imprisonment, fully suspended on the condition that the appellant be of good behaviour for two years after his release.

Remess v Rabe [2006] TASSC 105 (4 December 2006) – Tasmanian Supreme Court

‘Evidence’ – ‘Ex parte proceedings’ – ‘Exposing children’ – ‘Hearsay’ – ‘Interim intervention order’ – ‘Leave’

Appeal Type: Application for review of the making of interim family violence order

Facts: An interim family violence order (FVO) was applied for on behalf of the complainant by the manager of Victim Support Services within the Department of Justice. An interim order was made in the applicant’s absence and the order was to last for 60 days.

Issues:

1a.	Whether the magistrate erred in making the order when leave to make an application under the Family Violence Act 2004 (Tas) (the Act) had neither been sought nor granted.
1b.	Alternatively, whether the magistrate erred in granting leave to make the application when the material was insufficient for that purpose.
2.	Whether the magistrate erred in making an interim order because the evidence contained in the application was entirely hearsay.

Decision and Reasoning: The application was dismissed.

1a.	The applicant submitted that the victim support officer was a person who was required to seek leave under s 15(2)(d) of the Act such that magistrate had no jurisdiction to hear the application without leave being granted. Tennent J held that a grant of leave was not a pre-condition to jurisdiction, and that s 15 merely provides for the procedure of the classes of persons who may make an application for an FVO.
1b.	Counsel for the applicant conceded that the application for the order was an interlocutory proceeding. Under s 75 of the Evidence Act 2001 (Tas), the hearsay rule does not apply as long as the party adducing the evidence also adduces evidence of its source. Counsel submitted that because the application did not disclose the sources of the information, the evidence was inadmissible. Therefore, there was nothing in the application upon which the magistrate could properly have considered the issue of leave. Tennent J held that in relation to leave the Court should consider ‘the position of the person seeking leave, their relationship to the affected person and whether they may have acquired knowledge of the matters the subject of the application’ ([15]). In this case, the magistrate recognised the person seeking leave and that the protected person was a client of hers. Her position and relationship with her client, of itself, would have identified her as being able to provide assistance to the protected person. It was appropriate in those circumstances for the magistrate to grant leave. While leave should have been expressly addressed, a grant of leave was implicit from the conduct of the proceedings.
2.	The applicant submitted that while some of the material in the application came from police reports, it was not clear whether the officers referred to were reporting from personal contact with the protected person or relying on others. Tennent J held that the protected person clearly identified her sources as two police officers. Her Honour stated that s 75 of the Evidence Act 2001 (Tas) is not limited to ‘first hand hearsay’. As such, the evidence was admissible. Her Honour then commented on the making of interim orders generally at [28]. Counsel for the applicant also raised the issue of the basis on which the magistrate made an order that extended to the children of the parties. The magistrate imposed the order so as to ‘err on the side of caution’ but was careful to not make an order preventing the applicant form approaching his children. Tennent J held this was appropriate: ‘It is well recognised that children in families where domestic violence is a factor can be affected by such violence whether or not they are directly subjected to it’. Even though there was limited material available to the magistrate, the interim nature of the order was reflected in its duration and an acknowledgment that the issue could be revisited.

Oliver v Tasmania [2006] TASSC 95 (17 November 2006) – Tasmanian Supreme Court

‘Aggravated burglary’ – ‘Arson’ – ‘Damaging property’ – ‘Hardship’ – ‘Manifestly excessive’ – ‘Risk factor - separation’ – ‘Sentencing’

Charges: Aggravated burglary (two counts), Unlawfully injuring property (two counts), Arson

Appeal Type: Appeal against sentence

Facts: The offending related to the appellant’s former partner and father of her two children. The relationship had ended acrimoniously as the appellant found out that her former partner had an affair about the time their relationship ended that resulted in the birth of a child. She broke into his home on two separate occasions and damaged it. On the first occasion she broke nine windows, destroyed a collection of vinyl records and smashed a photo frame. On the second occasion she set fire to the home and damaged the complainant’s vehicle parked outside. The damage exceeded $50,000 and the contents lost had a value between $15,000 and $20,000. At the time of sentencing the appellant had three young children. She had relevant prior convictions. She was sentenced to three years’ imprisonment with a non-parole period of 18 months.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

Counsel for the appellant submitted that insufficient weight was given to the fact that the appellant was the mother of three children. However, nothing was put to the sentencing judge that suggested any particular hardship to the children arising from their mother’s imprisonment. Counsel also submitted that the penalty imposed for arson was the harshest in the preceding five years. Counsel for the respondent submitted that this was a deliberate action and resulted in substantial damage. Other dwellings could have been at risk. The offending was motivated by ‘significant ill will’. The appellant showed no remorse and attempted to place the blame elsewhere. The fire was lit late at night at a time when it would be expected that it would not be immediately detected. Tennent J (with whom Evans J agreed) held that the appellant’s conduct could only be described as ‘vindictive attacks in no way justified by what she presumably perceived as the wrongs done to her by him. The gravity of her behaviour escalated in that she went from simply smashing things to using fire, a much more dangerous tool’ ([44]).

Underwood CJ (with whom Evans J agreed) held that there was nothing to indicate that the trial judge did not give appropriate weight to the fact that the appellant was a mother of three children. His Honour held that family hardship is only relevant in the ‘most unusual case’ ([11]). In regards to the appellant’s ‘tariff submission’ that the sentence was the longest imposed for arson in the preceding five years, Underwood CJ noted that the appellant was sentenced for arson as well as other crimes. Further, the fact that the arson was intentional made it more serious. The appellant was neither youthful nor remorseful and this was ‘calculated’ conduct borne out of anger designed to cause maximum distress, such that the totality of the conduct called for a substantial sentence of imprisonment.

Re S [2005] TASSC 89 (19 September 2005) – Tasmanian Supreme Court

‘Assault’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Presumption of innocence’ – ‘Risk assessment tool’ – ‘Risk factor - strangulation’

Proceeding: Application for bail

Facts: The applicant was arrested following a complaint that he assaulted his partner. She alleged that he had taken her car keys. When she asked for them back, he verbally abused her, grabbed her throat and pushed her backwards. The complainant stated that the applicant kept a gun on the property (though this was not untoward because it was a farming property with livestock) and that she lived in fear of her partner’s threats. The applicant denied the allegations and stated that he did not see the complainant on the day in question. He alleged that the complainant made threats against his safety and that she made the assault complaint maliciously in an attempt to force him to pay her money. Following his arrest, an application for a family violence order (FVO) was made. The applicant had no history of violence or prior convictions. The police officer completed a ‘Tasmania Police Family Violence Risk Assessment Screening Tool’. This involved a subjective assessment provided by the complainant and was part of a whole of government response to domestic and family violence instituted in Tasmania in 2004 ([18]). While the applicant was in the remand centre, the complainant called and asked to speak to the complainant. She indicated that she was willing to drop the assault charge if she was paid money that she was owed.

Issue: Whether bail should be granted.

Decision and Reasoning: Bail was granted. The Court held that various problems with duplication within the risk assessment, the mixture of protective legislation within the criminal law and the mandatory nature of the legislation meant that a court is inhibited in its assessment of future risk, especially in the case of an unrepresented defendant. There was evidence that the phone message from the complainant while the applicant was on remand could be construed, ‘as a form of pressure designed to enhance a financial outcome favourable to the maker’, which would be contrary to the Family Violence Act 2004 (Tas). Section 12 of the Act creates a presumption against bail for a person charged with a family violence offence unless the court is satisfied that release, "would not be likely to adversely affect the safety … of an affected person". At [23], Slicer J made some general comments on the effectiveness of the statutory scheme, noting concerns that the public must have confidence in the administration of the scheme and that public confidence is diminished when an arbitrary approach is taken. By tasking the courts to assess the future risk of a person, reliable primary material must be put before the court to deal with issues such as deprivation of liberty and consequences to the family unit. Slicer J also noted the risk that, ‘deprivation of liberty is seen as a sanction imposed for unproven conduct.’

The Court held that it is not possible to determine the merits of the domestic violence complaint at first instance and that it remained an issue for trial. His Honour also noted tensions between the presumption of innocence and the need to protect victims. In applying this to the facts, his Honour granted bail on the provision of a surety and the imposition of residential, geographical and contact provisions.

Olsen v State of Tasmania [2005] TASSC 40 (13 May 2005) – Tasmanian Supreme Court

‘Aggravated assault’ – ‘Bail’ – ‘Legal representation’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Unrepresented litigant’

Charge: Aggravated assault

Proceedings: Bail application

Facts: The applicant was charged with aggravated assault against his former female partner. The Crown case was that the assault consisted of a threatening gesture or gestures with a replica pistol. The applicant vehemently denied these allegations. The Crown informed the court that they would not oppose bail if the applicant was able to produce a suitable surety. The applicant suffered from schizophrenia and would benefit from the supervision of a surety to ensure he did not breach any bail conditions. However, through no fault of his own, the applicant was unable to produce a surety.

Issue: Whether the application for bail should be granted.

Decision and Reasoning: The application for bail was refused. His Honour noted that, ‘Were I free of the restraints imposed by the Family Violence Act, s12, I would grant bail. I would do so because on the face of it, the assault is not a serious one, because the applicant has been in custody since 10 or 11 April, and because it will be some time before this applicant has his case heard.’ His Honour further noted that the applicant had no relevant prior convictions ([3]).

However, s 12 of the Family Violence Act 2004 (Tas) provided that the applicant not be granted bail unless his release on bail would not be likely to adversely affect the safety, well being and interests of the complainant. The onus was on the unrepresented applicant to show this but he had no idea of where the complainant was living (so as to ascertain information about her safety). In light of this and in the absence of a surety to monitor the applicant’s behaviour, the application for bail was refused. His Honour concluded by stating that, ‘I want to say very strongly that this man needs legal assistance and he needs it urgently, otherwise he is likely to stay where he is for a considerable period of time’ ([10]).

S v White [2005] TASSC 27 (21 April 2005) – Tasmanian Supreme Court

‘Assault’ – ‘Bail’ – ‘Damaging property’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factors’

Charges: Assault (3 counts), Destroying property, Application for a restraint order

Appeal type: Appeal against refusal to grant bail

Facts: It was alleged that the appellant assaulted his former partner and two of her children, and that he destroyed the windscreen of her car. A police officer also applied for a restraint order as a result of this incident. The magistrate refused to grant the applicant bail.

Issue: Whether the release of the appellant on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person (the former partner).

Decision and Reasoning: The appeal was allowed and bail was granted with condition as to surety recognisance and a residential condition. There were a number of factors weighing against the appellant: the prosecution had a strong case; this was a case involving not only physical assault but a threat to kill; the appellant used weapons in the commission of the offence; the Family Violence Risk Assessment prepared by the complainant immediately following the incident noted alcohol problems, potential mental health issues, jealousy and possessiveness, threats to kill, violence in the relationship escalating and the relationship had only recently broken down; the proposed surety (the appellant’s mother) was not in good health and would be unable to stop the appellant harming his former partner ([14]-[18]).

However, in spite of this, Blow J was satisfied that the release of the appellant on bail would not be likely to adversely affect the safety, wellbeing and interests of his former partner and her children. The appellant had not assaulted his former partner or children prior to this incident. Despite allegations of mental illness, the appellant had not been diagnosed with such a disorder. The appellant’s demeanour in court was ‘ideal and exemplary,’ precautions had been taken to ensure the appellant did not know where his former partner was, and he had a previous good employment history ([19]-[23]).

Her Majesty's Attorney-General v O [2004] TASSC 53 (9 June 2004) – Tasmanian Supreme Court

‘Assault’ – ‘Delay’ – ‘Exposing children’ – ‘Indecent assault’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’

Charges: Assault, indecent assault

Appeal type: Attorney-General appeal against sentence

Facts: The responded pleaded guilty to assault and indecent assault against a woman with whom he cohabited for seven years. They had four children together. In March 2001, the respondent assaulted the complainant by raising his fist at her, waving a knife in her face and threatening to kill her. The relationship ceased some weeks prior to 30th May 2002. On 30th May 2002, the respondent trespassed into the complainant’s home and ejaculated over her legs while she was asleep. The complainant reported the incident to police soon after it occurred and, at the same time, reported the assault of March 2001. Considerable time was taken to obtain a DNA analysis of the semen on the complainant’s legs. As a result, police did not interview the respondent until a little more than a year after the indecent assault. The respondent was ordered to perform 80 hours of community service.

Issue: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was dismissed by Underwood and Slicer JJ but upheld by Blow J in dissent. The judges provided different reasoning.

Underwood J, in the majority, agreed with Blow J (in dissent) that the sentence imposed was manifestly inadequate. However, he dismissed the appeal. The time in custody the respondent would have to serve would unlikely exceed 6 months and absent some point of principle, ‘it was unjust to take away the respondent's liberty and put him in prison because an undefined error, not caused or contributed to by him in any way, infected the sentencing discretion exercised with respect to crimes that occurred two and three years ago’ ([7]).

Slicer J, also in the majority, held that the sentence was not manifestly inadequate. His Honour quoted Parker v R [1994] TASSC 94 which in turn quoted from a Canadian case R v Brown (1992) 73 CCC (3d) 242, 249 articulating principles for the sentencing of crimes of domestic violence: ‘When a man assaults his wife or other female partner, his violence toward her can be accurately characterised 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’.

However, His Honour nonetheless held that the circumstances of this case did not show manifest disparity or inconsistency with the sentencing standard (which was not to say that a more severe penalty would not have been appropriate). Here, the original assault (followed by the resumption of cohabitation) and the act of indecency were not charged for a further period of 12 months. There was no material advanced that suggested continuation of harassment or manifestation of aggression. The respondent had successfully completed the order of community service ([19]-[20]).

Slicer J also stated: ‘Resolution of the problem of violence within a domestic situation is complex and resumption of cohabitation, as in this case where the complainant had decided to give her partner another chance, makes any assessment of sanction difficult’ ([19]).

Blow J, in dissent, held that the nature of the indecent assault (ejaculating over a former partner’s legs) and the circumstances of aggravation in which it occurred made it a particularly serious example of that sort of crime such that a community service order was so inadequate a penalty that the appeal ought to be allowed ([30], [36]). The circumstances of aggravation were that the respondent entered the complainant’s house as a trespasser at night, the complainant was asleep, and it was committed in the immediate presence of the couple’s four young children which created a strong risk of them witnessing the incident ([26]). A sentence of 11 months’ imprisonment, suspended after 8 months, was appropriate.

His Honour disagreed with the comments of Slicer J as to delay insofar as they related to the indecent assault. He noted that, ‘Certainly fairness to an offender can require a judge imposing a sentence for a stale crime, long after it was committed, to extend what otherwise might be an undue degree of leniency: R v Todd [1982] 2 NSWLR 517 at 519 - 520. There is also authority that a delay need not be inordinate before it deserves to be taken into account: Miceli v R [1997] VSC 22; (1997) 94 A Crim R 327 at 330. However the respondent was sentenced for the indecent assault some 20 months after committing it, and a delay of that order is now, regrettably, quite normal in this State. I therefore think that the delay in relation to that charge is of little significance’.

Waddington v R [2003] TASSC 21 (30 April 2003) – Tasmanian Supreme Court

‘Manifestly excessive’ – ‘Murder’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Sentencing’

Charge: Murder

Appeal type: Appeal against sentence

Facts: The male appellant and the female deceased lived together for 10 or 12 years. The appellant drank 10 cans of beer on the afternoon of the murder. While the appellant prepared dinner, the deceased telephoned a friend. According to counsel for the appellant, these telephone calls occurred on a regular basis meaning that the deceased would often eat dinner cold or not eat dinner at all. The appellant had become frustrated with these calls over the years. The appellant finished making dinner and told the deceased it was ready. She told him that she would eat it later. The friend on the other end of the phone then heard the appellant become enraged. He yelled, ‘Get off that fucking phone … I've been putting up with it for the last ten years … I'm sick to death of the fucking phone.’ The telephone connection was broken. In a rage, the appellant killed his partner. He held a pillow over her face for about three to four minutes, smothering her until she died. An hour later he went to the police and confessed.

Issues:

1.

Whether the sentence of 17 years’ imprisonment was manifestly excessive.

2.

Whether the order fixing a non-parole period of 12 years was manifestly excessive.

Decision and Reasoning: The appeal was allowed on ground 2.

1.

A sentence of 17 years’ imprisonment was not manifestly excessive in all the circumstances. Although the appellant expressed remorse, confessed to the crime quickly, and pleaded guilty, the appellant maintained his suffocation of the deceased for a prolonged period of time, the deceased did not provoke the appellant’s violence in any way, and the appellant had prior convictions ([25]-[27]).

2.

However, a non-parole period of 12 years was harsh, particularly when considered in light of orders for parole eligibility in other murder cases. Taking into account the appellant’s genuine and deep remorse and his full acceptance of responsibility, a non-parole period of 10 years was substituted ([30]).

Burton v R [2002] TASSC 64 (11 September 2002) – Tasmanian Supreme Court

‘Aggravated burglary’ – ‘Assault’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Impact of offence on victim’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’

Charges: Assault (2 counts), Aggravated burglary with intent to commit murder or assault

Appeal type: Appeal against sentence

Facts: The male appellant and the female complainant resided in a de facto relationship between May 2001 and 20 July 2001. The complainant had a six month old child. However, in July, the complainant informed the appellant she wanted to end the relationship. She went to live with her mother. On the morning of 29 July, the appellant smashed a window to enter the complainant’s mother’s flat, holding a large knife (count 1). He yelled, ‘where is the fucking slut’ and ‘where is she’. He entered the complainant’s bedroom, where she was sleeping with her child, shouting that he was going to kill her. The appellant dragged the complainant by her hair to the kitchen and started to cut her neck. She grabbed the blade of the knife and it snapped (count 2 and 3). The appellant dragged her outside the house (count 4) before calming down. The complainant sustained a superficial laceration to her neck and ongoing psychological injury.

The appellant was found guilty of assault at a first trial (count 4). At a second trial, he was found guilty of aggravated burglary (count 1) and assault (count 3). The assault subject of count 3 was framed as an alternative to counts alleging the commission of the crimes of attempted murder and committing an act intended to cause bodily harm (wounding). He was sentenced to three years and six months’ imprisonment for the offences subject of the second trial. In respect of the assault, he was sentenced to three months’ imprisonment cumulative on the first sentence.

Issue: One of the grounds of appeal was whether the sentence of three years and six months’ imprisonment was manifestly excessive.

Decision and Reasoning: The appeal was allowed by all judges but with separate reasoning provided. Crawford J (with whom Underwood J agreed) held that the sentence of three years and six months was manifestly excessive. The sentence was well outside the range of sentences typically imposed for these types of offences ([20]-[23]). In light of the need for consistency, the sentence was set aside and a sentence of two years and three months’ imprisonment was imposed.

Slicer J also found the sentence of three years and six months’ imprisonment was manifestly excessive. The circumstances of the offences warranted the sentence namely, this was a case of ‘home invasion’ and ‘domestic violence,’ the appellant had prior convictions, he was not entitled to the benefit of a guilty plea, there was no evidence of remorse, and the impact on the complainant was likely to be long standing ([46]-[50]). However, the problem was not with the sentence but with the verdict. It was strange that the jury found that the evidence supported that there had been a ‘cutting of the neck’ but returned a verdict of not guilty of wounding. Nevertheless, the sentence was constrained by the jury’s finding of assault, not wounding. On that basis alone, the sentence was manifestly excessive ([50]-[52]). His Honour agreed with Crawford J that a sentence of two years and six months’ imprisonment was appropriate.

Rice v McDonald [2000] TASSC 70 (21 June 2000) – Tasmanian Supreme Court

‘Compulsion’ – ‘Emotional abuse’ – ‘Expert evidence’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Stealing’ – ‘Systems abuse’ – ‘Where the offender is also a victim’

Charges: Stealing, Making a false report to police

Appeal Type: Notice to review conviction

Facts: The applicant and her partner were in a domestic relationship riddled with violence. For a summary of the history of the violence against her, see paragraphs [4]-[10]. The applicant was charged with stealing a television. She entered into an agreement to rent the television under instructions from her partner, who then arranged for the television to be sold to a friend. He instructed the applicant to tell the purchaser that the television came from her sister. After the applicant did not report that the television was stolen to the police, her partner became very angry. As a result of fearing what her partner would do if she defied him, the applicant then reported the television was stolen to the police and the rental company. After the police located the television in the possession of the purchaser, the applicant fully admitted to the crime and protected her partner by providing a false name.

At trial, the applicant gave evidence that she had acted out of fear that she would suffer grievous bodily harm if she did not follow her partner’s demands to commit the offences. She alleged that her partner threatened to kill her if she did not accept full responsibility for the crime and provide a false name to police. That is, she established an evidentiary basis for the court to consider compulsion under s 20 of the Criminal Code 1924 (Tas) (the Code) and duress at common law. The magistrate found that neither of those defences applied.

Issues:

1.

Whether the magistrate erred by applying the provisions of the Code governing criminal responsibility to the charge of making a false report.

2.

Whether the magistrate made legal errors in applying the defences of duress and compulsion.

3.

Whether the magistrate erred in failing to sufficiently consider the evidence of a psychologist with extensive experience in domestic violence.

Decision and Reasoning: The appeal was upheld in respect of issues 2 and 3.

1.

The respondent conceded that this ground was made out. One difference between the common law defence of compulsion and the statutory defence is that it is not necessary for the person making the threat to be present at the time the offence is committed. The applicant was entitled to the benefit of the common law defence. However, this was not sufficient to overturn the conviction because the magistrate was satisfied that the prosecution proved that the applicant was not acting under duress.

2.

The magistrate concluded that the applicant’s contention that her partner would ‘bash the hell out of me’ contained a qualification and because of a slight hesitation in her response, she had not given credible evidence that she was threatened with serious violence. The Court disagreed, holding that given the history of violence, the words ‘bash the hell out of me’ amounted to a clear threat of serious harm.

In referring to the requirement of immediacy under s 20 of the Code, the magistrate concluded that her partner’s threat would not be carried out immediately because of the presence of the purchaser of the television. The Court disagreed, holding that immediacy does not mean that the threat will be carried out at the time of compliance or refusal, but that it is ‘proximate’ to the making of the threat. It requires that the person coerced ‘believes that such threats will be executed’ at the time when the person making the threats is able to carry them out. The magistrate also erred in concluding that the applicant could not have believed the threats could be carried out immediately. Given the history of violence, she was entitled to believe that the threats would be carried out immediately. In relation to seeking the protection of the purchaser, the Court held that this proposition ‘defies logic and experience’ ([25]). The magistrate did not sufficiently take into account the history of the relationship in determining the conduct said to give rise to compulsion. Her partner had complete domination over her and had assaulted her in a refuge. The false report was made at the direction of her partner in the face of explicit and implicit threats. While she theoretically could have made a complaint to the officer about her partner when she filed the report, the option of applying for a restraining order was not consistent with complying with the threats.

3.

The magistrate concluded that the psychologist’s evidence did not assist the defence in establishing duress and compulsion. This amounted to an error and the magistrate was required at least to consider the psychologist’s evidence and the history of violence in determining whether the applicant acted under duress or compulsion.

Magistrates' Court

Police v H [2021] TASMC 13 (22 December 2021) – Tasmanian Magistrates’ Court

‘Breach of protection order’ – ‘Interpretation of order’ – ‘Separation’ – ‘Technology facilitated abuse’

Charges: Breach of police family violence order x 3.

Proceedings: Reasons for decision.

Issues: Whether text messages sent by the defendant fell within an exception to the non-contact condition of the police family violence order; the accused’s guilt.

Facts: The male defendant and female victim were married for 14 years and had two children. After the couple separated, the defendant was subject to a protection order that prohibited contact with the victim ‘except… for the purpose of discussing matters arising out of their relationship including related to their children by… electronic message’ [1]. The defendant was charged with breaching the order by sending three text messages to the victim. The messages invited the victim to the defendant’s house and made a statement about the parties’ relationship and children [28], [32], [36].

Decision and Reasoning: Two of the three messages constituted a breach of the order.

Magistrate Stanton outlined his approach to construing the order: ‘the construction of the clause should be what a reasonable person in the circumstances of the person bound by the order would understand the words to mean’, while ‘considering the context of the exception within the entire order’ [8]-[9]. His Honour found that the ‘intention of the order [was] to keep the parties physically separate and to prevent communication generally while allowing limited communication’ that was for the purpose of discussing matters arising out of their relationship [11], [18]. His Honour found that the text messages that invited the victim to the defendant’s house were invitations ‘to engage in an activity which would otherwise be prohibited by the order’, and ‘not solely a discussion about matters arising out of the relationship’ [31]. Therefore, these messages breached the order. His Honour found that the statement about the parties’ relationship and children, which read: ‘You may hate me but I know my kids love me’, was sent during a discussion between the parties about matters related to the children and arising out of the relationship [33]-[35]. Therefore, the message fell within the exception and did not breach the order.

Purton v Purton [2016] TASMC 9 (19 October 2016) – Tasmanian Magistrates’ Court

‘Management of application proceedings’ – ‘Procedure’ – ‘Protection orders’

Case type: Directions in relation to application to revoke a Police Family Violence Order (‘PFVO’).

Facts: The applicant was served with a PFVO. It stated that the Sergeant was satisfied that the applicant had committed a family violence offence but did not explain why the order was made ([9]). The applicant applied to revoke the order ([10]).

Issues: The parties sought directions in relation to the nature of the application to revoke, the manner in which such an order should be made, and which party bears the onus of proof ([29]).

Decision and Reasoning: Magistrate McKee explained the procedure for challenging a PFVO. The application is not an appeal, nor an administrative review ([40]). It is an application for the court to exercise a discretion to revoke a PFVO ([41]).

The onus of proof is on the applicant to satisfy the Court on the balance of probabilities that it is appropriate to revoke the PFVO ([24]). Since the applicant is unaware of the basis upon which the order was made, the respondents (the police) would have to lead evidence to establish that the applicant committed the offence ([50]).

However, if the police applied to revoke or extend the PFVO, the onus of proof would lie on them ([56]).

McKenna v Smith [2014] TASMC 11 (27 March 2014) – Tasmanian Magistrates’ Court

‘Assault’ – ‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Damaging property’ – ‘Insanity’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Vulnerable - new partner’ – ‘Wilfully and unlawful destroying or damaging property’

Charges: Damaging property (3 counts), Breach of police family violence order (2 counts), Assault

Facts: At 2.30pm on 14 July 2013, the defendant smashed the windscreen of her former de facto partner’s car. Her former partner saw the incident occur and reported it to the police. A short time later, the defendant went to the police station and said she had smashed the windscreen of a car. At 5.45pm, a police officer who had attended the premises of the defendant’s former partner, made and served upon the defendant a police family violence order.

In breach of the police family violence order, at 8.00pm, the defendant again went to her former partner’s house. She began to abuse her former partner and his current partner. She threatened them both and at one point pushed the current partner of her ex-partner. Before leaving, she smashed the panels of her former partner’s car. The incident was reported immediately to police and the defendant was placed under arrest. She resisted arrest, kicking and screaming. This conduct continued at the police station.

The magistrate was satisfied beyond reasonable doubt that the defendant committed the acts.

Issues:

1.

Whether the police family violence order was not validly made because:

◦

it was not made by a police officer of the rank of sergeant or above; and/or

◦

the officer who made the order was not satisfied, or the evidence available to him was not sufficient to satisfy him, that the defendant had committed or was likely to commit a family violence offence.

2.

Whether the defendant was not criminally responsible for any of the acts charged having regard to her mental illness and the provisions of s 16 of the Criminal Code 1924 (Tas).

Decision and Reasoning: The magistrate rejected defence counsel’s submissions in relation to the first issue (the validity of the family violence protection order) but upheld submissions in relation to the second issue (insanity).

1.

The police family violence order was validly made because the police officer was acting in the rank of sergeant at the time the order was made. The magistrate also rejected counsel submissions in relation to the second limb of the argument. These submissions amounted to a collateral challenge to the validity of the police family violence order. A collateral challenge is a challenge to the validity of an order in proceedings where the existence of the order is an element of the offence (not in proceedings to review or set aside the order). The legislation did not permit collateral challenge at least on the basis alleged here i.e. whether the factual basis of the order was sufficient ([26]-[30]). However, even if collateral challenge were available, the ground would not succeed because there was sufficient evidence to support the making of a police family violence order ([19]-[21], [31]).

2.

The defendant was not criminally responsible for any of the acts contained in each charge. On the balance of probabilities the defendant was deprived of the capacity of knowing whether the acts that she performed in respect of each charge were ones that she ought not to do because of her mental illness, i.e. the Bipolar Disorder that resulted in her entering into a hypomanic or manic state. The defendant clearly knew what she was doing but was not able to rationally think about her actions with a moderate degree of sense and composure. This was because of the impact of her mental illness.

Howe v S [2013] TASMC 33 (29 July 2013) – Tasmanian Magistrates’ Court

‘Breach of domestic violence order’ – ‘Charge particulars’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Guilty plea - withdrawal’ – ‘Protection order’

Charge: Breach of a police family violence order (3 counts)

Proceeding: Application for leave to withdraw a plea of guilty in respect of each charge and substitute a plea of not guilty

Facts: On 4 May 2012, a police family violence order was made against the male defendant that included the following order: ‘you must not directly or indirectly threaten, harass, abuse or assault J’. It was alleged that the defendant contravened this order by harassing the female protected person (‘J’). The defendant demanded that the protected person spend the night with him. The defendant threatened to take her child away if she refused to do so. In relation to pending family law court proceedings, the defendant also stated, ‘if you take this to court, things will get vicious and you know what happens when things get vicious. So it’s up to you. Either come and meet me tonight at the house or we will be enemies’ (count 1). This conduct also amounted to a breach of s 9 (emotional abuse or intimidation) of the Family Violence Act 2004 (Tas) (count 3). The police family violence order included an order that, ‘you must not approach (J) directly or indirectly threaten, harass, abuse or assault; by telephone, email, facsimile or letter’ [sic]. It was alleged that the defendant contravened this order by approaching the protected person on numerous times by text messages (count 2).

The defendant pleaded guilty because of advice from his lawyer. He obtained new legal representation and they advised him to lodge an application for leave to withdraw the guilty pleas. His counsel submitted that leave ought to be granted because the particulars alleged of the complaint were insufficient, as a matter of law, to support the allegation contained in each charge. It would be a miscarriage of justice to allow the guilty pleas to stand.

Issue: Whether leave should be granted to withdraw the pleas of guilty.

Decision and Reasoning: The application for leave to withdraw the guilty plea was allowed in respect of counts 2 and 3 but refused in respect of count 1. In relation to count 2, a miscarriage of justice would result if the guilty plea was allowed to stand. The particulars of the charge alleged the defendant approached the complainant on numerous undefined occasions by use of text messages. This breached the requirements of the Justices Act because the prosecution failed to set out each matter of complaint in separate numbered paragraphs and because the prosecution failed to provide particulars by which to identify the text messages said to constitute breach. The ‘rolling up’ of charges meant that the defendant had no real understanding as to what approach and which text message/s constituted the offence. It was impossible to determine what exactly he admitted to in the plea of guilty ([17]-[18]).

Leave was also granted in respect of count 3. The magistrate held that ‘the mental element required to amount to a breach of s 9 is that the defendant knew or ought to know that the course of conduct in which he was engaging is “likely to have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear in his spouse or partner”. This is not what has been alleged. That he knew or should have known that his conduct was “likely to have the effect of abusing or intimidating” his partner, is a different mental element from that referred to in the section’ ([23]).

However, the guilty plea was held to stand in relation to count 1. Counsel for the defence submitted that a person could not be ‘harassed’, as a matter of law, by one act alone. The magistrate concluded that, ‘Whilst I accept that the term “harass” as used in the general community could well include an element of persistence or repetition, I see no reason why a person cannot be harassed within the context of a Family Violence Order, by one act alone. This view is in fact consistent with the definition in s.4 of the Family Violence Act of the word “harassing” … The reference in the definition to “any one or more of the following actions” suggests that a single act might be sufficient. Furthermore, it is appropriate, in my view, to interpret the term having regard to the context in which it is used in the order. The reference to “threaten, harass, abuse or assault” suggests that the order is to be understood as providing protection to a person from contact with the respondent which is unwelcome, and might be in various forms or have variable effect’ ([12]-[16]).

Kerr v Brown [2013] TASMC 30 (8 July 2013) – Tasmanian Magistrates’ Court

‘Breach of domestic violence order’ – ‘Interpretation of order’

Charge: Breach of family violence order (FVO)

Facts: A family violence order (FVO) was made in favour of the protected person that prohibited the defendant from approaching the protected person directly or indirectly. After the order was made, she phoned the defendant and caught a bus to Hobart where he was residing and commenced residing at his property.

The defendant submitted that he never approached the protected person, notwithstanding the fact that when she approached him, he allowed her to remain living at his home. The prosecutor submitted that the order should be interpreted to mean that the defendant was not permitted to allow the protected person to come into his presence, and that if she did, he must immediately leave her presence.

Issue: Whether the defendant was guilty of the offence charged.

Decision and Reasoning: The charge was dismissed. ‘Clearly the intention of the order is to prevent the respondent from coming near or initiating communication with the person to be protected. However, my impression is that police, and perhaps courts, view the condition as a primary mechanism for keeping persons apart in cases where family violence has been alleged or perpetrated, and may well consider the order to have the more extensive effect contended for by the prosecution in this case.’ ([5]). The ordinary meaning of ‘approach’ in the context of the FVO is that a person should not intentionally contact or bring themselves into the presence of the protected person. The order should be interpreted in a way that it would be understood by persons in the position of the defendant without legal training and of limited education: ‘The defendant cannot, in my view, be said to have approached (the protected person) by simply allowing her into the house, even for an extended stay, once she was there. To hold otherwise would be to give the word an extended meaning which is beyond its ordinary common meaning.’

Lusted v MRB [2013] TASMC 9 (19 February 2013) – Tasmanian Magistrates’ Court

‘Assault’ – ‘Coercive control’ – ‘Emotional abuse’ – ‘Evidence’ – ‘Exposing children’ – ‘Following, harassing and monitoring’ – ‘Physical violence and harm’ – ‘Relationship evidence’ – ‘Risk factor - strangulation’ – ‘Tendency evidence’ – ‘Uncooperative witness’

Charge: Assault (6 counts)

Facts: The alleged assaults involved the defendant grabbing, pushing, striking, punching and pinching the complainant. One count involved the defendant grabbing her throat and pinning her against a table. Another involved pushing hot chicken into her face, grabbing hold of her by the chest and pouring cold water over her head ([17]-[28]). The complainant’s relationship with the defendant started when she was 15 and lasted for about 6 years. The prosecution’s evidence indicated that the defendant was controlling and violent towards the complainant throughout their relationship. The complainant was socially isolated and the defendant prevented her from contacting friends. He demanded that she wait on him and would strangle and abuse her if she did not comply with his demands. On one occasion, he threw a bottle at her. For further detail of the ‘uncharged acts’, see paragraphs [8]-[16]. There was one child of the relationship. The infant daughter witnessed two of the assaults.

Issue: Whether the defendant was guilty of the charged offences.

Decision and Reasoning: The charges were dismissed.

The prosecution adduced various circumstantial evidence from other witnesses ([29]-[42]). This included evidence of witnesses who noticed that the complainant had various physical injuries. The prosecution also sought to adduce evidence of the defendant’s tendency to engage in violent conduct against the complainant. Magistrate Pearse admitted this evidence on the basis that it had substantial probative value because it could be inferred that the relationship involved violent and controlling behaviour. The danger of unfair prejudice posed by the evidence was low, particularly in circumstances where no jury was involved. The prosecution also sought to adduce relationship evidence relating to uncharged conduct. This evidence was also admitted on the basis that it removed the implausibility of the assault being isolated. It also supported the assertion that the defendant exercised dominance and control and that the complainant feared the defendant.

This case involved serious and prolonged domestic violence. However, the complainant had not been entirely truthful about the relationship and her evidence was inconsistent with her parents’. She had discussed the possibility of ending the relationship with her parents and decided to leave him at the urgings of her mother once her father returned to town. However, on the day she decided to leave the defendant, she decided to return to him because he seemed remorseful and he offered to buy her dinner. As such, given the gravity of the conduct that was the subject of the complaint, the magistrate found it difficult to believe that the fear of what might happen in her father’s absence was a plausible explanation for her not leaving him. While the magistrate acknowledged that other explanations such as the fact that she may have become conditioned to such behaviour could be relevant, her account was doubted. There were no photographs, medical reports, phone records or other corroborating evidence. As such, the complaints were not proven beyond reasonable doubt.

The magistrate nonetheless emphasised the widespread scale and seriousness of family violence. ‘It is a significant social problem, of concern to the community and the justice system. The parliament saw fit to enact legislation, the Family Violence Act 2004, expressly to “provide for an integrated criminal justice response to family violence which promotes the safety of people affected by family violence”. The nature of family violence is that it is difficult to detect and prosecute. It is frequently the case that offences are committed in private and with little or no independent corroborative evidence. Moreover, family violence offences are often characterised by reluctance on the part of the victim to assist in the prosecution of offences. That is so for a range of factors including fear and a wish to preserve relationships, even dysfunctional ones, for the sake of loyalty, affection, companionship, economic and domestic support and in the perceived interest of children. Sometimes those motivations are misguided but persist nevertheless. As a consequence of such factors victims sometimes act in a way that seems to an outside observer to be incongruous and difficult to understand, including by failing to complain about, or hiding or lying about violence directed at them. Even if victims are willing to give evidence then the success of prosecutions depends principally on credibility of the uncorroborated account of the victim, a factor often taken advantage of by perpetrators and further adding to the reluctance of victims to complain.’ ([68]).

K v K [2012] TASMC 3 (25 January 2012) – Tasmanian Magistrates’ Court

‘Emotional and psychological abuse’ – ‘Interim intervention order’ – ‘Physical violence and harm’ – ‘Risk factor - suicide threat’

Proceeding: Application for revocation of an interim family violence order (IFVO)

Facts: A police family violence order was made against the applicant, which prohibited him from threatening, assaulting or approaching his wife. The order was made on the basis that the police officer was satisfied that family violence was likely to be committed. The applicant and his wife had separated. An argument occurred about the contents of their house but the applicant claimed he was not aggressive and did not threaten or abuse the complainant or threaten to harm himself. He claimed that when he was wheeling a motorbike out of the house, she stepped in front of it to prevent him from taking it and the bike struck her legs which caused her to fall. The complainant claimed that when the applicant attended her home to collect belongings, he was volatile and aggressive and threatened to shoot himself with guns kept on their property. She did not specify what words amounted to these threats or abuse. She claimed he pushed the motorbike against her.

Issue: Whether the order should be revoked.

Decisions and Reasoning: The order was revoked.

A police family violence order cannot be issued only on the basis that the officer believes family violence has been committed. Rather, the officer must be satisfied that a family violence offence has been or is likely to be committed. This is because the definition of family violence includes acts that may not amount to a family violence offence within the meaning of the Family Violence Act 2004 (Tas).

The protected person’s evidence was not corroborated. Family breakdowns can be traumatic so each party tends to perceive events influenced by their own interests. The only way an order could be made would be by proving that the applicant engaged in threats, intimidation, verbal abuse or a course of conduct that amounted to emotional abuse and intimidation. Alternatively, an order could have been made if an assault by pushing the motorbike was proven. Such conduct was not proven: ‘It is difficult to characterise or define what words may amount to threats, intimidation or abuse. The same words may in some circumstances amount to a threat or abuse when in other circumstances they may not. Much depends on the background and the context. In some circumstances even the most seemingly innocent words may be highly intimidatory. The court should consider whether one of the parties is in a position of disadvantage, either physically, emotionally, intellectually, socially or economically’ ([29]). The applicant was more credible as a witness than the complainant and the complainant would not be in a position of disadvantage in an exchange with her husband. She demonstrated throughout the course of the hearing that she was capable of protecting her own interests and it was unlikely that she would have felt threatened, coerced or intimidated. She also likely prevailed in the arguments about property and she likely overstated her evidence to paint the applicant in the worst light.

Buxton v Brinckman [2011] TASMC (21 July 2011) – Tasmanian Magistrates’ Court

‘Bail’ – ‘Bail – interim family violence order’ – ‘Breach of temporary protection order’ – ‘Inconsistency’ – ‘Statutory interpretation’

Charge: Breach of interim family violence order

Proceeding: Reasons for decision

Facts: An interim family violence order (IFVO) was made against the defendant that prohibited him from entering the premises of the protected persons. The defendant was living with his parents. The agreed facts established that one of the protected persons started living at his parents’ address as well. In breach of the order, the defendant continued to live in his parents’ house. However, at the relevant time the defendant was on bail. One of the conditions of the bail order was that he was to reside at his parents’ house.

The magistrate found that the elements of the offence were proven. The defendant submitted that given that he was obliged to reside at his parents’ house by the bail conditions, this relieved him of criminal responsibility for the breach of the IFVO. That is, because the failure to live at his parents’ premises would amount to a breach of bail, this should excuse the breach of the IFVO.

Issue: Whether the defendant was guilty of the offence charged.

Decision and Reasoning: While there may be some circumstances where a person might claim a defence of breaching a statutory obligation on the basis that some other law compels the breach, this was not the situation in this case. Section 6 of the Family Violence Act 2004 (Tas) (the Act) provides that the Act prevails to the extent of any inconsistency with another act. The Court acknowledged that the defendant’s parents made it impossible for him to comply with the bail condition without breaching the IFVO. However, the defendant could have applied for a variation of bail. In the interim period before bringing that matter before the court, the breach of bail may have been excused on the grounds of ‘reasonable cause’. As such, he was not relieved of criminal responsibility for breaching the IFVO.

Last updated: July 2024